Chadwick St. Louis v. Commissioner of Correction ( 2015 )

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CHADWICK ST. LOUIS v. COMMISSIONER
OF CORRECTION
(AC 37059)
DiPentima, C. J., and Mullins and Dupont, Js.
Submitted on briefs September 14—officially released November 17, 2015
(Appeal from Superior Court, judicial district of
Tolland, Fuger, J.)
Stephen A. Lebedevitch filed a brief for the appel-
lant (petitioner).
Gail P. Hardy, state’s attorney, Angela R. Macchiar-
ulo, senior assistant state’s attorney, and Emily Graner
Sexton, special deputy assistant state’s attorney, filed
a brief for the appellee (respondent).
Opinion
DUPONT, J. The petitioner, Chadwick St. Louis,
appeals from the habeas court’s denial of his petition
for certification to appeal from the court’s judgment
denying his amended petition for a writ of habeas cor-
pus. On appeal, he claims that the habeas court (1)
abused its discretion in denying his petition for certifica-
tion to appeal, (2) erred in denying his claim of ineffec-
tive assistance of trial counsel, and (3) erred in finding
his trial counsel to be a more credible witness than the
petitioner. We conclude that the court did not abuse
its discretion in denying his petition for certification to
appeal and that his habeas petition was properly denied.
Accordingly, we dismiss the appeal.
A brief history of the prior proceedings is relevant
to our resolution of this appeal. The petitioner was
charged with murder in violation of General Statutes
§ 53a-54a. He waived his right to a jury trial and elected
to be tried by a three judge court, Miano, Strackbein,
and Prescott, Js., pursuant to General Statutes § 54-82
(b). The court found that the petitioner had intentionally
struck the victim with a skid-steer loader, commonly
known as a Bobcat, and buried him. The court found
him guilty of murder and sentenced him to a term of
fifty years imprisonment.
On direct appeal, this court affirmed the petitioner’s
conviction.1 State v. St. Louis, 128 Conn. App. 703, 18
A.3d 648, cert. denied, 302 Conn. 945, 30 A.3d 1 (2011).
The petitioner then filed a motion to correct an illegal
sentence, which the trial court, Alexander, J., denied
on April 4, 2012. This court held that the trial court did
not have jurisdiction to consider the petitioner’s motion
and remanded the case with direction to render judg-
ment dismissing it.2 State v. St. Louis, 146 Conn. App.
461, 76 A.3d 753, cert. denied, 310 Conn. 961, 82 A.3d
628 (2013).
On November 14, 2013, the petitioner filed an
amended petition for a writ of habeas corpus, raising
three claims of ineffective assistance of trial counsel.
The petitioner claims his trial counsel failed to: (1) fully
investigate the possibility of an alternative theory of the
victim’s death; (2) present evidence of the petitioner’s
voluntary intoxication as a result of his use of heroin
at the time of the victim’s death; and (3) produce any
witnesses for the petitioner. The petitioner presented
testimony from four witnesses: the petitioner’s trial
counsel; the petitioner’s former cellmate; the petition-
er’s expert, Attorney James Diamond; and the peti-
tioner. After trial, the habeas court, Fuger, J., denied
the habeas petition, reasoning that the petitioner had
not produced any credible evidence that he had suffered
prejudice as a result of the alleged omissions of his
trial attorney. The habeas court found ‘‘that there has
been no evidence at all introduced that would allow
this court to reach a conclusion that any performance
by [trial counsel] that might be deficient has in any way
operated to prejudice the defendant.’’3 The habeas court
also found the petitioner’s trial counsel to be a more
credible witness than the petitioner.
On July 15, 2014, the petitioner filed a petition for
certification to appeal, which the habeas court denied.
This appeal followed. Additional facts will be set forth
as necessary.
We begin our analysis with the relevant standard of
review. ‘‘Faced with a habeas court’s denial of a petition
for certification to appeal, a petitioner can obtain appel-
late review of the dismissal of his petition for habeas
corpus only by satisfying the two-pronged test enunci-
ated by our Supreme Court in Simms v. Warden, 229
Conn. 178, 640 A.2d 601 (1994), and adopted in Simms
v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).
First, he must demonstrate that the denial of his petition
for certification constituted an abuse of discretion. . . .
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 differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . . Sec-
ond, if the petitioner can show an abuse of discretion,
he must then prove that the decision of the habeas
court should be reversed on the merits. . . . In
determining whether there has been an abuse of discre-
tion, every reasonable presumption should be given in
favor of the correctness of the court’s ruling . . . [and]
[r]eversal is required only where an abuse of discretion
is manifest or where injustice appears to have been
done. . . .
‘‘We examine the petitioner’s underlying claim of inef-
fective assistance of counsel in order to determine
whether the habeas court abused its discretion in deny-
ing the petition for certification to appeal. 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 erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary. . . .
‘‘In Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States
Supreme Court enunciated the two requirements that
must be met before a petitioner is entitled to reversal
of a conviction due to ineffective assistance of counsel.
First, the [petitioner] must show that counsel’s perfor-
mance was deficient. . . . Second, the [petitioner]
must show that the deficient performance prejudiced
the defense. . . . Unless a [petitioner] makes both
showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversarial process
that renders the result unreliable. . . . A reviewing
court need not address both components of the inquiry
if the [petitioner] makes an insufficient showing on
one.’’ (Citations omitted; internal quotation marks omit-
ted.) McGee v. Commissioner of Correction, 157 Conn.
App. 863, 867–68, 118 A.3d 140, cert. denied, 318 Conn.
903, A.3d (2015). With this standard in mind, we
examine the petitioner’s claims.
On appeal, the petitioner claims that the habeas court
abused its discretion when it denied his petition for
certification to appeal and that the court improperly
denied his petition for a writ of habeas corpus. Specifi-
cally, he claims the habeas court erred by concluding
that the petitioner did not present sufficient evidence
to show that trial counsel’s performance was prejudi-
cial, and erred in concluding that trial counsel was a
more credible witness than the petitioner. We disagree
and address each claim in turn.
I
The petitioner first claims that the habeas court erred
in concluding that he failed to meet his burden of proof
for ineffective assistance of trial counsel. The petitioner
argues that he presented evidence at the habeas trial
that proves that he suffered prejudice as a result of
trial counsel’s failure to properly cross-examine the
medical examiner; failure to object to the medical exam-
iner’s reference to the Bobcat’s potential to cause the
victim’s death; failure to perform a meaningful pretrial
investigation; and trial counsel’s deficient performance
in advising the petitioner whether to accept a plea offer.
We are not persuaded.
The petitioner points to Diamond’s expert testimony
to argue that trial counsel’s failure to cross-examine
the medical examiner was prejudicial. Diamond testi-
fied that had trial counsel cross-examined the medical
examiner, trial counsel could have established that the
medical examiner was unable to determine the precise
cause of death. However, on cross-examination, Dia-
mond conceded that the medical examiner, on direct
examination during the criminal trial, testified about
his inability to determine the cause of the victim’s death.
Thus, any additional cross-examination on the issue
would have been cumulative of what was provided on
direct examination. See Smith v. Commissioner of Cor-
rection, 141 Conn. App. 626, 634–35, 62 A.3d 554 (preju-
dice not established when trial counsel did not call
additional witnesses that would have provided testi-
mony cumulative of testimony already in evidence),
cert. denied, 308 Conn. 947, 67 A.3d 290 (2013).
The petitioner argues that trial counsel’s failure to
object to the medical examiner’s reference to the Bob-
cat’s potential to cause the victim’s death was prejudi-
cial. The petitioner points to the expert testimony of
Diamond, who testified that a proper objection by trial
counsel would have left a hole in the state’s case against
the petitioner. However, Diamond testified that a detec-
tive at the criminal trial had testified about the Bobcat’s
involvement in the death and that a police report in
evidence at the criminal trial included the petitioner’s
statement that the Bobcat had played a role in the death
of the victim. Furthermore, no evidence was presented
at the habeas trial on the impossibility of the Bobcat
causing the victim’s death that could have cast doubt
on the outcome of the criminal trial. As the petitioner
did not present any expert witness or other evidence
at the habeas trial on this issue, the petitioner was
unable to establish prejudice. See Lambert v. Commis-
sioner of Correction, 100 Conn. App. 325, 327–28, 918
A.2d 281 (prejudice not established when petitioner
failed to call witnesses at habeas trial or offer evidence
as to what they would have testified to that would have
been beneficial), cert. denied, 282 Conn. 915, 924 A.2d
138 (2007).
The petitioner argues that trial counsel did not per-
form a meaningful pretrial investigation and he suffered
prejudice as a result. It is the petitioner’s burden to
demonstrate what benefit additional investigation
would have revealed. Norton v. Commissioner of Cor-
rection, 132 Conn. App. 850, 859, 33 A.3d 819, cert.
denied, 303 Conn. 936, 36 A.3d 695 (2012). The petitioner
argues that a more thorough investigation would have
allowed trial counsel to put forth a more compelling
theory of defense. However, the petitioner did not pre-
sent any evidence or testimony as to what a more mean-
ingful investigation would have revealed. See Johnson
v. Commissioner of Correction, 285 Conn. 556, 584, 941
A.2d 248 (2008) (‘‘the petitioner’s burden of proving
that a fundamental unfairness had been done is not
met by speculation . . . but by demonstrable realities’’
[internal quotation marks omitted]). Thus, the peti-
tioner did not meet his burden in establishing prejudice.
The petitioner also argues that he was prejudiced
as a result of trial counsel’s deficient performance in
advising the petitioner whether to accept a plea offer
or go to trial. This claim was not raised in the habeas
petition or ruled on by the habeas court, and thus the
record is not adequate to review this claim. This court
will not review a claim raised for the first time on
appeal. Lorthe v. Commissioner of Correction, 103
Conn. App. 662, 672, 931 A.2d 248 (‘‘[a]ppellate courts
of this state, generally, do not review claims raised for
the first time on appeal’’), cert. denied, 284 Conn. 939,
937 A.2d 696 (2007). Even if this court reviewed this
claim, it would fail on the merits. The only evidence
presented at the habeas trial on this issue was the dif-
fering testimony of the petitioner and trial counsel. The
habeas court found trial counsel’s testimony to be more
credible than the petitioner’s, and we will not disturb
that finding on appeal.
II
The petitioner next claims that the habeas court’s
determination that trial counsel was a more credible
witness than the petitioner was clearly erroneous. ‘‘The
habeas judge, as the trier of facts, is the sole arbiter of
the credibility of witnesses and the weight to be given
to their testimony. . . . Appellate courts do not sec-
ond-guess the trier of fact with respect to credibility.’’
(Citation omitted; internal quotation marks omitted.)
Necaise v. Commissioner of Correction, 112 Conn. App.
817, 825–26, 964 A.2d 562, cert. denied, 292 Conn. 911,
973 A.2d 660 (2009). Accordingly, we will not disturb
the habeas court’s determination that trial counsel was
a more credible witness than the petitioner.
On the basis of our review of the record, we conclude
that the petitioner has not established that the habeas
court’s resolution of the allegations in his amended
petition is debatable among jurists of reason, that a
court could have resolved them in a different manner,
or that the questions presented are adequate to deserve
encouragement to proceed further. See Lozada v.
Deeds, 498 U.S. 430, 431–32, 111 S. Ct. 860, 112 L. Ed.
2d 956 (1991); Simms v. Warden, supra, 230 Conn. 616.
The habeas court, therefore, did not abuse its discretion
in denying the petition for certification to appeal, or in
denying the amended petition for habeas corpus based
upon the claimed ineffective assistance of trial counsel.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The facts as found by the three judge panel were as follows: The victim,
Christopher Petrozza, worked for the petitioner in his landscaping business.
State v. St. Louis, 128 Conn. App. 703, 706, 18 A.3d 648, cert. denied, 302
Conn. 945, 30 A.3d 1 (2011). Petrozza and the petitioner also socialized
together outside of the workplace, and the petitioner became financially
indebted to Petrozza. Id. On September 29, 2006, Petrozza went to the
petitioner’s home in Manchester to collect money the petitioner owed him.
Id. While Petrozza was at the petitioner’s home, the petitioner intentionally
caused Petrozza’s death by striking him with the Bobcat. Id. After killing
Petrozza, the petitioner buried Petrozza’s body in the rear yard of his resi-
dence, covering the grave with large ornamental rocks. Id.In spring of 2007, while incarcerated on unrelated charges, the petitioner
began to tell the police about the existence of a dead body in an effort to
receive leniency for the unrelated charges. Id., 707. After he met with the
Manchester police several times, on June 5, 2007, the petitioner admitted
to having caused the death of Petrozza and described the circumstances of
Petrozza’s death as an ‘‘accident.’’ Id. On June 19, 2007, the police recovered
Petrozza’s body from the yard of the petitioner’s residence. Id.
2
The habeas court, in its decision, ruled that the motion to correct an
illegal sentence or the lack of jurisdiction to consider the motion is irrelevant
to the present proceeding.
3
In its oral decision, the habeas court assumed, without deciding, that
trial counsel’s performance was deficient.