Bennett v. Comm'r of Corr.

182 Conn.App. 541

190 A.3d 877

Calvin BENNETT

v.COMMISSIONER OF CORRECTION

AC 37131

Appellate Court of Connecticut.

Argued December 11, 2017

Officially released June 12, 2018

Michael W. Brown, assigned counsel, Wethersfield, for the appellant (petitioner).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Marc G. Ramia, senior assistant state's attorney, for the appellee (respondent).

Lavine, Elgo and Beach, Js.

BEACH, J.

The petitioner, Calvin Bennett, 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. On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal, (2) abused its discretion in declining to admit into evidence a transcript from the criminal trial of another defendant, and (3) erred in finding that his right to the effective assistance of counsel at his criminal trial had not been violated. We disagree and, accordingly, dismiss the appeal.

Our Supreme Court, in the petitioner's direct appeal, recited the following facts, as found by the three judge trial court. "[The victim] James Caffrey lived in the second floor apartment of 323 Hill Street in Waterbury with his girlfriend Samantha Bright and one other roommate. [The victim's] mother, Emilia Caffrey, lived in the first floor apartment. In the late afternoon of Saturday, October 26, 2008, [the victim] and Bright had five visitors, including [the codefendant] Tamarius Maner, in their living room. Maner had a clear view of the bedroom from where he was seated in the living room. Maner purchased a small amount of marijuana from [the victim] and paid him some money, which [the victim] put in the bedroom. [The victim] kept the marijuana in the bedroom. [The victim] remarked that he had saved $500 for a child that he was expecting with Bright.

"At about that time, Maner and the [petitioner] lived next door to each other in Bridgeport and had done drug business together. Maner contacted the [petitioner] by cell phone during the evening of Saturday, October 26. Shortly after midnight on Sunday, October 27, Maner and the [petitioner] drove from Bridgeport to Waterbury to go to [the victim's] apartment. They were carrying loaded handguns.

"Just after 1 a.m., the doorbell to the second floor apartment at 323 Hill Street rang and [the victim] answered the door. A conversation of a few seconds with ... [the victim] ensued. Maner then shot [the victim] in the face from a distance of one to three feet with a .45 caliber handgun. [The victim] fell in the hallway in a pool of blood and died from the gunshot wound to the head.

"Maner and the [petitioner] walked past [the victim] and into a bedroom. There the [petitioner] put a gun to Bright's head and asked: Where is everything? Bright understood the question to inquire about money and drugs. Bright referred them to the top dresser drawer. Maner opened it and threw its contents on the bedroom floor.

"At about that time, they heard the screams of Emilia Caffrey, who had heard the shot and discovered her son lying in the second floor hallway. The [petitioner] told Bright to keep her head down and face toward the wall. Maner and the [petitioner] then ran into the kitchen, which Emilia Caffrey had also entered in order to call 911. Maner, who was standing at the stove, fired one shot at [Emilia] Caffrey and missed. The [petitioner] was standing at the window.

"Maner and the [petitioner] then ran out of the kitchen, pushing [Emilia] Caffrey to the floor as they left. They returned to their car and arrived back in Bridgeport around 2 a.m.

"Police interviews of some of the Waterbury visitors to [the victim's] apartment on the afternoon of October 26 led to the identity of Maner .... Further police investigation, including analysis of Maner's cell phone calls, brought police to an apartment in Bridgeport where they found the [petitioner]. The [petitioner] voluntarily returned to Waterbury with the police and told them that he had not left Bridgeport on the night in question. When confronted with the fact that his cell phone records showed him in Waterbury during the time of the crimes, the [petitioner] put his head down for a minute and then indicated that he had nothing more to say. A search, pursuant to a warrant, of his apartment in Bridgeport revealed a suitcase containing the [petitioner's] clothes, a loaded .45 caliber pistol, and a sock containing sixty-one rounds of ammunition." (Internal quotation marks omitted.) State v. Bennett , 307 Conn. 758, 761–63, 59 A.3d 221 (2013).

Our Supreme Court noted that the petitioner "was charged with aiding and abetting murder in violation of General Statutes §§ 53a–8 and 53a–54a, felony murder in violation of General Statutes § 53a–54c, home invasion in violation of General Statutes § 53a–100aa (a) (1), and burglary in the first degree in violation of General Statutes § 53a–101 (a) (3). The [petitioner] elected a trial to a three judge court .... The panel, consisting of Cremins , Crawford and Schuman , Js. , rendered a unanimous verdict of guilty on all of the charges except aiding and abetting murder, on which a majority of the panel found the [petitioner] guilty, and thereafter rendered judgment in accordance with the verdict and imposed a total effective sentence of sixty years imprisonment.... [T]he [petitioner] directly appealed from the judgment of conviction to [our Supreme Court]. On appeal, the [petitioner] contend[ed]: (1) that there was insufficient evidence to convict him of aiding and abetting murder; and (2) that he did not knowingly waive his right to a jury trial." (Citation omitted.) Id., at 760–61, 59 A.3d 221. Our Supreme Court reversed the judgment as to the petitioner's first claim but affirmed it in all other respects. Id., at 777, 59 A.3d 221.

In his amended petition for a writ of habeas corpus, filed February 4, 2014, the petitioner claimed that his trial counsel, Lawrence Hopkins, rendered ineffective assistance by, among other things, failing adequately to challenge the eyewitness testimony of Bright and Emilia Caffrey. The habeas court denied the petition for a writ of habeas corpus and a subsequent petition for certification to appeal from the court's judgment. This appeal followed. Additional facts will be discussed as necessary.

I

The petitioner claims that the habeas court erred in denying his petition for certification to appeal from the denial of his habeas petition. Specifically, he argues that because the issues are debatable among jurists of reason and a court could have resolved the issues differently, the habeas court abused its discretion in denying his petition for certification to appeal.

"Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). First, [the petitioner] must demonstrate that the denial of his petition for certification constituted an abuse of discretion.... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits.... To prove that the denial of his petition for certification to appeal constituted an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] 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....

"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. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria ... adopted by [our Supreme Court] for determining the propriety of the habeas court's denial of the petition for certification." (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction , 169 Conn. App. 813, 821–22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017).

As we discuss more fully in parts II and III of this opinion, we disagree with the petitioner's claims that the habeas court abused its discretion in declining to admit as a full exhibit a transcript of expert testimony presented at Maner's criminal trial and that Hopkins performed deficiently in inadequately challenging eyewitness testimony. Because the resolution of the petitioner's claims does not involve an issue that is debatable among jurists of reason and a court could not reasonably have resolved the issues differently, we conclude that the habeas court did not abuse its discretion in denying certification to appeal from the denial of the petition for a writ of habeas corpus.

II

We turn to the question of whether the habeas court abused its discretion in refusing to admit as a full exhibit a transcript of expert testimony from Maner's criminal trial. The petitioner argues that the transcript was relevant evidence in support of his claim that Hopkins rendered ineffective assistance by failing to present at the criminal trial an expert witness on the issue of the reliability of eyewitness identification. We conclude that the habeas court did not abuse its discretion in its evidentiary ruling.

We first set forth our standard of review. "To the extent [that] a trial court's admission of evidence is based on an interpretation of ...