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Nieves v. Commissioner of Correction

Court of Appeals of Connecticut

December 6, 2016


          Argued September 20, 2016

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

          Damon A. R. Kirschbaum, with whom, on the brief, was Vishal K. Garg, for the appellant (petitioner).

          Sarah Hanna, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

          Beach, Keller and Norcott, Js.


          NORCOTT, J.

         Following a grant of certification to appeal, the petitioner, Angel Nieves, 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 had not demonstrated that his trial counsel rendered ineffective assistance by failing to present an exculpatory statement made by a state's witness describing the perpetrator of the crime with which the petitioner was charged. We disagree and, accordingly, affirm the judgment of the habeas court.

         The following undisputed facts and procedural history are relevant to the disposition of the petitioner's claims. The victim was murdered during a shooting incident on April 18, 2002. State v. Nieves, 106 Conn.App. 40, 43, 941 A.2d 358, cert. denied, 286 Conn. 922, 949 A.2d 482 (2008). The petitioner was arrested as a suspect in March, 2003.[1] Of the six witnesses who testified, three gave a similar description of the shooter to the police and again at trial, and three positively identified the petitioner as the shooter in court.[2] One witness testified that the petitioner admitted to murdering the victim. The witness whose statement is at issue in this case, Maria Quinones, did not testify but gave the same general description of the shooter to Christine Mertes, the canvassing officer. Unlike other witnesses, however, Quinones described the shooter as having neck tattoos.[3]

         On May 31, 2005, following a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a-54a (a), carrying a pistol without a permit in violation of General Statutes § 29-35, and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). On August 30, 2005, the petitioner was sentenced to a total effective sentence of sixty-eight years of imprisonment. The petitioner's conviction was affirmed on direct appeal. State v. Nieves, supra, 106 Conn.App. 40.

         On December 16, 2014, the petitioner filed an amended petition for a writ of habeas corpus, alleging that his trial counsel provided ineffective assistance because they[4] failed to offer as ‘‘substantive evidence a statement relating to the identification of the shooter under an exception to the hearsay rule.'' On March 16, 2015, the habeas court, Oliver, J., heard evidence at a hearing on the petition. On June 19, 2015, the court denied the petition, finding that trial counsel had not provided ineffective assistance. The petitioner then filed a petition for certification to appeal from the court's judgment, which the court granted on July 2, 2015. This appeal followed. Additional facts will be set forth as necessary.

         The petitioner first claims that his trial counsel ren dered ineffective assistance by failing to introduce the purportedly exculpatory statement of Quinones, despite its potential availability under the spontaneous utterance exception to the hearsay rule, which was based on trial counsel's ‘‘erroneous belief that the identification was an inadmissible out-of-court-statement.'' We are not persuaded.

         We begin by setting forth the applicable standard of review. ‘‘A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . As enunciated in Strickland v. Washington, [466 U.S. 668');">466 U.S. 668, 686, 687, 104 S.Ct. 2052, 80L.Ed.2d 647 (1984)], [our Supreme Court] has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel. . . . A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. . . . The claim will succeed only if both prongs are satisfied.'' (Internal quotation marks omitted.) Spearman v. Commissioner of Correction, 164 Conn.App. 530, 538, 138 A.3d 378 (2016).

         ‘‘[According to] Strickland, [an ineffective assistance of counsel] claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.'' (Emphasis in original; internal quotation marks omitted.) Hall v. Commissioner of Correction, 124 Conn.App. 778, 782-83, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).

         ‘‘In its analysis, a reviewing court may look to the performance prong or to the prejudice prong, and the petitioner's failure to prove either is fatal to a habeas petition.'' (Internal quotation marks omitted.) Delvecchio v.Commissioner of Correction, 149 Conn.App. 494, 500, 88 A.3d 610, cert. denied, 312 Conn. 904, 91 A.3d 906 (2014). ‘‘To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'' (Internal ...

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