Omar v. Commissioner of Correction , 179 Conn. App. 696 ( 2018 )

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BEN OMAR v. COMMISSIONER OF CORRECTION
(AC 37185)
DiPentima, C. J., and Lavine and Bishop, Js.
Syllabus
The petitioner, who had been convicted of various drug related offenses,
sought a writ of habeas corpus, claiming that his trial counsel had
provided ineffective assistance when she exposed his criminal history
to the jury. At the petitioner’s criminal trial, trial counsel had introduced
into evidence a police incident report with an attached arrest warrant
affidavit, which contained a list of the petitioner’s prior convictions,
some of which were for drug related offenses. The petitioner claimed that
revealing his prior convictions damaged his credibility by demonstrating
that he knew how to run a street level drug operation, using individuals
as drug runners to avoid detection. The habeas court rendered judgment
denying the petition, from which the petitioner, on the granting of certifi-
cation, appealed to this court. Held that the habeas court properly
determined that the petitioner failed to prove that he was prejudiced
by the allegedly deficient performance of his trial counsel, as the result
of the petitioner’s criminal trial would not have been different but for
trial counsel’s decision to expose his criminal history to the jury; the
state presented a strong case against the petitioner, the evidence of his
prior convictions was not the only evidence demonstrating that he knew
how to use drug runners in a sophisticated street level drug operation,
the jury knew in general terms about the petitioner’s criminal history
regardless of trial counsel’s decision, as the prosecutor properly had
questioned him on cross-examination about his criminal history and
prior convictions without specifically identifying the offenses by name,
which undermined the petitioner’s credibility, and the trial court gave
the jury a limiting instruction that the evidence of the petitioner’s com-
mission of the other crimes was admitted for the sole purpose of affecting
his credibility, which the jury was presumed to have followed.
Argued December 7, 2017—officially released February 13, 2018
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, Cobb, J.; judgment deny-
ing the petition, from which the petitioner, on the grant-
ing of certification, appealed to this court. Affirmed.
Matthew C. Egan, assigned counsel, with whom were
Emily Graner Sexton, assigned counsel, and, on the
brief, James P. Sexton, assigned counsel, and Michael S.
Taylor, assigned counsel, for the appellant (petitioner).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, Eva Lenczewski, supervisory assistant state’s
attorney, and Marc G. Ramia, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
LAVINE, J. The petitioner, Ben Omar, appeals from
the judgment of the habeas court denying his petition
for a writ of habeas corpus. Following that denial, the
habeas court granted his petition for certification to
appeal. On appeal, the petitioner claims that the habeas
court improperly rejected his contention that his trial
counsel rendered ineffective assistance when she
exposed his criminal history to the jury. Because we
agree with the habeas court’s conclusion that the peti-
tioner failed to prove prejudice under Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), we affirm the judgment of the
habeas court.
As this court set forth in State v. Omar, 136 Conn.
App. 87, 43 A.3d 766, cert. denied, 305 Conn. 923, 47
A.3d 883 (2012), the jury reasonably could have found
the following relevant facts. ‘‘On March 25, 2009, Water-
bury police Lieutenant Edward Apicella led an under-
cover team to the intersection of North Main Street and
West/East Farm Streets in Waterbury . . . in order to
try ‘to purchase narcotics from any individual who
would solicit.’ Apicella designated Officer Dedrick Wil-
cox of the Seymour police department to be the under-
cover purchaser because it was likely that he would
not be recognized by the Waterbury street dealers as
a police officer. As Wilcox was driving, a black female,
later identified as Ida Mae Smith, nodded to him, and
Wilcox pulled over. Smith asked, ‘[W]hat do you need?’
and Wilcox responded, ‘I need twenty of base,’ which
meant $20 worth of crack cocaine. Smith then held up
two fingers and yelled across the street to the [peti-
tioner], ‘I need two.’ Wilcox then handed Smith the
money, at which point the [petitioner] walked to a
nearby mailbox, reached into his pocket and placed
two items on the top of the mailbox. Smith walked
across the street and handed the money to the [peti-
tioner], who pointed Smith toward the mailbox. Smith
then walked to the mailbox, grabbed the items and
handed Wilcox the items—two bags of crack cocaine—
and said, ‘[Y]ou’re all set.’ Wilcox then left the scene
and radioed to the surveillance team that the deal was
done and met the officers at a prearranged location.
The police did not immediately arrest the [petitioner]
because they did not want to jeopardize Wilcox’s safety
or cover for future ongoing undercover operations.
Instead, the [petitioner] was arrested six weeks later
in May, 2009.’’ Id., 89–90. Following a jury trial, the
petitioner was convicted of various drug related
offenses.1 This court affirmed the petitioner’s convic-
tion on direct appeal. See id., 89.
On February 23, 2012, the petitioner filed a self-repre-
sented petition for a writ of habeas corpus. In a single
count amended petition, he alleged that he was denied
the effective assistance of trial counsel when Stephanie
L. Evans, his lawyer, ‘‘exposed to the jury [his] sale and
possession of narcotics history and [his subsequent]
August 12, 2009 arrest for drugs.’’2 During the habeas
trial, the petitioner specifically focused on Evans’ deci-
sion to introduce a police incident report and an arrest
warrant affidavit into evidence. Both of these items
detailed the petitioner’s previous convictions, which
included drug related offenses.3
In its written decision denying the habeas petition,
the habeas court noted that Evans introduced the arrest
warrant affidavit into evidence ‘‘to emphasize the incon-
sistencies between the [testimony from the state’s wit-
nesses] and reports as to the weight of the narcotics
seized [on March 25, 2009].’’ It concluded, however, that
the petitioner failed to prove prejudice under Strickland
and did not specifically address whether Evans ren-
dered deficient performance. The petitioner appeals
from this judgment. Additional facts will be set forth
as necessary.
We begin with the applicable standard of review. ‘‘The
habeas court is afforded broad discretion in making its
factual findings, and those findings will not be disturbed
unless they are clearly erroneous. . . . 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.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Gaines v. Commissioner of Correction, 306 Conn. 664,
677, 51 A.3d 948 (2012).
The petitioner claims that the habeas court improp-
erly rejected his contention that Evans rendered ineffec-
tive assistance when she exposed his criminal history
to the jury. He argues that the ‘‘specific nature’’ of his
previous convictions demonstrated that he knew how
to run a street level drug operation and also damaged
his credibility. Evans’ decision to expose his criminal
record to the jury, according to the petitioner, preju-
diced him because the state’s case hinged on a credibil-
ity contest between him and the arresting officers.
Essentially, he argues that the jury would have found
him more credible, thus strengthening his sole defense
at trial—misidentification—if they did not know of his
specific criminal record. We are unpersuaded.4
The following additional facts and procedural history
are relevant to this claim. Lieutenant Apicella, a state’s
witness, testified at the petitioner’s criminal trial. Dur-
ing her cross-examination of Apicella, Evans asked
about his prior interactions with the petitioner and
whether police had searched the petitioner on March
25, 2009.5 While questioning Apicella, Evans requested
that ‘‘the incident offense report [from March 25, 2009]
with attached arrest warrant affidavit’’ become full
defense exhibits. Both documents were admitted into
evidence without objection, and Evans questioned Api-
cella about their contents. She also asked Apicella why
police did not arrest the petitioner on March 25, 2009.
Specifically, she asked: ‘‘So you left [Smith and the
petitioner] there for another month or so to continue
to sell drugs?’’ Apicella responded in relevant part:
‘‘That will depend on [the petitioner’s] conduct. . . .
That’s a decision that he would have to make.’’
The prosecutor revisited Apicella’s familiarity with
the petitioner on redirect-examination and specifically
asked him about the petitioner’s prior convictions
detailed in paragraph 8 of the arrest warrant affidavit.
See footnote 3 of this opinion. He also asked Apicella
about the petitioner’s August 12, 2009 ‘‘[arrest] for
drugs’’ following a separate incident involving a confi-
dential informant.
‘‘In Strickland v. Washington, [supra, 466 U.S. 687],
the United States Supreme Court established that for
a petitioner to prevail on a claim of ineffective assis-
tance of counsel, he must show that counsel’s assis-
tance was so defective as to require reversal of [the]
conviction. . . . That requires the petitioner to show
(1) that counsel’s performance was deficient and (2)
that the deficient performance prejudiced the defense.
. . . Unless a [petitioner] makes both showings, it can-
not be said that the conviction . . . resulted from a
breakdown in the adversary process that renders the
result unreliable. . . .
‘‘With respect to the performance component . . .
[t]o prove that his counsel’s performance was deficient,
the petitioner must demonstrate that trial counsel’s rep-
resentation fell below an objective standard of reason-
ableness. . . .
‘‘With respect to the prejudice component . . . the
petitioner must demonstrate that counsel’s errors were
so serious as to deprive the [petitioner] of a fair trial,
a trial whose result is reliable. . . . It is not enough
for the [petitioner] to show that the errors had some
conceivable effect on the outcome of the proceedings.
. . . Rather, [t]he [petitioner] must show that there is
a reasonable probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.
. . . When a [petitioner] challenges a conviction, the
question is whether there is a reasonable probability
that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.’’ (Internal quotation
marks omitted.) Minor v. Commissioner of Correction,
150 Conn. App. 756, 761–62, 92 A.3d 1008, cert. denied,
314 Conn. 903, 99 A.3d 1168 (2014).
We agree with the habeas court that the petitioner
failed to prove prejudice. The state presented a strong
case against him. Multiple police officers witnessed
Smith provide Wilcox, an undercover police officer,
with two items—later determined to be crack cocaine—
after she retrieved the items from the top of a mailbox.
Police also observed Smith hold up ‘‘two fingers and
[yell] across the street to the [petitioner], ‘I need two’ ’’
after Wilcox asked for $20 worth of crack cocaine. See
State v. Omar, supra, 136 Conn. App. 89–90. Multiple
officers also positively identified the petitioner as the
individual who placed the narcotics onto the top of the
mailbox before Smith retrieved them.
The petitioner argues that his prior convictions, espe-
cially his narcotics convictions, were the only evidence
demonstrating that he knew how to use drug runners
in a sophisticated street level drug operation. That con-
tention is not accurate. At the petitioner’s criminal trial,
several police officers testified generally about how
street level drug operations frequently use ‘‘runners’’
to avoid police detection. They also testified that Smith
signaled the petitioner after Wilcox asked for crack
cocaine and that Smith gave the petitioner the money
she received from Wilcox. The conduct of Smith and
the petitioner generally aligned with the testimony of
how drug dealers use runners, and Apicella testified
that Smith admitted to ‘‘working as a runner with [the
petitioner].’’ The police report and arrest warrant affida-
vit were, at most, cumulative and paled in comparison
to other evidence reasonably demonstrating that the
petitioner knew how to use drug runners.
The petitioner also testified at his criminal trial, and
the prosecutor questioned him about having several
felony convictions.6 The petitioner does not dispute that
the prosecutor properly questioned him about having
prior convictions, and the record reveals that the prose-
cutor did not specifically identify the prior convictions
by name.7 Therefore, the jury knew, in general terms,
about the petitioner’s extensive criminal history regard-
less of Evans’ decision to expose his specific criminal
background to the jury. See, e.g., State v. Pinnock, 220
Conn. 765, 779–81, 601 A.2d 521 (1992) (felony convic-
tion generally admissible to impeach witness’ veracity,
but where crime does not bear directly on truthfulness,
references at trial should ordinarily only be to unspeci-
fied felony); see also General Statutes § 52-145 (b);
Conn. Code Evid. § 6-7. The petitioner claims that the
jury would have found him more credible if they were
unaware of the specific named felonies of which he
had been convicted. Even if we agree, any such marginal
enhancement of his credibility would not undermine
our confidence in the verdict. The state presented a
strong case against the petitioner, and his credibility
was undermined when the state cross-examined him
about his general criminal background. We are there-
fore unpersuaded that the jury would have had a reason-
able doubt respecting guilt if the jurors did not know
the specific names of the petitioner’s prior convictions.
Finally, the court instructed the jury in relevant part
to consider that ‘‘[t]he commission of other crimes by
this [petitioner] has been admitted into evidence for the
sole purpose of affecting his credibility.’’ The petitioner
concedes that the limiting instruction was not defective.
Therefore, contrary to the petitioner’s argument, the
jury could not use evidence of his prior convictions to
demonstrate that he knew how to run a sophisticated
street level drug operation. Nor could the jury use that
evidence to prove his guilt. See, e.g., State v. Pharr,
44 Conn. App. 561, 576, 691 A.2d 1081 (1997) (jury is
presumed to follow trial court’s instructions).8
We acknowledge that the possibility for harm always
exists when prior, named convictions are introduced
into evidence against a criminal defendant. And this is
especially true when the defendant stands accused of
the same or similar crimes of which he has been con-
victed of committing in the past. See, e.g., State v. Geyer,
194 Conn. 1, 14–15, 480 A.2d 489 (1984). Notwithstand-
ing this, the petitioner must prove that there is a reason-
able probability that, but for Evans’ decision to expose
his criminal history to the jury, the result of his criminal
trial would have been different. See Minor v. Commis-
sioner of Correction, supra, 150 Conn. App. 761–62.
This he has failed to do.9 The strength of the state’s
case, the prosecutor’s permissible questioning of the
petitioner about his criminal history on cross-examina-
tion, and the court’s instructions lead us to conclude
that the result of the petitioner’s criminal trial would
not have been different but for Evans’ conduct. See,
e.g., Koslik v. Commissioner of Correction, 127 Conn.
App. 801, 812, 16 A.3d 753 (trial counsel introduced
evidence of petitioner’s prior conviction for same con-
duct he was accused of committing, but petitioner was
not prejudiced due to strength of state’s case), appeal
dismissed, 301 Conn. 937, 23 A.3d 731 (2011) (certifica-
tion improvidently granted). Accordingly, the habeas
court properly determined that the petitioner failed to
prove his ineffective assistance of counsel claim and
correctly denied his petition for a writ of habeas corpus.
The judgment is affirmed.
In this opinion, the other judges concurred.
1
The petitioner was found guilty of ‘‘possession of narcotics with intent
to sell by a person who is not drug-dependent in violation of General Statutes
§ 21a-278 (b), sale of narcotics by a person who is not drug-dependent in
violation of General Statutes § 21a-278 (b), conspiracy to sell narcotics by
a person who is not drug-dependent in violation of General Statutes §§ 21a-
278 (b) and 53a-48 (a), sale of a controlled substance within 1500 feet of a
school zone in violation of General Statutes § 21a-278a (b) and possession
of a controlled substance within 1500 feet of a school zone in violation of
General Statutes § 21a-278a (b).’’ State v. Omar, supra, 136 Conn. App. 89.
2
The petitioner alleged that Evans rendered ineffective assistance in
twelve different ways. On appeal, the petitioner claims only that the habeas
court improperly concluded that Evans did not render ineffective assistance
when she exposed the petitioner’s criminal history to the jury.
3
Paragraph 8 of the arrest warrant affidavit specifically detailed the peti-
tioner’s criminal history prior to being arrested for his involvement in the
March 25, 2009 incident. That paragraph stated in relevant part: ‘‘[The peti-
tioner] is a convicted felon and was arrested and convicted of the following
charges: [p]ossession of [n]arcotics on 10/15/2007, [e]scape [f]irst on 5/1/
2006, [f]ailure to [a]ppear [on] 5/5/2005, [two] counts of [c]riminal [p]osses-
sion of a [f]irearm on 7/31/2001, [a]ssault on a [p]olice [o]fficer on 5/3/94,
[and two] [c]ounts of [s]ale of [n]arcotics on 5/3/94.’’
4
The parties disagree as to whether Evans provided deficient performance
under the performance prong of Strickland and if that issue is even properly
before us. We need not reach the performance prong, however, because we
conclude that the petitioner failed to prove that he was prejudiced by Evans’
performance. See, e.g., Minor v. Commissioner of Correction, 150 Conn.
App. 756, 762, 92 A.3d 1008, cert. denied, 314 Conn. 903, 99 A.3d 1168 (2014).
5
Evans cross-examined Apicella in relevant part as follows:
‘‘Q. Isn’t it true that [the petitioner] wasn’t arrested at that time because
you, in fact, actually personally entered Bentley Bail Bonds and searched
him and you found no money or drugs on him?
‘‘A. No, ma’am.
‘‘Q. You never conducted a search of his person?
‘‘A. On that day no, ma’am.
‘‘Q. On any other day?
‘‘A. Not that I recall, ma’am.
‘‘Q. Have you ever found drugs on [the petitioner]?
‘‘A. I found a gun, ma’am, but not drugs, no.
‘‘Q. Did you arrest him for that?
‘‘A. Oh, I did, ma’am, yes.’’
On recross-examination, Evans also asked Apicella whether the police
had arrested the petitioner ‘‘prior to March for narcotics.’’ Apicella testified
that they had. See State v. Omar, supra, 136 Conn. App. 95.
6
We note that the prosecutor did not name the petitioner’s previous
convictions during closing remarks. Rather, the prosecutor generally argued
that the petitioner’s convictions affected his credibility.
7
During the criminal trial, the prosecutor did, however, refer the petitioner
to paragraph 8 of exhibit E, the arrest warrant affidavit, which listed the
petitioner’s convictions by name and date. He then cross-examined the
petitioner as follows:
‘‘Q. Those are your felonies, aren’t they? Correct, sir?
‘‘A. Yes.
‘‘Q. You were convicted of all those, is that right?
‘‘A. Yes.’’
8
The petitioner relies on State v. Pharr, 44 Conn. App. 561, 576, 691 A.2d
1081 (1997) (‘‘[t]here are . . . occasions where the prejudice is so severe
that curative instructions are unlikely to be effective’’), to argue that the
trial court’s instructions ‘‘did not undo the damage caused by . . . Evans
admitting [his prior, named convictions] into evidence.’’ The petitioner’s
reliance on Pharr is misplaced, as the circumstances in that case were
markedly different. See id., 566, 576 (trial court unambiguously endorsed
in-court testimony over ‘‘what a [police] report says’’ and jury charge did
not specifically address court’s remarks on such endorsement).
9
Although the petitioner alleged that Evans exposed his subsequent
August 12, 2009 arrest to the jury, he focuses this appeal on her decision
to introduce the March 25, 2009 police incident report and arrest warrant
affidavit into evidence. He does not specifically argue how she exposed the
subsequent August 12, 2009 arrest to the jury or how it prejudiced him in
a distinct manner. To the extent that the petitioner presses this argument
on appeal, we conclude that he failed to prove prejudice for the same
reasons that the police incident report and arrest warrant affidavit did not
prejudice him.