Spearman v. Comm'r of Corr.

164 Conn.App. 530

138 A.3d 378

Rufus SPEARMAN

v.COMMISSIONER OF CORRECTION.

No. 35974.

Appellate Court of Connecticut.

Argued Sept. 24, 2015.

Decided April 19, 2016.

James B. Streeto, senior assistant public defender, for the appellant (petitioner).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and David Clifton, deputy assistant state's attorney, for the appellee (respondent).

ALVORD, SHELDON and BEAR, Js.

BEAR, J.

The petitioner, Rufus Spearman, appeals 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 erred (1) in not finding that his trial counsel provided ineffective assistance, as set forth in count three of his petition, by failing to call several available alibi witnesses during the petitioner's criminal trial and (2) by sustaining certain evidentiary objections by the respondent, the Commissioner of Correction (commissioner), which led to the court's granting of the commissioner's motion to dismiss counts one and two of the petition for failure to make out a prima facie case. We disagree and, accordingly, affirm the judgment of the habeas court.

As recited by this court on direct appeal, the facts which the jury reasonably could have found concerning the petitioner's underlying conviction are as follows: “On the morning of October 23, 1996, a fire occurred at a three family home located at 16 Clover Place in New Haven as a result of arson. Earlier that morning, Katherine Hutchings was walking to a store and witnessed the [petitioner] with Terrance Newton walking toward the area located between 16 and 18 Clover Place. The two men were carrying a large object with a handle that resembled a bucket or jug. Hutchings called out to the [petitioner] and Newton as they went toward the back of the houses to ask them why they were up so early. She continued walking when they did not respond.

“While walking home from the store, Hutchings heard a ‘big boom,’ and when she turned the corner she saw that the house at 16 Clover Place was on fire. She also saw the [petitioner] and Newton on Clover Place running toward Truman Street. Newton was wearing a coat that was on fire. Hutchings saw Newton drop the coat onto the ground as he ran.

“Edith Hunter, who lived at 18 Clover Place, also heard a loud sound that she described as ‘a big boom.’ Hunter ran to her front porch and saw Newton stumbling and running from the porch of the house that was on fire wearing or carrying a smoldering coat. Although Hunter did not see the [petitioner] running from the house ...¹ she saw the [petitioner] on Clover Place after the fire started, but before the fire department arrived.

“At approximately 7:45 a.m., Napoleon Gunn, an off-duty firefighter, noticed smoke coming from 16 Clover Place. Gunn shouted to a passerby to call 911 as he attempted to enter the burning house. The New Haven fire department responded to the fire immediately. There was a tremendous volume of fire, which began to ignite ... Hunter's home next door. Lieutenant James Robinson testified that the volume of the fire in such a short period of time indicated that it was the work of an arsonist.

“Lieutenant Thomas Heinz and two firefighters went into the burning house equipped with bottled oxygen and air masks. Heinz testified that even through his oxygen mask, he could detect a strong odor of gasoline in the house. The men made their way up to the third floor where a firefighter fell through the floor that had been weakened by the fire. He was trapped momentarily until the other firefighters eventually pulled him from the hole in the floor. The firefighters then were forced to retreat from the third floor. Heinz also testified that the use of an accelerant like gasoline increases the risk posed to firefighters because it accelerates the rate of burn, causes floors to weaken more quickly when poured onto them, and causes the flames to explode and flare when hit with water.

“New Haven Fire Marshal Frank Dellamura also responded to the fire. He discovered four or five areas in 16 Clover Place where gasoline had been poured but did not ignite. Additionally, in three rooms on the first floor, Dellamura found six or seven plastic milk containers that were partially melted with scorch marks near each of them. Dellamura opined that the fire was the result of an arsonist who had attempted to cause an explosion and to burn the house down. Dellamura also opined that because the fire originated in several areas, it must have been set by more than one person.

“The [petitioner] was charged by information with arson in the first degree and conspiracy to commit arson in the first degree. The [petitioner] and Newton were tried together. The [petitioner] moved for a judgment of acquittal at the end of the state's case. The motion was denied, and the [petitioner] was subsequently convicted.” (Footnote added.) State v. Spearman, 58 Conn.App. 467, 468–70, 754 A.2d 802 (2000). On appeal, this court affirmed the judgment of conviction. Id., at 480, 754 A.2d 802.

In his amended three count petition for a writ of habeas corpus filed July 19, 2010,² the petitioner claimed in count one that the state had violated his constitutional right to due process by failing to disclose evidence concerning the relationship of the state's witness, Hutchings, to the police. In count two, the petitioner claimed in the alternative that his trial counsel, Michael Dolan, had rendered ineffective assistance by failing to obtain that information concerning Hutchings' relationship with the police that could have been used to impeach her credibility. In count three, the petitioner asserted that Dolan had rendered ineffective assistance by failing to present a viable alibi defense.

The petitioner's habeas trial began on October 1, 2010, at which time the habeas court, T. Santos, J., heard the testimony of Dolan, the petitioner's uncles, Jashon Spearman (Jashon), and Stacey Spearman (Stacey), and the petitioner's cousin, Shane Hawkins. The trial was continued several times, with the testimony of the petitioner being heard on June 22, 2012, and it concluded with the testimony of the petitioner's cousin, Yvalesse³ Nelson (Yvalesse), formerly Yvalesse Spearman, on July 10, 2012. Numerous exhibits were received into evidence, including transcripts from the petitioner's criminal trial, reports completed by the officials who had investigated the fire, and photographs of the front and side of the residential building known as 11 and 15 Clover Place.

Following the presentation of the petitioner's case, the commissioner made an oral motion to dismiss counts one and two pursuant to Practice Book § 15–8, which the court granted. With respect to the third count alleging ineffective assistance of counsel for Dolan's failure to present an alibi defense, the court, in its memorandum of decision filed June 4, 2013, held that the petitioner had failed to satisfy either prong of the Strickland⁴ test, and thus denied the habeas petition. 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 discussed as necessary.

I

The petitioner's first claim on appeal is that the habeas court erred in concluding that Dolan did not render ineffective assistance of counsel despite his failure to call several available alibi witnesses whom he believed to be credible.

We begin with the standard of review applicable to this claim. “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.) Gaines v. Commissioner of Correction, 306 Conn. 664, 677, 51 A.3d 948 (2012).

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings.... 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, [466 U.S. 668, 686, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], [our Supreme 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.... The claim will succeed only if both prongs are satisfied.” (Citations omitted; 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

To prove his or her entitlement to relief pursuant to Strickland, a petitioner must first satisfy what the courts refer to as the performance prong; this requires that the petitioner demonstrate that his or her counsel's assistance was, in fact, ineffective in that counsel's performance was deficient. “To establish that there was deficient performance by petitioner's counsel, the petitioner must show that counsel's representation fell below an objective standard of reasonableness.... A reviewing court must view counsel's conduct with a strong presumption that it falls within the wide range of reasonable professional assistance.... The range of competence demanded is reasonably competent, or within the range of competence...