Thompson v. Comm'r of Corr.

184 Conn.App. 215

194 A.3d 831

Robert E. THOMPSON

v.COMMISSIONER OF CORRECTION

AC 39945

Appellate Court of Connecticut.

Argued April 9, 2018

Officially released August 14, 2018

Mary A. Beattie, assigned counsel, for the appellant (petitioner).

Linda Currie-Zeffiro, assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Adrienne Russo, deputy assistant state's attorney, for the appellee (respondent).

Prescott, Elgo and Blawie, Js.

BLAWIE, J.

The petitioner, Robert E. Thompson, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that he failed to prove, by a preponderance of the evidence, that his trial counsel rendered deficient performance because he failed to move for a mistrial or to seek any curative measures following prejudicial testimony from the complainant. We disagree and, accordingly, affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of this appeal.¹ The petitioner was charged with accosting a woman that he had approached on a New Haven street, and luring her to a residence under the guise of joining a local church group. Following a jury trial, the petitioner was convicted of kidnapping in the first degree in violation of General Statutes § 53a-92, sexual assault in the first degree in violation of General Statutes § 53a-70, assault in the third degree in violation of General Statutes § 53a-61, and threatening in the second degree in violation of General Statutes § 53a-62. Attorney Tejas Bhatt represented the petitioner at his criminal trial. Bhatt's assessment was that the outcome of the case hinged on the credibility of the complainant, whom the state called to testify at the criminal trial. During the direct examination of the complainant, the following exchange occurred:

"[The Prosecutor]: What led him—what—what happened when he hit you? What led him to hit you?

"[The Complainant]: He told me to take my clothes off....

"[The Prosecutor]: Did you—were you telling him no?

"[The Complainant]: Yes.

"[The Prosecutor]: And what did you—what else did you say to him?

"[The Complainant]: I asked him, why you doing this to me, and he said, I'm not the first person—

"[Bhatt]: Objection.

"[The Complainant]: He done this—

"The Court: Hold on. Hold on.

"[The Complainant]: To.

"The Court: Hold on. Hold on.

"[Bhatt]: Objection.

"The Court: What's the objection? She's in the middle of an answer.

"[Bhatt]: That is—if I—may the jury be excused? This is an area we discussed previously."

The jury was excused and the state made an offer of proof, during which the complainant testified that the petitioner said that she was "not the first person he ever did this to." Bhatt objected to the admission of this testimony, arguing that "[t]he only purpose for offering [the statement], is to show that the [petitioner] had a propensity to commit this crime.... [I]t's the [petitioner's] statement, sure, but I think there's still—the court still has to do [an analysis pursuant to § 4-3 of the Connecticut Code of Evidence ] of the [probative] value being out—outweighed by—the prejudicial impact ...."

The court sustained Bhatt's objection and found that the prejudicial impact of the statement outweighed its probative value.² Before resuming testimony, the following colloquy ensued:

"The Court: Is there anything else on this point?

"[Bhatt]: No, I believe that—I'm assuming the court would—I believe she started her response and—

"The Court: Well, no, she got maybe two words out that—

"[Bhatt]: Okay. Okay.

"The Court: Quite frankly, I didn't even understand, and I don't mean to be—in other words, so I'm—the court is very confident, Attorney Bhatt, that the jury did not hear anything and you stood up right away ....

"[Bhatt]: Yes, Your Honor ."³ (Emphasis added.)

The jury subsequently returned a guilty verdict and the court, B. Fischer, J. , sentenced the petitioner to forty-five years of incarceration, execution suspended after thirty-five years, and ten years of probation. This court affirmed the petitioner's conviction on direct appeal. See State v. Thompson , 146 Conn. App. 249, 76 A.3d 273, cert. denied, 310 Conn. 956, 81 A.3d 1182 (2013).

On July 22, 2016, the petitioner filed an amended petition for a writ of habeas corpus claiming that Bhatt rendered ineffective assistance of counsel by (1) improperly advising the petitioner of a plea offer, (2) failing to move for a mistrial or to seek a curative instruction following prejudicial testimony from the complainant, (3) inadequately preparing a defense, (4) inadequately examining and cross-examining witnesses, (5) inadequately preparing for sentencing, and (6) failing to preserve the petitioner's access to sentence review.⁴

The case was tried to the habeas court, Sferrazza, J. , on August 22, 2016. The petitioner, Bhatt, and Gary Mastronardi, a criminal trial expert, testified during the habeas trial. Bhatt testified that the trial court sustained his objection to the complainant's testimony because the statement was "far too prejudicial to allow." Bhatt explained that when he attempted to raise with the trial court the issue that the witness had uttered the prejudicial statement, the trial court "cuts [him] off; and [the court] says, no. Nobody heard anything.... [The court] says, I've ruled. Nobody heard anything. There's nothing to strike." Bhatt was never questioned at the habeas trial regarding why he did not move for a mistrial or seek any curative measures in light of the court's finding that the testimony was more prejudicial than probative.

Mastronardi then offered his opinion that what Bhatt should have done following the prejudicial testimony "depends on whether or not what was said was audible" to the jury. He explained that, if the statement was audible to the jury, "after the judge said that he did not think that it was audible, what [Bhatt] should have done was insist that the transcript be played so that—to give the trial judge another opportunity to listen.... Once it was played and if there was—if it was clear that—that the statement was, in fact, audible, trial counsel had to move for a mistrial, without a doubt, and should have pressed that motion strenuously," especially because the trial court found that the statement was more prejudicial than probative. Mastronardi testified that, in the alternative, "if [Bhatt] was unsuccessful [in moving for a mistrial], then the second move, the fallback position, should have been a motion to strike and a request for some type of special instruction to the jury to ignore [the testimony]." Mastronardi concluded that, in his opinion, "under the Strickland standard, any reasonable lawyer would have definitely moved for a mistrial in that type of situation, especially after the judge ... specifically said that it was too prejudicial."

Following the habeas trial, the court denied the petitioner's amended petition for a writ of habeas corpus. With respect to the claim that Bhatt rendered ineffective assistance regarding his handling of the prejudicial testimony, the habeas court agreed with the trial court's finding that "the offending testimony was incomprehensible because of the prompt intervention by Attorney Bhatt." The court continued that "[a]pparently, the court monitor was, at some level, able to isolate the [complainant's] words from the other speaker's, but this court could not. Given the definitive tone of Judge Fischer's opinion on the matter, Attorney Bhatt cannot be faulted for accepting that determination without confronting the judicial authority further on that issue." The court concluded that "the petitioner has failed to prove, by a preponderance of the evidence, this allegation of defective representation." The petitioner then filed a timely petition for certification to appeal, which the court granted on November 21, 2016. This appeal followed.

On appeal, the petitioner challenges the habeas court's conclusion that he failed to prove that Bhatt rendered deficient performance by failing to move for a mistrial or to seek a curative measure following the complainant's prejudicial testimony. Specifically, the petitioner argues that any reasonable attorney would have moved for a mistrial in a similar situation, especially because the trial court found that the testimony was more prejudicial than probative. The petitioner further argues that he suffered actual prejudice as a result of Bhatt's deficient performance. We disagree with the petitioner's claim regarding deficient performance.

"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.) Stanley v. Commissioner of Correction , 67 Conn. App. 357, 359, 786 A.2d 1249 (2001), cert. denied, 259 Conn. 922, 792 A.2d 855, cert. denied sub nom. Stanley v. Armstrong , 537 U.S. 838, 123 S.Ct. 155, 154 L.Ed. 2d 59 (2002). "[A] finding of fact is clearly erroneous [if] there is no evidence in the record to support it ... or [if] although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Gould v. Commissioner of Correction , 159 Conn. App. 860, 869, 123 A.3d 1259, cert. denied, 319 Conn. 957, 125 A.3d 1012 (2015).

"A criminal defendant's right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendment to the United States constitution and by article first, § 8, of the...