Nieves v. Commissioner of Correction

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ANGEL NIEVES v. COMMISSIONER OF CORRECTION
(AC 38172)
Beach, Keller and Norcott, Js.
Argued September 20—officially released December 6, 2016
(Appeal from Superior Court, judicial district of
Tolland, Oliver, J.)
Damon A. R. Kirschbaum, with whom, on the brief,
was Vishal K. Garg, for the appellant (petitioner).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Gail P. Hardy, state’s attorney, and
Angela R. Macchiarulo, senior assistant state’s attor-
ney, for the appellee (respondent).
Opinion
NORCOTT, J. Following a grant of certification to
appeal, the petitioner, Angel Nieves, appeals from the
judgment of the habeas court denying his amended
petition for a writ of habeas corpus. On appeal, the
petitioner claims that the habeas court improperly con-
cluded that he had not demonstrated that his trial coun-
sel rendered ineffective assistance by failing to present
an exculpatory statement made by a state’s witness
describing the perpetrator of the crime with which the
petitioner was charged. We disagree and, accordingly,
affirm the judgment of the habeas court.
The following undisputed facts and procedural his-
tory are relevant to the disposition of the petitioner’s
claims. The victim was murdered during a shooting
incident on April 18, 2002. State v. Nieves, 106 Conn.
App. 40, 43, 941 A.2d 358, cert. denied, 286 Conn. 922,
949 A.2d 482 (2008). The petitioner was arrested as a
suspect in March, 2003.1 Of the six witnesses who testi-
fied, three gave a similar description of the shooter
to the police and again at trial, and three positively
identified the petitioner as the shooter in court.2 One
witness testified that the petitioner admitted to murder-
ing the victim. The witness whose statement is at issue
in this case, Maria Quinones, did not testify but gave
the same general description of the shooter to Christine
Mertes, the canvassing officer. Unlike other witnesses,
however, Quinones described the shooter as having
neck tattoos.3
On May 31, 2005, following a jury trial, the petitioner
was convicted of murder in violation of General Statutes
§ 53a-54a (a), carrying a pistol without a permit in viola-
tion of General Statutes § 29-35, and criminal posses-
sion of a firearm in violation of General Statutes § 53a-
217 (a) (1). On August 30, 2005, the petitioner was
sentenced to a total effective sentence of sixty-eight
years of imprisonment. The petitioner’s conviction was
affirmed on direct appeal. State v. Nieves, supra, 106
Conn. App. 40.
On December 16, 2014, the petitioner filed an
amended petition for a writ of habeas corpus, alleging
that his trial counsel provided ineffective assistance
because they4 failed to offer as ‘‘substantive evidence
a statement relating to the identification of the shooter
under an exception to the hearsay rule.’’ On March 16,
2015, the habeas court, Oliver, J., heard evidence at a
hearing on the petition. On June 19, 2015, the court
denied the petition, finding that trial counsel had not
provided ineffective assistance. The petitioner then
filed a petition for certification to appeal from the
court’s judgment, which the court granted on July 2,
2015. This appeal followed. Additional facts will be set
forth as necessary.
The petitioner first claims that his trial counsel ren-
dered ineffective assistance by failing to introduce the
purportedly exculpatory statement of Quinones,
despite its potential availability under the spontaneous
utterance exception to the hearsay rule, which was
based on trial counsel’s ‘‘erroneous belief that the iden-
tification was an inadmissible out-of-court-statement.’’
We are not persuaded.
We begin by setting forth the applicable standard of
review. ‘‘A criminal defendant is constitutionally enti-
tled to adequate and effective assistance of counsel at
all critical stages of criminal proceedings. . . . This
right arises under the sixth and fourteenth amendments
to the United States constitution and article first, § 8,
of the Connecticut constitution. . . . As enunciated in
Strickland v. Washington, [466 U.S. 668, 686, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 647 (1984)], [our Supreme Court]
has stated: It is axiomatic that the right to counsel is
the right to the effective assistance of counsel. . . . A
claim of ineffective assistance of counsel consists of
two components: a performance prong and a prejudice
prong. . . . The claim will succeed only if both prongs
are satisfied.’’ (Internal quotation marks omitted.)
Spearman v. Commissioner of Correction, 164 Conn.
App. 530, 538, 138 A.3d 378 (2016).
‘‘[According to] Strickland, [an ineffective assistance
of counsel] claim must be supported by evidence estab-
lishing that (1) counsel’s representation 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.’’ (Emphasis in origi-
nal; internal quotation marks omitted.) Hall v. Commis-
sioner of Correction, 124 Conn. App. 778, 782–83, 6
A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d
571 (2011).
‘‘In its analysis, a reviewing court may look to the
performance prong or to the prejudice prong, and the
petitioner’s failure to prove either is fatal to a habeas
petition.’’ (Internal quotation marks omitted.)
Delvecchio v. Commissioner of Correction, 149 Conn.
App. 494, 500, 88 A.3d 610, cert. denied, 312 Conn. 904,
91 A.3d 906 (2014). ‘‘To satisfy the prejudice prong, a
claimant must demonstrate that there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.’’
(Internal quotation marks omitted.) Banks v. Commis-
sioner of Correction, 147 Conn. App. 331, 338–39, 82
A.3d 658 (2013), cert. denied, 311 Conn. 916, 84 A.3d
883 (2014).
As to the performance prong, ‘‘[i]t is well established
that when analyzing a claim of ineffective assistance,
counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exer-
cise of reasonable professional judgment.’’ (Internal
quotation marks omitted.) Sanders v. Commissioner
of Correction, 83 Conn. App. 543, 551, 851 A.2d 313,
cert. denied, 271 Conn. 914, 859 A.2d 569 (2004).
‘‘[J]udicial scrutiny of counsel’s performance must
be highly deferential. It is all too tempting for a defen-
dant to second-guess counsel’s assistance after convic-
tion or adverse sentence, and it is all too easy for a
court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omis-
sion of counsel was unreasonable. . . . A fair assess-
ment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s chal-
lenged conduct, and to evaluate the conduct from coun-
sel’s perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge
a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance;
that is, the [petitioner] must overcome the presumption
that, under the circumstances, the challenged action
might be considered sound trial strategy.’’ (Internal quo-
tation marks omitted.) Spearman v. Commissioner of
Correction, supra, 164 Conn. App. 539.
The facts found by the habeas court regarding trial
counsel’s representation of the petitioner will not be
disturbed absent a showing that they were clearly erro-
neous. Banks v. Commissioner of Correction, supra,
147 Conn. App. 338. The court’s ultimate determination
as to whether these findings satisfy the legal standard
for ineffective assistance of counsel, however, is subject
to plenary review. Id.
In the present case, the habeas court determined that
trial counsel’s representation of the petitioner was not
deficient with respect to counsel’s decision not to intro-
duce Quinones’ statement that the shooter had neck
tattoos under the spontaneous utterance exception to
the hearsay rule. The court also found that the petitioner
was not prejudiced by his trial counsel’s performance.
Specifically, the court correctly and succinctly found
that Quinones, in a subsequent statement to police,
‘‘specifically identif[ied] the petitioner as the shooter,’’
and that counsel’s decision not to attempt to offer the
statement regarding the neck tattoos ‘‘was based on
their carefully considered legal opinions and experience
. . . .’’ The court found that counsel ‘‘did not think the
initial statement qualified as an excited utterance’’ and
were concerned about the possibility of the state offer-
ing Quinones’ second statement identifying the peti-
tioner as the shooter into evidence as a response to
any attempt to introduce the statement regarding the
neck tattoos. The court further refused to ‘‘assume that
the jury would have credited the oral statement offered
by the defense to such a degree that it would have
overcome not only the evidence in the trial record,
but a later identification by that same witness of the
petitioner as the killer.’’ These determinations, com-
bined with the state’s ‘‘strong case against the peti-
tioner, including several eyewitnesses to the murder of
the victim,’’ supported a finding that the petitioner had
not suffered any prejudice.
We note that ‘‘our review of an attorney’s perfor-
mance is especially deferential when his or her deci-
sions are the result of relevant strategic analysis. . . .
Thus, [a]s a general rule, a habeas petitioner will be
able to demonstrate that trial counsel’s decisions were
objectively unreasonable only if there [was] no . . .
tactical justification for the course taken.’’ (Citation
omitted; internal quotation marks omitted.) Spearman
v. Commissioner of Correction, supra, 164 Conn.
App. 540–541.
The petitioner’s trial counsel specifically testified
before the court that they had considered and chosen
not to present Quinones’ statement as part of their trial
strategy. They weighed that choice against the alterna-
tive, which was to present it and risk the state offering
into evidence her subsequent statement identifying the
petitioner as the shooter. Thus, even if Quinones’ state-
ment regarding the neck tattoos was a spontaneous
utterance, and, thus, admissible as an exception to the
rule against hearsay,5 the petitioner’s trial counsel were
not obligated to present it. ‘‘[T]he presentation of testi-
monial evidence is a matter of trial strategy.’’ Chace v.
Bronson, 19 Conn. App. 674, 680–81, 564 A.2d 303, cert.
denied, 213 Conn. 801, 567 A.2d 832 (1989).
Trial counsel reasonably determined that offering
Quinones’ statement would have hurt, rather than
helped, the petitioner’s case.6 ‘‘[O]ur habeas corpus
jurisprudence reveals several scenarios in which courts
will not second-guess defense counsel’s decision not
to investigate or call certain witnesses or to investigate
potential defenses, such as when . . . counsel learns
of the substance of the witness’ testimony and deter-
mines that calling that witness is unnecessary or poten-
tially harmful to the case . . . .’’ (Emphasis added.)
Gaines v. Commissioner of Correction, 306 Conn. 664,
681–82, 51 A.3d 948 (2012).
Here, there were multiple reasons for trial counsel
not to present Quinones’ statement.7 Quinones’ other
descriptions of the shooter in her first statement were
virtually identical to those of the other eyewitnesses,
and thus, it is inconceivable that, as the petitioner
argues, this evidence would have ‘‘significantly under-
mined the state’s case against [him].’’ Presenting the
first statement would allow the state to then explore
potential explanations for the discrepancy between her
first statement and those of the other eyewitnesses.8
Trial counsel would therefore have had to impeach their
own witness. Offering the statement regarding the neck
tattoos also would have allowed the state to not only
call Quinones as a witness, but also to offer Quinones’
subsequent identification statement through the testi-
mony of the lead detective, William Siemionko.9 Conn.
Code. Evid. § 8-8 (impeachment of nontestifying declar-
ant with inconsistent statement).10 That statement, if
admitted, would have been potentially harmful to the
petitioner’s case, as it would have not only discredited
Quinones’ original statement regarding the tattoos, but
would have amounted to evidence of another eyewit-
ness identification.11 Trial counsel testified during the
habeas trial proceedings that presenting testimony
through Mertes’ report was imprudent as police officers
are aligned with the state. Thus, there were multiple
strategic reasons to not offer Quinones’ statement
regarding the tattoos, despite its potentially exculpa-
tory weight.
The petitioner also argues that the court erred in
concluding that Quinones’ statement identifying the
petitioner as the shooter would have been admitted
into evidence. Specifically, the petitioner asserts that
there was no reasonable basis for the state to present
Quinones as a witness to testify with regard to her
identification of the petitioner as the shooter due to
her violation of a sequestration order. However, the
petitioner does not cite any case law to support his
argument that the sole remedy to a violation of a seques-
tration order is to preclude that witness’ testimony in its
entirety. In fact, while a court ‘‘may choose to preclude a
witness from testifying or to strike a witness’ testimony
to remedy unfairness resulting from a violation . . .
the exclusion of witness testimony . . . is not the pre-
ferred remedy for a violation of a sequestration order.’’
(Citation omitted; internal quotation marks omitted.)
State v. Guerrera, 167 Conn. App. 74, 99, 142 A.3d 447,
cert. granted on other grounds, 323 Conn. 922, A.3d
(2016). As Quinones’ subsequent statement identi-
fying the petitioner as the shooter probably could12 have
been admitted under several scenarios, we must reject
the petitioner’s argument.
For the foregoing reasons, the habeas court properly
concluded that the petitioner’s trial counsel had not
performed below an objective standard of reasonable-
ness. Accordingly, the petitioner’s claim of ineffective
assistance fails the performance prong of Strickland,13
and we need not reach whether the petitioner was preju-
diced14 in a way that deprived him of a fair trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The petitioner turned himself in to the authorities after evading police
for almost a year.
2
Although the descriptions varied slightly, three witnesses agreed that
the shooter was Hispanic and wore a yellow T-shirt and jeans or dark shorts.
Two of those three also testified that the shooter was five feet seven inches
or five feet eight inches. One in-court witness testified that the petitioner
was the shooter, but refused to look at him for in-court identification. The
trial court noted that it had ‘‘very reluctant, frightened . . . witnesses in
this case.’’
3
According to the record, the petitioner does not have neck tattoos, and,
therefore, it was of value to the petitioner to have eyewitness testimony
describing the shooter as having such. In an oral statement to Mertes on
the night of the murder, Quinones described the tattoos as praying hands
on the right side of the shooter’s neck, and Japanese writing on the left
side. The petitioner alleges in his brief that another witness, Norman Figue-
roa, also described the shooter as having neck tattoos. However, Figueroa’s
alleged statement is not corroborated by the record, nor does the petitioner
argue that the statement should have been presented by trial counsel, and
there is no mention or analysis of any impact of such potential testimony
in the petitioner’s brief. We therefore deem this argument abandoned and
decline to review it. See Fradianni v. Protective Life Ins. Co., 145 Conn.
App. 90, 92 n.2, 73 A.3d 896 (claim or argument not briefed deemed aban-
doned), cert. denied, 310 Conn. 934, 79 A.3d 888 (2013).
4
Two attorneys, George Flores and Sara Bernstein, represented the peti-
tioner at trial; he alleges that both rendered ineffective assistance of counsel.
5
‘‘The excited utterance exception is well established. Hearsay statements,
otherwise inadmissible, may be admitted into evidence to prove the truth
of the matter asserted therein when (1) the declaration follows a startling
occurrence, (2) the declaration refers to that occurrence, (3) the declarant
observed the occurrence, and (4) the declaration is made under circum-
stances that negate the opportunity for deliberation and fabrication by the
declarant.’’ (Internal quotation marks omitted.) State v. Kendall, 123 Conn.
App. 625, 666, 2 A.3d 990, cert. denied, 299 Conn. 902, 10 A.3d 521 (2010).
Mertes testified at the habeas trial that Quinones appeared excited and
upset while describing the shooter. The petitioner relies on this testimony
in an attempt to argue that Quinones’ statement would unequivocally have
been admitted under the spontaneous utterance exception to the hearsay
rule. This is not necessarily so. The record reflects that Mertes did not have
immediate contact with her after the shooting. Therefore, it is not clear
that Quinones’ statement was admissible under the spontaneous utterance
exception, as it must have been made under such circumstances as to negate
the ‘‘opportunity for deliberation and fabrication by the declarant.’’ (Internal
quotation marks omitted.) Id. Regardless, and as later explained, we need
not reach a conclusion as to whether Quinones’ statement qualified as a
spontaneous utterance.
6
The petitioner also argues that trial counsel failed to adequately research
whether Quinones’ statement would fall under the spontaneous utterance
exception. In light of the fact that trial counsel weighed the potential admis-
sion of Quinones’ statement against other potentially damaging evidence
that would then have likely been admitted, we need not address whether
such a failure constitutes deficient performance.
7
In reconstructing the circumstances, ‘‘a reviewing court is required not
simply to give [the trial attorney] the benefit of the doubt . . . but to affirma-
tively entertain the range of possible reasons . . . counsel may have had
for proceeding as [he] did . . . .’’ (Internal quotation marks omitted.)
Michael T. v. Commissioner of Correction, 319 Conn. 623, 632, 126 A.3d
558 (2015).
8
The discrepancy between Quinones’ original statement and the other
eyewitnesses’ testimony was perhaps due to a fear of retaliation by the
petitioner, as it appeared from the record that more than one witness was
fearful of presenting testimony against him.
9
Quinones’ identification statement was originally made to Detective Sie-
mionko during the course of his investigation.
10
Conn. Code. Evid. § 8-8 states: ‘‘When hearsay has been admitted in
evidence, the credibility of the declarant may be impeached, and if
impeached may be supported, by any evidence that would be admissible
for those purposes if the declarant had testified as a witness. Evidence of a
statement of the declarant made at any time, inconsistent with the declarant’s
hearsay statement, need not be shown to or the contents of the statement
disclosed to the declarant.’’
11
The record also reflects that Quinones knew the petitioner, which would
amount to an additional reason not to try to admit her statement into
evidence.
12
We have set forth a variety of ways that the trial court could have
admitted Quinones’ statement. It is well settled that a trial court’s ‘‘ruling
on the admissibility of evidence is entitled to great deference. . . . [T]he
trial court has broad discretion in ruling on the admissibility . . . of evi-
dence. . . . The trial court’s ruling on evidentiary matters will be overturned
only upon a showing of a clear abuse of the court’s discretion.’’ (Citations
omitted; internal quotation marks omitted.) State v. Dunbar, 51 Conn. App.
313, 323–24, 721 A.2d 1229 (1998), cert. denied, 247 Conn. 962, 724 A.2d 426
(1999). Thus, the trial court would likely have been well within its province
to admit Quinones’ statement under the previously mentioned methods.
13
Because the petitioner has failed to meet the performance prong of
Strickland, we need not reach the issue of prejudice under Hill v. Lockhart,
474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). ‘‘It is well settled that
[a] reviewing court can find against a petitioner on either ground, whichever
is easier.’’ (Emphasis omitted; internal quotation marks omitted.) Small v.
Commissioner, 286 Conn. 707, 713, 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).
14
It should be noted that the petitioner, in his brief, equates the duty of
defense counsel under Strickland to provide effective assistance of counsel
to the duty of prosecutors under Brady v. Maryland, 373 U.S. 83, 87, 83 S.
Ct. 1194, 10 L. Ed. 2d 215 (1963), to disclose exculpatory evidence. In sum,
the petitioner argues that this court should conclude that the failure of trial
counsel to present Quinones’ testimony is equivalent to a Brady violation
because of its exculpatory content. This is incorrect and must be addressed.
Prosecutors have a duty under Brady and rule 3.8 (4) of the Rules of
Professional Conduct to disclose ‘‘to the defense . . . all evidence or infor-
mation known to the prosecutor that tends to negate the guilt of the accused
or mitigates the offense . . . .’’ No such duty applies to defense counsel.
As explained previously, defense counsel has the discretion to make a
strategic decision whether to present a witness’ statement that, although
potentially exculpatory in nature, may hurt rather than help the defense’s
case.