James v. Comm'r of Corr.

170 Conn.App. 800

156 A.3d 89

Allen Lamont JAMES

v.COMMISSIONER OF CORRECTION

AC 37032

Appellate Court of Connecticut.

Argued December 1, 2016

Officially released February 21, 2017

April E. Brodeur, assigned counsel, for the appellant (petitioner).

Paul J. Narducci, senior assistant state's attorney, with whom, on the brief, was Michael L. Regan, state's attorney, for the appellee (respondent).

Keller, Prescott and Pellegrino, Js.

PRESCOTT, J.

The petitioner, Allen Lamont James, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion by denying his petition for certification to appeal and that the court improperly determined that his trial counsel did not provide ineffective assistance by failing to pursue the petitioner's trial objective or to seek a jury instruction on parental discipline/justification. Having thoroughly reviewed the record, we conclude that the habeas court properly denied the petition for certification to appeal. Accordingly, we dismiss the appeal.

The following facts, as set forth by this court on direct appeal, and procedural history are relevant to this appeal. "In the early morning hours of December 28, 2003, Sergeant Brett Mahoney of the Waterford police department saw a vehicle operated by the [petitioner], traveling from the Interstate 395 connector onto Route 32 at approximately 100 miles per hour. After a lengthy pursuit, Mahoney found the vehicle, with the front door open, stopped on a private driveway in front of a gate. The [petitioner] had fled into the surrounding wooded area. After Mahoney called for assistance, the [petitioner] was apprehended as he emerged from the wooded area and was brought back to the vehicle. A subsequent search of the wooded area yielded two plastic bags and a suitcase that contained the human remains of the [petitioner]'s child, Alquan, which the [petitioner] had taken out of the vehicle and left in the wooded area.

"After the [petitioner]'s arrest, and while he was in a police holding cell, he requested to speak with detectives. After being advised of his Miranda rights, the [petitioner] gave two distinctly different versions regarding Alquan's death.

"The first version was that Alquan had a tendency to fall and hit his head, and that in the summer or fall of 2000, Alquan had fallen down and hit his head on a bed railing. The [petitioner] took him out to a friend's car, where he turned blue, whereupon the [petitioner] took him back to his house and laid him down, but Alquan did not wake up. When asked whether he had ever struck Alquan, the [petitioner] admitted that he had done so but continued to insist that Alquan's death was an accident.

"The second version was in response to a question by the police as to whether Alquan's death was accidental, intentional, out of frustration or spontaneous. The [petitioner] said that it was spontaneous. He said that Alquan had not been listening to him and that he grabbed Alquan, threw him across the room and against the wall two or three times, backhanded him across the chest or face, and manhandled him on the shoulder. He then administered chest compressions and attempted mouth-to-mouth resuscitation on Alquan, who did not respond. The [petitioner] did not seek medical attention for Alquan or call 911.

"The [petitioner] stated that after Alquan's death, he took his body in a suitcase to Santee, South Carolina, where he brought it to a vacant area, poured gasoline on it and lit it on fire. When the body did not burn, he put it into garbage bags, which he then put into a suitcase, put the suitcase into the trunk of his car, and eventually drove back to New London, where he kept the remains at his house. On several occasions, he had taken Alquan's body out for rides, which is what he was doing when he was apprehended on December 28, 2003. He stated that, while being pursued by the police, he stopped the car and brought the suitcase into the wooded area with the intent of turning himself in and later returning to retrieve the suitcase.

"The next day, on December 29, 2003, the [petitioner] again asked to speak with detectives. He then gave a third version of Alquan's death. This version was that he never intended to hurt Alquan but needed help in caring for him. He stated that Alquan was not eating and that the [petitioner] forced him to eat. When Alquan refused and spit out the food, the [petitioner] threw him on the bed, and Alquan bounced off and hit his head on the floor. He then forcibly pushed down on Alquan's shoulders, and Alquan hit his head on the floor. When Alquan did not get up, he tried to perform mouth-to-mouth resuscitation, but Alquan did not respond. He then repeated the story of bringing Alquan's body to South Carolina, unsuccessfully trying to burn it, and returning with it to Connecticut." (Footnotes omitted.) State v. James , 126 Conn.App. 221, 224–26, 11 A.3d 717, cert. denied, 300 Conn. 921, 14 A.3d 1005 (2011).

Thereafter, the petitioner "was charged in a substitute information with murder in violation of General Statutes § 53a–54a, capital felony in violation of General Statutes § 53a–54b (8), interfering with a police officer in violation of General Statutes (Rev. to 2003) § 53a–167a, engaging police in pursuit in violation of General Statutes § 14–223 (b) and reckless driving in violation of General Statutes § 14–222 (a)." Id., at 223–24, 11 A.3d 717. "Through his own testimony at [his jury] trial, the [petitioner] gave a fourth version of Alquan's death. This version was that one Sunday afternoon, as he was about to feed Alquan, Alquan collapsed in his hands. He laid Alquan down for about five minutes and then tried to resuscitate him. He did not seek medical attention or call 911. He then drove to South Carolina, where he tried to burn Alquan's body. He also stated that he stomped on the body several times because it did not burn as he had anticipated.

"The state medical examiner and a forensic anthropologist examined Alquan's remains. This examination disclosed numerous fractures of various bones, including several fractures to the bones on each side of the head, fractures of the bone at the base of the skull, the lower jawbone, both collarbones, the second through the fifth ribs on the left side, and several finger bones. According to these witnesses, these injuries would have been caused by multiple blows and were inconsistent with falling from a bed or hitting one's head on a bed rail. According to the medical examiner, the cause of death was multiple blunt injuries and the manner of death was homicide.

"A medical examiner who also was an independent consultant dealing with forensic issues regarding deaths of children testified for the defense. After examining Alquan's pediatric medical records, statements, police reports, photographs, the reports of the state medical examiner and the state's forensic anthropologist, and Alquan's remains, she was unable to determine the cause or manner of Alquan's death because of the condition of the bones and the postmortem decomposition and disruption of the body, including the burning, stomping and movement of the body." Id., at 227, 11 A.3d 717.

Following trial, the petitioner was found "guilty of the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a–55 (a) (3), and of interfering with an officer in violation of § 53a–167a, engaging police in pursuit in violation of § 14–223 and reckless driving in violation of § 14–222. The court rendered its judgment of conviction and sentenced the [petitioner] to an effective term of fourteen years of incarceration followed by four years of special parole." Id., at 224, 11 A.3d 717. On direct appeal, this court affirmed the petitioner's judgment of conviction. Id., at 231, 11 A.3d 717.

Thereafter, on July 12, 2011, the petitioner filed this habeas action. In a second amended petition for a writ of habeas corpus dated May 19, 2014, the petitioner alleged ineffective assistance of trial counsel.¹ More specifically, the petitioner claimed that the performance of his two trial attorneys, Bruce Sturman and M. Fred DeCaprio, was deficient because they failed to notify and consult with the petitioner regarding instructions on lesser included offenses that the court had decided sua sponte to give the jury, failed to adequately explain to him the impact of those instructions, failed to request a jury charge on parental discipline, and made statements during closing summation that indicated the petitioner's guilt as to the lesser included offenses. On June 3, 2014, the habeas court, Fuger, J. , held a trial at which it heard testimony from DeCaprio² and the petitioner.

Following the trial, the habeas court denied the petition for a writ of habeas corpus. In its written memorandum of decision dated June 5, 2014, the court concluded that the decision of the petitioner's trial attorneys to acquiesce to the lesser included offense instruction without consulting him was not deficient performance because it was a "reasonable, prudent, and ... sound tactical decision" belonging to defense counsel and not the client, and that the petitioner did not suffer prejudice by his defense counsel failing to request an instruction on parental justification because, given the facts of the case, it is unlikely the trial judge would have agreed to give such an instruction.³ On June 13, 2013, the petitioner sought certification to appeal to this court, which the habeas court denied. This appeal followed. Additional facts will be set forth as necessary.

Prior to addressing the petitioner's claims on appeal, we set forth the applicable standard of review and guiding legal principles. "Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for...