Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Salters v. Commissioner of Correction

Court of Appeals of Connecticut

August 29, 2017

GAYLORD SALTERS
v.
COMMISSIONER OF CORRECTION

          Argued April 11, 2017

          Arthur L. Ledford, assigned counsel, for the appellant (petitioner).

          Rita M. Shair, senior assistant state's attorney, with whom were Patrick J. Griffin, state's attorney, and, on the brief, Adrienne Maciulewski, assistant state's attorney, for the appellee (respondent).

          Lavine, Mullins and Bear, Js.

         Procedural History

         Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Cobb, J.; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.

         Syllabus

         The petitioner, who had been convicted of various crimes in connection with a gang related shooting, filed a second petition for a writ of habeas corpus, claiming, inter alia, that the counsel who represented him in connection with his first habeas petition provided ineffective assistance in failing to raise claims that the petitioner's criminal trial counsel was ineffective for not objecting to erroneous jury instructions or requesting an evidentiary hearing pursuant to Brady v. Maryland (373 U.S. 83), which the petitioner claimed would have disclosed material, exculpatory impeachment evidence. He also alleged that his first habeas counsel was ineffective for having failed to raise claims that the petitioner's appellate counsel on direct appeal was ineffective for having failed to raise the Brady violation and a claim of prosecutorial impropriety. The habeas court rendered judgment denying the second habeas petition, from which the petitioner, on the granting of certification, appealed to this court.

         Held:

         1. The record was inadequate to review the petitioner's claim that the habeas court erred in failing to apply the strict standard of materiality to his Brady claims, in which he alleged that the prosecutor knowingly relied on false testimony; although the amended habeas petition included factual allegations that the prosecution knowingly relied on false testimony, the habeas court's memorandum of decision was devoid of any factual findings or legal analysis involving the allegations of false testimony, and this court would not address a claim that was not decided by the habeas court.

         2. The petitioner could not prevail on his claim that the habeas court erred in denying his claim that his first habeas counsel was ineffective for having failed to raise a claim that the petitioner's trial counsel provided ineffective assistance by failing to object to certain jury instructions on intent, which included the full statutory definition for specific and general intent crimes, even though the petitioner had been charged with specific intent crimes only; although it was improper for the trial court to include the full statutory definition of intent in its charge to the jury, it was not reasonably possible that the jury was misled and the petitioner was not harmed thereby, as the trial court, in its instructions on the intent required for the crimes charged, repeatedly referred to the proper specific intent required for the commission of those crimes so as to mitigate any harm to the petitioner, whereas it gave the erroneous instruction once.

         3. The habeas court's determination that appellate counsel made a reason- able strategic decision to forgo on direct appeal a claim of prosecutorial impropriety was supported by the record, the evidence having shown that counsel decided to forgo the claim because she considered it to be meritless, and, therefore, because appellate counsel was not deficient for having failed to bring such a claim, a claim of ineffective assistance of first habeas counsel for failing to claim that appellate counsel was ineffective on that ground could not stand; moreover, although certain testimony by a state's witness could have indicated that he was pressured by the police to make a statement, the prosecutor's statements to the jury that the witness was not told to identify the petitioner as the driver of the vehicle from which gunshots were fired and was not directed what to say in his statement to the police were reasonable characterizations of the evidence and were not improper.

          OPINION

          BEAR, J.

         The petitioner, Gaylord Salters, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus.[1] On appeal, the petitioner claims that the habeas court improperly (1) failed to apply the strict standard of materiality to his claim of a Brady violation, [2] which included factual allegations that the prosecution knowingly relied on false testimony; (2) denied his claim of ineffective assistance by his prior habeas trial counsel (habeas counsel) for failing to raise a claim that the petitioner's criminal trial counsel (trial counsel) was ineffective for failing to raise a claim of instructional error;[3] (3) failed to apply the ‘‘findings'' that this court made in his appeal from the judgment in his first habeas case; and (4) found that the decision of his appellate counsel on direct appeal (appellate counsel) to forgo raising a prosecutorial impropriety claim was a reasonable strategic decision. We affirm the judgment of the habeas court.

         As this court previously stated, the jury reasonably could have found the following facts in the petitioner's criminal trial. ‘‘On November 24, 1996, the [petitioner] participated in a gang related shooting in New Haven. The [petitioner], a member of the Island Brothers street gang, drove behind an automobile being driven by Daniel Kelley. Either the [petitioner] or an accomplice riding in his automobile fired on Kelley's automobile. Kelley sustained a gunshot wound to his shoulder and lost control of his automobile, causing it to crash into two vehicles parked nearby. Kelley's passenger, Kendall Turner, a member of the Ghetto Boys street gang, sustained a gunshot wound to his elbow. The Island Brothers and the Ghetto Boys, both of which were involved in illegal activity, had a hostile relationship marked by gun violence between rival gang members.'' State v. Salters, 89 Conn.App. 221, 222-23, 872 A.2d 933, cert. denied, 274 Conn. 914, 879 A.2d 893 (2005).

         The following factual and procedural background is relevant to our resolution of the petitioner's appeal. Following a jury trial, the petitioner was convicted of two counts of assault in the first degree in violation of General Statutes §§ 53a-59 (a) (5) and 53a-8, and one count of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (5) and 53a-48 (a). Id., 222. The petitioner directly appealed to this court, claiming that the trial court violated his right to present a defense by precluding him from presenting testimony from an alibi witness at trial. Id. This court affirmed his conviction. Id., 236.

         In 2006, the petitioner filed his first petition for a writ of habeas corpus, which he subsequently amended. In his second amended petition, he claimed that he was denied due process because the prosecutor withheld material, exculpatory impeachment information, which constituted a Brady violation, in that the prosecutor failed to provide such information pertaining to Kendall Turner, a key witness for the state. Salters v. Commissioner of Correction, 141 Conn.App. 81, 83-84, 60 A.3d 1004, cert. denied, 308 Conn. 932, 64 A.3d 330 (2013). He also alleged ineffective assistance of counsel because his trial counsel failed (1) to sufficiently investigate, discover, and present to the jury information regarding Turner's statement to the police and (2) to conduct sufficient discovery.[4] Id., 84. After conducting a habeas trial, the court, Fuger, J., rendered judgment denying the petition. Id. The habeas court determined that defense counsel's testimony was more credible than the petitioner's testimony, that defense counsel adequately investigated Turner's criminal history prior to trial, and that the prosecutor disclosed all of the information he had pertaining to Turner. Id. The petitioner subsequently appealed to this court.

         On appeal, this court concluded that the habeas court did not err in rejecting the petitioner's claim of ineffective assistance of counsel. Id., 86. Additionally, this court held that the petitioner's Brady claim was procedurally defaulted because, at the time of trial and his direct appeal, he knew of the existence of the records that he claimed in his habeas petition were unlawfully withheld, and he could have raised the alleged Brady violation at trial by requesting an evidentiary hearing on the potential Brady evidence or on direct appeal by raising a Brady claim. Id., 89-90. Consequently, this court affirmed the habeas court's judgment denying the petition; id., 91; and our Supreme Court denied certification to appeal. Salters v. Commissioner of Correction, 308 Conn. 932, 64 A.2d 330 (2013).

         On June 2, 2010, the then self-represented petitioner filed a second petition for a writ of habeas corpus, which is the subject of the present appeal. The habeas court appointed counsel for him. In his fifth amended petition, the petitioner set forth seventeen counts, four of which are relevant to this appeal. In count one, the petitioner asserted that his habeas counsel provided ineffective assistance by failing to allege that his trial counsel provided ineffective assistance by failing to request an evidentiary hearing, pursuant to Brady, which would have revealed material, exculpatory impeachment evidence. Additionally, in count fourteen, the petitioner claimed that his habeas counsel provided ineffective assistance by failing to allege that trial counsel provided ineffective assistance when he failed to object to erroneous jury instructions, which prejudiced the petitioner's case. In count six, the petitioner asserted that his habeas counsel provided ineffective assistance by failing to allege that appellate counsel provided ineffective assistance by failing to ‘‘raise the Brady violation . . . .'' Additionally, in count seven, the petitioner claimed that his habeas counsel provided ineffective assistance by failing to allege that his appellate counsel provided ineffective assistance by failing to raise a claim of prosecutorial impropriety because the prosecutor misstated evidence during closing arguments.

         On July 22, 2015, the habeas court, Cobb, J., rendered judgment denying the petition. As to count one, the court found that the petitioner had failed to establish prejudice by proving that there was a reasonable probability that the result in his criminal trial would have been different. The court determined that further impeachment of Turner would not have added significantly to his cross-examination. On count fourteen, the court found that the jury instruction was appropriate and, therefore, the petitioner had failed to prove that his trial counsel's or his habeas counsel's performance was deficient or that he was prejudiced. As to count six, the court found that there was an inadequate record on direct appeal to raise a previously unraised Brady claim to satisfy Golding review.[5] Additionally, the court had already found that the petitioner failed to prove prejudice regarding the claimed Brady violation and that appellate counsel's decision to forgo such a claim was a strategic decision. Accordingly, the court denied this claim as to appellate counsel. Finally, on count seven, the court found that there was no evidence that appellate counsel could have satisfied the requirements of Golding to prevail on a previously unraised claim of prosecutorial impropriety.[6] Additionally, the habeas court found that appellate counsel's decision to forgo this claim, which she considered weak, was a reasonable strategic decision and that the petitioner failed to establish that he would have prevailed on such a claim. Consequently, the court denied the petition for a writ of habeas corpus. Thereafter, the habeas court granted the petitioner certification to appeal, and this appeal followed.

         ‘‘We begin with the applicable standard of review and the law governing ineffective assistance of counsel claims. The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . 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).

         ‘‘To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both 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. . . . 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.'' (Citation omitted; internal quotation marks omitted.) Breton v. Commissioner of Correction, 325 Conn. 640, 668-69, 159 A.3d 1112 (2017).

         ‘‘[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding. . . . [T]he petitioner will have to prove that one or both of the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . . . Therefore, as explained by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of [trial] counsel must essentially satisfy Strickland twice: he must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his [trial] counsel was ineffective. . . . We have characterized this burden as presenting a herculean task . . . .'' (Citations omitted; internal quotation marks omitted.) Mukhtaar v. Commissioner of Correction, 158 Conn.App. 431, 438-39, 119 A.3d 607 (2015).

         Our standard of review for claims of ineffective assistance of appellate counsel is similar. ‘‘In regard to the second prong [of Strickland], our Supreme Court distinguished the standards of review for claims of ineffective trial counsel and ineffective appellate counsel. . . . For claims of ineffective appellate counsel, the second prong considers whether there is a reasonable probability that, but for appellate counsel's failure to raise the issue on appeal, the petitioner would have prevailed in his direct appeal, i.e., reversal of his conviction or granting of a new trial. . . . This requires the reviewing court to [analyze] the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm.'' (Citations omitted; internal quotation marks omitted.) Moore v. Commissioner of Correction, 119 Conn.App. 530, 535, 988 A.2d 881, cert. denied, 296 Conn. 902, 991 A.2d 1103 (2010).

         I

         The petitioner claims that the habeas court erred in failing to apply the ‘‘strict standard of materiality''[7] to his Brady claims in which he alleged that the prosecution knowingly relied on false testimony. We do not review this claim because the petitioner has failed to provide this court with an adequate record for review.

         Although the petitioner's fifth amended petition included factual allegations that the prosecution knowingly relied on false testimony, the habeas court's memorandum of decision is devoid of any factual findings or legal analysis involving the false testimony allegations raised by the petitioner. ‘‘It is fundamental that claims of error must be distinctly raised and decided in the [habeas] court before they are reviewed on appeal. As a result, Connecticut appellate courts will not address issues not decided by the [habeas] court.'' (Internal quotation marks omitted.) Bozelko v. Commissioner of Correction, 162 Conn.App. 716, 717 n.1, 133 A.3d 185, cert. denied, 320 Conn. 926, 133 A.3d 458 (2016); see also Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996) (claims ‘‘neither addressed nor decided'' by trial court not properly before appellate tribunal). ‘‘It is the responsibility of the appellant to provide an adequate record for review . . . .'' Practice Book § 60-5. Accordingly, we cannot and do not address the petitioner's claim that the court applied the wrong standard of materiality to his Brady claims.[8]

         II

         The petitioner claims that the habeas court erred in denying his assertion that his habeas counsel was ineffective in failing to raise a claim that trial counsel was ineffective for failing to object to the jury instructions because they contained errors that made it easier for the jury to find him guilty. Specifically, the petitioner argues that the trial court's charge to the jury included the full statutory definition of ‘‘acting intentionally, '' which included the definitions for both specific and general intent. As the petitioner was charged only with specific intent crimes-two counts of assault in the first degree and one count of conspiracy to commit assault in the first degree-he argues that the jury was allowed to find him guilty of specific intent crimes while utilizing the lower standard of general intent. Because this improper definition was repeatedly referred to throughout the jury charge, the petitioner argues that the jury was misled. We agree that it was improper for the trial court to have included the full statutory definition of intent but conclude that the petitioner was not harmed thereby or by habeas counsel's failure to raise that claim in the petitioner's first habeas proceeding.

         The following additional facts are relevant to the resolution of this claim. The trial court instructed the jury as follows: ‘‘Section 53a-59 (a) (5) of the Connecticut General Statutes provides that a person is guilty of assault in the first degree when: With intent to cause physical injury to another person, he causes such injury to such person by means of the discharge of a firearm. . . .

         ‘‘For you to find the [petitioner] guilty of this charge, the state must prove each of the following elements beyond a reasonable doubt: (1) that the [petitioner] intended to cause physical injury to another person; (2) that the [petitioner] caused physical injury to that person; and (3) that he caused that injury by means of the discharge of a firearm.

         ‘‘The state must first prove beyond a reasonable doubt that the [petitioner] intended to cause physical injury to another person. What the [petitioner] ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.