Hodges v. Comm'r of Corr.

187 Conn.App. 394

202 A.3d 421

Sojournal HODGES

v.COMMISSIONER OF CORRECTION

AC 40652

Appellate Court of Connecticut.

Argued October 16, 2018

Officially Released January 22, 2019

Daniel Fernandes Lage, assigned counsel, for the appellant (petitioner).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Marc C. Ramia, senior assistant state's attorney, for the appellee (respondent).

Lavine, Alvord and Moll, Js.

LAVINE, J.

The petitioner, Sojournal Hodges, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court (1) improperly rejected his claim that his trial counsel, Donald J. Cretella, Jr., rendered ineffective assistance and (2) abused its discretion by precluding the petitioner's expert from testifying at the habeas trial. We affirm the judgment of the habeas court.

The petitioner was charged with attempt to commit robbery in the first degree with a firearm as an accessory in violation of General Statutes §§ 53a-8, 53a-49, and 53a-134(a)(4), and conspiracy to commit robbery in the first degree with a firearm in violation of General Statutes §§ 53a-48 and 53a-134(a)(4). The petitioner informed Cretella that he was present at the scene. Cretella pursued a mere presence defense during the petitioner's criminal trial and attacked allegations of the petitioner's involvement in the events forming the basis for the charges. Following a jury trial, the petitioner was convicted of both charges, and the trial court, Prescott, J., sentenced the petitioner to seven years incarceration, followed by five years special parole.

The following facts, which the jury reasonably could have found concerning the petitioner's underlying offenses, are relevant to this appeal. On June 28, 2012, at approximately 8:15 a.m., the petitioner and an unidentified man walked into Hernandez Grocery in Waterbury (store). The petitioner wore one grey glove and covered his face with a red hoodie that had a white patch. The unidentified man wore a black hoodie and asked Josean Campos, a store employee, for a single cigarette. Upon discovering that the store did not sell loose cigarettes, the two men left the store and stopped on the sidewalk. The petitioner followed the unidentified man back into the store. The unidentified man placed his right hand on the store counter, while holding a pistol on its side, and demanded that Campos give him "all the money." Campos noticed that the pistol lacked an ammunition clip and stated that he would not do so. The unidentified man stated that he was "just joking" and left the store with the petitioner following him. Campos contacted the police, who, on the basis of Campos' physical description of the petitioner and his clothes, detained the petitioner. A crime scene technician collected a surveillance video from the store, which was admitted as a full exhibit in the petitioner's underlying criminal trial.

Following his conviction, the petitioner brought a petition for a writ of habeas corpus, in which he alleged that Cretella was ineffective, inter alia, for failing to investigate and pursue a valid defense and failing to consult with experts. The habeas court, Oliver, J., denied the petition for a writ of habeas corpus on all counts. The petitioner then filed a petition for certification to appeal from the court's judgment, which the court granted. This appeal followed. Additional facts will be set forth as necessary.

I

The petitioner claims that the court improperly determined that Cretella did not render ineffective assistance by (a) allegedly failing to present a competent defense and (b) declining to consult with and retain an expert witness in video forensics. We disagree.

We begin by setting forth the applicable standard of review. "The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.... The application of historical facts to questions of law that is necessary to determine whether the petitioner has demonstrated prejudice under Strickland [v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], however, is a mixed question of law and fact subject to our plenary review." (Citation omitted; internal quotation marks omitted.) Small v. Commissioner of Correction , 286 Conn. 707, 717, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz , 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

"As enunciated in Strickland v. Washington , [supra, 466 U.S. at 687, 104 S.Ct. 2052,] this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel.... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong ... the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.... The claim will succeed only if both prongs are satisfied." (Internal quotation marks omitted.)

Bryant v. Commissioner of Correction , 290 Conn. 502, 510, 964 A.2d 1186, cert. denied sub nom. Murphy v. Bryant , 558 U.S. 938, 130 S.Ct. 259, 175 L.Ed.2d 242 (2009).

"[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.... [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Goodrum v. Commissioner of Correction , 63 Conn. App. 297, 300–301, 776 A.2d 461, cert. denied, 258 Conn. 902, 782 A.2d 136 (2001).

A

The petitioner argues that Cretella rendered ineffective assistance by pursuing a flawed defense theory of mere presence. He contends, with twenty-twenty hindsight, that Cretella failed to contest his presence at the store despite the claim that it was difficult to identify him from the video. He argues that Cretella failed to move to suppress Campos' out-of-court and in-court identifications of the petitioner and that he posed questions to Campos in the underlying criminal trial in such a manner as to concede that an attempted robbery had occurred. We are not persuaded.

The petitioner has failed to overcome the presumption that Cretella's decision to pursue a mere presence defense, and not to contest the petitioner's presence at the scene or the unidentified man's involvement in an attempted robbery, represented sound trial strategy.¹ The court credited Cretella's testimony that there was never a question that the petitioner was present at the scene and that the petitioner told Cretella that he was there. Cretella testified that he thought the petitioner's best chance for acquittal was a mere presence defense and explained that he did not believe an alibi defense was viable in light of the fact that the petitioner had admitted his presence at the scene to him, and more significantly, to the police, and to the court, Fasano, J., via a letter. "The reasonableness of counsel's actions may be determined or substantially influenced by the [petitioner's] own statements or actions." Strickland v. Washington , supra, 466 U.S. at 691, 104 S.Ct. 2052. Cretella's use of a mere presence defense was reasonable particularly in light of the fact that the petitioner had admitted he was present at the scene.

Cretella's theory of the defense was based on the premise that the petitioner was present at the scene but was not a participant in the attempted robbery. Cretella testified that his theory of the defense was to concede the underlying crime and argue that, even if Campos and the police were to be believed, the petitioner did not participate in the attempted robbery. Cretella further testified that he did not move to suppress Campos' out-of-court identification of the petitioner because "we weren't disputing that he was there."² It would not be consistent with the defense of mere presence for Cretella to have contested the petitioner's presence at the scene by challenging Campos' identifications of the petitioner. Additionally, Cretella's decision not to challenge the presence of a gun was not inconsistent with the theory of the defense, which was premised on the notion that the petitioner was not a participant in the robbery. "There is a strong presumption that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than sheer neglect." (Internal quotation marks omitted.) Harrington v. Richter , 562 U.S. 86, 109, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). We conclude that the court properly determined that, in light of the surrounding circumstances, Cretella's decision to pursue a mere presence defense was sound trial strategy and did not amount to ineffective assistance of counsel.

B

The petitioner argues that the court improperly concluded that Cretella did not perform deficiently by declining to consult with and retain an expert to provide testimony on video forensics. Specifically, the petitioner argues that the quality of the surveillance video was poor and that an expert could explain how anomalies within the video footage could make it falsely appear as if an item, such as a firearm, were present. We are not persuaded.

The following additional facts are relevant. Lindsay Hawk, a recorded evidence analyst, testified at the habeas trial that she examined the video and determined that limitations in quality existed. She testified that the video contained an anomaly called "banding," which occurred on the edge of the unidentified man's right sleeve when he placed his right hand on the store counter. Hawk further testified that there...