Gamble v. Commissioner of Correction

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HUDEL GAMBLE v. COMMISSIONER
OF CORRECTION
(AC 39971)
DiPentima, C. J., and Alvord and Pellegrino, Js.
Syllabus
The petitioner, who had been convicted of the crime of manslaughter in
the first degree with a firearm as an accessory in connection with the
shooting death of the victim from multiple gunshot wounds, sought a
writ of habeas corpus, claiming that his appellate counsel provided
ineffective assistance by failing to raise a claim of insufficient evidence
on direct appeal. Specifically, the petitioner, who was part of a group
of individuals, including R and S, who all fired shots at the victim, claimed
that the evidence could only support his conviction of manslaughter as
a principal and, thus, could not support his conviction of that charge
as an accessory. His claim was based on the fact that R testified that
the petitioner fired the rifle from which the fatal shot was fired. The
habeas court rendered judgment denying the petition, from which the
petitioner, on the granting of certification, appealed to this court. Held
that the habeas court properly concluded that the petitioner failed to
prove that he was prejudiced by his appellate counsel’s performance,
as there was sufficient evidence that the petitioner acted in concert
with R and S to achieve the intended result of the death of the victim,
and, therefore, it was not reasonably probable that the petitioner would
have prevailed on direct appeal on a sufficiency claim: under a concert
of action theory, it is immaterial who fired the fatal shot and what is
material is whether the evidence shows that the petitioner acted in
concert with others to bring about the death of the victim, which the
evidence here showed, and the fact that medical and ballistics evidence
revealed that the fatal shot was fired from a certain rifle did not prevent
application of the concert of action theory, as the jury reasonably could
have been uncertain as to which individual fired the fatal shot and it
did not need to make that determination to find the petitioner guilty of
manslaughter under an accessorial theory of liability given that there
is no meaningful distinction between principal and accessorial liability
as a matter of law; moreover, contrary to the petitioner’s claim, his
acquittal of manslaughter as a principal and possession of an assault
weapon did not preclude this court under the doctrine of collateral
estoppel from examining the issue of whether he possessed or fired the
rifle from which the fatal shot was fired, as that doctrine does not apply
to a review of the sufficiency of the evidence, and it was not for this
court to review any inconsistencies among the verdicts in this case,
which are permitted under the law.
Argued October 5, 2017—officially released January 23, 2018
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland, where the court, Sferrazza, J., rendered
judgment denying the petition; thereafter, the court
granted the petition for certification to appeal, and the
petitioner appealed to this court. Affirmed.
Jade N. Baldwin, for the appellant (petitioner).
Jo Anne Sulik, supervisory assistant state’s attorney,
with whom, on the brief, were Adrienne Russo, assis-
tant state’s attorney, and Patrick J. Griffin, state’s
attorney, for the appellee (respondent).
Opinion
DiPENTIMA, C. J. The petitioner, Hudel Gamble,
appeals from the judgment of the habeas court denying
his petition for a writ of habeas corpus. On appeal, the
petitioner claims that the court improperly rejected his
claim of ineffective assistance of appellate counsel. We
are not persuaded by the petitioner’s arguments, and,
accordingly, affirm the judgment of the habeas court.
The following facts and procedural history are rele-
vant to the resolution of the petitioner’s appeal. On
November 29, 2005, Daniel Smith was driving a bor-
rowed BMW in New Haven while Ricardo Ramos was
seated in the front passenger seat. The petitioner later
joined Ramos and Smith, and sat in the back seat. The
petitioner, Ramos, and Smith proceeded to joyride
around the ‘‘Hill’’ section of New Haven1 while smoking
marijuana. At that time, both the petitioner, who was
seventeen years old, and Ramos, who was fifteen years
old, were residents of the ‘‘Hill’’ section of New Haven.
Ramos had known the petitioner and Smith for two to
three years and would see both the petitioner and Smith
on a daily basis.
At some point, Smith drove into the ‘‘Tre’’ section of
New Haven.2 Ramos noticed an acquaintance of his on
Kensington Street, and Smith stopped the BMW. The
woman stated in a loud voice that a man with whom
Ramos had a ‘‘beef’’ was in the area. Smith drove around
the block and upon returning to Kensington Street,
Ramos spotted the victim, whom he believed had killed
his cousin in the ‘‘Hill’’ section over a month earlier.
The victim was with a group of four or five individuals
who were standing to the right of the BMW. Someone
from the group fired shots at the BMW. The petitioner,
Ramos, and Smith all returned fire. The victim sustained
five gunshot wounds due to the entry, exit, and reentry
of bullets, and ultimately died. The medical examiner
recovered three different types of bullets from the vic-
tim’s body. Ballistics evidence revealed that one of the
three bullets recovered from the victim’s body was dam-
aged, but that it had the characteristics of a .22 long
rifle caliber bullet. Ballistics testing of the damaged
bullet revealed that it could have been fired from vari-
ous handguns, revolvers, semi-automatic pistols, and
several types of long arms. This bullet entered the vic-
tim’s right knee. A .38 caliber bullet, which ballistics
testing revealed could have been fired from either a .38
revolver or a .357 magnum caliber revolver, entered the
victim’s right hip. A .30 caliber bullet, which ballistics
testing established was fired from an SKS semiauto-
matic rifle that the police found under Ramos’ bed fol-
lowing the shooting, traveled through the victim’s right
arm, reentered the right side of his chest, went through
his right lung and grazed his diaphragm and liver. The
official cause of the victim’s death was from multiple
gunshot wounds. The medical examiner testified that
the victim’s injuries to his knee and hip were treatable,
but that the medical personnel were unable to treat
successfully the victim’s chest injury. The day after the
shooting, Ramos learned that the victim was unknown
to him and was not the individual with whom he had
a ‘‘beef.’’ The police did not find any latent fingerprints
on the SKS rifle or its magazine.
The jury found the petitioner guilty of manslaughter
in the first degree with a firearm as an accessory in
violation of General Statutes §§ 53a-55 (a) (3) and 53a-
8. The petitioner was also charged with, and found not
guilty of, manslaughter in the first degree with a firearm
in violation of § 53a-55 (a) (3), murder and murder as
an accessory in violation of General Statutes §§ 53a-
54a and 53a-8, conspiracy to commit murder in violation
of General Statutes §§ 53a-54a and 53a-48 (a), posses-
sion of an assault weapon in violation of General Stat-
utes §§ 53-202c and 53a-8, and conspiracy to possess
an assault weapon in violation of §§ 53-202c and 53a-
48 (a). The court, Holden, J., sentenced the petitioner
to thirty-seven and one-half years incarceration.
The petitioner, represented by Attorney William Wes-
tcott, unsuccessfully appealed his conviction.3 See State
v. Gamble, 119 Conn. App. 287, 987 A.2d 1049, cert.
denied, 295 Conn. 915, 990 A.2d 867 (2010).
On August 25, 2016, the petitioner filed a third
amended petition for a writ of habeas corpus, alleging
the ineffective assistance of appellate counsel.4 He
alleged that his appellate counsel provided ineffective
assistance by failing to raise a claim of insufficient
evidence on direct appeal.
At the habeas trial, Westcott testified that he did not
raise a sufficiency claim on direct appeal because he
had not prevailed on a similar claim in a different appeal
in which a defendant, who was convicted as an acces-
sory, was part of a group of individuals who all fired
shots at the victim, who they were ‘‘out to get.’’ Attorney
Daniel Krisch testified for the petitioner as an expert
in appellate practice. He testified that the only evidence
of the petitioner’s aiding the principal was that he had
handed Ramos a .22 caliber pistol which had caused
the treatable injury to the victim’s knee. He further
testified that no reasonable jury could have convicted
the petitioner of manslaughter as an accessory, and
there was a reasonable probability that an insufficiency
claim would have been successful on direct appeal.
On November 28, 2016, the habeas court, Sferrazza,
J., issued a memorandum of decision denying the peti-
tion for a writ of habeas corpus. The court stated that
‘‘[w]here multiple shooters intentionally fire at some-
one, all the shooters can properly be convicted, through
accessorial liability, of the homicide even though it was
a companion’s bullet that killed the victim. State v.
Delgado, 247 Conn. 616, 627, [725 A.2d 306] (1999). Such
a show of force aids the killer by eliminating or reducing
methods of escape, by deterring others from attempting
to assist the victim, and by thwarting detection through
the confusion generated by such a fusillade.’’ The court
concluded that the petitioner could not prevail on his
claim because he failed to prove prejudice under Strick-
land v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). The court granted the petition for
certification to appeal. This appeal followed. Additional
facts will be set forth as necessary.
On appeal, the petitioner claims that the habeas court
improperly concluded that he failed to establish that
his appellate counsel was ineffective by not raising
insufficiency of evidence as an issue in his direct appeal.
He contends that the court improperly concluded that
he failed to prove that he was prejudiced by his appel-
late counsel’s performance. We disagree.
We begin by setting forth our standard of review and
the legal principles applicable to the petitioner’s appeal.
‘‘Although a habeas court’s findings of fact are reviewed
under the clearly erroneous standard of review . . .
[w]hether the representation a defendant received at
trial was constitutionally inadequate is a mixed question
of law and fact. . . . As such, that question requires
plenary review by this court unfettered by the clearly
erroneous standard.’’ (Citation omitted; internal quota-
tion marks omitted.) Ham v. Commissioner of Correc-
tion, 301 Conn. 697, 706, 23 A.3d 682 (2011).
‘‘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
[by establishing a reasonable probability that, but for
the counsel’s mistakes, the result of the proceeding
would have been different]. . . . Unless a [petitioner]
makes both showings, it cannot be said that the convic-
tion . . . resulted from a breakdown in the adversary
process that renders the result unreliable.’’ (Internal
quotation marks omitted.) Parrott v. Commissioner of
Correction, 107 Conn. App. 234, 236, 944 A.2d 437, cert.
denied, 288 Conn. 912, 954 A.2d 184 (2008). With respect
to the prejudice prong, ‘‘we must assess whether there is
a reasonable probability that, but for appellate counsel’s
failure to raise the issue on appeal, the petitioner would
have prevailed [on] . . . appeal, i.e., [obtaining] rever-
sal of his conviction or granting of a new trial.’’ Small
v. Commissioner of Correction, 286 Conn. 707, 722, 946
A.2d 1203, cert. denied sub nom. Small v. Lantz, 555
U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008). ‘‘[T]he
task before us is not to conclude definitively whether
the petitioner, on appeal, would have prevailed on his
claim . . . . Rather, the task before us is to determine,
under Strickland, whether there is a reasonable proba-
bility that the petitioner would have prevailed on
appeal.’’ (Emphasis omitted.) Id., 731. ‘‘To ascertain
whether the petitioner can demonstrate such a probabil-
ity, we must consider the merits of the underlying
claim.’’ Id., 728.
Underlying the petitioner’s claim of ineffectiveness
by appellate counsel is that there was insufficient evi-
dence to support the petitioner’s conviction of man-
slaughter in the first degree with a firearm as an
accessory. ‘‘In reviewing a sufficiency [of the evidence]
claim, we apply a two part test. First, we construe the
evidence in the light most favorable to sustaining the
verdict. Second, we determine whether upon the facts
so construed and the inferences reasonably drawn
therefrom the jury reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt.’’ (Internal quotation
marks omitted.) State v. Abraham, 64 Conn. App. 384,
400, 780 A.2d 223, cert. denied, 258 Conn. 917, 782 A.2d
1246 (2001).
‘‘A person, acting with the mental state required for
commission of an offense, who solicits, requests, com-
mands, importunes or intentionally aids another person
to engage in conduct which constitutes an offense shall
be criminally liable for such conduct and may be prose-
cuted and punished as if he were the principal
offender.’’ General Statutes § 53a-8 (a). This court has
explained accessorial liability as follows: ‘‘To be guilty
as an accessory, one must share the criminal intent and
community of unlawful purpose with the perpetrator
of the crime and one must knowingly and wilfully assist
the perpetrator in the acts which prepare for, facilitate
or consummate it. . . . Whether a person who is pre-
sent at the commission of a crime aids or abets its
commission depends on the circumstances surrounding
his presence there and his conduct while there. . . .
‘‘Since under our law both principals and accessories
are treated as principals . . . if the evidence, taken
in the light most favorable to sustaining the verdict,
establishes that [the defendant] committed the [crime]
charged or did some act which forms . . . a part
thereof, or directly or indirectly counseled or procured
any persons to commit the offenses or do any act form-
ing a part thereof, then the [conviction] must stand.’’
(Citation omitted; internal quotation marks omitted.)
State v. Gonzalez, 135 Conn. App. 101, 107–108, 41 A.3d
340 (2012), aff’d, 311 Conn. 408, 87 A.3d 1101 (2014).
‘‘[A]ccessorial liability is predicated upon the actor’s
state of mind at the time of his actions, and whether
that state of mind is commensurate to the state of mind
required for the commission of the offense.’’ State v.
Foster, 202 Conn. 520, 532, 522 A.2d 277 (1987).
General Statutes § 53a-55 (a) provides in relevant
part: ‘‘A person is guilty of manslaughter in the first
degree when . . . (3) under circumstances evincing an
extreme indifference to human life, he recklessly
engages in conduct which creates a grave risk of death
to another person, and thereby causes the death of
another person.’’ Accordingly, to be guilty of man-
slaughter as an accessory under this subsection, the
petitioner must recklessly engage in conduct which cre-
ated a grave risk of death to another and intentionally
aid in the death of the victim.
At the center of the petitioner’s claim on appeal is
the testimony of Ramos, a key witness for the state,
and the only person who was in the BMW at the time
of the shooting who testified.5 Ramos testified that the
petitioner had given him a loaded .22 caliber pistol
earlier on the day of the shooting when the two had
met on the street. According to Ramos’ testimony,
Ramos fired a .22 caliber pistol two or three times,
Smith reached across Ramos and fired a .357 caliber
gun two or three times out of the open passenger side
window and the petitioner fired shots from an SKS
rifle while it rested on the open backdoor window of
the BMW.
The petitioner claims that he was prejudiced by his
appellate counsel’s failure to raise a sufficiency claim
because the evidence was insufficient to convict him
of manslaughter under an accessorial theory of liability.
Specifically, he argues that because Ramos testified
that the petitioner fired the SKS rifle from which the
fatal shot was fired, the evidence could only support
conviction of manslaughter as a principal and could
not support his conviction under an accessorial theory
of liability. He further argues that the only evidence
that he acted as an accessory was Ramos’ testimony
that the petitioner had handed Ramos a loaded .22 pistol
prior to the shooting.6 That event, the petitioner argues,
could not establish the element of aiding in the victim’s
death because the .22 caliber bullet caused a nonfatal
knee injury. He further argues that the evidence was
insufficient to support his conviction because he was
acquitted on the other charges and, in so arguing, raises
the issue of collateral estoppel.7
The petitioner’s arguments are unavailing. Ramos’
testimony that the petitioner handed him a loaded .22
caliber pistol is not, as the petitioner argues, the only
evidence supporting an accessorial theory of liability.
In examining the underlying claim, we conclude that
there was sufficient evidence to support his conviction
of manslaughter as an accessory under a concert of
action theory. Under a concert of action theory, it is
immaterial who fired the fatal shot; what is material is
whether the evidence shows that the petitioner acted
with others to bring about the death of the victim. ‘‘[A]
showing of concert of action between a defendant and
[others] can provide a sufficient basis for accessorial
liability.’’ State v. Ashe, 74 Conn. App. 511, 518, 519,
812 A.2d 194 (evidence that defendant acted in concert
with others with intent to kill rival gang members suffi-
cient to support murder conviction under accessorial
theory of liability), cert. denied, 262 Conn. 949, 817 A.2d
108 (2003); see also State v. Diaz, 237 Conn. 518, 544,
679 A.2d 902 (1996) (‘‘Although the evidence did not
clearly demonstrate which of the perpetrators actually
fired the shot that fatally injured [the victim], the evi-
dence did establish that the defendant and his compan-
ions together prepared and readied themselves for the
ambush . . . [and] fir[ed] repeatedly into the vehicle
with the intent to kill one or more of the passengers.
. . . [Thus, the evidence] show[ed] sufficient concert
of action between the defendant and his companion[s]
to support . . . the accessory allegation . . . .’’ [Inter-
nal quotation marks omitted.]).
The evidence, when viewed in the light most favor-
able to sustaining the verdict, shows the following. The
petitioner, Ramos, and Smith were joyriding together
in the ‘‘Hill’’ section of New Haven. Smith drove to the
‘‘Tre’’ section of New Haven where a woman informed
Ramos that the victim was in the area. Ramos believed
that the victim had killed his cousin over a month earlier
in the ‘‘Hill’’ section of New Haven. The three young
men searched for the victim. Smith circled the block
and Ramos spotted the victim on Kensington Street. A
member of the victim’s group fired shots at the BMW.
The petitioner, Ramos, and Smith all fired shots at the
victim. Medical and ballistics evidence revealed that the
victim sustained gunshot wounds from three different
caliber bullets which had been fired from three different
model guns. The habeas court aptly stated: ‘‘Where mul-
tiple shooters intentionally fire at someone, all the
shooters can properly be convicted, through accessorial
liability, of the homicide . . . .’’
The petitioner argues that the concert of action the-
ory, as expressed in State v. Delgado, supra, 247 Conn.
622, is inapplicable to the present case. In Delgado, the
victim was shot in the back of his leg and the back of
his arm, and died from loss of blood due to the gunshot
wounds. Id., 620. This court concluded that ‘‘[a]lthough
the evidence did not reveal whether it was the defendant
or [a fellow gang member] who had fired the shot that
fatally injured the victim, the jury reasonably could have
determined that there was sufficient concert of action
between the defendant and [the fellow gang member]
to support the accessory allegation.’’ Id., 623. The peti-
tioner argues that because there was no confusion in
the present case that the fatal shot was fired from the
SKS rifle, the concert of action theory could not support
his conviction under an accessorial theory of liability.
We are not persuaded.
The fact that medical and ballistics evidence revealed
that the fatal shot was fired from an SKS rifle does not
prevent the application of the concert of action theory.
The jury reasonably could have been uncertain as to
which individual fired the fatal shot from the SKS rifle.8
Moreover, the jury did not need to determine who fired
the fatal shot in order to find the petitioner guilty of
manslaughter under an accessorial theory of liability.9
The gravamen of the petitioner’s argument is that the
evidence supported a conviction of him as the principal
and, therefore, the evidence was insufficient to support
his conviction of manslaughter as an accessory. In State
v. Hamlett, 105 Conn. App. 862, 867, 939 A.2d 1256,
cert. denied, 287 Conn. 901, 947 A.2d 343 (2008), the
defendant claimed that the trial court erred in denying
his motion for acquittal on his conviction of assault in
the first degree because the evidence showed that he
was the principal shooter and, therefore, he could not
be found guilty as a ‘‘mere’’ accessory. Id., 867. This
court noted that it was reasonable that the jury was
unable to determine who shot the victim and concluded
that the evidence was sufficient to support a conviction
of assault as a principal or accessory because the defen-
dant and another man confronted the victim with guns
and the victim suffered gunshot wounds. Id., 867–68.
The court rejected the defendant’s argument that evi-
dence sufficient to convict the defendant as a principal
would be insufficient to convict him under an accesso-
rial theory of liability. Id., 869. The court concluded:
‘‘Connecticut long ago adopted the rule that there is no
practical significance in being labeled an accessory or
a principal for the purpose of determining criminal
responsibility. . . . The modern approach is to aban-
don completely the old common law terminology and
simply provide that a person is legally accountable for
the conduct of another when he is an accomplice of
the other person in the commission of the crime. . . .
Connecticut has taken the same approach through Gen-
eral Statutes § 53a-8. . . . There is no meaningful dis-
tinction between principal and accessory liability; they
are simply theories for proving criminal liability. Given
that a defendant may be convicted as an accessory even
though he was charged only as a principal . . . we
reject his argument that evidence sufficient to convict
a defendant as a principal would be insufficient for
a conviction under the theory of accessory liability.’’
(Citations omitted; internal quotation marks omitted.)
Id., 868–69.
In this case, the jury expressed uncertainty as to
principal and accessorial liability. The court instructed
the jury on the manslaughter charge under both princi-
pal and accessorial theories of liability. The jury initially
indicated on the verdict form that the petitioner was
not guilty on all counts. The foreperson then explained
that ‘‘something [was] wrong.’’ The court informed the
jury to communicate its concerns to the court via a
note. The foreperson stated in a note that the jury had
reached a verdict on manslaughter as an accessory, and
was waiting to hear the clerk read that charge. The
court recalled the jury and the verdict was vacated and
rerecorded. The court then divided the manslaughter
charge into principal and accessorial liability. The jury
found the petitioner not guilty of manslaughter as a
principal and guilty of manslaughter as an accessory.
The jury’s concern and the court’s resultant division of
the manslaughter charge does not alter the longstanding
principle expressed in Hamlett that, as a matter of law,
there is no meaningful distinction between principal
and accessorial liability. See id., 869. We conclude that
there was sufficient evidence that the petitioner acted in
concert with Ramos and Smith to achieve the intended
result, the death of the victim.
The petitioner also argues that the evidence is insuffi-
cient to support his conviction of manslaughter as an
accessory because the jury acquitted him of both man-
slaughter as a principal and possession of an assault
weapon. The petitioner argues that because of his
acquittals, this court is collaterally estopped from exam-
ining the issue of whether he possessed or fired the
SKS rifle, which the legislature defines as an ‘‘assault
weapon.’’ See General Statutes § 53-202a et seq. The
petitioner further argues that this court, when reviewing
the sufficiency claim, likewise cannot examine whether
he fired the .22 pistol or the .357 revolver because the
court granted the petitioner’s motion for acquittal as
to the charge of carrying a pistol without a permit.10
The doctrine of collateral estoppel does not apply to
a review of the sufficiency of the evidence. ‘‘[C]ollateral
estoppel principles do not apply in a single trial to
preclude a verdict of guilty on an offense which includes
elements in common with an offense for which the jury
has returned a verdict of not guilty.’’ State v. Ortiz, 29
Conn. App. 825, 836 n.6, 618 A.2d 547 (1993). As a result,
the petitioner’s acquittals do not preclude this court
from examining all the evidence presented at trial when
analyzing a claim challenging the sufficiency of the evi-
dence. See id.; see also State v. Stevens, 178 Conn. 649,
653–56, 425 A.2d 104 (1979) (jury verdict acquitting
defendant of larceny does not bar conclusion on appeal
that sufficient evidence existed to support conviction
of conspiracy to commit larceny).
Furthermore, we cannot review any inconsistencies
among the verdicts in this case. ‘‘In [State v. Arroyo,
292 Conn. 558, 583, 585–86, 973 A.2d 1254 (2009), cert.
denied, 559 U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086
(2010)] the Supreme Court affirmed its holdings in State
v. Whiteside, 148 Conn. 208, 169 A.2d 260, cert. denied,
368 U.S. 830, 82 S. Ct. 52, 7 L. Ed. 2d 33 (1961), and
State v. Rosado, 178 Conn. 704, 425 A.2d 108 (1979),
that factually and logically inconsistent verdicts are
permissible. . . . The Arroyo court also held that
legally inconsistent verdicts are permissible and, thus,
not reviewable, adopting the rule of United States v.
Powell, 469 U.S. 57, 69, 105 S. Ct. 471, 83 L. Ed. 2d
461 (1984).’’ (Citation omitted; internal quotation marks
omitted.) State v. Acosta, 119 Conn. App. 174, 187, 988
A.2d 305, cert. denied, 295 Conn. 923, 991 A.2d 568
(2010). ‘‘The law permits inconsistent verdicts because
of the recognition that jury deliberations necessarily
involve negotiation and compromise. . . . [I]nconsis-
tency of the verdicts is immaterial. . . . That the ver-
dict may have been the result of compromise, or a
mistake on the part of the jury, is possible. But verdicts
cannot be upset by speculation or inquiry into such
matters.’’ (Citation omitted; internal quotation marks
omitted.) State v. Knight, 266 Conn. 658, 670, 835 A.2d
47 (2003).
We conclude that it was not reasonably probable that
the petitioner would have prevailed on direct appeal
on a sufficiency claim and, therefore, the petitioner has
not demonstrated that he was prejudiced by Westcott’s
failure to raise that claim on direct appeal. Accordingly,
we conclude that the habeas court properly rejected
the petitioner’s claim of ineffective assistance of appel-
late counsel.11
The judgment is affirmed.
In this opinion the other judges concurred.
1
There was evidence at the petitioner’s criminal trial that Stevens Street
and nearby Congress Street, where, respectively, Ramos and the petitioner
lived at the time, were both in the ‘‘Hill’’ section of New Haven.
2
Ramos testified at the petitioner’s criminal trial that Kensington Street
was in the ‘‘Tre’’ section of New Haven, and that driving on Orchard Street
was a common route used to travel from the ‘‘Hill’’ section to the ‘‘Tre’’
section.
3
On direct appeal, Westcott claimed that the trial court improperly: ‘‘(1)
accepted the jury’s verdict finding [the petitioner] guilty of manslaughter
in the first degree with a firearm under the theory of accessorial liability
and not guilty of the same crime under the theory of principal liability,
thereby (a) violating his right against double jeopardy, (b) resulting in his
being convicted of the nonexistent crime of being an ‘accessory,’ (c) resulting
in a legally inconsistent verdict and (d) returning a verdict in violation of
the principles of collateral estoppel, and (2) suggested in its jury instructions
that defense counsel had made an improper closing argument, thereby
improperly highlighting the defendant’s decision not to testify.’’ State v.
Gamble, supra, 119 Conn. App. 289.
4
The petitioner also alleged ineffective assistance by his criminal trial
counsel. After the habeas court denied his petition in its entirety, the peti-
tioner filed an appeal challenging only the court’s denial of his claim of
ineffective assistance of appellate counsel.
5
The petitioner did not testify at his criminal trial, and Smith invoked his
right to remain silent pursuant to the fifth amendment to the United States
constitution when the prosecutor called him as a witness.
6
General Statutes § 53a-8 (b) provides: ‘‘A person who sells, delivers or
provides any firearm, as defined in subdivision (19) of section 53a-3, to
another person to engage in conduct which constitutes an offense knowing
or under circumstances in which he should know that such other person
intends to use such firearm in such conduct shall be criminally liable for
such conduct and shall be prosecuted and punished as if he were the
principal offender.’’
7
The petitioner also argues that the habeas court erred in stating that
the evidence at the petitioner’s criminal trial supported a finding that the
petitioner fired the SKS rifle from the same vehicle from which the fatal
shot was fired ‘‘by another individual.’’ He argues that this finding is internally
inconsistent because the fatal shot was fired from the SKS rifle, and therefore
the petitioner could not have both fired the SKS rifle and not have fired the
fatal shot. Although the evidence at the petitioner’s criminal trial indicated
that the fatal shot was fired from the SKS rifle, a finding as to which individual
fired the fatal shot is not material to the legal conclusion in this case because
accessorial liability is based on a concert of action theory. See Seligson v.
Brower, 109 Conn. App. 749, 753 n.2, 952 A.2d 1274 (2008).
The petitioner also argues that during the criminal trial, the prosecutor
relied on the theory that the petitioner was the principal actor in the man-
slaughter and that in this habeas proceeding, the respondent, the Commis-
sioner of Correction, changed the state’s theory of liability by presenting a
new theory that the petitioner may not have been the principal actor. We
disagree. The respondent did not depart from the state’s theory of liability.
First, during closing arguments, the prosecutor discussed the concepts of
principal and accessorial liability and explained that one can be an accessory
when he is part of a joint effort. Second, there is no meaningful distinction
between principal and accessorial liability. See State v. Hamlett, 105 Conn.
App. 862, 867, 939 A.2d 1256, cert. denied, 287 Conn. 901, 947 A.2d 343 (2008).
8
The jury had for its consideration conflicting accounts as to who fired
the SKS rifle. The petitioner’s statement to police indicates that Ramos fired
the SKS rifle. The petitioner indicated in his statement to police that he,
Ramos, and Smith were joyriding in a BMW and that after a group fired
guns at the BMW, Ramos returned fire using a black gun that was ‘‘at . . .
best . . . an automatic.’’ There was evidence that the SKS rifle was heavy
and unwieldy; and defense counsel argued during closing argument that the
petitioner was unable to maneuver the weapon. Ramos testified at trial that
he did not see the petitioner with a firearm when he entered the BMW,
and testified the petitioner fired the SKS rifle. Ramos conceded on cross-
examination that he had given different versions of events to police and
that he had informed police that the petitioner had fired the SKS rifle only
after the police had found the SKS rifle under his bed. Ramos testified at
trial that the petitioner and Smith told him to take the SKS rifle from the
back seat of the BMW, and he grabbed it and put it under his bed. Ramos
further testified that the petitioner and Smith dropped Ramos off following
the shooting, circled around the block to Ramos’ residence, and told Ramos
to grab the SKS from the back seat of the BMW and that he grabbed it and
placed it under his bed.
9
The petitioner argues that no evidence existed that he shot any weapon
other than the SKS rifle. The petitioner’s statement to the police, if believed,
indicated that Ramos fired the SKS rifle. Furthermore, the victim’s injuries
indicated that shots had been fired from three different types of firearms.
Ed Beamon, a New Haven resident, testified that in the early evening of
November 29, 2005, he was sitting on his neighbor’s front porch on Kensing-
ton Street when he heard shots being fired, and he ran out to the victim
and observed shots being fired from the front and rear passenger sides of
a ‘‘maroon’’ car. The petitioner admitted in his statement to police that he
was seated in the back seat of the BMW during the shooting. The jury
reasonably could have inferred that the petitioner fired one of the three
weapons.
10
The petitioner’s trial counsel argued before the trial court that the
state presented no evidence that the petitioner did not have a permit and,
therefore, the petitioner should be acquitted of the charge of carrying a
pistol without a permit. The state agreed. The court found that there was
no evidence supporting any of the elements of the charge.
11
The petitioner further argues that the habeas court erred in failing to
address the deficiency prong of Strickland and should have found that
appellate counsel’s performance was deficient. Because the habeas court
properly determined that the petitioner had failed to prove prejudice, it was
not required to address the performance prong. ‘‘Because both prongs of
the Strickland test must be established for a habeas petitioner to prevail,
a court may dismiss a petitioner’s claim if he fails to meet either prong.’’
King v. Commissioner of Correction, 73 Conn. App. 600, 602–603, 808 A.2d
1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003).