Smith v. Comm'r of Corr.

• Decision Date: 02 April 2013
• Docket Number: No. 33418.,33418.
• Court: Connecticut Court of Appeals
• Parties: Joshua SMITH v. COMMISSIONER OF CORRECTION.

141 Conn.App. 626

62 A.3d 554

Joshua SMITH

v.COMMISSIONER OF CORRECTION.

No. 33418.

Appellate Court of Connecticut.

Argued Nov. 28, 2012.

Decided April 2, 2013.

Darcy McGraw, assistant public defender, for the appellant (petitioner).

Sarah Hanna, assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Michael Porto and Brenda Hans, assistant state's attorneys, for the appellee (respondent).

BEAR, ESPINOSA and BORDEN, Js.^*

BORDEN, J.

The petitioner, Joshua Smith, appeals from the judgment of the habeas court denying his third amended petition for a writ of habeas corpus. The petitioner claims that the court improperly concluded that at his criminal trial: (1) he received effective assistance of counsel; and (2) there was no Brady¹ violation. We affirm the judgment of the habeas court.

The facts giving rise to this case are set forth in State v. Smith, 46 Conn.App. 600, 601, 700 A.2d 91, cert. denied, 243 Conn. 935, 702 A.2d 642 (1997). “On February 11, 1994, the victim, Devon Laidley, and his girlfriend, Tonia McKoy, were at a house at 167 South Main Street in the city of Norwalk. The [petitioner] arrived at the residence, stood on the front porch and engaged in a conversation with a friend, Willis Heron. Subsequently, the victim emerged from the residence and walked down the driveway toward a gate near the front sidewalk. Suddenly, the [petitioner] jumped off the porch, pulled out a gun and fired at the victim, who was standing at the gate. When the shots were fired, the victim tried to run away from the [petitioner]. The [petitioner], still firing his gun, pursued the victim. When the victim stumbled and fell to the ground, the [petitioner] approached him and fired the gun at him two or three more times at close range. In total, the [petitioner] fired approximately nine to twelve shots at the victim. The victim later died, and an autopsy revealed that he was hit by eight bullets, one of which pierced his heart. Both Heron and McKoy witnessed the killing.” Id., at 601–602, 700 A.2d 91.

In the underlying criminal trial, the petitioner was represented by attorney Michael Sherman (trial counsel). Both McKoy and Heron testified at trial that they knew the petitioner prior to the murder and positively identified him as the gunman. Id., at 608, 700 A.2d 91. After a jury trial, the petitioner was convicted of murder in the first degree in violation of General Statutes § 53a–54 (a). Id., at 601, 700 A.2d 91. The court sentenced the petitioner to a total effective sentence of forty-five years incarceration. The petitioner filed a direct appeal from that judgment, which was affirmed by this court. Id., at 609, 700 A.2d 91.

On September 11, 2009, the petitioner filed this third amended petition for a writ of habeas corpus. In it, he alleged that his trial counsel had rendered ineffective assistance in failing to investigate adequately and to present certain witnesses and evidence.² He further alleged that the prosecutor committed a Brady violation by failing to disclose certain exculpatory photographs. After a trial, the habeas court issued its memorandum of decision denyingthe petition, finding that “the petitioner has failed in submitting persuasive evidence to meet his burden of proof....” On March 28, 2011, the habeas court granted the petitioner's petition for certification to appeal. This appeal followed. Additional facts will be set forth as necessary.

I

The petitioner first claims that he did not receive effective assistance of counsel because his trial counsel failed to investigate, locate and present a multitude of witnesses during the petitioner's underlying criminal trial. The petitioner asserts that these witnesses could have been used to impeach the testimony of the state's eyewitnesses that he was the shooter. The petitioner also claims that the habeas court improperly concluded that his trial counsel did not have a duty to investigate further after the petitioner provided an alibi defense that proved not viable. We disagree.

A

We first address the petitioner's contention that his trial counsel was deficient in that he failed to present several witnesses at his criminal trial. The following additional facts are relevant to this claim. At the habeas trial, the petitioner's habeas counsel produced a total of twenty-seven witnesses, but only a few whose testimony is relevant to this claim. First, an affidavit, purportedly signed by Paul Gayle, stating that the petitioner was not the shooter, was entered as an exhibit. Gayle, however, invoked his fifth amendment privilege as to his recollection of the night of the murder and also was unable to remember the contents of the affidavit or its execution. Second, David Hamilton testified that he was near the scene of the crime when he heard gunshots and took cover behind a vehicle. After the shooting stopped, Hamilton saw a six feet, two inches to six feet, three inches tall, thin individual running from the scene with a gun. Hamilton testified that the shooter was not the petitioner, whom he described as “short and kind of stocky.” He further testified that, although he saw that the individual was black, he could not make out any features and “definitely wouldn't be able to identify the shooter.” Third, Shannon McKoy, Tonia McKoy's cousin, testified that, at the time of the shooting, she was in the house and did not see the shooter. Shannon McKoy testified that, prior to the shooting, several individuals were gathered on or near the porch of the house, and she did not remember seeing the petitioner. She also testified that she could not “definitely say” that the petitioner was on the porch because he looked similar to three other individuals of Jamaican descent whom she knew.

The habeas court denied the petition for a writ of habeas corpus, concluding that the petitioner failed to support his claim that his trial counsel had conducted an inadequate investigation and that the “strategic and tactical decisions of counsel, as well as the manner in which he carried them out [were] within the acceptable range of performance.” The habeas court also concluded that the petitioner failed to meet his burden of proving prejudice, reasoning that “[t]he evidence presented at the habeas trial by the petitioner was individually and collectively unimpressive and, in large part, useless because the ‘witnesses' were unable, or unwilling, to definitively place themselves at the murder scene, could not recall what took place, or refused to provide testimony.”

We begin with our well established standard of review. “The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearlyerroneous.... Accordingly, [t]he 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.... 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.” (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 677, 51 A.3d 948 (2012).

“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). “A [petitioner's] claim that counsel's assistance was so defective as to require a reversal of the conviction ... has two components. First, the [petitioner] must show that counsel's performance was deficient.... Second, the [petitioner] must show that the deficient performance prejudiced the defense.... 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.) Holley v. Commissioner of Correction, 62 Conn.App. 170, 172–73, 774 A.2d 148 (2001). “[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the [petitioner] as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.” (Internal quotation marks omitted.) Constantopoulos v. Commissioner of Correction, 47 Conn.App. 828, 833, 708 A.2d 588, cert. denied, 244 Conn. 927, 711 A.2d 726 (1998).

In the present case, the petitioner cannot prevail on the prejudice prong of the Strickland test. As the habeas court noted, the testimony of the witnesses who the petitioner says “should have been interviewed and would have changed the outcome [was] vague, contradictory and simply not exculpatory.” “This court 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). Without a persuasive showing in this court that the habeas court's critical finding, namely, that these witnesses were “individually and collectively unimpressive and, in larger part, useless” is clearly erroneous, we will not disturb the habeas court's finding in this regard.

The petitioner cites Bryant v. Commissioner of Correction, 290 Conn. 502, 509, 964 A.2d 1186, cert. denied sub nom. Murphy v. Bryant, 558 U.S. 938, 130 S.Ct. 259, 175 L.Ed.2d 242 (2009), in support of his argument that he was prejudiced by his trial counsel's failure to locate and interview witnesses who could have...