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McCarthy v. Commissioner of Correction

Appellate Court of Connecticut

September 17, 2019


         Argued March 19, 2019

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[Copyrighted Material Omitted]

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         The Superior Court, Judicial District of Tolland, Oliver, J.

          Robert L. O’Brien, assigned counsel, with whom on the brief was Christopher Y. Duby, North Haven, assigned counsel, for the appellant (petitioner).

         Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, Angela R. Macchiarulo, senior assistant state’s attorney, and Michael Proto, assistant state’s attorney, for the appellee (state).

         Prescott, Elgo and Pellegrino, Js.


         PRESCOTT, J.

         [192 Conn.App. 800] The petitioner, Troy McCarthy, appeals, following the granting of his petition for certification to appeal, from the judgment of the habeas court denying his petition for a writ of habeas corpus. In his underlying criminal case, the petitioner allegedly

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rejected a plea offer from the state after being misled regarding the strength of the state’s case against him because his prior counsel, Joseph Elder, fabricated affidavits from certain eyewitnesses to the underlying crime. The habeas court denied the petition on the ground that an ineffective assistance of counsel claim was not cognizable because Elder was no longer representing the petitioner when he fabricated the affidavits or at the time the plea offer was made.

          On appeal, the petitioner claims that the habeas court improperly concluded that (1) count one of his amended petition alleging a due process violation was procedurally defaulted because he failed to sustain his burden to establish good cause for his failure to raise this claim at trial or on direct appeal and (2) an ineffective assistance of counsel action regarding Elder was not cognizable because Elder did not represent him at the time that Elder fabricated the witnesses’ affidavits or at the time that the petitioner, in reliance on these affidavits, rejected the state’s plea offer. We conclude that the court properly determined that count one of the petitioner’s amended petition was barred by procedural default. We agree, however, with the petitioner that the court improperly denied count three of his amended petition alleging ineffective assistance by [192 Conn.App. 801] Elder because, in assessing his sixth amendment right to the effective assistance of counsel, the habeas court applied an unduly narrow view of the scope and duration of the attorney-client relationship. Accordingly, we affirm in part and reverse in part the judgment of the habeas court.

          The relevant facts, as set forth in the habeas court’s memorandum of decision and in this court’s decision resolving the petitioner’s direct appeal, are as follows: "On September 25, 2003, the [petitioner] and the victim, Raymond Moore, were standing near the corner of Westland Street and Garden Street in Hartford, in front of the former Nelson & Son’s Market, when they engaged in a physical altercation. After the victim slammed the [petitioner]’s body onto the sidewalk, several people intervened and stopped the fight. The [petitioner], humiliated, left the scene but stated that he would be back. Later, the [petitioner] returned with a gun, but the victim was not there. A friend of the victim, Robert Ware, and others told the [petitioner] that ‘it wasn’t worth it.’ The [petitioner], however, responded that the victim was going to respect him.

          "Two days later, on September 27, 2003, the victim returned to the area and was standing in front of Nelson & Son’s Market speaking with Ware. Ware then went across Westland Street and entered Melissa’s Market to buy cigarettes. A homeless woman from the area, Mary Cauley, who was on her way to the C-Town Market on Barbour Street, approached the victim and told him that he should go home to his family. She then continued on her way to the C-Town Market, walking north on Garden Street, where she saw the [petitioner] standing on his front porch. Cauley said hello to the [petitioner], who instructed her to get out of the way. When she got to the C-Town Market, Cauley heard gunshots.

         "Upon hearing a gunshot, Ware immediately ran out of Melissa’s Market as a second gunshot was fired. [192 Conn.App. 802] Looking up Garden Street, Ware saw the victim falling to the ground and saw the [petitioner] running in the opposite direction carrying a gun. At that same time, Maurice Henry, Chauncey Odum and Tylon Barlow were in a vehicle in the parking lot behind Nelson & Son’s Market smoking ‘blunts.’ Henry was in the driver’s seat. As he began to drive out of the parking lot, onto Garden Street, Henry saw the victim walking north. He then saw the [petitioner] emerge

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from the rear yard of a Garden Street building, carrying a gun. Henry saw the [petitioner] shoot the victim twice." (Footnote omitted.) State v. McCarthy, 105 Conn.App. 596, 598-600, 939 A.2d 1195, cert. denied, 286 Conn. 913, 944 A.2d 983 (2008).

         The petitioner was arrested on March 1, 2004, and charged with murder in violation of General Statutes § 53a-54a, carrying a pistol without a permit in violation of General Statutes § 29-35, and criminal possession of a firearm in violation of General Statutes § 53a-217. Elder entered a court appearance on the petitioner’s behalf at his first bond hearing on March 2, 2004. The appearance form indicated that the appearance was for bond purposes only. See Practice Book § 3-6. On March 10, 2004, Elder "informed the court that he did not intend to file a full appearance in the petitioner’s case, and that he would return the petitioner’s retainer," and the court permitted him to withdraw his court appearance. On March 29, 2004, Attorney R. Bruce Lorenzen, a public defender, entered his appearance on the petitioner’s behalf but withdrew from the case on June 23, 2005, due to a conflict of interest. The court then appointed special public defenders, Attorneys Michael O. Sheehan and George G. Kouros, to represent the petitioner.[1]

         [192 Conn.App. 803] Sometime between March 3, 2004, and April 9, 2004, Elder’s private investigator, Homer Ferguson, interviewed Henry and Cauley, eyewitnesses to the shooting. Elder prepared affidavits based on Ferguson’s notes from these interviews. The affidavits were signed by Henry and Cauley on April 9, 2004. In their affidavits, both witnesses purportedly recanted the prior statements that they had made to the police implicating the petitioner in the shooting and, instead, indicated that the investigating detective had "intimidated, coerced and pressured [them] to provide inculpatory testimony against the petitioner." Their affidavits further indicated that they did not know who shot the victim. After Lorenzen was appointed to represent the petitioner, Elder placed the affidavits in the copy of the file he shared with Lorenzen, and the affidavits ultimately became part of Sheehan and Kouros’ file.[2]

         The petitioner pleaded not guilty to all charges and elected a jury trial. During jury selection, the state extended a plea offer to the petitioner that would have required him to plead guilty to manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a in exchange for a maximum sentence of fifteen years of incarceration with a right to argue for a lower sentence of no less than ten years of incarceration. After consulting with Sheehan and Kouros, the petitioner rejected the state’s offer and proceeded to trial.

          At the petitioner’s criminal trial, Henry and Cauley testified for the state and identified the petitioner as [192 Conn.App. 804] the shooter in the victim’s murder. On cross-examination, the petitioner impeached Henry and Cauley with the affidavits that had been prepared

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by Elder. Both witnesses testified that they never told Ferguson that the police had intimidated, coerced, and pressured them to identify the petitioner as the shooter.

          The state also called Elder to testify at the petitioner’s criminal trial. He testified that he had used Ferguson’s notes from his meetings with Henry and Cauley to prepare the affidavits. The prosecutor asked if he "[made] things up" in the affidavits, which he answered by saying: "What I did was, I filled in the gap. And the idea would be to fill in the gap to see if that would be what the witness would agree to. It was not information that came directly from the witness, it was information that I provided ...." The prosecutor then asked, "where did you get that information from," to which Elder responded: "I made it up." The prosecutor asked if he believed that he had fabricated evidence, and Elder replied: "No, because it wasn’t information that would have been substantial or substantive in that way. It was information that did not go to the substance of the case." As an example, Elder noted that Henry’s claim that he did not witness the shooting was not something he would fabricate. The prosecutor then asked if Elder would fabricate the phrase "out of fear and through intimidation," and Elder indicated that the phrase was "something [he] would put in there." When asked if he often editorialized witnesses’ affidavits, Elder stated: "I don’t generally do that. But, in doing this particular one, my recollection is that I felt that it needed a little oomph." Elder had not informed the petitioner or any of his attorneys that he had fabricated the affidavits.

         The petitioner subsequently was convicted of murder in violation of § 53a-54a. He was sentenced to fifty years of incarceration.

         [192 Conn.App. 805] On direct appeal, the petitioner claimed that "(1) the court improperly denied his motion for a new trial, (2) the court improperly admitted certain impeachment evidence for substantive purposes, (3) the court improperly instructed the jury and (4) he was deprived of a fair trial due to prosecutorial impropriety." State v. McCarthy, supra, 105 Conn.App. at 598, 939 A.2d 1195. We subsequently affirmed his conviction. Id.

         The petitioner filed his first petition for a writ of habeas corpus on January 9, 2007, in which he was represented by Attorney Robert J. McKay. In his first habeas action, McKay did not raise a claim of ineffective assistance of counsel against Elder.[3] The habeas court, Cobb, J., denied the petition on March 22, 2012. McCarthy v. Warden, Docket No. CV- 07-4001548-S, 2012 WL ...

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