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Sewell v. Commissioner of Correction

Court of Appeals of Connecticut

October 4, 2016

STEVEN SEWELL
v.
COMMISSIONER OF CORRECTION

          Argued May 25, 2016

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

          Michael J. Culkin, assigned counsel, for the appellant (petitioner).

          Jonathan M. Sousa, special deputy assistant state's attorney, with whom, on the brief, were Michael Dear-ington, state's attorney, and Robert O'Brien, former supervisory assistant state's attorney, for the appellee (respondent).

          DiPentima, C. J., and Lavine and Alvord, Js.

          OPINION

          ALVORD, J.

         The petitioner, Steven Sewell, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus.[1] On appeal, the petitioner claims that the habeas court erred by concluding that his trial counsel did not render ineffective assistance. The petitioner claims that his trial counsel failed to adequately investigate the state's witnesses and prepare for trial, and as a result, he was prejudiced.[2]We disagree with the petitioner and, accordingly, affirm the judgment of the habeas court.

         In deciding the petitioner's direct appeal of his conviction, this court summarized the facts that the jury reasonably could have found as follows: ‘‘On December 23, 2001, the victim, Timothy Sweat, was in the apartment he shared with his mother and brother in New Haven. The victim sold beer, cigarettes, soda and chips from his apartment to patrons he knew. At approximately 6:30 p.m. that day, Sweat responded to a knock at his door by looking through the peephole. When he recognized Judale Wynkoop, who is also known as Dell, to whom he had sold beer previously, Sweat opened the door. As the two men stood in the doorway speaking, the [petitioner] emerged from a hallway outside the apartment, holding a black pistol. As the [petitioner] approached, Wynkoop stepped away, Sweat raised his hands and the [petitioner] shot him through the thumb and into his chest at close range. Sweat tried, without success, to grab the [petitioner's] face and throat and then backed into his apartment. The [petitioner] ran down the street.

         ‘‘Prior to trial, the [petitioner] filed a written request for disclosure under Practice Book §§ 40-11, 40-12 and 40-13. In its response to that request, the state did not list either Angel Ogman or Darryl Wilson as witnesses or turn over to the [petitioner] any statements attributed to these individuals.

         ‘‘At trial, the state called a number of witnesses, including Sweat, Ogman, who is also known as Yummy, [certain police officers] . . . and Wilson, who is also known as D-Woo.

         ‘‘During the first day of evidence, the [petitioner] moved for a mistrial because of the state's late disclosure of Wilson as a witness. That motion was denied. After Ogman testified later on that same day, the [petitioner] moved for a mistrial on the basis of her testimony. That motion also was denied. At the close of trial, the jury found the [petitioner] guilty of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a) (5), and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c. Immediately after the jury returned its verdict, the [peti- tioner] stipulated to having committed a class A, B or C felony with a firearm in violation of General Statutes § 53-202k. The court imposed a total effective sentence of twenty-five years imprisonment.'' (Footnote omitted.) State v. Sewell, 95 Conn.App. 815, 817-18, 898 A.2d 828, cert. denied, 280 Conn. 904, 907 A.2d 94 (2006).

         The petitioner filed a writ of habeas corpus in 2006 and amended it in2008. The petitioner argued before the habeas court that his trial counsel had been ineffective because he failed to: adequately advise the petitioner of potential defenses, conduct an investigation of the facts and witnesses that the state planned to present, obtain witness statements, present witnesses to support the defense strategy, and appropriately prepare for trial.

         The petitioner's petition for a writ of habeas corpus was centered on trial counsel's handling of the Ogman testimony. As early as May 6, 2002, the petitioner's trial counsel was aware that the state intended to call a witness who was identified only as Yummy. The petitioner's trial counsel was unable to determine that Ogman was the witness known as Yummy until the state revealed her legal name on the first day of jury selection on February 14, 2003.[3] During the trial, Ogman testified that she saw the petitioner in the vicinity of the victim's apartment just prior to the shooting and that the petitioner later confessed to her that he had in fact shot the victim. Following Ogman's testimony, trial counsel moved for a mistrial on the basis of undue surprise, but the motion was denied. However, the trial court granted the petitioner's trial counsel additional time to prepare for his cross-examination of Ogman.

         The habeas court concluded that the petitioner's trial counsel had performed adequately. ‘‘There was extensive cross-examination of Ms. Ogman and Mr. Wilson and Mr. Wynkoop, all on any interest the witnesses had in the outcome of the trial, bias, motive to fabricate, ability to observe and recollect. This was no three question cross by the defense attorney. Although surprised by the revelations of Ogman, [also known as] Yummy, and Wilson, [also known as] D-Woo, the attorney was afforded opportunity to prepare his cross-examinations, the length and quality of which is reflected in the transcript. Put another way, this court cannot infer any deficiency in the cross-examination of the witnesses. . ...


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