Horn v. Comm'r of Corr.

• Decision Date: 28 June 2016
• Docket Number: No. 19364.,19364.
• Citation: 321 Conn. 767,138 A.3d 908
• Court: Connecticut Supreme Court
• Parties: Vernon HORN v. COMMISSIONER OF CORRECTION.

321 Conn. 767

138 A.3d 908

Vernon HORN

v.COMMISSIONER OF CORRECTION.

No. 19364.

Supreme Court of Connecticut.

Argued Feb. 22, 2016.

Decided June 28, 2016.

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, Eugene R. Calistro, Jr., senior assistant state's attorney, and Erika L. Brookman, assistant state's attorney, for the appellant (respondent).

Richard A. Reeve, New Haven, with whom was Allison M. Near, for the appellee (petitioner).

ROGERS, C.J., and PALMER, ZARELLA, McDONALD, ESPINOSA and ROBINSON, Js.

ESPINOSA, J.

The issue that we must resolve in this appeal is whether the habeas court properly granted the petition for a writ of habeas corpus filed by the petitioner, Vernon Horn. After a joint jury trial with his codefendant, Marquis Jackson, the petitioner was convicted of ten offenses¹ in connection with a robbery and murder he committed in 1999 in New Haven. Following the petitioner's direct appeal, the Appellate Court affirmed the judgment of conviction. State v. Jackson, 73 Conn.App. 338, 341, 808 A.2d 388, cert. denied, 262 Conn. 929, 930, 814 A.2d 381 (2002). Thereafter, the petitioner filed a petition for a writ of habeas corpus in which he claimed, among other things, that he was deprived of his sixth amendment right to effective assistance of counsel during his trial because his counsel had failed to conduct an adequate pretrial investigation and had failed to adequately present a defense at trial.² After a trial, the habeas court agreed with the petitioner's claim, granted his petition for a writ of habeas corpus and ordered that the petitioner's conviction be set aside. The respondent, the Commissioner of Correction, then filed this appeal from the judgment of the habeas court.³ We conclude that the habeas court improperly granted the petitioner's petition for a writ of habeas corpus. Accordingly, we reverse the judgment of the habeas court.

The jury in the underlying criminal trial reasonably could have found the following facts, as set forth by the Appellate Court in its opinion addressing the petitioner's direct appeal from the judgment of conviction. “On January 24, 1999, at approximately 3:30 a.m., Jackson and [the petitioner], along with Steven Brown, entered the Dixwell Deli [deli] on Dixwell Avenue in New Haven, wearing masks and carrying handguns. As [the petitioner] entered the deli, he fired five or six shots from a nine millimeter pistol. One bullet struck Caprice Hardy, a customer, and killed him. A second bullet struck Abby Yousif, an owner of the deli, in the shoulder. Brown and Jackson followed [the petitioner] into the deli.

“Jackson then went behind the counter and attempted to open the cash register. [The petitioner] and Brown went to the deli's back room where they found Vernon Butler, an off-duty employee, and Warren Henderson, a homeless man who helped out around the store. Butler was hit on his head with the butt of a gun, searched for money and taken to the front of the store by [the petitioner] to open the cash register. When Butler could not open the register, Jackson took the cash that Yousif had in his pockets. Butler's [cell phone] was also stolen. The [cell phone] was subsequently used the day after the robbery by Marcus Pearson, who had obtained it from [the petitioner].

“During the course of the robbery, two customers, one of whom was Kend[e]ll Thompson, entered the deli. Upon entering, each individual was forced to the ground at gunpoint and ordered to turn over whatever money they possessed.

“In the back room, Brown [rifled] through Henderson's pockets, looking for any money that he may have had. Finding no money on Henderson's person, Brown searched the cigar boxes in the back room to see if there was any cash hidden there. After searching the back room, Brown returned to the front of the deli, where [the petitioner] was shouting orders by the door and Jackson was still behind the counter near the cash register. Upon hearing the sound of sirens, Jackson, [the petitioner] and Brown fled the scene.

“The police processed the crime scene and found latent fingerprints on a cigar box in the back room. The prints matched Brown's fingerprints on file with the Bridgeport [P]olice [D]epartment. When interviewed by the New Haven police, Brown admitted his participation in the January 24, 1999 robbery and identified Jackson and [the petitioner] as the other individuals involved. Jackson and [the petitioner] were arrested and tried jointly. Jackson was found guilty of eight of the ten counts on which he was charged and sentenced to a total effective sentence of forty-five years imprisonment. [The petitioner] was found guilty of all ten counts on which he was charged and sentenced to a total effective sentence of seventy years imprisonment.” (Footnotes omitted.) State v. Jackson, supra, 73 Conn.App. at 342–43, 808 A.2d 388. The petitioner appealed from the judgment of conviction, and the Appellate Court affirmed the judgment. Id., at 341, 808 A.2d 388.

Thereafter, the petitioner filed a petition for a writ of habeas corpus, in which he claimed, among other things, that his trial counsel, Leo Ahern, had failed to provide effective assistance at trial. Specifically, he raised the following two claims that are relevant to this appeal. First, he claimed that Ahern did not adequately investigate the state's theory that the petitioner was in possession of the cell phone that had been stolen during the course of the robbery and, if Ahern had investigated, he would have discovered witnesses who would have contradicted the state's theory. Second, he claimed that Ahern did not adequately investigate Brown's testimony that the petitioner had been with him before, during and after the robbery and murder and that, if Ahern had investigated, he would have discovered evidence that contradicted that testimony. In addition to these ineffective assistance of counsel claims, the petitioner claimed that he was deprived of his constitutional due process right to a fair trial because key state's witnesses perjured themselves during trial and that he was actually innocent. The habeas court conducted a trial on the petition for a writ of habeas corpus over the course of eight days.

After trial, the habeas court concluded that Ahern had failed to provide effective counsel to the petitioner when he failed to discover the evidence that undermined Brown's testimony that the petitioner had been with him before, during and after the robbery and murder, but it concluded that that failure was not prejudicial because the new evidence did not provide a complete alibi to the petitioner. In addition, the habeas court rejected the petitioner's constitutional and actual innocence claims. The habeas court also concluded, however, that, contrary to the state's theory at trial, the testimony of the new witnesses at the habeas trial regarding the stolen cell phone established that the cell phone could not have been in the petitioner's possession the day after the murder.⁴ The habeas court further concluded that Ahern's failure to obtain this information before the criminal trial was deficient performance and that the deficient performance had prejudiced the petitioner's defense. Accordingly, the court granted the petitioner's petition for a writ of habeas corpus and ordered that his conviction be set aside.

On appeal, the respondent concedes that Ahern provided ineffective assistance of counsel by failing to adequately investigate who was in possession of the stolen cell phone in the days following the robbery and murder, but contends that the habeas court incorrectly determined that Ahern's deficient performance was prejudicial to the petitioner. The petitioner disputes this claim and claims as alternative grounds for affirmance that the habeas court improperly determined that: (1) he was not prejudiced by Ahern's failure to investigate and discover the evidence that undermined Brown's testimony concerning the petitioner's whereabouts before, during and after the robbery and murder; (2) the state's use of perjured testimony did not deprive the petitioner of his constitutional due process right to a fair trial; and (3) the petitioner had failed to establish his claim of actual innocence. We agree with the respondent's claim and reject the petitioner's alternative grounds for affirmance.

Before addressing the parties' specific claims, we set forth the standard of review governing ineffective assistance of counsel claims. “The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous.... The application of the habeas court's factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review....

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings [pursuant to Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ].... This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.... As enunciated in Strickland v. Washington, supra, at 687, 104 S.Ct. 2052, this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel.... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong ... the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.” (Citations omitted; internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 509–10, 964 A.2d 1186, cert. denied sub nom. Murphy v....