State v. Rivera

• Decision Date: 02 July 1985
• Citation: 196 Conn. 567,494 A.2d 570
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Luis RIVERA.

Page 570

494 A.2d 570

196 Conn. 567

STATE of Connecticut v. Luis RIVERA.

Supreme Court of Connecticut.

Argued May 3, 1985.

Decided July 2, 1985.

Sue L. Wise, New Haven, with whom, on the brief, were Joseph G. Bruckmann, New Haven, and Elizabeth M. Inkster, Madison, for appellant (defendant).

Thomas V. O'Keefe, Jr., Asst. State's Atty., with whom were Julia D. Dewey, Asst. State's Atty., and, on the brief, Arnold Markle, State's Atty., for appellee (state).

Before PETERS, C.J., and ARTHUR H. HEALEY, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

PETERS, Chief Justice.

The principal issue in this appeal is the determination of the proper forum in which to consider the defendant's claim that his robbery conviction must be set aside because of ineffective assistance of counsel. The defendant, Luis Rivera, was charged in a substitute information with having committed robbery in the first degree in violation of General Statutes § 53a-134(a)(4); criminal attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134(a)(4); conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134(a)(4); and larceny in the second degree in violation of General Statutes §§ 53a-119 and 53a-123. After a trial to a jury, he was found guilty of all of the charges except that of larceny. He appeals from the judgment convicting him of these crimes and sentencing him to an effective sentence of five to ten years.

The defendant's conviction arose out of the following facts. Three young men were returning home from their jobs at a restaurant in Wallingford when the moped on which two of them were riding broke down. The other young man was on foot. While they waited for help, a red station wagon drove up and stopped. The passenger in the car first asked for directions and then proceeded to threaten the men and to demand their money. When, after some hesitation, the victims complied with this demand, the car drove off. Although the incident occurred at night, the area was brightly lit and the victims noted the license plate of the car. After making a timely report to the police, the victims were able to identify the car used in the crime when the police, shortly thereafter, located the car outside a Meriden after-hours bar. The car, which had been stolen, was later determined to contain a fingerprint of the defendant. Each of the three victims, on the basis of independent photographic arrays, identified the defendant as the person who had taken their money. Each of the victims also identified the defendant in court.

The defense offered at the trial was one of alibi. Several witnesses testified that the defendant was at the after-hours club at the time of the crime, and that he was under the influence of drugs and alcohol throughout that night. In addition, the defense sought to undermine the credibility of the witnesses presented by the state.

The defendant's only claim on this appeal is that he was denied his constitutionally guaranteed right to effective assistance of counsel in violation of the sixth and fourteenth amendments to the United States constitution and of article first, section eight of the Connecticut constitution. It is undisputed that the constitutional right to counsel to which every person accused of a crime is entitled to a right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970); State v. Gregory, 191 Conn. 142, 143, 463 A.2d 609 (1983); State v. Scielzo, 190 Conn. 191, 205-206, 460 A.2d 951 (1983). The defendant alleges that trial counsel's conduct of his defense constituted ineffective assistance in five respects: failure to pursue pretrial suppression of photographic identifications by two of the victims; failure to object to hearsay testimony by the victims; failure to object to expert testimony about the defendant's fingerprint; failure to object to inflammatory cross-examination of one of the defendant's alibi witnesses; and prejudicial direct examination of another of the defendant's alibi witnesses.

The test that measures ineffective assistance of counsel requires a defendant to make two showings, that trial counsel's performance was not reasonably competent or within the range of ordinary training and skill in the criminal law, and that trial counsel's lack of competence contributed to the defendant's conviction. State v. Tirado, 194 Conn. 89, 91-92, 478 A.2d 606 (1984); State v. Gregory, supra, 191 Conn. 143-44, 463 A.2d 609; State v. Chairamonte, 189 Conn. 61, 63, 454 A.2d 272 (1983); see Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). As we have repeatedly held, this test is difficult to meet on the face of an appellate record because such a record rarely reveals the strategic reasons behind the actions taken or not taken by trial counsel. For that reason, we have with increasing frequency declined to consider such claims on direct appeal, suggesting instead that their merits be addressed by recourse to habeas corpus. See, e.g., State v. Lubesky, 195 Conn. 475, 485, 488 A.2d 1239 (1985); State v. Jacobowitz, 194 Conn. 408, 413, 480 A.2d 557 (1984); State v. Tirado, supra, 194 Conn. at 92-93, 478 A.2d 606.

Defendants have been faced with a quandary about the proper way to pursue claims for ineffective assistance of counsel. On the one hand, a direct appeal on such a claim is almost always an exercise in futility. On the other hand, failure to take a direct appeal runs the risk of potential conflict with the limited authority of trial courts to hear petitions for habeas corpus. This court has repeatedly emphasized that "[a] petitioner seeking to raise federal constitutional claims in a collateral proceeding must first allege and establish by a preponderance of the evidence that he did not deliberately bypass the orderly procedure of direct appeal." Paulsen...