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Arthur v. Comm'r of Corr.

Appellate Court of Connecticut

January 26, 2016

JOHNNIE ARTHUR
v.
COMMISSIONER OF CORRECTION

         Argued October 13, 2015

Page 1268

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

          Affirmed.

          SYLLABUS

         The petitioner, who had been convicted of attempt to commit murder, assault in the first degree, criminal possession of a firearm and carrying a pistol or revolver without a permit, sought a writ of habeas corpus, claiming, inter alia, that his trial counsel had rendered ineffective assistance in addressing evidence related to certain cell phone records of the petitioner's girlfriend. The petitioner claimed that his counsel had failed to request a hearing to challenge the admissibility of the records, to object to testimony by a police detective that the records placed the petitioner at the scene of the shooting at issue, to properly cross-examine a witness who had testified about determining the location of cell phone users, and to present expert testimony to rebut the cell phone evidence. The habeas court rendered judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court.

         Held :

         1. The habeas court properly determined that the petitioner's trial counsel did not render ineffective assistance in handling the cell phone evidence:

         a. This court declined to review the petitioner's claim that his trial counsel rendered ineffective assistance in failing to investigate the limitations of cell phone evidence, the petitioner having failed to allege that claim in his petition for a writ of habeas corpus.

         b. The petitioner failed to prove that he was prejudiced by his trial counsel's failure to request a hearing on the use of the cell phone evidence to show the petitioner's movements on the night of the shooting, as the petitioner failed to establish that such a request would have had any merit or changed the outcome of his trial, and that evidence was not significant to the state's case.

         c. The petitioner failed to establish that his trial counsel rendered ineffective assistance by not objecting to the cell phone evidence on grounds other than relevancy or by inadequately cross-examining certain state's witnesses about that evidence, as it was not reasonably probable that additional or tactically different cross-examination would have changed the trial's result, the habeas court having credited trial counsel's testimony that the cell phone evidence was a " double-edged sword," that it did not add much evidentiary weight to the state's case, that more reliable evidence showed that the petitioner could have been using one of his girlfriend's cell phones at the time of the shooting, and that he was more concerned about more incriminating evidence that placed the petitioner at the shooting scene and a letter the petitioner had written in prison in which he essentially admitted that he had committed the crime.

         d. The decision by the petitioner's trial counsel not to call an expert witness regarding the cell phone evidence was not prejudicial, as a defense witness had interpreted that evidence in a manner that was consistent with the testimony of a state's witness, that evidence showed that the petitioner had been using a cell phone in an area that included the crime scene at the time of the shooting, and there was overwhelming evidence of the petitioner's guilt aside from the cell phone evidence that expert testimony would not have affected.

         2. The petitioner's trial counsel did not render ineffective assistance by not calling as a witness a taxi driver who had been at the shooting scene; counsel's decision constituted reasonable strategy, as the witness had given the police a statement that contradicted other evidence linking the petitioner to the shooting, and the habeas court credited counsel's testimony that he did not find the taxi driver to be reliable and afforded deference to that decision.

         Stephen Lebedevitch, with whom, on the brief, was Stephanie M. O'Neil, for the appellant (petitioner).

         Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, and Erika L. Brookman, assistant state's attorney, for the appellee (respondent).

         Sheldon, Keller and Flynn, Js.

          OPINION

Page 1269

         [162 Conn.App. 608] KELLER, J.

         Upon a grant of certification to appeal, the petitioner, Johnnie Arthur, 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 habeas court's decision should be reversed because that court erred by not concluding that the petitioner's trial counsel, Attorney Lawrence Hopkins, rendered ineffective assistance based upon (1) the manner in which he addressed evidence related to the cellular telephone (cell phone) records of the petitioner's girlfriend, which were offered into evidence by the state and admitted at the petitioner's criminal trial,[1] and (2) his failure to call as a trial witness a taxi

Page 1270

driver who was present at the scene of the crime. We affirm the judgment of the habeas court.

         The following procedural history and facts are relevant to the present appeal. In 2009, the petitioner was convicted, following a jury trial, of (1) attempt to commit murder, (2) assault in the first degree, (3) criminal possession of a firearm, and (4) carrying a pistol or revolver without a permit. This court, in affirming the [162 Conn.App. 609] petitioner's conviction on direct appeal, State v. Arthur, 128 Conn.App. 371, 18 A.3d 610, cert. denied, 302 Conn. 910, 23 A.3d 1249 (2011), stated that the jury could have reasonably found the following facts. " On the evening of September 29, 2007, the victim, Andrew Garnett, attended a party at the Sports Haven nightclub in New Haven with friends, including Dionte Dixon. While there, they met Nancy Sonemaneevong, Barbara 'Shanita' Green and the [petitioner's] girlfriend, Robin DiBenedetto. Green informed Dixon that she had a crush on his friend, Eugene Wright, and Dixon arranged for her to meet Wright later that evening. When the party ended, those individuals departed for Wright's apartment at 30 Glade Street in West Haven. Dixon drove his own car, the victim rode in a second vehicle with other friends, and DiBenedetto drove Sonemaneevong and Green in her red Pontiac Grand Am. At that time, DiBenedetto was speaking with the [petitioner] on her cellular telephone.

         " When the vehicles arrived at the parking lot at 30 Glade Street in the early morning hours of September 30, 2007, Green immediately entered Wright's apartment. At that time, the victim and Dixon entered the Pontiac Grand Am and began flirting with DiBenedetto and Sonemaneevong. When Sonemaneevong needed to use a bathroom, Dixon escorted her into Wright's apartment. The victim remained in the vehicle with DiBenedetto, who still was on the telephone with the [petitioner].

         " A bystander in the parking lot, Jamie Henderson, observed a man he knew as 'Drew' speaking to the female driver of the red Pontiac vehicle. He then witnessed a gray Ford Taurus enter the parking lot, from which a male wearing a dark colored hoodie and hat emerged looking 'like he meant business.' With a hand in the hoodie, the man asked DiBenedetto to leave with him, and she refused. The victim informed the man that [162 Conn.App. 610] '[s]he good. She with us.' The man then fired multiple gunshots at him from close range. As the victim crawled on the ground, the Ford Taurus and the Pontiac Grand Am fled the scene.

         " Officer Radames Gonce of the West Haven police department, who at the time was responding to an unrelated call nearby, heard the gunshots emanate from the Glade Street area. As Gonce drove toward Glade Street, he saw several vehicles driving away at a high rate of speed, including a gray Ford Taurus with a New York license plate. When he arrived at the parking lot outside Wright's apartment, Gonce found the victim lying on the ground. The victim subsequently was transported by ambulance to Yale-New Haven Hospital, where he was treated for life threatening injuries that included, inter alia, a collapsed lung, three gunshot wounds to the chest and one gunshot wound to his left thigh. Following emergency surgery, the victim recuperated in the hospital for seven days.

         " While investigating the scene of the shooting, Detective Anthony Simone of the West Haven police department learned that the red Pontiac Grand Am had been located and asked the operator to return to the Glade Street parking lot. When the vehicle arrived, the operator was identified

Page 1271

as DiBenedetto, who then was transported to police headquarters. Simone subsequently interviewed Henderson, Sonemaneevong and Green, from which he learned that DiBenedetto's boyfriend may have been involved in the shooting. He then interviewed DiBenedetto, who was uncooperative and identified her boyfriend only as 'Johnnie.' Further investigation revealed that DiBenedetto had been talking on her cellular telephone with the [petitioner] up to the time of the incident and that she had two cellular telephones registered in her name, both of which were used during that conversation. Telephone records, which were admitted into evidence at trial, established [162 Conn.App. 611] that DiBenedetto's initial conversation in the early morning hours of September 30, 2007, lasted forty-one minutes and three seconds, from 3:10 a.m. to 3:51 a.m. Telephone records also established that although the signal from DiBenedetto's other telephone was routed through a cell tower in New Haven at 3:10 a.m., it was routed through a tower on Campbell Avenue in West Haven from 3:51 a.m. to 3:56 a.m. The Campbell Avenue tower is in the vicinity of Glade Street and was used by both of DiBenedetto's cellular telephones at that time. Additional calls between DiBenedetto's two telephones were made at 3:52 a.m., 3:55 a.m. and 3:57 a.m. The police received a 911 call reporting the shooting at 3:57 a.m.

         " Simone's investigation also revealed that DiBenedetto lived at 719 Orchard Street in New Haven with the [petitioner]. When police arrived at that property on the day of the shooting, they found a silver Ford Taurus with a New York license plate in the backyard. Gonce arrived later and confirmed that the vehicle looked like the one he observed fleeing the Glade Street area moments after the shooting. The police seized the vehicle, and a search revealed a cellular telephone and a photograph of the [petitioner] with friends at what appeared to be the party at the Sports Haven nightclub hours earlier. The police also learned that DiBenedetto had rented the vehicle from Enterprise Rental Car from September 28, 2007, through October 1, 2007.

         " When Simone interviewed the [petitioner], he confirmed that he had attended the party at the Sports Haven nightclub a day earlier. The [petitioner] stated that he attended with friends and that he did not drive there 'because he doesn't drive.' The [petitioner] did not provide any further information to police at that time. Nonetheless, Brenda Ollison, DiBenedetto's upstairs neighbor at 719 Orchard Street, testified at [162 Conn.App. 612] trial that she observed the [petitioner] driving the Ford Taurus on the weekend in question.

         " As a result of their preliminary investigation, the police obtained a description of the person who had shot the victim. Simone detailed that description at trial as follows: 'Black male, approximately five foot nine, at the time wearing dark pants with a design on the rear pockets, a dark hooded sweatshirt with red drawstrings and a red and white design on the front, and a black fitted baseball style cap.' DiBenedetto's sister, Lori Ann Johnson, testified that she had cared for DiBenedetto's son on the evening of September 29, 2007, so that DiBenedetto could attend the party at the Sports Haven nightclub. When Johnson went to DiBenedetto's residence at 719 Orchard Street on October 1, 2007, DiBenedetto and the [petitioner] were there. Johnson observed the [petitioner's] recently washed clothes on a chair. She saw a black 'zip-up,' a black tee shirt and dark jeans, which she stated the [petitioner] had worn to the Sports Haven nightclub. When shown the outfit worn by the [petitioner] in the photograph found in the search of the Ford Taurus, Johnson identified it as the same outfit she had seen

Page 1272

drying on the chair at 719 Orchard Street. Johnson further testified that DiBenedetto drove a 'red Pontiac Grand Am GT' at the time of the shooting.

         " While recovering from surgery at the hospital, the victim spoke with Detective Usha Carr of the West Haven police department. Carr testified that the victim stated that, on the night of the shooting, he was 'hanging out' in the parking lot at 30 Glade Street with friends. While the victim was chatting with a white female in a red Pontiac Grand Am, 'a black male drove up' in a silver Ford Taurus. The man repeatedly told the woman with whom the victim had been speaking to leave with him. The victim told the man that '[s]he good. She with us.' The victim's next recollection was the smell of [162 Conn.App. 613] gunpowder. During the interview, Carr showed the victim a photographic array, informing him that the shooter 'might or might not be' in the array. The victim selected the [petitioner's] photograph as that of his assailant. The victim refused to sign the photographic array or to provide a recorded statement, however, because he did not want to be labeled a 'snitch.' At trial, the victim identified the [petitioner] in court as the individual that he had selected from the photographic array.

         " The [petitioner] thereafter was arrested and charged with criminal attempt to commit murder, assault in the first degree, criminal possession of a firearm and carrying a pistol or revolver without a permit. While incarcerated at the MacDougall-Walker Correctional Institution, the [petitioner] received a visit from DiBenedetto and his mother, Judith Wright, on January 23, 2009. The visit transpired in a noncontact area, which contains 'a glass that separates [the inmate from the visitors] with a booth and the visitors are on the opposite side of them and they make contact through two . . . phone headsets.' On the date in question, Correction Officer Rudolfo Santana observed the [petitioner] 'looking over his shoulder, towards where I was standing, kind of suspiciously, sort of nervous. So I started observing him a little bit more closely. I noticed that he was moving his right hand, like trying to hide something, bringing it up, bringing it down, and every time I looked towards him, he would bring it down. So I approached him from the backside and I noticed he had his right hand against the window with a piece of paper and I asked him for it. He handed it to me with no problem. I looked at the piece of paper. I saw it had some information on it, so I stated to him to continue with his visit, and I walked out of that particular area there. He [stood] up, follow[ed] me, and asked me what I was going to do with the paper and [told me] to throw [162 Conn.App. 614] it away, and I gave him a direct order to go sit back down and continue with his visit.' Santana identified the [petitioner] in court as that inmate. Santana further testified that he brought the paper to a supervisor immediately.

         " The paper was admitted as a full exhibit at trial, and the clerk of court read its contents. The paper listed two telephone numbers . . . and then stated: '(NAME) Drew Tell him please don't cooperate with the courts, [a]nd to tell his friends not too. And if [I] would of known what [I] know now it wouldn't never happened, [d]on't never tell him your real name ok ma. Ask him if he could help me, by not cooperating, cry too ma, don't talk to nobody but him ma, ok just him. I need that nigga to not cooperate with them anymore. [I]f that's done, with the victim theirs no case.' At trial, the victim testified that, after the shooting, he learned that the [petitioner] was his cousin.

         " At the conclusion of the state's case in his criminal trial, the [petitioner] moved for a judgment ...


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