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Outing v. Commissioner of Correction

Court of Appeals of Connecticut

June 11, 2019

J'VEIL OUTING
v.
COMMISSIONER OF CORRECTION

          Argued March 14, 2019

         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, Oliver, J.; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court; thereafter, the court, Oliver, J., granted the petitioner's motion for rectification. Affirmed.

          David R. Kritzman, assigned counsel, with whom, on the brief, was Joshua C. Shulman, assigned counsel, for the appellant (petitioner).

          James A. Killen, senior assistant state's attorney, with whom, on the brief, were, Patrick J. Griffin, state's attorney, and Adrienne Russo, deputy assistant state's attorney, for the appellee (respondent).

          Lavine, Moll and Bishop, Js.

          OPINION

          BISHOP, J.

         The petitioner, J'Veil Outing, appeals 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 erred in concluding that his trial counsel had not provided ineffective assistance in failing (1) to properly investigate and present an alibi defense, (2) to properly investigate and rebut the testimony of the eyewitnesses to the murder at issue, and (3) to adequately preserve an issue regarding expert testimony on eyewitness identification. The petitioner also claims that the court erred in concluding that his appellate counsel was not ineffective for failing to raise the issue, on direct appeal, of the trial court's refusal to permit surrebuttal evidence. Finally, the petitioner claims that the court incorrectly determined that he had not met his burden of proof regarding his claim of actual innocence. We affirm the judgment of the habeas court.

         The record reveals that, after a jury trial, the petitioner was convicted on March 20, 2006, of murder in violation of General Statutes § 53a-54a. Thereafter, the petitioner was sentenced to fifty years of imprisonment. The petitioner's conviction was affirmed on direct appeal. State v. Outing, 298 Conn. 34, 86, 3 A.3d 1 (2010), cert. denied, 562 U.S. 1225, 131 S.Ct. 1479, 179 L.Ed.2d 316 (2011).[1] In that appeal, our Supreme Court recited the following underlying facts that the jury reasonably could have found:

         ‘‘At approximately 6:50 p.m. on June 23, 2005, Nadine Crimley was walking in a northerly direction on Canal Street in New Haven, pushing her infant son in a stroller. To her left, she saw her brother, Ray Caple, standing on the porch of her residence at 150 Canal Street. As Crimley walked up the street, she saw the [petitioner], whom she previously had seen in the neighborhood, pass her on his bicycle. Another unidentified man rode a bicycle in front of the [petitioner]. Crimley then turned her attention back to her son. When she heard a series of popping noises, she looked up and saw the [petitioner], who was about ten feet away from her, firing a gun at the victim, Kevin Wright. The victim fell to the ground, and the [petitioner] ran from the scene.

         ‘‘Caple, who had gone to high school with the [petitioner] and had known him for three and one-half years, also watched the [petitioner] as he rode his bicycle up Canal Street. As Caple watched, the [petitioner] moved his right hand toward his waist. Caple believed that the [petitioner] was reaching for a gun and was going to shoot him, but decided against doing so because Caple was holding his two year old daughter. Caple's mother and the victim were inside the residence at 150 Canal Street. Just after the [petitioner] passed the residence on his bicycle, the victim exited through the back door of the residence, retrieved his bicycle from the backyard and walked with it in an easterly direction on Gregory Street toward its intersection with Canal Street. As Caple stood on the porch, he heard a gunshot and the sound of a bicycle falling to the ground. When he looked around the corner of the porch, he observed Crimley and her son standing very close to the [petitioner], and he also saw the [petitioner], who had dismounted from his bicycle, fire three more shots at the victim. The [petitioner] then ran away, leaving his bicycle in the street. Caple ran to the victim, who was unresponsive. The victim died from a single gunshot wound to the chest.

         ‘‘Shortly, after 10 p.m. on the day of the shooting, Crimley gave a statement to the New Haven police in which she indicated that she had been able to get a good look at the shooter and would be able to identify him. On June 27, 2005, four days after the shooting, Stephen Coppola, a New Haven police detective, interviewed Crimley and presented her with an array of eight photographs, including one of the [petitioner]. Crimley identified the [petitioner] as the shooter and signed and dated the photographic array. Coppola tape-recorded his interview of Crimley. On the same day, Coppola also tape-recorded a statement from Caple and presented him with a second photographic array. Caple also identified the [petitioner] as the shooter and signed and dated the photographic array.

         ‘‘Prior to trial, both Caple and Crimley recanted their statements to the police and their identifications of the [petitioner], claiming that they had been pressured by the police into giving the statements and making the identifications. Thereafter, the [petitioner] filed motions to suppress the identification evidence, claiming that the evidence was unreliable and the product of an unnecessarily suggestive police identification procedure. At a hearing on the [petitioner's] motions, both Crimley and Caple testified that they did not know who had killed the victim, that they had been pressured by the police to give false statements about the events surrounding the shooting, and that the police had pressured them to falsely identify the [petitioner] as the shooter. Crimley and Caple acknowledged that they were extremely frightened about being called as witnesses for the state and identifying the [petitioner] as the shooter. Coppola and Alfonso Vasquez, a New Haven police detective who had been present during Coppola's interviews of Crimley and Caple, testified that each of the witnesses had identified the [petitioner] as the shooter by selecting the [petitioner's] photograph from the photographic array spontaneously and without hesitation. The two detectives unequivocally denied that they had pressured or influenced either Crimley or Caple in any way.

         ‘‘At the conclusion of the detectives' testimony, the state maintained that the tape-recorded statements that Crimley and Caple had given to the police met the requirements for admissibility set forth in State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986). The trial court found that the testimony of Crimley and Caple that they had been pressured to give false statements and to falsely identify the [petitioner] as the shooter was not credible. The court further concluded that the statements that they had given to the police met the Whelan admissibility requirements for purposes of the suppression hearing.

         ‘‘Thereafter, at a continuation of the suppression hearing, the [petitioner] made an offer of proof regarding the testimony of his expert witness, Jennifer Dysart, concerning the reliability of eyewitness identifications. The state objected to the testimony, and the court sustained in part and overruled in part the state's objection to Dysart's proffered testimony. Dysart thereafter offered her opinion that the identification procedures used generally were not reliable. The trial court thereafter denied the [petitioner's] motions to suppress the photographic identifications that had been made of the [petitioner] by Crimley and Caple.

         ‘‘At trial, Crimley and Caple testified that the police had pressured them to give false statements and to falsely identify the [petitioner] as the shooter. They further testified that the [petitioner] definitely was not the shooter and that they did not know who had shot the victim. Upon the state's motion pursuant to Whelan, the trial court admitted redacted tape recordings of the statements Crimley and Caple had given to the police as prior inconsistent statements. The trial court also admitted as exhibits copies of the photographic arrays that Crimley and Caple had signed and dated. The [petitioner] did not call Dysart as a witness at trial.

         ‘‘Thereafter, the jury found the [petitioner] guilty of murder, and the trial court rendered judgment in accordance with the verdict, sentencing the [petitioner] to a term of imprisonment of fifty years.'' (Footnotes omitted.) Id., 38-41.

         After our Supreme Court affirmed his conviction, the petitioner filed a petition for a writ of habeas corpus dated October 5, 2010. The matter was tried on the petitioner's fifth amended petition, dated February 26, 2015, in which he set forth claims of ineffective assistance of trial and appellate counsel, a due process claim regarding the presentation of evidence at trial, and a claim of actual innocence.[2] The hearing on this matter before the habeas court, Oliver, J., began on March 21, 2016, and continued intermittently for eight days, concluding on November 22, 2016. Following the receipt of posttrial briefs, the court issued its memorandum of decision on November 20, 2017, denying the petition.[3]In denying the petition, the habeas court concluded that the petitioner had not met his burden of establishing either deficient performance or prejudice with respect to several of his ineffective assistance of trial counsel claims, including the claims that his trial counsel failed to properly investigate and to present an alibi defense, to investigate and to rebut the testimony of the state's eyewitnesses, and to preserve the record concerning the trial testimony of an expert witness on witness identifications. The court further concluded that the petitioner failed to sustain his burden of establishing deficient performance or prejudice with respect to his ineffective assistance of appellate counsel claim, and that the petitioner failed to establish his actual innocence. The court deemed the remainder of the petitioner's ineffective assistance of trial and appellate counsel claims to be abandoned on the basis of the petitioner's failure to address them in his posttrial brief. The court granted the petitioner's petition for certification to appeal, and this appeal followed.[4] Additional facts and procedural history will be set forth as necessary.

         I

         The petitioner raises three claims that his trial counsel rendered ineffective assistance. Before addressing each claim, we set forth the relevant legal principles and our well settled standard of review governing ineffective assistance of counsel claims. ‘‘In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary.'' (Internal quotation marks omitted.) Mukhtaar v. Commissioner of Correction, 158 Conn.App. 431, 437, 119 A.3d 607 (2015); see also Buie v. Commissioner of Correction, 187 Conn.App. 414, 417, 202 A.3d 453, cert. denied, 331 Conn. 905, 202 A.3d 373 (2019).

         ‘‘In Strickland v. Washington, [466 U.S. 668');">466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], 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, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. ...

         ‘‘To prove that his counsel's performance was deficient, the petitioner must demonstrate that trial counsel's representation fell below an objective standard of reasonableness. . . . Competent representation is not to be equated with perfection. The constitution guarantees only a fair trial and a competent attorney; it does not ensure that every conceivable constitutional claim will be recognized and raised. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'' (Emphasis added; internal quotation marks omitted.) Moye v. Commissioner of Correction, 168 Conn.App. 207, 217-18, 145 A.3d 362 (2016), cert. denied, 324 Conn. 905, 153 A.3d 653 (2017).

         ‘‘With respect to the prejudice component of the Strickland test, the petitioner must demonstrate that counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. . . . It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings. . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . . A reasonable probability is a probability sufficient to undermine confidence in the outcome.'' (Citation omitted; internal ...


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