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Ayala v. Comm'r of Corr.

Appellate Court of Connecticut

September 8, 2015

VICTOR AYALA
v.
COMMISSIONER OF CORRECTION

Argued April 6, 2015

Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Sferrazza, J.; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court.

SYLLABUS

Convicted of various crimes, including two counts of burglary in connection with his unlawful entry into the apartment of the victim and her husband, the petitioner sought a writ of habeas corpus, claiming that his trial counsel had provided ineffective assistance in failing to present the testimony of two witnesses, F and G, whom the petitioner claimed would have provided evidence that he resided at the apartment, thus negating the element of unlawful entry in both burglary counts. After the petitioner's arrest, the victim and her husband gave the police signed statements recanting their allegations against the petitioner, but testified at his criminal trial that they signed the statements due to pressure from the petitioner's girlfriend. The habeas court rendered judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court. Held that the habeas court properly concluded that the petitioner was not prejudiced by his trial counsel's failure to present the testimony of F and G because it was not reasonably probable that the result of the petitioner's criminal trial would have been different had they testified: the differences between the testimony of F and G in the habeas trial and that of the victim and her husband in the criminal trial were minor and largely reconcilable, neither F nor G would have established that the petitioner had the right to be on the premises at the time of the burglaries, the habeas court did not explicitly find the testimony of F and G credible, and the state's case was fairly strong, as the victim and her husband knew the petitioner, called the police, identified him and testified against him in the criminal trial; moreover, there was evidence that the petitioner had lied to the police and tried to disguise his appearance at the time of his arrest, and the jury believed the testimony of the victim and her husband, who were cross-examined extensively about their drug use, criminal activity and their recantation of the original written statements they had given to the police that implicated the petitioner in the burglaries.

Steven B. Rasile, assigned counsel, for the appellant (petitioner).

Lisa Herskowitz, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Rebecca A. Barry, assistant state's attorney, for the appellee (respondent).

Lavine, Beach and Pellegrino, Js.

OPINION

Page 448

[159 Conn.App. 609] BEACH, J.

The petitioner, Victor Ayala, appeals from the judgment of the habeas court denying his petition for habeas corpus relief. On appeal, the petitioner claims that the habeas court erred in not finding that his trial counsel provided ineffective assistance by failing to investigate and present the testimony of two witnesses. We affirm the judgment of the habeas court.

The facts regarding the petitioner's underlying conviction, as recited by this court on direct appeal, are as follows: " On November 4, 2007, the [petitioner] twice visited the apartment of the victim [Terry Weaver] and her husband [Christopher Weaver]. On the first occasion, the [petitioner] knocked on the door and the victim allowed him to enter and search her residence for his girlfriend [Marilyn Lozada, also known as Chena]. Later that night, the [petitioner] returned to the [Weavers'] residence and, unbeknownst to [the victim], waited outside, hidden from the view of the door's peephole, until the victim opened the door to get some air. When she opened the door, the [petitioner] pushed his way into the apartment and stuck what she described as a black handgun into her stomach, threatened to kill her and inquired about the whereabouts of his girlfriend. The victim informed the [petitioner] that his girlfriend was not at her residence, at which time the [petitioner] pushed her and demanded that she sit on the couch. [159 Conn.App. 610] The [petitioner] then searched the residence for his girlfriend, and when he was unable to find her, he left the residence.

" The victim then called the police to report the incident. Special weapons and tactical unit members responded to the call and searched the [Weavers'] residence. Local patrol officers also arrived on the scene and questioned the victim about the [petitioner]. She provided the officers with the [petitioner's] name and his physical description. The victim also dictated and signed a statement for the police regarding the incident. The police then searched the vicinity for the [petitioner]. After locating him, they conducted a one-on-one identification [procedure] whereby the victim was asked to look at the [petitioner] and determine if he was the person who committed the alleged crimes at her residence. The victim positively identified the [petitioner] as the individual who had entered her residence [in the early hours of] that morning.

" The [petitioner] subsequently was arrested and charged in a six count information with burglary in the second degree with a firearm in violation of [General Statutes] § 53a-102a (a), burglary in the first degree in violation of [General Statutes] § 53a-101 (a) (3), kidnapping in the second degree with a firearm in violation of [General Statutes] § 53a-94a (a), threatening in the second degree in violation of [General Statutes] § 53a-62 (a) (1) and interfering with an officer in violation of [General Statutes] § 53a-167a (a). After the [petitioner's] arrest, the victim and her husband signed statements recanting their allegations against the [petitioner]. When questioned at trial, however, they testified that they signed those statements due to pressure from the ...


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