Opinion
CV144006719
07-23-2019
Damian THOMAS #237078 v. WARDEN
UNPUBLISHED OPINION
Hon. John M. Newson, Judge
I. Procedural History
The petitioner was the defendant in a matter pending in the Judicial District of New Haven where, following a jury trial, he was convicted of four counts of felony murder, as well as carrying a pistol without a permit. During the relevant trial proceedings, he was represented by Attorney Albert Ghiroli. At trial, the jury could have reasonably found the following facts:
The jury reasonably could have found the following facts. On December 25, 1997, the defendant was at the Alley Cat Night Club in New Haven with Holbert Brown, Ricardo Beckford and Corey Merritt. At approximately 1 a.m., they left the night club and drove around New Haven. When they entered the Newhallville section of New Haven, the defendant asked the driver, Brown, to pull the car over. The defendant exited the car alone and proceeded around the corner to a residence at 622 Winchester Avenue.
Several people were standing outside the residence. Anthony Mitchell, Tavis Anderson and Ronnie Washington were on the porch of the residence. Joe Foskey and Jevon Langley were on the steps of the porch. The defendant approached the residence with a gun in his hand and stated, "Stick up" and "nobody move." Mitchell, Anderson and Washington ran into the residence. Mitchell and Washington hid in separate bedrooms in the residence while Anderson fled out the back door. From the bedroom, Mitchell observed the defendant follow Foskey and Langley into the living room of the house. The defendant stated to Langley and Foskey, "Lay down. Give me everything. Don’t look up." Mitchell witnessed the defendant shoot Langley, who lay on the floor. Mitchell heard another shot, but could not see at whom the defendant shot. Shortly thereafter, Mitchell heard another shot outside. Mitchell later identified the defendant from a photographic array as the person who "killed two people." He also identified the defendant at trial.
Washington, who was hiding in the bedroom, could see Langley, but could not see Foskey. Twice he heard the defendant say "to run everything," which is street parlance for give me everything. Langley refused to comply with the defendant’s order. Washington then saw the defendant shoot Langley. He did not see the defendant shoot Foskey, but he heard the shot. He heard another shot fired after the defendant left the house. Washington was unable to identify the defendant as the person who shot Langley and Foskey.
After the shootings, the defendant ran to the waiting car, jumped in it and directed Brown to drive away. Merritt, who was seated in the back seat, observed the defendant with a .41 caliber handgun. Merritt had seen the defendant with this handgun on previous occasions. Foskey and Langley died from bullet wounds. The bullets were .41 caliber and had been fired from the same gun. On January 20, 1998, the police arrested the defendant. The defendant confessed to the shootings at the police station. He testified at trial, however, that he did not commit the crimes and that the police had coerced his confession.State v. Thomas, 62 Conn.App. 356, 358-59, 772 A.2d 611, cert. denied, 256 Conn. 912, 772 A.2d 1125 (2001). On May 28, 1999, he was sentenced to a total effective term of 240 years. Following the direct appeal, however, two of the felony murder sentences were ordered to be vacated and for the convictions to be combined, and the matter was remanded for resentencing. Id. The petitioner was later resentenced by the trial court to a total effective sentence of 120 years.
The petitioner commenced the present action on October 8, 2014. Reading the petition in the best light possible, it alleges that counsel was ineffective for failing to file a motion to suppress the petitioner’s confession, for not challenging the legality of his arrest, and for failing to investigate a witness who would have corroborated his timeline of events. The respondent filed a Return denying the allegations on January 22, 2019, and the matter was tried before the Court on April 8, 2019.
This case proceeded to trial on the original hand-written petition filed by the petitioner.
II. Law and Discussion
"The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 688. "In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner’s failure to prove either is fatal to a habeas petition." (Internal quotation marks omitted.) Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).
The petitioner has failed to prove his case. As to the claim that trial counsel failed to investigate and present a witness who possessed helpful information to the defense case, the petitioner failed to present that witness before the habeas court to testify to the supposedly helpful information that could have provided at trial, which is fatal to his claim. Nieves v. Commissioner of Correction, 51 Conn.App. 615, 622-24, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999). As to the claims of ineffectiveness that counsel failed to move to suppress the petitioner’s statement and failed to challenge the legality of his arrest, the petitioner did not present any affirmative evidence as to either of these subjects during the habeas trial. Therefore, those claims are deemed to have been abandoned and are dismissed for failure to present evidence.
The alleged witness was actually never named in the pleadings or during the petitioner’s testimony.
III. Conclusion
Based on the foregoing, the petition for writ of habeas corpus is DENIED.