Arroyo v. Comm'r of Corr.

172 Conn.App. 442

160 A.3d 425

Reynaldo ARROYO

v.COMMISSIONER OF CORRECTION

AC 38431

Appellate Court of Connecticut.

Argued January 19, 2017

Officially released April 25, 2017

Moira L. Buckley, assigned counsel, for the appellant (petitioner).

Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Angela R. Macchiarulo and Michael J. Proto, senior assistant state's attorneys, for the appellee (respondent).

Alvord, Mullins and Norcott, Js.

ALVORD, J.

The petitioner, Reynaldo Arroyo, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly concluded that his trial counsel did not provide ineffective assistance and that his claim of prosecutorial impropriety was procedurally defaulted. Because the petitioner has failed to demonstrate that the habeas court abused its discretion in denying his petition for certification to appeal, we dismiss the appeal.

The following factual and procedural history is relevant to this appeal. In March, 2001, the petitioner, a crack cocaine addict, lived with his girlfriend, Sherry Krick, in her apartment in a condominium complex in Middletown. Richmond L. Perry, a crack cocaine dealer, lived in the same condominium complex. The petitioner knew Perry and often acted as a "runner," or intermediary, for him in his drug dealing business.

In the afternoon of March 28, 2001, at approximately 2 p.m., the petitioner asked his neighbor, Charles Smith, if he could borrow money, promising to pay the money back after he went on "a mission." Later that evening, at about 8 p.m., the petitioner and Perry drove to Mike's Package Store in Middlefield. While in the store, an argument ensued between the petitioner, Perry, and the owner of the store, Edmund Caruso. As the argument escalated, Perry drew a nine millimeter firearm. In response, Caruso grabbed his tear gas canister and sprayed it at Perry and the petitioner. Perry then shot Caruso several times, and Caruso subsequently died as a result of his wounds. Following the shooting, the petitioner and Perry fled from the scene with the package store's cash register.

When they returned to their condominium complex, Perry first went home to change his clothing, which was covered in tear gas, and to shower. After showering, the petitioner and Perry wrapped the register in the petitioner's blanket and carried it into his and Krick's apartment, where the petitioner used a screwdriver to open it. The petitioner and Perry divided the proceeds from the register and then hid it behind the bedroom dresser.

That same evening, the petitioner and Perry offered to sell Smith the firearm that they used in the robbery, but he declined to purchase it. The petitioner subsequently arranged to sell the firearm to Juan Cruz, another crack cocaine dealer with whom he was associated. On March 31, 2001, the petitioner and Perry met with Cruz and sold him the firearm, assuring him that it was "clean," i.e., not associated with any crimes.¹

In the days following the robbery, the petitioner spoke to Smith about the result of his "mission." Two or three days after the robbery, Smith visited Krick's apartment. The petitioner showed Smith the register behind the bedroom dresser and told him that "it was from his mission, but he had to get rid of it." Sometime thereafter, Smith saw the petitioner throw the register into the dumpster outside the condominium complex. The petitioner later told Smith that "things went bad when he went to do that mission. Things went bad. The old man got killed. No one meant for the old man to get killed."

During the course of the investigation of the robbery, the petitioner made several written and oral statements to the police.² The petitioner admitted to knowing details about the robbery, but he insisted that Perry committed the robbery and murder and told him about it afterward. Nevertheless, the petitioner acknowledged that Perry came to Krick's apartment with the register after the robbery. He also admitted that he (1) broke open the register with his screwdriver, (2) shared the cash proceeds from the register with Perry, (3) hid the register behind the dresser in his and Krick's bedroom, (4) disposed of the register in a dumpster outside of his and Krick's apartment, and (5) facilitated and participated in the sale to Cruz of the firearm used during the robbery.

Thereafter, the petitioner was charged with felony murder, murder, robbery in the first degree, larceny in the fifth degree, and conspiracy to commit robbery in the first degree. While incarcerated and awaiting trial, the petitioner made statements to two inmates in which he admitted to participating in the robbery with Perry and described what happened during and after the robbery. To one of these inmates, who was the petitioner's friend and former roommate, the petitioner further expressed his concern that his alibi witnesses, Krick and a "married guy,"³ were not corroborating his story about being home the evening of the robbery.

After a trial, the jury found the petitioner guilty of felony murder, larceny in the fifth degree, and conspiracy to commit robbery in the first degree. The jury found him not guilty, however, of murder and robbery in the first degree, which were the only counts in which the petitioner was charged with personally possessing the firearm or shooting the victim.⁴

State v. Arroyo , 292 Conn. 558, 561–62, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130 S.Ct. 1296, 175 L.Ed.2d 1086 (2010). The court thereafter rendered judgment accordingly and sentenced the petitioner to a total effective term of sixty years imprisonment. The petitioner's conviction was affirmed on direct appeal. Id., at 561, 973 A.2d 1254.

The petitioner initiated this habeas action on April 8, 2010. On March 13, 2013, the petitioner filed a six count amended petition. Relevant to this appeal, the petitioner claimed that his trial counsel rendered ineffective assistance by not (1) offering Perry's plea hearing transcript as an exhibit; (2) presenting the testimony of an expert witness; and (3) offering "a depiction of the floor plan and/or physical layout" of Krick's apartment. Additionally, the petitioner claimed that the prosecutor committed certain improprieties during her case-in-chief and closing argument by soliciting and utilizing Perry's false trial testimony concerning his plea agreement with the state. After a two day trial, the habeas court denied the petition for a writ of habeas corpus and the petition for certification to appeal. This appeal followed.

The petitioner claims that the habeas court abused its discretion by denying his petition for certification to appeal and erred by denying his claims of ineffective assistance of trial counsel and prosecutorial impropriety. We conclude that the habeas court did not abuse its discretion by denying the petition for certification to appeal.

"We begin by setting forth the applicable standard of review and procedural hurdles that the petitioner must surmount to obtain appellate review of the merits of a habeas court's denial of the habeas petition following denial of certification to appeal. In Simms v. Warden , 229 Conn. 178, 187, 640 A.2d 601 (1994), [our Supreme Court] concluded that ... [General Statutes] § 52–470(b) prevents a reviewing court from hearing the merits of a habeas appeal following the denial of certification to appeal unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas court. In Simms v. Warden , 230 Conn. 608, 615–16, 646 A.2d 126 (1994), [our Supreme Court] incorporated the factors adopted by the United States Supreme Court in Lozada v. Deeds , 498 U.S. 430, 431–32, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991), as the appropriate standard for determining whether the habeas court abused its discretion in denying certification to appeal. This standard requires the petitioner to demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.... A petitioner who establishes an abuse of discretion through one of the factors listed above must then demonstrate that the judgment of the habeas court should be reversed on its merits.... In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous....

"The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review.... [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct ... and whether they find support in the facts that appear in the record.... To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous .... [A] finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Citation omitted; emphasis in original; internal quotation marks omitted.) Brewer v. Commissioner of Correction , 162 Conn.App. 8, 12, 130 A.3d 882 (2015). Having set forth the standard of review, we will consider the merits of the claims raised by the petitioner.

I

We begin by addressing the petitioner's two claims relating to...