McEntyre v. Commissioner of Correction

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DARYL MCENTYRE v. COMMISSIONER
OF CORRECTION
(AC 35607)
DiPentima, C. J., and Prescott and Mullins, Js.
Argued November 14, 2014—officially released February 3, 2015
(Appeal from Superior Court, judicial district of New
Haven, Frechette, J.)
Michael D. Day, for the appellant (petitioner).
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom, on the brief, were Michael
Dearington, state’s attorney, and Sean P. McGuinness,
assistant state’s attorney, for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Daryl McEntyre,1
appeals from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus. Specif-
ically, the petitioner claims that the court erred in con-
cluding that his trial counsel ‘‘did not render ineffective
assistance of counsel when he failed to adequately
cross-examine, impeach and otherwise challenge the
testimony’’ of the state’s key witness in the case. We
affirm the judgment of the habeas court.
The following facts and procedural history are rele-
vant to this appeal. ‘‘On April 27, 1993, at approximately
9 p.m., the victim, Ticey Brown, was shot by three
assailants in the vicinity of 75 County Street in New
Haven. He sustained two fatal gunshot wounds from
two different guns. Fifteen minutes prior to the shoot-
ing, a witness, Antonio West, saw three men, whom he
identified as Willie Harris, Bobby Jones and the [peti-
tioner], heading in the direction of 75 County Street.
West last saw the three when they entered a parking
lot adjacent to the rear of the building at 75 County
Street. West was acquainted with all three men and
exchanged a greeting with Harris. At the time West
observed the three men, the [petitioner] and Jones were
putting on masks. Harris was wearing a hat. A second
witness, Priscilla Harris, saw three men running in dif-
ferent directions approximately a block away from the
scene just after the shooting. She identified one of them
as Harris. Other witnesses corroborated the presence
in the area of three men whose height and clothing
generally matched the descriptions of height and cloth-
ing given by West.
‘‘In addition to West, a key state’s witness against
the [petitioner] was Jeffrey Covington. On July 15, 1993,
Covington, a repeat felony offender, was awaiting trial
on drug charges at the New Haven correctional center.
On that day, Covington watched a television broadcast
of Connecticut’s ‘Most Wanted’ with the [petitioner],
who was also being held at the New Haven correctional
facility. The subjects of the program were Harris and
Jones, who were still at large. After the broadcast, the
[petitioner] said to Covington, ‘They are looking for
(Harris and Jones) for that, what happened on County
Street. . . . They didn’t do it, I did.’ ’’ (Footnote omit-
ted.) State v. McIntyre, 242 Conn. 320–21, 699 A.2d
911 (1997).
The jury found the petitioner guilty of murder, con-
spiracy to commit murder, and carrying a pistol without
a permit. Id., 319. The court sentenced the petitioner
to a total effective sentence of sixty-five years incarcera-
tion. The petitioner appealed, and our Supreme Court
affirmed the judgments of conviction of murder and
conspiracy to commit murder, but reversed and
remanded the judgment of conviction of carrying a pis-
tol without a permit, directing the trial court to render
a judgment of acquittal on that count. Id., 334. The
petitioner was resentenced to sixty years incarceration.
On December 8, 2010, the petitioner filed his fifth
amended petition for a writ of habeas corpus, claiming
that his criminal trial counsel, Richard Silverstein, pro-
vided ineffective assistance when, inter alia, he failed
‘‘to adequately cross-examine, impeach and otherwise
challenge the testimony’’ of the state’s key witness,
Covington. The petitioner specifically argued that Sil-
verstein failed to impeach Covington’s credibility as a
witness by not showing that Covington ‘‘gave the police
a false name and false date of birth’’ when he was
arrested on June 9, 1993.2
At the habeas trial, Silverstein testified that he had
no clear recollection of his strategy for the cross-exami-
nation of Covington, and that he could not remember
‘‘where Covington fit in to all this.’’ Covington had testi-
fied at the habeas trial that he did not lie to the police
about his name and date of birth, and that he did not
know why the police report contained incorrect entries.
John Magoveny, the arresting officer, testified that he
prepared the report, but that he did not remember the
circumstances surrounding Covington’s arrest. Mago-
veny further testified that he typically would ask an
arrestee his or her name and request to see identifica-
tion at the time of the arrest. He agreed, however, that
scrivener’s errors could happen when writing a police
report. In addition to the police report, the habeas court
also admitted into evidence Covington’s fingerprint
card that had been prepared on the date of his arrest.
Magoveny testified that the card had been signed by
Covington using his real name and correct date of birth.
In its memorandum of decision, the habeas court
found the following: ‘‘Silverstein attempted to impeach
Covington on several different grounds. At trial, Sil-
verstein tried to impeach Covington through advancing
the theory that Covington fabricated testimony in an
effort to secure an early release from prison. Silverstein
elicited testimony revealing that Covington had five
prior [felony] convictions and faced the possibility of
receiving a sentence of more than twenty years before
he agreed to testify against the petitioner at the petition-
er’s probable cause hearing. . . . Silverstein further
established that Covington had a ‘do not release’ status
before he testified and that he was looking for ‘consider-
ation’ when he came forward with the information
regarding the petitioner’s alleged confession. . . .
Accordingly, in his closing statement, Silverstein explic-
itly argued that Covington had a motive for fabricating
his testimony against the petitioner. Silverstein stated:
‘Obviously [Covington] had a great deal to gain by testi-
fying the way that he did.’ ’’ (Citations omitted.)
The court further found that Silverstein had called
Eddie Echols3 as a witness to contradict Covington’s
testimony, and challenged Covington’s testimony by
questioning the likelihood of the petitioner confessing
to a murder despite there being a dispute between the
two men as testified to by Covington.
On the basis of these findings, the court determined
that ‘‘even if it was clear from the evidence available
to Silverstein that Covington had misrepresented his
identifying information to the police, Covington’s credi-
bility and motive had already been extensively called
into question. The petitioner has failed to demonstrate
how exposing Covington’s alleged misrepresentations
to the police during his arrest in particular would have
led to a more favorable result for the petitioner.’’ The
court then denied the petition, finding that the peti-
tioner had failed to establish prejudice as to his claim
of ineffective assistance of counsel. On March 21, 2013,
the court granted the petitioner’s petition for certifica-
tion to appeal. This appeal followed.
We begin by setting forth the relevant legal standard.
‘‘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.’’ (Internal quotation
marks omitted.) McClean v. Commissioner of Correc-
tion, 103 Conn. App. 254, 262, 930 A.2d 693 (2007), cert.
denied, 285 Conn. 913, 943 A.2d 473 (2008).
‘‘As enunciated in Strickland v. Washington, [466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]
. . . [a] claim of ineffective assistance of counsel con-
sists of two components: a performance prong and a
prejudice prong. To satisfy the performance prong . . .
the petitioner must demonstrate that his attorney’s rep-
resentation was not reasonably competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. . . . To
satisfy the prejudice prong, a claimant must demon-
strate that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. . . . A court
can find against a petitioner, with respect to a claim of
ineffective assistance of counsel, on either the perfor-
mance prong or the prejudice prong, whichever is eas-
ier.’’ (Citation omitted; internal quotation marks
omitted.) Ham v. Commissioner of Correction, 301
Conn. 697, 703–704, 23 A.3d 682 (2011).
Having carefully reviewed the evidence presented
at the habeas trial, we agree with the court that the
petitioner failed to establish a reasonable probability
that had Silverstein cross-examined Covington with
regard to his alleged misrepresentation to the police, the
outcome of the criminal trial would have been different.
Silverstein did not cross-examine Covington on the
alleged false information contained in the June 9, 1993
police report, but it is hard to imagine how Covington’s
credibility would have been further discredited had Sil-
verstein done so.4 We agree with the habeas court that
during the criminal trial Silverstein ‘‘extensively called
into question’’ Covington’s credibility and motive by
pointing out Covington’s criminal history, the implausi-
bility of the petitioner’s confession to Covington, and
the reward that he received as a result of his testimony.5
Thus, as correctly determined by the habeas court, the
petitioner failed to establish prejudice. Accordingly, the
habeas court properly denied the petition for a writ of
habeas corpus.
The judgment is affirmed.
1
The petitioner’s name was spelled as ‘‘Darryl McIntyre’’ in his direct
appeal. See State v. McIntyre, 242 Conn. 318, 699 A.2d 911 (1997).
2
Before the criminal trial, Silverstein received a copy of a police report
regarding Covington’s arrest on an unrelated criminal charge. In the report,
Covington’s first name is listed as ‘‘Joseph’’ instead of Jeffrey; additionally,
the report incorrectly lists Covington’s date of birth.
3
At the petitioner’s criminal trial, Echols testified that, at the time of the
alleged confession, he was present and did not hear the petitioner confess
to Covington.
4
We also note that, even if Silverstein had asked Covington about the
discrepancies in the police report, pursuant to § 6-6 (b) (2) of the Connecticut
Code of Evidence, he would not have been able to introduce the report if
Covington denied lying to the police because ‘‘[s]pecific instances of the
conduct of a witness . . . may not be proved by extrinsic evidence.’’
5
During his closing argument, Silverstein pointed out to the jury that, at
the time Covington purportedly heard the petitioner confess, he was being
charged with the crime of sale of narcotics—a charge that was dismissed
by the state once Covington testified against the petitioner.