Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Myers v. Commissioner of Correction

Appellate Court of Connecticut

March 22, 2016

MICHAEL MYERS
v.
COMMISSIONER OF CORRECTION

         Argued October 27, 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, Fuger, J.; judgment denying the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court.

          SYLLABUS

         The petitioner, who had been convicted of several crimes, including manslaughter in the first degree with a firearm, sought a writ of habeas corpus, claiming that his trial counsel had rendered ineffective assistance by failing to preserve for appellate review a claim that the state during voir dire had excluded a potential African-American juror, D, on the basis of race. The petitioner, whose conviction had been affirmed by this court on direct appeal, claimed that he would have prevailed in that appeal but for his counsel's failure to demonstrate that the prosecutor's facially race neutral explanation was pretextual because the prosecutor had accepted as jurors other venirepersons, whom he alleged were similarly situated to D. The prosecutor had expressed concern that D, who during voir dire stated that he previously had been arrested and had carried a gun, might empathize with the petitioner, a young man who was accused of engaging in criminal activity involving a gun. The prosecutor also was concerned that, similar to the petitioner, D had been arrested by the New Haven police, and that D's son had been prosecuted by the same state's attorney's office at which the prosecutor had formerly worked. The habeas court determined that the petitioner failed to demonstrate that he was prejudiced by his counsel's alleged deficient performance because he had failed to show that D was similarly situated to the venirepersons at issue. The court rendered judgment denying the petition and, thereafter, denied the petition for certification to appeal, and the petitioner appealed to this court. Held that the habeas court properly exercised its discretion in denying the petition for certification to appeal, the petitioner having failed to show that the issues he raised concerning the alleged ineffective assistance by his trial counsel during voir dire were debatable among jurists of reason, that a court could have resolved the issues in a different manner, or that the issues raised were adequate to deserve encouragement to proceed further: although D had testified that he had a bad experience when he previously was arrested on a drug related charge, that he had been in another situation that involved a gun, and that he had a " wild" youth after which he had turned his life around, none of the other venirepersons at issue had testified that they had a similar type of youth and bad experiences as D, and, thus, they did not pose the same type of risk as empathizing with the petitioner as D; furthermore, an examination of the facts on which the petitioner relied pertaining to the other venirepersons did not demonstrate that any of them were similarly situated to D.

         Jessica Vizvary, with whom were Kristi Thomaston and, on the brief, Stephanie M. O'Neil and Grayson Colt Holmes, for the appellant (petitioner).

         Jacob L. McChesney, special deputy 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).

         Keller, Mullins and Kahn, Js. KELLER, J. In this opinion the other judges concurred.

          OPINION

          [164 Conn.App. 2] KELLER, J.

          After the habeas court rendered judgment denying his amended petition for a writ of habeas corpus, the petitioner, Michael Myers, brings the present appeal following the denial of his petition for certification to appeal. The petitioner claims that the court [164 Conn.App. 3] abused its discretion in denying his petition for certification to appeal because counsel at his criminal trial rendered ineffective assistance by failing to preserve for appellate review a claim that the state had excluded a potential juror on the basis of race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We conclude that the court properly exercised its discretion in denying the petition for certification to appeal and, accordingly, dismiss the present appeal.

         The relevant procedural history is as follows. In 2008, following a jury trial, the petitioner was convicted of manslaughter in the first degree with a firearm in violation of General Statutes § § 53a-55a and 53a-55 (a) (1), carrying a pistol without a permit in violation of General Statutes § 29-35, tampering with physical evidence in violation of General Statutes § 53a-155 (a) (1) and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). The court imposed a total effective sentence of fifty years of incarceration. Following a direct appeal, this court affirmed the judgment of conviction. State v. Myers, 126 Conn.App. 239, 11 A.3d 1100, cert. denied, 300 Conn. 923, 14 A.3d 1006 (2011).

         This court set forth the facts underlying the petitioner's conviction, as they reasonably could have been found by the jury, as follows: " The [petitioner] had a tempestuous relationship with Shaquita Alston, the mother of his child. On the night of June 2 and the early morning of June 3, 2005, Alston met the victim, William Corey, at a nightclub in New Haven, after which they had sexual relations at his apartment. Corey then drove her back to her residence, where they found the [petitioner] waiting outside. The [petitioner] advised Corey that he would talk to him later.

         " Over the next two days, the [petitioner] argued with Alston, accusing her of having sexual relations with [164 Conn.App. 4] Corey, which she denied. Subsequently, in the early morning of June 5, 2005, she physically attacked the [petitioner] when she saw him with another woman at his house. On the night of June 6, 2005, the [petitioner] and Alston spent time together at his house, during which he telephoned Corey and arranged a meeting. He took a handgun with him when he and Alston left the house.

         " The [petitioner] and Alston walked to meet Corey, who was waiting in his car. Both got into Corey's car, which he then drove around New Haven, at which time the [petitioner] asked questions about what had transpired between Corey and Alston on the morning of June 3. During this time, the [petitioner] also telephoned a friend of Alston who had left the club with her and Corey on June 3. At some point, the [petitioner] directed Corey to stop the car and exited on the passenger side after Alston. Standing outside the car, he fired one gunshot into Corey and ran from the scene. Corey died of internal bleeding caused by the single gunshot wound." Id., 242-43.

         Among the several claims raised by the petitioner in his direct appeal was that, at the time of jury selection in his criminal trial, the trial court improperly denied a Batson challenge raised by the defense after the prosecutor peremptorily struck D, an African-American venireperson, from the venire panel. Id., 242, 256. The petitioner's claim was in two parts. First, he claimed that the state's acceptance of other venirepersons who were not African-American but were similarly situated to D, specifically, C, F, V, and L, demonstrated that the prosecutor's articulated reasons for striking D were pretextual and that D's dismissal was race based. Id., 256, 260. Second, apart from the issue of disparate treatment of venirepersons by the state, the petitioner claimed that the court erred in concluding that the prosecutor's proffered explanation for striking D was [164 Conn.App. 5] facially based on something other than D's race, and, therefore, was not pretextual. Id., 256, 263.

         This court set forth the facts relevant to the Batson claims as follows: " During voir dire, the prosecutor and defense counsel both questioned D. In response to the prosecutor's questions, D revealed that he had been arrested by the New Haven police nineteen years earlier but believed that he had been treated fairly because he was innocent and the case had been nolled. He indicated that he did not harbor any bias against the criminal justice system or against police officers. In response to defense counsel's questions, D revealed that his son had been prosecuted and convicted in the Milford court for armed robbery and was serving a twenty year sentence. He stated that he writes to his son but that his son does not write back. He also stated that his son's situation would not affect his impartiality because his son was a grown man and has to live with his decisions. D also revealed that, when he was a young adult in Texas, he 'used to run with a pimp' and once had carried a gun but had not used it.[1] He noted, 'When I did that, I was young, and I've never like[d] it then, I don't like it now.' He also indicated that he had turned his life around since his 'wild' youth.

         " After D's voir dire, the prosecutor exercised a peremptory challenge to excuse D, and defense counsel raised a Batson objection. The prosecutor articulated three race neutral reasons for exercising his challenge: (1) similar to the [petitioner], D had been arrested by the New Haven police; (2) his son had been prosecuted [164 Conn.App. 6] by the Milford state's attorney's office, and the prosecutor disclosed that he had formerly worked at that office; and (3) because of D's stated wild youth, there was a possibility that he would empathize with the [petitioner's] circumstances despite his promises of impartiality. Defense counsel responded that these reasons were insufficient because D stated that he was not biased as a result of these experiences, and he demonstrated that he was thoughtful, candid, aware of a juror's responsibilities, and committed to being impartial. The court found that D's experiences created a risk that he might empathize with the [petitioner] and also found that the state had not engaged in a pattern of questioning him that was different from its treatment of other venirepersons. It concluded that there was nothing to suggest that the prosecutor had a race based ulterior motive in exercising a peremptory challenge to excuse D." (Footnote in original.) Id., 258-60.

         In the context of the petitioner's direct appeal, this court declined to review his claim that the state's acceptance of other venirepersons whom he argued were similarly situated to D, specifically, C, F, V, and L, demonstrated that the prosecutor's articulated reasons were pretextual and that, in fact, D's dismissal was race based. This court observed that, to substantiate his claim, the petitioner " compare[d] the state's treatment of D to its treatment of two accepted jurors, C and F, and two venirepersons, V and L, who were accepted by the state before they were dismissed by the [petitioner]." Id., 260. Also, the court observed that the state argued that the facts on which the petitioner relied, which pertained to the state's treatment of C, F, V, and L, were not properly before this court in the context of the direct appeal because " they were not before the [trial] court at the time that it made its finding on the [petitioner's] Batson challenge. The voir dire of C occurred on March 6; the Batson challenge regarding [164 Conn.App. 7] D occurred on March 7; and the voir dire of the other three [venirepersons] took place on March 17 and 20, 2008." Id.

         This court, citing relevant precedent, observed that a Batson challenge is timely if it is raised at any time before the jury is sworn, a Batson claim that is based on a prosecutor's alleged disparate treatment of venirepersons necessitates a comparison of the prosecutor's treatment of venirepersons throughout the process or jury selection, and that " any Batson claim not timely raised [before the trial court] is deemed to have been waived." Id., 260-61. This court, declining to review the Batson claim that was based upon alleged disparate treatment of venirepersons, stated: " In the present case, therefore, the disparate treatment claim is not reviewable because the record reveals that it was not preserved. In short, once the prosecutor had accepted any of the jurors whom the [petitioner] claims were similarly situated to D, it was the [petitioner's] burden to renew his Batson challenge regarding D based on his claim of disparate treatment. Here, three of the allegedly comparable venirepersons were questioned subsequent to the Batson challenge of D's dismissal, and the [petitioner] did not renew the challenge before the jury was sworn so as to include them in the court's consideration of the challenge, as required by [ State v. Robinson, 237 Conn. 238, 245-50, 676 A.2d 384 (1996)] and its progeny. Furthermore, even though the voir dire of C was part of the record at the time the court made its finding with regard to D, the [petitioner] failed to raise disparate treatment as a ground for sustaining the Batson challenge. Consequently, the court never had the opportunity to consider disparate treatment as part of its assessment of the [petitioner's] Batson claim regarding D. Because the claim is unpreserved, it is unreviewable on appeal." State v. Myers, supra, 126 Conn.App. 262. Thereafter, with ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.