Salters v. Comm'r of Corr., 32473.

• Citation: 60 A.3d 1004,141 Conn.App. 81
• Decision Date: 26 February 2013
• Docket Number: No. 32473.,32473.
• Court: Appellate Court of Connecticut
• Parties: Gaylord SALTERS v. COMMISSIONER OF CORRECTION.

141 Conn.App. 81
60 A.3d 1004

Gaylord SALTERS
v.
COMMISSIONER OF CORRECTION.

No. 32473.

Appellate Court of Connecticut.

Argued Oct. 18, 2012.
Decided Feb. 26, 2013.

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Mary Boehlert, assigned counsel, for the appellant (petitioner).

Rocco A. Chiarenza, deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney,

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and David Clifton, deputy assistant state's attorney, for the appellee (respondent).

DiPENTIMA, C.J., and BEAR and BORDEN, Js.

DiPENTIMA, C.J.

[141 Conn.App. 82]Following the granting of certification to appeal by the habeas court, the petitioner, Gaylord Salters, appeals from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus. The petitioner claims that the court (1) improperly rejected his claim of ineffective assistance of counsel and (2) erroneously rejected his claim that he was denied a fair trial due to the prosecutor's failure to disclose material, exculpatory information. We affirm the judgment of the habeas court.

The following facts and procedural history set forth by the court in its memorandum of decision and supported by the record are relevant to the resolution of this appeal. On November 24, 1996, the petitioner participated in a gang related shooting in New Haven. At the time of the shooting, the petitioner was a member of the Island Brothers street gang, and the Ghetto Boys were a rival street gang. On that day, the petitioner and an accomplice followed a car driven by Daniel Kelley, a member of the Ghetto Boys. Either the petitioner or his accomplice fired gunshots into Kelley's car, and [141 Conn.App. 83]Kelley sustained a gunshot wound to his shoulder. Kendall Turner, a passenger in Kelley's car and also a member of the Ghetto Boys, sustained a gunshot wound to his elbow. Kelley's wound caused him to lose control of the vehicle, and he crashed into two nearby cars.

The petitioner was arrested and charged with two counts of assault in the first degree pursuant to General Statutes §§ 53a–59 (a)(5) and 53a–8, and one count of conspiracy to commit assault in the first degree pursuant to General Statutes §§ 53a–59 (a)(5) and 53a–48 (a). At trial, the petitioner was represented by John R. Williams (defense counsel). Defense counsel had defended the petitioner in cases prior to the present action, and he referred to himself as “ ‘almost in-house counsel’ ” for the Island Brothers and for the petitioner. Defense counsel filed an untimely notice of alibi on “the eve of trial” on December 5, 2002. The state filed a motion to exclude alibi evidence on December 6, 2002. The court granted the state's motion that day, noting that its order pertained only to third party alibi witnesses and did not preclude the petitioner from testifying and offering an alibi on his own behalf. The petitioner was convicted by a jury of all charges and was sentenced to forty years imprisonment, execution suspended after twenty-four years, followed by five years probation. The petitioner appealed his conviction, claiming that the trial court violated his right to present a defense by precluding him from presenting testimony from an alibi witness at trial. See State v. Salters, 89 Conn.App. 221, 222, 872 A.2d 933, cert. denied, 274 Conn. 914, 879 A.2d 893 (2005). This court upheld the petitioner's conviction. Id., at 236, 872 A.2d 933.

The petitioner subsequently filed this second amended petition for a writ of habeas corpus in 2009. In it, he claimed that he was denied due process because [141 Conn.App. 84]the prosecutor withheld material, exculpatory impeachment information in that the prosecutor failed to provide such information pertaining to Turner, who had testified for the state in the criminal trial. He further claimed ineffective assistance of counsel because defense counsel failed to (a) sufficiently investigate, discover and present to the jury information regarding Turner's statement, (b) conduct sufficient discovery

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and (c) sufficiently advise the petitioner of his right to apply for sentence review.¹

The second amended petition was tried before the habeas court, and defense counsel, the petitioner, the petitioner's girlfriend, the petitioner's mother, Turner and Kelley testified. Defense counsel testified in part that the petitioner did not provide him with an alibi until the night before trial was scheduled to begin. The court denied the petition for a writ of habeas corpus in a memorandum of decision. The court based its denial in part on its conclusion that defense counsel's testimony was more credible than the petitioner's testimony. Further, the court determined that defense counsel did investigate Turner's history of criminal convictions prior to the petitioner's trial and that the prosecutor disclosed all of the information he had pertaining to Turner.

This appeal followed. On appeal, the petitioner claims that the habeas court improperly (1) rejected his claim of ineffective assistance of counsel and (2) rejected his claim that he was denied the right to a fair trial by the prosecutor's failure to disclose material, exculpatory information. Additional facts will be set forth as necessary.

I

The petitioner first claims that the habeas court improperly rejected his claim of ineffective assistance [141 Conn.App. 85]of counsel. Specifically, the petitioner argues that defense counsel failed to investigate the case properly and to file timely notice of the petitioner's alibi. We disagree.

“When a [petitioner] complains of the ineffectiveness of counsel's assistance, the [petitioner] must show that counsel's representation fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “To satisfy the prejudice prong [of Strickland ], a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 91, 52 A.3d 655 (2012). Thus, the task before us is to determine whether the court appropriately determined that defense counsel's actions were objectively reasonable so as not to prejudice the petitioner.

“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.” (Internal quotation marks omitted.) Brown v. Commissioner of Correction, 131 Conn.App. 497, 500–501, 27 A.3d 33, cert. denied, 303 Conn. 905, 31 A.3d 1181 (2011). Here, the habeas court concluded that the petitioner did not provide an alibi until the eve of trial. In making that conclusion, the court determined that defense counsel's testimony was more credible than the petitioner's testimony. “The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 717, 946 A.2d 1203,[141 Conn.App. 86]cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). “This court

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does not retry the case or evaluate the credibility of the witnesses.... Rather, we must defer to the [trier of fact's] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) Greene v. Commissioner of Correction, 96 Conn.App. 854, 857, 902 A.2d 701, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006).

It is not this court's role to second guess the habeas court's conclusion that defense counsel's testimony was more credible than the petitioner's testimony. The habeas court noted that “it is...