Figueroa v. Commissioner of Correction

George FIGUEROA (Inmate #222350) v. COMMISSIONER OF CORRECTION

No. CV024007684S

Superior Court of Connecticut, Judicial District of Tolland, Rockville, Geographic Area 19

July 26, 2018

UNPUBLISHED OPINION

OPINION

Kwak J.

The petitioner, George Figueroa, initiated this petition for a writ of habeas corpus, claiming that underlying trial counsel and appellate counsel provided him ineffective legal representation, and his right to trial by jury and the due process of law were violated. The petitioner seeks an order from the court vacating his judgment and releasing him from confinement. The court heard evidence on September 26, 2017. Having considered the credible evidence and the arguments of the parties, the court denies the petition.

I PROCEDURAL HISTORY

On May 1, 2000, the petitioner was convicted, after a jury trial, of murder in violation of General Statutes § 53a-54a and carrying a pistol without a permit in violation of General Statutes § 29-35(a). The court, Hartmere, J., sentenced the petitioner to a term of sixty years incarceration on June 16 2000. Attorney Chris DeMarco represented the petitioner at his criminal trial.

The petitioner appealed his conviction to the Appellate Court which affirmed it. State v. Figueroa, 74 Conn.App 165, 810 A.2d 319 (2002). The Supreme Court denied the petitioner’s petition for certification. State v Figueroa, 262 Conn. 947, 815 A.2d 677 (2003). The petitioner was represented by Attorney Richard Condon at his direct appeal. The Appellate Court found that the jury could reasonably have found the following facts:

In the summer of 1995, the defendant and the victim, John Corbett, were involved in a physical altercation on Lilac Street in New Haven. During that altercation, Corbett hit the defendant in the face. Thereafter, the defendant retreated to his then residence at 40-42 Lilac Street, retrieved his gun and, from a window of his third floor apartment, began firing at Corbett, who was standing in the street. Corbett was not injured during that incident, which never was reported to the police.

Shortly thereafter, Corbett was incarcerated. He was released from prison sometime in November 1997. Approximately two weeks later, on December 7, 1997, at about 2:30 p.m., Corbett was standing at the corner of Lilac and Newhall Streets, speaking with Edward Wells. After speaking with Wells for about twenty minutes, Corbett left the area but returned a short time later and resumed his conversation with Wells. The two men were standing in front of 44-46 Lilac Street when the defendant approached, driving his white 1997 Toyota Camry, which he parked in front of a red sports car that also was parked along the side of Lilac Street. The defendant got out of his car and entered the house at 40-42 Lilac Street, where his brother resided.

In the meantime, Ebonie Moore approached, driving her black Laser, which she parked along Lilac Street in back of the red sports car that was parked there. She and her passenger, Takheema Williams, who had dated the defendant, were sitting in Moore’s car listening to music.

Thereafter, the defendant emerged from the 40-42 Lilac Street residence and stood near his car. It was at that time that Corbett told Wells that he wanted to speak with the defendant. Corbett walked to where the defendant was standing. The two talked for a short time, they shook hands and then a shot was fired. As Corbett turned away from the defendant, he fell face down onto the sidewalk. Wells and Moore then watched as the defendant stood over Corbett, with his arm fully extended and a pistol in his hand, and fired several additional shots into Corbett’s body. The defendant then walked to his white Toyota Camry, which was parked a few feet away, got into the driver’s seat and sped along Lilac Street toward Newhall Street.

Wells then ran to Moore’s parked car, banged on the window and yelled for Moore to call for an ambulance because, in his words, "George [the defendant] had just shot John." Moore and Williams exited the vehicle. Moore attempted to call for an ambulance on her cellular telephone. She and Wells then administered cardiopulmonary resuscitation to Corbett until the police arrived. Williams walked away from the scene. Shortly thereafter, an ambulance arrived and transported Corbett to Yale-New Haven Hospital where he was pronounced dead about eight minutes after his arrival. Corbett suffered six gunshot wounds. He was shot once in the stomach, four times in the lower back and once in the back of his left shoulder. Either or both of two of the wounds to Corbett’s lower back were fatal.

Soon thereafter, Wells and Moore arrived at the hospital where they told a New Haven police detective that it was the defendant who had shot Corbett. Within the next few days, both Wells and Moore gave statements to the police implicating the defendant as the shooter and selected the defendant’s photograph from a photographic array, identifying him as the man who shot Corbett. On December 10, 1997, Williams gave the police a tape-recorded statement regarding the December 7, 1997 shooting on Lilac Street.

At trial, the defendant testified that he could not have shot Corbett because he was living in New York at the time. Both Wells and Moore testified, however, that they saw the defendant shoot Corbett. Williams also testified, but her testimony was inconsistent with the tape-recorded statement that she had given to the police on December 10, 1997, just three days after the shooting. Accordingly, her taped statement and a twenty-one-page transcript of that tape were admitted into evidence as full exhibits for substantive and impeachment purposes pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986).

On April 27, 2000, during the fifth day of jury deliberations, the jury submitted the following question to the court: "We would like to hear if Takheema Williams was ever asked and answered the question: [D]id you see [the defendant] at the scene?" Outside the presence of the jury, in discussing the jury’s question with counsel, the court indicated that it could not find a definitive answer to that question in its notes. Consequently, the court determined that the only way to answer the jury’s question accurately was to listen to the testimony. The court and counsel then listened to Williams’ in-court testimony. After doing so, the court stated that "the literal answer is no, she was never asked that question." The court went on to state, however, that Williams’ Whelan statement had been admitted for substantive and impeachment purposes, and that on pages eighteen and twenty of the transcript of that statement, she did testify as to what she saw. The court then heard comment from counsel on its proposal to direct the jury to those particular pages of Williams’ Whelan statement. Counsel for the state supported the court’s proposal. Defense counsel did not. He argued that the court should instruct the jury only that the answer to its question is "no," but that it could consider Williams’ entire Whelan statement as substantive evidence. Defense counsel specifically objected to the court’s "highlighting" the portions of the statement that the court and the state believed answered the jury’s question because defense counsel believed "that would be, in a sense, marshaling the evidence."

Thereafter, the court had the jury brought back to the courtroom where it explained to the jury that "[c]ounsel and I have reviewed the taped testimony of the witness, Takheema Williams, presented to you here in court, and the answer to your question: ‘[W]as she asked, [D]id you see [the defendant] at the scene?’ is no. She was not asked during her testimony here in court." The court then went on to remind the jury that Williams’ prior tape-recorded statement and the transcript of that statement were in evidence. The court referred the jury to its written copy of the court’s instructions regarding the use of the Whelan statement. It then directed the jury to the tape-recorded statement and to pages eighteen and twenty of the transcript of Williams’ Whelan statement, stating: "[B]ut again, it’s up to you as to what weight you accord to any evidence. I just want to remind you of that."

(Footnotes omitted.) State v. Figueroa, supra, 74 Conn.App. 166-70.

On August 14, 2006, the petitioner filed a pro se petition for a writ of habeas corpus, in which he claimed that his convictions were invalid because the criminal statutes he was convicted of violating were void for lack of enactment clauses. The habeas court, Swords, J., granted the respondent’s motion to dismiss the petitioner’s petition on January 17, 2007. The petitioner appealed the habeas court’s judgment, and his appeal was dismissed. Figueroa v. Commissioner of Correction, 123 Conn.App. 862, 3 A.3d 202 (2010), cert. denied, 299 Conn. 926, 12 A.3d 570 (2011).

The petitioner initiated the present habeas case by filing a pro se petition for a new trial in the judicial district of New Haven on August 27, 2002, which the trial court construed as a petition for a writ of habeas corpus. On December 1, 2015 the court, Robinson, J., transferred the present matter from the New Haven judicial district to this court. The petitioner’s assigned counsel filed a second revised amended petition on August 15, 2017, in which he claimed that the petitioner’s constitutional right to trial by jury and due process of law was violated when the trial court invaded the province of the jury by improperly responding to the jury’s factual question during jury deliberations. The petition also alleged an ineffective assistance of trial counsel claim on the grounds that trial counsel’s performance was deficient in that he ...