Argued
February 20, 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, Fuger, J.; judgment denying the petition;
thereafter, the court denied the petition for certification
to appeal, and the petitioner appealed to the Appellate
Court, Lavine, Elgo and Beach,
Js., which dismissed the appeal, and the petitioner,
on the granting of certification, appealed to this court.
Affirmed.
Matthew C. Eagan, assigned counsel, with whom was Emily
Graner Sexton, assigned counsel, for the appellant
(petitioner).
Melissa Patterson, assistant state's attorney, with whom,
on the brief, were Brian Preleski, state's attorney, Jo
Anne Sulik, supervisory assistant state's attorney, and
Lisa Maria Proscino, former special deputy assistant
state's attorney, for the appellee (respondent).
McDonald, D'Auria, Mullins, Kahn, Ecker and Vertefeuille,
Js.
OPINION
MULLINS, J.
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 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
petitioner's criminal trial would have been different. We
disagree and, accordingly, affirm the judgment of the
Appellate Court.
The
Appellate Court's 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 petitioner's 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
and larceny in the first degree under a] theory of vicarious
liability.'' Id., 268.
‘‘On
Wednesday, November 21, 2007, the day before Thanksgiving,
the McDonald's 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. Echevarria's 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 Echevarria's 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
restaurant's 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 McDonald's
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 either uncommon or unique to
Echevarria, but known to employees of the McDonald's,
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 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 as the basement of, 20
Acorn Street, New Britain, a multifamily dwelling
approximately six blocks, or less than one mile, from the
[McDonald's] 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 McDonald's 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
McDonald's 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 DNA
profile. . . . A DNA sample from another mask's exterior
had DNA from at least four individuals; the petitioner was
determined to be a contributor to that DNA profile. . . .
‘‘The
state contended that the petitioner was guilty of the robbery
and larceny in the first degree charges either as a principal
offender or as an accessory to another participant in the
crime. Additionally, the court instructed the jury on the
robbery and larceny in the first degree charges as to the
theory of vicarious liability. Thus, if the jury found beyond
a reasonable doubt that the state had proven all elements of
the conspiracy to commit robbery and larceny in the first
degree charges, but that the state had not proven that the
petitioner was a principal or accessory as [to] the robbery
and larceny charges in counts one and three, then the jury
could consider whether the petitioner was criminally liable
for the criminal acts of the other [coconspirators] under
vicarious liability. The jury was charged accordingly.
‘‘The
jury returned [a] guilty [verdict] on all counts.
Specifically, the jury found the petitioner guilty of both
the robbery and larceny in the first degree charges as a
[coconspirator] under the theory of vicarious
liability.'' (Footnotes added; internal quotation
marks omitted.) Id., 268-72. The trial court
rendered judgment in accordance with the jury's verdict
and imposed a total effective sentence of twenty-three years
of incarceration, followed by five years of special parole.
As a self-represented party, the petitioner appealed from the
judgment of the trial court to the Appellate Court, but
subsequently withdrew that appeal following the appointment
and advice of appellate counsel.
Thereafter,
the petitioner, as a self-represented party, filed a six
count petition for a writ of habeas corpus. After being
assigned counsel, the petitioner filed an amended seven count
petition for a writ of habeas corpus claiming, inter alia,
that his trial counsel had rendered ineffective assistance by
failing to present the testimony of a second alibi witness,
his aunt, Guillermina Meletrich.[3] Following a three day trial,
the habeas court denied his petition for a writ of habeas
corpus. Thereafter, the habeas court denied the
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