Tutson v. Comm'r of Corr.

• Decision Date: 06 September 2016
• Docket Number: No. 37939.,37939.
• Citation: 144 A.3d 519,168 Conn.App. 108
• Parties: Trendel TUTSON v. COMMISSIONER OF CORRECTION.
• Court: Connecticut Court of Appeals

168 Conn.App. 108

144 A.3d 519

Trendel TUTSON

v.COMMISSIONER OF CORRECTION.

No. 37939.

Appellate Court of Connecticut.

Argued April 4, 2016.

Decided Sept. 6, 2016.

Michael D. Day, with whom, on the brief, was John J. Duguay, 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 David M. Carlucci, assistant state's attorney, for the appellee (respondent).

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

DiPENTIMA, C.J.

The petitioner, Trendel Tutson, appeals from the judgment of the second habeas court, Oliver, J., denying his second amended petition for a writ of habeas corpus. The petitioner claims that the second habeas court erred by (1) concluding that there was no reasonable probability that the result of the habeas appeal from the first habeas court's denial of his petition for certification to appeal would have been different and (2) declining to presume that the petitioner was prejudiced by his prior habeas appellate counsel's failures to raise an issue on his petition for certification to appeal from the first habeas court's ruling. We affirm the judgment of the second habeas court.

The petitioner was charged with attempt to commit murder in violation of General Statutes §§ 53a–49 and 53a–54a, and assault in the first degree in violation of General Statutes § 53a–59 (a)(5), for his role in a shooting that took place between 1 and 1:30 p.m. on March 26, 2001, in Hartford. In order to resolve the issues in this appeal, we revisit relevant facts concerning the petitioner's alibi witnesses who testified at his trial as set forth in State v. Tutson, 278 Conn. 715, 899 A.2d 598 (2006). Approximately eight months before the petitioner's trial commenced, “[o]n August 6, 2001, the [petitioner's trial counsel] sent a letter to the state ... identifying Julia Thomas (Julia) as the only alibi witness. The letter contained no information, however, regarding the [petitioner's] whereabouts at the time the crime was committed. The [petitioner's trial counsel] also provided the state with a three page investigative report dated April 19, 2001. The report was based on a personal interview with Julia and a telephone interview with her son, Terrell Thomas (Terrell). Although the report referred to the [petitioner's] ‘girlfriend’ and listed the name of Rooty [Thomas (Rooty) ] as a subject to be interviewed, it did not name Rooty as a prospective witness and did not identify her as the [petitioner's] girlfriend.

“The trial commenced on March 11, 2002. The state alleged that the [petitioner] was guilty as a principal or an accessory of criminal attempt to commit murder and assault in the first degree. In the bill of particulars ... the state specifically alleged that, ‘[o]n [March 26, 2001], at approximately 1:30 p.m., the [petitioner] was the operator of a 1997 white Dodge Neon proceeding east on Bond Street’ and that ‘[Philip] Washington was his front seat passenger in the ... Neon.’ The state further alleged that the [petitioner] had engaged in a car chase with [Ernesto] Molina, who was driving a red Volkswagen Jetta carrying two other passengers, [Jorge Pagan and one other individual], and had fired a shot at the Jetta, or had assisted Washington in shooting at the Jetta, thereby causing physical injury to Molina.¹ The [petitioner], relying on theories of misidentification and alibi, attempted to convince the jury that the two eyewitnesses to the shooting [Molina and Pagan] incorrectly had identified him as the perpetrator because, at the relevant time, he was in another location and thus could not have committed the alleged offenses.

“As the state was nearing the end of its case-in-chief, [the petitioner's trial counsel] represented to the court, outside the presence of the jury, that she had given the state the names of Julia and her sons, Terrell and Tyrone Thomas (Tyrone), as alibi witnesses. An extended discussion followed as to whether the [petitioner] had provided the state with adequate notice to admit the proposed alibi testimony....

“During this discussion, [the petitioner's trial counsel] declared that the [petitioner's] ‘strongest’ alibi witness was Rooty. When the state protested that it had not been given notice that Rooty would testify as an alibi witness, [the petitioner's trial counsel] replied that she had included Rooty on the defense witness list, although counsel was having difficulty locating her. Upon further inquiry by the court, [the petitioner's trial counsel] stated that if Rooty could be located and was allowed to appear as an alibi witness, she would testify that she and the [petitioner] went to New Haven following his visit with Terrell to pick up her child or drop off her nephew....

“That same day, prior to the testimony of the state's final witness, the [petitioner's trial counsel] filed the following notice of alibi with the court: ‘[O]n the date of [March 26, 2001] at approximately [1] and 1:20 [p.m.], the [petitioner] ... was at the home of ... Julia ... and Tyrone ... located at 827 Wethersfield Avenue, Hartford....

“ ‘[O]n [March 26, 2001] at approximately 1:20 until [3 or 4 p.m.], the [petitioner] ... was in the company of Terrell ... and Rooty ... (who are not related to each other) [en] route to and from Meriden and New Haven ... where Rooty ... had to pick up her ... child from school.’

“After the state concluded its case-in-chief, [the petitioner's trial counsel] reiterated to the court, outside the presence of the jury, that if Rooty was located and permitted to appear as an alibi witness, she would testify that the [petitioner] left Julia's residence at approximately 1:20 p.m. on the day of the shooting and accompanied her to Meriden and New Haven to pick up her child....

“The following day, [the petitioner's trial counsel] informed the court that she finally had located Rooty, who would be available to testify later that day. The court replied that, because [the petitioner's trial counsel] had failed to comply with the applicable rules of practice, it would allow Rooty to testify as an alibi witness only if the state was given an opportunity to interview her first. [The petitioner's trial counsel] initially agreed to this proposal but then informed the court that she no longer wanted to offer Rooty as an alibi witness because she had learned that Rooty was not with the [petitioner] at the time of the shooting. The court responded that, in those circumstances, the [petitioner's trial counsel] had ‘an absolute right’ to call Rooty as a regular witness.

“Thereafter, Julia testified in a manner generally consistent with the investigative report, stating that the [petitioner] was visiting her sons, Terrell and Tyrone, when she returned home from grocery shopping between 12:30 and 1 p.m. on the day of the shooting and that he left at approximately 1:10 to 1:15 p.m. She further testified that the [petitioner] had stated upon leaving that his girlfriend was waiting outside in her car. Julia described the vehicle, which she had seen when returning to her residence a short time earlier, as a small white car with a child inside.

“Rooty subsequently testified that she drove the [petitioner] to Julia's residence to visit his friend Terrell between 12:30 and 1 p.m. on the day of the shooting. Before she could testify further, however, the state objected, outside the presence of the jury, to further questioning of Rooty because it appeared that she was about to give alibi testimony. [The petitioner's trial counsel] responded that Rooty was going to testify that, after she dropped the [petitioner] off at Julia's residence, she left the area and returned to pick him up around 2 p.m.² When the court noted the conflict between the proffered testimony and Julia's testimony that the [petitioner] had left her residence shortly after 1 p.m., the [petitioner's trial counsel] responded that Rooty was not an alibi witness because she would not be testifying as to what the [petitioner] did between the time she dropped him off and the time she picked him up.

“After Rooty returned to the stand, [the petitioner's trial counsel] did not inquire further regarding her activities after she dropped the [petitioner] off at Julia's residence.

“In the proceedings that followed, the state elicited rebuttal testimony from Detective Andrew Weaver of the Hartford police department that Rooty had stated in an interview that was conducted shortly after the crime was committed that the [petitioner] had asked her if he could use her Neon on the morning of March 26, 2001, that she had assented to his request and that she was unaware of the location of the vehicle until Weaver had contacted her after the shooting.... In accordance with [a request from the petitioner's trial counsel], the court thereafter gave an alibi instruction that the [petitioner] claimed he was elsewhere at the time of the alleged offenses.

“At the conclusion of the trial, the jury found the [petitioner] guilty of attempt to commit murder and assault in the first degree. The court rendered judgment in accordance with the jury verdict and sentenced the [petitioner] to twenty years incarceration.” (Citation omitted; footnotes altered.) Id., at 721–30, 899 A.2d 598.

On direct appeal, this court reversed the judgment of the trial court and remanded the case for a new trial because it concluded that the trial court had violated the petitioner's right to present a defense. State v. Tutson, 84 Conn.App. 610, 627–28, 854 A.2d 794 (2004). Our Supreme Court reversed the judgment of this court with direction to consider additional claims that this court did not resolve. State v. Tutson, supra, 278 Conn. at 751, 899 A.2d 598. Following that remand, this court affirmed the judgment of conviction. State v. Tutson, 99 Conn.App. 655, 656, 915 A.2d 344 (2007).

Thereafter, the petitioner filed his first petition for a writ of habeas corpus and was represented by Attorney Rebecca I. Bodner. Count...