Thompson v. Commissioner of Correction

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ROBERT E. THOMPSON v. COMMISSIONER OF
CORRECTION
(AC 39945)
Prescott, Elgo and Blawie, Js.
Syllabus
The petitioner, who had been convicted of kidnapping in the first degree,
sexual assault in the first degree, assault in the third degree and threaten-
ing in the second degree, sought a writ of habeas corpus, claiming that
his trial counsel provided ineffective assistance when he failed to seek a
mistrial or any curative measures following certain prejudicial testimony
from the complainant. During direct examination of the complainant,
she testified that the petitioner told her he had done this before. Simulta-
neously, the petitioner’s counsel objected before the she could utter the
entire statement. The trial court sustained trial counsel’s objection and
found that the prejudicial impact of the statement outweighed its proba-
tive value. The court further determined that the jury did not hear the
prejudicial testimony. The habeas court rendered judgment denying the
habeas petition, from which the petitioner, on the granting of certifica-
tion, appealed to this court. Held that the habeas court properly deter-
mined that the petitioner failed to prove, by a preponderance of the
evidence, that his trial counsel rendered deficient performance by not
moving for a mistrial or requesting a curative instruction: the trial court
was uniquely qualified to make the determination that the jury did not
hear the testimony, and in light of that determination, trial counsel’s
evaluation of the attendant circumstances in not seeking any additional
remedies during the trial was entirely reasonable, and this court’s conclu-
sion that trial counsel’s acquiescence waived the petitioner’s claim that
he was deprived of his right to a fair trial as a result of the jury’s potential
exposure to the prejudicial testimony did not equate to a determination
that counsel rendered ineffective assistance in his handling of the issue;
moreover, the petitioner’s claim that the jury heard the prejudicial testi-
mony because it was reflected in the trial transcript was unpersuasive,
as the ability of the recording equipment to pick up testimony had no
bearing on the assessment of whether the jury heard the testimony, and
the petitioner did not present any evidence to establish that the jury,
in real time, was able to isolate the complainant’s testimony from trial
counsel’s simultaneous objection, or suggesting that this court should
have second-guessed the trial court’s very confident finding that the
jury did not hear the testimony; furthermore, because trial counsel was
never questioned during the habeas trial as to why he did not move for
a mistrial or seek a curative measure, the petitioner failed to present
any evidence beyond speculation or conjecture to rebut the presumption
that trial counsel’s performance fell within the wide range of reasonable
professional assistance.
Argued April 9—officially released August 14, 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, Sferrazza, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Mary A. Beattie, assigned counsel, for the appel-
lant (petitioner).
Linda Currie-Zeffiro, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Adrienne Russo, deputy assistant state’s
attorney, for the appellee (respondent).
Opinion
BLAWIE, J. The petitioner, Robert E. Thompson,
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 court improperly
concluded that he failed to prove, by a preponderance
of the evidence, that his trial counsel rendered deficient
performance because he failed to move for a mistrial
or to seek any curative measures following prejudicial
testimony from the complainant. We disagree and,
accordingly, affirm the judgment of the habeas court.
The following facts and procedural history are rele-
vant to our resolution of this appeal.1 The petitioner
was charged with accosting a woman that he had
approached on a New Haven street, and luring her to
a residence under the guise of joining a local church
group. Following a jury trial, the petitioner was con-
victed of kidnapping in the first degree in violation of
General Statutes § 53a-92, sexual assault in the first
degree in violation of General Statutes § 53a-70, assault
in the third degree in violation of General Statutes § 53a-
61, and threatening in the second degree in violation
of General Statutes § 53a-62. Attorney Tejas Bhatt repre-
sented the petitioner at his criminal trial. Bhatt’s assess-
ment was that the outcome of the case hinged on the
credibility of the complainant, whom the state called
to testify at the criminal trial. During the direct examina-
tion of the complainant, the following exchange
occurred:
‘‘[The Prosecutor]: What led him—what—what hap-
pened when he hit you? What led him to hit you?
‘‘[The Complainant]: He told me to take my clothes
off. . . .
‘‘[The Prosecutor]: Did you—were you telling him no?
‘‘[The Complainant]: Yes.
‘‘[The Prosecutor]: And what did you—what else did
you say to him?
‘‘[The Complainant]: I asked him, why you doing this
to me, and he said, I’m not the first person—
‘‘[Bhatt]: Objection.
‘‘[The Complainant]: He done this—
‘‘The Court: Hold on. Hold on.
‘‘[The Complainant]: To.
‘‘The Court: Hold on. Hold on.
‘‘[Bhatt]: Objection.
‘‘The Court: What’s the objection? She’s in the middle
of an answer.
‘‘[Bhatt]: That is—if I—may the jury be excused? This
is an area we discussed previously.’’
The jury was excused and the state made an offer of
proof, during which the complainant testified that the
petitioner said that she was ‘‘not the first person he
ever did this to.’’ Bhatt objected to the admission of
this testimony, arguing that ‘‘[t]he only purpose for
offering [the statement], is to show that the [petitioner]
had a propensity to commit this crime. . . . [I]t’s the
[petitioner’s] statement, sure, but I think there’s still—
the court still has to do [an analysis pursuant to § 4-3
of the Connecticut Code of Evidence] of the [probative]
value being out—outweighed by—the prejudicial
impact . . . .’’
The court sustained Bhatt’s objection and found that
the prejudicial impact of the statement outweighed its
probative value.2 Before resuming testimony, the fol-
lowing colloquy ensued:
‘‘The Court: Is there anything else on this point?
‘‘[Bhatt]: No, I believe that—I’m assuming the court
would—I believe she started her response and—
‘‘The Court: Well, no, she got maybe two words
out that—
‘‘[Bhatt]: Okay. Okay.
‘‘The Court: Quite frankly, I didn’t even understand,
and I don’t mean to be—in other words, so I’m—the
court is very confident, Attorney Bhatt, that the jury
did not hear anything and you stood up right away
. . . .
‘‘[Bhatt]: Yes, Your Honor.’’3 (Emphasis added.)
The jury subsequently returned a guilty verdict and
the court, B. Fischer, J., sentenced the petitioner to
forty-five years of incarceration, execution suspended
after thirty-five years, and ten years of probation. This
court affirmed the petitioner’s conviction on direct
appeal. See State v. Thompson, 146 Conn. App. 249, 76
A.3d 273, cert. denied, 310 Conn. 956, 81 A.3d 1182
(2013).
On July 22, 2016, the petitioner filed an amended
petition for a writ of habeas corpus claiming that Bhatt
rendered ineffective assistance of counsel by (1)
improperly advising the petitioner of a plea offer, (2)
failing to move for a mistrial or to seek a curative
instruction following prejudicial testimony from the
complainant, (3) inadequately preparing a defense, (4)
inadequately examining and cross-examining wit-
nesses, (5) inadequately preparing for sentencing, and
(6) failing to preserve the petitioner’s access to sen-
tence review.4
The case was tried to the habeas court, Sferrazza,
J., on August 22, 2016. The petitioner, Bhatt, and Gary
Mastronardi, a criminal trial expert, testified during the
habeas trial. Bhatt testified that the trial court sustained
his objection to the complainant’s testimony because
the statement was ‘‘far too prejudicial to allow.’’ Bhatt
explained that when he attempted to raise with the
trial court the issue that the witness had uttered the
prejudicial statement, the trial court ‘‘cuts [him] off;
and [the court] says, no. Nobody heard anything. . . .
[The court] says, I’ve ruled. Nobody heard anything.
There’s nothing to strike.’’ Bhatt was never questioned
at the habeas trial regarding why he did not move for
a mistrial or seek any curative measures in light of the
court’s finding that the testimony was more prejudicial
than probative.
Mastronardi then offered his opinion that what Bhatt
should have done following the prejudicial testimony
‘‘depends on whether or not what was said was audible’’
to the jury. He explained that, if the statement was
audible to the jury, ‘‘after the judge said that he did not
think that it was audible, what [Bhatt] should have done
was insist that the transcript be played so that—to give
the trial judge another opportunity to listen. . . . Once
it was played and if there was—if it was clear that—
that the statement was, in fact, audible, trial counsel
had to move for a mistrial, without a doubt, and should
have pressed that motion strenuously,’’ especially
because the trial court found that the statement was
more prejudicial than probative. Mastronardi testified
that, in the alternative, ‘‘if [Bhatt] was unsuccessful
[in moving for a mistrial], then the second move, the
fallback position, should have been a motion to strike
and a request for some type of special instruction to the
jury to ignore [the testimony].’’ Mastronardi concluded
that, in his opinion, ‘‘under the Strickland standard,
any reasonable lawyer would have definitely moved for
a mistrial in that type of situation, especially after the
judge . . . specifically said that it was too prejudicial.’’
Following the habeas trial, the court denied the peti-
tioner’s amended petition for a writ of habeas corpus.
With respect to the claim that Bhatt rendered ineffective
assistance regarding his handling of the prejudicial testi-
mony, the habeas court agreed with the trial court’s
finding that ‘‘the offending testimony was incomprehen-
sible because of the prompt intervention by Attorney
Bhatt.’’ The court continued that ‘‘[a]pparently, the
court monitor was, at some level, able to isolate the
[complainant’s] words from the other speaker’s, but
this court could not. Given the definitive tone of Judge
Fischer’s opinion on the matter, Attorney Bhatt cannot
be faulted for accepting that determination without con-
fronting the judicial authority further on that issue.’’
The court concluded that ‘‘the petitioner has failed to
prove, by a preponderance of the evidence, this allega-
tion of defective representation.’’ The petitioner then
filed a timely petition for certification to appeal, which
the court granted on November 21, 2016. This appeal
followed.
On appeal, the petitioner challenges the habeas
court’s conclusion that he failed to prove that Bhatt
rendered deficient performance by failing to move for
a mistrial or to seek a curative measure following the
complainant’s prejudicial testimony. Specifically, the
petitioner argues that any reasonable attorney would
have moved for a mistrial in a similar situation, espe-
cially because the trial court found that the testimony
was more prejudicial than probative. The petitioner fur-
ther argues that he suffered actual prejudice as a result
of Bhatt’s deficient performance. We disagree with the
petitioner’s claim regarding deficient performance.
‘‘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.) Stanley v. Commissioner of Correc-
tion, 67 Conn. App. 357, 359, 786 A.2d 1249 (2001), cert.
denied, 259 Conn. 922, 792 A.2d 855, cert. denied sub
nom. Stanley v. Armstrong, 537 U.S. 838, 123 S. Ct. 155,
154 L. Ed. 2d 59 (2002). ‘‘[A] finding of fact is clearly
erroneous [if] there is no evidence in the record to
support it . . . or [if] although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed.’’ (Internal quotation marks
omitted.) Gould v. Commissioner of Correction, 159
Conn. App. 860, 869, 123 A.3d 1259, cert. denied, 319
Conn. 957, 125 A.3d 1012 (2015).
‘‘A criminal defendant’s right to the effective assis-
tance of counsel extends through the first appeal of
right and is guaranteed by the sixth and fourteenth
amendment to the United States constitution and by
article first, § 8, of the Connecticut constitution. . . .
To succeed on a claim of ineffective assistance of coun-
sel, a habeas petitioner must satisfy the two-pronged
test articulated in Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strick-
land requires that a petitioner satisfy both a perfor-
mance prong and a prejudice prong. To satisfy the
performance prong, a claimant must demonstrate that
counsel made errors so serious that counsel was not
functioning as the counsel guaranteed . . . by the
[s]ixth [a]mendment. . . . To satisfy the prejudice
prong, a claimant must demonstrate that there is a rea-
sonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different. . . . The claim will succeed only if both
prongs are satisfied. . . . It is well settled that a
reviewing court can find against a petitioner on either
ground, whichever is easier.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Small v. Commissioner of Correction, 286 Conn. 707,
712–13, 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). ‘‘The petitioner cannot rely on mere conjecture
or speculation to satisfy either the performance or prej-
udice prong but must instead offer demonstrable evi-
dence in support of his claim.’’ (Internal quotation
marks omitted.) Cox v. Commissioner of Correction,
127 Conn. App. 309, 314, 14 A.3d 421, cert. denied, 301
Conn. 902, 17 A.3d 1043 (2011). ‘‘If the facts revealed
by the record are insufficient, unclear or ambiguous as
to whether a constitutional violation has occurred, we
will not attempt to supplement or reconstruct the
record, or to make factual determinations, in order to
decide the defendant’s claim.’’ State v. Golding, 213
Conn. 233, 240, 567 A.2d 823 (1989).
‘‘Judicial scrutiny of counsel’s performance must be
highly deferential. It is all too tempting for a defendant
to second-guess counsel’s assistance after conviction
or adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved unsuc-
cessful, to conclude that a particular act or omission of
counsel was unreasonable.’’ Strickland v. Washington,
supra, 466 U.S. 689. ’’Moreover, [t]he court must be
mindful that [a] fair assessment of attorney perfor-
mance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’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 [peti-
tioner] must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy.’’ (Internal quotation marks
omitted.) Robinson v. Commissioner of Correction, 167
Conn. App. 809, 821–22, 144 A.3d 493, cert. denied, 323
Conn. 925, 149 A.3d 982 (2016).
The petitioner claims that Bhatt rendered deficient
performance because he failed to move for a mistrial
or to seek a curative instruction following the complain-
ant’s prejudicial testimony. In support of this argument,
the petitioner relies on this court’s conclusion from his
direct appeal that because Bhatt acquiesced to the trial
court’s finding that the jury never heard the prejudicial
statement, the petitioner waived his claim that he was
deprived of his right to a fair trial as a result of the
jury’s potential exposure to it. See State v. Thompson,
supra, 146 Conn. App. 260.
‘‘The trial judge is the arbiter of the many circum-
stances which may arise during the trial in which his
function is to assure a fair and just outcome.’’ State v.
Rodriguez, 210 Conn. 315, 333, 554 A.2d 1080 (1989).
‘‘The trial judge . . . is in a better position to sense
the atmosphere of the trial and therefore can apprehend
far better than we can the effect of certain remarks on
the jury.’’ Pisel v. Stamford Hospital, 180 Conn. 314,
322, 430 A.2d 1 (1980); see also D’Ascanio v. D’Ascanio,
237 Conn. 481, 487, 678 A.2d 469 (1996) (trial court has
‘‘unique opportunity to view the evidence presented in
a totality of circumstances, i.e., including its observa-
tions of the demeanor and conduct of the witnesses
and parties, which is not fully reflected in the cold,
printed record which is available to us’’ [internal quota-
tion marks omitted]); Hurley v. Heart Physicians, P.C.,
298 Conn. 371, 396, 3 A.3d 892 (2010) (‘‘this court fre-
quently has observed, a trial court is in the best position
to observe the demeanor of the parties, witnesses,
jurors and others who appear before it’’). ‘‘A trial judge
is generally in the best position to evaluate the critical
question of whether the juror’s or jurors’ exposure to
improper matter has prejudiced a defendant.’’ State v.
Rodriguez, supra, 210 Conn. 326; see also United States
v. Wiley, 846 F.2d 150, 157 (2d Cir. 1988).
Not only was Judge Fischer uniquely qualified to
make such a determination as the presiding judge, he
stated that he was ‘‘very confident’’ that the jury did
not hear the testimony. In light of that finding, Bhatt’s
evaluation of the attendant circumstances in not seek-
ing any additional remedies during the trial was entirely
reasonable. Therefore, this court’s conclusion that
Bhatt’s acquiescence waived the claim does not equate
to a determination that counsel rendered ineffective
assistance in his handling of the issue. See Nieves v.
Commissioner of Correction, 51 Conn. App. 615, 621,
724 A.2d 508 (‘‘[t]he burden that the petitioner must
sustain for a favorable outcome on his ineffective assis-
tance of counsel claim is a higher one than he would
have to sustain had the actual merits of the same issue
been raised on direct appeal’’), cert. denied, 248 Conn.
905, 731 A.2d 309 (1999); see also Gibson v. Commis-
sioner of Correction, 118 Conn. App. 863, 876 n.5, 986
A.2d 303 (noting difference in procedural posture for
claims on direct appeal versus in habeas petition), cert.
denied, 295 Conn. 919, 991 A.2d 565 (2010). Accordingly,
this court cannot conclude that counsel rendered inef-
fective assistance in not moving for a mistrial or
requesting a curative instruction.
Moreover, the petitioner argues that because the trial
transcript reflects the complainant’s testimony, we
must assume that the jury heard it. This argument is
not persuasive. The ability of the recording equipment
to pick up the testimony, and of the court monitor
to transcribe it, has no bearing on the assessment of
whether the jury heard the testimony. The court moni-
tor has the technical ability to replay a recording as
many times as necessary and at different volumes. The
jury, however, only heard the testimony in real time,
and the petitioner has presented no evidence to estab-
lish that the jury—in real time—was able to isolate the
complainant’s words from Bhatt’s simultaneous
objection.
The petitioner has not presented any evidence that
suggests that we should second-guess the trial court’s
‘‘very confident’’ finding to the contrary, and instead
conclude that the jury did in fact hear the prejudicial
statement. Nor is there a basis to rule that the habeas
court erred in concluding that ‘‘[g]iven the definitive
tone of Judge Fischer’s opinion on the matter, Attorney
Bhatt cannot be faulted for accepting [the court’s find-
ing that the jury did not hear the offending testimony]
without confronting the judicial authority further on
that issue.’’ Bhatt was attuned to the prejudicial testi-
mony, as it was the subject of a motion in limine. The
transcript, as quoted previously, makes clear that before
the complainant could utter the entire sentence, Bhatt
objected and triggered a response from the court at the
same time that the complainant was speaking. More-
over, during the habeas trial, Bhatt was never ques-
tioned as to why he did not move for a mistrial or seek
a curative measure following the court’s finding that the
statement was more prejudicial than probative. Perhaps
given the trial court’s finding that the jury did not hear
the offending testimony, Bhatt opted not to request a
curative measure in order to avoid bringing the issue
to the jury’s attention. Because the petitioner never
asked Bhatt to explain his reasoning, however, we are
left without a definitive answer. The petitioner has thus
not presented any evidence beyond speculation or con-
jecture to rebut the presumption that Bhatt’s perfor-
mance fell within the wide range of reasonable
professional assistance. See Robinson v. Commis-
sioner of Correction, supra, 167 Conn. App. 821–22.
Without such evidence, and in light of the degree of
deference that Strickland requires in our scrutiny of
counsel’s performance, we cannot conclude that Bhatt’s
performance fell below the standard that the United
States and Connecticut constitutions require. Accord-
ingly, we conclude that the habeas court properly deter-
mined that the petitioner failed to prove, by a
preponderance of the evidence, that trial counsel ren-
dered deficient performance, and thus has not satisfied
the first prong of the Strickland test.5 His ineffective
assistance of counsel claim therefore fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
This court’s opinion in the petitioner’s direct appeal provides a full
exposition of the facts that the jury reasonably could have found at the
criminal trial. See State v. Thompson, 146 Conn. App. 249, 76 A.3d 273, cert.
denied, 310 Conn. 956, 81 A.3d 1182 (2013). Much of this information is not
relevant to the narrow issue in this appeal.
2
We express no opinion regarding the admissibility of this testimony.
3
A copy of the audio cassette recording of the trial proceedings was
prepared and submitted in connection with this appeal as court exhibit 1.
Following oral argument on April 9, 2018, however, a portion of that exhibit
containing the complainant’s testimony was inadvertently damaged. There-
fore, this court ordered, sua sponte, on April 23, 2018, that both parties’
counsel and the habeas court rectify the record and take any steps necessary
to provide a duplicate copy of that exhibit. The Tolland Judicial District
thereafter provided another copy of court exhibit 1. By letter to this court
dated May 10, 2018, counsel for the petitioner maintained that, in her opinion,
the new copy of court exhibit 1 is of an inferior audio quality in terms of
the complainant’s testimony, as compared to the earlier version. Even if we
assume, arguendo, that counsel is correct in her assessment of the recording,
for the reasons set forth herein, and also as noted by the habeas court, the
record is inadequate to overturn the trial court’s determination that the jury
never heard the statement at issue.
4
On August 22, 2016, the petitioner withdrew his claims regarding Bhatt’s
improper advisement of a plea offer and failure to preserve the petitioner’s
access to sentence review. Additionally, the petitioner’s claims regarding
Bhatt’s inadequate preparation of a defense and examination of witnesses
are not at issue in this appeal. Therefore, the remaining claims are ineffective
assistance of counsel due to Bhatt’s handling of prejudicial testimony, and
that he failed to adequately prepare for the sentencing hearing.
The petitioner’s brief, however, is devoid of any mention of the claim that
Bhatt inadequately prepared for sentencing. Instead, the petitioner focused
his entire argument on Bhatt’s handling of the prejudicial testimony. The
petitioner’s claim that Bhatt inadequately prepared for sentencing is thus
deemed abandoned. See Solek v. Commissioner of Correction, 107 Conn.
App. 473, 480, 946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008).
Therefore, in this appeal, we only consider the claim that Bhatt rendered
ineffective assistance of counsel by failing to move for a mistrial or to seek
a curative instruction following prejudicial testimony from the complainant.
5
Because we have decided the petitioner’s claim on the basis of the
performance prong, this court need not discuss the prejudice prong. See
Small v. Commissioner of Correction, supra, 286 Conn. 713 (‘‘[i]t is well
settled that a reviewing court can find against a petitioner on either ground,
whichever is easier’’ [emphasis in original; internal quotation marks
omitted]).