Davis v. Comm'r of Corr.

186 Conn.App. 366

199 A.3d 562

James L. DAVIS III

v.COMMISSIONER OF CORRECTION

AC 40090

Appellate Court of Connecticut.

Argued September 7, 2018

Officially released December 4, 2018

Heather Clark, New Haven, for the appellant (petitioner)

Michael L. Regan, state's attorney, for the appellee (respondent).

DiPentima, C.J., and Lavine and Sheldon, Js.

DiPENTIMA, C.J.

The petitioner, James L. Davis III, appeals from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court (1) abused its discretion in denying his petition for certification to appeal and (2) erred in concluding that his trial counsel had not rendered ineffective assistance by failing to (A) file a motion in limine to preclude certain evidence, (B) consult with and present the testimony of an eyewitness identification expert, (C) object to the testimony of a laboratory supervisor on the ground that the testimony violated his right to confrontation under the federal constitution and (D) prepare the petitioner for the presentence investigation interview. We dismiss the petitioner's appeal.

The following facts and procedural history are relevant to our resolution of the petitioner's claims. The petitioner was charged with murder by use of a firearm in violation of General Statutes § 53a-54a (a), attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a (a), three counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (5) and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The matter proceeded to trial twice; both ended in mistrials due to the inability of the jury to reach a unanimous verdict. Following the petitioner's third trial, the jury returned a verdict of not guilty on the count of murder, but guilty of the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55a, not guilty of attempt to commit murder, guilty of three counts of assault in the first degree, and guilty of carrying a pistol without a permit. The trial court, Hadden, J., accepted the verdict and sentenced the petitioner to a total effective sentence of forty-eight years imprisonment.

On direct appeal, our Supreme Court affirmed the petitioner's conviction. See State v. Davis, 283 Conn. 280, 929 A.2d 278 (2007). The following facts, which the jury reasonably could have found, were set forth on direct appeal: "The events in question took place in the early morning hours of November 14, 1999, at the Sportsmen's Athletic Club (club) at 40 High Street in Norwich. Joseph Ellis arrived at the club with Susan Gomez at approximately midnight. Ellis had arranged to meet Jermaine Floyd, Timothy McCoy and Xavier Cluff there. The [petitioner], Susan Gomez' estranged husband, and Ricky Gomez, Ron Pires, Clayton Ballinger and Yolanda Pires were in the poolroom of the club when Ellis arrived. Ellis went to the bar area, accompanied by Floyd and McCoy, and saw Ricky Gomez and Ron Pires, both of whom he knew, looking at him through a service window between the bar and the poolroom. Ellis then left the bar area and went to the club's office to make arrangements for a birthday party. When he came out of the office, Ellis saw Ricky Gomez, Ron Pires and a third person whom he could not clearly see walk in and out of the bathroom several times. Ricky Gomez left the club, came back with something concealed under his jacket and again entered the bathroom. Gomez then left the bathroom, and, shortly thereafter, another person came out and started shooting a gun. The shooter's face was covered with a cloth of some type.

"The shooter first shot Joseph Dubose. He then shot Ellis in the left leg and went to the front door of the club, where he fired two more shots. He returned to Ellis and shot him in the right leg, upper right arm and armpit, and left forearm. At that point, the cloth over the shooter's face slipped, and Ellis recognized him as the [petitioner].

"At approximately 1:16 a.m. on November 14, 1999, members of the Norwich Police Department responded to an alarm at the club. Upon entering the club, they observed Dubose and Ellis lying on the floor with apparent gunshot wounds. One of the officers also observed that Floyd, who was able to stand on his own, had been shot in the buttocks. Emergency medical personnel transported Dubose, Ellis and Floyd to William W. Backus Hospital in Norwich. Cluff, who had been shot in the arm during the incident, arrived at the hospital by other means of transportation. Dubose was declared dead at approximately 2:11 a.m.

"Later on the day of the shooting, members of the Norwich Police Department, assisted by members of the state police eastern district major crime squad, recovered ten spent .40 caliber shell casings and eleven bullet fragments from the scene of the shooting. The Norwich police recovered two additional bullet fragments on November 16, 1999. All of the shell casings had been fired from the same .40 caliber Glock semiautomatic handgun.

"Several months prior to the shooting, in September, 1999, Wilfred Pepin had reported the theft of several guns, including a .40 caliber Glock semiautomatic handgun, from his residence in Lisbon. After the shooting, the Norwich Police Department contacted Pepin and inquired if Pepin had retained possession of any casings that had been discharged from the Glock handgun. Pepin was able to find three casings that he thought may have been discharged from the gun and provided them to the police. Two of those casings matched the casings that had been recovered at the club.

"On January 5, 2000, Adrianne Cook went to the Norwich police station and informed the police that the [petitioner] was staying at her apartment at 29 Carpenter Street in Norwich and that he had refused to leave. The police went to the apartment and arrested the [petitioner] for criminal trespassing. They also seized a black duffel bag from the room in which the [petitioner] had been staying. The duffel bag contained a number of guns and gun paraphernalia that had been stolen from Pepin. Several of the items, including a gun case, a magazine clip, two screws, an Allen wrench and spare magazine holders, were linked to Pepin's .40 caliber Glock handgun, but the gun itself never was recovered." (Footnote omitted.) Id., 284–86, 929 A.2d 278.

In January, 2016, the petitioner filed his second amended petition for a writ of habeas corpus in which he alleged ineffective assistance of trial counsel, Michael Fitzpatrick, on several grounds. The habeas court, Fuger, J., denied the petition. The court determined that Fitzpatrick had testified credibly and concluded that the petitioner had proven neither deficient performance nor prejudice. The petitioner filed a petition for certification to appeal, which the court denied. This appeal followed. Additional facts will be set forth as necessary.

I

The petitioner claims that the court abused its discretion in denying his petition for certification to appeal because it improperly denied his claims of ineffective assistance of counsel. We do not agree.

"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).

II

We now examine the petitioner's underlying claims of ineffective assistance of counsel to determine whether the court abused its discretion in denying the petition for certification to appeal.

"It is well established that [a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings .... This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.... As enunciated in Strickland v. Washington , [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel.... 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...