Love v. Comm'r of Corr.

308 A.3d 1040

223 Conn.App. 658

Jamie LOVE

v.COMMISSIONER OF CORRECTION

(AC 45738)

Appellate Court of Connecticut.

Argued September 18, 2023

Officially Released February 6, 2024

J. Christopher Llinas, for the appellant (petitioner).

Linda F. Rubertone, senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Marc G. Ramia, senior assistant state’s attorney, for the appellee (respondent).

Elgo, Suarez and Seeley, Js.

SEELEY, J.

₆₅₉Following the granting of his petition for certification to appeal, the petitioner, Jamie Love, appeals from the judgment of the habeas court denying ₆₆₀his amended petition for a writ of habeas corpus, in which he alleged a claim of ineffective assistance of trial counsel. On appeal, the petitioner claims that the habeas court improperly concluded that his trial counsel’s failure to consult with and retain an eyewitness identification expert for assistance and testimony at the petitioner’s pretrial suppression hearing and at his criminal trial did not constitute deficient performance that prejudiced the petitioner. We disagree with the petitioner and, accordingly, affirm the judgment of the habeas court.

The following facts, as found in the record and set forth by the habeas court in its memorandum of decision, and procedural history are relevant to this appeal. "On September 4, 2015, Waterbury police [were] dispatched to 262 Hill Street regarding a shooting. Police officers … respond[ed] to that location and identified one or two witnesses [who] had been involved or had witnessed a shooting. Police officers simultaneously also went to St. Mary’s Hospital where they [met with] the [victim] in this case … William Compress [victim]. He … indicate[d] [that] he was shot in the leg by a Black male, approximately [five feet, ten inches tall], wearing a white T-shirt. [The shooter] was also with another individual later identified as Aaron Velez, who is a codefendant….

"When police officers [met] with … [the victim], he … indicate[d] that there was a verbal altercation between himself and … Velez. … Velez … instruct[ed] the [shooter], later identified as [the petitioner], to shoot [the victim], which he did, in fact, do at the time." (Internal quotation marks omitted.)

On the basis of information obtained from witnesses at the scene, as well as information from a confidential informant, the officers "were able to develop a name, ₆₆₁specifically, Jamie Love, They … compare[d] an inhouse booking photo[graph] to the surveillance video [that] was recovered at the scene and, based upon that information … present[ed] a photographic] lineup to two separate witnesses, one being the victim in this case … and also Placido Rivera, who was present during the altercation. Both [the victim] and … Rivera identified [the petitioner] as the [man] who [shot] the victim in this case." (Internal quotation marks omitted.)

The petitioner subsequently was charged with assault in the first degree in violation of General Statutes § 53a-59, conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59, unlawful discharge of a firearm in violation of General Statutes § 53-203, criminal use of a firearm in violation of General Statutes § 53a-216, and carrying a pistol without a permit in violation of General Statutes (Rev. to 2015) § 29-35. The petitioner initially had obtained private counsel, Peter G. Billings, to represent him. On October 21, 2016, Billings submitted a motion to withdraw on the ground that, "[i]n order to provide the effective assistance of counsel, undersigned counsel believes it is absolutely necessary to retain an eyewitness identification expert to act as a consultant and testify at the upcoming trial. … [T]he [petitioner] does not have sufficient funds to retain the necessary expert. … Consequently, undersigned counsel does not believe he can provide the effective assistance of counsel as required by the state and federal constitutions or uphold his ethical obligations to the [petitioner] under these circumstances." The trial court, Fasano, J., granted Billings’ motion to withdraw on December 21, 2016, and appointed the Office of the Public Defender to represent the petitioner. Subsequently, TaShun Bowden-Lewis, a senior assistant public defender (trial counsel), filed an appearance on behalf of the petitioner.

₆₆₂According to the habeas court, trial counsel "received … Billings’ case materials and received discovery from the state, which included … [surveillance] videos. [Trial counsel] noted that … Billings had used an investigator and that the videos had been enhanced to allow for [a] side-by-side comparison of the shooter and the petitioner. [Trial counsel] explained that the … description [of the shooter] … and the petitioner’s appearance were quite similar, including several distinct facial features. [Trial counsel] additionally conducted her own research but did not consult with an eyewitness identification expert. [Trial counsel] explained to the petitioner her reasons for not consulting with such an expert.

"The petitioner discussed with [trial counsel] the efforts by … Billings directed toward obtaining an expert [on] eyewitness identification. The petitioner, who is Black, described the eyewitness to the shooting (i.e., Rivera) as being Hispanic and the victim (i.e., Compress) as being white. The petitioner stated that [trial counsel] discredited anything … Billings had said about an eyewitness identification expert; instead, [trial counsel] said that the eyewitnesses had identified him."

Before trial began, trial counsel "challenged the photo[graphic] identification procedures with a motion to suppress.¹ [Trial] [c]ounsel considered using an expert ₆₆₃on eyewitness identification but concluded that an expert would not assist her arguments. The motion to suppress was argued after the jury had been selected and the matter was ready to proceed to trial. [At the suppression hearing], [a]fter both [Rivera] and the victim testified² and identified the petitioner as the shooter, which was consistent with [their identifications of] the petitioner from their respective photo[graphic] arrays, the court took a recess before issuing its ruling." (Footnotes added.) During the recess, the petitioner asked his trial counsel if a plea offer that previously had been made by the state was still available. Trial counsel then approached the prosecutor, who was amenable to the plea offer.

[1] After the recess, the court, Crawford, J., ruled on the petitioner’s motion to suppress the identifications and denied the motion to suppress. Later that same day, trial counsel informed the court, Fasano, J., that the petitioner wanted to accept the state’s plea offer. The petitioner then pleaded guilty, pursuant to the Alford doctrine,³ to assault in the first degree and carrying a pistol without a permit. The state recommended a sentence of eight years to serve, five years of which ₆₆₄was a mandatory minimum, with ten years of special parole, for a total effective sentence of eight years to serve and ten years of special parole. The court canvassed the petitioner and found that his guilty plea was "voluntary and understandingly made with the assistance of competent counsel." The court found that there was a factual basis for the plea and accepted it. The court scheduled the sentencing hearing for January 31, 2018.

The petitioner subsequently regretted his decision to plead guilty. Prior to his sentencing hearing, the petitioner wrote letters to his trial counsel, the prosecutor, and the court asking for help in revoking his plea because he did not believe he had been provided with effective assistance of counsel. In the letters, he complained that his trial counsel had not sufficiently communicated with him and had not provided him with materials obtained during discovery. At sentencing, the petitioner addressed the court and requested that he be permitted to vacate his plea on the basis of ineffective assistance of counsel. The court informed the petitioner that, although ineffective assistance of counsel could be the basis of a habeas petition, it was not a basis for withdrawing his guilty plea. Before the court imposed the agreed upon sentence, the petitioner stated, "I definitely want to take my plea back. I was wrongly accused. She did nothing to represent me." The court then, having previously accepted the petitioner’s plea, imposed the agreed upon sentence.

Subsequently, the petitioner filed the operative amended habeas petition on June 16, 2021. The petitioner alleged, inter alia, that his trial counsel rendered ineffective assistance because she failed to procure an eyewitness identification expert to aid in the petitioner’s defense. Specifically, he alleged that trial counsel’s representation was ineffective "in that she failed to ₆₆₅consult with and engage an expert in the field of eyewitness identification regarding the strengths and weaknesses of the state’s alleged eyewitnesses, and to offer expert testimony regarding the same at the hearing on the motion to suppress … as well as at trial …." The petitioner also claimed that, but for trial counsel’s deficient performance, he "would not have pleaded guilty and would have insisted on continuing with the trial for which the jury already had been selected …."

On March 16, 2022, the habeas court, M. Murphy, J., held a one day trial on the amended habeas petition, at which the petitioner testified and presented testimony from his trial counsel; Dr. John Bulevich, an expert in human memory and psychology; and Attorney Christopher Duby, an expert in criminal law.

The habeas court summarized the testimony presented by the petitioner and trial counsel as follows. The petitioner testified that "he felt pressured by [trial counsel] to accept the plea and not proceed to trial. The petitioner testified that, after the discussion with [trial counsel] during the recess following...