author: GRUENDEL, J.

text:
    ABIN BRITTON v. COMMISSIONER OF CORRECTION
    (AC 32908)
    Gruendel, Beach and Alvord, Js.

      Argued January 7
    officially released April 2, 2013

      Deren Manasevit, assigned counsel, for the appellant (petitioner).

      Michael L. Regan, state’s attorney, for the appellee (respondent).
   Opinion

GRUENDEL, J.

The petitioner, Abin Britton, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court erred in finding that his trial counsel did not render ineffective assistance with respect to his attorneys’ (1) advice regarding the state’s plea offer, (2) failure to offer the petitioner’s testimony at a suppression hearing and (3) failure to object to the trial court’s instructions to the venire panel. We dismiss the petitioner’s appeal.

The record reveals the following facts and procedural history. In the early hours of August 23,1998, at approximately 1:30 a.m., the petitioner, along with Gregory Pierre and Jeffrey Smith, met the victim, James Connor, at Lucky’s Café (Lucky’s), located near the Essex Marina. State v. Britton, 283 Conn. 598, 601, 929 A.2d 312 (2007). The victim wanted to purchase crack cocaine, and after the petitioner told the victim that he would be able to get the cocaine, the four men left the bar to conduct the drug transaction. Id.

“The victim bought two small bags of crack cocaine in exchange for $20, and he and the [petitioner], with Pierre and Smith following in a separate vehicle, drove to Pierre’s apartment complex in New London so that the victim could use the drugs he had just purchased. Once they arrived at the apartment complex, Pierre, Smith and the [petitioner] pulled the victim out of the [victim’s] Saab and beat him. When this attack ceased, the victim was badly injured but still alive. The three men then put the victim into the backseat of the Saab and brought him to a nearby parking lot abutting Bates Woods, a park in New London. They pulled the victim out of the car once more, and this time beat him to death. Pierre, Smith and the [petitioner] then dragged the victim’s body into Bates Woods, where they covered the body with dirt and plastic bags. The [petitioner] disposed of the victim’s Saab by pushing it into a small pond behind the Waterford police department.” Id., 601-602.

At approximately 6:30 a.m. on that day, Harrison For-tier, a Waterford police sergeant, discovered the victim’s car, which was registered to his father, partially submerged in the duck pond behind the police station. Id., 602. “Upon looking inside the car, Fortier noticed red stains, which led him to believe that someone may have been injured inside. . . . Police also found two palm prints on the outside of the vehicle, which were later identified as matching the [petitioner’s] palms.” Id.

“In January, 1999, a badly decomposed body was found in Bates Woods. Harold Wayne Carver II, chief medical examiner for the state, examined the remains and identified them as belonging to the victim. Carver classified the manner of death as a homicide.

“In the course of their investigation, the police developed a list of three suspects — Pierre, Smith and the [petitioner] — who they believed were responsible for the victim’s death. Detectives Thomas Murray of the Connecticut state police and Rod Gaynor of the New London police department visited one of these suspects, the [petitioner], in order to obtain his palm prints. Murray and Gaynor went to the [petitioner’s] home and asked him to accompany them to the police station, where they took his palm prints and then turned him over to Detectives James McGlynn of the Connecticut state police and David Gigliotti of the New London police department for questioning. . . . The [petitioner] gave a statement while at the police station describing his involvement in the victim’s death and also drew a diagram of where he said the victim’s body was located.” Id., 602-603.

The petitioner was, thereafter, arrested and charged with crimes in connection with the victim’s death. “The [petitioner] filed a pretrial motion to suppress both his statements and the diagram he had drawn for the police. The [petitioner] claimed that the statements and the map had been procured in the course of a custodial interrogation, but without the necessary Miranda warnings having been given to him. After a hearing, the trial court denied the [petitioner’s] motion to suppress.” Id., 603.

Following a jury trial, the petitioner was convicted of one count of felony murder in violation of General Statutes § 53a-54c, one count of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and (B), and one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (l). The court, thereafter, merged the manslaughter conviction with the felony murder conviction, rendered judgment in accordance with the verdict and sentenced the petitioner to a total effective term of eighty-five years incarceration.

The petitioner appealed directly to the Supreme Court, claiming that the trial court (1) “improperly denied his motion to suppress certain statements he made to police based on the court’s conclusion that the [petitioner] was not in custody and therefore could give police a statement regarding his involvement in the murder of the victim . . . without having been given Miranda warnings,” and (2) “deprived him of a fair trial and impartial jury by explaining to the jury that if the [petitioner] were found guilty of capital felony, dining the penalty phase, the jury would hear evidence regarding the aggravating factor set forth in General Statutes § 53a-46a (i) (1), that is, that the offense charged had occurred during the commission of a felony and that the [petitioner] previously had been convicted of the same felony.” Id., 600-601. Affirming the judgment of the trial court, the Supreme Court determined that the trial court had not erred in denying the petitioner’s motion to suppress his statements to police, as the petitioner had not proven that “he was subject to custodial interrogation for Miranda purposes”; id., 606; and that his second claim, which had not been properly preserved, was not reviewable. Id., 613.

Thereafter, the petitioner filed a petition for a writ of habeas corpus, alleging, inter alia, that his trial counsel had rendered ineffective assistance by failing to (1) adequately advise him regarding a plea offer, (2) offer the petitioner’s testimony on the circumstances of his giving a statement to police about his involvement in the victim’s death and (3) object to the trial court’s preliminary instructions to the venire panel. After a trial, the habeas court denied the petition, finding that the petitioner had not met his burden of demonstrating that his trial counsels’ assistance was ineffective or that he was prejudiced thereby. The habeas court subsequently denied the petition for certification, and this appeal followed.

“Faced with the habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the [denial] of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994) .... First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must prove that the decision of the habeas court should be reversed on the merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . .

“Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. 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 violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Citations omitted; internal quotation marks omitted.) Wright v. Commissioner of Correction, 111 Conn. App. 179, 181-83, 958 A.2d 225 (2008), cert. denied, 290 Conn. 904, 962 A.2d 796 (2009).

“[I]n order to determine whether the petitioner has demonstrated ineffective assistance of counsel, we apply the two part test enunciated by the United States Supreme Corut in Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] . . . . In Strickland . . . the United States Supreme Court determined that the claim must be supported by evidence establishing 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. . . . The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the [s]ixth [a]mendment.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575-76, 941 A.2d 248 (2008).

“In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. Prevailing norms of practice . . . are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. . . .

“Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting ... 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 unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance 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 [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Internal quotation marks omitted.) Id., 577.

We note further that “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. ... To satisfy the second prong of Strickland, that his counsel’s deficient performance prejudiced his defense, the petitioner must establish that, as a result of his trial counsel’s deficient performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. . . . The second prong is thus satisfied if the petitioner can demonstrate that there is a reasonable probability that, but for that ineffectiveness, the outcome would have been different.” (Citations omitted; internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 522, 964 A.2d 1186, cert. denied sub nom. Murphy v. Bryant, 558 U.S. 938, 130 S. Ct. 259, 175 L. Ed. 2d 242 (2009).

Moreover, “[a] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the [petitioner] as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” (Internal quotation marks omitted.) Holley v. Commissioner of Correction, 62 Conn. App. 170, 174, 774 A.2d 148 (2001).

I

PLEA OFFER

We address first the petitioner’s claim that the habeas court erred in finding that the petitioner’s trial counsel did not render ineffective assistance of counsel by virtue of their advice regarding a plea offer from the state. We agree with the habeas court’s finding that the petitioner did not suffer prejudice as a result of his attorneys’ performance, and, therefore, conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal.

The following additional facts, gleaned from transcripts of the habeas trial, are relevant to the resolution of the petitioner’s first claim. Before trial, when the petitioner was represented by counsel different from the attorneys who tried his criminal case, the petitioner rejected, on the record in open court, a plea offer from the state that would have required that he plead guilty to felony murder in exchange for a sentence of fifty-five years imprisonment, with the opportunity to argue for less. Despite his rejection of the offer, it remained open until the time of trial. At the habeas trial, both of the attorneys who represented the petitioner during his criminal trial, Kevin Barrs and M. Fred DeCaprio, testified regarding their advice to the petitioner with respect to the plea offer. Barrs testified that he met with the petitioner approximately one week before the trial began to discuss, among other things, the plea offer, and that the petitioner’s mother accompanied him to the meeting in order to encourage the petitioner to accept it. Given that the sentence of fifty-five years was such a long prison term, Barrs testified that he did not deem it appropriate to affirmatively recommend the sentence. He testified instead that he explained the relative costs and benefits of the plea offer and then left it to the petitioner to decide whether he should accept it. The petitioner, who also testified at the habeas trial, did not say that he would have taken the plea offer had his attorneys recommended that he do so. Rather, as found by the habeas court, “He stated . . . that he did not want an offer; he wanted a trial.”

“In [Lafler v. Cooper, U.S. , 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012), and Missouri v. Frye, U.S. , 132 S. Ct. 1399,182 L. Ed. 2d 379 (2012)], the United States Supreme Court held that habeas petitioners can establish a violation of the sixth amendment right to counsel by proving a reasonable probability [that] they would have accepted the . . . plea offer had they been afforded effective assistance of counsel.” (Internal quotation marks omitted.) Ebron v. Commissioner of Correction, 307 Conn. 342, 349, 53 A.3d 983 (2012), cert. denied sub nom. Arnone v. Ebron, U.S. 133 S. Ct. 1726, 185 L. Ed. 2d 802 (2013). “[T]o satisfy the prejudice prong of the Strickland test when the ineffective advice of counsel has led a defendant to reject a plea offer, the habeas petitioner must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.” (Internal quotation marks omitted.) Id., 352.

Given that the petitioner presented no evidence that he would have accepted the state’s plea offer, and, in fact, testified that he affirmatively wanted to go to trial, the petitioner suffered no prejudice as a result of his attorneys’ advice to him regarding the offer. The testimony proffered by the petitioner, that he was unwilling to accept a plea because he wanted a trial, does not support a determination that in the absence of his attorneys’ alleged ineffective assistance, there is a reasonable probability that he would have accepted the offer. Accordingly, we conclude that the habeas court did not err in finding that the petitioner did not receive ineffective assistance of counsel, and, therefore, did not abuse its discretion in denying the petitioner certification to appeal.

II

SUPPRESSION HEARING

We address next the petitioner’s claim that the habeas court improperly found that his trial counsel had not rendered ineffective assistance by failing to offer his testimony during the hearing on the motion to suppress both the statements and sketch he provided to police. Because the petitioner has not shown that he was prejudiced by his attorneys’ decision, the habeas court did not abuse its discretion in denying the petitioner certification to appeal.

The following additional facts are based on the evidence adduced during the suppression hearing before the trial court, as set forth by our Supreme Court, and on the evidence presented during the habeas trial. “Dressed in plain clothes, Detectives Murray and Gaynor drove to the [petitioner’s] home and asked the [petitioner] to accompany them to the New London police station on February 10, 1999. . . . [T]he detectives remained at the threshold of the apartment. Murray and Gaynor did not show any force or draw their weapons. The two detectives informed the [petitioner] that he was not under arrest and that they would drive him back to his home when they were finished collecting his palm prints. The [petitioner] received a telephone call before he left, and the detectives waited while the [petitioner] took the call. After completing his call, the [petitioner], who was not handcuffed, rode in the front seat of Gaynor’s car while Murray sat in the back. Murray testified that he and Gaynor did not have an arrest warrant for the [petitioner] and that he had explained to the [petitioner] that he was not compelled to accompany them to the police station, but could instead refuse their invitation.

“Upon arriving at the police station, Murray and Gaynor parked behind the station, and all three men entered through the rear private entrance. Once inside the police station, Murray and Gaynor obtained the [petitioner’s] palm prints in a small office that was ‘used for administrative purposes. . . .’ The [petitioner] signed a consent to search form advising him that the detectives wanted to take Ms palm prints and informing Mm of Ms rigM to refuse the search. Murray described the [petitioner] as ‘suspicious of police and a little nervous . . . but he was cooperative and didn’t ask to leave.’

“After taking the [petitioner’s] palm prints, Murray and Gaynor left and were replaced by Detectives McGlynn and Gigliotti, who both interviewed the [petitioner]. McGlynn testified that the [petitioner] was not handcuffed during the mterview, that the door to the office remained unlocked, and that the [petitioner] never was told that he was under arrest. Rather, McGlynn and Gigliotti repeatedly told the [petitioner] that he was free to leave throughout the mterview. McGlynn also told the [petitioner] that he did not have to answer any of the detectives’ questions. Describing the mterview with the [petitioner], McGlynn testified that it was conversational m nature. During the course of the interview, the [petitioner] changed Ms story several times; however, once the story became consistent, McGlynn and Gigliotti asked the [petitioner] if he would be willing to put Ms statement in writing. The [petitioner] agreed and signed all six pages of the statement.

“Accordmg to McGlynn, the interview was conducted around lunchtime, and the [petitioner] dechned the food he was offered, but accepted a soda. The [petitioner] also was permitted to use the bathroom at the police station; he was escorted to it but not fohowed inside. At one point during the mterview, the [petitioner] expressed concern that Ms daughter would return from school and that he would not be there to pick her up. In response, McGlynn reassured the [petitioner] that he and Gigliotti would give the [petitioner] a ride home.

“Although the [petitioner] imtially was polite and calm, McGlynn testified that the [petitioner] became agitated when Sergeant Paul Heon of the Connecticut state police, McGIynn’s immediate supervisor, questioned the veracity of the [petitioner’s] written statement. In response to Heon’s accusation, the [petitioner] became upset and tore his statement into four pieces. The [petitioner] eventually calmed down, and apologized for tearing up his statement. McGlynn and Gigli-otti thereafter asked if the [petitioner] would be willing to draw a diagram of where the victim was buried in Bates Woods, and he complied with the request. McGlynn testified that the diagram detailed the park, the driveway connecting the road to the parking lot abutting the park, and the hill where the [petitioner] claimed the victim’s body was located. Shortly after the [petitioner] completed the diagram, McGlynn and Gigliotti drove him home. The [petitioner] had spent nearly six and one-half hours at the police department, and the interview had lasted approximately five hours.

“The [petitioner] filed a pretrial motion seeking to suppress all of the statements that he had made to the police, claiming that they were obtained in violation of his rights under the fourth, fifth, sixth and fourteenth amendments to the United States constitution, and article first, §§ 7, 8 and 9, of the Connecticut constitution. In his motion, the [petitioner] asserted that, when he had made the statements at issue, he was in police custody and had not yet received Miranda warnings. Accordingly, the [petitioner] claimed that both his statements and the diagram he drew for police should be suppressed.

“After a hearing, the trial court denied the [petitioner’s] motion to suppress. In its oral decision on the record, the trial court found that the [petitioner] had not been in custody and therefore was not entitled to Miranda warnings when he was questioned by police. The trial court credited the detectives’ testimony that the [petitioner] never had been handcuffed and that no force had been used against him. Furthermore, although the door to the room where the [petitioner] was interviewed had remained closed, there was no evidence that the door had been locked. The trial court further found that the [petitioner] repeatedly had been told that he could leave, noting that ‘Gaynor told [the petitioner] not only that he wasn’t under arrest but that he could leave at anytime,’ and ‘[t]he court [likewise] credited] the testimony of [McGlynn and Gigliotti] . . . that [the petitioner] was initially told that he was not under arrest and that he could leave at any time ....’” State v. Britton, supra, 283 Conn. 606-609.

Our Supreme Court ultimately determined that the trial court had properly denied the petitioner’s motion to suppress the statements and the sketch, as the trial court had correctly found that the petitioner was not in custody for purposes of triggering his Miranda rights. As the Supreme Court explained: “The [petitioner] accompanied the detectives to the police station voluntarily; he was not handcuffed or subjected to force; he was told repeatedly that he was not under arrest and that he could leave at any time; and he was driven home after the interview concluded. Because the facts in the record support the trial court’s determination that a reasonable person in the [petitioner’s] position would not have believed that he was in custody, we agree with the trial court that the [petitioner] was not required to be given Miranda warnings.” Id., 612.

At the habeas trial, the petitioner testified about the circumstances surrounding his providing statements to police. The petitioner testified that, on the morning he made the statements, the police came to his home and requested that he go with them to the police station. According to his testimony, the petitioner was not handcuffed or placed under arrest, nor was he transported to the police station in a squad car. The petitioner testified that upon his arrival at the police station, he was escorted to an office with windows, where he signed a consent form giving permission to the police to take his palm prints. Consistent with the testimony of McGlynn at the suppression hearing, the petitioner testified that he was allowed to use the bathroom unaccompanied by a police officer. He also testified that after allowing the police to take his palm prints, he gave them a statement discussing the victim’s death. He, according to his testimony, tore up the statement after one of the detectives challenged its truth because the police had told him he was not then able to leave the station. The petitioner also testified that at some point before he tore up his statement, the police asked him to draw two lines on a piece of paper, but that he did not draw the sketch of the location where the victim’s body was buried. On cross-examination, the petitioner also testified that he was familiar with the arrest process and his Miranda right to silence and that he was aware that once arrested, the police are not required to ask for permission to take fingerprints.

In issuing its decision, the habeas court found that even if the petitioner had testified at the suppression hearing exactly as he had at the habeas trial, the trial court would not have granted the motion to suppress the statements. The court did find, in fight of the petitioner’s experience of having been in police custody before and having a criminal record, that the trial court likely would not have found his testimony about the events more credible than that of the detectives who testified at the hearing. On the basis of these determinations, the court found, inter alia, that the petitioner was not prejudiced by his attorneys’ decision not to offer his testimony during the hearing on the motion to suppress because his testimony would not have affected the trial court’s ruling on the motion.

We agree with the habeas court’s finding that the petitioner was not prejudiced by his attorneys’ decision against offering his testimony at the suppression hearing. As the court explained, the petitioner has not shown that the scant additional evidence that he would have offered had he testified, which was unlikely to be credited by the trial court, would have altered the trial court’s ruling on the motion to suppress. The petitioner’s testimony did not establish any credible new or additional factual bases for a court to find that he was in custody for purposes of triggering his Miranda rights. Thus, that the petitioner was not prejudiced by his attorneys’ failure to offer his testimony at the suppression hearing is not debatable among jurists of reason, could not reasonably be resolved differently, nor does this issue present questions adequate to deserve encouragement to proceed further. Accordingly, we conclude that, in denying the petitioner certification to appeal, the habeas court did not abuse its discretion.

m

INSTRUCTIONS TO VENIRE PANEL

Finally, we turn to the petitioner’s claim that the habeas court erroneously found that his trial counsel did not render ineffective assistance in failing to object to the trial court’s instructions to the venire panel. Specifically, the petitioner argues that his attorneys’ assistance was ineffective because they failed to object to the trial court’s mentioning of his prior felony conviction while giving its preliminary instructions during jury selection. We conclude that the petitioner has not shown that his trial counsel provided professionally unreasonable assistance, and, thus, the habeas court did not abuse its discretion in denying his petition for certification to appeal.

“The trial court gave the panel of prospective jurors preliminary instructions prior to individual voir dire. Because the state charged the [petitioner] in the first count of the information with capital felony, the trial court included an explanation of the bifurcated trial system used in death penalty cases. The trial court explained: ‘Now, this is a hypothetical discussion at this point because the [petitioner] is presumed to be innocent of any wrongdoing whatsoever. And the jury must respect that presumption of innocence. If, and only if, the presumption of innocence is overcome by proof beyond a reasonable doubt as to the crime of capital felony as charged here, then the same jury that delivers the unanimous verdict of guilty to capital felony, and that verdict is based on the evidence without regard to punishment, then that jury will proceed with a second stage called the penalty phase hearing.’ The trial court further explained that in a penalty phase hearing, both aggravating and mitigating factors would be outlined for the jury’s consideration. In the course of that instruction, the trial court included the following explanation: ‘In this case, the state has alleged two aggravating factors as set forth in [§] 53a-46a (i). One, the [petitioner] committed the crime of capital felony in an especially heinous, cruel and depraved manner. And two, the [petitioner] committed the offense during the commission or attempted commission of or during the immediate flight from the commission or attempted commission of a felony and he had previously been convicted of the same felony. The state will have the burden of proving either or both of these alleged aggravating factors beyond a reasonable doubt.’ ” Id., 613-14.

At the habeas trial, DeCaprio testified that he objected to the trial court’s instructions in chambers and off the record, but the trial court nevertheless intended to include reference to the petitioner’s felony conviction in its instructions to the venire panel. DeCaprio, according to his testimony, succeeded in persuading the trial court to “water down” the instructions. DeCaprio also testified that he decided to pursue the issue of the instruction informally in chambers, rather than by arguing on the record, because he believed he was likely to be unsuccessful, as there was no case law on this subject at the time of the petitioner’s trial, but that, in fact the law on this subject was developed through the petitioner’s direct appeal to our Supreme Court. The habeas court credited DeCaprio’s testimony regarding his handling of the trial court’s instructions.

Given that the petitioner’s trial counsel discussed the matter of the instructions with the trial court, voiced an objection to the mentioning of the petitioner’s prior felony conviction and succeeded in persuading the court to revise its intended instructions in a way favorable to the petitioner, we do not conclude that his attorneys’ strategy did not fall within the ambit of sound and reasonable assistance. Moreover, in light of the posture of Connecticut law on this issue at the time of the petitioner’s trial, the record indicates that his attorneys’ method of addressing the trial court’s instructions surpassed any “standard of reasonableness . . . .” Johnson v. Commissioner of Correction, supra, 285 Conn. 575. To fault the petitioner’s trial counsel for not having the clairvoyance to predict the development of the law relating to jury instructions in capital felony cases would be to allow “second-guess [ing]” and the “distorting effects of hindsight” to infect the evaluation of trial counsels’ performance, precisely the type of critique our Supreme Court has cautioned against. Id., 577. We, accordingly, conclude that this issue is not debatable among jurists of reason, that a court could not resolve it differently, and that it does not present questions deserving encouragement to proceed further. Thus, the habeas court did not abuse its discretion in denying the petitioner certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       Reading the state’s information, entered into evidence as petitioner’s exhibit 1, together with the judgment file, entered as petitioner’s exhibit 2, we are able to glean that the petitioner was so convicted. Both parties’ ■representations to the habeas court and this court comport with this reading.

       The Supreme Court, in its decision on the petitioner’s direct appeal, stated that it “agreefd] with the [petitioner] that trial courts should refrain from reading aggravating factors to jurors in preliminary instructions during the guilt phase of a trial when the aggravating factor consists of a prior felony conviction . . . .” State v. Britton, supra, 283 Conn. 615. As the petitioner’s claim was not properly preserved, however, and did not satisfy the conditions for review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), the Supreme Court declined to afford it review. State v. Britton, supra, 617.


source: Caselaw Access Project

author: BEAR, J.

license: Public Domain

text:
    SCOTT CRAWLEY v. COMMISSIONER OF CORRECTION
    (AC 33197)
    Gruendel, Alvord and Bear, Js.

      Argued January 17
    officially released April 2, 2013

      David B. Rozwaski, special public defender, for the appellant (petitioner).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were Brian Preleski and GailP. Hardy, state’s attorneys, and Brenda Hans, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

BEAR, J.

The petitioner, Scott Crawley, appeals from the judgments of the habeas court denying his petitions for certification to appeal from the judgments denying his petitions for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying certification to appeal because the court incorrectly concluded that he failed to demonstrate that he was prejudiced by his trial counsel’s alleged deficient performance. We dismiss the appeal.

The following facts are relevant to our resolution of the petitioner’s appeal. In docket number CR-02-0204495 (New Britain case), the petitioner was convicted of two counts of possession of narcotics with intent to sell by a person who is not drug-dependant in violation of General Statutes § 21a-278 (b). The court imposed a total effective sentence of thirty years incarceration. His conviction was upheld by this court on appeal. State v. Crawley, 93 Conn. App. 548, 889 A.2d 930, cert. denied, 277 Conn. 925, 895 A.2d 799 (2006). In docket numbers CR-02-0185248, MV-02-346006, CR-02-0183551 and MV-02-0383935, which were consolidated for trial (Manchester cases), the petitioner was convicted of possession of narcotics in violation of General Statutes § 21a-279 (a), possession of narcotics with intent to sell by a person who is not drug-dependant in violation of § 2 la-278 (b), possession of marijuana in violation of General Statutes § 2 la-279 (c), possession of drug paraphernalia in violation of General Statutes § 2 la-267 (a), two counts of operating a motor vehicle while his license was under suspension in violation of General Statutes § 14-215 (a), and two counts of interfering with an officer in violation of General Statutes § 53a-167 (a) (Manchester offenses). The petitioner also was convicted, on a part B information, of having committed the Manchester offenses while on release in violation of General Statutes § 53a-40b. The petitioner was sentenced to a total effective term of twenty-seven years incarceration, to run consecutively to the thirty year term of incarceration in the New Britain case. The petitioner did not file a timely direct appeal in the Manchester cases.

The petitioner filed an amended petition for a writ of habeas corpus regarding the Manchester cases on July 29, 2009, and a second amended petition for a writ of habeas corpus regarding the New Britain case on October 21,2009, claiming ineffective assistance of trial counsel. Both petitions were consolidated for trial. In the petition regarding the Manchester cases, the petitioner alleged that attorney Donald Freeman, his trial counsel, had provided ineffective assistance by failing to present evidence that the petitioner was drug-dependant and by failing to preserve the petitioner’s appellate rights. In the petition regarding the New Britain case, the petitioner alleged that Freeman had provided ineffective assistance by failing to present evidence that the petitioner was drug-dependant and by failing to preserve the petitioner’s right to sentence review.

Following a habeas trial, the court, with the agreement of the state, restored the petitioner’s right to seek sentence review in the New Britain case, and it restored the petitioner’s appellate rights with respect to the Manchester cases. Regarding the petitioner’s claim in both habeas petitions that his trial counsel had provided ineffective assistance by failing to present evidence that the petitioner was drug-dependant, the court concluded that, even if it were to assume that counsel had rendered deficient performance, the petitioner had failed to demonstrate prejudice because there was no evidence from which to determine that the sentences would have been less than actually imposed had the defense of drug dependency been raised. Accordingly, the court denied the petitions for a writ of habeas corpus. The court also denied the petitioner’s requests for certification to appeal from those judgments. This appeal followed.

“The standard of review for a habeas court’s denial of a petition for certification to appeal requires the petitioner to prove that the denial of the petition for certification was an abuse of discretion and also that the decision of the habeas court should be reversed on the merits. ... To prove an abuse of discretion, the petitioner must demonstrate that the resolution of the underlying claim involves issues [that] are debatable among jurists of reason; that a court could resolve the issues [in a different maimer]; or that the questions are adequate to deserve encouragement to proceed further. ... 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 violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Norton v. Commissioner of Correction, 132 Conn. App. 860, 863-54, 33 A.3d 819, cert. denied, 303 Conn. 936, 36 A.3d 695 (2012).

“A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice. . . . For ineffectiveness claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) .... To satisfy the performance prong, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance. ... To satisfy the prejudice prong for ineffective assistance claims resulting from guilty verdicts, the petitioner must demonstrate that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . . Greene v. Commissioner of Correction, 123 Conn. App. 121, 127-28, 2 A.3d 29, cert. denied, 298 Conn. 929, 5 A.3d 489 (2010), cert. denied sub nom. Greene v. Arnone, 563 U.S. 1009, 131 S. Ct. 2925, 179 L. Ed. 2d 1248 (2011).” (Internal quotation marks omitted.) Trotter v. Commissioner of Correction, 139 Conn. App. 653, 658-59, 56 A.3d 975 (2012), cert. denied, 308 Conn. 901, 59 A.3d 403 (2013). “[B]ecause a successful petitioner must satisfy both prongs . . . failure to satisfy either ... is fatal to a habeas petition.” (Internal quotation marks omitted.) Saucier v. Commissioner of Correction, 139 Conn. App. 644, 650, 57 A.3d 399 (2012). With these principles in mind, we now address the petitioner’s claim of ineffective assistance of counsel to determine whether the habeas court abused its discretion in denying his petitions for certification to appeal.

The petitioner claims that the court abused its discretion in denying certification to appeal because the court’s conclusion that he failed to demonstrate prejudice in support of his claim of ineffective assistance of trial counsel was debatable among jurists of reason and deserved encouragement to proceed. He argues that trial counsel should have presented the defense of drug dependency in both the New Britain case and in the Manchester cases, and that his failure to do so amounted to deficient performance, which prejudiced the petitioner because he would have been convicted on the lesser charge of sale of narcotics by a drug-dependant person, pursuant to General Statutes § 2 la-277 (a), rather than as a seller who was not drug-dependant, pursuant to § 21a-278 (b), and he would have received a lesser sentence. Specifically, the petitioner argues that convictions under § 2 la-277 (a) “would have offered a lesser sentence than the more serious charge. ” The state argues that the court properly denied the petitioner’s request for certification to appeal, in relevant part, because the petitioner cannot demonstrate prejudice because even if he “could have won on [the defense of drug dependency], with his prior record [he] would have been exposed under ... § 21a-277 (a) to sixty years’ incarceration instead of the fifty he was exposed to and the thirty he received in the New Britain case, and thirty-seven years instead of the twenty-seven he received in the Manchester case[s].” We agree with the state.

Because the petitioner was a repeat offender, pursuant to § 21a-278 (b), he faced a maximum sentence of twenty-five years incarceration on each of the charges brought under that section, for a total possible sentence of seventy-five years incarceration on the three charges of possession with intent to sell. Had the petitioner raised the defense of drug dependency in each of his cases and had he been convicted under § 21a-277 (a), however, he would have faced a maximum possible sentence of thirty years incarceration on each count thereunder, for a total possible sentence of ninety years incarceration on those charges, plus a maximum of ten years incarceration on the part B information, as well as each sentence for the additional offenses. We agree with the state’s contention that “[w]here the claimed difference in the result of the proceedings is a difference in sentence, a petitioner must show a reasonable probability that but for counsel's error, the sentence would have been lighter than the sentence actually imposed. Lafler v. Cooper, U.S. , 132 S. Ct. 1376, 1385, [182 L. Ed. 2d 398] (2012); Missouri v. Frye, [ U.S. ] 132 S. Ct. 1399, 1410, [182 L. Ed. 2d 615] (2012); Glover v. United States, 531 U.S. 198, 200, 121 S. Ct. 696, 698, [148 L. Ed. 2d 604] (2001).”

In the present case, after noting the petitioner’s eleven prior drug convictions, his past fines, his terms of incarceration, the fact that he had violated every probationary period on which he had been placed, and the fact that he never had held lawful employment, but had “been a drug dealer his entire adult life,” the sentencing judge in the New Britain case stated that “[i]ncarceration hasn’t done the trick. Fines haven’t done the trick. And probation hasn’t done the trick. . . . The court does not believe that [the petitioner] is a person that should be in society, and the only thing that the court can do at this point, after all of those convictions is to incapacitate [the petitioner] for a long time.”

During sentencing in the Manchester cases, the sentencing judge considered the petitioner’s long history of drug sales, his “extremely lengthy prior criminal history,” his failure to complete a period of probation successfully, the commission of the Manchester offenses while the petitioner was on release, the quantity of narcotics involved in the Manchester cases, the petitioner’s “obvious lack of remorse for his behavior,” and the petitioner’s “total disregard for the rule of law” before imposing sentence.

In each of these cases, there is no indication that the sentencing judges would have given the petitioner lesser sentences had the defense of drug dependency been claimed. As stated previously in this opinion, had the defense been put forth, the petitioner’s maximum possible sentence in both the New Britain case and the Manchester cases would have increased by fifteen years, rather than decreased, as to the charges of possession with intent to sell. Accordingly, we conclude that the habeas court properly determined that, even if it assumed that counsel had rendered deficient performance, the petitioner failed to sustain his burden of demonstrating that he was prejudiced by any assumed deficiency.

After a thorough review of the record, we conclude that the habeas court properly concluded that the petitioner failed to sustain his burden of demonstrating that he was prejudiced by trial counsel’s alleged deficiency. The petitioner failed to establish that the issues he raised are debatable among jurists of reason, that a court could resolve them in a different manner or that the questions he raised are adequate to deserve encouragement to proceed further. Accordingly, we conclude that the court did not abuse its discretion in denying the petitions for certification to appeal from the judgments denying his amended petitions for a writ of habeas corpus.

The appeal is dismissed.

In this opinion the other judges concurred.

       Trial counsel testified during the habeas trial that the state had offered the petitioner a plea bargain with “seven and one-half or eight years for both cases consolidated” and that he had “pleaded with [the petitioner] to take [the offer] . . . .” The petitioner, however, declined to accept the state’s offer.

       Following oral argument in this case, the petitioner’s appellate counsel informed this court that the sentence review division, on February 15, 2013, had modified the petitioner’s sentence in the New Britain case and that his total effective term in both the New Britain case and the Manchester cases was now thirty-two years. We also note that on September 11, 2012, this court affirmed the petitioner’s convictions in his direct appeal of the Manchester cases. See State v. Crawley, 138 Conn. App. 124, 50 A.3d 349 (2012).

       We note that in the Manchester cases, the state, in part, originally had charged the petitioner, as a drug-dependant person, with a violation of § 21a-277 (a). Trial counsel, however, requested that the state amend the charging document to eliminate the charge under § 21a-277 because the petitioner claimed that the drugs were not his and counsel was concerned that charging the petitioner as a drug-dependant person would confuse the jury in light of the petitioner’s defense. Counsel, however, did ask the court to consider the petitioner’s drug dependency during the sentencing hearing.
      During his habeas trial, the petitioner agreed that “it would have been probably not prudent for [counsel] to argue on the one hand these aren’t even my client’s drugs, and on the other hand, he’s drug-dependant, [that] he’s probably selling to support his habit . . . .”

         General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance, except as authorized in this chapter, and who is not, at the time of such action, a drug-dependent person, for a first offense shall be imprisoned not less than five years or more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years or more than twenty-five years. . .

       General Statutes § 21a-277 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”


author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. JAMES BAKER
    (AC 34237)
    Kobinson, Alvord and Harper, Js.
    Argued January 10
    officially released April 2, 2013

      Katharine S. Goodbody, special public defender, for the appellant (defendant).

      Jennifer Dalenta, special deputy assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and Sean P. McGuinness, deputy assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, James Baker, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, he claims that the sentencing court improperly denied his motion because it failed to provide him with an opportunity to aJlocute prior to the sentence being imposed. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On October 13, 1999, the defendant pleaded guilty pursuant to the Alford doctrine to possession of a weapon in a correctional institution in violation of General Statutes § 53a-174a. The state indicated that the plea agreement was that the defendant “be committed to the custody of the commissioner of correction on this offense for a period of eighteen months. That sentence will run consecutive to the sentence he is now serving on the murder conviction.” After fully canvassing the defendant, the court asked defense counsel if he would like to be heard. He responded in the negative. Noting that the plea agreement included an. agreed upon disposition, the court adopted the disposition and sentenced the defendant to a term of incarceration of eighteen months, to run consecutive to his current sentence.

The defendant filed a motion to correct an illegal sentence on September 19, 2011, arguing that he had been denied an opportunity to allocute to mitigate the sentence. The court heard oral argument on September 21, 2011, and issued an oral decision. The court stated that “[i]t does not appear, under the facts of this case, where there’s an agreement to a voluntarily entered plea that the court needs to invite a statement by the defendant” and, accordingly, denied the motion. This appeal followed.

On appeal, the defendant claims that his right to allo-cute should have been offered to him and that the failure to do so was harmful. He maintains that although our Supreme Court has held that the trial court has no affirmative duty to inquire whether a defendant wishes to make a personal statement in the dispositional phase of a probation revocation hearing, that holding has not been applied to sentencing hearings and should not be so applied. We are not persuaded.

We begin with our standard of review. “[A] claim that the trial court improperly denied a defendant’s motion to correct an illegal sentence is reviewed pursuant to the abuse of discretion standard. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court's decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Citation omitted; internal quotation marks omitted.) State v. Charles F., 133 Conn. App. 698, 704-705, 36 A.3d 731, cert. denied, 304 Conn. 929, 42 A.3d 390 (2012).

Practice Book § 43-10 provides in relevant part: “Before imposing a sentence or making any other disposition after the acceptance of a plea of guilty or nolo contendere or upon a verdict or finding of guilty, the judicial authority shall . . . conduct a sentencing hearing as follows ... (3) The judicial authority shall allow the defendant a reasonable opportunity to make a personal statement in his or her own behalf and to present any information in mitigation of the sentence. . . .” In State v. Strickland, 243 Conn. 339, 349-54, 703 A.2d 109 (1997), our Supreme Court concluded that the predecessor to Practice Book § 43-10 (3), Practice Book § 919 (3), applied to both original sentencing hearings and the dispositional phase of probation revocation hearings. In State v. Valedon, 261 Conn. 381, 387, 802 A.2d 836 (2002), that court first noted that the plain language of Practice Book § 43-10 (3) “does not direct the trial court to address the defendant personally to inquire whether the defendant wishes to speak . . . .” In reviewing the history of the adoption of the rule, the court stated that “[l]anguage directing the trial court to ‘address the defendant personally’ could easily have been included in the original text of [Practice Book] § 43-10 (3) had that been the intention of the judges of the Superior Court in adopting the rule. Instead, in clear distinction to both the Federal Rules of Criminal Procedure and the Uniform Rules of Criminal Procedure, [Practice Book] § 43-10 (3) includes no requirement that the court make personal inquiry of the defendant whether he wishes to speak before sentencing. Although it is the better practice for the trial court to inquire of each defendant whether he or she wishes to make a personal statement before being sentenced for violation of probation, and we encourage the trial court to make such an inquiry, we conclude that the plain language of [Practice Book] § 43-10 (3) does not require that such an inquiry be made . . . .” Id., 390.

Although the court in Valedon interpreted Practice Book § 43-10 (3) in the context of the dispositional phase of a probation revocation hearing, nothing in that decision limited the court’s legal analysis to that particular factual scenario. Because Practice Book § 43-10 (3) applies to both original sentencing hearings and the dispositional phase of probation revocation hearings, the interpretation of that section by our Supreme Court applies to both kinds of hearings as well. On the basis of the reasoning in Valedon, we conclude that the sentencing court did not have an affirmative duty to inquire of the defendant whether he wanted to make a personal statement at the sentencing hearing. This conclusion is bolstered by the fact that in this case the defendant was sentenced pursuant to a plea bargain agreement that included an agreed upon disposition.

Moreover, even though the court did not have an affirmative duty to give the defendant an opportunity to ailocute, the defendant was, in fact, given a reasonable opportunity to do so. After it entered the defendant’s guilty plea and before sentencing, the court asked if defense counsel wanted to be heard. He responded, “No, your honor.”

“Absent some indication to the contrary, a court is entitled to rely on counsel’s representations on behalf of his or her client.” (Internal quotation marks omitted.) State v. Hall, 303 Conn. 527, 536, 36 A.3d 237 (2012). There is nothing in the record to indicate that the defendant, upon hearing defense counsel’s representation, objected, demonstrated surprise or in any way gave the court reason to doubt its accuracy. In the absence of any evidence to the contrary, we conclude that when presented with a reasonable opportunity to ailocute, the defendant simply declined to do so. Accordingly, the court did not abuse its discretion in denying the defendant’s motion to correct an illegal sentence.

The judgment is affirmed.

In this opinion the other judges concurred.

         North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       At the time of the incident, the defendant was incarcerated at the Garner Correctional Institution for a murder conviction. His maximum release date was 2044, and his estimated release date was October, 2031.


text:
    JASON B.
      v. COMMISSIONER OF CORRECTION
    (AC 33117)
    Bear, Espinosa and Flynn, Js.

      Argued January 7
    officially released April 2, 2013

      Mary H. Trainer, special public defender, for the appellant (petitioner).

      Adam E. Mattei, deputy assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Gerard P. Eisemnan, former senior assistant state’s attorney, for the appellee (respondent).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the petitioner’s full name or to indentify the victim or others through whom the victim’s identity may be ascertained.

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

BEAR, J.

The petitioner, Jason B., following the habeas court’s granting of his petition for certification to appeal, appeals from the judgment of the habeas court denying his petition for a writ of habeas coxpus. On appeal, the petitioner claims that “[t]he habeas court erred when it denied [his] claim that his right to due process under [a]rticle [f]irst, [§] 8, of the Connecticut [constitution was violated when the police destroyed evidence that was potentially exculpatory thereby making it unavailable at trial.” We disagree and affirm the judgment of the habeas court.

The petitioner was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and unlawful restraint in violation of General Statutes § 53a-95 (a) for acts committed against his former wife, and his conviction was upheld on appeal. See State v. Jason B., 111 Conn. App. 369, 958 A.2d 1266 (2008), cert. denied, 290 Conn. 904, 962 A.2d 794 (2009). During his criminal trial, the petitioner testified in his own defense that he and the victim had engaged in consensual sexual relations on the night in question. During the victim’s testimony about the sexual assault and restraint, she testified, in part, that during the incident, the petitioner had forced her to smoke a marijuana cigarette (cigarette). Id., 362 n.2. She gave the remains of that cigarette to the police. The police, however, destroyed the cigarette by flushing it down a toilet. During his habeas trial, the petitioner claimed, in relevant part, that the destruction of the cigarette was a due process violation because he did not have the opportunity to test the cigarette for DNA. The habeas court disagreed.

On appeal, the petitioner argues: “By destroying the cigarette, the [s]tate harmed the petitioner’s case because he could not test an item that, based on his version of the facts of the case, could prove exculpatory, could support his claim that the relations were consensual, and importantly, could bolster his credibility.” We are not persuaded.

In State v. Morales, 232 Conn. 707, 720, 667 A.2d 686 (1996), our Supreme Court determined that article first, § 8, of the Connecticut constitution requires a balancing test rather than a showing of bad faith: “We refer to this test as the Asherman test. [State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).] Although the United States Supreme Court in [Arizona v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988)] held that due process under the federal constitution does not require a trial court to apply such a balancing test . . . due process under our state constitution does.” “[T]he trial court must employ the [Asherman] balancing test, weighing the reasons for the unavailability of the evidence against the degree of prejudice to the accused.” (Internal quotation marks omitted.) State v. Joyce, 243 Conn. 282, 301, 705 A.2d 181 (1997), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998). The factors to be considered include “[1] the materiality of the missing evidence, [2] the likelihood of mistaken interpretation of it by witnesses or the jury, [3] the reason for its nonavailability to the defense and [4] the prejudice to the defendant caused by the unavailability of the evidence.” State v. Asherman, supra, 724.

In the present case, the petitioner contends that a proper application of the balancing factors from Asher-man requires that his petition for a writ of habeas corpus be granted and that he be granted a new trial. Applying the Asherman balancing factors, however, we conclude that the petitioner’s right to due process of law under article first, § 8, of the Connecticut constitution was not violated by the destruction of the cigarette.

First, we conclude that the cigarette was not material. See State v. Asherman, supra, 193 Conn. 724. “The measure of materiality is whether there is a reasonable probability that, had the evidence been disclosed [or available] to the defense, the result of the proceeding would have been different.” (Internal quotation marks omitted.) State v. Barnes, 127 Conn. App. 24, 32, 15 A.3d 170 (2011), aff'd, 308 Conn. 38, 60 A.3d 256 (2013). We conclude that such a reasonable probability does not exist in this case. The petitioner testified during his criminal trial that the victim voluntarily smoked marijuana while in his vehicle. Exactly whose DNA, if any, may have been present on the cigarette that the victim gave to the police likely would not have affected the outcome of the petitioner’s trial. Even if the cigarette tested positive for either the petitioner’s or a third person’s DNA, but not the victim’s DNA, it would not have meant that the victim had not smoked the cigarette, but only that her DNA was not detectable. Additionally, even if the cigarette tested positive for the victim’s DNA whether it was proved to be marijuana or something other than marijuana, it would not have been relevant to the issue of whether the petitioner had forced the victim to smoke that cigarette. Furthermore, the primary issue at the petitioner’s criminal trial was whether his sexual encounter with the victim was consensual or was forced on her. The petitioner did not contest being with the victim; he asserted that they had consensual sexual relations, while the victim alleged that she was sexually assaulted. This was the question that the jury had to resolve, and it concluded that the state presented evidence, beyond a reasonable doubt, of sexual assault. The presence, or lack thereof, of DNA on the cigarette, therefore, would not have been material to the petitioner’s case, nor would it have been material if the cigarette proved to contain something other than marijuana.

Second, we conclude there is no likelihood that the jury or a witness would have had a mistaken interpretation of the missing evidence. See State v. Asherman, supra, 193 Conn. 724. Because of its unavailability, there was no evidence presented regarding testing of the cigarette to determine whether it contained marijuana or whether there was DNA present on it, nor was any testing ever conducted. The jury did not hear evidence on this subject nor was any witness asked to testify about testing this particular cigarette. Accordingly, we conclude that there could be no mistaken interpretation of the missing evidence.

Third, the petitioner concedes that there is nothing in the record to suggest that the police acted in bad faith or with an improper motive in destroying the cigarette. See id., 724 (third factor is consideration of reasons for unavailability of evidence). “In weighing the third Asherman factor . . . our cases have focused on the motives behind the destruction of the evidence. ... In examining the motives . . . our courts have considered such factors as whether the destruction was deliberate and intentional rather than negligent ... or done in bad faith or with malice ... or with reckless disregard ... or calculated to hinder the defendant’s defense, out of other animus or improper motive, or in reckless disregard of the defendant’s rights.” (Citations omitted; internal quotation marks omitted.) State v. Jones, 50 Conn. App. 338, 358, 718 A.2d 470 (1998), cert. denied, 248 Conn. 915, 734 A.2d 568 (1999). The petitioner also conceded that there is no evidence of an improper motive for the destruction of the cigarette. Accordingly, this factor also weighs in favor of the state.

Fourth, we conclude that the petitioner has failed to demonstrate undue prejudice caused by the unavailability of the cigarette. See State v. Asherman, supra, 193 Conn. 724. Although the petitioner argues that he was prejudiced by the missing evidence because he could have used it to impeach the victim’s testimony depending on the DNA results of the cigarette and whether it, in fact, was marijuana, we agree with the habeas court that the results of any testing “would not have established anything exculpatory.” The petitioner testified that the victim voluntarily had smoked marijuana while in his vehicle. The absence of the victim’s DNA, the presence of the petitioner’s DNA or the presence of the DNA of a third party would not have established that the victim was lying about whether the petitioner forced her to smoke the cigarette or about whether the sexual encounter was consensual instead of a sexual assault by the petitioner of the victim. Because there is no proof in the record that there is a substantial correlation between touching a cigarette and the resultant presence of testable DNA, the lack of the victim’s or the petitioner’s DNA on the cigarette would not have been material in determining whether the victim or the petitioner had touched or smoked the cigarette, and the presence of a third party’s DNA on the cigarette would have established only that another person also had touched the cigarette. Furthermore, even if the cigarette proved to contain a substance other than marijuana, it would not have established that the victim was lying when she said that the petitioner had forced her to smoke that cigarette, or that she was lying about the petitioner’s sexual assault of her.

After weighing the four factors of the Asherman test, we conclude that the habeas court properly concluded that the petitioner’s right to due process of law under article first, § 8, of the Connecticut constitution was not violated by the missing evidence. Accordingly, the habeas court did not err in denying the petition for a writ of habeas corpus.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the petitioner failed to raise this claim on direct appeal, and raised it for the first time at his habeas trial, the state did not file a defense to the claim. Accordingly, it properly is before us.


author: BORDEN, J.

text:
    BETH KELLER v. RICHARD KELLER
    (AC 33816)
    Beach, Alvord and Borden, Js.
    Argued December 6, 2012
    officially released April 2, 2013

      ReubenS. Midler, with whom, on the brief, was Yakov Pyetranker, for the appellant (defendant).

      Norman A. Roberts II, for the appellee (plaintiff).
   Opinion

BORDEN, J.

In this marital dissolution action, the dispositive issue is whether the trial court abused its discretion in entering an order of alimony and child support pendente lite payable by the defendant, Richard Keller, to the plaintiff, Beth Keller. We conclude that the court did abuse its discretion and, accordingly, reverse the judgment of the trial court.

The defendant appeals from the trial court’s order of alimony and support pendente lite. In addition to the defendant’s claim of abuse of discretion in entering the pendente lite order, the defendant claims that the court: (1) violated the defendant’s due process rights by considering the plaintiffs simply worded pendente lite motion without requiring the plaintiff to give him specific notice that she would be relying on an imputed earning capacity of the defendant; (2) improperly quashed three subpoenas duces tecum served on certain members of the plaintiffs family; and (3) based its finding of the defendant’s earning capacity on inadequate evidence. Because we agree with the defendant’s claim of abuse of discretion in entering the pendente lite order, we need not consider these other claims.

The parties married on August 15, 1992. They have three minor children, bom in 1996, 1999 and 2002. The plaintiff brought this dissolution action in May, 2011, when she also filed the motion for alimony and support pendente lite. On July 15, 2011, the parties entered into a court-approved stipulation agreeing, among other things, that the defendant would have exclusive possession of the jointly owned marital home located in Greenwich until the final judgment in the dissolution action, the parties would share custody of the children subject to an agreed parenting plan, and any order on the pen-dente lite motion would be presumptively retroactive to July 15,2011, with the parties free to argue otherwise.

During the ensuing three day hearing on the pendente lite motion in early August, 2011, the following evidence was introduced. The plaintiff, age forty-six at the time of the hearing, is a licensed registered dietician who was last employed in 1996 in the field of public relations. Since then, she has been a full-time mother and homemaker. She has been supplementing the money that the defendant has been giving her by borrowing from her family. The defendant, age forty-seven at the time of the hearing, earned a law degree from Columbia University in 1991, was admitted to the New York and Connecticut bars, and practiced law in New York for two and one-half years. He then entered the financial services industry. In 2006, he founded a hedge fund, of which he was the manager, earning approximately $ 1.9 million in 2007. After the economic downturn in 2008, he began to liquidate the fund, and closed it at the end of 2010. Essentially, he has had no income since 2008, and has been paying living expenses and attempting to support the family by selling liquid assets, which are almost exhausted, and by borrowing money. The parties’ joint 2009 federal income tax return showed a loss of approximately $120,000.

The court found that the plaintiff had a current earning capacity of approximately $3000 per month. With respect to the defendant, the court found that he “historically has been employed in a profession or calling where he is given considerable flexibility in how to recognize and receive income . . . [and has] licenses to practice law in two states and a very substantial and commendable record of achievement in the financial industry. He appears to have a wealth of financial acumen and experience. There is also some evidence in the record as to his trading profits and expertise in investment and investment advice.”

Regarding the defendant’s attempts to find alternate sources of income, the court found that “as a matter of choice, seeking to maximize the potential for him to return to managing an investment fund, he has foregone whatever opportunities there be for him to obtain direct employment. The court is not in any way critical of that choice. It may well be the best decision. But it does not free him from the responsibilities he has under the law to support his spouse and children.” Accordingly, the court found that “the defendant has a current earning capacity of a minimum of $25,000 a month.”

On the basis of this finding, the court ordered the defendant to pay: (1) $9000 per month to the plaintiff as unallocated alimony and child support; (2) the monthly mortgage payments on the marital residence, including the first mortgage, the home equity line of credit, the taxes and insurance; (3) the monthly loan payments on the plaintiffs car; and (4) the current health and dental insurance for the plaintiff and the three children, plus all unreimbursed medical and dental expenses, except for purely cosmetic or elective procedures.

The defendant claims that these orders constitute an abuse of discretion because they were based upon the defendant’s gross, rather than net, income. We agree.

It is axiomatic that an award of alimony and support must be based on net income after taxes, not gross income. Ludgin v. McGowan, 64 Conn. App. 355, 358, 780 A.2d 198 (2001). It is clear from the record that the court considered the imputed $25,000 per month income of the defendant to be gross, rather than net, income. At the hearing, the defendant’s attorney asked the court: “[W]ith respect to the Court’s determination of an earning capacity. I take it that is a gross sum, correct?” The court responded: “Yes.” It is also clear that, at no time, did the court attempt to calculate, or ask the parties to calculate, what the available net income after taxes would be on such a gross income. The court, therefore, abused its discretion in basing its orders solely on gross income.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       Certain interlocutory orders and rulings of the Superior Court have been determined to be final judgments for purposes of appeal because they so conclude the rights of a party that further proceedings could not affect them. See Hiss v. Hiss, 135 Conn. 333, 336, 64 A.2d 173 (1949) (pendente lite order of temporary support was final judgment).

       Although the defendant has offered such a calculation to us in his brief, it is not necessary to consider the accuracy of that calculation.