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Darryl W. v. Commissioner of Correction

Court of Appeals of Connecticut

October 24, 2017

DARRYL W.
v.
COMMISSIONER OF CORRECTION

          Argued May 23, 2017

          Craig A. Sullivan, assigned counsel, for the appellant (petitioner).

          Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Marc Ramia, assistant state's attorney, for the appellee (respondent).

          Prescott, Beach and Mihalakos, Js.

         Syllabus

         The petitioner sought a writ of habeas corpus, claiming, inter alia, that his trial counsel provided ineffective assistance by failing to file a request to charge the jury or to object to the trial court's jury instruction on the operability of a firearm, and failing to direct the trial court in its response to an inquiry from the jury concerning operability. The habeas court rendered judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court.

         Held:

         1. The habeas court properly determined that the petitioner failed to establish that his trial counsel was ineffective in failing to file a request to charge the jury or to object to the trial court's jury instruction on operability, the petitioner having failed to demonstrate that he was prejudiced by trial counsel's performance; no evidence was presented at the habeas trial as to what specific request to charge trial counsel should have submitted to the court, and, in the absence of any evidence as to the language of an instruction that should have been submitted by trial counsel, it could not be determined whether that particular instruction would have likely changed the outcome of the trial.

         2. The habeas court properly determined that the petitioner's trial counsel was not ineffective for failing to direct the trial court in its response to the jury's inquiry on operability; trial counsel made clear his position on how to address the inquiry on operability, but the trial court disagreed, choosing to take a more cautious approach, and, therefore, the habeas court properly determined that the trial counsel's performance did not fall below an objective standard of reasonableness.

         Procedural History

         Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Oliver, J., denied the petitioner's motion for summary judgment; thereafter, the matter was tried to the court; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.

          OPINION

          MIHALAKOS, J.

         The petitioner, Darryl W., [1] appeals from the judgment of the habeas court denying his amended petition for writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly denied his amended petition because the record established that his criminal trial counsel had rendered ineffective assistance by (1) failing to file a request to charge the jury and/or to object to the trial court's jury instruction and (2) failing to direct the trial court in its response to the jury's inquiry on operability. We conclude that the habeas court properly determined that the petitioner failed to establish his claim of ineffective assistance of counsel in that he failed to establish that he was prejudiced by counsel's failure to file a request to charge the jury and/or to object to the jury instruction and that counsel performed deficiently by failing to direct the trial court in its response to the jury's inquiry. Accordingly, we affirm the judgment of the habeas court.

         The record discloses the following facts. In the underlying criminal matter of State v. Darryl W., the petitioner was charged with kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a, attempted aggravated sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70a (a) (1), and sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (B). After a trial by jury, he was found guilty of all three counts. In the petitioner's direct appeal, our Supreme Court affirmed the judgment.

         In its opinion, our Supreme Court set forth the factual background as follows: ‘‘The [petitioner was] married to the sister of the victim, D. Following the loss of her house due to foreclosure, D, along with her husband and two children, resided with the [petitioner], his wife and their four children for several months. D and her family then moved out of the [petitioner's] house to live with her parents and subsequently began looking for a house to buy. On the day of the incident, the [petitioner] tricked D, whom he had offered to help find a house, into meeting him alone at a commuter parking lot in Waterbury and driving with him to his house. When they arrived, the [petitioner] asked D to help carry a box into the house. Once inside, he held D at gunpoint, handcuffed her and brought her to a bedroom. There, he removed her pants, placed duct tape over her mouth, kissed her breasts, touched her vagina, briefly tied her feet to a bed, removed his pants and climbed on top of her. The [petitioner] stopped short of intercourse, saying he ‘couldn't do this, ' and subsequently agreed to let D leave after she brought him back to his vehicle in the commuter lot.

         ‘‘The gun that the [petitioner] used was an air pistol that the police later seized in a search of a vehicle belonging to the [petitioner]. The pistol was designed to shoot BBs propelled by compressed carbon dioxide, or CO2. At the time the police seized it, the pistol contained neither BBs nor a CO2 cartridge, but a later test confirmed that it was capable of firing when equipped with BBs and a cartridge.

         ‘‘At trial, the [petitioner] testified that he and D had previous romantic encounters and that on the day in question they engaged in consensual intimate activity but stopped after deciding that doing so was wrong. The defendant also sought to show that the seized air pistol was not on his person at the time of the incident but had in fact been stored in his vehicle for several months. In the alternative, for purposes of the charge of kidnapping in the first degree with a firearm, he asserted an affirmative defense that, even if he had been armed with the air pistol, it was inoperable.

         ‘‘Pursuant to the amended information that the state filed after the close of its case, the trial court instructed the jury that it did not need to find that the [petitioner] actually possessed an operable pistol to convict him on the kidnapping and aggravated sexual assault charges, which required only that he represented by words or conduct that he possessed such a weapon. The court further instructed the jury, pursuant to the [petitioner's] affirmative defense, that it should acquit him of the kidnapping charge if it found that he proved that the air pistol was not operable. The jury returned a verdict convicting the [petitioner] on all counts.'' (Footnote omitted). State v. Darryl W., 303 Conn. 353, 357-59, 33 A.3d 239 (2012).

         After his unsuccessful appeal, the petitioner brought this amended petition for writ of habeas corpus, claiming, inter alia, that his trial counsel, Mark Ouellette, was ineffective because he failed to file a request to charge the jury and/or to object to the trial court's jury instruction and because he failed to direct the court in its response to the jury's inquiry on operability.[2] By its oral decision on August 4, 2015, the habeas court denied the amended petition. On August 17, 2015, the habeas court granted the petitioner's petition for certification to appeal from its judgment. This appeal followed. Additional facts will be set forth as necessary.

         We first set forth our standard of review and the relevant 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. . . .

         ‘‘A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [466 U.S. 668');">466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. 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, supra, [687], this 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. 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. . . . The claim will succeed only if both prongs are satisfied.'' (Internal quotation marks omitted.) Gaines v. Commissioner of Correction, 125 Conn.App. 97, 105, 7 A.3d 395 (2010), aff'd, 306 Conn. 664, 51 A.3d 948 (2012).

         I

         The petitioner first claims that trial counsel rendered ineffective assistance by failing to file a request to charge the jury on the operability of the firearm and/ or failing to object to the trial court's jury instruction. Specifically, the petitioner argues that trial counsel should have requested a charge that the jury should not find the petitioner guilty of kidnapping in the first degree with a firearm if it finds that the pistol was, at the time of the crime, one from which a shot could not be discharged and that the petitioner did not have the means to make the pistol capable of discharging a shot. In addition, the petitioner argues that trial counsel should have requested a charge that the jury could not find the petitioner guilty of attempted aggravated sexual assault in the first degree unless it found sufficient evidence to prove, beyond a reasonable doubt, that the pistol was, at the time of the crime, one from which a shot could be discharged, or it found that the pistol was not one from which a shot could be discharged, but that the petitioner had under his control the means to make the pistol capable of discharging a shot.[3] We are not persuaded.

         The habeas court was presented with evidence of the following additional facts. At the close of evidence, but prior to the charging conference, the trial court provided a copy of its drafted jury charge to trial counsel and the prosecutor. The court asked counsel to be prepared to comment on the instructions and to discuss any concerns they may have. The following day, the court stated that it was willing to hear any requests that either counsel wanted to make regarding the charge. In response, trial counsel for the petitioner stated: ‘‘I have no changes as it was presented this morning.'' The court then noted that it had included in its charge the affirmative defense that the petitioner had requested.

         On the charge of kidnapping in the first degree with a firearm, the court instructed the jury in relevant part: ‘‘The third essential element is that during the abduction the [petitioner] represented by his words or conduct that he possessed a pistol. A pistol is defined by statute as ‘any firearm having a barrel less than twelve inches.' A firearm is defined by statute to mean in relevant part ‘a weapon, whether loaded or unloaded, from which a shot may be discharged.' Represented by words or conduct means that ‘the [petitioner] did or said something to indicate to the [victim] that he possessed ...


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