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Antwon W. v. Commissioner of Correction

Court of Appeals of Connecticut

May 9, 2017

ANTWON W.[*]
v.
COMMISSIONEROF CORRECTION

          Argued January 10, 2017

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

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

          Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Eva B. Lenczewski, supervisory assistant state's attorney, for the appellee (respondent).

          Lavine, Beach and Flynn, Js.

          OPINION

          FLYNN, J.

         The petitioner, Antwon W., appeals from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus alleging ineffective assistance of counsel. He claims that, contrary to the decision of the habeas court, his trial counsel rendered ineffective assistance by failing to (1) adequately protect his constitutional right to an impartial jury; (2) object to the jury instructions provided by the trial court, Cremins, J., [1] regarding the proper use of constancy of accusation evidence; (3) adequately cross-examine or otherwise impeach the victim; (4) advise him to accept the state's plea offer rather than proceed to trial; and (5) investigate and call witnesses who would have provided exculpatory testimony. We affirm the judgment of the habeas court.

         The petitioner sexually assaulted his twelve year old cousin four times from 2002 through 2003 at his uncle's home. State v. Antwon W., 118 Conn.App. 180, 181-84, 982 A.2d 1112 (2009), cert. denied, 295 Conn. 922, 991 A.2d 568 (2010). In 2006, the petitioner, who was eighteen years old at the time of the assaults, was convicted of one count of sexual assault in the third degree, six counts of sexual assault in the first degree, [2] and one count of risk of injury to a child. Id., 184-85. Attorney Gregory St. John represented the petitioner throughout the criminal trial. Judge Cremins sentenced the petitioner to an effective term of fifteen years imprisonment followed by fifteen years of special parole. Id., 185. This court upheld the petitioner's conviction on direct appeal. Id., 182.

         Thereafter, the petitioner filed a second amended petition for a writ of habeas corpus setting forth numerous claims of ineffective assistance of counsel.[3] As relevant to this appeal, the petitioner alleged that Attorney St. John performed deficiently because he failed to (1) ensure that the petitioner was tried before an impartial jury by neglecting to ask prospective jurors during voir dire whether they had been the victim of sexual assault, and by failing to investigate potential juror bias after one of the jurors expressed concerns during deliberations; (2) object to Judge Cremins' instructions to the jury regarding the proper use of constancy of accusation evidence; (3) adequately cross-examine or otherwise impeach the state's witnesses; (4) provide the petitioner with adequate legal advice regarding the state's plea offers, or advise him that accepting a plea offer, rather than proceeding to trial, was in his best interests; and (5) investigate and call witnesses who could have provided exculpatory evidence.[4] The petitioner further alleged that, if not for these acts and omissions by Attorney St. John, there was a reasonable probability he would have prevailed in his criminal trial.

         A habeas trial was held on September 23 and 24, 2014. Prior to trial, the respondent, the Commissioner of Correction, filed a motion in limine to preclude the petitioner from introducing testimony from the jurors in his criminal trial regarding their deliberative process. The habeas court granted that motion and subsequently denied the petitioner's motion for reconsideration. At the habeas trial, the petitioner testified on his own behalf and presented testimony from Attorney Leon Kaatz, an expert in criminal defense practice. Attorney St. John testified for the respondent. The habeas court denied the petitioner's second amended petition in a memorandum of decision dated December 18, 2014. Following the granting of certification to appeal, this appeal followed. Additional facts and procedural history will be set forth where necessary.

         We begin by setting forth our standard of review and the legal principles that govern claims of ineffective assistance of counsel. ‘‘The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. . . . Accordingly, [t]he 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. . . . The application of the habeas court's factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review.'' (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 677, 51 A.3d 948 (2012).

         As the United States Supreme Court articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), ‘‘[a] claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment. . . . Put another way, 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. . . . Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong.'' (Citations omitted; internal quotation marks omitted.) Thompson v. Commissioner of Correction, 131 Conn.App. 671, 690-91, 27 A.3d 86, cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011).

         Furthermore, in analyzing the performance prong of Strickland, our focus is on ‘‘whether counsel's assistance was reasonable considering all the circumstances. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . .

         ‘‘Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. . . . At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'' (Citation omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, supra, 306 Conn. 679-80.

         As a preliminary matter, the petitioner argues that we should apply the cumulative error doctrine in determining whether he was prejudiced by Attorney St. John's purported deficiencies. Our appellate courts, however, have consistently declined to adopt this method of review. ‘‘When faced with the assertion that the claims of error, none of which individually constituted error, should be aggregated to form a separate basis for a claim of a constitutional violation of a right to a fair trial, our Supreme Court has repeatedly decline[d] to create a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts.'' (Internal quotation marks omitted.) Anderson v. Commissioner of Correction, 148 Conn.App. 641, 645, 85 A.3d 1240, cert. denied, 311 Conn. 945, 90 A.3d 976, cert. denied sub nom. Anderson v. Dzurenda, __U.S.__, 135 S.Ct. 201, 190 L.Ed.2d 155 (2014); see State v. Tillman, 220 Conn. 487, 505, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S.Ct. 3000, 120 L.Ed.2d 876 (1992). Because it is not within the province of this court to reevaluate decisions of our Supreme Court; Anderson v. Commissioner of Correction, supra, 645; we lack authority under the current state of our case law[5] to analyze the petitioner's ineffective assistance claims under the cumulative error rule. Moreover, application of the cumulative error rule would not entitle the petitioner to relief because not one of Attorney St. John's purported trial errors constitutes deficient performance under Strickland. See Henderson v. Commissioner of Correction, 104 Conn.App. 557, 567, 935 A.2d 162 (2007), cert. denied, 285 Conn. 911, 943 A.2d 470 (2008).

         That threshold issue resolved, and mindful of the above legal principles, we now turn to the petitioner's claims on appeal.

         I

         The petitioner first claims that the habeas court erred in concluding that Attorney St. John did not render ineffective assistance of counsel by failing to adequately protect his constitutional right to an impartial jury. In support of this claim, the petitioner argues (1) that Attorney St. John was ineffective because, during voir dire, he neglected to ask any of the potential jurors whether they or someone close to them had been the victim of sexual assault; (2) that Attorney St. John was ineffective because he failed to request a more searching inquiry into potential juror bias or misconduct after a juror raised concerns about another juror's ‘‘personal past'' during deliberations; and (3) that the habeas court improperly granted the respondent's motion in limine precluding him from calling the jurors as witnesses in his habeas trial to establish that juror bias existed and prejudiced him in his criminal trial.[6] We address each of these arguments in turn.

         A

         The petitioner first contends that Attorney St. John rendered ineffective assistance during voir dire because he failed to ask potential jurors whether they or someone close to them had been a victim of sexual assault. We disagree.

         The record discloses the following facts. The trial court, Prescott, J., conducted jury selection from April 17 through April 19, 2006. At the start of each day, prior to the commencement of individual voir dire questioning, Judge Prescott informed each of the venire panels that the purpose of voir dire was to ascertain each prospective juror's ability to be impartial, instructed the panel to answer questions accurately and to the best of their ability, and posed an array of preliminary questions to the panels, including: ‘‘Have you had any life experiences that in any way relate to the charges in this case that might prevent you from being a fair and impartial juror? Do you have any bias or prejudices that could in any way come into play in sitting on this case?'' Several members of the venire responded affirmatively to these preliminary questions and were ultimately excused for cause following individual voir dire because either they or their close friend or family member had been the victim of sexual assault. This is an indication in the record that Judge Prescott's preliminary questions were adequate to deal with any bias or prejudice that the prospective jurors may have had because either they or persons close to them had been victimized by sexual assault crimes.

         None of the six venire members ultimately selected as jurors responded affirmatively to any of Judge Prescott's preliminary questions. The six prospective jurors then appeared before Judge Prescott, the prosecutor, and Attorney St. John for individual voir dire. Judge Prescott began each examination by asking the prospective juror whether he or she was aware of anything that they thought might affect their ability to be fair and impartial. Each prospective juror responded in the negative. One prospective juror, V.B., [7] stated in response to a subsequent question from Judge Prescott that she had ‘‘trouble'' with the nature of the charges, but stated she could nonetheless be fair and impartial. Attorney St. John asked V.B. whether there was ‘‘any kind of a barrier to [her] being able to be a fair and impartial juror, '' to which V.B. responded that she believed she would be fair. Attorney St. John further asked V.B. if there was anything else the court and counsel should know that might impact her ability to be fair and impartial, and V.B. answered that she had lost a child.

         Another prospective juror, J.B., informed Judge Prescott that she was ‘‘a little partial to the sexual offenses'' because, given her training and work as a nurse, she tended to be more of a victim advocate. She indicated, however, that she would try to be fair. The prosecutor elicited from J.B. that, other than a patient she encountered at work, she had never known anyone who had been the victim of sexual assault. The four other prospective jurors were all asked, by Attorney St. John, the prosecutor or both of them, whether the nature of the charges or anything else impacted their ability to be impartial, and none of them raised concerns about past experiences with sexual assault.

         In his habeas petition, the petitioner alleged that Attorney St. John provided ineffective assistance by failing to ask the jurors whether they had been the victim of sexual assault, which resulted in the empanelment of a juror who was biased against persons accused of sexual assault crimes.[8] The habeas court found that Attorney St. John's failure to pose this specific question did not amount to deficient performance because he and the prosecutor had ‘‘cover[ed] the same territory'' by asking the jurors whether anything about the charges or their life experiences impacted their impartiality. The habeas court concluded that, under these circumstances, the failure to specifically ask whether the jurors had been a victim of sexual assault, ‘‘using those exact words, was inconsequential.'' We discern no error in that reasoning on appeal.

         ‘‘Jury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution.'' (Internal quotation marks omitted.) State v. Miller, 163 Conn.App. 772, 776, 137 A.3d 105, cert. denied, 321 Conn. 905, 136 A.3d 1273 (2016). The federal and state constitutions require juries to be ‘‘composed of individuals able to decide the case solely on the evidence and apply the law in accordance with the court's instructions . . . .'' State v. Griffin, 251 Conn. 671, 691-92, 741 A.2d 913 (1999). Voir dire is critical to protecting the right to an impartial jury because it reveals ‘‘information upon which the trial court may decide which prospective jurors . . . should be excused for cause . . . and . . . information to counsel which may aid them in the exercise of their right to peremptory challenge.'' (Internal quotation marks omitted.) State v. Faust, 237 Conn. 454, 462, 678 A.2d 910 (1996).

         It is well established, however, that in determining whether trial counsel performed deficiently under Strickland, ‘‘[a]n attorney's line of questioning on examination of a witness clearly is tactical in nature. [As such, this] court will not, in hindsight, second-guess counsel's trial strategy.'' (Internal quotation marks omitted.) Antonio A. v. Commissioner of Correction, 148 Conn.App. 825, 832, 87 A.3d 600, cert. denied, 312 Conn. 901, 91 A.3d 907 (2014). Likewise, courts cannot prescribe a specific manner by which attorneys conduct voir dire, a process that ‘‘is inevitably a call upon [the trial lawyer's] experience and intuition.''[9] Romero v. Lynaugh, 884 F.2d 871, 878 (5th Cir. 1989), cert. denied sub nom. Romero v. Collins. 494 U.S. 1012, 110 S.Ct. 1311, 108 L.Ed.2d 487 (1990). For example, this court rejected a claim that the trial court erred in declining to suggest to trial counsel ways to rephrase voir dire questions because reviewing courts ‘‘cannot impose on a trial court the burden of suggesting to parties how they should conduct their cases.'' State v. Charlton, 30 Conn.App. 359, 367, 620 A.2d 1297, cert. denied, 225 Conn. 922, 625 A.2d 824 (1993). We therefore indulge a strong presumption that trial counsel's lines of inquiry during voir dire were reasonable. Habeas petitioners must bear the heavy burden of demonstrating that ‘‘there [was] no . . . tactical justification for the course taken.'' (Internal quotation marks omitted.) Taft v. Commissioner of Correction, 159 Conn.App. 537, 557, 124 A.3d 1, cert. denied, 320 Conn. 910, 128 A.3d 954 (2015).

         The petitioner has not sustained that burden in the present case. Although Attorney St. John did not ask the prospective jurors the specific question of whether they or someone close to them had been the victim of sexual assault, the voir dire process as a whole adequately covered those subjects. Judge Prescott, in his preliminary questions, asked the members of each venire panel whether they had any ‘‘life experiences'' or ‘‘bias or prejudices'' that might color their ability to return a fair and impartial verdict. Attorney St. John and the prosecutor then asked each juror individually whether they knew of anything that might impact their impartiality. None of the jurors identified anything of concern, and each expressed confidence she or he could be impartial. Attorney St. John's failure to ask a specific question that would have been largely cumulative of other questions does not render his performance deficient.[10] As we have stated, attorneys need not question jurors in any particular manner to be effective. Accordingly, the petitioner's claim fails to satisfy the performance prong of Strickland; we need not reach the issue of prejudice.

         The petitioner further argues, without analysis, that Attorney St. John should have ‘‘asked that [J.B.] be excused for cause or should have exercised a peremptory challenge.'' To the extent the petitioner is attempting to raise a distinct claim of ineffective assistance, we disagree. This court has consistently recognized that decisions about whether to peremptorily strike particular jurors are matters of trial strategy. See Smith v. Commissioner of Correction, 116 Conn.App. 383, 389, 975 A.2d 751, cert. denied, 293 Conn. 925, 980 A.2d 912 (2009); Beverly v. Commissioner of Correction, 101 Conn.App. 248, 252, 922 A.2d 178, cert. denied, 283 Conn. 907, 927 A.2d 916 (2007); Ziel v. Commissioner of Correction, 89 Conn.App. 371, 378, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005). This deference soundly recognizes that a trial attorney is in the best position to determine whether a particular venire person can fairly hear his client's cause. Here, J.B. repeatedly indicated that, despite her training and work as a nurse, she would try to be fair and had never known anyone who had been the victim of sexual assault. Given these assurances, any claim by the petitioner that Attorney St. John's failure to strike J.B. was outside the realm of reasonable trial strategy lacks merit.

         B

         The petitioner next argues that Attorney St. John performed deficiently by failing to request a more thorough investigation into juror bias or misconduct after one of the jurors raised concerns during deliberations about another juror's ‘‘personal past.'' We disagree.

         The jury began deliberating on May 15, 2006. The following morning, on May 16, 2006, Judge Cremins brought one of the jurors, L.B., into the courtroom because she had ‘‘expressed a concern.'' The following exchange ensued:

‘‘The Court: If the concern is something not related to deliberations, I want you to tell me what that is. If it's the other, if the concern relates to the deliberations, that's not anything that we can discuss. Okay. Let's first of all tell me which it relates to?
‘‘[L.B.]: Well, it came out during deliberations; however, I think it really doesn't concern deliberations. I think it could affect the deliberations, but ...

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