Mercado v. Comm'r of Corr.

183 Conn.App. 556

193 A.3d 671

Marcos MERCADO

v.COMMISSIONER OF CORRECTION

AC 39802

Appellate Court of Connecticut.

Argued March 20, 2018

Officially released July 24, 2018

Peter Tsimbidaros, for the appellant (petitioner).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Kelli A. Masi, senior assistant state's attorney, for the appellee (respondent).

Alvord, Keller and Prescott, Js.

ALVORD, J.

The petitioner, Marcos Mercado, appeals from 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 habeas court abused its discretion in denying his petition for certification to appeal and improperly rejected his claim that his trial counsel rendered ineffective assistance. Specifically, the petitioner claims that his trial counsel rendered ineffective assistance by failing: (1) to take appropriate measures at trial to preclude the introduction of evidence of the petitioner's prior commission of crimes; (2) to take appropriate measures to preclude, or failing to call an expert to challenge, the state's introduction of firearms and ballistics evidence; and (3) to adequately preserve an issue for appellate review. We conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal. Accordingly, we dismiss the appeal.

The following facts, as set forth by this court on the petitioner's direct appeal, are relevant to our resolution of the petitioner's claims. "On December 26, 2007, the Southington police went to the apartment of the victim, Thomas Szadkowski, at 81 Academy Street to check on his welfare, as he had not reported to work that day. The police found the victim in his kitchen, lying dead of a gunshot wound. During their search of the victim's apartment, the Southington and state police observed a number of open windows on the screen of the victim's computer. One window depicted an America Online instant message exchange between the [petitioner] and the victim, which took place between approximately 8:45 and 9:45 p.m. on December 24, 2007.

"The instant message screen revealed that the victim had invited the [petitioner] to his apartment. Another open screen displayed the [petitioner's] photograph and profile. The [petitioner] accepted the invitation and drove to the victim's apartment. After the [petitioner] and the victim engaged in a sexual act, the [petitioner] retrieved a gun from his motor vehicle, returned to the victim's apartment and shot him. When he left the apartment, the [petitioner] took the victim's Xbox 360 game console (Xbox). On December 26, 2007, the [petitioner] gave the Xbox to a former girlfriend, Laurel Brooks, as a gift for her younger brother. The [petitioner] was arrested at his home in New Britain on December 30, 2007. He subsequently signed a written statement and confessed, during a videotaped interview, to having shot the victim.¹ " (Footnote in original.) State v. Mercado , 139 Conn. App. 99, 100–101, 54 A.3d 633, cert. denied, 307 Conn. 943, 56 A.3d 951 (2012).

The court appointed Attorneys Christopher D. Eddy and Kenneth W. Simon to represent the petitioner. In a substitute long form information, the state charged the petitioner with murder in violation of General Statutes § 53a-54a, felony murder in violation of General Statutes § 53a-54c, and robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). After a trial, the jury found the petitioner guilty of all three counts. The trial court, Espinosa, J. , merged the felony murder conviction into the murder conviction and sentenced the petitioner to a total effective sentence of seventy years incarceration on the murder and robbery charges. The petitioner appealed from the judgment of conviction, which this court affirmed. See id., at 100, 107, 54 A.3d 633. The petitioner then petitioned for certification to our Supreme Court, which that court denied. State v. Mercado , 307 Conn. 943, 56 A.3d 951 (2012).

On March 3, 2016, the petitioner filed a third amended petition for a writ of habeas corpus, in which he alleged the ineffective assistance of his trial counsel. Specifically, as summarized by the habeas court in its memorandum of decision, the petitioner claimed that his trial counsel provided him with ineffective assistance by "failing to object, exclude, or move to limit the use of testimony elicited from the petitioner on cross-examination and from Laurel Brooks, in the state's rebuttal, regarding whether the petitioner had acknowledged to Brooks having committed robberies in the past ... failing to object, exclude, or move to limit the use of evidence pertaining to the petitioner's possession of a .223 caliber [AR-15] Bushmaster assault rifle seized incident to his arrest ... failing to present testimony from a firearms expert to prove that [the] Bushmaster rifle was not the murder weapon; and ... failing to investigate adequately the possibility that Richard Diaz was the real culprit."²

A trial commenced before the habeas court, Sferrazza, J. , on October 3, 2016. The court heard testimony from Lieutenant Joseph Rainone, a Waterbury police officer who testified at the petitioner's criminal trial as a firearms expert for the state; Dr. Albert Harper, a firearms expert; Attorneys Eddy and Simon; Diaz; Carmen Baez, an investigator for the Office of the Public Defender; Attorney Sebastian DeSantis, a Connecticut criminal defense attorney; and the petitioner.

After trial, in a written memorandum of decision dated October 13, 2016, the habeas court denied the petition for a writ of habeas corpus. The court determined that the petitioner had failed to establish that trial counsel's claimed errors prejudiced him. The petitioner then filed a petition for certification to appeal, which the habeas court denied. This appeal followed.

"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 habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). First, [the petitioner] must demonstrate that the denial of his petition for certification constituted an abuse of discretion.... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits.... A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason ... [the] court could resolve the issues [in a different manner] ... or ... the questions are adequate to deserve encouragement to proceed further.... In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous."

(Internal quotation marks omitted.) Brown v. Commissioner of Correction , 179 Conn. App. 358, 364, 179 A.3d 794, cert. denied, 328 Conn. 919, 181 A.3d 91 (2018).

"We examine the petitioner's underlying claim[s] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary." (Internal quotation marks omitted.) Parrott v. Commissioner of Correction , 107 Conn. App. 234, 236, 944 A.2d 437, cert. denied, 288 Conn. 912, 954 A.2d 184 (2008).

"In order to establish an ineffective assistance of counsel claim a petitioner must meet the two-pronged test enunciated in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, the claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.... 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." (Citation omitted; internal quotation marks omitted.) Hall v. Commissioner of Correction , 152 Conn. App. 601, 608, 99 A.3d 1200, cert. denied, 314 Conn. 950, 103 A.3d 979 (2014). "[A] court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim." (Internal quotation marks omitted.) Parrott v. Commissioner of Correction , supra, 107 Conn. App. at 237, 944 A.2d 437.

The petitioner contends on appeal that the habeas court abused its discretion in denying his petition for certification to appeal because his trial counsel rendered ineffective assistance in three respects. He first claims that trial counsel was ineffective in "failing to take appropriate measures to preclude the admission of the highly prejudicial evidence of Mr. Mercado's prior commission of crimes." Specifically, he argues that trial counsel "did not adequately object" when the state elicited testimony from the petitioner at his criminal trial regarding statements he allegedly made to Brooks about committing crimes in the past,³ and ...