Johnson v. Commissioner of Correction ( 2015 )

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MATTHEW STEVEN JOHNSON v. COMMISSIONER
OF CORRECTION
(AC 34989)
Gruendel, Beach and Lavery, Js.
Argued October 8, 2014—officially released January 6, 2015
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
David B. Rozwaski, assigned counsel, for the appel-
lant (petitioner).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Erika L. Brookman, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
PER CURIAM. Following a grant of certification to
appeal by the habeas court, the petitioner, Matthew
Steven Johnson, appeals from the court’s judgment
denying his amended petition for a writ of habeas cor-
pus. In this appeal, the petitioner claims that the habeas
court: (1) erred in concluding that his trial counsel,
George Flores and James McKay, did not render ineffec-
tive assistance; and (2) abused its discretion by exclud-
ing from the habeas trial the testimony of a former juror
who had deliberated and joined in the verdict finding
him guilty. We disagree and, accordingly, affirm the
judgment of the habeas court.
The petitioner was charged with, and convicted of,
three counts of murder in violation of General Statutes
§ 53a-54a. State v. Johnson, 289 Conn. 437, 438, 958
A.2d 713 (2008), overruled on other grounds by State
v. Payne, 303 Conn. 538, 34 A.3d 370 (2012). His convic-
tions were upheld on direct appeal. Id., 439.
The following facts and procedural history are rele-
vant to our resolution of the petitioner’s appeal. During
a fifteen month period, the bodies of three female mur-
der victims separately were discovered in Hartford in
close proximity to one another. Id., 439–42. The victims’
bodies were discovered in similar states of undress. Id.
The victims all belonged to racial or ethnic minority
groups,1 were in their thirties, were drug users, had
arrest records for prostitution, and had died from blunt
force trauma to the head and neck. Id., 439–43. Criti-
cally, DNA2 matching the petitioner’s profile was found
on the bodies of all three victims. Id. The petitioner
was arrested and charged with all three murders. Id.,
444. Over the objection of the petitioner’s counsel, the
three murder charges were consolidated for trial. Id.,
444–45. Henry Lee, the state’s crime scene reconstruc-
tion expert, testified at the petitioner’s criminal trial
that, in his opinion, the murders were ‘‘serial killings,’’
as that term is defined in forensic science, because each
crime scene shared significant similarities, one of which
was the presence of the defendant’s DNA, and because
the murders were separated by a cooling off period.
Id., 445–48.
Additionally, during the evidence phase of the peti-
tioner’s criminal trial, a juror provided to the court a
confidential note expressing concern about his ability
to continue serving on the jury because, to his knowl-
edge, the only DNA database maintained in Connecticut
was reserved for sex offenders.3 Upon receipt of his
note, the court called the juror into the courtroom, and
instructed the juror that merely having one’s profile
in the state’s DNA database does not indicate a prior
criminal conviction. In response to the court’s instruc-
tion, as well as subsequent voir dire by the petitioner’s
trial counsel, the juror represented that his misunder-
standing had been corrected, and that he had not shared
his incorrect assumption with other jurors. The petition-
er’s trial attorneys stated that they were satisfied with
the juror’s responses, and, thus, they did not request
that he be excused. At the habeas trial, the court, New-
son, J., granted the motion in limine filed by the respon-
dent, the Commissioner of Correction, to preclude the
juror’s testimony over the petitioner’s objection. The
habeas court ultimately denied the petition for a writ
of habeas corpus, but granted the petition for certifica-
tion to appeal. This appeal followed.
I
The petitioner claims that the habeas court erred in
concluding that his trial attorneys were not ineffective
for (1) failing to object to certain testimony offered by
Lee, and (2) failing to question sufficiently and to seek
removal of the juror. We disagree.
We begin by setting forth our standard of review. ‘‘As
enunciated in Strickland v. Washington, [466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] . . . [a]
claim of ineffective assistance of counsel consists of
two components: a performance prong and a prejudice
prong. To satisfy the performance prong . . . the peti-
tioner must demonstrate that his attorney’s representa-
tion was not reasonably competent or within the range
of competence displayed by lawyers with ordinary train-
ing and skill in the criminal law. . . . To satisfy the
prejudice prong, a claimant must demonstrate that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different. . . . A court can find
against a petitioner, with respect to a claim of ineffec-
tive assistance of counsel, on either the performance
prong or the prejudice prong . . . .’’ (Citation omitted;
internal quotation marks omitted.) Ham v. Commis-
sioner of Correction, 301 Conn. 697, 703–704, 23 A.3d
682 (2011).
A
The petitioner first claims that the habeas court erred
in concluding that counsel’s performance was not defi-
cient when they failed to make a specific objection,
under § 7.3 of the Connecticut Code of Evidence,4 to
Lee’s characterization of the three homicides as ‘‘serial
killings’’ with the petitioner’s DNA as a common denom-
inator at the crime scenes. We are not persuaded.
The record confirms that trial counsel attempted to
limit and outright to preclude Lee’s testimony through
multiple avenues.5 ‘‘Competent representation is not to
be equated with perfection. The constitution guarantees
only a fair trial and a competent attorney; it does not
ensure that every conceivable constitutional claim will
be recognized and raised.’’ (Internal quotation marks
omitted.) White v. Commissioner of Correction, 145
Conn. App. 834, 840–41, 77 A.3d 832, cert. denied, 310
Conn. 947, 80 A.3d 906 (2013). In light of counsel’s
persistent attempts to prevent Lee’s testimony from
getting before the jury, or to limit such testimony, we
agree with the habeas court that counsel’s performance
was not rendered deficient merely because they did not
cite § 7.3 of the Connecticut Code of Evidence as an
additional ground for objection.6 Motions based on very
similar grounds had been rejected by the trial court.
B
The petitioner additionally claims that the habeas
court improperly determined that counsel’s assistance
was not ineffective in failing to question the juror ade-
quately and then seek his removal. We disagree.
The record is devoid of any implication that the juror
did not follow the court’s instruction that having a pro-
file in a DNA registry did not necessarily indicate a prior
criminal conviction. Moreover, the juror responded to
questioning by the court and defense counsel that his
misunderstanding had been corrected. ‘‘In the absence
of a showing that the jury failed or declined to follow the
court’s instructions, we presume that it heeded them.’’
State v. Reynolds, 264 Conn. 1, 131, 836 A.2d 224 (2003),
cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed.
2d 254 (2004). Consequently, the record supports the
habeas court’s conclusion that the petitioner was nei-
ther prejudiced, nor was provided deficient perfor-
mance, by his counsel’s failure to seek removal of
the juror.
II
Finally, the petitioner asserts that the habeas court
erred in granting the respondent’s motion in limine,
which precluded the juror from testifying at the habeas
trial.7 This claim is without merit.
In the present case, there is no allegation of juror
misconduct. The petitioner objected to the respondent’s
motion in limine on the ground that he sought to ques-
tion ‘‘whether [the juror] was able to follow the court’s
instruction after he raised the issue of the petitioner’s
inclusion in a sexual offender database.’’ The petitioner
essentially represented to the court that he wanted to
question the juror about the mental processes by which
the verdict was determined. Such an inquiry is imper-
missible under our law. See Connecticut Light & Power
Co. v. Gilmore, 289 Conn. 88, 106, 956 A.2d 1145 (2008)
(‘‘the rule that prohibits the examination of the jurors’
mental process excludes, as immaterial, evidence . . .
as to their own motives, beliefs, mistakes and mental
operations generally, in arriving at their verdict’’ [inter-
nal quotation marks omitted]); see also Practice Book
§ 16-34 (‘‘[u]pon an inquiry into the validity of a verdict,
no evidence shall be received to show the effect of any
statement, conduct, event or condition upon the mind
of a juror nor any evidence concerning mental pro-
cesses by which the verdict was determined’’). Conse-
quently, the habeas court did not abuse its discretion
in granting the respondent’s motion in limine.
The judgment is affirmed.
1
Two of the victims were Hispanic and one was African-American. See
State v. Johnson, supra, 289 Conn. 439–442.
2
‘‘DNA is the abbreviation for deoxyribonucleic acid.’’ State v. Morales,
232 Conn. 707, 713 n.8, 657 A.2d 585 (1995).
3
The note provided in relevant part: ‘‘I am writing to express my concern
regarding testimony we heard last week. In the course of testimony, a
witness testified to matching an anonymous DNA sample entry in a State
of Connecticut (official) database. To my knowledge, the only DNA database
regularly maintained and searched in the State of Connecticut is that of
convicted sexual offenders.
‘‘Given that this information has not been shared with the jury, I am
concerned that my knowledge of this database’s origin may be a problem.
It is not my intent to avoid this episode of jury duty, however, I do not want
to be a cause for a mistrial or some other dramatic outcome. I am writing
to seek further direction in this matter. . . .’’
4
Section 7.3 of the Connecticut Code of Evidence provides in relevant
part: ‘‘(a) General rule. Testimony in the form of an opinion is inadmissible
if it embraces an ultimate issue to be decided by the trier of fact, except
that, other than as provided in subsection (b), an expert witness may give
an opinion that embraces an ultimate issue where the trier of fact needs
expert assistance in deciding the issue. . . .’’
5
The petitioner’s trial counsel first unsuccessfully objected to the state’s
motion to consolidate all three cases. See State v. Johnson, supra, 289 Conn.
444–45. Next, counsel unsuccessfully moved for a court order requiring that
Lee provide a supplemental report with additional factual bases for his
classification of the three killings as ‘‘serial murders’’ to allow them to
respond properly to his testimony, or, in the alternative, to have Lee’s
testimony wholly excluded from trial. Subsequently, counsel filed a motion
in limine seeking to preclude Lee from characterizing the homicides as
‘‘serial killings.’’ That motion was denied as well. Finally, defense counsel
objected after Lee testified that the cases were ‘‘consistent with a serial
killer.’’ The court overruled that objection. See State v. Johnson, supra, 448.
6
We express no opinion as to whether Lee, in fact, did offer an opinion
as to an ultimate issue.
7
‘‘The applicable standard of review for evidentiary challenges is well
established. Unless an evidentiary ruling involves a clear misconception of
the law, the [t]rial court has broad discretion in ruling on the admissibility
. . . of evidence. . . . The trial court’s ruling on evidentiary matters will
be overturned only upon a showing of a clear abuse of the court’s discretion.
. . . We will make every reasonable presumption in favor of upholding the
trial court’s ruling . . . .’’ (Internal quotation marks omitted.) Crawford v.
Commissioner of Correction, 285 Conn. 585, 602–603, 940 A.2d 789 (2008).