September 9, 2019
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;
thereafter, the court denied the petition for certification
to appeal, and the petitioner appealed to this court.
Patrick S. White, assigned counsel, with whom, on the brief,
was Christopher Y. Duby, assigned counsel, for the appellant
Timothy J. Sugrue, assistant state's attorney, with
whomonthe brief, were Maureen Platt, state's attorney,
and Marc G. Ramia, senior assistant state's attorney, for
the appellee (respondent).
DiPentima, C. J., and Keller and Moll, Js.
petitioner, Lawrence Andrews, appeals from the denial of his
second amended petition for a writ of habeas corpus following
the denial of his petition for certification to appeal. On
appeal, the petitioner claims that the habeas court (1)
abused its discretion in denying his petition for
certification to appeal and (2) erroneously concluded that he
failed to establish that his state and federal constitutional
rights to the effective assistance of counsel were
violated. We conclude that the habeas court did not
abuse its discretion in denying the petition for
certification to appeal and, accordingly, dismiss the appeal.
following facts, asset forth by our Supreme Court in the
petitioner's direct appeal from his conviction and as
recited by the habeas court in its memorandum of decision,
and procedural history are relevant to our disposition of the
appeal. ‘‘On March 21, 1999, a tenant at 17
Burton Street in the city of Waterbury went to the basement
to retrieve his bicycle and discovered the partially clothed
body of the victim, Michelle McMaster, lying on the floor. A
police investigation subsequently determined that the cause
of her death was asphyxia by manual strangulation and that
the evidence also was consistent with a sexual assault.
nearly one decade, the police were unable to solve the crime.
In 2008 and 2009, however, a purported eyewitness, Donna
Russell, was interviewed on several occasions by detectives
from the Waterbury Police Department and gave three
increasingly detailed written statements regarding what she
had seen. In her statements, Russell disclosed that, on the
evening of March 20, 1999, she went to the basement of 17
Burton Street, a local drug hangout, for the purpose of using
heroin. Upon her arrival, four other people already were
there: the [petitioner], Barry Smith, a man she did not know
but who later was identified from a photographic array as
Orenthain Daniel, and the victim. As Russell proceeded to
inject herself with heroin, she heard the [petitioner] and
the victim arguing about money or drugs. The argument quickly
escalated, and a struggle ensued, during which the victim was
knocked down. Afraid that something ‘horrible' was
about to happen, Russell decided to flee. The last thing she
saw upon escaping from the basement was the [petitioner]
bending over the victim and choking her, Smith holding down
her arms, and Daniel pulling down her pants. She also heard
the victim gasping for air and pleading for Russell's
help, and the men saying they were going to have sex with her
one way or another.'' State v. Andrews, 313
Conn. 266, 270-71, 96 A.3d 1199 (2014).
Supreme Court in Andrews also set forth the
following additional facts. On March 6, 2009, the petitioner
was arrested and charged with murder. Id., 271 and
n.2. ‘‘On March 7, 2009, the day after the
[petitioner] was arrested and charged with murder, he gave
oral and written statements to the police regarding his
involvement in the crime. In his statements, the [petitioner]
explained that, in 1999, he was a ‘runner' who
referred drug purchasers to drug sellers and received drugs
in exchange for the referrals. In March, 1999, he brought the
victim to a drug seller for a $100 purchase of crack cocaine
and received $30 worth of crack cocaine in return. He and the
victim then went to the basement of a house on Burton Street
‘where lots of people go to get high.' Smith, who
also was in the basement, began to argue with the victim
about giving him some of her crack cocaine. Smith then hit
the victim in her face, which caused her to fall down.
Believing that the crack cocaine was in one of the
victim's hands, which was clenched, and knowing that she
had a fairly large quantity of the substance, the
[petitioner] explained in his signed, written statement:
‘I thought to myself, why should [Smith] get all the
crack? . . . I want to get some for myself, so I went at [the
victim]. [The victim] was trying to wrestle out from under
[Smith], so I went up to the top of her head and tried to
control her head and get the crack. It was a frenzy. I
grabbed her by the neck and, at one point to control her, I
hit her in the head a couple [of] times. When I had her by
the neck, I was squeezing her neck, trying to knock the wind
out of her. After I had her by the neck, my hands were mostly
on her chest and shoulders, but I did grab her neck a couple
more times. Then [Smith] started to choke her, and she
started to go out, by that, I mean, pass out. Then another
guy jumped [in], and he hit her in the stomach. At one point,
[Smith] got a metal thing. It was like some frame of a table
or chair and [he] started to swing at [the victim]. It hit
both me and her. All the while, [Smith] was still choking
her. I was trying to grab at her hand to get the crack, but
she wouldn't let go. When this was all going on, I
remember seeing [Russell] . . . . I'm not sure when
[Russell] left. The third guy started to pull [the
victim's] pants down and then [Smith] pulled up her
shirt; this is when [the victim] let go of the crack, when
she tried to hold her pants so they wouldn't get down.
[Smith] started to choke her again, and, eventually, she went
out. When I mean she went out, her eyes were closed, she
wasn't fighting no more. I don't know if she was dead
or not, but she wasn't moving. I don't even know if
she was breathing. The third guy was still pulling her pants
down. I knew this was bad, so I got up and got out of there.
I don't know what happened to the crack. I'm sure
someone tried to get it off the floor.' The [petitioner]
later identified Smith and Daniel from photographic arrays as
the other two participants in the incident.''
of its operative substitute information filed on April 27,
2011, the state charged the petitioner with murder in
violation of General Statutes §§ 53a-8 and 53a-54a
(a), and felony murder, based on the predicate felony of
attempted robbery, in violation of General Statutes §
53a-54c. The case was tried to a jury over the
course of approximately two weeks in May and June, 2011. The
petitioner, who was represented by Attorney Eroll Skyers,
testified at trial. The petitioner's theory of defense
was that he was not present at the Burton Street residence on
the night of the victim's murder, he had not seen the
victim for a couple of years prior to 1999, and his statement
to the police following his arrest had been the product of
deception. Following trial, the jury acquitted the petitioner
of murder, but convicted him of felony murder. Subsequently,
the trial court sentenced the petitioner to thirty-five years
of incarceration. The petitioner appealed to our Supreme
Court, which affirmed the judgment of conviction. See
State v. Andrews, supra, 313 Conn. 324.
October 28, 2014, the petitioner, representing himself, filed
a petition for a writ of habeas corpus. On April 20, 2017,
after assigned habeas counsel had appeared on his behalf, the
petitioner filed his operative three-count second amended
petition for a writ of habeas corpus (second amended
petition). In counts one and two of the second
amended petition, the petitioner alleged that, in violation
of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963), the state failed to disclose to
him a purportedly exculpatory written statement given to the
Waterbury Police Department in 2003 by an individual named
Norman Reynolds. In count three of the second amended
petition, the petitioner alleged that Skyers rendered
ineffective assistance by failing (1) to conduct a reasonably
diligent investigation and, thereby, failing to discover
Reynolds as a defense witness, (2) to call Reynolds as a
defense witness, and/or (3) otherwise to provide the
petitioner with a reasonable defense. On June 6, 2017, the
respondent, the Commissioner of Correction, filed a return,
leaving the petitioner to his proof.
December 14, 2017, the habeas court, Sferrazza, J.,
held a one day trial. The court heard testimony from the
petitioner, Reynolds, Skyers, and Frank Riccio, who testified
as an expert witness on behalf of the petitioner. On March
29, 2018, the parties filed posttrial briefs. On April 16,
2018, the court issued a memorandum of decision denying the
second amended petition. Thereafter, the petitioner filed a
petition for certification to appeal from the judgment
denying the second amended petition, which the court denied.
This appeal followed. Additional facts and procedural history
will be set forth as necessary.
petitioner first claims that the habeas court abused its
discretion in denying his petition for certification to
appeal from the judgment denying the second amended petition.
‘‘begin by setting forth the procedural hurdles
that the petitioner must surmount to obtain appellate review
of the merits of a habeas court's denial of the [amended]
habeas petition following denial of certification to appeal.
In Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601
(1994), [our Supreme Court] concluded that . . . [General
Statutes] § 52-470 (b) prevents a reviewing court from
hearing the merits of a habeas appeal following the denial of
certification to appeal unless the petitioner establishes
that the denial of certification constituted an abuse of
discretion by the habeas court. In Simms v. Warden,
230 Conn. 608, 615-16, 646 A.2d 126 (1994), [our Supreme
Court] incorporated the factors adopted by the United States
Supreme Court in Lozada v. Deeds, 498 U.S. 430,
431-32, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991), as the
appropriate standard for determining whether the habeas court
abused its discretion in denying certification to appeal.
This standard requires the petitioner to demonstrate that the
issues are debatable among jurists of reason; that a court
could resolve the issues [in a different manner]; or
that the questions are adequate to deserve encouragement to
proceed further. . . . A petitioner who establishes an abuse
of discretion through one of the factors listed above must
then demonstrate that the judgment of the habeas court should
be reversed on its merits. . . . In determining whether the
habeas court abused its discretion in denying the
petitioner's request for certification, we necessarily
must consider the merits of the petitioner's underlying
claims to determine whether the habeas court reasonably
determined that the petitioner's appeal was
frivolous.'' (Emphasis in original; internal
quotation marks omitted.) Grover v. Commissioner of
Correction, 183 Conn.App. 804, 811-12, 194 A.3d 316,
cert. denied, 330 Conn. 933, 194 A.3d 1196 (2018).
reasons set forth in part II of this opinion, we conclude
that the petitioner has failed to demonstrate that (1) his
claims are debatable among jurists of reason, (2) a court
could resolve the issues in a different manner, or (3) the
questions are adequate to deserve encouragement to proceed
further. Thus, we conclude that the habeas court did not
abuse its discretion in denying the petition for
certification to appeal.
to the petitioner's substantive claim on appeal, the
petitioner asserts that the habeas court erroneously
concluded that he did not sustain his burden of demonstrating
that Skyers rendered ineffective assistance by failing to
investigate and call Reynolds as a witness at the
petitioner's criminal trial and to present a defense
predicated on Reynolds' testimony and the written
statement provided by Reynolds to the Water-bury Police
Department in 2003. For the reasons set forth subsequently in
this opinion, the petitioner's claim fails.
begin by setting forth the relevant standard of review and
legal principles that govern our review of the
petitioner's claim. ‘‘The habeas court is
afforded broad discretion in making its factual findings, and
those findings will not be disturbed unless they are clearly
erroneous. . . . Historical facts constitute a recital of
external events and the credibility of their narrators. . . .
Accordingly, [t]he habeas judge, as the trier of facts, is
the sole arbiter of the credibility of witnesses and the
weight to be given to their testimony. . . . The application
of the habeas court's factual findings to the pertinent
legal standard, however, presents a mixed question of law and
fact, which is subject to plenary review. . . .
is well established that [a] criminal defendant is
constitutionally entitled to adequate and effective
assistance of counsel at all critical stages of criminal
proceedings. Strickland v. Washington, [466 U.S.
668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. . . . As
enunciated in Strickland v. Washington, supra, 466
U.S. 687, this court has stated: It is axiomatic that the
right to counsel is the right to the effective assistance of
counsel. . . . A claim of ineffective assistance of counsel
consists of two components:  a performance prong and  a
prejudice prong. To satisfy the performance prong . . . the
petitioner must demonstrate that his attorney's
representation was not reasonably competent or within the
range of competence displayed by lawyers with ordinary
training and skill in the criminal law. . . . To satisfy the
prejudice prong, [the petitioner] must demonstrate that there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. . . . The [petitioner's] claim will
succeed only if both prongs are satisfied.''
(Citation omitted; internal quotation marks omitted.)
Chance v. Commissioner of Correction, 184 Conn.App.
524, 533-34, 195 A.3d 422, cert. denied, 330 Conn. 934, 194
A.3d 1196 (2018).
following additional facts are relevant to our resolution of
the petitioner's claim. At the habeas trial, the
petitioner called Reynolds as a witness. Reynolds testified
that, in 1999, while he was incarcerated at the Brooklyn
Correctional Institution, Smith confessed to Reynolds that he
had murdered the victim. Reynolds further testified that,
after hearing Smith's confession, Reynolds contacted the
Office of the State's Attorney, which ultimately led to a
meeting between Reynolds and the Waterbury Police Department
in 2003, during which Reynolds provided the police with a
signed, sworn written statement (Reynolds' statement).
Reynolds' statement, which was admitted into evidence at
the habeas trial, provided, in pertinent part, the following
regarding Smith's confession: ‘‘[Smith] said
that he ha[d] something to get off his chest that['d]
been eating him up inside. [Reynolds] asked him what it was
and [Smith told Reynolds] he killed [the victim], he said
that it was an accident, he did not mean to kill her. [Smith]
said that one night he was up on Burton Street. He said that
he was running [drug] sales for ‘Boo-Boo' Slade.
[The petitioner] was also running sales. At one point, [the
victim] showed up and [the petitioner] brought her to a house
on Burton Street to get high. [Smith] said that he also went
to Burton Street with them to get high. Boo-Boo Slade also
showed up at the house and all of them ‘tricked'
with [the victim], meaning that they had sex with her.
[Smith] said that after this, he and Boo-Boo went back
outside and he was running drug sales for [Boo-Boo] Slade.
[Smith] said that he would go back to where [the victim] was
on Burton Street, and get some money so he could [buy] some
more base to smoke with [the victim]. At one time, [Smith]
said that he went back to smoke some base with [the victim],
he began to have sex with [the victim]. He said one leg was
out of her pants. He said [the victim] began resisting him,
and [Smith] said that he started hitting her and smacking her
around. [Smith] said that [the victim] tried pushing him off
her, and he began choking her and smacking her because she
was fighting back. [Smith] said that after that, he left
Burton Street. [Smith] told [Reynolds] that it was an
accident, he didn't mean to kill
also testified that in February, 2012, he provided testimony
in a separate jury trial held in a criminal matter filed
against Smith. The transcripts of Reynolds' testimony
at Smith's trial, which were admitted into evidence at
the habeas trial, reflect that Reynolds provided the
following testimony, in pertinent part, on direct examination
concerning Smith's confession:
‘‘Q. And what was it that [Smith] told you?
‘‘A. [Smith] told me he killed [the victim].
‘‘Q. Tell us in as much detail as you can
remember what specifically [Smith] told you.
‘‘A. He said there was him, [the petitioner] . .
. [a]nd another guy named [Boo-Boo] Slade, they [were]
running [narcotic] sales for them and they were getting high
on Burton Street in the basement-I believe, the basement. And
they brought [the victim] down there and they-they-had sex
with [her] for drugs.
‘‘Q. And then what happened after that, what did
[Smith] tell you?
‘‘A. They-they left-back up-[Smith] said they
went back up and started running more sales-
‘‘Q. Who's they went back up?
‘‘A. Him, [the petitioner], and [Boo-Boo].
‘‘Q. And after they had had sex with [the victim]
down in the basement what happened after that, what did
they-what did [Smith] . . . tell you happened after that?
‘‘A. [Smith] said they went upstairs, they went
back up, them three, [the victim] was still downstairs I
believe. Then [Smith] said he went back downstairs to get
more money from [the victim], I believe, to get more money
from her. . . .
‘‘Q. [Smith] goes back down to [the victim] to
get more money.
‘‘A. And I guess they were starting to [get] high
and said they'd been having sex again.
‘‘Q. Who said they were having sex again?
‘‘A. [Smith]. He described to me how-he had one
pant-one-one-one of her pant legs off of her, one was on, one
was off. He was having sex and she started resisting and he
wouldn't stop and that's when ...