Llera v. Comm'r of Corr.

156 Conn.App. 421

114 A.3d 178

Angel LLERA

v.COMMISSIONER OF CORRECTION.

No. 35807.

Appellate Court of Connecticut.

Argued Sept. 8, 2014.

Decided April 14, 2015.

Justine F. Miller, assigned counsel, for the appellant (petitioner).

C. Robert Satti, Jr., supervisory assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Craig P. Nowak, senior assistant state's attorney, for the appellee (respondent).

SHELDON, MULLINS and FOTI, Js.

Opinion

FOTI, J.

The petitioner, Angel Llera, appeals following the granting of certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the habeas court improperly found that his trial counsel did not render ineffective assistance by failing to: (1) investigate or call a potential alibi witness; (2) attack the reliability of a statement given to police and testified to during a hearing on a motion to suppress; or (3) properly cross-examine the state's firearms expert to elicit exculpatory evidence. We affirm the judgment of the habeas court.

After a jury trial, the petitioner was convicted of murder with a firearm as a principal or accessory¹ in violation of General Statutes §§ 53a–54a (a) and 53–202k, three counts of assault in the first degree with a firearm in violation of General Statutes §§ 53a–59 (a)(5) and 53–202k, and carrying a pistol without a permit in violation of General Statutes § 29–35(a). This court affirmed the conviction on direct appeal. See State v. Llera, 114 Conn.App. 337, 346, 969 A.2d 225 (2009). The following facts, taken from the decision in the direct appeal, are relevant in the present case.

At approximately 1:45 a.m. on “April 16, 2006, the [petitioner] and Samuel Walker were at Club Novella in Bridgeport. Also at Club Novella were Eric Ortiz, Tyrelle Noblin, Timothy White and Angela Tucker.

Noblin testified that he observed the [petitioner] hand a gun to Walker immediately before Walker fired several gunshots. White, Tucker and Noblin were shot and injured, and Ortiz was shot and killed. The bullets were fired from the same nine millimeter [handgun].

“On April 19, 2006, the Bridgeport police arrested an individual named Roosevelt Jefferson on an unrelated narcotics charge. Jefferson had spoken with the [petitioner] in the [petitioner's] vehicle [a green Ford Taurus (Taurus) ] two days after the shooting, and he testified against the [petitioner], hoping to receive leniency when he became eligible for parole. Jefferson testified that he saw the [petitioner] with a nine millimeter semiautomatic [Ruger handgun (Ruger) ].² He also testified that the [petitioner] went everywhere with ‘that type of gun.’ While Jefferson was in the car, the [petitioner] removed the clip from the nine millimeter [Ruger] and placed the [Ruger] in a console behind his car radio. During their conversation, the [petitioner] told Jefferson that he, not Walker, had shot Ortiz in the face with his nine millimeter [Ruger] because of a gang related conflict and that he carried the gun because of an ongoing conflict. The [petitioner] also told Jefferson that he was going to the housing projects to speak with a female named Smurf, who was spreading rumors about him.” (Footnotes omitted.) State v. Llera, supra, 114 Conn.App. at 339–40, 969 A.2d 225.

The habeas court found the following additional facts. Officers from the Bridgeport Police Department apprehended the petitioner several days after the Club Novella shooting while he was driving the Taurus in the Marina Village housing project. In the course of the petitioner's arrest, police located a .40 caliber semiautomatic Glock handgun (.40 caliber Glock) in a compartment hidden behind the Taurus' radio. A Ruger, however, was not recovered from the Taurus. Later, during a second search of the Taurus, conducted with the consent of Lucy Montoya, the petitioner's mother and the owner of the vehicle, the police found blood containing DNA profiles that matched those of White and Ortiz.

Following his arrest, the petitioner was charged with one count of murder with a firearm in connection with the death of Ortiz, three counts of assault in the first degree with a firearm in connection with the shootings of White, Tucker and Noblin, and one count of carrying a pistol without a permit. State v. Llera, supra, 114 Conn.App. at 338–39, 969 A.2d 225. The petitioner was represented at trial by Attorney Barry Butler. After a jury trial, the petitioner was found guilty of all charges. The trial court rendered judgment in accordance with the jury verdict and sentenced the petitioner to a total effective term of sixty years incarceration. The petitioner appealed his conviction, which this court affirmed. Id., at 339, 969 A.2d 225.

On January 29, 2010, the petitioner filed a petition for a writ of habeas corpus. In his third amended petition, the petitioner pleaded multiple claims of ineffective assistance of trial counsel and one count of prosecutorial impropriety. After a full hearing, the habeas court denied the petition. The habeas court concluded that the petitioner had failed to demonstrate that he had received ineffective assistance of trial counsel in any of the ways alleged in his petition and that there had been no prosecutorial impropriety at the trial. The petitioner was granted certification to appeal from the denial of his three claims of ineffective assistance of trial counsel. We address each claim in turn.³

Preliminarily, we set forth the standard of review and the law governing claims of ineffective assistance of counsel. “The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous.... Historical facts constitute a recital of external events and the credibility of their narrators.... Accordingly, [t]he 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 the habeas court's factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review.” (Citations omitted; internal quotation marks omitted.) Anderson v. Commissioner of Correction,

313 Conn. 360, 375, 98 A.3d 23 (2014), cert. denied sub nom. Anderson v. Semple, ––– U.S. ––––, 135 S.Ct. 1453, 191 L.Ed.2d 403 (2015).

“Furthermore, it is well established that [a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.... As enunciated in Strickland v. Washington, supra, 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.... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.... [I]n order to demonstrate that counsel's deficient performance prejudiced his defense, the petitioner must establish that counsel's errors were so serious as to deprive the [petitioner] of ... a trial whose result is reliable.” (Citation omitted; internal quotation marks omitted.) Anderson v. Commissioner of Correction, supra, 313 Conn. at 375–76, 98 A.3d 23. “Because both prongs of Strickland must be demonstrated for the petitioner to prevail, failure to prove either prong is fatal to an ineffective assistance claim.” Jefferson v. Commissioner of Correction, 144 Conn.App. 767, 773, 73 A.3d 840, cert. denied, 310 Conn. 929, 78 A.3d 856 (2013).

I

In his first claim, the petitioner challenges the determination of the habeas court that the failure of Butler to investigate and call an alibi witness to testify at trial was not ineffective assistance of counsel. He claims that counsel's failure to investigate and call the petitioner's brother, Wilfredo Hostos, Jr., to testify constituted deficient performance because it prevented him from presenting an alibi defense. We disagree.

The following additional facts, as found by the habeas court, are relevant to this claim. Although the petitioner did not testify at his underlying criminal trial, he did testify during the habeas trial. During his testimony, the petitioner stated that, after getting out of work on the evening of the shooting, he took the Taurus to his uncle's garage for repair. He then picked up his girlfriend, Takena Jennings, and went to a nearby McDonald's restaurant.⁴ From there, they drove back to the house they shared with Hostos. The petitioner testified that Hostos arrived at the house around midnight. Thereafter, claimed the petitioner, while he and Hostos were playing video games, he received a phone call from Walker. In the call, Walker asked the petitioner if he could borrow the Taurus for the purpose of going out to a club. The petitioner agreed and left Hostos to go outside to give Walker the keys to the Taurus. After he did so, the petitioner claims that he returned inside the house and went directly to bed with Jennings.

The habeas court found that Butler had attempted, through his investigator, to contact Hostos. The investigator made numerous visits to Hostos' address, left business cards for him with requests that he call Butler, and even made numerous requests...