Sewell v. Commissioner of Correction ( 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.
******************************************************
STEVEN SEWELL v. COMMISSIONER OF
CORRECTION
(AC 37738)
DiPentima, C. J., and Lavine and Alvord, Js.
Argued May 25—officially released October 4, 2016
(Appeal from Superior Court, judicial district of
Tolland, Nazzaro, J.)
Michael J. Culkin, assigned counsel, for the appel-
lant (petitioner).
Jonathan M. Sousa, special deputy assistant state’s
attorney, with whom, on the brief, were Michael Dear-
ington, state’s attorney, and Robert O’Brien, former
supervisory assistant state’s attorney, for the appellee
(respondent).
Opinion
ALVORD, J. The petitioner, Steven Sewell, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus.1 On appeal, the
petitioner claims that the habeas court erred by con-
cluding that his trial counsel did not render ineffective
assistance. The petitioner claims that his trial counsel
failed to adequately investigate the state’s witnesses
and prepare for trial, and as a result, he was prejudiced.2
We disagree with the petitioner and, accordingly, affirm
the judgment of the habeas court.
In deciding the petitioner’s direct appeal of his con-
viction, this court summarized the facts that the jury
reasonably could have found as follows: ‘‘On December
23, 2001, the victim, Timothy Sweat, was in the apart-
ment he shared with his mother and brother in New
Haven. The victim sold beer, cigarettes, soda and chips
from his apartment to patrons he knew. At approxi-
mately 6:30 p.m. that day, Sweat responded to a knock
at his door by looking through the peephole. When he
recognized Judale Wynkoop, who is also known as Dell,
to whom he had sold beer previously, Sweat opened
the door. As the two men stood in the doorway speak-
ing, the [petitioner] emerged from a hallway outside
the apartment, holding a black pistol. As the [petitioner]
approached, Wynkoop stepped away, Sweat raised his
hands and the [petitioner] shot him through the thumb
and into his chest at close range. Sweat tried, without
success, to grab the [petitioner’s] face and throat and
then backed into his apartment. The [petitioner] ran
down the street.
‘‘Prior to trial, the [petitioner] filed a written request
for disclosure under Practice Book §§ 40-11, 40-12 and
40-13. In its response to that request, the state did not
list either Angel Ogman or Darryl Wilson as witnesses
or turn over to the [petitioner] any statements attributed
to these individuals.
‘‘At trial, the state called a number of witnesses,
including Sweat, Ogman, who is also known as Yummy,
[certain police officers] . . . and Wilson, who is also
known as D-Woo.
‘‘During the first day of evidence, the [petitioner]
moved for a mistrial because of the state’s late disclo-
sure of Wilson as a witness. That motion was denied.
After Ogman testified later on that same day, the [peti-
tioner] moved for a mistrial on the basis of her testi-
mony. That motion also was denied. At the close of
trial, the jury found the [petitioner] guilty of assault in
the first degree in violation of General Statutes § 53a-
59 (a) (5), conspiracy to commit assault in the first
degree in violation of General Statutes §§ 53a-48 and
53a-59 (a) (5), and criminal possession of a pistol or
revolver in violation of General Statutes § 53a-217c.
Immediately after the jury returned its verdict, the [peti-
tioner] stipulated to having committed a class A, B or
C felony with a firearm in violation of General Statutes
§ 53-202k. The court imposed a total effective sentence
of twenty-five years imprisonment.’’ (Footnote omit-
ted.) State v. Sewell, 95 Conn. App. 815, 817–18, 898
A.2d 828, cert. denied, 280 Conn. 904, 907 A.2d 94 (2006).
The petitioner filed a writ of habeas corpus in 2006
and amended it in 2008. The petitioner argued before the
habeas court that his trial counsel had been ineffective
because he failed to: adequately advise the petitioner
of potential defenses, conduct an investigation of the
facts and witnesses that the state planned to present,
obtain witness statements, present witnesses to support
the defense strategy, and appropriately prepare for trial.
The petitioner’s petition for a writ of habeas corpus
was centered on trial counsel’s handling of the Ogman
testimony. As early as May 6, 2002, the petitioner’s trial
counsel was aware that the state intended to call a
witness who was identified only as Yummy. The peti-
tioner’s trial counsel was unable to determine that
Ogman was the witness known as Yummy until the
state revealed her legal name on the first day of jury
selection on February 14, 2003.3 During the trial, Ogman
testified that she saw the petitioner in the vicinity of
the victim’s apartment just prior to the shooting and
that the petitioner later confessed to her that he had
in fact shot the victim. Following Ogman’s testimony,
trial counsel moved for a mistrial on the basis of undue
surprise, but the motion was denied. However, the trial
court granted the petitioner’s trial counsel additional
time to prepare for his cross-examination of Ogman.
The habeas court concluded that the petitioner’s trial
counsel had performed adequately. ‘‘There was exten-
sive cross-examination of Ms. Ogman and Mr. Wilson
and Mr. Wynkoop, all on any interest the witnesses had
in the outcome of the trial, bias, motive to fabricate,
ability to observe and recollect. This was no three ques-
tion cross by the defense attorney. Although surprised
by the revelations of Ogman, [also known as] Yummy,
and Wilson, [also known as] D-Woo, the attorney was
afforded opportunity to prepare his cross-examina-
tions, the length and quality of which is reflected in the
transcript. Put another way, this court cannot infer any
deficiency in the cross-examination of the witnesses.
. . . [T]here is no evidence before this court to con-
clude that any additional investigation would have
revealed any evidence that could affect differently the
outcome in this matter.’’
The habeas court found that the petitioner’s trial
counsel personally visited the apartment complex
where the crime occurred and spoke to several individu-
als in order to gather evidence and locate unidentified
witnesses. The habeas court concluded the claim of
inadequate preparation ‘‘to be unproven, again, notwith-
standing the protestations and the argument in support
of the motions for mistrial, the lawyer claiming surprise
and the like. It is apparent that the trial court gave
counsel opportunity to review the impact of both
Ogman and Wilson and recessed the proceedings in
order to prepare, and there was no testimony before
this court today that the lawyer was not prepared.’’
The petitioner also claimed that his trial counsel
failed to communicate with him. According to the peti-
tioner, the state offered a reduced sentence of fifteen
years of incarceration in exchange for a guilty plea, but
the petitioner rejected the offer. The petitioner argued
that if his trial counsel had properly investigated Ogman
and had provided better communication with him about
witnesses, he may have pursued an alternative defense
other than actual innocence. The habeas court refuted
this claim: ‘‘[T]his court concludes that [the petitioner’s
trial counsel] was vigorous in his representation of [the
petitioner] and understood that this particular case was
not a plea case. There were no pleas offered, other than
some time into the case, into the state’s case, there was
no plea bargaining so-called, the state’s attorney didn’t
offer a particular plea. And the court finds that the
attorney appreciated as much, given his client’s position
that, ‘I am innocent. I didn’t do it.’ . . . There is no
indication to lead this court to conclude that both law-
yer and client did not have an open avenue of communi-
cation. This court tacitly finds that [the petitioner’s trial
counsel] investigated all reasonable leads and talked
with all witnesses whom he knew about, or through
due diligence, could reasonably know about.’’
The habeas court concluded that there was neither
deficient performance by the petitioner’s trial counsel
nor was there any prejudice due to his performance.
The habeas court denied the petitioner’s writ of habeas
corpus. This appeal followed.4
‘‘Our standard of review of a habeas court’s judgment
on ineffective assistance of counsel claims is well set-
tled. 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 viola-
tion of the petitioner’s constitutional right to effective
assistance of counsel is plenary. . . . 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.’’ (Internal quotation marks omitted.)
Diaz v. Commissioner of Correction, 125 Conn. App.
57, 61–62, 6 A.3d 213 (2010), cert. denied, 299 Conn.
926, 11 A.3d 150 (2011).
‘‘A claim of ineffective assistance of counsel is gov-
erned by the two-pronged test set forth in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984). Under Strickland, the petitioner has the
burden of demonstrating that (1) counsel’s representa-
tion fell below an objective standard of reasonableness,
and (2) counsel’s deficient performance prejudiced the
defense because there was a reasonable probability
that the outcome of the proceedings would have been
different had it not been for the deficient performance.’’
(Internal quotation marks omitted.) Thiersaint v. Com-
missioner of Correction, 316 Conn. 89, 100–101, 111
A.3d 829 (2015).
In order to prevail on a claim of ineffective assistance
of counsel, the petitioner must establish both prongs
of the Strickland test. Hamlin v. Commissioner of
Correction, 113 Conn. App. 586, 595, 967 A.2d 525, cert.
denied, 291 Conn. 917, 970 A.2d 728 (2009). ‘‘[A] habeas
court may dismiss the petitioner’s claim if he fails to
satisfy either prong. . . . Accordingly, a court need not
determine the deficiency of counsel’s performance if
consideration of the prejudice prong will be dispositive
of the ineffectiveness claim.’’ (Citation omitted; internal
quotation marks omitted.) Id.
The petitioner claims that the habeas court erred by
concluding that he failed to prove his claim of ineffec-
tive assistance of trial counsel. Specifically, the peti-
tioner argues that the habeas court erred by finding
that there had not been deficient performance by trial
counsel in regards to his investigation of Ogman and
preparation for her cross-examination. The petitioner
also claims that the habeas court’s conclusion that there
was no prejudice was erroneous. We disagree. Because
the petitioner must establish both prongs of the Strick-
land test in order to prevail, we address only his claims
regarding the habeas court’s judgment as to prejudice.
On the basis of our review of the evidence presented
at the habeas trial, the petitioner has failed to demon-
strate how he was prejudiced by the performance of
his trial counsel. The petitioner argues that if his trial
counsel had more thoroughly investigated Ogman, he
would have been able to ‘‘poke holes in [her] version
of the story.’’5 The petitioner has not challenged the
habeas court’s findings that trial counsel conducted a
‘‘vigorous cross-examination trying to impeach or dis-
credit the state’s witnesses on the one hand on all
aspects, ability to observe, recall, whether there was
any ax to grind because of past relationships.’’ The
petitioner has not presented any direct evidence that
further investigation would have yielded new evidence
that would have affected the outcome of his trial.
Instead, he has provided only mere speculation. See
Holley v. Commissioner of Correction, 62 Conn. App.
170, 175, 774 A.2d 148 (2001) (‘‘[t]he burden to demon-
strate what benefit additional investigation would have
revealed is on the petitioner’’). Additional investigation
also would not have changed the fact that the testimony
of two other witnesses corroborated Ogman’s version
of events, including the testimony of the victim, who
identified the petitioner as the shooter. The habeas
court properly concluded that the petitioner could not
establish that he was prejudiced by the alleged ineffec-
tive assistance of counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The habeas court granted his petition for certification to appeal. See
footnote 4 of this opinion.
2
On appeal, the petitioner also claims that his trial counsel provided
ineffective assistance ‘‘by not making a motion for mistrial or otherwise
objecting to the testimony of a witness, who was not fully disclosed until
jury selection, until after that witness had already testified.’’ This claim was
not raised before the habeas court and we decline to review it. ‘‘Having not
raised [an] issue before the habeas court, [a] petitioner is barred from raising
it on appeal. 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 [petitioner’s] claim.
. . . This court is not compelled to consider issues neither alleged in the
habeas petition nor considered at the habeas proceeding . . . .’’ (Internal
quotation marks omitted.) Hankerson v. Commissioner of Correction, 150
Conn. App. 362, 367, 90 A.3d 368, cert. denied, 314 Conn. 919, 100 A.3d
852 (2014).
3
On direct appeal before this court, the petitioner claimed that the state’s
failure to properly disclose Ogman as a witness deprived him of his constitu-
tional right to a fair trial. State v. Sewell, supra, 95 Conn. App. 815. This
court affirmed the judgment of the trial court, concluding that the petitioner’s
rights were not violated because there was no prejudice or a denial of due
process rights as a result of the late witness disclosure. Id., 823. Before the
trial court, the state claimed that the late disclosure was due to the fact
that the state knew the witness as ‘‘Yummy’’ and did not know her real
name or whereabouts.
4
On September 16, 2009, the habeas court, Nazzaro, J., denied the petition-
er’s petition for certification to appeal. The petitioner appealed the denial of
certification to this court, but that appeal was dismissed when the petitioner
failed to comply with an order for supplemental briefing. On February 17,
2015, the habeas court, Oliver, J., granted a motion for stipulated judgment
filed by the petitioner and the respondent, the Commissioner of Correction,
which restored the petitioner’s appellate rights to the denial of his habeas
petition. Thereafter, the habeas court, Oliver, J., granted his petition for
certification to appeal.
5
On appeal, the petitioner also claims that the habeas court erred by not
concluding that he was prejudiced by his trial counsel’s performance because
had he known the content of Ogman’s testimony he would have directed
his trial counsel to engage in pretrial negotiations. The petitioner did not
raise this claim before the habeas court, and we decline to review it. See
Hankerson v. Commissioner of Correction, 150 Conn. App. 362, 367, 90
A.3d 368, cert. denied, 314 Conn. 919, 100 A.3d 852 (2014).