Hilton v. Comm'r of Corr.

315 A.3d 1135

225 Conn.App. 309

James HILTON

v.COMMISSIONER OF CORRECTION

(AC 46270)

Appellate Court of Connecticut.

Argued January 31, 2024

Officially Released May 7, 2024

Alexander T. Taubes, New Haven, for the appellant (petitioner).

Linda F. Rubertone, senior assistant state’s attorney, with whom, on the brief, were John P. Doyle, Jr., state’s attorney, and Craig P. Nowak, supervisory assistant state’s attorney, for the appellee (respondent).

Alvord, Moll and Clark, Js.

ALVORD, J.

[1] ₃₁₁The petitioner, James Hilton, appeals from the judgment of the habeas court denying his second petition for a writ of habeas corpus.¹ On appeal, ₃₁₂the petitioner claims that the habeas court (1) improperly rejected his claim that his right to the effective assistance of counsel was violated when his first habeas counsel, Attorney David B. Rozwaski, failed to present the expert testimony of a forensic pathologist in support of his claim that the petitioner’s criminal trial counsel, Attorney Al Ghiroli, had provided ineffective assistance of counsel and (2) abused its discretion in denying his petition for certification to appeal as to his claim that the habeas court applied the wrong legal standard in assessing witness credibility. We affirm the judgment of the habeas court as it relates to the petitioner’s first claim. We dismiss the appeal as to the petitioner’s second claim.

The following facts and procedural history, as set forth by this court in the petitioner’s direct appeal from his conviction or as undisputed in the record, are relevant to our resolution of the petitioner’s appeal. "The victim, William Rodriguez, was shot on July 14, 2000, at approximately 9 p.m. in the area of Truman Street and King Place in New Haven. Sergeant Anthony Duff arrived at the scene of the shooting and discovered the victim’s body on the sidewalk, surrounded by a crowd of people. An autopsy performed on the victim’s body revealed that he died from a single gunshot at close range to the left side of his head. Bullet fragments removed during the victim’s autopsy were tested and ₃₁₃found to be consistent with having been fired from either a .38 special or a .357 magnum firearm. No gun was ever recovered.

"The shooting was precipitated by a drug turf war. Anna Rodriguez, the victim’s longtime friend, testified that two days before the murder, she and her boyfriend had gone to visit the victim, who had just moved to an apartment on Truman Street. Rodriguez testified that upon arriving outside the victim’s apartment, her boyfriend sounded his car horn, and the victim and his girlfriend, Cora Moore, came outside to visit them. At that point, the [petitioner] suddenly approached on the passenger’s side of the car and peered inside. When the [petitioner] recognized Rodriguez’ boyfriend, he walked away.

"The jury also heard testimony from Sherice Mills, who stated that on the afternoon of the shooting, ‘Shawn,’ an associate of the victim, verbally confronted the [petitioner] and one of his associates regarding Shawn’s drug dealing activities on Truman Street, which was part of the [petitioner’s] drug territory. During that conversation, Shawn threatened the [petitioner] and his associate. The confrontation soon ended, and Shawn and the victim drove off in the victim’s car.

"Two women testified as eyewitnesses to the actual shooting. Mills testified that the victim left his porch to make a drug sale to someone in a car. She testified that moments later, while the victim was at the car, she heard the [petitioner] state that he was ‘about to kill [the victim],’ and observed the [petitioner] walk across the street and shoot the victim in the head. According to Mills, the [petitioner] fell to the ground with the victim, and the [petitioner] ‘kept holding [the victim’s] head, saying he didn’t mean to do it and [telling] some-body to call the police.’ Mills later identified the [petitioner] as the shooter from an array of photographs.

₃₁₄"A second eyewitness, Simone Williams, who was on the porch at the time of the shooting, testified about essentially the same events as did Mills. Williams’ testimony added that the [petitioner] had approached the victim from behind and stated: ‘You ain’t from around here, son,’ and, ‘You need to move from around here, son,’ and that she then saw the [petitioner] take a gun from behind his back and shoot the victim. When the shooting stopped, Williams testified, the victim fell to the ground, and the [petitioner] yelled for someone to call an ambulance. A short time later, the [petitioner] fled the scene. Williams went to the police station sometime later and related to the police what she had observed concerning the shooting. At that time, she positively identified the [petitioner] in a photographic array and did so again at trial.

"The state also presented testimony from Moore, the victim’s girlfriend, that while she was in Toisann Henderson’s second floor apartment on Truman Street playing with Henderson’s baby and listening to music, she heard a gunshot. Minutes after the shooting, Henderson ran from the porch into the apartment and told Moore that the [petitioner] had shot her boyfriend. Moore ran outside where she found the victim lying motionless on the ground. She fell to the ground and started crying and hugging him. Shortly thereafter, Duff arrived. On the basis of the information that the witnesses provided, Duff dispatched the [petitioner’s] description over the police radio.

"At trial, the [petitioner] testified that after meeting with his family, he voluntarily went to the police station, accompanied by his brother-in-law, Sergeant Nate Blackman, and provided a statement about the shooting. While he was in police custody, the [petitioner] stated that he had been sitting on his porch when he heard a commotion and went to see what was happening. The [petitioner] further told the police that a third ₃₁₅man had drawn a gun, that the [petitioner] had grappled for the gun, and ‘it went bashing across [the victim’s] head.’ Later in the interview, the [petitioner] was asked if he could give more detail about the shooting. It was at that point that the [petitioner] ended the interview. At trial, [the petitioner] described how several seconds after he fought with the third man, a fourth man shot the victim and ran away. Immediately after the gunshot, the [petitioner] testified, he applied pressure to the victim’s wound to stop the bleeding. [The petitioner] further testified that he left the victim to make sure someone had called an ambulance. When [the petitioner] returned and saw that the victim was receiving aid, he went to and sat on the porch. The [petitioner] testified that he sat on the porch until people in the crowd began to tell the police that he did the shooting. [The petitioner] then stated that he became scared, and went directly to see his children and then to Blackman’s house.

"During their investigation, the police learned that after the shooting, the [petitioner] went to see his fiancée, Maybertha Ashley…. [H]er sister, Andrea Ashley, testified that the [petitioner] had given his bloody clothes to his fiancée, who in turn gave them to Andrea Ashley to wash. When the police arrested the [petitioner] at the police station, they took the clothing he had worn on the evening of the shooting. The blood samples and clothes collected from both the victim and the [petitioner] were sent to the state forensic laboratory. A state’s expert testified that a drop of blood found on the [petitioner’s] boxer shorts matched the victim’s blood type and DNA. Despite the fact that the victim had been shot at fairly close range, there was no detectable blood on the [petitioner’s] other clothes. The [petitioner] denied ever having his clothes washed after the shooting, and explained that his clothes were not ₃₁₆covered in blood because he wore his shirt over his head and his pants around his knees.

"On September 12, 2000, the [petitioner] was charged with murder, and criminal possession of and carrying a pistol or revolver without a permit." (Footnotes omitted.) State v. Hilton, 79 Conn. App. 155, 157–60, 829 A.2d 890 (2003).

At the petitioner’s criminal trial, the state presented the testimony of Arkady Katsnelson, an associate medical examiner in the Office of the Chief Medical Examiner, who had performed the victim’s autopsy. Katsnelson testified that, because "there was no evidence of soot or gun powder," the victim’s gunshot wound in this particular case resembled either a "long distance" or a contact wound.² When asked whether the victim’s gunshot wound was typical, Katsnelson testified: "This gunshot wound, it is not typical from a gunshot wound which was created from a long distance because a gunshot wound from a distance will be a round shape, and the round shape wound and the size of the wound will be slightly bigger than the size of the bullet. In this particular case, it’s not a typical gunshot wound of entry which is created from a long distance." Thus, Katsnelson testified: "[M]y conclusion is, this gunshot wound is consistent with a contact gunshot wound of entrance. It means in this particular case the barrel of the gun was touching the skin when the gun was discharged. It is the reason for my conclusion, number one, there is no evidence of soot or gunpowder around, and number two, which is extremely important also, the size of the wound. The wound is 3.2 centimeters in vertical dimension and it is 1.2 centimeters in horizontal dimension and it is the reason I believe this gunshot wound is a typical contact gunshot wound."

₃₁₇Following a jury trial, during which the petitioner was represented by Ghiroli, the petitioner was convicted of murder in violation of General Statutes § 53a-54a,³ carrying a pistol or revolver without a permit in violation of General Statutes (Rev. to 1999) § 29-35 (a),⁴ and criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 1999) § 53a-217c.⁵ See ...