Tutson v. Comm'r of Corr., 32988.

• Decision Date: 16 July 2013
• Docket Number: No. 32988.,32988.
• Citation: 72 A.3d 1162,144 Conn.App. 203
• Parties: Trendel TUTSON v. COMMISSIONER OF CORRECTION.
• Court: Connecticut Court of Appeals

144 Conn.App. 203
72 A.3d 1162

Trendel TUTSON
v.
COMMISSIONER OF CORRECTION.

No. 32988.

Appellate Court of Connecticut.

Argued April 15, 2013.
Decided July 16, 2013.

[72 A.3d 1164]

Temmy Ann Pieszak, chief of habeas corpus services, with whom, on the brief, was Rebecca I. Bodner, assistant public defender, for the appellant (petitioner).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellee (respondent).

ROBINSON, BEAR and KELLER, Js.

KELLER, J.

[144 Conn.App. 204]The petitioner, Trendel Tutson, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the habeas court abused its discretion when it denied the petition for certification to appeal and that the court improperly (1) failed to read all of the exhibits introduced at the habeas proceeding and that this failure is reflected in gross factual errors in the court's decision; (2) concluded that he was not prejudiced by his trial counsel's mishandling of his alibi defense; and (3) concluded that he received effective assistance from his trial counsel. Because the petitioner has failed to demonstrate that the court improperly [144 Conn.App. 205]denied the petition for certification to appeal, we dismiss the appeal.

In 2002, the petitioner was convicted of attempt to commit murder in violation of General Statutes §§ 53a–54a and 53a–49, and assault in the first degree in violation of General Statutes § 53a–59 (a)(5). He was sentenced to twenty years incarceration. After considering the claims raised by the petitioner in his direct appeal, this court, concluding that the trial court violated the petitioner's right to present a defense, reversed the judgment of conviction and remanded the case for a new trial.

[72 A.3d 1165]

State v. Tutson, 84 Conn.App. 610, 627–28, 854 A.2d 794 (2004). Following a grant of certification to appeal; State v. Tutson, 271 Conn. 935, 861 A.2d 511 (2004); our Supreme Court reversed this court's judgment, and remanded the case to this court to consider a claim that this court, in its earlier decision, did not resolve. State v. Tutson, 278 Conn. 715, 718, 899 A.2d 598 (2006). Following that remand, this court affirmed the judgment of conviction. State v. Tutson, 99 Conn.App. 655, 915 A.2d 344 (2007).

The facts underlying the petitioner's conviction were set forth previously by this court, as follows: “[O]n March 26, 2001, between 1 and 1:30 p.m. ... Ernesto Molina was driving a 1992 red Volkswagen Jetta on Bond Street in Hartford, looking to buy marijuana. Molina was joined by two passengers, Jorge Pagan, Molina's best friend, who sat in the front passenger seat, and Michael Alvarado, who sat in a backseat. As the vehicle traveled on Bond Street, Molina and Pagan noticed a small white car traveling toward them in the opposing lane. They also noticed that there was a passenger in the front seat. As the cars passed, Molina and Pagan saw the face of the driver of the white car.

“After the vehicles passed, the white car turned around and, with increasing speed, began following the [144 Conn.App. 206]red Jetta on Bond Street. Molina and Pagan noticed this and became concerned. In an attempt to elude the car, Molina increased his speed to eighty-five to ninety-five miles per hour and drove through stop signs and traffic lights. Molina ultimately turned onto Brownell Avenue and the white car did the same. As the cars were traveling at fifty-five miles per hour, Molina looked in his rearview mirror and saw a long black pole, which he thought was a rifle, come out of the driver's side window of the white car and turn in the direction of the Jetta. Molina then heard a noise and felt something strike the back of his head. A large caliber bullet had pierced the back of the Jetta and traveled through the vehicle's trunk and passenger compartment. A fragment of that bullet lodged in the back of Molina's head. Although injured, Molina kept driving, turning right onto Broad Street and continuing to Hartford Hospital. The white car did not follow the Jetta, turning left onto Broad Street instead.

“At the hospital, the police immediately were notified of the incident. They arrived at the hospital shortly thereafter and briefly spoke with Molina, Pagan and Alvarado regarding the shooting. The police also conducted a formal interview of Pagan at the police station during which Pagan described the driver and passenger of the white car.

“Approximately one hour after arriving at the hospital, the police were contacted by the security department from the Learning Corridor (Corridor). The police were told that a member of the Corridor's security personnel was walking to lunch between 1 and 1:30 p.m., when he heard what sounded like a gunshot resonating from Brownell Avenue. The police also were notified that this security officer searched Brownell Avenue after he learned about the shooting and recovered a twelve gauge shotgun shell from the north side of the street. The police ultimately took the shell into their [144 Conn.App. 207]possession. At that time, it was neither dirty nor rusty and did not appear to have been on the street for a long time. The shell, however, was never tested for fingerprints. The police also took a videotape from the Corridor's exterior surveillance camera. That tape revealed that two vehicles, one red, one white, were on Brownell Avenue and that the red vehicle turned right onto Broad Street while the white vehicle turned left. Neither gunfire nor the make of the vehicles could be discerned

[72 A.3d 1166]

from the video. In addition, the video was time-stamped in a manner that made it unclear that the events depicted actually occurred on March 26, 2001.

“Approximately twelve hours after the shooting, at roughly 2 a.m. on March 27, 2001, Pagan, while driving to a gas station to buy a beverage, observed that he was being followed by the [petitioner] in a white Dodge Neon (Neon). Pagan immediately notified police officers that the vehicle that had been involved in the earlier shooting was following him. The police located the Neon and pursued it, but it fled, turning its headlights off in the process. Shortly thereafter, the police located the vehicle in the rear yard of 51 Whitmore Street. The vehicle appeared abandoned; the engine was not running, although it was still warm, and the doors were wide open. A short distance away, the police found the [petitioner] and Philip Washington hiding beneath some cars. Thereafter, the police brought Pagan to the scene where he positively identified the [petitioner] as the driver of the Neon in the earlier shooting and Washington as its passenger.

“The police subsequently discovered that Rooty Thomas, who lived in Meriden, was the lessee of the Neon. Once contacted, Rooty Thomas gave the police permission to search the vehicle.

“The police performed gunshot residue tests on the hands of the [petitioner] and Washington as well as on [144 Conn.App. 208]the exterior and interior surfaces of the driver's and passenger's doors of the Neon. These tests disclosed lead particles on the palm of the [petitioner]'s left hand as well as on the back of his right hand. They further revealed the presence of lead, barium and antimony on the palm of Washington's left hand and lead particles on the exterior of the vehicle's passenger door.

“On April 5, 2001, Molina identified the [petitioner] from a photographic array shown to him by the Hartford police, and on March 8, 2002, Pagan did the same. No weapon was ever recovered.

“Trial of this matter began on March 11, 2002. The state alleged that the [petitioner] was guilty of criminal attempt to commit murder and assault in the first degree as either a principal or an accessory. The [petitioner]'s theory of the case was that the eyewitnesses misidentified him as the perpetrator of the crime because, at the relevant time, he was at a location other than the scene of the crime and, therefore, he could not have committed it.

“In support of its case, the state offered the testimony of two eyewitnesses. The first was Molina who testified, inter alia, that he was positive that the [petitioner] was the driver of the Neon during the shooting. He also identified Rooty Thomas' leased Neon as the vehicle involved in the incident, and he identified the [petitioner] as its driver.

“The second eyewitness offered by the state was Pagan. Pagan testified that the car involved in the shooting was a white Dodge Neon and that he recognized it and the [petitioner] as its driver from his previous observations of the [petitioner] and the Neon in his neighborhood. He also said he recognized the passenger in the Neon, although he did not know his name. Pagan further stated that he initiated a conversation with the [petitioner] on March 4, 2002, in which the [petitioner] [144 Conn.App. 209]told him that he ‘had no beef with’ him, that he wanted Pagan to help him, and that he wanted Pagan to apologize to Molina for him. Finally, he testified that he had never had any problems with the [petitioner] prior to the incident. Pagan also provided an in-court identification of the [petitioner] as the driver of the Neon.

“During cross-examination, defense counsel brought out an inconsistency in Pagan's testimony. Although Pagan's

[72 A.3d 1167]

statement to the police indicated that he saw the passenger side window of the Neon down during the chase, at trial he testified that he saw the driver's side window down. In an effort to explain himself, Pagan stated that he never said that to the police. Upon reading his statement, he testified that he was mistaken and that the driver's side window was down. Pagan then testified that ‘[a]t the time ... I wasn't really thinking about—I didn't even want to do the statement’ and,...