Arthur v. Comm'r of Corr.

162 Conn.App. 606

131 A.3d 1267

Johnnie ARTHUR

v.COMMISSIONER OF CORRECTION.

No. 37403.

Appellate Court of Connecticut.

Argued Oct. 13, 2015.

Decided Jan. 26, 2016.

Stephen Lebedevitch, with whom, on the brief, was Stephanie M. O'Neil, for the appellant (petitioner).

Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, and Erika L. Brookman, assistant state's attorney, for the appellee (respondent).

SHELDON, KELLER and FLYNN, Js.

KELLER, J.

Upon a grant of certification to appeal, the petitioner, Johnnie Arthur, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court's decision should be reversed because that court erred by not concluding that the petitioner's trial counsel, Attorney Lawrence Hopkins, rendered ineffective assistance based upon (1) the manner in which he addressed evidence related to the cellular telephone (cell phone) records of the petitioner's girlfriend, which were offered into evidence by the state and admitted at the petitioner's criminal trial,¹ and (2) his failure to call as a trial witness a taxi driver who was present at the scene of the crime. We affirm the judgment of the habeas court.

The following procedural history and facts are relevant to the present appeal. In 2009, the petitioner was convicted, following a jury trial, of (1) attempt to commit murder, (2) assault in the first degree, (3) criminal possession of a firearm, and (4) carrying a pistol or revolver without a permit. This court, in affirming the petitioner's conviction on direct appeal, State v. Arthur, 128 Conn.App. 371, 18 A.3d 610, cert. denied, 302 Conn. 910, 23 A.3d 1249 (2011), stated that the jury could have reasonably found the following facts. "On the evening of September 29, 2007, the victim, Andrew Garnett, attended a party at the Sports Haven nightclub in New Haven with friends, including Dionte Dixon. While there, they met Nancy Sonemaneevong, Barbara ‘Shanita’ Green and the [petitioner's] girlfriend, Robin DiBenedetto. Green informed Dixon that she had a crush on his friend, Eugene Wright, and Dixon arranged for her to meet Wright later that evening. When the party ended, those individuals departed for Wright's apartment at 30 Glade Street in West Haven. Dixon drove his own car, the victim rode in a second vehicle with other friends, and DiBenedetto drove Sonemaneevong and Green in her red Pontiac Grand Am. At that time, DiBenedetto was speaking with the [petitioner] on her cellular telephone.

"When the vehicles arrived at the parking lot at 30 Glade Street in the early morning hours of September 30, 2007, Green immediately entered Wright's apartment. At that time, the victim and Dixon entered the Pontiac Grand Am and began flirting with DiBenedetto and Sonemaneevong. When Sonemaneevong needed to use a bathroom, Dixon escorted her into Wright's apartment. The victim remained in the vehicle with DiBenedetto, who still was on the telephone with the [petitioner].

"A bystander in the parking lot, Jamie Henderson, observed a man he knew as ‘Drew’ speaking to the female driver of the red Pontiac vehicle. He then witnessed a gray Ford Taurus enter the parking lot, from which a male wearing a dark colored hoodie and hat emerged looking ‘like he meant business.’ With a hand in the hoodie, the man asked DiBenedetto to leave with him, and she refused. The victim informed the man that ‘[s]he good. She with us.’ The man then fired multiple gunshots at him from close range. As the victim crawled on the ground, the Ford Taurus and the Pontiac Grand Am fled the scene.

"Officer Radames Gonce of the West Haven police department, who at the time was responding to an unrelated call nearby, heard the gunshots emanate from the Glade Street area. As Gonce drove toward Glade Street, he saw several vehicles driving away at a high rate of speed, including a gray Ford Taurus with a New York license plate. When he arrived at the parking lot outside Wright's apartment, Gonce found the victim lying on the ground. The victim subsequently was transported by ambulance to Yale–New Haven Hospital, where he was treated for life threatening injuries that included, inter alia, a collapsed lung, three gunshot wounds to the chest and one gunshot wound to his left thigh. Following emergency surgery, the victim recuperated in the hospital for seven days.

"While investigating the scene of the shooting, Detective Anthony Simone of the West Haven police department learned that the red Pontiac Grand Am had been located and asked the operator to return to the Glade Street parking lot. When the vehicle arrived, the operator was identified as DiBenedetto, who then was transported to police headquarters. Simone subsequently interviewed Henderson, Sonemaneevong and Green, from which he learned that DiBenedetto's boyfriend may have been involved in the shooting. He then interviewed DiBenedetto, who was uncooperative and identified her boyfriend only as ‘Johnnie.’ Further investigation revealed that DiBenedetto had been talking on her cellular telephone with the [petitioner] up to the time of the incident and that she had two cellular telephones registered in her name, both of which were used during that conversation. Telephone records, which were admitted into evidence at trial, established that DiBenedetto's initial conversation in the early morning hours of September 30, 2007, lasted forty-one minutes and three seconds, from 3:10 a.m. to 3:51 a.m. Telephone records also established that although the signal from DiBenedetto's other telephone was routed through a cell tower in New Haven at 3:10 a.m., it was routed through a tower on Campbell Avenue in West Haven from 3:51 a.m. to 3:56 a.m. The Campbell Avenue tower is in the vicinity of Glade Street and was used by both of DiBenedetto's cellular telephones at that time. Additional calls between DiBenedetto's two telephones were made at 3:52 a.m., 3:55 a.m. and 3:57 a.m. The police received a 911 call reporting the shooting at 3:57 a.m.

"Simone's investigation also revealed that DiBenedetto lived at 719 Orchard Street in New Haven with the [petitioner]. When police arrived at that property on the day of the shooting, they found a silver Ford Taurus with a New York license plate in the backyard. Gonce arrived later and confirmed that the vehicle looked like the one he observed fleeing the Glade Street area moments after the shooting. The police seized the vehicle, and a search revealed a cellular telephone and a photograph of the [petitioner] with friends at what appeared to be the party at the Sports Haven nightclub hours earlier. The police also learned that DiBenedetto had rented the vehicle from Enterprise Rental Car from September 28, 2007, through October 1, 2007.

"When Simone interviewed the [petitioner], he confirmed that he had attended the party at the Sports Haven nightclub a day earlier. The [petitioner] stated that he attended with friends and that he did not drive there ‘because he doesn't drive.’ The [petitioner] did not provide any further information to police at that time. Nonetheless, Brenda Ollison, DiBenedetto's upstairs neighbor at 719 Orchard Street, testified at trial that she observed the [petitioner] driving the Ford Taurus on the weekend in question.

"As a result of their preliminary investigation, the police obtained a description of the person who had shot the victim. Simone detailed that description at trial as follows: ‘Black male, approximately five foot nine, at the time wearing dark pants with a design on the rear pockets, a dark hooded sweatshirt with red drawstrings and a red and white design on the front, and a black fitted baseball style cap.’ DiBenedetto's sister, Lori Ann Johnson, testified that she had cared for DiBenedetto's son on the evening of September 29, 2007, so that DiBenedetto could attend the party at the Sports Haven nightclub. When Johnson went to DiBenedetto's residence at 719 Orchard Street on October 1, 2007, DiBenedetto and the [petitioner] were there. Johnson observed the [petitioner's] recently washed clothes on a chair. She saw a black ‘zip-up,’ a black tee shirt and dark jeans, which she stated the [petitioner] had worn to the Sports Haven nightclub. When shown the outfit worn by the [petitioner] in the photograph found in the search of the Ford Taurus, Johnson identified it as the same outfit she had seen drying on the chair at 719 Orchard Street. Johnson further testified that DiBenedetto drove a ‘red Pontiac Grand Am GT’ at the time of the shooting.

"While recovering from surgery at the hospital, the victim spoke with Detective Usha Carr of the West Haven police department. Carr testified that the victim stated that, on the night of the shooting, he was ‘hanging out’ in the parking lot at 30 Glade Street with friends. While the victim was chatting with a white female in a red Pontiac Grand Am, ‘a black male drove up’ in a silver Ford Taurus. The man repeatedly told the woman with whom the victim had been speaking to leave with him. The victim told the man that ‘[s]he good. She with us.’ The victim's next recollection was the smell of gunpowder. During the interview, Carr showed the victim a photographic array, informing him that the shooter ‘might or might not be’ in the array. The victim selected the [petitioner's] photograph as that of his assailant. The victim refused to sign the photographic array or to provide a recorded statement, however, because he did not want to be labeled a ‘snitch.’ At trial, the victim identified the [petitioner] in court as the individual that he had selected from the photographic array.

"The [petitioner] thereafter was arrested and charged with criminal attempt to commit murder, assault in the first degree, criminal possession of a firearm and carrying a pistol or revolver without a permit. While incarcerated at the MacDougall–Walker Correctional Institution, the [pe...