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Arroyo v. Commissioner of Correction

Court of Appeals of Connecticut

April 25, 2017

REYNALDO ARROYO
v.
COMMISSIONER OF CORRECTION

          Argued January 19, 2017

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

          Moira L. Buckley, assigned counsel, for the appellant (petitioner).

          Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Angela R. Macchiarulo and Michael J. Proto, senior assistant state's attorneys, for the appellee (respondent).

          Alvord, Mullins and Norcott, Js.

          OPINION

          ALVORD, J.

         The petitioner, Reynaldo Arroyo, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly concluded that his trial counsel did not provide ineffective assistance and that his claim of prosecutorial impropriety was procedurally defaulted. Because the petitioner has failed to demonstrate that the habeas court abused its discretion in denying his petition for certification to appeal, we dismiss the appeal.

         The following factual and procedural history is relevant to this appeal. In March, 2001, the petitioner, a crack cocaine addict, lived with his girlfriend, Sherry Krick, in her apartment in a condominium complex in Middletown. Richmond L. Perry, a crack cocaine dealer, lived in the same condominium complex. The petitioner knew Perry and often acted as a ‘‘runner, '' or intermediary, for him in his drug dealing business.

         In the afternoon of March 28, 2001, at approximately 2 p.m., the petitioner asked his neighbor, Charles Smith, if he could borrow money, promising to pay the money back after he went on ‘‘a mission.'' Later that evening, at about 8 p.m., the petitioner and Perry drove to Mike's Package Store in Middlefield. While in the store, an argument ensued between the petitioner, Perry, and the owner of the store, Edmund Caruso. As the argument escalated, Perry drew a nine millimeter firearm. In response, Caruso grabbed his tear gas canister and sprayed it at Perry and the petitioner. Perry then shot Caruso several times, and Caruso subsequently died as a result of his wounds. Following the shooting, the petitioner and Perry fled from the scene with the package store's cash register.

         When they returned to their condominium complex, Perry first went home to change his clothing, which was covered in tear gas, andtoshower. After showering, the petitioner and Perry wrapped the register in the petitioner's blanket and carried it into his and Krick's apartment, where the petitioner used a screwdriver to open it. The petitioner and Perry divided the proceeds from the register and then hid it behind the bedroom dresser.

         That same evening, the petitioner and Perry offered to sell Smith the firearm that they used in the robbery, but he declined to purchase it. The petitioner subsequently arranged to sell the firearm to Juan Cruz, another crack cocaine dealer with whom he was associated. On March 31, 2001, the petitioner and Perry met with Cruz and sold him the firearm, assuring him that it was ‘‘clean, '' i.e., not associated with any crimes.[1]

         In the days following the robbery, the petitioner spoke to Smith about the result of his ‘‘mission.'' Two or three days after the robbery, Smith visited Krick's apartment. The petitioner showed Smith the register behind the bedroom dresser and told him that ‘‘it was from his mission, but he had to get rid of it.'' Sometime thereafter, Smith saw the petitioner throw the register into the dumpster outside the condominium complex. The petitioner later told Smith that ‘‘things went bad when he went to do that mission. Things went bad. The old man got killed. No one meant for the old man to get killed.''

         During the course of the investigation of the robbery, the petitioner made several written and oral statements to the police.[2] The petitioner admitted to knowing details about the robbery, but he insisted that Perry committed the robbery and murder and told him about it afterward. Nevertheless, the petitioner acknowledged that Perry came to Krick's apartment with the register after the robbery. He also admitted that he (1) broke open the register with his screwdriver, (2) shared the cash proceeds from the register with Perry, (3) hid the register behind the dresser in his and Krick's bedroom, (4) disposed of the register in a dumpster outside of his and Krick's apartment, and (5) facilitated and participated in the sale to Cruz of the firearm used during the robbery.

         Thereafter, the petitioner was charged with felony murder, murder, robbery in the first degree, larceny in the fifth degree, and conspiracy to commit robbery in the first degree. While incarcerated and awaiting trial, the petitioner made statements to two inmates in which he admitted to participating in the robbery with Perry and described what happened during and after the robbery. To one of these inmates, who was the petitioner's friend and former roommate, the petitioner further expressed his concern that his alibi witnesses, Krick and a ‘‘married guy, ''[3] were not corroborating his story about being home the evening of the robbery.

         After a trial, the jury found the petitioner guilty of felony murder, larceny in the fifth degree, and conspiracy to commit robbery in the first degree. The jury found him not guilty, however, of murder and robbery in the first degree, which were the only counts in which the petitioner was charged with personally possessing the firearm or shooting the victim.[4] State v. Arroyo, 292 Conn. 558, 561-62, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130 S.Ct. 1296, 175 L.Ed.2d 1086 (2010). The court thereafter rendered judgment accordingly and sentenced the petitioner to a total effective term of sixty years imprisonment. The petitioner's conviction was affirmed on direct appeal. Id., 561.

         The petitioner initiated this habeas action on April 8, 2010. On March 13, 2013, the petitioner filed a six count amended petition. Relevant to this appeal, the petitioner claimed that his trial counsel rendered ineffective assistance by not (1) offering Perry's plea hearing transcript as an exhibit; (2) presenting the testimony of an expert witness; and (3) offering ‘‘a depiction of the floor plan and/or physical layout'' of Krick's apartment. Additionally, the petitioner claimed that the prosecutor committed certain improprieties during her case-in-chief and closing argument by soliciting and utilizing Perry's false trial testimony concerning his plea agreement with the state. After a two day trial, the habeas court denied the petition for a writ of habeas corpus and the petition for certification to appeal. This appeal followed.

         The petitioner claims that the habeas court abused its discretion by denying his petition for certification to appeal and erred by denying his claims of ineffective assistance of trial counsel and prosecutorial impropriety. We conclude that the habeas court did not abuse its discretion by denying the petition for certification to appeal.

         ‘‘We begin by setting forth the applicable standard of review and procedural hurdles that the petitioner must surmount to obtain appellate review of the merits of a habeas court's denial of the habeas petition following denial of certification to appeal. In Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994), [our Supreme Court] concluded that . . . [General Statutes] § 52-470 (b) prevents a reviewing court from hearing the merits of a habeas appeal following the denial of certification to appeal unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas court. In Simms v. Warden, 230 Conn. 608, 615-16, 646 A.2d 126 (1994), [our Supreme Court] incorporated the factors adopted by the United States Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991), as the appropriate standard for determining whether the habeas court abused its discretion in denying certification to appeal. This standard requires the petitioner to demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . A petitioner who establishes an abuse of discretion through one of the factors listed above must then demonstrate that the judgment of the habeas court should be reversed on its merits. . . . In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. . . .

         ‘‘The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record. . . . To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . . . . [A] finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'' (Citation omitted; emphasis in original; internal quotation marks omitted.) Brewer v. Commissioner of Correction, 162 Conn.App. 8, 12, 130 A.3d 882 (2015). Having set forth the standard of review, we will consider the merits of the claims raised by the petitioner.

         I

         We begin by addressing the petitioner's two claims relating to Perry's plea agreement with the state. First, the petitioner claims that the habeas court erroneously concluded that trial counsel did not render ineffective assistance when he failed to offer Perry's plea hearing transcript as an exhibit. Second, the petitioner claims that the habeas court erroneously concluded that his prosecutorial impropriety claim was procedurally defaulted. That second claim was based on the prosecutor's alleged solicitation and use during the state's casein-chief and closing argument of Perry's false testimony concerning his plea agreement. The petitioner contends that the procedural default was cured by good cause, namely, ineffective assistance of trial counsel in failing to raise a claim of prosecutorial impropriety at trial and sentencing and in failing to preserve this issue for direct appeal. We disagree.

         The following additional facts are relevant to both of these claims. On January 21, 2003, Perry pleaded guilty to felony murder and robbery in the first degree. During her recitation of the factual basis for the guilty pleas, the prosecutor, who was also prosecuting the petitioner's case, did not indicate which of the two defendants the state believed committed the shooting; instead, she stated that ‘‘Mr. Caruso was shot and killed by one of the participants in the robbery . . . who was Mr. Perry or Mr. Arroyo.''[5] After setting forth the factual basis for the pleas, the prosecutor explained that she had agreed to recommend a sentence of ‘‘forty-five years to serve.'' She emphasized that ‘‘our offer of forty-five years is predicated and based on [Perry's] agreement to testify in a truthful manner only regarding Mr. Arroyo's participation in the robbery . . . .''

         During the court's canvass, Perry repeatedly confirmed that he understood that the recommended sentence of forty-five years was contingent on his truthful testimony at the petitioner's criminal trial. After the court accepted Perry's guilty pleas, Perry's counsel asked the prosecutor to clarify what the state's definition of truthful was, and the court asked the prosecutor whether Perry's last statement[6] ‘‘was essentially the truth.'' The prosecutor agreed that the last statement was ‘‘essentially the truth, '' and then she further clarified: ‘‘The state's understanding of the truth is that Mr. Perry participated in the robbery, which led to the death of Mr. Caruso, in conjunction of Mr. Arroyo.''

         On December 1 and 2, 2004, Perry testified at the petitioner's criminal trial. During direct examination, Perry confirmed that the prosecutor was also prosecuting him for his involvement in the robbery and that although he had pleaded guilty to two offenses, he had not been sentenced. Perry also confirmed that he was going to receive a forty-five year sentence, that there was no chance that the state would recommend less than forty-five years, and that a condition of him receiving ‘‘the forty-five year offer'' was not that he identify the petitioner as the shooter.

         Trial counsel began his cross-examination by highlighting that although Perry pleaded guilty to felony murder and robbery in the first degree, he still had four pending charges against him-murder, conspiracy to commit robbery in the first degree, larceny in the fifth degree, and violation of probation.[7] Trial counsel discussed with Perry the fact that his sentencing had been postponed until after his testimony in the petitioner's trial and that, unless he testified ‘‘in a manner satisfactory to the state, '' he will not receive a forty-five year sentence. Perry disagreed with trial counsel's assertion that receiving a forty-five year sentence was contingent on his having testified at the petitioner's trial and insisted that forty-five years was ‘‘going to be on the table no matter what.''

         Thereafter, trial counsel thoroughly and systematically reviewed with Perry the maximum term of imprisonment authorized for each of the five crimes with which he was charged in connection with his involvement in the robbery. Trial counsel emphasized at the beginning and end of this lengthy analysis that Perry's maximum sentencing exposure for all of these crimes was 185 years imprisonment. Trial counsel further observed that ‘‘forty-five years would be only about a quarter of 185.''

         Beginning with this early exchange, a theme emerged over the course of trial counsel's lengthy cross-examination. Perry consistently maintained that there was no ‘‘deal'' and that a forty-five year sentence was always ‘‘on the table, '' and trial counsel repeatedly highlighted for the jury Perry's actual maximum sentencing exposure, the number of serious charges pending against him, and the fact that a sentence of forty-five years was contingent on Perry's testimony for the state.[8]

         When, toward the end of trial counsel's cross-examination, Perry continued to deny that he was receiving a ‘‘deal, '' trial counsel observed that ‘‘there was a discussion right out here in the public record, in the open court, about what you would have to do to get this sentence.'' Trial counsel then discussed with Perry the prosecutor's statements about his plea agreement at his guilty plea hearing while presenting Perry with and reading aloud from Perry's guilty plea hearing transcript.[9] Trial counsel did not identify for the jury, however, the document he was showing Perry as Perry's guilty plea hearing transcript, nor did trial counsel offer it as an exhibit.

         On redirect examination, the prosecutor asked Perry: ‘‘Defense attorney asked you if you were getting forty-five years for your truthful cooperation, '' and Perry agreed. The prosecutor then asked Perry to confirm that the sentence was forty-five years and that there was ‘‘[n]ot a possibility . . . that I'm going to recommend any less of that sentence . . . ?'' Perry agreed with the prosecutor's statements and then said: ‘‘Forty-five years always been on the table. I could of seen if you came with forty-four years, I would have thought that was a deal. Common sense will tell you that forty-five, forty-five years has been on the table the whole time. That's not a deal.'' The prosecutor did not correct Perry's false assertion that there was no deal; she stated that she had no further questions.

         During summation, trial counsel and the prosecutor commented on Perry's plea agreement with the state. Trial counsel utilized Perry's staunch refusal ‘‘to acknowledge he was getting any benefit at all'' or the extent of his participation in the robbery to demonstrate Perry's lack of credibility. In particular, trial counsel referred to how, when he presented Perry with the transcript from his plea hearing, in which the prosecutor indicated that he would be sentenced to forty-five years imprisonment for testifying truthfully against the petitioner, Perry continued to refuse to acknowledge the benefit he was receiving.[10] During her rebuttal argument, the prosecutor responded that an agreement to a sentence of forty-five years imprisonment was not much of a benefit in light of Perry's young age and the fact that he will have to spend the next forty-five years in prison with fellow inmates knowing that he testified against his codefendant.

         During its final charge to the jury, the court included a special credibility instruction concerning Perry's testimony. In relevant part, the court admonished the jury that it should ‘‘carefully scrutinize the testimony of Richmond Perry'' and ‘‘keep in mind that he may, in his own mind, be looking for or hoping for some favorable treatment in the sentence or disposition of his own case. And that therefore he may have such an interest in the outcome of this case that his testimony may have been colored by that fact. Therefore, then, you must look with particular care at the testimony of an accomplice and scrutinize it very carefully before you accept it.''

         In his habeas petition, the petitioner alleged that trial counsel rendered ineffective assistance when he failed to offer Perry's plea hearing transcript as an exhibit. Additionally, the petitioner claimed that the prosecutor committed certain improprieties during her case-in-chief and closing argument by soliciting and utilizing Perry's false testimony concerning the nature and existence of his plea agreement. In his return, the respondent, the Commissioner of Correction, pleaded that the petitioner's claim of prosecutorial impropriety was procedurally defaulted because it was not raised before the trial court or on appeal. In his reply, the petitioner argued that ‘‘[a]ny alleged procedural default is cured by good cause and prejudice, '' namely, ineffective assistance of trial counsel.[11]

         At the habeas trial, the petitioner called his trial counsel as a witness. Trial counsel recalled that ‘‘Perry insisted that forty-five [years] was on the table and that's always been on the table, '' and he agreed that Perry's testimony in that respect was inaccurate. Trial counsel further acknowledged that during cross-examination he used Perry's plea hearing transcript to refresh Perry's recollection but he did not offer it as an exhibit, even though he could have offered it as impeachment evidence or substantively as a Whelan statement. [12] Trial counsel explained, however, that because he cross-examined Perry extensively on his truthfulness and Perry repeatedly admitted that he lied to the police in his written statements, ‘‘[i]t got to the point where it was becoming tedious . . . for the jury to even hear it.''

         In its memorandum of decision, the habeas court rejected the petitioner's claim of ineffective assistance of counsel and determined that his claim of prosecutorial impropriety was procedurally defaulted. With respect to the claim of ineffective assistance of counsel, the habeas court assumed, arguendo, that trial counsel rendered deficient performance by not offering Perry's plea hearing transcript as an exhibit. The court further held that the petitioner failed to satisfy the prejudice prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because its ‘‘confidence in the jury's verdict remain[ed] high despite the inaccuracy of Perry's description of his plea agreement.'' With respect to the petitioner's claim that the prosecutor committed certain improprieties by failing to correct Perry's misrepresentation of his plea agreement, the court held that the claim was procedurally defaulted because ‘‘[t]he petitioner submitted no evidence of any good cause justifying his failure to assert any previously omitted trial misconduct claim at trial or on appeal.''

         A

         The petitioner argues that trial counsel rendered ineffective assistance when he failed to offer Perry's plea hearing transcript as an exhibit because the transcript demonstrates that (1) Perry's plea agreement was contingent on his having testified ‘‘truthfully'' at the petitioner's criminal trial; (2) the state's definition of ‘‘truthfully'' required Perry to identify the petitioner as the shooter; (3) Perry had a significant incentive to lie and to identify the petitioner as the shooter at trial; and (4) ‘‘the prosecutor was willing to give the jury the wrong impression, by soliciting and eliciting false testimony and then perpetuating it in summation, about a plea deal that was critical to the key witness' credibility.'' The respondent replies that in light of the totality of the evidence before the jury, the petitioner cannot prove there is a reasonable probability that but for trial counsel's alleged errors the result of the proceeding would have been different. We agree with the respondent.

         To succeed on a claim of ineffective assistance of counsel, a petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, supra, 466 U.S. 687. Strickland requires that a petitioner satisfy both a ‘‘performance prong'' and a ‘‘prejudice prong.'' To satisfy the performance prong, ‘‘a [petitioner] must show that counsel's conduct fell below an objective standard of reasonableness for competent attorneys [as measured by prevailing professional norms].'' Davis v. Commissioner of Correction, 319 Conn. 548, 555, 126 A.3d 538 (2015), cert. denied sub nom. Semple v. Davis, U.S., 136 S.Ct. 1676, 194 L.Ed.2d 801 (2016); Iovieno v. Commissioner of Correction, 242 Conn. 689, 703, 699 A.2d 1003 (1997). To satisfy the prejudice prong, ‘‘a [petitioner] must show a reasonable probability that the outcome of the proceeding would have been different but for counsel's errors.'' Davis v. Commissioner of Correction, supra, 555. ‘‘The claim will succeed only if both [Strickland] prongs are satisfied. . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier.'' (Citations omitted; emphasis in original; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 713, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

         We are not persuaded that there is a reasonable probability that had the jury been presented with Perry's plea hearing transcript the outcome of the petitioner's criminal trial would have been different. As our Supreme Court observed on direct appeal, the state presented ‘‘strong evidence that the [petitioner] had participated in the robbery.'' State v. Arroyo, supra, 292 Conn. 575. The petitioner admitted to the police that he (1) broke open the register with his screwdriver, (2) shared the cash proceeds from the register with Perry, (3) hid the register behind the dresser in his and Krick's bedroom, (4) disposed of the register in a dumpster outside of his and Krick's apartment, and (5) facilitated and participated in the sale of the firearm used during the robbery to shoot the victim. Although the petitioner maintained in his statements to the police that he did not participate in the robbery, the petitioner admitted to Smith and two fellow inmates to being involved in the robbery.[13] Finally, the state presented evidence that a jacket seized from the petitioner and Krick's apartment, which matched the description of the jacket the petitioner admitted to wearing on March 28, 2001, was contaminated with the active ingredient in the tear gas used by the victim to fight off his attackers.

         Perry, as an admitted participant in the robbery, was an important witness. Trial counsel's thorough and surgical cross-examination of Perry, however, made the jury abundantly aware of Perry's motive to lie and to implicate the petitioner in the robbery. Throughout the course of cross-examination, trial counsel reminded the jury of Perry's original charges, of the charges that remained pending against Perry, of Perry's maximum sentencing exposure for each of those charges as well as his total maximum sentencing exposure, and of the fact that Perry's sentencing had been postponed until after he testified against the petitioner. Trial counsel also reviewed Perry's prior inconsistent statements with him in detail, and Perry admitted on numerous occasions that he had lied to the police in all of his written statements. Trial counsel further demonstrated that Perry's lies in his written statements were often designed either to establish that he was not present for the robbery or, when he became aware that physical evidence placed him in the midst of the robbery, to mitigate his role in the robbery by suggesting that he was present for the robbery by happenstance, not as an active participant.

         The petitioner argues that ‘‘simply because [trial counsel] cross-examined Perry extensively regarding the plea deal does not mean that he was effective in showing that Perry was untruthful.'' We disagree. It is clear from the jury's verdict that the jury did not credit all of Perry's testimony. Perry insisted at trial that the petitioner shot the victim. Nevertheless, the jury found the petitioner not guilty of robbery in the first degree and murder, the only counts in which the petitioner was charged with either personally possessing the firearm used in the robbery or shooting the victim. See footnote 4 of this opinion.

         Therefore, we conclude that the habeas court did not abuse its discretion when it denied the petitioner's petition for certification to appeal as to his claim of ineffective assistance of counsel that was based on trial counsel's ...


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