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Eubanks v. Commissioner of Correction

Court of Appeals of Connecticut

June 7, 2016

DAVID EUBANKS
v.
COMMISSIONEROF CORRECTION

          Argued October 26, 2015

         Appeal from Superior Court, judicial district of Tolland, Kwak, J.

          Deren Manasevit, assigned counsel, for the appellant (petitioner).

          Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Clifton, assistant state’s attorney, for the appellee (respondent).

          Beach, Keller and West, Js.

          OPINION

          WEST, J.

         The petitioner, David Eubanks, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus, in which he challenged his conviction for possession of a weapon without a permit in a motor vehicle in violation of General Statutes (Rev. to 2008) § 29-38.[1] The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal and in denying his petition for a writ of habeas corpus claiming ineffective assistance of trial counsel. The respondent, the Commissioner of Correction, disagrees. We agree with the petitioner, and therefore, reverse the judgment of the habeas court.

         The following facts were set forth by this court in the petitioner’s direct appeal. State v. Eubanks, 133 Conn.App. 105, 106–10, 33 A.3d 876, cert. denied, 304 Conn. 902, 37 A.3d 745 (2012). ‘‘At approximately 6 a.m. on November 22, 2008, Bennett Hines, an officer with the New Haven police department, was sitting in his patrol car. At that hour in the morning there was no vehicle traffic and no cars were parked by the side of the street. Hines heard several gunshots come from the New Haven green in the vicinity of Elm and College Streets, which location was approximately two blocks from where he was parked. When Hines looked in the general direction from which he heard the gunshots fired, he saw a dark colored sport utility vehicle (SUV) turn left from Elm Street onto Church Street. As the SUV turned onto Wall Street, Hines noticed that the tires of the SUV were ‘screeching. . . .’ Based on the speed at which the SUV was traveling and the way it turned onto Wall Street, Hines believed that it was likely that the occupants of the vehicle had discharged the gunshots; as a result he began to follow the SUV. Hines reported the incident to dispatch and activated his cruiser’s lights and sirens.

         ‘‘The SUV traveled through the city and onto the entrance ramp to Interstate 91; it ‘would not stop.’ Hines observed a ‘dark colored item come outof the passenger side window’ and ‘a silver colored item come out of the driver side window.’ Based on his training and experience, Hines believed the items thrown out of the windows to be guns. Officer Edward Dunford, who was following behind Hines’ cruiser, also saw ‘something dark colored come flying out of the passenger side of the vehicle. . . .’

         ‘‘Before entering the highway, the SUV stopped. Hines drew his gun and went to the driver’s side of the car. Dunford drew his gun and went, with other officers, to the passenger side of the vehicle. Tanika McCotter was operating the SUV, the [petitioner], her boyfriend, was in the front passenger seat and her brother, Jayeron McCotter, was in the rear passenger seat. The [petitioner] initially disobeyed commands from the officers, stepped over the guardrail and ‘look[ed] around him.’ The [petitioner] eventually complied with orders to lie on the ground and was arrested. Tanika McCotter and Jayeron McCotter also were arrested. The officers then searched the area where they believed the items were tossed from the windows of the SUV. Using a thermal imager, Sergeant Peter Moller found a semiautomatic .45 caliber black Ruger handgun, with the safety off and its magazine empty, lying on top of a pile of leaves. No other weapon was found.

         ‘‘Detective Joshua Armistead investigated the area of College and Elm Streets where the gunshots reportedly had been fired. Armistead found eight .40 caliber shell casings spread out over several car lengths. He stated that the casings ‘looked like they were fired from somebody moving on Elm Street.’ Lieutenant Joseph Rai-none, a firearms examiner with the Waterbury police department, determined that the Ruger handgun was operable. He also determined that although the eight shell casings had similar class characteristics, he was unable to conclude whether they had been fired from the same firearm. He was able to determine, however, that the shell casings did not come from the Ruger handgun.[2]

         ‘‘The [petitioner] was charged with one count of carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a), one count of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (1), one count of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1), one count of unlawful possession of a weapon in a motor vehicle in violation of § 29-38 and one count of criminal violation of a protective order in violation of [General Statutes] § 53a-223 (a).

         ‘‘At trial, the state sought to introduce the testimony of Tanika McCotter from a prior court hearing[3] on the ground that she was unavailable to testify at trial. The [petitioner] objected to the admission of the prior testimony on the ground that the state did not exercise due diligence in attempting to locate her and that he did not have the opportunity at the prior hearing effectively and adequately to cross-examine the witness. The court determined that the state had proved that Tanika McCotter was unavailable to testify and overruled the [petitioner’s] objections to the admission of her prior testimony. Tanika McCotter’s prior testimony was redacted, as agreed upon by the parties, and was submitted to the jury in transcript form as a full exhibit. Its admissibility is not an issue on appeal.

         ‘‘In her Stevens testimony, Tanika McCotter testified to the following. She was driving the SUV at the time in question while the [petitioner] was seated in the passenger seat and Jayeron McCotter, her brother, was seated in the back passenger seat. She heard gunshots, ‘kind of freaked out’ and continued to drive until she noticed, as she was about to drive onto the highway, police cruisers following the SUV. She was arrested and taken to a police station. She stated that although she heard gunshots, she never saw a gun on the day in question. While at the police station, she told the detectives, in a recorded statement, that both of the passengers-Jayeron McCotter and the [petitioner]-were shooting guns from the SUV. She initially told the police that she did not see a gun, but that after ‘they pressured for like ever’ and told her she could lose her children if she did not cooperate, she told them that both passengers had fired guns. In response to a question of whether her statement to the police was truthful, she testified: ‘No, I don’t know where the shots came from.’ She later stated, however, that she was being truthful to the police officers during the interview.

         ‘‘At the conclusion of the jury trial, the [petitioner] was found guilty of unlawful possession of a weapon in a motor vehicle and of criminal violation of a protective order. He was found not guilty on all other counts. The court imposed a total effective sentence of seven years imprisonment.’’ (Footnotes in original) Id.

         Following the petitioner’s conviction and this court’s affirmance of that conviction on direct appeal, he filed a petition for a writ of habeas corpus. In his amended petition for a writ of habeas corpus, the petitioner claimed that his trial counsel, Walter Bansley IV, rendered ineffective assistance in failing to specifically object on hearsay grounds to the substantive use of the portions of Tanika McCotter’s Stevens testimony during which she was impeached with her statement to police and that, but for his trial counsel’s ineffectiveness, there was a reasonable probability that the result of petitioner’s trial would have been different.[4]

         Following a habeas trial, the court issued an oral decision denying the petition, and concluding that the petitioner’s trial counsel did not render ineffective assistance. The court concluded that the petitioner had failed to prove that his trial counsel’s representation was deficient or that he suffered any prejudice from his trial counsel’s performance. In reaching its conclusion, the court made several relevant findings of fact, including, inter alia, the following: ‘‘[the petitioner’s trial counsel] also adequately objected to [Tanika] McCotter’s testimony from the Stevens hearing being introduced into evidence, which the trial court overruled; but at any rate, he was able to redact portions of the testimony that may have been prejudicial to the ...


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