Argued
February 20, 2019
Appeal
from the Superior Court, Judicial District of Tolland, Fuger,
J.
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[Copyrighted Material Omitted]
Page 680
Matthew C. Eagan, assigned counsel, with whom was Emily
Graner Sexton, assigned counsel, for the appellant
(petitioner).
Melissa
Patterson, assistant states attorney, with whom, on the
brief, were Brian Preleski, states attorney, Jo Anne Sulik,
supervisory assistant states attorney, and Lisa Maria
Proscino, former special deputy assistant states attorney,
for the appellee (respondent).
McDonald,
DAuria, Mullins, Kahn, Ecker and Vertefeuille, Js.
OPINION
MULLINS,
J.
[332
Conn. 617] The principal issue in this appeal is whether the
petitioner, Angel Meletrich, has demonstrated that his
criminal trial counsel rendered ineffective assistance by
failing to present the testimony of a second alibi witness to
support his defense. The petitioner appeals from the judgment
of the Appellate Court dismissing his appeal from the
judgment of the habeas court, which denied his amended
petition for a writ of habeas corpus. The petitioner claims
that the Appellate Court incorrectly concluded that the
habeas court acted within its discretion in denying
certification to appeal because he established that
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his counsel had performed deficiently by failing to call a
second alibi witness and, further, that had that witness
testified, there is a reasonable probability that the outcome
of the petitioners criminal trial would have been different.
We disagree and, accordingly, affirm the judgment of the
Appellate Court.
The
Appellate Courts decision in Meletrich v. Commissioner
of Correction, 178 Conn.App. 266, 174 A.3d 824 (2017),
sets forth the relevant facts and procedural history of the
petitioners underlying criminal case. "[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 [a
verdict] of guilty on all counts, finding the petitioner
guilty [on the counts alleging robbery in the first degree
[332 Conn. 618] and larceny in the first degree under a]
theory of vicarious liability." Id., at 268,
174 A.3d 824.
"On Wednesday, November 21, 2007, the day before
Thanksgiving, the McDonalds restaurant near the New Brite
Plaza area of New Britain had been open for business....
"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. Echevarrias
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 cash proceeds from sales
[were] then secured inside the back office safe.
"Although it was normally Echevarrias 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 [Echevarria] asked Bethza Meletrich to lock
the two outside doors. Although Bethza Meletrich initially
locked both doors ... she returned [and unlocked them]. One
of the restaurants 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 McDonalds
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 [332 Conn. 619]
either uncommon or unique to Echevarria, but known to
employees of the McDonalds, 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 ... 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
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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,[1] whose nickname was
Rome or Romeo, before she went to work.[2] 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] 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 [332 Conn. 620]
as the basement of, 20 Acorn Street, New Britain, a
multifamily dwelling approximately six blocks, or less than
one mile, from the [McDonalds] restaurant that was robbed.
The petitioner was at the apartment when the police executed
the search warrant. Although [Adam] Marcano [and his brother,
Anthony Marcano] were not present at that time, the police
found items belonging to both [of them] 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 McDonalds 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
McDonalds 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 [332
Conn. 621] DNA profile.... A DNA sample from another masks
exterior had DNA
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from at least four individuals; the petitioner was determined
to be a contributor to ...