Johnson v. Commissioner of Correction

652 A.2d 1050, 36 Conn. App. 695, 1995 Conn. App. LEXIS 46
Connecticut Appellate Court·Decided January 31, 1995·No. 12515·Published·Cited by 113 cases

Opinion

Schaller, J.

The respondent appeals from the habeas court’s judgment granting relief to the petitioner on his writ of habeas corpus.1 The respondent challenges the habeas court’s conclusion that the petitioner’s counsel rendered ineffective assistance at trial and at the plea bargaining and plea stages in violation of the petitioner’s rights guaranteed by the sixth2 and fourteenth amendments3 to the United States constitution and by article first, § 8, of the Connecticut constitution.4 Specifically, the respondent claims that the habeas court improperly found that counsel rendered ineffective assistance (1) by failing to conduct an adequate pretrial investigation and permitting the petitioner to testify without being aware of his prior statements in the hospital record and in the police report, and (2) by failing to advise the petitioner as to the effect of sentence credits and the option of an Alford plea. We reverse the decision of the habeas court.

The following facts are necessary for resolution of this appeal. The defendant was convicted, after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l),5 6and [697] one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (l).6 He received a total effective sentence of twelve years. The convictions were affirmed on appeal to this court. See State v. Johnson, 26 Conn. App. 433, 602 A.2d 36, cert. denied, 221 Conn. 916, 603 A.2d 747 (1992).

The facts underlying the petitioner’s convictions were set forth in State v. Johnson, supra, 26 Conn. App. 434-35: “The defendant was the boyfriend of the victim’s cousin and he and the victim had known one another for approximately four years. On March 23, 1990, the victim had misplaced the key to her apartment. In order to gain entry to the apartment, neighbors helped her break down the door. The defendant arrived shortly thereafter. At his suggestion, the door was then nailed shut. The only remaining access to the apartment was through the rear door. The defendant then sexually assaulted the victim at knife point. During the course of the attack both of the victim’s hands were severely cut with the knife.

“After helping the victim wash the blood from her hands, the defendant left the apartment. He returned shortly thereafter to retrieve his knife. The victim, although fearful, admitted the defendant because he blocked her only means of escape from the apartment. He retrieved his knife and left. The victim waited fifteen minutes and then wrapped her hands in a towel and went to her sister’s nearby apartment to call the police. The victim was taken to Yale-New Haven Hospital, where she underwent surgery on her hands and a gynecological examination. The samples obtained during the exam were taken to the state laboratory for testing.”

[698] The petitioner subsequently brought a petition for a writ of habeas corpus alleging that he was denied the effective assistance of counsel. On March 3, 1993, a hearing was held before the habeas court on the amended petition, and on May 18, 1993, the court granted the petition.7 This appeal followed.

I

The respondent first claims that the habeas court improperly found that the petitioner was denied effective assistance of counsel because counsel failed to conduct an adequate pretrial investigation and permitted the petitioner to testify without being made aware of his prior statements to the police and hospital personnel. We agree with the respondent.

With respect to this claim, the habeas court found the following facts. The petitioner took the stand at his trial. He testified that he was in the victim’s apartment on the night in question, that the victim pulled a knife on him and that both of them suffered cuts when they struggled with the knife. He further testified that he went to his girlfriend’s apartment after the struggle, and she told him to go to the hospital because of his wound. He went to Yale-New Haven Hospital.

The habeas court stated that, on cross-examination, the state’s attorney had “very effectively” impeached the petitioner’s direct testimony through the use of the hospital record, which contained a prior inconsistent statement by the petitioner. The state’s attorney asked the petitioner if he had told medical personnel that the victim was his girlfriend. The petitioner denied this. The hospital record, which was later admitted into evidence, stated, however, that the petitioner had told medical personnel that it was his girlfriend who had [699] cut his hand with a knife. The state’s attorney further impeached the petitioner through the testimony of a police officer who had interviewed the petitioner at the hospital on the night of the incident in question. The police officer testified that the petitioner had told him that while he was “making out” with his girlfriend, she went “batty” and cut him with a knife. The habeas court stated that “[t]his statement was apparently contained in the police report of the incident.” On redirect examination, no effort was made to explain the petitioner’s prior inconsistent statements.

The habeas court also found that the petitioner’s counsel had “failed to obtain a copy of the petitioner’s hospital record prior to trial. She admitted the same when the state’s attorney subpoenaed the record to court, stating that she had been unsuccessful in her attempts to obtain the hospital record. The petitioner’s hospital record was under the name ‘Michael Moye.’ ” The habeas court further found that trial counsel did not remember whether she had advised the petitioner to testify. In a footnote to the memorandum of decision, the court stated that “[tjhere is some indication that [the petitioner’s counsel] did have access to the hospital record during the trial and before the petitioner took the stand. Apparently, however, she did not notice the statement which was later used to impeach the petitioner.” The court emphasized that “credibility was the issue at this trial,” and that trial counsel “remembered very little of the detail of her representation of the petitioner.”

On the basis of those findings, the habeas court concluded that “[i]n permitting the petitioner to take the stand without being aware of his prior statements to the hospital and to the police, trial counsel’s performance was below the range of competence of lawyers with ordinary training and skill in criminal law,” and [700] that “[t]he deficiency in trial counsel’s performance clearly prejudiced the petitioner’s defense.”

Free access — add to your briefcase to read the full text and ask questions with AI

Johnson v. Commissioner of Correction, 652 A.2d 1050, 36 Conn. App. 695, 1995 Conn. App. LEXIS 46 (Colo. Ct. App. 1995).

652 A.2d 1050 (Johnson v. Commissioner of Correction) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Franko v. Commissioner of Correction
139 A.3d 798 (Connecticut Appellate Court, 2016)
Moore v. Commissioner of Correction
988 A.2d 881 (Connecticut Appellate Court, 2010)
McColl v. Commissioner of Correction
922 A.2d 180 (Connecticut Appellate Court, 2007)
Mozell v. Commissioner of Correction
867 A.2d 51 (Connecticut Appellate Court, 2005)
Bewry v. Warden, No. Cv93-1665 (Oct. 2, 2001)
2001 Conn. Super. Ct. 13496 (Connecticut Superior Court, 2001)
Figueroa v. Warden, No. Cv93-1726 (Aug. 2, 2001)
2001 Conn. Super. Ct. 10451 (Connecticut Superior Court, 2001)
Payne v. Commissioner of Correction
772 A.2d 630 (Connecticut Appellate Court, 2001)
Austin v. Commissioner of Correction
764 A.2d 1288 (Connecticut Appellate Court, 2001)
State v. Andrews
752 A.2d 49 (Supreme Court of Connecticut, 2000)
White v. Commissioner of Correction
752 A.2d 1159 (Connecticut Appellate Court, 2000)
Cosby v. Commissioner of Correction
748 A.2d 352 (Connecticut Appellate Court, 2000)
Morrison v. Commissioner of Correction
747 A.2d 1058 (Connecticut Appellate Court, 2000)
Silva v. Warden, No. Cv 97-404742 (Nov. 4, 1999)
1999 Conn. Super. Ct. 14416 (Connecticut Superior Court, 1999)
Tillman v. Commissioner of Correction
738 A.2d 208 (Connecticut Appellate Court, 1999)
Torrice v. Commissioner of Corrections, No. Cv90-949 (Jul. 26, 1999)
1999 Conn. Super. Ct. 9601 (Connecticut Superior Court, 1999)
Ghant v. Warden, State Prison, No. 93-0001670 (Jul. 9, 1999)
1999 Conn. Super. Ct. 9058 (Connecticut Superior Court, 1999)
Eaddy v. Commissioner of Correction, No. Cv97-0395826 S (Mar. 24, 1999)
1999 Conn. Super. Ct. 3446 (Connecticut Superior Court, 1999)
Jenkins v. Commissioner of Correction
726 A.2d 657 (Connecticut Appellate Court, 1999)
State v. Daniels
726 A.2d 520 (Supreme Court of Connecticut, 1999)
Rivera v. Warden, No. Cv 92 1520 S (Dec. 10, 1998)
1998 Conn. Super. Ct. 14135 (Connecticut Superior Court, 1998)