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Jamison v. Commissioner of Correction

Court of Appeals of Connecticut

August 2, 2016

KENNETH JAMISON
v.
COMMISSIONEROF CORRECTION

          Argued May 12, 2016

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

          David J. Reich, for the appellant (petitioner).

          Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, Angela R. Macchiarulo, senior assistant state’s attorney, and Yamini Menon, special deputy assistant state’s attorney, for the appellee (respondent).

          Lavine, Alvord and Sheldon, Js.

          OPINION

          ALVORD, J.

         Following a grant of certification to appeal by the habeas court, the petitioner, Kenneth Jamison, 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 improperly concluded that he was not deprived of the effective assistance of trial counsel and appellate counsel. Specifically, he claims that the court erroneously determined that (1) ‘‘there was no prejudice in trial counsel’s failureto properly challenge the introduction of a ‘stick’ which was used by the state to prove the element of a deadly weapon at the criminal trial, ’’ and (2) ‘‘appellate counsel was ineffective for failing to challenge the sufficiency of the ‘stick.’ ’’ We affirm the judgment of the habeas court.

         The record reveals the following relevant facts and procedural history. Following a 1996 jury trial, the petitioner was convicted of assault in the second degree by means of a deadly weapon in violation of General Statutes § 53a-60 (a) (2).[1] The jury returned not guilty verdicts with respect to the charges of criminal possession of a firearm in violation of General Statutes § 53a-217 (a), and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The petitioner was sentenced to five years incarceration, to run consecutively to a sentence that he was then serving for other nonrelated convictions. Following a direct appeal, the judgment of conviction was affirmed by this court. State v. Jamison, 56 Conn.App. 223, 742 A.2d 1272 (1999).

         The opinion of this court set forth the following facts that the jury reasonably could have found. ‘‘On September 21, 1995, Hashim Preston was in his sister’s apartment in Bridgeport. Shortly after midnight, Maria Caban knocked on the door of the apartment and was let in by Preston. While the door was open, the [petitioner] forced his way into the apartment and engaged Preston in a hostile conversation about certain money matters. At some point, [2] the [petitioner] pulled out a long black stick that had tape and a cable wire around it, and struck Preston in the face with it five to seven times.

         ‘‘On October 12, 1995, several police officers executed a search and seizure warrantat400 Wood Avenue. The [petitioner] was present, but told the officers that he was a visitor to the premises. The officers seized a gun that belonged to the [petitioner], ammunition and an identification card that contained the [petitioner’s] picture and the name ‘Johnny Vincent.’

         ‘‘On the basis of Preston’s identification, the [petitioner] was arrested and a trial followed. At the close of the state’s case, the [petitioner] moved for a judgment of acquittal on the grounds that a state’s witness gave conflicting versions of the incident, the police investigation was inadequate, and the search and seizure warrant was defective. He did not claim that the evidence was insufficient to support a guilty verdict. The trial court denied the motion, and the jury returned a verdict of not guilty on the counts of the information that alleged criminal possession of a firearm . . . and carrying a pistol without a permit . . . . The jury found the [petitioner] guilty of assault in the second degree . . . .’’ (Footnotes omitted.) Id., 224-26. The petitioner’s counsel during the criminal trial was Attorney Jason Gladstone.

         On direct appeal to this court, the petitioner, represented by Attorney Vicki H. Hutchinson, challenged the sufficiency of the evidence for the conviction on the basis of the following argument: ‘‘Preston gave the only evidence of the assault, testifying that the [petitioner] struck him with a gun, and the evidence showed that the same gun was found three weeks later in an apartment occupied by the [petitioner]. By finding the [petitioner] not guilty of criminal possession of a firearm and carrying a pistol without a permit, the jury demonstrated that it did not believe Preston’s testimony that he was struck with a gun. Although Preston testified that the [petitioner] also struck him with the stick that was wrapped with tape and cable wire, it is inconceivable that the jury believed Preston’s testimony. The [petitioner] further asserts that [t]he only conclusion which can be drawn from the verdicts is that the jury convicted [the petitioner] based on his prior conviction of manslaughter. . . . Prior conviction of manslaughter is not sufficient to convict an individual of assault in the second degree.’’ (Internal quotation marks omitted.) Id., 226. Because the petitioner’s claims on direct appeal had not been raised in the trial court, this court concluded that they were not reviewable and affirmed the judgment of the trial court. Id. 227-28.

         Following his unsuccessful appeal, the self-represented petitioner filed a habeas petition on May 1, 2012. On January 15, 2014, now represented by habeas counsel, the petitioner filed a three count amended petition for a writ of habeas corpus. In count one of his amended petition, the petitioner claimed, inter alia, that his trial counsel rendered ineffective assistance by failing to argue to the jury that the stick did not fall within the statutory definition of a deadly weapon, by failing to object to the trial court’s instruction that allowed the jury to consider the stick to be a deadly weapon, and by failing to object to the court’s ‘‘expanded definition’’ of a deadly weapon after the jury requested a definition of that term. In count two of his amended petition, the petitioner claimed, inter alia, that his appellate counsel rendered ineffective assistance by failing to raise the issue that ‘‘the evidence was insufficient for the court to find that a gun was used in the assault and that the stick met the statutory definition of a [deadly] weapon.’’ In count three of his amended petition, the petitioner alleged prosecutorial impropriety, claiming that the state misled the jury by introducing the stick as a deadly weapon.

         The respondent, the Commissioner of Correction, filed his return on March 26, 2014. With respect to count three of the amended petition, the respondent alleged that the petitioner was procedurally defaulted because he had failed to raise the claim of prosecutorial impropriety before the trial court or on direct appeal. In the petitioner’s reply filed March 31, 2014, he claimed that he was not procedurally defaulted because he could demonstrate cause and prejudice.

         On May 27, 2014, the court held a trial on the petitioner’s amended petition for a writ of habeas corpus. In addition to the submission of various exhibits, the petitioner testified and called Gladstone, Hutchinson and Richard Palombo, a senior assistant state’s attorney, as his witnesses. The court issued its memorandum of decision on June 9, 2014, in which it made the following determinations: (1) the petitioner acknowledged at the habeas trial that the state had claimed at his criminal trial that he assaulted Preston with a stick and a gun; (2) during the habeas trial, the petitioner recognized the stick, submitted as an exhibit, as the object entered into evidence at his criminal trial and identified as the dog’s toy;[3] (3) Gladstone did not object to the introduction of the stick into evidence at the criminal trial; (4) Gladstone testified at the habeas trial that he did not believe an objection to the introduction of the stick into evidence would have been successful because it had been properly authenticated; (5) the court was ‘‘not persuaded’’ that Gladstone’s failure to object to the introduction of the stick into evidence constituted ineffective assistance because there was no indication in the trial court record that the stick was inadmissible at the criminal trial; (6) regardless of whether any of Gladstone’s claimed errors rose to the level of deficient performance, the petitioner’s claim of ineffective assistance failed because there was no showing of any resulting prejudice; (7) the state had a strong case against the petitioner, who was charged with committing the assault with either a gun or the stick; (8) whether Preston was pistol whipped, beaten with the stick, or both, there was ample evidence in the criminal trial court record to support his conviction; (9) a reasonable juror could have found the stick to be a deadly weapon on the basis of the statutory definition and the criminal trial court record; (10) the petitioner failed to demonstrate that, but for any of Gladstone’s alleged errors, there was a reasonable probability that the outcome of his criminal trial would have been different; (11) Hutchinson did not challenge on direct appeal whether the evidence would allow a jury to find the stick to be a deadly weapon; (12) Hutchinson was ‘‘not sure’’ any such challenge would have been successful because the jury was the ultimate fact finder; (13) Hutchinson’s selection of the issues for appeal was a ‘‘clear strategic decision;’’ (14) Hutchinson’s failure to argue the sufficiency of the evidence as to the stick in the petitioner’s direct appeal was not deficient performance, but, rather, reflected a decision to narrow the appellate issues to those most likely to succeed; and (15) the petitioner submitted no credible evidence of any good cause that would justify his failure to raise the issue of prosecutorial impropriety at the criminal trial or on direct appeal. For those reasons, the habeas court dismissed the third count of the petitioner’s amended petition alleging prosecutorial impropriety on the ground of procedural default, [4] and denied the remainder of the petitioner’s claims on the merits. This appeal followed.

         The standard of review in habeas appeals is well settled. ‘‘In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the ...


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