May 24, 2018
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.
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
DiPentima, C. J., and Elgo and Pellegrino, Js.
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.
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,
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 . .
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.
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.
[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
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).
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 ...