Taylor v. Comm'r of Corr.

• Decision Date: 13 January 2015
• Docket Number: No. 35133.,35133.
• Citation: 154 Conn.App. 686,108 A.3d 238
• Parties: Devon TAYLOR v. COMMISSIONER OF CORRECTION.
• Court: Connecticut Court of Appeals

154 Conn.App. 686

108 A.3d 238

Devon TAYLOR

v.COMMISSIONER OF CORRECTION.

No. 35133.

Appellate Court of Connecticut.

Argued Oct. 9, 2014.

Decided Jan. 13, 2015.

Peter Tsimbidaros, assigned counsel, for the appellant (petitioner).

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

BEACH, ALVORD and KELLER, Js.

Opinion

KELLER, J.

The petitioner, Devon Taylor, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court erroneously concluded that (1) the petitioner's trial counsel did not render ineffective assistance of counsel for his failure to (a) introduce evidence to impeach the state's primary identification witness, (b) introduce evidence to establish that a police officer's alleged bias unduly influenced identification evidence, (c) introduce third party culpability evidence, (d) impeach and challenge the admission of expert opinion testimony regarding fingerprint evidence, and (e) object to the trial court's errors in its handling of a jury note, (2) the petitioner's appellate counsel did not render ineffective assistance of counsel for his failure to raise a claim on appeal related to the trial court's errors in its handling of a jury note, and (3) the trial court did not violate his constitutional rights in its handling of a jury note. We affirm the judgment of the habeas court.

The following facts, as apparent in the record or as stated by this court in an earlier appeal and found by the habeas court, and procedural history are relevant to this appeal. On August 27, 1993, “[Jay Murray, the victim,] and Ronald Wightwood, [Murray's] companion, were attempting to purchase drugs [in Hartford]. They met the [petitioner] and indicated to him that they wanted cocaine. The [petitioner] and the victim discussed the purchase and the [petitioner] entered the victim's pickup truck and drove it to the vicinity of a car wash on Albany Avenue. The [petitioner] exited the truck and retrieved a plastic bag containing a white powdery substance, which he gave to the victim. After the victim sampled and rejected the substance, the [petitioner] drove the truck and its occupants to Milford Street. The [petitioner] left the truck but returned several minutes later and shot the victim with a revolver through the driver's side window of the truck. All of those events occurred in the presence of Wightwood. The police found $150 in the truck and also found the [petitioner's] fingerprints on the exterior and interior of the truck.” State v. Taylor, 52 Conn.App. 790, 792, 729 A.2d 226 (1999). The victim later died in a hospital.

The petitioner was charged with murder in violation of General Statutes § 53a–54 and criminal possession of a firearm in violation of General Statutes § 53a–217. In 1997, a jury found the petitioner guilty on both charges. The trial court, Barry, J., sentenced the petitioner to a total effective term of sixty years imprisonment. This court affirmed the judgment of conviction on appeal. Id., at 791, 729 A.2d 226.

Subsequently, the petitioner filed an amended petition for a writ of habeas corpus, which is at issue in this appeal.¹ The amended petition contains four counts. Count one alleges that Kenneth Simon, the petitioner's trial counsel, provided ineffective assistance of counsel on the grounds that, inter alia, Simon failed (1) to introduce evidence to impeach the state's primary identification witness, Wightwood, (2) to adequately seek to suppress Wightwood's allegedly suggestive identification of the petitioner and impeach police on their “possible tainting,” (3) to investigate and introduce evidence to establish a third party culpability defense, (4) to impeach the expert opinion testimony of Kenneth Zercie, an employee at the state forensic laboratory, concerning fingerprint evidence, and (5) to object to the trial court's errors in its handling of a jury note.² Count two broadly alleges that Glenn W. Falk, the petitioner's appellate counsel, provided ineffective assistance of counsel. Count three alleges that the trial court violated the petitioner's constitutional rights by providing an erroneous charge to the jury regarding the definition of the “intent” element of murder. Count four broadly and vaguely alleges that the petitioner's incarceration violates his constitutional rights under the fifth and fourteenth amendments to the federal constitution and article first, § 8, of the Connecticut constitution. The respondent, the Commissioner of Correction, filed a return denying the petitioner's allegations in the amended petition and raising the special defense of procedural default with regard to the petitioner's claim in count three as to the trial court's instruction on the intent element of murder. The petitioner filed a reply denying the respondent's procedural default defense. Both parties then filed pretrial briefs.

Following a trial to the court, both parties filed posttrial briefs. Approximately seven months after the parties filed their posttrial briefs, the court held a hearing wherein the parties appeared on the record and discussed some of the issues raised before the court. In particular, the court and the parties discussed the petitioner's claims pertaining to the trial court's handling of the jury note.³ The court then permitted the parties to provide supplemental briefs regarding those claims, which both parties submitted a few weeks thereafter.

The court, Bright, J., subsequently issued a memorandum of decision denying the petition. First, the court concluded that Simon did not render ineffective assistance of counsel, rejecting multiple allegations underlying the petitioner's claim.⁴ Second, the court concluded that Falk did not provide ineffective assistance of counsel.⁵ Third, the court concluded that the petitioner's claim that the trial court committed constitutional error in its charge to the jury regarding the intent element of murder was procedurally defaulted and, in any event, meritless because the charge was correct and not misleading. Fourth, the court concluded that the petitioner's claim that the trial court committed constitutional error in its handling of the jury note was both procedurally defaulted and not raised properly before the habeas court. Nonetheless, the court considered the claim on its merits, concluding that the trial court's errors did not prejudice the petitioner and were, therefore, harmless. Finally, the court rejected the petitioner's broad claim in count four that his incarceration violated his constitutional rights, citing its conclusions that the petitioner did not prove any of his allegations in counts one, two, or three of his amended petition.

The petitioner filed a petition for certification to appeal from the court's judgment, which the court granted. Before filing his appeal with this court, the petitioner filed a motion for reconsideration, which the habeas court denied. The petitioner then filed a motion for rectification, arguing that the habeas court improperly failed to use a structural error analysis to determine whether the trial court had violated his constitutional rights. The habeas court denied his motion. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The petitioner claims that the habeas court erroneously concluded that Simon did not render ineffective assistance of counsel on multiple grounds. We disagree and address each ground in turn.

We begin by setting forth the relevant standard of review governing ineffective assistance of counsel claims. “The application of the habeas court's factual findings to the pertinent legal standard ... presents a mixed question of law and fact, which is subject to plenary review....

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings.... This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.... It is axiomatic that the right to counsel is the right to the effective assistance of counsel.... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong ... the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.... To satisfy the prejudice prong, 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.... The claim will succeed only if both prongs are satisfied.” (Citation omitted; internal quotation marks omitted.) Hardison v. Commissioner of Correction, 152 Conn.App. 410, 424, 98 A.3d 873 (2014).

A

First, the petitioner claims that the habeas court erred in concluding that Simon did not render ineffective assistance of counsel for failing to offer certain testimony and introduce certain documents to impeach the state's primary identification witness, Wightwood. Specifically, the petitioner claims that Simon should have offered the testimony of Anthony Perez, a detective at the Hartford Police Department who was the first officer to encounter Wightwood after the shooting, or, at a minimum, introduced a police report authored by Perez regarding the shooting. The petitioner further claims that Simon should have introduced a document prepared by Luisa St. Pierre, another detective at the Hartford Police Department. We disagree and address each claim in turn.

The petitioner claims that Simon should have offered the testimony of Perez or, at a minimum, introduced a police report authored by...