Roberts v. Commissioner of Correction ( 2015 )

******************************************************
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.
******************************************************
HILBERT ROBERTS v. COMMISSIONER
OF CORRECTION
(AC 35122)
DiPentima, C. J., and Lavine and Harper, Js.
Argued October 27, 2014—officially released February 10, 2015
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Michael Zariphes, assigned counsel, for the appel-
lant (petitioner).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and David Clifton, assistant state’s
attorney, for the appellee (respondent).
Opinion
DiPENTIMA, C. J. The petitioner, Hilbert Roberts,
appeals from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the court erred when
it concluded that his criminal trial counsel, Paul Carty,
did not render ineffective assistance when he (1) failed
to investigate and present the petitioner’s alibi defense
at trial; and (2) failed to offer expert testimony on eye-
witness identification at trial.1 We affirm the judgment
of the habeas court.
The habeas court set forth the following factual and
procedural history in its memorandum of decision. ‘‘The
underlying case involved a shooting [on April 17, 2005,
at approximately 2:00 p.m.] in New Haven, which
resulted in the death of the victim, [Elijah Stovall]. On
July 31, 2006, the petitioner was convicted, after a jury
trial, of (1) murder in violation of General Statutes § 53a-
54a; (2) felony murder in violation of General Statutes
§ 53a-54c; robbery in the first degree in violation of
General Statutes § 53a-134 (a) (2); criminal possession
of a firearm in violation of General Statutes § 53a-217
(a) (1); and carrying a pistol revolver without a permit
in violation of General Statutes § 29-35. The petitioner
was sentenced by the trial court to sixty-five years
imprisonment. The petitioner appealed his conviction,
but the appeal was dismissed by the Appellate Court
. . . .’’
On August 3, 2011, the petitioner filed an amended
petition for a writ of habeas corpus, claiming that Carty
provided ineffective assistance of counsel. The habeas
court denied the petition following a trial, concluding
that the petitioner failed to prove that (1) Carty’s actions
were deficient when he failed to investigate and present
an alibi defense; and (2) the petitioner was prejudiced
by Carty’s failure to call an expert in eyewitness identifi-
cation issues. On September 7, 2012, the habeas court
granted the petitioner’s petition for certification to
appeal. This appeal followed. Additional facts will be
set forth as necessary.
We begin by setting forth our well settled standard
of review governing ineffective assistance of counsel
claims. ‘‘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 effec-
tive assistance of counsel is plenary.’’ (Internal quota-
tion marks omitted.) McClean v. Commissioner of
Correction, 103 Conn. App. 254, 262, 930 A.2d 693(2007), cert. denied, 285 Conn. 913, 943 A.2d 473 (2008).
‘‘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 con-
sists of two components: a performance prong and a
prejudice prong. To satisfy the performance prong . . .
the petitioner must demonstrate that his attorney’s rep-
resentation 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 demon-
strate 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
ineffective assistance of counsel, on either the perfor-
mance prong or the prejudice prong, whichever is eas-
ier.’’ (Citation omitted; internal quotation marks
omitted.) Ham v. Commissioner of Correction, 301
Conn. 697, 703–704, 23 A.3d 682 (2011).
Additionally, a ‘‘fair assessment of attorney perfor-
mance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the
time. Because of the difficulties 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 [peti-
tioner] must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy. . . . [C]ounsel is strongly
presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reason-
able professional judgment.’’ (Internal quotation marks
omitted.) Toccaline v. Commissioner of Correction, 80
Conn. App. 792, 798–99, 837 A.2d 849, cert. denied, 268
Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline
v. Lantz, 543 U.S. 854, 125 S. Ct. 301, 160 L. Ed. 2d
90 (2004).
I
ALIBI DEFENSE
The petitioner first claims that the habeas court erred
when it concluded that Carty did not render ineffective
assistance of counsel ‘‘when he failed to sufficiently,
adequately and effectively investigate the petitioner’s
alibi defense and then present that alibi defense at trial.’’
We are not persuaded.
The following testimony, presented at the habeas
trial, is relevant to our resolution of this claim. Amy
Doolittle testified that she had met the petitioner at a
night club in April, 2005. According to Doolittle, on
April 16, 2005, the day before the shooting, the peti-
tioner visited her at her home in New Britain, and
remained there until 4 p.m. of the next day. Because
the petitioner did not have an automobile at that time,
he was driven to and from Doolittle’s house by his
friend, ‘‘Keys.’’ During cross-examination, Doolittle tes-
tified that in June, 2005, she learned that the petitioner
had been arrested and was being accused of a murder
that occurred on the date that the petitioner was at her
house. After learning this, she made no attempt to get
in touch with the police, Carty, or the prosecutor’s
office. She explained that she did not know how to
go about coming forward with the alibi information.
Doolittle did, however, admit to having some experi-
ence with the criminal justice system, having been con-
victed of a felony in December, 2005, and, prior to that,
having been involved in four separate larcenies.
Similarly, the petitioner testified that on the morning
of April 16, 2005, he was picked up by his friend, Marquis
Hailey, from the house of LaPraya Little—another
female he was dating at the time—and driven to Doolit-
tle’s house, where he remained until approximately 3
p.m. of the next day, April 17. The petitioner further
testified that during the pretrial investigation he
informed Carty of the specifics of his alibi defense. The
petitioner admitted, however, that, at that time, he did
not know Doolittle’s last name and, therefore, had not
provided it to Carty. According to the petitioner, he
told Carty that on the dates in question he was with
Amy from Meriden.2
Carty testified that, during the pretrial investigation,
the petitioner told him that ‘‘on the date of the shooting
he had been to the home of a female friend, a last name
of Little . . . .’’ According to Carty, the investigation
of the petitioner’s claim ‘‘didn’t really pan out’’ because,
when questioned by Carty’s investigator, Little stated
that, on the morning of April 17, 2005, she saw the
petitioner at ten or eleven o’clock ‘‘for about an hour,’’
after which he left in the company of two men. Carty
explained that he decided not to present Little as an
alibi witness because she had last seen the petitioner
approximately two hours before the shooting, and
because she described the petitioner as wearing a white
‘‘wife beater shirt’’—which matched a description given
by an eyewitness to the shooting. Carty testified further
that he had no recollection of the petitioner’s telling
him about Doolittle, and that his case notes did not
contain such a name.
In its memorandum of decision, the habeas court
found the testimony of the petitioner and that of Doolit-
tle not to be credible, stating that ‘‘the petitioner did
not inform Attorney Carty that Ms. Doolittle could pro-
vide an alibi defense. The court believes that had the
petitioner actually been with Ms. Doolittle on Saturday
[April 16, 2005] and most of the day on Sunday [April
17, 2005], the day of the shooting, he would have
informed his attorney of this crucial fact. Similarly,
Doolittle’s testimony is undermined by the fact that
she did not inform anyone that she had been with the
petitioner at the time of the shooting.’’ The court also
determined that the petitioner ‘‘has failed to prove that
the testimony of Little would have been ‘helpful’ to the
petitioner’s defense at trial, as she did not provide an
alibi for the time of the shooting and her testimony
[had she testified at the criminal trial] could have under-
mined the petitioner’s defense.’’ On the basis of these
determinations, the habeas court concluded ‘‘that the
petitioner has failed to establish the first prong of the
Strickland test . . . .’’
Having reviewed the testimony presented at the
habeas trial, we agree with the court that the petitioner
has failed to establish that Carty’s representation was
not reasonably competent or within the range of compe-
tence displayed by lawyers with ordinary training and
skill in the criminal law. See Strickland v. Washington,
supra, 466 U.S. 687. ‘‘As an appellate court, we do not
reevaluate the credibility of testimony, nor will we do
so in this case. The 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. . . . In a
habeas appeal, this court cannot disturb the underlying
facts found by the habeas court unless they are clearly
erroneous . . . . This court does not retry the case or
reevaluate the credibility of witnesses. Rather, we must
defer to the [trier of fact’s] assessment of the credibility
of the witnesses based on its firsthand observation of
their conduct, demeanor and attitude.’’ (Citation omit-
ted; internal quotation marks omitted.) Corbett v. Com-
missioner of Correction, 133 Conn. App. 310, 316–17,
34 A.3d 1046 (2012).
Accordingly, we will not disturb the court’s conclu-
sion that the petitioner has failed to demonstrate that
Carty’s performance was deficient.
II
EYEWITNESS IDENTIFICATION
The petitioner next claims that the habeas court erred
when it failed to determine that Carty ‘‘was ineffective
after he failed to sufficiently, adequately and effectively
challenge the state’s eyewitness identifications at trial
by failing to consult with and then present at trial, an
expert witness on eyewitness identification issues.’’ We
are not persuaded.
The following background, as found by the habeas
court, is necessary to facilitate our discussion. At the
petitioner’s criminal trial, ‘‘the defense did not deny that
the petitioner was present at the scene of the shooting
because a number of the eyewitnesses who knew the
[petitioner] could testify that [he] was present and was
the driver of the vehicle. Carty’s defense strategy was to
attempt to convince the jury that although the petitioner
was physically present, he was not the shooter. Carty
pursued this strategy through cross-examination of the
state’s witnesses by pointing out the inconsistencies in
their identifications of the shooter.’’
At the habeas trial, Carty testified that he decided not
to challenge the eyewitness identification procedure
employed by the police because, out of the four wit-
nesses who did testify for the state, two—Taneisha
Swindell and Jarid Buice—personally knew the peti-
tioner from prior encounters; one—James Porter—did
not identify anyone specifically; and only one—James
Duarte—did not know the petitioner personally, but
was able to identify him from the photographic array
and later in court.
To support his claim of ineffective assistance of coun-
sel, the petitioner presented the testimony of Jennifer
Dysart, an expert on the reliability of eyewitness identi-
fications. As the habeas court found, however, ‘‘Dysart
provided limited helpful testimony about the specific
identification in this case, but rather provided mostly
generalized instruction on the manner in which photo-
graphic arrays should be conducted and the reliability
of eyewitness identifications. Such concerns are not
as pronounced, she stated, in a case like this where
witnesses actually know the [petitioner] personally. As
to this case specifically, all she could say was that the
various witnesses testified differently concerning the
shooter’s clothes, height and weight.’’
Having heard the testimony in the case, the court
found that ‘‘the petitioner has failed to prove that expert
testimony regarding the [eyewitnesses’] testimony
would have been helpful to the petitioner in this case.
. . . Certain of the eyewitnesses who testified or could
have testified, actually knew the [petitioner] personally,
and, therefore, the general concepts proffered by the
expert witness would not, admittedly, be particularly
helpful. As to issues concerning inconsistencies in wit-
nesses’ testimonies concerning the petitioner’s clothes,
height and weight, and who was driving the [Acura],
Attorney Carty highlighted those issues to the jury dur-
ing his cross-examinations of the witnesses and the
closing argument. The court presumes that Carty’s deci-
sion to cross-examine witnesses, rather than call an
expert . . . was a sound tactical decision. . . . The
petitioner has not rebutted that presumption.
‘‘Moreover, at the time of the petitioner’s trial in July,
2006, it was the law in this state that the reliability
of eyewitness identifications was generally within the
knowledge of jurors and expert testimony would not
generally assist jurors in determining the issue of identi-
fication. . . . Although the law on the issue of the relia-
bility of eyewitness identification is in flux and evolving
in this state . . . in 2006, when this case was tried,
such testimony would not likely have been allowed by
the trial court. . . .
‘‘The petitioner has not proved that had Attorney
Carty . . . attempted to call an expert witness at trial,
the court would have admitted such testimony, under
the law as it stood at the time of trial, or that such
testimony would have altered the result of the trial.
. . . He has, therefore, not established prejudice.’’
(Citations omitted.)
On appeal, the petitioner argues that Carty ‘‘rendered
deficient performance when he failed to consult with
and then present expert testimony as to identification
issues and/or the fallibility of eyewitness identifications
at his criminal trial,’’ and that, if presented, such testi-
mony ‘‘would have directly enlightened the jury as to
these more complicated issues, research and informa-
tion regarding the fallibility of eyewitness identifica-
tions that were well beyond the ken of the average
juror.’’ Additionally, the petitioner argues that he suf-
fered prejudice because ‘‘absent Carty’s errors, there
is a reasonable probability that the outcome of the
petitioner’s criminal jury trial would have been differ-
ent.’’ We are not persuaded.
We begin by noting that, even though at the time of
the petitioner’s criminal trial Connecticut did not have
a ‘‘per se bar to the admission of expert testimony on
the reliability of eyewitness identifications . . . [at
that time] courts consistently [had] barred the use of
such expert testimony . . . reasoning [that] . . . the
substance of that testimony is known to the average
juror, the testimony would encroach unduly on the
jury’s responsibility to determine what weight to give
the eyewitness testimony, and other means, including
cross-examination and closing argument of counsel, are
sufficient to apprise jurors of any potential weakness
in the particular eyewitness identification at issue.’’
State v. Outing, 298 Conn. 34, 98–99, 3 A.3d 1 (2010)
(Palmer, J., concurring), cert. denied, U.S. , 131
S. Ct. 1479, 179 L. Ed. 2d 316 (2011); see also State v.
Guilbert, 306 Conn. 218, 232–33, 49 A.3d 705 (2012)
(discussing history and reasoning behind routine exclu-
sion of eyewitness identification expert’s testimony by
Connecticut courts).
Furthermore, Dysart testified that even though, at
the time of the criminal trial, the debate over the reliabil-
ity of different eyewitness identification procedures
merited ‘‘very little debate’’ within the scientific commu-
nity, it was still ‘‘being debated in practice.’’ It is well
settled that ‘‘while the failure to advance an established
legal theory may result in ineffective assistance of coun-
sel under Strickland, the failure to advance a novel
theory never will.’’ (Internal quotation marks omitted.)
Ledbetter v. Commissioner of Correction, 275 Conn.
451, 461, 880 A.2d 160 (2005), quoting Haight v. Com-
monwealth, 41 S.W.3d 436, 448 (Ky.), cert. denied, 534
U.S. 998, 122 S. Ct. 471, 151 L. Ed.2d 386 (2001), cert.
denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126
S. Ct. 1368, 164 L. Ed. 2d 77 (2006).
Having reviewed the record in this case, we agree
with the habeas court that the petitioner failed to prove
that expert witness testimony would have been admit-
ted by the trial court given the state of the law at that
time. See Ledbetter v. Commissioner of Correction,
supra, 275 Conn. 462 (counsel performs effectively
when maneuvering within existing law). Therefore the
habeas court properly concluded that the petitioner
failed to establish prejudice. Accordingly, the habeas
court did not err in denying the petition for a writ of
habeas corpus.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In his appellate brief, the respondent, the Commissioner of Correction,
suggests that this court should not review any claims raised by the petitioner
on appeal that he did not raise in his application for waiver of fees, costs
and expenses and appointment of counsel on appeal that was filed along
with the petition for certification to appeal. To support his claim, the respon-
dent relies on this court’s holding in Stenner v. Commissioner of Correction,
144 Conn. App. 371, 374–75, 71 A.3d 693, cert. denied, 310 Conn. 918, 76
A.3d 633 (2013), where this court declined to review the petitioner’s claims
because he had failed to raise them in his petition for certification to appeal
or in his fee waiver application. We conclude, however, that the respondent’s
reliance on Stenner is misplaced. In Stenner, the habeas court denied the
petitioner’s petition for certification to appeal. Thus, to obtain appellate
review, the petitioner had to demonstrate that the denial of certification to
appeal constituted an abuse of the habeas court’s discretion. On appeal,
this court determined that ‘‘a petitioner cannot demonstrate that a habeas
court abused its discretion in denying a petition for certification to appeal
on the basis of issues that were not actually raised in the petition for
certification to appeal. . . . Under such circumstances, the petition for
certification to appeal could not have apprised the habeas court that the
petitioner was seeking certification to appeal based on such issues. . . . A
review of such claims would amount to an ambuscade of the [habeas] judge.’’
(Internal quotation marks omitted.) Id., 374–75. In the present case, however,
the habeas court granted the petition for certification to appeal. As we
have held before, in such ‘‘cases, once the habeas court, in its gatekeeping
function, certified that appellate review was warranted, any issue could be
presented on appeal, so long as the opposing party is not prejudiced.’’ Logan
v. Commissioner of Correction, 125 Conn. App. 744, 753 n.7, 9 A.3d 776,
(2010), cert. denied, 300 Conn. 918, 14 A.3d 333 (2011). The respondent has
not claimed prejudice; therefore we will review the petitioner’s claims.
2
In his brief, the petitioner argues that Carty failed to investigate Doolittle
as an alibi witness because he ‘‘was getting LaPraya Little confused with
Amy Doolittle due to the similarity of the last names . . . .’’ We find no
merit to this claim in the record because the petitioner testified that, at the
time of the pretrial investigation, he did not know Doolittle’s last name.