Eubanks v. Comm'r of Corr.

329 Conn. 584

188 A.3d 702

David EUBANKS

v.COMMISSIONER OF CORRECTION

SC 19780

Supreme Court of Connecticut.

Argued December 20, 2017

Officially released July 31, 2018

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, David Clifton, assistant state's attorney, and Adrienne Russo, deputy assistant state's attorney, for the appellant (respondent).

Deren Manasevit, assigned counsel, for the appellee (petitioner).

Palmer, McDonald, Robinson, D'Auria, Kahn and Vertefeuille, Js.^*

KAHN, J.

Sometimes, the dispositive issue in an appeal is whether the reviewing court properly should reach the merits. Upon this court's grant of his petition for certification, the respondent, the Commissioner of Correction, appeals from the Appellate Court's judgment reversing the judgment of the habeas court, which had denied the petition for a writ of habeas corpus filed by the petitioner, David Eubanks.¹ The respondent claims that the Appellate Court improperly reached the merits of the petitioner's claim that his trial counsel rendered ineffective assistance of counsel by failing to object to certain portions of the prior testimony of Tanika McCotter on the basis that those portions of her testimony constituted double hearsay. Eubanks v. Commissioner of Correction , 166 Conn. App. 1, 22, 140 A.3d 402 (2016). The respondent contends that because the petitioner raised this argument for the first time on appeal, the petitioner's claim is unreviewable. The petitioner responds that the Appellate Court properly addressed the double hearsay issue and reasserts the alternative ground for affirmance that he raised in the Appellate Court. Specifically, the petitioner contends that the Appellate Court's judgment may be affirmed on the basis that defense counsel's failure to object to double hearsay as substantive evidence was objectively unreasonable under Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). Our review of the record reveals that the petitioner presented no evidence and made no argument to the habeas court that would have alerted either that court or opposing counsel to the petitioner's intent to argue that his trial counsel's failure to object to portions of the prior testimony on the basis of double hearsay was objectively unreasonable. Accordingly, we agree with the respondent that the Appellate Court improperly reached the merits of the petitioner's claim. For the same reason, we reject the petitioner's alternative ground for affirmance. Accordingly, we reverse the judgment of the Appellate Court.

In its 2012 decision affirming the petitioner's judgment of conviction on direct appeal, the Appellate Court set forth the following relevant facts. "At approximately 6 a.m. on November 22, 2008, Bennett Hines, an officer with the New Haven [P]olice [D]epartment, was sitting in his patrol car. At that hour in the morning there was no vehicle traffic and no cars were parked by the side of the street. Hines heard several gunshots come from the New Haven green in the vicinity of Elm and College Streets, which location was approximately two blocks from where he was parked. When Hines looked in the general direction from which he heard the gunshots fired, he saw a dark colored sport utility vehicle (SUV) turn left from Elm Street onto Church Street. As the SUV turned onto Wall Street, Hines noticed that the tires of the SUV were ‘screeching ....’ Based on the speed at which the SUV was traveling and the way it turned onto Wall Street, Hines believed that it was likely that the occupants of the vehicle had discharged the gunshots; as a result he began to follow the SUV. Hines reported the incident to dispatch and activated his cruiser's lights and sirens.

"The SUV traveled through the city and onto the entrance ramp to Interstate 91; it ‘would not stop.’ Hines observed a ‘dark colored item come out of the passenger side window’ and ‘a silver colored item come out of the driver side window.’ Based on his training and experience, Hines believed the items thrown out of the windows to be guns. Officer Edward Dunford, who was following behind Hines' cruiser, also saw ‘something dark colored come flying out of the passenger side of the vehicle ....’

"Before entering the highway, the SUV stopped. Hines drew his gun and went to the driver's side of the car.

Dunford drew his gun and went, with other officers, to the passenger side of the vehicle .... McCotter was operating the SUV, the [petitioner], her boyfriend, was in the front passenger seat and her brother ... was in the rear passenger seat. The [petitioner] initially disobeyed commands from the officers, stepped over the guardrail and ‘look[ed] around him.’ The [petitioner] eventually complied with orders to lie on the ground and was arrested .... McCotter and [her brother] also were arrested. The officers then searched the area where they believed the items were tossed from the windows of the SUV. Using a thermal imager, Sergeant Peter Moller found a semiautomatic .45 caliber black Ruger handgun, with the safety off and its magazine empty, lying on top of a pile of leaves. No other weapon was found.

"Detective Joshua Armistead investigated the area of College and Elm Streets where the gunshots reportedly had been fired. Armistead found eight .40 caliber shell casings spread out over several car lengths. He stated that the casings ‘looked like they were fired from some-body moving on Elm Street.’ Lieutenant Joseph Rainone, a firearms examiner with the Waterbury [P]olice [D]epartment, determined that the Ruger handgun was operable. He also determined that although the eight shell casings had similar class characteristics, he was unable to conclude whether they had been fired from the same firearm. He was able to determine, however, that the shell casings did not come from the Ruger handgun.

"The [petitioner] was charged with [various weapons offenses and with violation of a protective order]." (Footnote omitted.) State v. Eubanks , 133 Conn. App. 105, 106–108, 33 A.3d 876, cert. denied, 304 Conn. 902, 37 A.3d 745 (2012).

At the petitioner's criminal trial, the state sought to introduce McCotter's prior testimony at a hearing conducted pursuant to this court's decision in State v. Stevens , 278 Conn. 1, 12–13, 895 A.2d 771 (2006).² The state claimed that the prior testimony was admissible pursuant to § 8-6 (1) of the Connecticut Code of Evidence³ because McCotter was unavailable as a witness, the issues at the Stevens hearing were substantially similar to those presented at the criminal trial, and the petitioner had been given an adequate opportunity to cross-examine McCotter at the Stevens hearing.

The petitioner's trial counsel, Walter Bansley IV, who also had represented the petitioner at the Stevens hearing, objected to the admission of the transcript of McCotter's testimony on two bases. Although the state expressly had relied on the prior testimony exception to the hearsay rule in seeking to have the Stevens hearing transcript admitted; see footnote 3 of this opinion; Bansley did not argue that the references in the transcript to McCotter's prior statement to the police constituted inadmissible double hearsay.⁴ Instead, he argued that the transcript was inadmissible in its entirety. Both grounds on which he expressly relied in objecting to the admission of the transcript were predicated on the petitioner's right to confrontation. See Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004). First, he argued that, because the state had not exercised due diligence in its attempts to locate McCotter, she was not an unavailable witness. Second, Bansley contended that, because he had not had an adequate opportunity to cross-examine McCotter at the Stevens hearing, the admission of the transcript would violate the petitioner's right to confront the witness against him.

The trial court rejected both of the bases on which Bansley relied to argue that the admission of the Stevens hearing transcript would violate the petitioner's right to confront witnesses. Specifically, after hearing testimony regarding the state's efforts to locate McCotter, the court found that those efforts were reasonable and that she was unavailable. The court also implicitly found that the petitioner had an adequate opportunity to cross-examine McCotter at the Stevens hearing. The court therefore ruled that the transcript was admissible pursuant to § 8-6 (1) of the Connecticut Code of Evidence and that its admission would not violate the petitioner's right to confrontation.

The court then noted, on the record, that for the sake of efficiency, in the event that the court ruled that the Stevens hearing transcript was admissible, Bansley and the prosecutor had been reviewing it with the goal of arriving at an agreement as to any redactions. Counsel informed the court that, with a few exceptions, they already had arrived at an agreement as to redactions. The court heard argument and made rulings on the minor points of disagreement that remained between the parties. The following material was redacted from the transcript: an exchange in which the court excused McCotter to allow her to consult with her attorney regarding her fifth amendment privilege against self-incrimination; testimony to which Bansley had successfully objected at the Stevens hearing; testimony regarding whether McCotter wanted the protective order against the petitioner modified or removed; and testimony regarding the facts that gave rise to the protective order. With the redactions in place, the transcript of McCotter's testimony at the Stevens hearing was admitted in full.

Because it will be helpful to our discussion, we also summarize McCotter's testimony at the Stevens hearing. At that hearing, she testified that sometime between 4 and 4:30 a.m. on November 22, 2008, she, her brother and the petitioner left a party at her siste...