Hilton v. Comm'r of Corr.

161 Conn.App. 58

127 A.3d 1011

James HILTON

v.COMMISSIONER OF CORRECTION.

Nos. 36382

36387.

Appellate Court of Connecticut.

Argued April 13, 2015.

Decided Nov. 10, 2015.

David B. Rozwaski, assigned counsel, for the appellant in AC 36382 and the appellee in AC 36387 (petitioner).

Sarah Hanna, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and David Clifton, assistant state's attorney, for the appellee in AC 36382 and the appellant in AC 36387 (respondent).

GRUENDEL, ALVORD and MULLINS, Js.

MULLINS, J.

In the appeal designated AC 36382, the petitioner, James Hilton, appeals from the judgment of the habeas court denying the claims presented in his petition for a writ of habeas corpus.¹ The petitioner claims that the court erred when it determined that he failed to establish that he received ineffective assistance from his criminal trial counsel (counsel). In the appeal designated AC 36387, the respondent, the Commissioner of Correction, appeals from the judgment of the habeas court granting a single aspect of the petition. The respondent contends that the court improperly determined that the petitioner received ineffective assistance of counsel with respect to his claim regarding sentence review. As a result of this determination, the habeas court reinstated the petitioner's right to apply for sentence review.

With respect to the petitioner's appeal, we affirm the judgment of the habeas court denying the petition for a writ of habeas corpus in AC 36382. As to the respondent's appeal, we conclude that the court erred by granting the petition for a writ of habeas corpus and reinstating the petitioner's right to apply for sentence review. Accordingly, we reverse the judgment of the habeas court in AC 36387. We will address each of these appeals separately in this opinion.

IAC 36382

This court previously set forth the underlying facts relevant to 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 found 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 Rodriquez' 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] somebody to call the police.’ Mills later identified the [petitioner] as the shooter from an array of photographs.

"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 man 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, he 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. He further testified that he left the victim to make sure someone had called an ambulance. When he 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. He 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 fiancee, Maybertha Ashley. She and her sister, Andrea Ashley, testified that the [petitioner] had given his bloody clothes to his fiancee, 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 covered 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. Following a trial in July, 2001, the jury returned a verdict of guilty on all counts. On September 28, 2001, the court sentenced the [petitioner] to a term of sixty years imprisonment on the charge of murder, a consecutive term of five years imprisonment on the charge of carrying a pistol without a permit and a concurrent term of five years imprisonment on the charge of criminal possession of a pistol or revolver for a total effective sentence of sixty-five years imprisonment." (Footnotes omitted.) State v. Hilton, 79 Conn.App. 155, 157–60, 829 A.2d 890 (2003). We affirmed the judgment of conviction on direct appeal. See id., at 170, 829 A.2d 890.

Following his unsuccessful direct appeal, the petitioner commenced the present habeas action. In his third amended petition, dated December 19, 2011, he alleged, inter alia, that counsel had provided him with ineffective assistance. Specifically, as relates to AC 36382, he alleged that counsel was ineffective in failing to cross-examine witnesses properly, failing to present witnesses, failing to prepare the petitioner to testify and failing to present sentence mitigation evidence. Following a trial, the habeas court issued a memorandum of decision denying these claims.²

The petitioner claims that the court improperly concluded that he had received effective assistance of counsel during his criminal trial and at sentencing. Specifically, he argues that counsel provided ineffective assistance by failing to (1) secure sufficient information and properly cross-examine two of the state's witnesses, (2) present witnesses in support of his defense, (3) prepare the petitioner to testify and (4...