Argued May 12, 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, Kwak, J.; judgment denying the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court.
The petitioner, who had been convicted of murder and conspiracy to commit murder in connection with the shooting death of the victim, sought a writ of habeas corpus, claiming that his trial counsel provided ineffective assistance. The petitioner alleged that his counsel failed to adequately investigate his case because counsel did not cross-examine certain witnesses about their expectations regarding a reward offered by the state, counsel did not cross-examine and a certain witness, O, about a statement that O had provided to the police and later recanted that inculpated the petitioner in the shooting, and counsel allegedly conceded during closing argument that the petitioner was involved in the crime. The petitioner's conviction stemmed from an incident in which a group of people, including the petitioner, followed the victim as he walked to his car, where at least one of the pursuers fired a handgun at the victim, who later died from multiple gunshot wounds. The petitioner and Z were subsequently arrested and charged with the victim's murder. They were tried separately, with Z's trial preceding the petitioner's trial. After the petitioner was convicted, he appealed to the Supreme Court, which affirmed the judgment. The petitioner then filed the present petition for a writ of habeas corpus. Following a trial, the habeas court rendered judgment denying the petition and, thereafter, denied the petition for certification to appeal, and the petitioner appealed to this court. Held :
1. The habeas court did not abuse its discretion in denying the petition for certification to appeal with respect to the petitioner's claim that his trial counsel had provided ineffective assistance by failing to adequately investigate the state's offer of a reward and the prior testimony of certain witnesses at Z's trial: although the petitioner raised a meritorious claim that his trial counsel provided ineffective assistance by relying solely on the representations and opinions of Z's trial counsel regarding what evidence from Z's trial would be important for the petitioner's defense instead of making an informed and independent assessment by attending Z's trial and reviewing all the transcripts from that trial, the habeas court properly found that the petitioner failed to demonstrate that he was prejudiced by his trial counsel's deficient investigation of his case, as the petitioner did not offer any evidence of how the result of his trial would have been different had his trial counsel properly investigated his case; accordingly, the petitioner could not establish that his claim of ineffective assistance of counsel was debatable among jurists of reason, that a court could resolve it in a different manner, or that it was adequate to deserve encouragement to proceed further.
2. The petitioner could not prevail on his claim that the habeas court improperly denied his claim that his trial counsel had provided ineffective assistance by failing to cross-examine certain witnesses about their expectations regarding the reward and O about his recantation of his statement to the police inculpating the petitioner in the shooting; on the basis of testimony from the petitioner's trial counsel and the prosecutor who tried both the petitioner's and Z's cases that had trial counsel cross-examined these witnesses, the prosecutor would have introduced harmful rehabilitation evidence that would have negated any potential benefits of the cross-examinations, the habeas court properly found that trial counsel made an informed, strategic decision not to cross-examine the witnesses about the reward and O's recantation, and this court would not second-guess counsel's trial strategy.
3. The habeas court did not abuse its discretion in denying the petition for certification to appeal with respect to the petitioner's claim that his trial counsel provided ineffective assistance by allegedly conceding during closing argument that the petitioner was involved in the victim's murder: although the petitioner claimed that his trial counsel's use of the phrase " intimately involved" conceded that the petitioner was involved in the subject crime, the habeas court found credible trial counsel's testimony that the statement was consistent with his defense strategy to establish that the petitioner was present at the crime scene, but that he did not participate in the crime; accordingly, trial counsel's statement constituted an informed, strategic decision, and his performance during closing argument did not fall below an objective standard of reasonableness.
Mark M. Rembish, assigned counsel, for the appellant (petitioner).
Linda Currie-Zeffiro, senior assistant state's attorney, with whom, on the brief, was John C. Smriga, state's attorney, for the appellee (respondent).
Lavine, Prescott and Elgo, Js.
[159 Conn.App. 539] PRESCOTT, J.
The petitioner, Orema Taft, appeals following the denial of his petition for certification to appeal 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 abused its discretion by denying his petition for certification to appeal, and improperly rejected his claims that his trial counsel provided ineffective assistance in three ways: (1) failing to adequately investigate the state's offer of a reward and the prior testimony of witnesses at the trial of his codefendant; (2) failing to cross-examine witnesses about a witness' recantation of a prior statement inculpating the petitioner, and about the state's offer of a reward; and (3) allegedly conceding during closing arguments that the petitioner was involved in the crime.  We agree with the petitioner that his claim that his trial counsel rendered deficient performance by failing to conduct an adequate investigation and
by relying solely on the opinion of an attorney representing a codefendant regarding the significance, or lack of significance, of evidence admitted at the trial of the codefendant, raises an issue that is debatable amongst jurists of reason. Nevertheless, on the basis of the record, we conclude that the habeas court did not abuse its discretion by denying the petition for certification to appeal with respect to this claim because the petitioner failed to demonstrate that a debatable issue concerning prejudice exists. As to the remainder of the petitioner's claims, we also conclude that that habeas court did not [159 Conn.App. 540] abuse its discretion by denying certification to appeal. Accordingly, we dismiss the appeal.
The following procedural history and facts, as found by the habeas court and as stated by our Supreme Court in State v. Taft, 306 Conn. 749, 51 A.3d 988 (2012), are relevant to this appeal. " On September 28, 2001, shortly before 3 a.m., the victim, Zoltan Kiss, was shot and killed in his car in the area of 1185 Pembroke Street in Bridgeport. Just prior to the shooting, the victim parked his car across from 1185 Pembroke Street, exited the vehicle, approached some individuals on the street to seek change for a $100 bill and, thereafter, approached a gate leading to an alley next to 1185 Pembroke Street (gate). Shortly thereafter, a group of people, including the [petitioner], exited from behind the gate and followed the victim as he returned to his car. When the victim reached his car, at least one of the pursuers, Miguel Zapata, began firing a handgun at the victim. Additionally, before the gunfire, one witness heard someone in the group say, 'Let's get this mother fucker.'" (Footnote omitted.) Id., 751-52.
Both Zapata and the petitioner were eventually arrested and charged with the victim's murder. Zapata and the petitioner were tried separately, with Zapata's trial occurring prior to the petitioner's trial. Zapata was represented by Attorney Frank O'Reilly during his criminal trial. The prosecutor for both criminal trials was C. Robert Satti, Jr. During the petitioner's trial, the state offered the testimony of five witnesses, in addition to that of the police officers and detectives. " [T]wo witnesses, A and B, testified that they had seen the [petitioner] in the area behind the gate with a number of other individuals [prior to the shooting]. A and B also testified that they had seen guns behind the gate [159 Conn.App. 541] where the [petitioner] and his companions were located. Both A and B recounted that they had seen the victim park his car across the street from the gate and approach the gate. A testified that she had seen the victim interact with someone behind the gate and then begin to return to his car. Shortly thereafter, A saw the group behind the gate chase after the victim, and A further recounted that she had seen both Zapata and the [petitioner] carrying guns as they pursued the victim to his car. B also testified that she had heard someone say, 'Let's get this mother fucker' before gunfire erupted. Both A and B then testified that they had heard shouting and gunfire, and had seen the muzzle flashes as the guns were fired at the victim.
" The state then presented the testimony of another witness, C, who, at the time of the shooting lived in a third floor apartment of a nearby building. C stated that, at approximately 2 or 3 a.m., on September 28, 2001, she had heard gunfire coming from the street located in front of her apartment. When she went to investigate
the noise, C saw four people--the [petitioner], Zapata, Luisa Bermudez and A--standing in front of the door of a car on the street. C further recounted that she had seen the muzzle flashes as the guns were fired at the victim, and she had heard the victim screaming. She also stated that, from her perspective, she could only see Zapata holding a gun and that, after the shooting stopped, the group ran from the scene." (Footnotes omitted.) Id., 753-54.
In addition to the testimony of A, B, and C, " the state presented testimony from several individuals who had had contact with the [petitioner] while the charges in the present case were pending. First, D testified that he was incarcerated in the same prison as the [petitioner], and that the [petitioner] had told him that he and Zapata had shot a 'dude' in a Honda seven times [159 Conn.App. 542] with a .45 caliber gun. D then recounted that the [petitioner] had told him that he and Zapata had chased after the victim because they wanted to take the victim's jewelry. Then, the state presented the testimony of [Germaine O'Grinc], who testified that, during one of his court appearances in connection with a felony charge, he was in the 'bullpen lockup' of the courthouse with the [petitioner] and Zapata. [O'Grinc] recounted that Zapata had told him that he was in court because he and the [petitioner] had shot a person in his car. [O'Grinc] further testified that the [petitioner] had confirmed or 'vouched for' Zapata's statements and had nodded in agreement while Zapata was talking to [O'Grinc]." (Footnote added.) Id., 755.
On September 19, 2007, following a jury trial, the petitioner was convicted of one count of murder in violation of General Statutes § 53a-54a (a) and one count of conspiracy to commit murder in violation of General Statutes § § 53a-48 (a) and 53a-54a (a). The trial court sentenced him to a total effective term of forty-five years incarceration. At all relevant times during the criminal trial court proceedings, the petitioner was represented by Attorney Erroll Skyers.
The petitioner filed a direct appeal from the judgment of conviction, raising, among other things, a claim of ineffective assistance of counsel resulting from his trial counsel's failure to cross-examine witnesses about the reward and his failure to cross-examine a witness about a prior recantation of a statement inculpating the petitioner. Id., 767-69. Our Supreme Court declined, however, to address the merits of the petitioner's ineffective assistance of counsel claim. Id., 769.
On July 8, 2010, the petitioner filed a petition for a writ of habeas corpus, asserting that he was denied his [159 Conn.App. 543] right to effective assistance of counsel. He amended his petition twice, with the second amended petition being filed on December 10, 2012. Following a habeas trial, the court issued its memorandum of decision on August 27, 2013, denying the petition in its entirety, and finding that the petitioner had failed to prove that he was denied effective assistance of counsel under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). On August 30, 2013, the petitioner filed a petition for ...