Anderson v. Comm'r of Corr.

201 Conn.App. 1

242 A.3d 107

Lonnie ANDERSON

v.COMMISSIONER OF CORRECTION

AC 42515

Appellate Court of Connecticut.

Argued May 20, 2020

Officially released October 20, 2020

Vishal K. Garg, West Hartford, for the appellant (petitioner).

Timothy F. Costello, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, former state's attorney, and Emily Dewey Trudeau, assistant state's attorney, for the appellee (respondent).

Lavine, Bright and Beach, Js.^*

BRIGHT, J.

The petitioner, Lonnie Anderson, appeals, following the denial of his petition for certification to appeal, from the judgment of the habeas court denying count one of his amended petition for a writ of habeas corpus.¹ On appeal, the petitioner contends that the

habeas court abused its discretion by denying his petition for certification to appeal because he properly had established in his petition for a writ of habeas corpus that his constitutional right to the effective assistance of trial counsel had been violated during his criminal trial when a jury found him guilty of assault in the first degree with a firearm and assault of a peace officer with a firearm. We conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal and, accordingly, dismiss the petitioner's appeal.

The record reveals the following relevant underlying facts, which the jury at the petitioner's criminal trial reasonably could have found, and procedural history that are relevant to our consideration of the petitioner's claim. On October 6, 2009, State Marshals Arthur Quinn, Charles Valentino, Joseph Butler, and Richard Krueger went to 434 Indian Avenue in Bridgeport to serve a capias warrant authorizing the marshals to take the petitioner into custody for failing to appear in a child support case. The marshals arrived at approximately 7:45 p.m. Butler and Krueger went to the rear of the address. Quinn and Valentino walked to the front door, and Valentino knocked on the door. Quinn and Valentino wore clothing that identified them as state marshals and displayed badges. Neither marshal carried a firearm. Valentino, who was wearing a marshal's hat, was in possession of the capias warrant and wore a utility belt on which were attached handcuffs, gloves, Mace, and a police baton.

An eight year old relative of the petitioner answered the door, and the marshals asked to speak with the petitioner. The child left and returned with Lyman Anderson, the petitioner's brother. Utilizing a photograph of the petitioner, Quinn and Valentino recognized that

Lyman Anderson was not the subject of the capias warrant. Lyman Anderson went back into the home, and the petitioner came to the front door.

The petitioner arrived at the front door armed with a nine millimeter, semiautomatic pistol that he kept concealed in his sweatpants. Upon inquiry about his identity, the petitioner falsely replied that he was John Anderson. Recognizing the petitioner, the marshals confronted him with the photograph, informed him that he had missed a court date, and stated that they intended to take him into custody. The petitioner took a step back, drew his pistol, and chambered a round. Valentino spotted the firearm and shouted "[g]un!" The marshals ran off the doorstep and headed in opposite directions.

Valentino heard five to six gunshots and perceived a bullet pass close by his head. As Valentino sought cover behind a parked van, he heard more shots. Valentino observed, through the vehicle's windows, the petitioner standing on the top step of the stoop and shooting toward Quinn. Valentino observed the petitioner discard an ammunition magazine and insert a second magazine into the pistol.

During his rapid retreat, Quinn also heard gunshots. Quinn realized that a bullet had struck his left foot. Quinn sustained a second gunshot wound to his right forearm. A neighbor emerged from his home with a towel to help stop the bleeding from Quinn's arm. Also hearing gunshots, Butler and Krueger ran toward the front of the residence from their position at the rear of the residence.

After shooting at Quinn and Valentino, the petitioner returned to the residence. Lyman Anderson attempted to calm the petitioner and suggested that he go outside with his hands raised to surrender. The petitioner, at first, told Lyman Anderson that he did not want to do

so because he was worried that the marshals would fire at him.

A few minutes later, Bridgeport Police Officer Hugo Stern received a call, via a police broadcast, about the incident. Stern arrived at the Indian Avenue residence and saw state marshals hiding near a red car. Stern drew his weapon and saw someone matching the description of the shooter. That person stood on the top step of the entryway. Stern aimed his gun at that person, who was the petitioner, and ordered the petitioner to raise his hands. The petitioner complied.

As Stern cautiously approached the petitioner, he noticed that the petitioner wore an empty holster on his right hip. Stern ordered the petitioner to lie slowly on the ground, and the petitioner complied. Stern then directed the petitioner to spread his arms and legs. The petitioner appeared to cooperate. After Stern holstered his own weapon and attempted to handcuff the petitioner, the petitioner resisted by rising into a crouch and becoming combative. Stern saw the petitioner reach into the waistband of his pants to retrieve an item. Bridgeport Police Officer Bobby Jones came to Stern's assistance, and the officers subdued the petitioner. As the officers rolled the petitioner over, they observed that the petitioner was lying on top of a semiautomatic handgun. The officers seized the weapon. Subsequent testing demonstrated that the weapon was the same gun from which several shots had been fired at the scene. Additionally, the weapon was loaded with a magazine full of cartridges.

The state charged the petitioner with two counts of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), one count of assault of a peace officer in violation of General Statutes § 53a-167c and, for each count,

with the commission of a class A, B, or C felony with a firearm in violation of General Statutes § 53-202k.²

During the jury trial, the petitioner's trial counsel, J. Patten Brown III, filed a request to charge in which Brown asked the court to provide the pattern jury instruction on self-defense pursuant to General Statutes § 53a-19. The court declined Brown's request to charge the jury on self-defense on the ground that there was insufficient evidence to support the theory that the officers were approaching the petitioner in such a manner prior to the shooting that would justify a self-defense charge.

The jury found the petitioner guilty of assault in the first degree and assault of a peace officer, and his sentence was enhanced on each count pursuant to § 53-202k for the commission of a class A, B, or C felony with a firearm. The petitioner was acquitted of the remaining charges. The court sentenced the petitioner to a total effective sentence of eleven years of incarceration followed by five years of special parole.

On September 30, 2011, the petitioner filed an appeal to the Appellate Court. Brown represented the petitioner at the criminal trial and on direct appeal. On July 26, 2012, Brown withdrew the direct appeal after consulting with the petitioner. On March 10, 2015, the self-represented petitioner filed a petition for a writ of

habeas corpus and, on August 31, 2018, the petitioner filed the operative amended petition for a writ of habeas corpus. In the amended petition, the petitioner asserted the following claims: (1) his constitutional right to the effective assistance of trial counsel was violated and (2) his constitutional right to the effective assistance of appellate counsel was violated.

As to his claim of ineffective assistance of trial counsel, the petitioner argued that Brown failed to present evidence that was available to him to support his self-defense theory. Specifically, the petitioner argued that Brown's performance was deficient because he had failed to present the testimony of Bridgeport Police Officer Juan Hernandez, Bridgeport Police Officer Bobby Jones, and Lyman Anderson. The petitioner argued that he was prejudiced by Brown's failures because, had the evidence been presented, the trial court would have given the requested instruction on self-defense and it is reasonably probable that the jury would have concluded that the state failed to disprove self-defense beyond a reasonable doubt.

On November 8, 2018, the habeas court denied the amended petition with regard to the petitioner's claim that the petitioner's constitutional right to the effective assistance of trial counsel had been violated. In its memorandum of decision, the court discussed the testimony on which the petitioner's claim is based. "The petitioner contends that potential testimony could have been elicited from Lyman Anderson, Officer Jones, and Officer Juan Hernandez that at least one of the marshals at the scene was armed. Further, Lyman Anderson could have testified that [the petitioner] discharged his pistol toward Quinn and Valentino in response to one of the marshal's attempts to barge into the residence and grab the petitioner."

As to Lyman Anderson, the court found: "It was the prosecution that called Lyman Anderson to testify at

the criminal trial. Lyman related that, when he went to the front door that his young nephew had opened, he saw four uniformed marshals, one of whom carried a handgun on his person. This testimony, however, contrasted with the statement Lyman gave to the police on the evening of the shooting. In that recorded statement, given a few hours after the incident, Lyman reported that there were two marshals on the doorstep, neither of whom appeared armed with a gun.

"In...