Hampton v. Comm'r of Corr.

174 Conn.App. 867

167 A.3d 418

Travis HAMPTON

v.COMMISSIONER OF CORRECTION

(AC 39280).

Appellate Court of Connecticut.

Argued April 12, 2017

Officially released July 25, 2017

Jade N. Baldwin, for the appellant (petitioner).

Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Tamara Grosso, assistant state's attorney, for the appellee (respondent).

DiPentima, C.J., and Keller and Prescott, Js.

PRESCOTT, J.

The petitioner, Travis Hampton, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus.¹ On appeal, the petitioner claims that the habeas court improperly concluded that his claim of ineffective assistance of trial counsel fails on the prejudice prong of the test set forth in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). Having thoroughly reviewed the record, we conclude that the habeas court properly denied the petition and, accordingly, affirm the judgment.

The following facts, as set forth by our Supreme Court in the petitioner's direct criminal appeal, and procedural history are relevant to this appeal. "At approximately 1:30 a.m. on August 23, 2003, the [petitioner] was with his friend, James Mitchell, when Mitchell received a telephone call from the victim, a young woman he knew, asking for a ride to her home in East Hartford. Mitchell drove his car to the location of the victim and picked her up. The three then drove to a nearby restaurant. After entering the restaurant and remaining there for a while, the [petitioner] and the victim returned to the car, where Mitchell had remained. Mitchell told the victim that he would drive her home, but he did not. Instead, Mitchell began angrily questioning the victim as to the whereabouts of her brother, who, both Mitchell and the [petitioner] suspected, was involved in a romantic relationship with Mitchell's former girlfriend. The victim informed Mitchell and the [petitioner] that her brother was staying at her grandfather's house, but after driving there, Mitchell and the [petitioner] realized that the victim had lied to them. Mitchell then drove first to his mother's house in Hartford, and then to an apartment complex. The victim repeatedly pleaded with Mitchell to take her home, but he did not comply. Mitchell drove his car from the apartment complex and brought the victim and the [petitioner] to a closed gas station near Market Street in Hartford and parked behind the building, where it was dark. ...

"Mitchell then told the victim to get out of the car because he wanted to talk to her. Mitchell, the [petitioner] and the victim exited the car. The victim, anticipating that ‘something bad’ was about to happen, started to walk away, but stopped when the [petitioner] took a shotgun out of the car and pointed it at her face. After the victim refused to tell Mitchell her brother's location, Mitchell became angry and ordered the victim to take her clothes off. The victim removed her pants, and Mitchell sexually assaulted her by engaging in vaginal intercourse with her. The [petitioner] kept the shotgun pointed at the victim throughout the assault.

"Angry and scared, the victim pleaded with Mitchell and the [petitioner] to let her go. Mitchell then gave the victim the choice to climb into a nearby dumpster or attempt to run away. As the victim started running, Mitchell fired the shotgun hitting her in the stomach. The victim continued to run toward the front of the gas station, and Mitchell followed her in the car while the [petitioner] pursued her on foot, holding the shotgun. Despite the victim pleading with the [petitioner] to stop, he shot and wounded her in the right side. The victim, bleeding profusely, ran across Market Street and tried to hide behind some trees on the side of the road. The [petitioner] followed her and shot at her several more times, hitting her in the face and the upper thigh. The victim then dropped to the ground and pretended to be dead. The [petitioner] walked over to the victim, who was lying on the ground, and shot her one final time in her left arm. Thinking that the victim was dead, the [petitioner] got back into the car, which Mitchell was driving, and they drove away. They quickly returned, however, to verify that the victim was dead. The [petitioner] got out of the car, walked over to the motionless victim, kicked her once, and said, ‘She's dead.’ The [petitioner] and Mitchell then again drove away.

"The victim subsequently was discovered by a passerby and ultimately was taken to the hospital, where, after receiving medical attention, she informed authorities that Mitchell and a person that she did not know, later identified as the [petitioner], had sexually assaulted and shot her. Late in the evening of August 27, 2003, Mitchell and the [petitioner] were arrested."

Footnotes omitted.) State v. Hampton , 293 Conn. 435, 438–41, 988 A.2d 167 (2009).

Thereafter, the petitioner was charged, via an amended information dated January 17, 2006, with attempt to commit murder in violation of General Statutes §§ 53a–49(a) and 53a–54a, conspiracy to commit murder in violation of General Statutes §§ 53a–48(a) and 53a–54a, kidnapping in the first degree in violation of General Statutes §§ 53a–92(a)(2)(A) and 53a–8, conspiracy to commit kidnapping in the first degree in violation of General Statutes §§ 53a–48 and 53a–92(a)(2)(A), assault in the first degree with a firearm in violation of General Statutes §§ 53a–59(a)(5) and 53a–8, conspiracy to commit assault in the first degree in violation of §§ 53a–48(a) and 53a–59(a)(5), sexual assault in the first degree as a principal in violation of General Statutes § 53a–70(a)(1), sexual assault in the first degree as an accessory in violation of §§ 53a–70(a)(1) and 53a–8, conspiracy to commit sexual assault in the first degree in violation of §§ 53a–48 and 53a–70(a)(1), and criminal possession of a firearm in violation of General Statutes § 53a–217(a)(1). Id., at 438, 988 A.2d 167.

The petitioner's case was tried before a jury of six. See id., at 448 n.12, 988 A.2d 167. During the trial, the state presented evidence of three separate sexual acts that the victim had been forced to engage in—vaginal intercourse with Mitchell, fellatio with the petitioner, and vaginal intercourse with the petitioner² —although the petitioner only was charged with two counts of first degree sexual assault in the amended information—one count encompassing the fellatio and vaginal intercourse allegedly committed by the petitioner personally, and one count encompassing the vaginal intercourse by Mitchell to which the petitioner allegedly was an accessory. More specifically, count seven alleged in relevant part that "the [petitioner] ... did compel [the victim] ... to engage in sexual intercourse by the threatened use of force against her which caused her to fear physical injury," and count eight alleged in relevant part that "the [petitioner] ... did intentionally aid James Mitchell in compelling [the victim] ... to engage in sexual intercourse by the threatened use of force against her which caused her to fear physical injury."

Notably, during trial, "the [petitioner] did not file a request to charge. Before it charged the jury, the trial court held a charging conference at which it reviewed, page by page, its written charge with the parties. The trial court gave both parties a printed copy of the jury instructions for their review. During the charging conference, with regard to counts seven and eight of the information ... the trial court specifically inquired of the parties as to whether there would be a unanimity problem because the state had failed to allege in the information which specific acts of sexual intercourse had occurred. In response, the state pointed out that count eight of the information concerned the [petitioner's] participation in aiding Mitchell in Mitchell's sexual assault of the victim. Because the evidence supported a finding that Mitchell had engaged only in vaginal intercourse with the victim, the state noted that there would be only one factual basis upon which the jury could find the [petitioner] guilty, and, thus, there would be no unanimity problem." (Footnote omitted; emphasis omitted.) Id., at 445–46, 988 A.2d 167.

With regard to unanimity on count seven, the court, the prosecutor, and the court officer engaged in the following colloquy:

"The Court: ... But there's one sexual assault [charge] in which he's the principal it's alleged?

"[The Prosecutor]: Yes.

"The Court: Even though the testimony involved two sexual assaults?

"[The Prosecutor]: Right. ...

"The Court: ... But it's ... alleged that [the petitioner] had sex with her in two different fashions. ...

"[The Prosecutor]: She—it's just charged that [the petitioner] forced her to engage in sexual intercourse, and it's not distinguished as to what type.

"The Court: Well, then the question is, is there any requirement of specific unanimity on that? ... We'll have to look that up. ...

"The Court: ... [M]y issue is particularly as far as the argument is concerned and the charge is concerned. Certainly the jury would not have to believe both.

"[The Prosecutor]: Right.

"The Court: But could you have three believing one type of sexual contact and three believing the other or five and one or whatever permutation you come up with? And that's—do you have any cases for me on that for me to decide on? Do you have any position on that, you can't add another count on sexual assault?

"[The Prosecutor]: No. And there was no request for a bill of particulars, so this is particularized. ...

"[The Court Officer]: ... I think it's going to be for the jury to sort it out. If three of them believe oral sex happened and three of them believe vaginal sex happened by the [petitioner] as principal under count seven, then they find him guilty of count seven."

After the colloquy on unanimity, "the trial court solicited additional suggestions...