Mitchell v. Comm'r of Corr.

• Decision Date: 07 April 2015
• Docket Number: No. 36120.,36120.
• Court: Connecticut Court of Appeals
• Parties: James MITCHELL v. COMMISSIONER OF CORRECTION.

156 Conn.App. 402

114 A.3d 168

James MITCHELL

v.COMMISSIONER OF CORRECTION.

No. 36120.

Appellate Court of Connecticut.

Argued Feb. 6, 2015.

Decided April 7, 2015.

Mary H. Trainer, assigned counsel, for the appellant (petitioner).

Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Marcia A. Pillsbury, assistant state's attorney, for the appellee (respondent).

SHELDON, KELLER and BEAR, Js.

Opinion

KELLER, J.

After the habeas court granted certification to appeal, the petitioner, James Mitchell, brought this appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. First, the petitioner claims that, although the court did not address the issue in its decision, the record reflects that, in connection with pretrial plea negotiations, his trial counsel rendered ineffective assistance by failing to advise him of the essential elements of the crimes with which he was charged. Second, the petitioner claims that the court improperly rejected his claim that the failure of his trial counsel to investigate certain videotape evidence adequately constituted ineffective assistance. We affirm the judgment of the habeas court.

The following procedural history underlies this appeal. In 2005, following a jury trial, the petitioner was convicted of attempt to commit murder in violation of General Statutes §§ 53a–49 (a), 53a–8 and 53a–54a, conspiracy to commit murder in violation of General Statutes §§ 53a–48 (a) and 53a–54a, kidnapping in the first degree in violation of General Statutes §§ 53a–8 and 53a–92 (a)(2)(A), conspiracy to commit kidnapping in the first degree in violation of General Statutes §§ 53a–48 and 53a–92 (a)(2)(A), sexual assault in the first degree in violation of General Statutes §§ 53a–8 and 53a–70 (a)(1), conspiracy to commit sexual assault in the first degree in violation of General Statutes §§ 53a–48 and 53a–70 (a)(1), assault in the first degree in violation of General Statutes §§ 53a–8 and 53a–59 (a)(5), conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a–48 (a) and 53a–59 (a)(5), and criminal possession of a firearm in violation of General Statutes § 53a–217 (a)(1). The court imposed a total effective sentence of fifty-seven years imprisonment.

The petitioner appealed from the judgment of conviction to this court, which affirmed the judgment of the trial court. State v. Mitchell, 110 Conn.App. 305, 955 A.2d 84, cert. denied, 289 Conn. 946, 959 A.2d 1012 (2008). The facts underlying the conviction, as the jury reasonably could have found them, appear in this court's earlier decision: “On August 23, 2003, following an evening at a nightclub, the victim¹ was dropped off at a friend's house in East Hartford. Wanting to return home, and with her residence too distant to walk, the victim called the [petitioner] for a ride. The victim chose to call the [petitioner] because she knew that Denasha Sanders, the mother of one of the [petitioner's] children, had lived in the same building as the victim and that the [petitioner] was frequently in the vicinity. The [petitioner] and the victim's brother had had a prior confrontation concerning the fact that the victim's brother had dated Sanders. Shortly before August 23, the victim's brother and Sanders had moved to North Carolina with the child of Sanders and the [petitioner].

“The [petitioner] arrived driving a gold Nissan Altima accompanied by another man, unknown to the victim at the time, but later identified as Travis Hampton. The victim agreed to go with the [petitioner] and Hampton to downtown Hartford to get something to eat. Upon leaving a restaurant, the [petitioner] became violent with the victim, striking her with his cell phone and demanding to know the location of the victim's brother. Out of fear that the [petitioner] would harm her, the victim lied to the [petitioner] and told him that her brother was at her grandfather's house. The victim attempted to leave the car, but the [petitioner] pulled her by the hair and locked the doors. During this time, Hampton remained in the backseat of the vehicle.

“The [petitioner] subsequently determined that the victim's brother was not at her grandfather's house. He drove the victim and Hampton to his mother's house in Hartford and ordered the victim out of the car. The victim briefly complied and then returned to the vehicle while the [petitioner] and Hampton entered the house.

When the [petitioner] and Hampton returned, the three proceeded to leave the area by car. The [petitioner] apologized to the victim for hitting her and offered her marijuana, which she accepted. Instead of driving the victim home, however, the [petitioner] drove to Market Street in Hartford and parked his vehicle. The [petitioner] told the victim he wanted to have sex with her and proposed that they go to a hotel or to Sanders' house.

“The victim refused and got out of the car, intending to walk home. The [petitioner] produced a shotgun, which he gave to Hampton, who pointed the weapon at the victim's face. The [petitioner] and Hampton told the victim to remove her pants. The victim testified that the [petitioner] raped her vaginally from behind. When the [petitioner] was finished, he forced the victim to perform fellatio on Hampton. The victim complied briefly, and Hampton proceeded to rape her vaginally, while the [petitioner] regained and held the shotgun. The victim grabbed her pants and yelled at the [petitioner] to let her leave. The [petitioner] told the victim she could get into a nearby dumpster or run. As the victim attempted to run, the [petitioner] shot her in the side of the stomach. The victim continued her attempt to run away, followed by Hampton, who now had the shotgun. The [petitioner] pursued the victim in the car and blocked her path. Hampton shot the victim again. He and the [petitioner] then left the scene. Shortly thereafter, the [petitioner] and Hampton returned briefly and then left the area again. The victim dragged herself to the street, where she was found by a passing driver. The police and paramedics were summoned, and the victim was taken to Hartford Hospital for treatment.” (Footnote in original.) Id., at 308–10, 955 A.2d 84.

In 2010, the petitioner filed a petition for a writ of habeas corpus. By way of an amended petition, filed on June 11, 2012, the petitioner alleged that his trial counsel (Kirstin B. Coffin, Ramona Mercado Espinoza, and David Thompson) had performed deficiently in a variety of different ways and that there was a reasonable probability that, but for such deficient performance, the outcome of his trial would have been different. In his prayer for relief, the petitioner requested, inter alia, that the habeas court vacate his conviction and grant him a new trial. On August 1, 2013, the court issued a memorandum of decision in which it addressed the petitioner's claims concerning ineffective representation in four areas: (1) advising the petitioner relative to the state's plea offer, (2) conducting pretrial investigation, (3) examining witnesses and objecting to evidence, and (4) presenting closing argument. The court denied the amended petition. This appeal followed. Additional facts will be discussed as necessary.

I

First, the petitioner claims that, although the court did not address the issue in its decision, the record reflects that, in connection with pretrial plea negotiations, his trial counsel rendered ineffective assistance by failing to advise him of the essential elements of the crimes with which he was charged. Specifically, the petitioner asserts that his trial counsel failed to advise him adequately “regarding the elements required [for the state] to prove accessory liability, conspiracy liability, and liability under Pinkerton [v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946) ].” We do not reach the merits of this claim.

As the petitioner correctly acknowledges in his brief before this court, the habeas court did not address this claim in its decision. The petitioner asserts that “the record is sufficient for [this] court on its own to find ineffective assistance of counsel and resulting prejudice.”

In his amended petition for a writ of habeas corpus, the petitioner alleged that his trial counsel “failed to adequately and effectively ... advise [the] petitioner as to the applicable law, prior to the petitioner's decision to be tried to a jury, which prejudiced the petitioner in not permitting him to make a knowing, intelligent, and voluntary decision....” At the conclusion of the hearing on the petition, the court discussed with the petitioner's attorney the importance of posttrial briefs to bring into focus the claims on which the petitioner relied. The court stated that it was unsure of the nature of some of the claims broadly alleged in the petition and stressed that it would consider only those claims that clearly were addressed in the petitioner's posttrial brief. The present claim was not distinctly raised in the petitioner's lengthy posttrial brief and was not addressed by the court in its decision denying the petition. The petitioner thus abandoned the claim as a result of his failure to brief it before the habeas court. See, e.g., Jackson v. Commissioner of Correction, 149 Conn.App. 681, 687–88, 89 A.3d 426, cert. granted on other grounds, 313 Conn. 901, 96 A.3d 558 (2014) ; Raynor v. Commissioner of Correction, 117 Conn.App. 788, 796–97, 981 A.2d 517 (2009), cert. denied, 294 Conn. 926, 986 A.2d 1053 (2010). The record does not reflect that the petitioner attempted to amend his posttrial brief or otherwise seek to obtain a ruling on this claim.

It is well settled that “this court is not bound to consider any claimed error unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant's claim.” (Internal quotation marks omitted....