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Dupigney v. Commissioner of Correction

Court of Appeals of Connecticut

July 31, 2018


          Argued May 24, 2018

         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, Sferrazza, J.; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.

          Megan L. Wade, assigned counsel, with whom were Emily Graner Sexton, assigned counsel, and, on the brief, James P. Sexton, assigned counsel, for the appellant (petitioner).

          Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were Patrick Griffin, state's attorney, and Rebecca Barry, assistant state's attorney, for the appellee (respondent).

          DiPentima, C. J., and Elgo and Pellegrino, Js.


          ELGO, J.

         The petitioner, Johnny Dupigney, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. In this certified appeal, the petitioner claims that the habeas court improperly rejected his claim of ineffective assistance of counsel. We affirm the judgment of the habeas court.

         The following facts and procedural history are relevant to our resolution of the petitioner's appeal. ‘‘Morris Lewis, the victim, and Herbert Dupigney, the [petitioner's] brother, were partners in an illegal drug selling enterprise in New Haven. The drug sales were conducted primarily at 304 Winthrop Avenue. Other members of the operation included Nick Padmore, an individual known to the [witnesses] in the trial only as ‘Ebony' and Eric Raven. In December, 1994, following the victim's incarceration, the [petitioner] moved from Boston to New Haven to assist his brother in the drug operation. The [petitioner] also enlisted an acquaintance from Boston, Derrick D'Abreau, to help with the drug sales. D'Abreau moved to New Haven in the beginning of January, 1995.

         ‘‘The victim was released from jail on January 23, 1995. That day, the victim telephoned Herbert Dupigney at the home of Carlotta [Grinnan]. [Grinnan] overheard the [petitioner] tell his brother that the victim ‘was not going to get a . . . thing.'

         ‘‘On January 24, 1995, at about 9:30 p.m., the victim met with the [petitioner], the [petitioner's] brother, Herbert Dupigney, D'Abreau, Padmore, Raven and ‘Ebony' at 304 Winthrop Avenue. Upon his arrival at the building, the victim told everybody to leave because that was his location to sell drugs. As the argument escalated, the victim slapped the [petitioner] and threw a chair at him. The victim then broke a bottle and attempted to attack the [petitioner]. D'Abreau and Raven retreated to a turquoise Dodge Neon. The victim then started swiping the bottle at the occupants of the vehicle through one of its open windows. While Herbert Dupigney attempted to calm the victim and get him away from the car, the [petitioner] inquired if anybody had a gun. In response, D'Abreau gave the [petitioner] a .380 caliber pistol. The [petitioner] then pointed the gun at the victim and told him to back off.

         ‘‘Herbert Dupigney and the [petitioner] then entered the turquoise Dodge Neon and left the scene. The group proceeded to [Raven's] apartment at 202 Sherman Avenue. The [petitioner] was visibly upset, and stated that the victim was getting on his nerves and that he was going to kill him. After a few minutes, the [petitioner] and his brother left.

         ‘‘The [petitioner] and his brother rejoined [Raven] and D'Abreau at 202 Sherman Avenue approximately one hour later. Between 11:15 p.m. and 11:30 p.m., all four individuals proceeded to 300 Winthrop Avenue, where the drug operation had rented a fourth floor room facing Winthrop Avenue. At that time, the victim was playing dice with Padmore and ‘Ebony' in front of 304 Winthrop Avenue. Herbert Dupigney went down to the street to try to smooth things over with the victim. It was understood that if the attempt at reconciliation was unsuccessful, then the victim would be shot. The [petitioner], [Raven] and D'Abreau observed the scene from the apartment's window. After a few minutes of conversation between the parties and with no overt indication that an accord had been reached, the victim, Padmore and ‘Ebony' walked off in the direction of Edgewood Avenue. Herbert Dupigney called out to ‘Ebony.' After ‘Ebony' started to return, the [petitioner] and [Raven] abruptly left the apartment.

         ‘‘As the victim and Padmore approached the corner of Winthrop Avenue and Edgewood Avenue, the turquoise Dodge Neon approached them. The [petitioner] exited the vehicle and fired several shots at the victim. A brief struggle ensued, after which the [petitioner] fired more shots at the victim. The victim died of his wounds shortly thereafter.'' State v. Dupigney, 78 Conn.App. 111, 112-14, 826 A.2d 241, cert. denied, 266 Conn. 919, 837 A.2d 801 (2003).

         At the petitioner's criminal trial, the state presented the testimony of three eyewitnesses: D'Abreau, Aisha Wilson, and Padmore. ‘‘D'Abreau testified that he was an eyewitness to the murder. He observed the shooting from the fourth floor windows of the apartment building at 300 Winthrop [Avenue] and was able to identify the [petitioner] as the assailant on the basis of the clothing that the [petitioner] was wearing at the time of the murder. In addition to his personal observation, D'Abreau testified that the dispute over drug dealing ...

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