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Taylor v. Commissioner of Correction

Supreme Court of Connecticut

February 14, 2017

DEVON TAYLOR
v.
COMMISSIONER OF CORRECTION

          Argued November 14, 2016

          Peter Tsimbidaros, assigned counsel, for the appellant (petitioner).

          Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, James A. Killen, senior assistant state's attorney, and Marcia Pillsbury, assistant state's attorney, for the appellee (respondent).

          Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.

          OPINION

          EVELEIGH, J.

         In this certified appeal, the petitioner, Devon Taylor, appeals from the judgment of the Appellate Court affirming the denial of his amended writ of habeas corpus. See Taylor v. Commissioner of Correction, 154 Conn.App. 686, 688-89, 108 A.3d 238 (2015). On appeal, the petitioner claims that the Appellate Court incorrectly concluded that he had failed to meet his burden of demonstrating that the deficient performance of his trial counsel, Kenneth Simon, in responding to the trial court's treatment of a jury note had prejudiced the petitioner. Id., 721. We disagree with the petitioner and, accordingly, affirm the judgment of the Appellate Court.

         The Appellate Court opinion sets forth the following relevant facts and procedural history. ‘‘On August 27, 1993, [Jay Murray, the victim] and Ronald Wightwood, [Murray's] companion, were attempting to purchase drugs [in Hartford]. They met the [petitioner] and indicated to him that they wanted cocaine. The [petitioner] and the victim discussed the purchase and the [petitioner] entered the victim's pickup truck and drove it to the vicinity of a car wash on Albany Avenue. The [petitioner] exited the truck and retrieved a plastic bag containing a white powdery substance, which he gave to the victim. After the victim sampled and rejected the substance, the [petitioner] drove the truck and its occupants to Milford Street. The [petitioner] left the truck but returned several minutes later and shot the victim with a revolver through the driver's side window of the truck. All of those events occurred in the presence of Wightwood. The police found $150 in the truck and also found the [petitioner's] fingerprints on the exterior and interior of the truck. . . . The victim later died in a hospital.

         ‘‘The petitioner was charged with murder in violation of General Statutes [Rev. to 1993] § 53a-54a and criminal possession of a firearm in violation of General Statutes [Rev. to 1993] § 53a-217. In 1997, a jury found the petitioner guilty on both charges. The trial court . . . sentenced the petitioner to a total effective term of sixty years imprisonment. [The Appellate Court] affirmed the judgment of conviction on appeal. [State v. Taylor, 52 Conn.App. 790, 801, 729 A.2d 226 (1999)].

         ‘‘Subsequently, the petitioner filed an amended petition for a writ of habeas corpus . . . . The amended petition contains four counts. Count one alleges that . . . Simon . . . provided ineffective assistance of counsel on the grounds that, inter alia, [he] failed (1) to introduce evidence to impeach the state's primary identification witness, Wightwood, (2) to adequately seek to suppress Wightwood's allegedly suggestive identification of the petitioner . . . (3) to investigate and introduce evidence to establish a third party culpability defense, (4) to impeach the expert opinion testimony of Kenneth Zercie, an employee at the state forensic laboratory, concerning fingerprint evidence, and (5) to object to the trial court's errors in its handling of a jury note. Count two broadly alleges that Glenn W. Falk, the petitioner's appellate counsel, provided ineffective assistance of counsel. Count three alleges that the trial court violated the petitioner's constitutional rights by providing an erroneous charge to the jury regarding the definition of the intent element of murder. Count four broadly and vaguely alleges that the petitioner's incarceration violates his . . . rights under the fifth and fourteenth amendments to the [United States] constitution and article first, § 8, of the Connecticut constitution. The respondent, the Commissioner of Correction, filed a return denying the petitioner's allegations in the amended petition and raising the special defense of procedural default with regard to the petitioner's claim in count three as to the trial court's instruction on the intent element of murder. The petitioner filed a reply denying the respondent's procedural default defense. Both parties then filed pretrial briefs.

         ‘‘Following a trial to the [habeas] court, both parties filed posttrial briefs. Approximately seven months after the parties filed their posttrial briefs, the [habeas] court held a hearing wherein the parties appeared on the record and discussed some of the issues raised before the [habeas] court. In particular, the [habeas] court and the parties discussed the petitioner's claims pertaining to the trial court's handling of the jury note. The [habeas] court then permitted the parties to provide supplemental briefs regarding those claims, which both parties submitted a few weeks thereafter.

         ‘‘The [habeas] court . . . subsequently issued a memorandum of decision denying the petition. First, the [habeas] court concluded that Simon did not render ineffective assistance of counsel, rejecting multiple allegations underlying the petitioner's claim. Second, the [habeas] court concluded that Falk did not provide ineffective assistance of counsel. Third, the [habeas] court concluded that the petitioner's claim that the trial court committed constitutional error in its charge to the jury regarding the intent element of murder was procedurally defaulted and, in any event, meritless because the charge was correct and not misleading. Fourth, the [habeas] court concluded that the petitioner's claim that the trial court committed constitutional error in its handling of the jury note was both procedurally defaulted and not raised properly before the habeas court. Nonetheless, the [habeas] court considered the claim on its merits, concluding that the trial court's errors did not prejudice the petitioner and were, therefore, harmless. Finally, the [habeas] court rejected the petitioner's broad claim in count four that his incarceration violated his constitutional rights, citing its conclusions that the petitioner did not prove any of his allegations in counts one, two, or three of his amended petition.

         ‘‘The petitioner filed a petition for certification to appeal from the [habeas] court's judgment [to the Appellate Court], which [was] granted. Before filing his appeal with [the Appellate Court], the petitioner filed a motion for reconsideration, which the habeas court denied. The petitioner then filed a motion for rectification, arguing that the habeas court improperly failed to use a structural error analysis to determine whether the trial court had violated his constitutional rights. The habeas court denied his motion.'' (Citations omitted; footnotes omitted; internal quotation marks omitted.) Taylor v. Commissioner of Correction, supra, 154 Conn.App. 689-92.

         On appeal to the Appellate Court, the petitioner claimed, inter alia, ‘‘that the [habeas] court erroneously concluded that . . . [Simon] did not render ineffective assistance of counsel for his failure to . . . object to the trial court's errors in its handling of a jury note.'' Id., 688. The Appellate Court rejected this claim, concluding that ‘‘[b]oth the petitioner and the habeas court agree that Simon's performance in relation to the jury note was deficient. His deficient performance did not, however, prejudice the petitioner.'' Id., 720. The Appellate Court further concluded that ‘‘we agree with the [habeas] court that this is not one of the rare instances wherein a petitioner need not prove prejudice to establish an ineffective assistance of counsel claim. . . . We are not persuaded that the circumstances of this case require us to remove from the petitioner the burden to prove prejudice.'' (Citations omitted; footnote omitted.) Id., 721-22. Thereafter, the petitioner filed a petition for certification to appeal to this court, which was granted.[1]

         On appeal to this court, the petitioner claims that the Appellate Court incorrectly affirmed the judgment of the habeas court denying his petition. Specifically, the petitioner asserts that the Appellate Court incorrectly required him to demonstrate prejudice from Simon's handling of the jury note during trial.

         We begin by setting forth the legal principles and standard of review applicable to the petitioner's appeal. ‘‘The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.'' (Internal quotation marks omitted.) Taylor v. Commissioner of Correction, 284 Conn. 433, 448, 936 A.2d 611 (2007). The application of historical facts to questions of law that is necessary to determine whether the petitioner has demonstrated prejudice under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), however, is a mixed question of law and fact subject to our plenary review. See, e.g., Copas v. Commissioner of Correction, 234 Conn. 139, 152-53, 662 A.2d 718 (1995).

         ‘‘As enunciated in Strickland . . . [a] claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. . . . 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 quotation marks omitted.) Fernandez v. Commissioner of Correction, 291 Conn. 830, 838, 970 A.2d 721 (2009). A court can find against a petitioner, with respect to a claim of ineffective assistance of counsel on either the performance prong or the prejudice prong, whichever is easier. Washington v. Commissioner of Correction, 287 Conn. 792, 852-53, 950 A.2d 1220 (2008).

         The following additional facts, as found by the habeas court, are relevant to the present appeal. ‘‘On the third day of deliberations, the trial court received a jury note signed by the foreperson.[2] The note read:

         ‘‘ ‘Judge Barry-I have polled the jury [four] times after various deliberations and discussions. Votes were as follows on the charge of murder:

‘‘ ‘10-8-97

4G

5NG

3 undecided

‘‘ ‘10-9-97

6G

5NG

1 undecided

‘‘ ‘10-9-97

7G

5NG

‘‘ ‘10-10-97

7G

5NG

         ‘‘ ‘I started discussion this [morning] with a proposal to compromise-that is, that we would find [the petitioner] not guilty on murder and move to convict on a ...


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