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Meletrich v. Commissioner of Correction

Court of Appeals of Connecticut

November 28, 2017

ANGEL MELETRICH
v.
COMMISSIONER OF CORRECTION

          Argued September 8, 2017

         Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, and tried to the court, Fuger, J.; judgment denying the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed.

          Matthew C. Eagan, assigned counsel, with whom were Michael S. Taylor, assigned counsel, and, on the brief, Emily Graner Sexton, assigned counsel, for the appellant (petitioner).

          Melissa Patterson, assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Lisa Maria Proscino, former special deputy assistant state's attorney, for the appellee (respondent).

          Lavine, Elgo and Beach, Js.

          OPINION

          BEACH, J.

         The petitioner, Angel Meletrich, 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. On appeal, the petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal and erred in not finding that his trial counsel provided ineffective assistance by failing to call the petitioner's aunt as an additional alibi witness during the petitioner's criminal trial. We disagree and, accordingly, dismiss the appeal.

         As recited by the habeas court, the facts which the jury reasonably could have found concerning the petitioner's underlying conviction are as follows: ‘‘[T]he petitioner was charged with one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), one count of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134, one count of larceny in the first degree in violation of General Statutes [Rev. to 2007] § 53a-122 (a) (2), and one count of conspiracy to commit larceny in the first degree in violation of . . . § 53a-48 and [General Statutes (Rev. to 2007) §] 53a-122. The petitioner, represented by Attorney Claud Chong, proceeded to a jury trial. The jury returned verdicts of guilty on all counts, finding the petitioner guilty of counts one and three as a coconspirator on the theory of vicarious liability. The petitioner appealed from the judgment of conviction; however, the appeal was withdrawn. . . .

         ‘‘On Wednesday, November 21, 2007, the day before Thanksgiving, the McDonald's restaurant near the New Brite Plaza area of New Britain had been open for business. The public could enter and exit the restaurant from two doors, one at the front of the building and the other on the side, that are unlocked during business hours and are locked when the restaurant is closed. The side door latch did not work properly and tape was placed over the latch to allow the door to open during business hours. At the end of the day, when the side door needed to be secured, the tape would be removed so that the latch would prevent the door from opening.

         ‘‘Shortly before midnight, when both the inside of the restaurant and the drive-through window stopped transacting business, the employees then on-site prepared to close the restaurant. Among those employees were Assistant Manager Angel Echevarria and Bethza Meletrich. Echevarria's responsibilities at closing included collecting the eight cash register drawers in a safe located in a small office in the back of the restaurant. The proceeds from the day's sales, gift cards, coupons, the register drawers themselves with $100 of startup money for the next business day and any other valuables would be secured in the safe. The cash proceeds from sales and gift cards were placed in bank deposit bags and then secured inside the back office safe.

         ‘‘Although it was normally Echevarria's responsibility to lock the two outside doors, on the evening of November 21, 2007, he was training another manager to count the money in the registers and asked Bethza Meletrich to lock the two outside doors. Although Bethza Meletrich initially locked both doors, which involved removing the tape on the side door's latch, she returned to replace the tape on the side door latch. One of the restaurant's surveillance cameras shows Bethza Meletrich on her cell phone as she walked past the registers to the side door. Shortly thereafter, Bethza Meletrich walked past the registers again, and then three men, later described by Echevarria as being light skinned and of normal height and average size, who were dressed in dark hooded sweatshirts with the hoods pulled over their heads, and whose faces were concealed by dark ski masks, entered the McDonald's restaurant through the side door and made their way to the back office.

         ‘‘Two of the men brandished handguns, one chrome with a wooden handle and the other black. One of the men called Echevarria by his nickname, Sidio, a name either uncommon or unique to Echevarria, but known to employees of the McDonald's, including Bethza Meletrich. After one of the men asked Echevarria where the money was located, he told them in the office safe. One of the robbers stacked either seven or eight of the register drawers and carried the stack, described by Echevarria as heavy and difficult to carry, out of the restaurant. Echevarria called 911 after the three men exited the restaurant and then went to the side door and observed a car driving away. Three of the surveillance cameras in the restaurant captured footage of the robbery.

         ‘‘The police responded to the restaurant and began their investigation, which included interviewing all employees. Although Bethza Meletrich initially denied any involvement, she later gave a statement to New Britain police officers admitting her involvement in the robbery. In her statement, dated November 26, 2007, Bethza Meletrich indicated that she met Adam [Marcano] and the petitioner, whose nickname was ‘Rome' or ‘Romeo, ' before she went to work. They asked her to leave the door open at closing time so that they could rob the restaurant. According to Bethza Meletrich, she was first offered money for her cooperation, which she declined, and then her two cousins threatened her and/ or her girlfriend. Bethza Meletrich informed the police that the petitioner was armed with a silver gun that had a brown handle, which he displayed to her while it was tucked into his waistband. The petitioner and Adam Marcano, accompanied by a third person unknown to Bethza Meletrich, entered the restaurant shortly before midnight through the side door she had left unlocked.

         ‘‘Also on November 26, 2007, the police executed a search warrant for one of the apartments in, as well as the basement of, 20 Acorn Street, New Britain, a multifamily dwelling approximately six blocks, or less than one mile, from the [McDonald's] restaurant that was robbed. The petitioner was at the apartment when the police executed the search warrant. Although the Marcano brothers were not present at that time, the police found items belonging to both Adam and Anthony Marcano in the apartment. The police investigation determined that the petitioner and both Marcano brothers lived at 20 Acorn Street on the first floor.

         ‘‘The police also found three black hooded sweatshirts in the apartment. After gaining access to the basement from the apartment, the police searched the basement and found: two money deposit bags, one of which contained several rolls of coins and loose quarters; a plastic bag containing three black ski masks, one pair of black fleece gloves and one pair of brown knit gloves; and three cash register drawers, one of which contained a McDonald's coupon. Subsequently, in January, 2008, the police received a phone call from the landlord of 20 Acorn Street apprising the police that other items had been found concealed under a subfloor of the basement. The police returned to 20 Acorn Street and seized five additional cash register drawers, one of which had a McDonald's sticker on it, that had been concealed under the subfloor.

         ‘‘Forensic evidence recovered included [fingerprints] and palm prints from the plastic bag that contained the masks and gloves, as well as DNA from two of the ski masks. Three of the fingerprints-the right index, the right thumb, and the left thumb-were identified as belonging to Anthony [Marcano]. A DNA sample obtained from the petitioner allowed a comparison to [be] made with DNA from two of the masks. One mask interior had DNA from at least three individuals; the petitioner was determined to be a contributor to that DNA profile. As to this mask . . . an individual could be included statistically in this profile at the ratio of 1 in 120, 000 African-Americans, 1 in 69, 000 Caucasians and 1 in 66, 000 Hispanics. A DNA sample from another mask's exterior had DNA from at least four individuals; the petitioner was determined to be a contributor to that DNA profile. As to that mask . . . an individual could be included statistically in this profile at the ratio of 1 in 390 African-Americans, 1 in 120 Caucasians and 1 in 170 Hispanics. . . .

         ‘‘The state contended that the petitioner was guilty of the robbery and larceny in the first degree charges either as a principal offender or as an accessory to another participant in the crime. Additionally, the court instructed the jury on the robbery and larceny in the first degree charges as to the theory of vicarious liability. Thus, if the jury found beyond a reasonable doubt that the state had proven all elements of the conspiracy to commit robbery and larceny in the first degree charges, but that the state had not proven that the petitioner was a principal or accessory as [to] the robbery and larceny charges in counts one and three, then the jury could consider whether the petitioner was criminally liable for the criminal acts of the other [coconspirators] under vicarious liability. The jury was charged accordingly.

         ‘‘The jury returned guilty verdicts on all counts. Specifically, the jury found the petitioner guilty of both the robbery and larceny in the first degree charges as a [coconspirator] under the theory of vicarious liability. . . .

         ‘‘The court, Espinosa, J., sentenced the petitioner on February 5, 2010 [to a] . . . total effective sentence on all counts [of] twenty-three years of incarceration, followed by five years of special parole. The petitioner appealed from the judgment of conviction, but withdrew the appeal.'' (Footnotes omitted.)

         In his seven count petition for a writ of habeas corpus, filed October 28, 2014, the petitioner claimed, inter alia, that Chong rendered ineffective assistance by, inter alia, failing to present the testimony of Guillermina Meletrich, [1] ...


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