Gamble v. Comm'r of Corr.

• Decision Date: 23 January 2018
• Docket Number: AC 39971
• Citation: 179 A.3d 227,179 Conn.App. 285
• Court: Connecticut Court of Appeals
• Parties: Hudel GAMBLE v. COMMISSIONER OF CORRECTION

179 Conn.App. 285

179 A.3d 227

Hudel GAMBLE

v.COMMISSIONER OF CORRECTION

AC 39971

Appellate Court of Connecticut.

Argued October 5, 2017

Officially released January 23, 2018

Jade N. Baldwin, for the appellant (petitioner).

Jo Anne Sulik, supervisory assistant state's attorney, with whom, on the brief, were Adrienne Russo, assistant state's attorney, and Patrick J. Griffin, state's attorney, for the appellee (respondent).

DiPentima, C.J., and Alvord and Pellegrino, Js.

DiPENTIMA, C.J.

The petitioner, Hudel Gamble, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly rejected his claim of ineffective assistance of appellate counsel. We are not persuaded by the petitioner's arguments, and, accordingly, affirm the judgment of the habeas court.

The following facts and procedural history are relevant to the resolution of the petitioner's appeal. On November 29, 2005, Daniel Smith was driving a borrowed BMW in New Haven while Ricardo Ramos was seated in the front passenger seat. The petitioner later joined Ramos and Smith, and sat in the back seat. The petitioner, Ramos, and Smith proceeded to joyride around the "Hill" section of New Haven¹ while smoking marijuana. At that time, both the petitioner, who was seventeen years old, and Ramos, who was fifteen years old, were residents of the "Hill" section of New Haven. Ramos had known the petitioner and Smith for two to three years and would see both the petitioner and Smith on a daily basis.

At some point, Smith drove into the "Tre" section of New Haven.² Ramos noticed an acquaintance of his on Kensington Street, and Smith stopped the BMW. The woman stated in a loud voice that a man with whom Ramos had a "beef" was in the area. Smith drove around the block and upon returning to Kensington Street, Ramos spotted the victim, whom he believed had killed his cousin in the "Hill" section over a month earlier.

The victim was with a group of four or five individuals who were standing to the right of the BMW. Someone from the group fired shots at the BMW. The petitioner, Ramos, and Smith all returned fire. The victim sustained five gunshot wounds due to the entry, exit, and reentry of bullets, and ultimately died. The medical examiner recovered three different types of bullets from the victim's body. Ballistics evidence revealed that one of the three bullets recovered from the victim's body was damaged, but that it had the characteristics of a .22 long rifle caliber bullet. Ballistics testing of the damaged bullet revealed that it could have been fired from various handguns, revolvers, semi-automatic pistols, and several types of long arms. This bullet entered the victim's right knee. A .38 caliber bullet, which ballistics testing revealed could have been fired from either a .38 revolver or a .357 magnum caliber revolver, entered the victim's right hip. A .30 caliber bullet, which ballistics testing established was fired from an SKS semiautomatic rifle that the police found under Ramos' bed following the shooting, traveled through the victim's right arm, reentered the right side of his chest, went through his right lung and grazed his diaphragm and liver. The official cause of the victim's death was from multiple gunshot wounds. The medical examiner testified that the victim's injuries to his knee and hip were treatable, but that the medical personnel were unable to treat successfully the victim's chest injury. The day after the shooting, Ramos learned that the victim was unknown to him and was not the individual with whom he had a "beef." The police did not find any latent fingerprints on the SKS rifle or its magazine.

The jury found the petitioner guilty of manslaughter in the first degree with a firearm as an accessory in violation of General Statutes §§ 53a–55 (a) (3) and 53a–8. The petitioner was also charged with, and found not guilty of, manslaughter in the first degree with a firearm in violation of § 53a–55 (a) (3), murder and murder as an accessory in violation of General Statutes §§ 53a–54a and 53a–8, conspiracy to commit murder in violation of General Statutes §§ 53a–54a and 53a–48 (a), possession of an assault weapon in violation of General Statutes §§ 53–202c and 53a–8, and conspiracy to possess an assault weapon in violation of §§ 53–202c and 53a–48 (a). The court, Holden , J. , sentenced the petitioner to thirty-seven and one-half years incarceration.

The petitioner, represented by Attorney William Westcott, unsuccessfully appealed his conviction.³ See State v. Gamble , 119 Conn. App. 287, 987 A.2d 1049, cert. denied, 295 Conn. 915, 990 A.2d 867 (2010).

On August 25, 2016, the petitioner filed a third amended petition for a writ of habeas corpus, alleging the ineffective assistance of appellate counsel.⁴ He alleged that his appellate counsel provided ineffective assistance by failing to raise a claim of insufficient evidence on direct appeal.

At the habeas trial, Westcott testified that he did not raise a sufficiency claim on direct appeal because he had not prevailed on a similar claim in a different appeal in which a defendant, who was convicted as an accessory, was part of a group of individuals who all fired shots at the victim, who they were "out to get." Attorney Daniel Krisch testified for the petitioner as an expert in appellate practice. He testified that the only evidence of the petitioner's aiding the principal was that he had handed Ramos a .22 caliber pistol which had caused the treatable injury to the victim's knee. He further testified that no reasonable jury could have convicted the petitioner of manslaughter as an accessory, and there was a reasonable probability that an insufficiency claim would have been successful on direct appeal.

On November 28, 2016, the habeas court, Sferrazza, J., issued a memorandum of decision denying the petition for a writ of habeas corpus. The court stated that "[w]here multiple shooters intentionally fire at someone, all the shooters can properly be convicted, through accessorial liability, of the homicide even though it was a companion's bullet that killed the victim. State v. Delgado , 247 Conn. 616, 627, (1999). Such a show of force aids the killer by eliminating or reducing methods of escape, by deterring others from attempting to assist the victim, and by thwarting detection through the confusion generated by such a fusillade." The court concluded that the petitioner could not prevail on his claim because he failed to prove prejudice under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The court granted the petition for certification to appeal. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the petitioner claims that the habeas court improperly concluded that he failed to establish that his appellate counsel was ineffective by not raising insufficiency of evidence as an issue in his direct appeal. He contends that the court improperly concluded that he failed to prove that he was prejudiced by his appellate counsel's performance. We disagree.

We begin by setting forth our standard of review and the legal principles applicable to the petitioner's appeal. "Although a habeas court's findings of fact are reviewed under the clearly erroneous standard of review ... [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact.... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard." (Citation omitted; internal quotation marks omitted.) Ham v. Commissioner of Correction , 301 Conn. 697, 706, 23 A.3d 682 (2011).

"In Strickland v. Washington , [supra, 466 U.S. at 687, 104 S.Ct. 2052], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction .... That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense [by establishing a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different].... Unless a [petitioner] makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable." (Internal quotation marks omitted.) Parrott v. Commissioner of Correction , 107 Conn. App. 234, 236, 944 A.2d 437, cert. denied, 288 Conn. 912, 954 A.2d 184 (2008). With respect to the prejudice prong, "we must assess whether there is a reasonable probability that, but for appellate counsel's failure to raise the issue on appeal, the petitioner would have prevailed [on] ... appeal, i.e., [obtaining] reversal of his conviction or granting of a new trial." Small v. Commissioner of Correction , 286 Conn. 707, 722, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz , 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). "[T]he task before us is not to conclude definitively whether the petitioner, on appeal, would have prevailed on his claim .... Rather, the task before us is to determine, under Strickland , whether there is a reasonable probability that the petitioner would have prevailed on appeal." (Emphasis omitted.) Id., at 731, 946 A.2d 1203. "To ascertain whether the petitioner can demonstrate such a probability, we must consider the merits of the underlying claim." Id., at 728, 946 A.2d 1203.

Underlying the petitioner's claim of ineffectiveness by appellate counsel is that there was insufficient evidence to support the petitioner's conviction of manslaughter in the first degree with a firearm as an accessory. "In reviewing a sufficiency [of the evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine...