Dieudonne v. Commissioner of Correction
Dieudonne v. Commissioner of Correction
Opinion of the Court
Opinion
The respondent, the commissioner of correction, appeals from the judgment of the habeas court granting in part an amended petition for a writ of habeas corpus filed by the petitioner, Fritzgerald Dieudonne. The respondent claims that the habeas court improperly concluded that the ineffective assistance of the petitioner’s trial counsel prejudiced the petitioner in accordance with the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We disagree and, accordingly, affirm the judgment of the habeas court.
In the underlying criminal matter, the petitioner was charged with two counts of assault of public safety personnel, one count of conspiracy to sell narcotics by a person who is not drug-dependent and one count of interfering with an officer. At the close of the state’s case-in-chief, the trial court granted the petitioner’s motion for a judgment of acquittal on the narcotics charge. After a jury trial, the petitioner was found guilty of one count of assault of public safety personnel in violation of General Statutes § 53a-167c,
In that decision, this court set forth the following facts: “On October 26,2004, the Stamford police department received an anonymous tip indicating that three black males were selling drugs on the comer of Ludlow and Pacific Streets. The tip provided that two of the men were wearing dark clothing and black jackets and that the third man was wearing a green jacket. [Matheny and Baker] responded to the call. At the scene, the officers observed the [petitioner] and another man, Sil-vio Paguero, standing on the comer. Both men were wearing clothing that fit the description. As the officers approached the street comer, they observed the [petitioner] hand a small item to Paguero. Believing that the two men might be involved in a drug transaction, the officers exited their vehicle.
“As Matheny approached the [petitioner], the [petitioner] turned and, as he began walking away, reached into his pants, pulled out a white item and placed it in
“After Baker observed Matheny struggling with the [petitioner], he attempted to help restrain the [petitioner]. The [petitioner], however, pushed both officers off of him several times. After additional officers arrived, the [petitioner] was subdued successfully. The [petitioner] was arrested and a search incident to the arrest revealed $167 in small bills. No drugs were discovered. As a result of the struggle, Matheny sustained an interior chest wall injury that required medical treatment.” Id., 376-77.
The petitioner filed a petition for a writ of habeas corpus challenging his conviction on the remaining count of assault of public safety personnel. He advanced two specific claims of ineffective assistance of his trial counsel, public defender Howard Ehring. First, he claimed that Ehring failed to investigate and to produce the testimony of Jessie Boiteux, who testified at the habeas trial that he witnessed the confrontation between the petitioner and the police, and that the petitioner did not assault the police officers or resist arrest.
Boiteux testified before the habeas court, which found the following facts: “Boiteux’ version of the events, which he provided at the habeas trial, was that two police officers jumped on top of the petitioner and then threw him against a fence. Supposedly, the officers were grabbing and trying to choke the petitioner. The petitioner was struggling but, according to Boiteux, only because he was trying to breathe. Essentially, Boiteux’ version corroborated the petitioner’s testimony at the criminal trial that an officer jumped on him, two officers choked him in an effort to have him spit out something in his mouth, and that he tussled with them because
“Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Morris v. Commissioner of Correction, 131 Conn. App. 839, 842, 29 A.3d 914, cert. denied, 303 Conn. 915, 33 A.3d 739 (2011).
“As enunciated in Strickland v. Washington, supra, [466 U.S.] 687, [our Supreme 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.” (Internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 678, 51 A.3d 948 (2012). “The claim will succeed only if both prongs are satisfied.” (Internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 510, 964 A.2d 1186, cert. denied sub nom. Murphy v. Bryant, 558 U.S. 938, 130 S. Ct. 259, 175 L. Ed. 2d 242 (2009).
“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, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks
“In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. . . . Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” (Citations omitted; internal quotation marks omitted.) Id., 688-89. “Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the [petitioner] has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” Strickland v. Washington, supra, 466 U.S. 696.
On appeal, the respondent contends that the habeas court improperly concluded that there was “at least a reasonable probability that the result would have been different with regard to [the charge of assault of Matheny] if Ehring had presented Boiteux’ eyewitness corroboration of the petitioner’s testimony.” The respondent does not advance any argument with regard to the first prong of Strickland, arguing only that the habeas court erred in concluding that, under the second prong of Strickland, the deficient performance of the petitioner’s trial counsel prejudiced his defense.
The respondent first claims that the habeas court failed to weigh properly the totality of the evidence
The central premise of the respondent’s claim is that Boiteux’ testimony did not relate to the entire time frame during which the altercation took place. The respondent crafts an argument in which the altercation between the petitioner and the officers is trifurcated into three distinct periods of time or “phases.” Boiteux’ testimony, the respondent contends, does not pertain to one of these three phases, namely, when Matheny initially pursued the petitioner and attempted to detain him. The respondent, applying Strickland's logic that unaffected findings must remain unaffected, concludes that the unaffected evidence pertaining to that phase is sufficient to convict the petitioner of assault of public safety personnel, and that the absence of Boiteux’ testimony, therefore, did not prejudice the results of the petitioner’s trial.
A review of the record reveals that the respondent did not advance, before either the habeas or the trial court, its argument that the altercation was divided into three distinct time frames.
The respondent next claims that the habeas court applied the incorrect legal standard when determining that the absence of Boiteux’ testimony was sufficient to meet Strickland’s prejudice prong. Specifically, the respondent claims that the habeas court erroneously found that “[a] jury could have credited [Boiteux’] testimony and found reasonable doubt”; (emphasis added); and cited Bryant v. Commissioner of Correction, supra, 290 Conn. 523, as support for that proposition. The respondent properly asserts that the legal standard for holding that the petitioner was prejudiced by ineffective assistance of counsel is higher than the possibility that there could have been a different result. See Cullen v. Pinholster, 563 U.S. 170, 131 S. Ct. 1388, 1403, 179 L. Ed. 2d 557 (2011) (“The [petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ... A reasonable probability is a probability sufficient to undermine confidence in the outcome. . . . That requires a substantial, not just conceivable, likelihood of a different result.” [Citations omitted; emphasis added; internal quotation marks omitted.]); Morales v. Commissioner of Correction, 99 Conn. App. 506, 509, 914 A.2d 602, cert. denied, 282 Conn. 906, 920 A.2d 308 (2007) (“[t]he petitioner, as the plaintiff in a habeas corpus proceeding, bears a heavy burden of proof’ [internal quotation marks omitted]).
The habeas court, therefore, properly considered and weighed the totality of the evidence and applied the correct legal standard in determining that the petitioner received ineffective assistance from his trial counsel. We agree with the habeas court’s determination that there is a reasonable probability that, but for trial counsel’s deficient performance, the result of the proceeding would have been different.
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 53a-167c provides in relevant part: “A person is guilty of assault of public safety . . . personnel when, with intent to prevent a reasonably identifiable peace officer . . . from performing his or her duties, and while such peace officer ... is acting in the performance of his or her duties . . . such person causes physical injury to such peace officer . . . .”
Ehring testified that he did not investigate Boiteux prior to trial because he did not want to open the door to any evidence of the petitioner’s prior narcotics usage, which could have undermined his defense strategy with regard to the count of conspiracy to sell narcotics. The respondent argues that for a petition for a writ of habeas corpus based on trial counsel not
The petitioner states that we should decline to review this argument because it is not properly before this court. See Oliphant v. Commissioner of Correction, 80 Conn. App. 613, 618, 836 A.2d 471 (2003), cert. denied, 268 Conn. 907, 845 A.2d 412 (2004) (“This court is not bound to consider claimed errors unless it appears on the record that the question was distinctly raised . . . and was ruled upon and decided by the court adversely to the appellant’s claim. ... To review [claims that do not meet these criteria]
The respondent directs this court to the habeas court’s memorandum of decision, which states: “Although the petitioner called Baker and Matheny to testify at the habeas trial on the issue of the availability of their hospital reports, the respondent did not recall them to provide live testimony on the incident itself, making it harder to evaluate what truly happened.” The respondent argues that this finding constitutes the habeas court improperly
The respondent contends that the habeas court did not make an affirmative credibility determination with regard to Boiteux, and, on this basis, distinguishes Bryant v. Commissioner of Correction, supra, 290 Conn. 502. In Bryant, the habeas court found that the testimony of four witness who were not called to testily by the petitioner’s counsel “likely would have permeated to some degree every aspect of the trial and raised a reasonable doubt in the minds of the jury as to the petitioner’s guilt” because the testimony would have served to impeach witnesses upon whose testimony the state built its case, as well as supporting a third party culpability defense. Id., 523. With regard to the four witnesses, the habeas court found them to be compelling, credible and highly persuasive. Id., 510-11. Although the credibility determination of the habeas court in Bryant was stronger than that of the habeas court in this case, the habeas court in this case did state that a jury “could have credited” Boiteux’ testimony. The court found there was no showing that Boiteux’ testimony would have been easily discredited or subject to damaging impeachment on cross-examination. Further, the habeas court noted the likely impartiality of Boiteux as a testifying witness due to the fact that he was not the petitioner’s close friend or associate. “[T]he testimony of neutral, disinterested witnesses is exceedingly important.” (Internal quotation marks omitted.) Bryant v. Commissioner of Correction, supra, 518. Most importantly, with regard to the habeas court’s
The respondent argues that the habeas court improperly considered the fact that the jury was unable to reach a unanimous decision with regard to the charge of assault of Baker, relying on Yeager v. United States, 557 U.S. 110, 121-22, 129 S. Ct. 2360, 174 L. Ed. 2d 78 (2009) (“To ascribe meaning to a hung count would presume an ability to identify which factor was at play in the jury room. But that is not reasoned analysis; it is guesswork. Such conjecture about possible reasons for ajury’s failure to reach a decision should play no part in assessing the legal consequences of a unanimous verdict that the jurors did return.”). Yeager, however, pertains to assessing the legal consequences of a hung jury for the purposes of double jeopardy. See United States v. Jackson, 658 F.3d 145, 152-53 (2d Cir.), cert. denied, U.S. , 132 S. Ct. 858, 181 L. Ed. 2d 564 (2011). Further, Yeager warns against guesswork in ascribing reasons why the jury failed to reach a verdict, but does not say that a habeas court cannot note, regardless of the jury’s reasons, that the state was unable to secure a conviction with regard to a second criminal count arising out of the same events and circumstances. A habeas court can review the record to determine the strength of the state’s case in determining whether trial counsel’s deficiency was prejudicial. See, e.g., Gaines v. Commissioner of Correction, supra, 306 Conn. 688-92. Determining that the absence of Boiteux’ eyewitness testimony increased the likelihood of a different result does not run afoul of Yeager because the court did not speculate as to the reasons why the jury was unable to reach a unanimous verdict, but rather properly considered the strength of the state’s case at trial in determining whether ineffective counsel prejudiced the petitioner.
Reference
- Full Case Name
- FRITZGERALD DIEUDONNE v. COMMISSIONER OF CORRECTION
- Cited By
- 4 cases
- Status
- Published