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Omar v. Commissioner of Correction

Court of Appeals of Connecticut

February 13, 2018

BEN OMAR
v.
COMMISSIONER OF CORRECTION

          Argued December 7, 2017

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

          Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, Eva Lenczewski, supervisory assistant state's attorney, and Marc G. Ramia, senior assistant state's attorney, for the appellee (respondent).

          DiPentima, C. J., and Lavine and Bishop, Js.

          OPINION

          LAVINE, J.

         The petitioner, Ben Omar, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. Following that denial, the habeas court granted his petition for certification to appeal. On appeal, the petitioner claims that the habeas court improperly rejected his contention that his trial counsel rendered ineffective assistance when she exposed his criminal history to the jury. Because we agree with the habeas court's conclusion that the petitioner failed to prove prejudice under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we affirm the judgment of the habeas court.

         As this court set forth in State v. Omar, 136 Conn.App. 87, 43 A.3d 766, cert. denied, 305 Conn. 923, 47 A.3d 883 (2012), the jury reasonably could have found the following relevant facts. ‘‘On March 25, 2009, Water-bury police Lieutenant Edward Apicella led an undercover team to the intersection of North Main Street and West/East Farm Streets in Waterbury . . . in order to try ‘to purchase narcotics from any individual who would solicit.' Apicella designated Officer Dedrick Wilcox of the Seymour police department to be the undercover purchaser because it was likely that he would not be recognized by the Waterbury street dealers as a police officer. As Wilcox was driving, a black female, later identified as Ida Mae Smith, nodded to him, and Wilcox pulled over. Smith asked, ‘[W]hat do you need?' and Wilcox responded, ‘I need twenty of base, ' which meant $20 worth of crack cocaine. Smith then held up two fingers and yelled across the street to the [petitioner], ‘I need two.' Wilcox then handed Smith the money, at which point the [petitioner] walked to a nearby mailbox, reached into his pocket and placed two items on the top of the mailbox. Smith walked across the street and handed the money to the [petitioner], who pointed Smith toward the mailbox. Smith then walked to the mailbox, grabbed the items and handed Wilcox the items-two bags of crack cocaine- and said, ‘[Y]ou're all set.' Wilcox then left the scene and radioed to the surveillance team that the deal was done and met the officers at a prearranged location. The police did not immediately arrest the [petitioner] because they did not want to jeopardize Wilcox's safety or cover for future ongoing undercover operations. Instead, the [petitioner] was arrested six weeks later in May, 2009.'' Id., 89-90. Following a jury trial, the petitioner was convicted of various drug related offenses.[1] This court affirmed the petitioner's conviction on direct appeal. See id., 89.

         On February 23, 2012, the petitioner filed a self-represented petition for a writ of habeas corpus. In a single count amended petition, he alleged that he was denied the effective assistance of trial counsel when Stephanie L. Evans, his lawyer, ‘‘exposed to the jury [his] sale and possession of narcotics history and [his subsequent] August 12, 2009 arrest for drugs.''[2] During the habeas trial, the petitioner specifically focused on Evans' decision to introduce a police incident report and an arrest warrant affidavit into evidence. Both of these items detailed the petitioner's previous convictions, which included drug related offenses.[3]

         In its written decision denying the habeas petition, the habeas court noted that Evans introduced the arrest warrant affidavit into evidence ‘‘to emphasize the inconsistencies between the [testimony from the state's witnesses] and reports as to the weight of the narcotics seized [on March 25, 2009].'' It concluded, however, that the petitioner failed to prove prejudice under Strickland and did not specifically address whether Evans rendered deficient performance. The petitioner appeals from this judgment. Additional facts will be set forth as necessary.

         We begin with the applicable standard of review. ‘‘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).

         The petitioner claims that the habeas court improperly rejected his contention that Evans rendered ineffective assistance when she exposed his criminal history to the jury. He argues that the ‘‘specific nature'' of his previous convictions demonstrated that he knew how to run a street level drug operation and also damaged his credibility. Evans' decision to expose his criminal record to the jury, according to the petitioner, prejudiced him because the state's case hinged on a credibility contest between him and the arresting officers. Essentially, he argues that the jury would have found him more credible, thus strengthening his sole defense at trial-misidentification-if they did not know of his specific criminal record. We are unpersuaded.[4]

         The following additional facts and procedural history are relevant to this claim. Lieutenant Apicella, a state's witness, testified at the petitioner's criminal trial. During her cross-examination of Apicella, Evans asked about his prior interactions with the petitioner and whether police had searched the petitioner on March 25, 2009.[5] While questioning Apicella, Evans requested that ‘‘the incident offense report [from March 25, 2009] with attached arrest warrant affidavit'' become full defense exhibits. Both documents were admitted into evidence without objection, and Evans questioned Apicella about their contents. She also asked Apicella why police did not arrest the petitioner on March 25, 2009. Specifically, she asked: ‘‘So you left [Smith and the petitioner] there for another month or so to continue to sell drugs?'' Apicella responded in relevant part: ‘‘That will depend on [the petitioner's] conduct. . . . That's a decision that he would have to make.''

         The prosecutor revisited Apicella's familiarity with the petitioner on redirect-examination and specifically asked him about the petitioner's prior convictions detailed in paragraph 8 of the arrest warrant affidavit. See footnote 3 of this opinion. He also asked Apicella about the petitioner's August 12, 2009 ‘‘[arrest] for drugs'' following a separate incident involving a confidential informant.

         ‘‘In Strickland v. Washington, [supra, 466 U.S. 687], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, ...


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