Apodaca v. Commissioner of Correction , 167 Conn. App. 530 ( 2016 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
HERMAN APODACA v. COMMISSIONER
OF CORRECTION
(AC 37679)
Lavine, Beach and Alvord, Js.
Submitted on briefs May 26—officially released August 9, 2016
(Appeal from Superior Court, judicial district of
Tolland, Oliver, J.)
Walter C. Bansley IV and Wade Luckett, assigned
counsel, filed a brief for the appellant (petitioner).
Matthew C. Gedansky, state’s attorney, Denise B.
Smoker, senior assistant state’s attorney, and David M.
Carlucci, assistant state’s attorney, filed a brief for the
appellee (respondent).
Opinion
BEACH, J. The petitioner, Herman Apodaca, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus. The petitioner
claims that the habeas court erred in concluding that he
failed to prove ineffective assistance of his trial counsel
because of counsel’s failure to call a potential defense
witness. We affirm the judgment of the habeas court.
The following facts regarding the underlying criminal
conviction were set forth by our Supreme Court on
direct appeal and restated by the habeas court. ‘‘In
August, 2005, the [petitioner], a New York resident, met
John Ortiz, a New Britain barber. The [petitioner] asked
Ortiz to let him know whether he knew anyone in Con-
necticut who might be interested in buying large quanti-
ties of drugs. Some time after that meeting, Ortiz
contacted the [petitioner] and relayed information that
a friend, Luis Bruno, was interested in making such
a purchase.
‘‘On September 22, 2005, the [petitioner] and two of
his acquaintances, Eduardo Davila and Rodney Han-
kerson, went to New Britain, where Ortiz introduced
them to Bruno. An agreement was reached to sell Bruno
four kilograms of cocaine at a price of $19,000 per
kilogram, with the sale to take place two days later.
The [petitioner], Davila and Hankerson decided to use
the sale as a pretext to steal Bruno’s money.
‘‘On September 24, 2005, Bruno called Davila on the
[petitioner’s] cell phone to express reservations about
the sale, and they ultimately agreed that Bruno could
purchase two, rather than four, kilograms of cocaine.
Later that same day, the [petitioner], Hankerson and
Davila drove to New Britain, where they met Ortiz in
a store parking lot. Davila and Hankerson carried guns
on them as directed by the [petitioner]; the [petitioner]
gave Davila a larger gun so ’it would look more intim-
idating’ and directed Davila to give his own smaller gun
to Hankerson. Hankerson brought with him a duffle
bag containing rolls of duct tape and bricks of fake
cocaine made out of sheetrock. The [petitioner], driving
one vehicle, with Hankerson as his passenger, and Dav-
ila, driving a second vehicle, followed Ortiz’ car to
Bruno’s apartment in New Britain. Davila went to
Bruno’s apartment and entered through the rear door.
Davila saw stacks of money piled on the kitchen table
and drew his gun on Bruno. Davila then relayed a mes-
sage to the [petitioner’s] cell phone indicating that
everything was under control. The [petitioner] entered
the apartment, along with Hankerson who was carrying
the bag containing the duct tape and fake cocaine. A
fight ensued between Hankerson, Davila and Bruno.
The [petitioner] filled a grocery bag with the cash that
was piled on the kitchen table and returned with it to his
car, leaving Hankerson and Davila to deal with Bruno.
During the struggle with Bruno, in which Hankerson
and Davila tried to bind his mouth, arms and legs with
the duct tape, Bruno was beaten and fatally stabbed.
‘‘Hankerson and Davila fled the apartment and drove
to a rest stop, where they met the [petitioner]. The two
men had blood on their clothes, and the [petitioner]
directed them to get back into their vehicle and to follow
him. The [petitioner] led them back to his girlfriend’s
apartment in New York, where he gave them a change
of clothes. The three men split the money taken from
Bruno’s apartment.
‘‘Thereafter, the [petitioner] was arrested and
charged with felony murder, two counts of robbery in
the first degree and one count of conspiracy to commit
robbery in the first degree. At trial, the [petitioner] did
not dispute that he had been involved in a scheme to
sell Bruno drugs, but disclaimed any knowledge of the
robbery or murder. . . . The jury returned a verdict of
guilty on all four counts.’’ State v. Apodaca, 303 Conn.
378, 381–83, 33 A.3d 224 (2012). The petitioner appealed
directly to our Supreme Court, pursuant to General
Statutes § 51-199 (b) (3), and his convictions were
affirmed. Id., 379, 402.
The petitioner filed the operative petition for a writ
of habeas corpus in December, 2014. The petitioner
alleged, inter alia, that his trial counsel, Devereaux Can-
nick, rendered ineffective assistance for failing to call
Hankerson as a witness at the petitioner’s criminal trial.1
Following a trial, the court concluded that the petitioner
had failed to prove both deficient performance and
prejudice. The court granted certification to appeal
from the denial of the habeas petition. This appeal
followed.
We begin with the applicable standard of review and
relevant principles of law. ‘‘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. . . .
As enunciated in Strickland v. Washington, [466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] . . .
[a] claim of ineffective assistance of counsel consists of
two components: a performance prong and a prejudice
prong. To satisfy the performance prong . . . the peti-
tioner must demonstrate that his attorney’s representa-
tion was not reasonably competent or within the range
of competence displayed by lawyers with ordinary train-
ing 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 . . . . A court can find
against a petitioner, with respect to a claim of ineffec-
tive assistance of counsel, on either the performance
prong or the prejudice prong . . . .’’ (Internal quotation
marks omitted.) Browne v. Commissioner of Correc-
tion, 158 Conn. App. 1, 7–8, 125 A.3d 1014, cert. denied,
318 Conn. 906, 122 A.3d 634 (2015).
‘‘The first component, generally referred to as the
performance prong, requires that the petitioner show
that counsel’s representation fell below an objective
standard of reasonableness . . . . Because of the diffi-
culties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance; that is, the [petitioner] must overcome the
presumption that, under the circumstances, the chal-
lenged action might be considered sound trial strategy.
. . . [C]ounsel is strongly presumed to have rendered
adequate assistance and made all significant decisions
in the exercise of reasonable and professional judg-
ment.’’ (Citation omitted; internal quotation marks omit-
ted.) Henry v. Commissioner of Correction, 60 Conn.
App. 313, 317–18, 759 A.2d 118 (2000). ‘‘[T]he presenta-
tion of testimonial evidence is a matter of trial strategy.
. . . The failure of defense counsel to call a potential
defense witness does not constitute ineffective assis-
tance unless there is some showing that the testimony
would have been helpful in establishing the asserted
defense.’’ (Citation omitted; internal quotation marks
omitted.) Chace v. Bronson, 19 Conn. App. 674, 680–81,
564 A.2d 303, cert. denied, 213 Conn. 801, 567 A.2d
832 (1989).
‘‘[T]he second prong, or prejudice prong, requires
that the petitioner show that there is a reasonable prob-
ability 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.’’ (Internal quota-
tion marks omitted.) Henry v. Commissioner of Correc-
tion, supra, 60 Conn. App. 318.
Regarding the performance prong, the petitioner
argues that Cannick’s decision not to call Hankerson
as a witness was unreasonable and contends that Han-
kerson’s testimony would have helped to establish a
different and more effective defense. The petitioner
further notes that Cannick’s strategy to admit to the
petitioner’s involvement with the drug deal but to deny
that the petitioner had the intent to commit robbery
was ‘‘not a defense so much as an almost complete
concession of the state’s entire case.’’ We disagree.
The following additional facts are relevant. At the
habeas trial, Cannick—an attorney with twenty years
of experience in the practice of criminal law—testified
that after he had examined the state’s evidence, he
concluded that the petitioner’s best defense was to
argue ‘‘[this] was a drug deal that went wrong.’’ Cannick
testified that the petitioner originally had intended to
testify that he traveled to Connecticut for a deal in
the music industry. The habeas court ‘‘agree[d] with
Cannick that based on the entire trial record such testi-
mony would have been implausible and would have
significantly damaged any hopes for acquittal.’’ Han-
kerson testified that if he had testified at the petitioner’s
criminal trial, he would have denied any knowledge of
a drug deal or a robbery and stated his belief that he,
the petitioner, and Davila had traveled to Connecticut
for a music deal. The court concluded that the petitioner
did not satisfy Strickland’s performance prong because
he ‘‘failed to establish how the testimony of . . . Han-
kerson would have been helpful to him at trial . . . .’’
The court’s conclusion that Hankerson’s testimony
would not have been helpful to the petitioner’s defense
was reasonable. First, Hankerson’s testimony would
have directly contradicted the strategy that Cannick
employed at trial, and Cannick’s strategy was reason-
able. In light of the state’s significant evidence regarding
a drug deal, Cannick had sound strategic reasons for
choosing the ‘‘drug deal that went wrong’’ defense. Such
defense could not place the petitioner in further jeop-
ardy, in light of the fact that no drugs actually were
involved in the transaction and the petitioner was not
charged with any drug related offense.2 In the context
of this strategy, Hankerson’s testimony would not have
been helpful in establishing the petitioner’s defense. We
agree that Cannick’s decision not to call Hankerson
clearly fell ‘‘into the category of trial strategy or judg-
ment calls that we consistently have declined to second
guess.’’ (Internal quotation marks omitted.) Crocker v.
Commissioner of Correction, 126 Conn. App. 110, 132,
10 A.3d 1079, cert. denied, 300 Conn. 919, 14 A.3d
333 (2011).
Even if Cannick had pursued a different defense strat-
egy, Hankerson’s testimony would not have been help-
ful. As mentioned, Hankerson claimed not to have had
knowledge that he was traveling to Connecticut for
a drug deal, despite the state’s evidence that a drug
transaction had been planned for that day. He also
claimed not to have had knowledge that the petitioner
was a drug dealer, despite their close friendship. The
habeas court credited Cannick’s determination that it
would not have been plausible to deny that a drug deal
had been arranged. We conclude that the habeas court
properly determined that the petitioner had failed to
satisfy the performance prong.
The habeas court also determined that the petitioner
failed to satisfy the prejudice prong. The record also
supports this conclusion. At the petitioner’s criminal
trial, Davila was the sole witness to testify that the
petitioner had proposed and led a plan to rob Bruno.
Cannick vigorously cross-examined Davila and showed
that Davila had made several prior inconsistent state-
ments and that Davila was testifying in the hope of
receiving a much lighter sentence at his own criminal
trial. Nonetheless, the jury apparently credited Davila’s
testimony. In light of the likely implausibility of Han-
kerson’s testimony and the jury’s apparent reliance on
Davila’s testimony, ‘‘[t]here is no reasonable probability
that the outcome of the proceeding would have been
different’’ if Hankerson had testified at the petitioner’s
trial. Martin v. Commissioner of Correction, 155 Conn.
App. 223, 232, 108 A.3d 1174, cert. denied, 316 Conn.
910, 111 A.3d 885 (2015).
Based on the foregoing, we conclude that the habeas
court properly determined that the petitioner has not
met his burden of proving that Cannick rendered inef-
fective assistance of counsel for failing to call Han-
kerson as a witness and that there was no prejudice
resulting from that decision.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The petitioner raised numerous claims of ineffective assistance of coun-
sel in his habeas petition, and the court denied the habeas petition in its
entirety. The only claim of ineffective assistance of counsel at issue in this
appeal is the failure to call Hankerson as a witness.
2
The petitioner’s argument regarding Cannick’s failure to call Hankerson
as a witness appears to be rooted in the idea that Cannick’s entire trial
strategy was flawed. Cannick testified that admitting the petitioner’s pres-
ence in Connecticut for a drug deal but denying intent to commit robbery
was one of the few viable defenses. The court credited his testimony and
agreed with Cannick that testimony regarding a music deal would have been
damaging to the petitioner’s case.