Ampero v. Comm'r of Corr.

171 Conn.App. 670

157 A.3d 1192

Alberto AMPERO

v.COMMISSIONER OF CORRECTION

AC 38575

Appellate Court of Connecticut.

Argued October 26, 2016

Officially released March 21, 2017

Naomi T. Fetterman, for the appellant (petitioner).

Rocco A. Chiarenza, 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).

Alvord, Prescott and Norcott, Js.

NORCOTT, J.

Opinion

The petitioner, Alberto Ampero, appeals from the judgment of the habeas court denying, in part, his amended petition for a writ of habeas corpus.¹ On appeal, the petitioner claims that the habeas court improperly (1) concluded that his trial counsel provided effective assistance, (2) rejected his claim of actual innocence, and (3) rejected his claim that his due process rights were violated by the use of allegedly perjured testimony. We disagree and, accordingly, affirm the judgment of the habeas court.

The following facts and procedural history are relevant to the disposition of the petitioner's claims.² On August 27, 2009, the petitioner forced the victim and her three children to enter an apartment building and, after allowing them to leave the following morning, fled on foot from pursuing police. State v. Ampero , 144 Conn.App. 706, 708–12, 72 A.3d 435, cert. denied, 310 Conn. 914, 76 A.3d 631 (2013). During the course of the night, the petitioner also grabbed the victim by her neck, choked her and left marks on her neck. Id. at 710, 72 A.3d 435. The state charged the petitioner with kidnapping in the first degree in violation of General Statutes § 53a–92 (a) (2) (A), kidnapping in the second degree in violation of General Statutes § 53a–94 (a), strangulation in the second degree in violation of General Statutes § 53a–64bb, and interfering with an officer in violation of General Statutes § 53a–167a. Following a jury trial, the petitioner was found guilty of kidnapping in the second degree and interfering with an officer.³ Id., at 712, 72 A.3d 435. He was found not guilty of the remaining charges. This court affirmed the petitioner's convictions on direct appeal. Id. at 708, 72 A.3d 435.

On May 5, 2014, the petitioner filed the operative three count second amended petition for a writ of habeas corpus. In it, the petitioner alleged ineffective assistance of his trial counsel,⁴ R. Bruce Lorenzen, at trial, that he was actually innocent, and that his due process rights were violated due to the use of perjured testimony. After a two day habeas trial in December, 2014, the habeas court issued a memorandum of decision denying, in part, the petitioner's petition for a writ of habeas corpus. This appeal followed. Additional facts will be set forth as necessary.

I

The petitioner first claims that the habeas court improperly concluded that Lorenzen provided effective assistance of counsel. Specifically, he argues that his counsel was deficient by failing (1) to request limiting instructions regarding the introduction of prior misconduct evidence; (2) to present exculpatory evidence, namely, a tape of the victim's mother's 911 call, which allegedly would have undermined her trial testimony; and (3) to present exculpatory witnesses who could impeach the victim's testimony that she was not involved in a romantic relationship with the petitioner during the summer of 2009, when the incident occurred. The respondent, the Commissioner of Correction, argues that the habeas court properly denied the second amended petition because the petitioner's claim of ineffective assistance of counsel overlooks "the fact that counsel's overall performance, which resulted in a finding of not guilty as to two of the four charges faced by the petitioner, indicates that counsel rendered effective and capable advocacy" and fails to afford "the proper level of deference to counsel's strategic decisions ... [in] an attempt to second-guess counsel's trial tactics after an adverse result." We agree with the respondent and affirm the court's determination that the petitioner's trial counsel provided effective assistance.

We begin by setting forth our 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 clearly erroneous.... 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." (Internal quotation marks omitted.) Horn v. Commissioner of Correction , 321 Conn. 767, 775, 138 A.3d 908 (2016).

The legal principles that govern an ineffective assistance claim are well settled. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "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....

"The second prong is ... satisfied if the petitioner can demonstrate that there is a reasonable probability that, but for that ineffectiveness, the outcome would have been different." (Citation omitted; internal quotation marks omitted.) Horn v. Commissioner of Correction , supra, 321 Conn. at 775–76, 138 A.3d 908.

Regarding the performance prong, "[j]udicial scrutiny of counsel's performance must be highly deferential.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.... [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered a sound trial strategy." (Internal quotation marks omitted.) Spearman v. Commissioner of Correction , 164 Conn.App. 530, 539, 138 A.3d 378, cert. denied, 321 Conn. 923, 138 A.3d 284 (2016).

A petitioner must prevail on both Strickland prongs. Lewis v. Commissioner of Correction , 165 Conn.App. 411, 451, 139 A.3d 759, cert. denied, 322 Conn. 901, 138 A.3d 931 (2016). Put differently, "[i]t is axiomatic that courts may decide against a petitioner on either prong, whichever is easier." Id.

A

The petitioner first argues that Lorenzen provided ineffective assistance of counsel by failing to request limiting instructions regarding the introduction of evidence of prior misconduct that occurred during the relationship between the petitioner and the victim. The respondent, in turn, argues that the habeas court did not err in concluding that counsel exercised a reasonable trial strategy in not seeking a limiting instruction. We conclude that the petitioner cannot prove prejudice, and, therefore, the habeas court did not err in its determination that Lorenzen did not provide ineffective assistance of counsel.

"Proper limiting instructions often mitigate the prejudicial impact of evidence of prior misconduct." State v. Ryan , 182 Conn. 335, 338 n.5, 438 A.2d 107 (1980). The petitioner argues that prior misconduct testimony was "pervasive throughout the trial" and a limiting instruction should have been given. Specifically, he notes that when the victim testified about her April, 2009 breakup with him, she described how the petitioner took both of her cell phones and broke them in half and slapped her in the face.⁵ The victim and her mother testified that, after that incident, her mother called the police, and the petitioner was subsequently arrested. A no contact order between the victim and the petitioner was imposed as a condition of his subsequent probation. The petitioner also notes that the victim's mother testified that the victim "was scared of [the petitioner].... He ... had been in jail." Officer John Zweibelson, the lead investigator in the April, 2009 incident, testified that during that incident he had seized a lighter that he initially thought was a gun.⁶ Finally, responding Officer Robert Quaglini testified: "Well, we got [the petitioner's] name, date of birth, and we were able to pull up a picture—his [Department of Correction] picture on the computer within the cruiser." The petitioner claims that this information "clearly inform[ed] the jury that [the petitioner] ha[d] been previously arrested, convicted, and sentenced" and that "the jury was then aware that the subject conviction involved the [victim]."

The petitioner argues that the use of such prior misconduct evidence was "inherently prejudicial" and necessitated a limiting instruction. He misapprehends our holding in State v. Huckabee , 41 Conn.App. 565, 574, 677 A.2d 452, cert. denied, 239 Conn. 903, 682 A.2d 1009 (1996), for the proposition that trial counsel must request a limiting instruction when prior misconduct evidence is presented, and, as a result, that failing to request one was per se prejudicial for the purposes of an ineffective assistance of counsel claim. In Huckabee , this court determined that the state's introduction of evidence of a defendant's prior escapes from a juvenile detention center was proper after the defendant "opened the door to such inquiry," but that the "introduction of the ... escapes prior to this prosecution, however, should have been accompanied by a limiting instruction that the evidence was to be used solely for the purpose of evaluating the defendant's veracity" and that the "nature of this evidence ... requires a limiting instruction." Id. The petitioner fails to recognize, however, that in Huckabee , which was a direct criminal appeal, not a habeas action, the defendant raised an evidentiary claim that required him to...