September 20, 2016
from Superior Court, judicial district of Tolland, Oliver, J.
A. R. Kirschbaum, with whom, on the brief, was Vishal K.
Garg, for the appellant (petitioner).
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).
Keller and Norcott, Js.
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.
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. 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. 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.
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
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 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.
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.
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).
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).
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 ...