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Andrews v. Commissioner of Correction

Court of Appeals of Connecticut

November 5, 2019

LAWRENCE ANDREWS
v.
COMMISSIONER OF CORRECTION

          Argued September 9, 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, Sferrazza, J.; judgment denying the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed.

          Patrick S. White, assigned counsel, with whom, on the brief, was Christopher Y. Duby, assigned counsel, for the appellant (petitioner).

          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.

          OPINION

          MOLL, J.

         The 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.[1] We conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal and, accordingly, dismiss the appeal.

         The 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.

         ‘‘For 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).

         Our 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.'' Id., 311-13.

         By way 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.[2] 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.

         On 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).[3] 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.

         On 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.

         I

         The 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. We disagree.

         We ‘‘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).

         For the 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.

         II

         Turning 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.

         We 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. . . .

         ‘‘[I]t 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: [1] a performance prong and [2] 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).

         The 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 her.''[4]

         Reynolds also testified that in February, 2012, he provided testimony in a separate jury trial held in a criminal matter filed against Smith.[5] 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.[6]
‘‘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. Right.
‘‘Q. Okay.
‘‘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 ...

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