Robinson v. Comm'r of Corr.
| Decision Date | 30 August 2016 |
| Docket Number | No. 37385.,37385. |
| Citation | 144 A.3d 493,167 Conn.App. 809 |
| Court | Connecticut Court of Appeals |
| Parties | Tyrone ROBINSON v. COMMISSIONER OF CORRECTION. |
167 Conn.App. 809
144 A.3d 493
Tyrone ROBINSON
v.
COMMISSIONER OF CORRECTION.
No. 37385.
Appellate Court of Connecticut.
Argued May 24, 2016.
Decided Aug. 30, 2016.
David B. Bachman, assigned counsel, for the appellant (petitioner).
Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Richard Keenan Greenalch, Jr., deputy assistant state's attorney, for the appellee (respondent).
BEACH, KELLER and HARPER, Js.
HARPER, J.
The petitioner, Tyrone Robinson, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion when it denied his petition for certification to appeal and (2) improperly concluded that his criminal defense counsel (defense counsel), George Flores and William O'Connor,1 did not provide ineffective assistance by failing to immediately object or move for a mistrial after a state's witness testified that the petitioner had refused to speak to police. We conclude that the court did not abuse its discretion in denying the
petition for certification to appeal, and, accordingly, dismiss the appeal.
The following facts and procedural history are relevant to our resolution of the petitioner's claims.2 In 2008, the petitioner was convicted of the murder of Leonard Lindsay in violation of General Statutes § 53a–54a and criminal possession of a firearm in violation of General States § 53a–217 (a)(1). The petitioner elected to have the first count tried by a jury and the second count tried by the court. State v. Robinson, 125 Conn.App. 484, 486, 8 A.3d 1120 (2010), cert. denied, 300 Conn. 911, 12 A.3d 1006 (2011). The core of the state's case consisted of testimony that the petitioner had confessed to killing the victim to four individuals on separate occasions between October, 2002, and April, 2008. Id., at 487, 8 A.3d 1120. The state also presented evidence that the petitioner had exhibited jealousy and anger toward the victim. Id., at 486, 8 A.3d 1120. The state did not produce a murder weapon, any eyewitnesses to the killing, or any physical forensic evidence connecting the petitioner to the killing.
The petitioner's criminal trial included testimony from the lead investigating officer, Detective Jerry Bilbo of the Hartford Police Department, which forms the basis of this appeal. Bilbo testified that the petitioner chose not to speak to police officers following his arrest:
“[The Prosecutor]: When [the petitioner] was arrested, were you called in to speak to him?
“[Bilbo]: Yes, I was.
“[The Prosecutor]: Alright. And did you go see him?
“[Bilbo]: Yes, I did.
“[The Prosecutor]: And did you speak to him?
“[Bilbo]: Yes, I did.
“[The Prosecutor]: Alright. And did he speak to you?
“[Bilbo]: He refused to speak to me.”
Defense counsel did not move for a mistrial or otherwise object immediately to this testimony. Rather, defense counsel chose to cross-examine Bilbo regarding the petitioner's silence and right to remain silent:
“[Defense Counsel]: You said that, when [the petitioner] was arrested, you went to speak to him.
“[Bilbo]: Yes, I did.
“[Defense Counsel]: And you're aware that he does not have to speak to you if he doesn't want to. Isn't that right?
“[Bilbo]: Yes.
* * *
“[Defense Counsel]: Okay. And you didn't write in any report or any documentation anywhere that you ever attempted to speak to [the petitioner], did you?
“[Bilbo]: He refused to speak to me.
* * *
“[Defense Counsel]: Okay. Now, you said ... when [the petitioner] was arrested, you spoke to him. Correct?
“[Bilbo]: Yes, I did.
“[Defense Counsel]: Where did that occur?
“[Bilbo]: That occurred right here, at the courthouse.
“[Defense Counsel]. Okay. But you didn't document that anywhere.
“[Bilbo]: No, sir.
“[Defense Counsel]. And, at any rate, he has every right not to speak to you. Correct?
“[Bilbo]: Yes.”
This line of cross-examination in turn prompted the prosecutor to have the following exchange with Bilbo on redirect:
“[The Prosecutor]: [Defense] Counsel also asked you about speaking to [the petitioner] after he was arrested. Correct?
“[Bilbo]: Yes, he did.
“[The Prosecutor]: And he said that you did not document anywhere that [the petitioner] chose not to talk to you. Correct?
“[Bilbo]: Correct.
“[The Prosecutor]: Alright. And, as [Defense Counsel] pointed out, that was his constitutional right to do so. Correct?
“[Bilbo]: Yes, it was.
“[The Prosecutor]: And is that unusual for you not to document that someone chooses not to speak to you?
“[Bilbo]: No, it is not.”
Finally, defense counsel closed this topic on recross-examination of Bilbo as follows:
“[Defense Counsel]: Okay. And [if a witness stated an important detail to you during an interview] that would be documented, but speaking to a defendant would not be documented. Right? That's your testimony?
“[Bilbo]: Yes, sir.”
Two days later, defense counsel made a motion for a mistrial on the ground that Bilbo's testimony regarding the petitioner's silence violated his due process rights under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and State v. Plourde, 208 Conn. 455, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S.Ct. 847, 102 L.Ed.2d 979 (1989), and caused him substantial and irreparable prejudice. The court denied the motion on the basis that, rather than immediately make that motion when the testimony was offered, defense counsel chose to cross-examine Bilbo on the topic. The court described this decision by defense counsel as “a very sound and excellent tactical decision” and “very intelligent.” Instead of granting a mistrial, the court gave a curative instruction to the jury and prohibited
the prosecutor from making any arguments regarding the petitioner's silence.
The court provided the following curative instruction to the jury: “The [petitioner] also has a constitutional right not to speak to police. And if you find that the [petitioner] chose not to speak to Detective Bilbo, you may not hold that against him in any way.” The petitioner was found guilty on both counts. State v. Robinson, supra, 125 Conn.App. at 486, 8 A.3d 1120. Following conviction, defense counsel filed a motion for a new trial arguing, in part, that Bilbo's testimony was a prejudicial violation of the petitioner's right against self-incrimination under the fifth amendment to the United States constitution. The court denied this motion from the bench on September 2, 2008, without any oral argument from the parties. The petitioner subsequently was sentenced to a total effective sentence of fifty years incarceration. Id. On direct appeal, this court affirmed the judgment of conviction.3 Id., at 489, 8 A.3d 1120.
On May 18, 2012, the petitioner filed his operative petition for a writ of habeas corpus, in which he alleged
that his defense counsel rendered ineffective assistance on several grounds,4 including by failing to object or move for a mistrial immediately after Bilbo testified that the petitioner had refused to speak to police, and then further compounding the error by raising the issue on cross-examination. He contended this deficiency fell below the range of competence displayed by lawyers with ordinary training and skill, violated his due process rights, and caused him prejudice because, if not for this failure, the outcome of his trial would have been different.
Following a trial, the habeas court denied the petition for a writ of habeas corpus by a memorandum of decision dated October 9, 2014. The habeas court made the following relevant findings. When Bilbo testified regarding the petitioner's silence, the defense team discussed how to respond. They determined that it was unlikely the court would grant a mistrial and that, even if such a ruling could be obtained, it would not serve their client's strong desire to proceed with trial. They concluded that the best response would be to cross-examine Bilbo on this issue and seek a curative jury instruction. This strategy also had the benefit, in their view, of undermining Bilbo's credibility and revealing his biases. The habeas court found this strategy to be “eminently reasonable and not indicative of deficient performance,” and that it “effectively highlight[ed] [Bilbo's] bias.” The court concluded that defense counsel did not provide ineffective assistance and that the petitioner did not show that this strategy caused him prejudice.
The petitioner then filed a petition for certification to appeal, which alleged several grounds for appeal, including whether the habeas court improperly determined...
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