Joseph v. Commissioner of Correction ( 2014 )

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KENYON L. JOSEPH v. COMMISSIONER
OF CORRECTION
(AC 34454)
Beach, Keller and Flynn, Js.
Argued September 10—officially released October 28, 2014
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
Jeffrey D. Brownstein, assigned counsel, for the
appellant (petitioner).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Michael Dearington, state’s
attorney, and Adrienne Maciulewski, deputy assistant
state’s attorney, for the appellee (respondent).
Opinion
FLYNN, J. The petitioner, Kenyon L. Joseph, appeals
following the denial of his petition for certification to
appeal 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
his trial counsel, Attorney Thomas E. Farver, rendered
effective assistance. The petitioner argues that Farver
was ineffective in failing (1) to pursue a ‘‘secondary
investigation’’ into whether the petitioner was physi-
cally capable of handling a rifle like the one he allegedly
used during the Meriden incident that led to his arrest,
(2) to obtain a police report regarding a previous Hart-
ford incident, (3) to interview the petitioner’s sister
about an alleged threat made against the petitioner and
his family by an accomplice, Thelburt Hampton, who
testified for the state, and (4) to cross-examine Hamp-
ton about his alleged threat against the petitioner and
his involvement in the Hartford incident. We conclude
that the habeas court did not abuse its discretion in
denying the petition for certification to appeal and,
accordingly, we dismiss the appeal.
In the petitioner’s underlying criminal appeal, State
v. Joseph, 110 Conn. App. 454, 955 A.2d 124, cert. denied,
289 Conn. 945, 959 A.2d 1010 (2008), we noted the
following relevant facts. ‘‘On November 11, 2001, in the
early morning hours, a shooting occurred at 24 Camp
Street in Meriden that resulted in the death of Derling
Mercado. During the investigation of the Meriden shoot-
ing, the police interviewed the [petitioner] twice, each
time recording the interview. The two recordings were
played at trial. The [petitioner] told the police that he
had stolen a maroon Buick and had driven his friends,
Thelburt Hampton, Eddie Schmidt, Kashon Pearson and
a man named Cochese to Hartford to buy marijuana.
In Hartford, Schmidt and Pearson exited the vehicle to
approach some men on the street. The [petitioner]
heard shooting and saw Schmidt, with a gun, chasing
one of the men. He then saw feathers coming out of
the shoulder blade area of one of the men’s jackets.
‘‘The [petitioner] then told the police that after the
Hartford incident, he drove the same group of friends
to Meriden to continue their search to buy marijuana.
In Meriden, the [petitioner] came upon Mercado, who
was standing outside his house at 24 Camp Street with
his friends, Carlos Figueroa, Luis Gonzalez, Ezequiel
Rivera, Alexander Rivera, Victor Rivera and Isaias Bar-
reto. The [petitioner] stopped the car to see if Mercado’s
group had any marijuana. When Mercado’s group said
‘no,’ Schmidt exited the car with a gun, stole a necklace
from Gonzalez and killed Mercado. . . . After the
shooting in Meriden, the [petitioner] drove his friends
back to New Britain, where he abandoned the stolen
Buick.
‘‘Other witnesses testified that after Schmidt had
exited the car to steal Gonzalez’ necklace, the [peti-
tioner] exited the car with a rifle. . . . The [petitioner]
fired the rifle in the direction of Figueroa, and the bullet
ricocheted off the side of a car and into his body. The
[petitioner’s] gunshot started a chain reaction, and, in
the time following the [petitioner’s] first gunshot,
Schmidt shot and killed Mercado. The [petitioner] there-
after was arrested . . . .’’ (Footnote omitted.) Id.,
456–57.
Following a trial by jury, the petitioner was found
guilty on charges of felony murder, murder as an acces-
sory, conspiracy to commit robbery in the first degree,
and two counts of assault in the first degree as an
accessory. The trial court sentenced the petitioner to
fifty-five years imprisonment. The petitioner appealed
from his conviction and this court affirmed the judg-
ment of the trial court. Id., 456.
On December 7, 2011, the petitioner filed an amended
petition for a writ of habeas corpus, alleging ineffective
assistance of trial counsel, due process violations, and
prosecutorial misconduct. The habeas court conducted
a trial on February 6 and February 15, 2012. At the
conclusion of the trial, the court denied the petition for
a writ of habeas corpus. The petitioner then filed a
petition for certification to appeal, which the court
denied.
On March 21, 2012, the petitioner filed the present
appeal. On appeal, the petitioner first claims that the
habeas court abused its discretion in denying his peti-
tion for certification to appeal. He also claims that the
court improperly denied his petition for a writ of habeas
corpus and erred in concluding that he was not deprived
of effective assistance of trial counsel. The petitioner
has not briefed any claims of due process violations or
prosecutorial misconduct before this court and we thus
deem them abandoned on appeal. See Commissioner of
Health Services v. Youth Challenge of Greater Hartford,
Inc., 219 Conn. 657, 659 n.2, 594 A.2d 958 (1991) (deem-
ing claims that were not briefed on appeal to be
abandoned).
We now turn to the applicable standard of review.
Faced with the habeas court’s denial of certification to
appeal, a petitioner’s first burden is to demonstrate
that the habeas court’s ruling constituted an abuse of
discretion. Simms v. Warden, 230 Conn. 608, 612, 646
A.2d 126 (1994). To prove an abuse of discretion, the
petitioner must demonstrate that the resolution of the
underlying claim involves issues that 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.
Id., 616. If the petitioner succeeds in surmounting that
hurdle, the petitioner must then demonstrate that the
judgment of the habeas court should be reversed on its
merits. Id., 612.
We examine the petitioner’s underlying claims of inef-
fective assistance of counsel in order to determine
whether the habeas court abused its discretion in deny-
ing the petition for certification to appeal. Farnum v.
Commissioner of Correction, 118 Conn. App. 670, 674,
984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989
A.2d 119 (2010). 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 consti-
tuted a violation of the petitioner’s constitutional right
to effective assistance of counsel is plenary. Id.
Citing the United States Supreme Court’s holding in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), our Supreme Court has held
that a habeas petitioner’s claim that counsel’s assis-
tance was so defective as to require reversal of a convic-
tion has two components—deficient performance and
proof of prejudice to the defense. Aillon v. Meachum,
211 Conn. 352, 357, 559 A.2d 206 (1989). With regard
to the performance component of this inquiry, the peti-
tioner must show that counsel’s representation fell
below an objective standard of reasonableness. Id. The
test for prejudice requires that the petitioner show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different. Id.
I
We first address the petitioner’s claim that Farver
was ineffective in failing to pursue a ‘‘secondary investi-
gation’’ into whether the petitioner was physically capa-
ble of handling a rifle like the one he allegedly used
to shoot Figueroa during the Meriden incident. The
petitioner’s left arm ends just below the elbow. The
petitioner argues that ‘‘a secondary investigation could
have established through an expert that it was impossi-
ble or highly unlikely that the petitioner could have
been the shooter or would have been able to manipulate
the rifle by raising it with both of his arms as was
described in the testimony by various witnesses . . . .’’
The petitioner also argues that Farver was ineffective
in failing to demonstrate to the jury that the petitioner
could not have handled the rifle in the manner described
by witnesses. We are not persuaded.
The habeas court found that the petitioner had not
presented any proof that Farver’s failure to conduct a
secondary investigation into the petitioner’s ability to
use a rifle constituted ineffective assistance or preju-
diced the petitioner. Farver testified at the habeas trial
that he ‘‘strenuously’’ argued to the jury that it was
‘‘illogical’’ to conclude that the petitioner had operated
a rifle in the manner described by witnesses. Farver
stated: ‘‘I think more significant was the testimony of
a witness at trial that the individual firing the rifle—
brought it up and literally demonstrating as if he had two
hands. And we used that in—in both cross-examination
and in the final argument to suggest that therefore it
could not have been [the petitioner] who was the indi-
vidual firing the rifle.’’ Farver testified at the habeas
trial that the petitioner’s disability did not make it
impossible for him to handle a rifle. During closing
argument at the criminal trial, the prosecutor used one
hand to operate the rifle allegedly used by the petitioner
in order to demonstrate to the jury that it was possible
for the petitioner to have operated it.
We agree with the habeas court’s conclusion that the
petitioner did not prove that Farver’s failure to conduct
a secondary investigation into the petitioner’s ability to
use a rifle amounted to ineffective assistance of coun-
sel. The burden is on the petitioner to show that his
trial counsel’s performance was deficient and that he
was prejudiced by it. The petitioner argues that a sec-
ondary investigation could have established that it was
impossible or highly unlikely that he was the shooter.
As the petitioner has not demonstrated any specific
actions Farver could have taken or any specific results
that a secondary investigation would have yielded, this
argument is speculative. The petitioner is required to
meet his burden with ‘‘demonstrable realities’’; specula-
tion is insufficient. (Emphasis omitted.) Farnum v.
Commissioner of Correction, supra, 118 Conn. App.
675.
Moreover, the petitioner has failed to show any preju-
dice as a result of Farver’s failure to conduct a second-
ary investigation. The petitioner was convicted on
charges of felony murder, murder as an accessory, con-
spiracy to commit robbery in the first degree, and two
counts of accessory to assault in the first degree. The
felony convictions underlying the felony murder charge
all arose out of accessorial or conspiratorial criminal
responsibility. The petitioner admitted to the police that
he was present at the Meriden incident and that he
drove the car to and from Meriden. These incriminating
statements were entered into evidence at his criminal
trial. The prosecution presented evidence, which the
jury found credible, that the petitioner had been present
at the Meriden incident and that he had participated in
his cohorts’ criminal conduct by driving the car. The
prosecution did not need to prove that the petitioner
personally had operated the rifle that was used to shoot
Figueroa, who survived his injuries, during the Meriden
incident in order to convict the petitioner on all counts.
See State v. Foster, 202 Conn. 520, 535, 522 A.2d 277
(1987) (defining accessorial liability as intentionally aid-
ing another to engage in commission of offense); see
also State v. Garner, 270 Conn. 458, 484, 853 A.2d 478
(2004) (noting that, with respect to conspiracy liability,
‘‘when the conspirator [has] played a necessary part in
setting in motion a discrete course of criminal conduct,
he should be held responsible, within appropriate limits,
for the crimes committed as a natural and probable
result of that course of conduct’’ [internal quotation
marks omitted]). The petitioner has not reasonably
demonstrated that, but for Farver’s failure to conduct
a secondary investigation, the result of the criminal trial
would have been different.
II
The petitioner next claims that Farver was ineffective
in failing to obtain a police report regarding the Hartford
incident, in which the petitioner was involved shortly
before the Meriden incident leading to his arrest. Before
the Meriden incident, the petitioner drove his cohorts
to Hartford to buy marijuana. In Hartford, two of the
cohorts, Schmidt and Pearson, exited the car to
approach a group of men on the street. The petitioner
heard the sound of shots being fired and witnessed
Schmidt with a gun, chasing one of the men. The peti-
tioner then drove his cohorts to Meriden, where the
robbery and fatal shooting of Mercado occurred. State
v. Joseph, supra, 110 Conn App. 456–57.
The petitioner argues that Farver was ineffective in
failing to obtain the police report of the Hartford inci-
dent because the report could have been used to
impeach the testimony of Hampton, an accomplice who
testified as a witness for the state. According to the
petitioner, Hampton testified at the petitioner’s criminal
trial that he did not participate in the Hartford incident
with the rest of the petitioner’s group, but was picked
up in the car by the petitioner on the way to Meriden.
The Hartford police report allegedly contained informa-
tion that contradicted Hampton’s statements about his
alleged absence from the Hartford incident.
Farver testified at the habeas trial that he attempted
to obtain the report before the criminal trial but he did
not recall ever receiving it. The prosecutor testified that
he contacted the Hartford Police Department to see if
there was a report for the Hartford incident, but he
never located one. The petitioner testified that he
received a police report of the Hartford incident through
a freedom of information request. The record is unclear
as to when the petitioner made his freedom of informa-
tion request and received the report. The habeas court
found that there was no substantiated proof that the
police report existed at the time of the petitioner’s crimi-
nal trial. We conclude that the petitioner has not shown
that the habeas court’s factual finding on this matter
was clearly erroneous. Farver cannot be said to have
rendered ineffective assistance of counsel in failing to
obtain a document that may not have existed at the
time of the criminal trial.
Furthermore, the habeas court found that, even if the
report had existed at the time of the criminal trial,
Farver’s failure to obtain the report did not prejudice
the petitioner. Farver testified at the habeas trial that
part of the defense he presented to the jury at the
criminal trial was that the petitioner was not aware that
his cohorts intended to engage in criminal behavior in
Meriden. Farver further testified that the earlier Hart-
ford incident, in which the petitioner also was the driver
of the car by which the other cohorts engaged in the
same pattern of conduct as in Meriden, would have
undermined that defense. Farver testified that his recol-
lection of his trial strategy was that he wanted to keep
information about the Hartford incident away from
the jury.
In reviewing ineffective assistance of counsel claims,
‘‘[j]udicial scrutiny of counsel’s performance must be
highly deferential. . . . [A] court must indulge a strong
presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might
be considered sound trial strategy.’’ (Internal quotation
marks omitted.) Bryant v. Commissioner of Correc-
tion, 290 Conn. 502, 512–13, 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).
We conclude that Farver’s decision to avoid further
emphasis on the Hartford incident, which also involved
a shooting, falls within the ‘‘ ‘wide range of reasonable
professional assistance’ ’’; id., 512; and did not consti-
tute deficient performance. The petitioner has failed to
overcome the presumption that Farver’s actions, or lack
thereof, with respect to the police report were sound
trial strategy. We agree with the habeas court’s conclu-
sion that, assuming the police report of the Hartford
incident existed at the time of the petitioner’s criminal
trial, Farver’s failure to obtain it did not prejudice
the petitioner.
III
The petitioner also claims that Farver provided inef-
fective assistance in failing to interview the petitioner’s
sister, Latoya Joseph, about an alleged threat made
against the petitioner and his family by Hampton. The
petitioner testified at the habeas trial that, after the
Meriden incident and before the petitioner’s interviews
with the Meriden Police Department, Hampton
approached him at his sister’s home and threatened
him. Hampton allegedly threatened to harm the peti-
tioner and his family if the petitioner told the police
about Hampton’s involvement in the Meriden incident.
Latoya Joseph testified at the habeas trial that she over-
heard Hampton threaten the petitioner and that she
informed Farver of the threat. Hampton did not testify
at the habeas trial.
The petitioner argues that Farver should have inter-
viewed his sister regarding Hampton’s threat and pre-
sented her testimony to the jury in the criminal trial.
The petitioner contends that Latoya Joseph’s testimony
‘‘would explain why the petitioner did not tell the Meri-
den police in his interview that . . . Hampton got out
of the car or was the shooter [of Figueroa] in Meriden.
Her testimony would have clearly provided the jury
with crucial evidence to suggest that . . . Hampton
was the shooter and not [the petitioner].’’1 At the habeas
trial, Farver testified that he could not recall the peti-
tioner asking him to speak to Latoya Joseph. He also
testified that he could not recall the petitioner or Latoya
Joseph informing him of Hampton’s threat.
The habeas court found that the petitioner had pre-
sented ‘‘no proof’’ that Farver had any information con-
cerning Hampton’s threat before the criminal trial. Even
if this finding were inaccurate in light of the petitioner’s
and Latoya Joseph’s testimony, which provided the
habeas court with some evidence that Farver was aware
of Hampton’s threat before the criminal trial, the peti-
tioner still must prove prejudice. See Aillon v. Mea-
chum, supra, 211 Conn. 357. We agree with the habeas
court’s conclusion that, even if Farver knew about
Hampton’s threat before the criminal trial, the peti-
tioner was not prejudiced by counsel’s failure to inter-
view Latoya Joseph or present to the jury evidence of
the threat.
On appeal, the petitioner argues that Latoya Joseph’s
testimony about Hampton’s threat might have benefited
the petitioner in two ways. First, the jury would have
understood that the petitioner’s fear of Hampton pre-
vented him from informing the police that Hampton
was the one who shot Figueroa in Meriden. Second,
the jury may not have credited Hampton’s testimony
that the petitioner shot Figueroa and may have found
that Hampton, rather than the petitioner, was the
shooter. Assuming, arguendo, that the jury would have
accepted Latoya Joseph’s testimony in the manner that
the petitioner suggests, evidence of Hampton’s threat
would not have changed the outcome of the petitioner’s
criminal trial. As discussed previously in this opinion,
the petitioner was convicted on all counts as either an
accessory or a conspirator. The prosecution presented
credible evidence to the jury that the petitioner had
been present at the Meriden incident and that he had
participated in his cohorts’ criminal conduct by driving
the car which took them to and from the scene of
the crime. Even if Farver had convinced the jury that
Hampton shot Figueroa, the jury would still have been
able to find the petitioner guilty on all counts. Accord-
ingly, we conclude that the petitioner was not preju-
diced by Farver’s failure to interview Latoya Joseph
and present to the jury her testimony about Hamp-
ton’s threat.
IV
The petitioner’s final claim on appeal is that Farver
was ineffective in failing to cross-examine Hampton,
who testified as a witness for the state, about Hampton’s
alleged threat against the petitioner and Hampton’s
involvement in the Hartford incident. The petitioner
first argues that evidence of Hampton’s threat could
have persuaded the jury that Hampton, and not the
petitioner, shot Figueroa. Second, with respect to the
Hartford incident, the petitioner argues that Farver
could have impeached Hampton’s testimony by cross-
examining him about his presence in Hartford after he
denied being there. The petitioner contends that a more
effective cross-examination of Hampton could have
‘‘undermine[d] . . . Hampton’s testimony which impli-
cated the petitioner as being the one with the rifle’’ and
ultimately ‘‘undermined confidence in the verdict.’’
For the same reasons we discussed in part III of this
opinion, the petitioner’s arguments on this issue are not
persuasive. The petitioner’s arguments revolve around
Farver’s alleged failure to impeach Hampton’s testi-
mony that the petitioner shot Figueroa during the Meri-
den incident. As previously explained, the petitioner
was convicted as either an accessory or a conspirator
on all counts and, therefore, the prosecution was not
required to prove that the petitioner shot the rifle in
order to obtain a guilty verdict from the jury. The peti-
tioner was not prejudiced by Farver’s failure to cross-
examine Hampton about the alleged threat or Hamp-
ton’s involvement in the Hartford incident.
The petitioner has not shown that the habeas court
erred in concluding that he was not deprived of the
effective assistance of trial counsel. We are not per-
suaded that the issues presented in this appeal are
debatable among jurists of reason, that a court could
resolve them in a different manner, or that the questions
raised deserve encouragement to proceed further. See
Simms v. Warden, supra, 230 Conn. 616. Accordingly,
we conclude that the habeas court did not abuse its
discretion in denying the petition for certification to
appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner did not testify at his criminal trial and therefore did not
present to the jury through his own testimony evidence of Hampton’s threat.
State v. Joseph, supra, 110 Conn. App. 456 n.1.