Eubanks v. Commissioner of Correction

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 DAVID EUBANKS v. COMMISSIONER
OF CORRECTION
(AC 36251)
Beach, Keller and West, Js.
Argued October 26, 2015—officially released June 7, 2016

(Appeal from Superior Court, judicial district of
Tolland, Kwak, J.)
Deren Manasevit, assigned counsel, for the appel-
lant (petitioner).
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom, on the brief, were Michael
Dearington, state’s attorney, and David Clifton, assis-
tant state’s attorney, for the appellee (respondent).
 Opinion

WEST, J. The petitioner, David Eubanks, appeals fol-
lowing the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his petition for a writ of habeas corpus, in which he
challenged his conviction for possession of a weapon
without a permit in a motor vehicle in violation of Gen-
eral Statutes (Rev. to 2008) § 29-38.1 The petitioner
claims that the habeas court abused its discretion in
denying his petition for certification to appeal and in
denying his petition for a writ of habeas corpus claiming
ineffective assistance of trial counsel. The respondent,
the Commissioner of Correction, disagrees. We agree
with the petitioner, and therefore, reverse the judgment
of the habeas court.
The following facts were set forth by this court in
the petitioner’s direct appeal. State v. Eubanks, 133
Conn. App. 105, 106–10, 33 A.3d 876, cert. denied, 304
Conn. 902, 37 A.3d 745 (2012). ‘‘At approximately 6 a.m.
on November 22, 2008, Bennett Hines, an officer with
the New Haven police department, was sitting in his
patrol car. At that hour in the morning there was no
vehicle traffic and no cars were parked by the side of
the street. Hines heard several gunshots come from the
New Haven green in the vicinity of Elm and College
Streets, which location was approximately two blocks
from where he was parked. When Hines looked in the
general direction from which he heard the gunshots
fired, he saw a dark colored sport utility vehicle (SUV)
turn left from Elm Street onto Church Street. As the
SUV turned onto Wall Street, Hines noticed that the
tires of the SUV were ‘screeching. . . .’ Based on the
speed at which the SUV was traveling and the way it
turned onto Wall Street, Hines believed that it was likely
that the occupants of the vehicle had discharged the
gunshots; as a result he began to follow the SUV. Hines
reported the incident to dispatch and activated his cruis-
er’s lights and sirens.
‘‘The SUV traveled through the city and onto the
entrance ramp to Interstate 91; it ‘would not stop.’ Hines
observed a ‘dark colored item come out of the passenger
side window’ and ‘a silver colored item come out of
the driver side window.’ Based on his training and expe-
rience, Hines believed the items thrown out of the win-
dows to be guns. Officer Edward Dunford, who was
following behind Hines’ cruiser, also saw ‘something
dark colored come flying out of the passenger side of
the vehicle. . . .’
‘‘Before entering the highway, the SUV stopped. Hines
drew his gun and went to the driver’s side of the car.
Dunford drew his gun and went, with other officers, to
the passenger side of the vehicle. Tanika McCotter was
operating the SUV, the [petitioner], her boyfriend, was
in the front passenger seat and her brother, Jayeron
McCotter, was in the rear passenger seat. The [peti-
tioner] initially disobeyed commands from the officers,
stepped over the guardrail and ‘look[ed] around him.’
The [petitioner] eventually complied with orders to lie
on the ground and was arrested. Tanika McCotter and
Jayeron McCotter also were arrested. The officers then
searched the area where they believed the items were
tossed from the windows of the SUV. Using a thermal
imager, Sergeant Peter Moller found a semiautomatic
.45 caliber black Ruger handgun, with the safety off
and its magazine empty, lying on top of a pile of leaves.
No other weapon was found.
‘‘Detective Joshua Armistead investigated the area of
College and Elm Streets where the gunshots reportedly
had been fired. Armistead found eight .40 caliber shell
casings spread out over several car lengths. He stated
that the casings ‘looked like they were fired from some-
body moving on Elm Street.’ Lieutenant Joseph Rai-
none, a firearms examiner with the Waterbury police
department, determined that the Ruger handgun was
operable. He also determined that although the eight
shell casings had similar class characteristics, he was
unable to conclude whether they had been fired from
the same firearm. He was able to determine, however,
that the shell casings did not come from the Ruger
handgun.2
‘‘The [petitioner] was charged with one count of car-
rying a pistol or revolver without a permit in violation
of General Statutes § 29-35 (a), one count of criminal
possession of a pistol or revolver in violation of General
Statutes § 53a-217c (a) (1), one count of criminal pos-
session of a firearm in violation of General Statutes
§ 53a-217 (a) (1), one count of unlawful possession of
a weapon in a motor vehicle in violation of § 29-38 and
one count of criminal violation of a protective order in
violation of [General Statutes] § 53a-223 (a).
‘‘At trial, the state sought to introduce the testimony
of Tanika McCotter from a prior court hearing3 on the
ground that she was unavailable to testify at trial. The
[petitioner] objected to the admission of the prior testi-
mony on the ground that the state did not exercise due
diligence in attempting to locate her and that he did
not have the opportunity at the prior hearing effectively
and adequately to cross-examine the witness. The court
determined that the state had proved that Tanika
McCotter was unavailable to testify and overruled the
[petitioner’s] objections to the admission of her prior
testimony. Tanika McCotter’s prior testimony was
redacted, as agreed upon by the parties, and was submit-
ted to the jury in transcript form as a full exhibit. Its
admissibility is not an issue on appeal.
‘‘In her Stevens testimony, Tanika McCotter testified
to the following. She was driving the SUV at the time
in question while the [petitioner] was seated in the
passenger seat and Jayeron McCotter, her brother, was
seated in the back passenger seat. She heard gunshots,
‘kind of freaked out’ and continued to drive until she
noticed, as she was about to drive onto the highway,
police cruisers following the SUV. She was arrested and
taken to a police station. She stated that although she
heard gunshots, she never saw a gun on the day in
question. While at the police station, she told the detec-
tives, in a recorded statement, that both of the passen-
gers—Jayeron McCotter and the [petitioner]—were
shooting guns from the SUV. She initially told the police
that she did not see a gun, but that after ‘they pressured
for like ever’ and told her she could lose her children
if she did not cooperate, she told them that both passen-
gers had fired guns. In response to a question of whether
her statement to the police was truthful, she testified:
‘No, I don’t know where the shots came from.’ She
later stated, however, that she was being truthful to the
police officers during the interview.
‘‘At the conclusion of the jury trial, the [petitioner]
was found guilty of unlawful possession of a weapon in
a motor vehicle and of criminal violation of a protective
order. He was found not guilty on all other counts. The
court imposed a total effective sentence of seven years
imprisonment.’’ (Footnotes in original) Id.
Following the petitioner’s conviction and this court’s
affirmance of that conviction on direct appeal, he filed
a petition for a writ of habeas corpus. In his amended
petition for a writ of habeas corpus, the petitioner
claimed that his trial counsel, Walter Bansley IV, ren-
dered ineffective assistance in failing to specifically
object on hearsay grounds to the substantive use of the
portions of Tanika McCotter’s Stevens testimony during
which she was impeached with her statement to police
and that, but for his trial counsel’s ineffectiveness, there
was a reasonable probability that the result of petition-
er’s trial would have been different.4
Following a habeas trial, the court issued an oral
decision denying the petition, and concluding that the
petitioner’s trial counsel did not render ineffective assis-
tance. The court concluded that the petitioner had failed
to prove that his trial counsel’s representation was defi-
cient or that he suffered any prejudice from his trial
counsel’s performance. In reaching its conclusion, the
court made several relevant findings of fact, including,
inter alia, the following: ‘‘[the petitioner’s trial counsel]
also adequately objected to [Tanika] McCotter’s testi-
mony from the Stevens hearing being introduced into
evidence, which the trial court overruled; but at any
rate, he was able to redact portions of the testimony
that may have been prejudicial to the Petitioner.’’ The
petitioner filed a petition for certification to appeal from
the habeas court’s denial of his petition for a writ of
habeas corpus, which the habeas court denied. This
appeal followed.
On direct appeal, this court determined that ‘‘[o]ur
review of the record indicates that the defendant never
specifically objected to the admission of Tanika McCot-
ter’s Stevens testimony—including her statements to
the police—as substantive evidence . . . .’’ State v.
Eubanks, supra, 133 Conn. App. 111. Given the petition-
er’s belief that the habeas court’s finding that the peti-
tioner’s trial counsel ‘‘adequately objected’’ to
McCotter’s Stevens testimony appeared to be in conflict
with this court’s determination that he ‘‘never specifi-
cally objected’’ to McCotter’s Stevens testimony as sub-
stantive evidence, the petitioner filed a motion for
articulation requesting the habeas court to articulate
several bases for its conclusion that the petitioner’s
attorney rendered constitutionally adequate represen-
tation at the petitioner’s criminal trial.5 The habeas
court denied the petitioner’s motion for articulation,
and this court granted the petitioner’s motion for review
in part, ordering the habeas court to address the
requests regarding whether its finding constituted a
finding that his trial counsel objected to the Stevens
testimony and whether it constituted a finding that his
trial counsel’s failure to object to the Stevens testimony
was reasonable. In response, the habeas court’s articu-
lation stated: ‘‘(1) [the petitioner’s trial counsel]
objected to the Stevens testimony being introduced into
evidence. He did not object on hearsay grounds. The
finding that [the petitioner’s trial counsel] adequately
objected is premised factually on the presumption that
counsel performed effectively, which the petitioner did
not affirmatively rebut with evidence. (2) This court
cannot find that [the petitioner’s trial counsel’s] failure
to object to the Stevens testimony on hearsay grounds
was unreasonable, as no evidence whatsoever was pre-
sented as to this matter. Such a finding would be errone-
ous because it lacks sufficient evidentiary basis.’’
First, we set forth ‘‘the applicable standard of review
and procedural hurdles that the petitioner must sur-
mount to obtain appellate review of the merits of a
habeas court’s denial of the habeas petition following
denial of certification to appeal. In Simms v. Warden,
229 Conn. 178, 187, 640 A.2d 601 (1994), [our Supreme
Court] concluded that . . . [General Statutes] § 52-470
(b) prevents a reviewing court from hearing the merits
of a habeas appeal following the denial of certification
to appeal unless the petitioner establishes that the
denial of certification constituted an abuse of discretion
by the habeas court. In Simms v. Warden, 230 Conn.
608, 615–16, 646 A.2d 126 (1994), [our Supreme Court]
incorporated the factors adopted by the United States
Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431–32,
111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as the appro-
priate standard for determining whether the habeas
court abused its discretion in denying certification to
appeal. This standard requires the petitioner to demon-
strate that the issues 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. . . . A
petitioner who establishes an abuse of discretion
through one of the factors listed above must then dem-
onstrate that the judgment of the habeas court should
be reversed on its merits. . . . In determining whether
the habeas court abused its discretion in denying the
petitioner’s request for certification, we necessarily
must consider the merits of the petitioner’s underlying
claims to determine whether the habeas court reason-
ably determined that the petitioner’s appeal was frivo-
lous.’’ (Emphasis in original; internal quotation marks
omitted.) Atkins v. Commissioner of Correction, 158
Conn. App. 669, 674–75, 120 A.3d 513, cert. denied, 319
Conn. 932, 125 A.3d 206 (2015).
Moreover, ‘‘[when] the legal conclusions of the court
are challenged, [the reviewing court] must determine
whether they are legally and logically correct . . . and
whether they find support in the facts that appear in
the record. . . . To the extent that factual findings are
challenged, this court cannot disturb the underlying
facts found by the habeas court unless they are clearly
erroneous. . . . [A] finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.’’ (Internal quotation marks omitted.)
Anderson v. Commissioner of Correction, 114 Conn.
App. 778, 784, 971 A.2d 766, cert. denied, 293 Conn. 915,
979 A.2d 488 (2009). For the reasons we set forth, we
conclude that the habeas court abused its discretion
by denying certification to appeal the petitioner’s claim.
‘‘To decide if the habeas court abused its discretion
by denying certification to appeal, we must look to the
merits of the underlying claim of ineffective assistance
of counsel. [I]t is well established that [a] criminal
defendant is constitutionally entitled to adequate and
effective assistance of counsel at all critical stages of
criminal proceedings. . . . This right arises under the
sixth and fourteenth amendments to the United States
constitution and article first, § 8, of the Connecticut
constitution. . . . As enunciated in [Strickland], this
court has stated: It is axiomatic that the right to counsel
is the right to the effective assistance of counsel. . . .
‘‘To establish ineffective assistance of counsel under
the Strickland standard, the claim must be supported
by evidence establishing that (1) counsel’s representa-
tion 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.
. . . Because both prongs of Strickland must be dem-
onstrated for the petitioner to prevail, failure to prove
either prong is fatal to an ineffective assistance claim.’’
(Citations omitted; internal quotation marks omitted.)
Taft v. Commissioner of Correction, 159 Conn. App.
537, 544–45, 124 A.3d 1, cert. denied, 320 Conn. 910,
128 A.3d 954 (2015).
The petitioner claims that the habeas court abused
its discretion in denying his petition for certification to
appeal because the court improperly denied his claim
of ineffective assistance of trial counsel.6 In its articula-
tion, the habeas court concluded that the petitioner did
not present evidence to rebut the presumption that his
trial counsel rendered effective assistance with respect
to the petitioner’s claim that his trial counsel failed to
object on hearsay grounds to the substantive use of
portions of Tanika McCotter’s Stevens testimony during
which she was impeached with her statement to the
police. With respect to the first prong of Strickland,
the petitioner argues that the habeas court erred in
concluding that counsel’s performance was not defi-
cient because there was sufficient evidence presented
during the habeas trial to rebut the presumption that
his trial counsel exercised reasonable professional judg-
ment. We agree, and therefore, we conclude that the
habeas court improperly denied the petitioner’s ineffec-
tive assistance claim against his trial counsel.
‘‘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 evalu-
ation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reason-
able professional assistance; that is, the [petitioner]
must overcome the presumption that, under the circum-
stances, the challenged action might be considered
sound trial strategy. . . . [C]ounsel is strongly pre-
sumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable
professional judgment.’’ (Internal quotation marks
omitted.) Antonio A. v. Commissioner of Correction,
148 Conn. App. 825, 829–30, 87 A.3d 600, cert. denied,
312 Conn. 901, 91 A.3d 907 (2014). Nevertheless, that
presumption may be overcome by a showing that no
conceivable tactical justification for counsel’s actions
existed. See Holloway v. Commissioner of Correction,
145 Conn. App. 353, 367, 77 A.3d 777 (2013).
On direct examination at the habeas trial, the petition-
er’s trial counsel was asked ‘‘why did you allow this
testimony to come in as a substantive evidence,’’ to
which he stated, ‘‘I didn’t allow it to come in’’ and ‘‘[i]n
fact, I objected to it coming in and the court ruled
against me and allowed it to come in.’’7 During cross-
examination, he stated ‘‘I was definitely trying to keep
out the transcripts from the Stevens hearing.’’ Further-
more, the petitioner’s trial counsel acknowledged that
it was his recollection that he ‘‘identified everything
[he] felt [he] could object to and brought it to [the
prosecutor].’’ Based on his testimony at the habeas trial,
it is clear that his intention was to keep the Stevens
testimony transcripts from being admitted into evi-
dence by objecting on any grounds available. The peti-
tioner’s trial counsel did not indicate that he made a
reasonable tactical judgment to refrain from objecting
based on hearsay grounds, nor did he offer a reasonable
professional judgment that an objection based on hear-
say grounds would not have succeeded. See People v.
Fillyaw, 409 Ill. App. 3d 302, 315, 948 N.E.2d 1116 (2011)
(‘‘[w]e hold that counsel’s apparent unfamiliarity with
the law and failure to object on the proper grounds to
the improper admission of [a witness’ written statement
to police] was unprofessional . . . and his perfor-
mance thus meets the first prong of the Strickland
standard’’ [citation omitted]).
When Tanika McCotter testified at the Stevens hear-
ing, her prior statement to police was not admitted
as substantive evidence, but rather was marked for
identification and used to impeach her testimony. At
the petitioner’s criminal trial, Tanika McCotter could
not be found to testify, so the transcript of her Stevens
testimony was hearsay that was admissible as former
testimony under § 8-6 (1) of the Connecticut Code of
Evidence.8 The references within the transcripts of her
Stevens testimony to her prior inconsistent statement
to police, however, constituted inadmissible hearsay
within hearsay pursuant to both §§ 8-5 and 8-7 of the
Connecticut Code of Evidence absent the applicability
of some other exception to the hearsay exclusion.9 In
State v. Williams, 231 Conn. 235, 249, 645 A.2d 999
(1994), overruled on other grounds by State v. Murray,
254 Conn. 472, 487, 757 A.2d 578 (2000) (en banc), our
Supreme Court held that ‘‘[a]lthough double hearsay is
admissible if each part is independently admissible, the
prior inconsistent statement at issue here was not inde-
pendently admissible for substantive purposes because
the witness did not testify at trial.’’ Similar to the facts
in Williams, here, Tanika McCotter did not testify at
the criminal trial, and therefore, the references to her
prior statement to police included in the transcript of
her Stevens testimony were not admissible as substan-
tive evidence. Id. In State v. Atkins, 57 Conn. App. 248,
256–57, 748 A.2d 343, cert. denied, 253 Conn. 916, 754
A.2d 164 (2000), this court affirmed the inclusion of a
Whelan10 statement within a witness’ probable cause
testimony that was read to the jury during the criminal
trial, but only for the purpose of impeachment of that
witness’ probable cause testimony and not as substan-
tive evidence.
The respondent argues that the challenged portions
of Tanika McCotter’s Stevens testimony, during which
she was impeached with her statement to police, were
admissible. We do not agree. As we have previously
stated, those portions of her testimony were inadmissi-
ble as substantive evidence. The respondent asserts that
those portions of Tanika McCotter’s Stevens testimony
could have been admitted as substantive evidence
under the residual exception pursuant to § 8-9 of the
Code of Evidence.11 The portions of her Stevens testi-
mony that the respondent argues were admissible were
comprised of her impeachment testimony, and thus
those portions lack the ‘‘equivalent guarantees of trust-
worthiness and reliability’’ as required by § 8-9.12 With
respect to the respondent’s argument that those por-
tions of Tanika McCotter’s Stevens testimony would
have been admissible for the nonhearsay purpose of
‘‘explaining her testimony that what she told police was
true, by identifying what it was she told police that
she was now affirming as true,’’ it is unclear from the
testimony which statement she is affirming as true, as
she testified that she initially told the police there was
no gun and the police then pressured her into stating
that both passengers in the car possessed guns. Further-
more, even if those portions of her testimony were
admissible to provide context, they would only be
admissible as nonsubstantive evidence, and the jury
would be advised that they should not be used for the
truth of the assertion that she saw the defendant shoot
a gun. See State v. Paul B., 143 Conn. App. 691, 708,
710–11, 70 A.3d 1123 (2013), aff’d, 315 Conn. 19, 105
A.3d 130 (2014).
The failure of the petitioner’s trial counsel to object to
the references in Tanika McCotter’s Stevens testimony
concerning her statement to police indicates that he
was unaware of the fact that the references presented
an objectionable hearsay issue. He did not indicate in
his testimony before the habeas court that he refrained
from objecting based on trial strategy. Rather, he testi-
fied that his strategy was to object and to prevent Tan-
ika McCotter’s Stevens testimony from being admitted
into evidence for substantive purposes. Given this strat-
egy and the fact that Tanika McCotter’s Stevens testi-
mony contained inadmissible hearsay, his failure to
identify the second level of hearsay within Tanika
McCotter’s Stevens testimony and subsequent failure
to object to its use as substantive evidence was not
‘‘reasonably competent or within the range of compe-
tence displayed by lawyers with ordinary training and
skill in criminal law.’’ (Internal quotation marks omit-
ted.) Ledbetter v. Commissioner of Correction, 275
Conn. 451, 460, 880 A.2d 160 (2005), cert. denied sub
nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S. Ct. 1368,
164 L. Ed. 2d 77 (2006). Furthermore, ‘‘[a]n attorney’s
ignorance of a point of law that is fundamental to his
case combined with his failure to perform basic
research on that point is a quintessential example of
unreasonable performance under Strickland.’’ Hinton
v. Alabama, U.S. , 134 S. Ct. 1081, 1089, 188 L. Ed.
2d 1 (2014). Moreover, a reasonably competent attorney
would have known, if his or her strategy had been to
object on any ground available, that objecting based on
hearsay was valid and likely to have resulted in the
portions of Tanika McCotter’s Stevens testimony refer-
encing her prior statement to police not being admitted
for substantive purposes.
This court, in the past, has determined that certifica-
tion to appeal should have been granted when counsel’s
actions appeared to conflict with what might generally
be considered effective representation even though
explicitly tactical or strategic. See Gibson v. Commis-
sioner of Correction, 118 Conn. App. 863, 872, 986 A.2d
303 (‘‘[b]ecause this question regarding induced error
versus sound trial strategy deserved encouragement to
proceed further, the petitioner’s petition for certifica-
tion should have been granted’’), cert. denied, 295 Conn.
919, 991 A.2d 565 (2010). In Robinson v. Commissioner
of Correction, 62 Conn. App. 429, 771 A.2d 952, cert.
denied, 257 Conn. 902, 777 A.2d 194 (2001), this court
concluded that the habeas court should have granted
the petition for certification to appeal where trial coun-
sel had failed to file a motion to have the petitioner
treated as a youthful offender where it was clear that
the petitioner met all of the statutory requirements of
eligibility for the program. This court concluded that
the petitioner’s trial counsel was not ineffective because
it was evident from his testimony that he explored the
program and he found that the court would likely not
grant eligibility, and therefore decided not to file such
a motion. Id., 435. Nonetheless, this court still con-
cluded that ‘‘[w]hether counsel should have applied
for youthful offender treatment was an issue debatable
among reasonable jurists’’ and that the petition for certi-
fication should have been granted. Id.
In the present case, the petitioner’s trial counsel did
not assert that he actively chose not to object on hearsay
grounds as part of a trial strategy, but rather testified
at the habeas trial that ‘‘[he] was definitely trying to
keep out the transcripts from the Stevens hearing.’’ Fur-
thermore, he affirmed that he recalls identifying all
parts of the testimony to which he could object to
when working on redacting the transcripts with the
prosecutor, however, the redactions did not address
the references within Tanika McCotter’s Stevens testi-
mony to her statement to police. Therefore, because
failing to object to the admission of those references
in the Stevens testimony as substantive evidence
appears to conflict with what would be considered
effective representation, coupled with the fact that his
actions were not part of a trial strategy, we conclude
that the failure of the petitioner’s trial counsel to object
to the substantive use of those references in Tanika
McCotter’s Stevens testimony, under the facts of this
case, amounted to deficient performance.
 Having concluded that Strickland’s performance
prong is satisfied, we next turn to the question of
whether the petitioner was prejudiced by his trial coun-
sel’s failure to object. We conclude that the court
improperly concluded that the petitioner failed to dem-
onstrate that he was prejudiced as a result of his trial
counsel’s failure to object to the substantive use of
those portions of Tanika McCotter’s Stevens testimony
during which she was impeached with her statement
to police.
In order to prove prejudice, a petitioner ‘‘must show
that there is a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the
outcome.’’ Strickland v. Washington, supra, 466 U.S.
694. ‘‘In a habeas corpus proceeding, 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.) Crawford v. Commissioner of Correction,
285 Conn. 585, 599, 940 A.2d 789 (2008).
In reviewing the merits of an ineffective assistance
of counsel claim, ‘‘[t]he habeas court is afforded broad
discretion in making its factual findings, and those find-
ings will not be disturbed unless they are clearly errone-
ous. . . . Historical facts constitute a recital of
external events and the credibility of their narrators.
. . . Accordingly, [t]he habeas judge, as the trier of
[fact], is the sole arbiter of the credibility of witnesses
and the weight to be given to their testimony. . . . The
application of the habeas court’s factual findings to the
pertinent legal standard, however, presents a mixed
question of law and fact, which is subject to plenary
review.’’ (Citations omitted; internal quotation marks
omitted.) Gaines v. Commissioner of Correction, 306
Conn. 664, 677, 51 A.3d 948 (2012).
On direct appeal, this court stated: ‘‘The jury was
free to believe the portion of Tanika McCotter’s Stevens
testimony in which she acknowledged telling the police
that both of the passengers in the SUV were firing guns.
. . . Her testimony would permit a reasonable jury to
conclude that, combined with the corroborating testi-
mony of police officers regarding gunshots fired, the
location and direction of the SUV and the spent .40
caliber shell casings, the defendant was in actual pos-
session of a weapon in a motor vehicle on the day in
question. In sum, when all the corroborating evidence is
viewed in light of Tanika McCotter’s Stevens testimony,
there was sufficient evidence from which the jury rea-
sonably could have concluded that the defendant was
in actual possession of a gun in a motor vehicle on the
day in question.’’ (Citations omitted; footnote omitted.)
State v. Eubanks, supra, 133 Conn. App. 114–15.
 Without that portion of Tanika McCotter’s Stevens
testimony, there was very little evidence to establish
that the petitioner was in actual possession of a gun in
a motor vehicle. The petitioner’s mere presence in the
SUV was an insufficient basis for an inference that he
possessed a gun in a motor vehicle. See State v. Watson,
165 Conn. 577, 596, 345 A.2d 532 (1973) (‘‘[i]t cannot
be logically and reasonably presumed that an occupant
of a motor vehicle knew of the presence of an unregis-
tered weapon in a vehicle simply on the fact that he
was an occupant’’), cert. denied, 416 U.S. 960, 94 S. Ct.
1977, 40 L. Ed. 2d 311 (1974). In State v. Gerardi, 237
Conn. 348, 353–54, 677 A.2d 937 (1996), shell casings
were found inside the vehicle behind the defendant’s
seat which were determined to have come from the
machine gun found along the route of pursuit of the
vehicle by the police. Although the defendant in Gerardi
was originally convicted of possession of a machine
gun for an aggressive and offensive purpose in violation
of General Statutes (Rev. to 1993) § 53-202 (c),13 he was
found not guilty of knowingly having a weapon in a
motor vehicle in violation of § 29-38. Id., 352. In the
present case, there was no evidence found inside the
SUV, and the spent .40 caliber shell casings that were
recovered did not match the .45 caliber black Ruger
handgun that was found by the pursuing police officers
who testified they believed it to be one of the objects
they had observed being thrown from the vehicle during
the pursuit. Therefore, but for the failure of the petition-
er’s trial counsel to object to the substantive use of
those portions of Tanika McCotter’s Stevens testimony
about her prior statement to police, there is a reason-
able probability that the result of the proceeding would
have been different. Strickland v. Washington, supra,
466 U.S. 694. Thus, the failure of the petitioner’s trial
counsel to object to the admission of Tanika McCotter’s
Stevens testimony on hearsay grounds prejudiced the
petitioner because when the corroborating evidence is
viewed in the absence of the substantive use of that
testimony, there is very little evidence to support the
petitioner’s conviction. Accordingly, we conclude that
the habeas court’s conclusion that the petitioner was
not prejudiced by the failure to object to the admission
of Tanika McCotter’s Stevens testimony on hearsay
grounds is not legally and logically correct as it is not
supported by the facts that appear in the record.
The petitioner has successfully demonstrated that the
result of his ineffective assistance claim involves issues
that are debatable among jurists of reason, that a court
could resolve the issue in a different manner, and that
it presents a question adequate to deserve encourage-
ment to proceed further. Accordingly, we conclude that
the habeas court abused its discretion in denying certifi-
cation to appeal. We further conclude that the court
erred in denying the petitioner’s claim of ineffective
assistance of counsel regarding his trial counsel’s fail-
ure to object to the substantive use of Tanika McCotter’s
Stevens testimony.
The judgment is reversed only as to the petitioner’s
claim of ineffective assistance of trial counsel for failure
to object to the substantive use of portions of Tanika
McCotter’s Stevens testimony during which she was
impeached with her statement to police, and the case
is remanded to the habeas court with direction to render
judgment granting the petition for a writ of habeas
corpus as to this claim and to order a new trial for
the petitioner.
In this opinion the other judges concurred.
1
General Statutes (Rev. to 2008) § 29-38 (a) provides in relevant part:
‘‘Any person who knowingly has, in any vehicle owned, operated or occupied
by such person, any weapon, any pistol or revolver for which a proper
permit has not been issued as provided in section 29-28 . . . shall be fined
not more than one thousand dollars or imprisoned not more than five years
or both, and the presence of any such weapon, pistol or revolver, or machine
gun in any vehicle shall be prima facie evidence of a violation of this section
by the owner, operator and each occupant thereof. . . .’’ Hereinafter, unless
otherwise indicated, all references to § 29-38 in this opinion are to the 2008
revision of the statute.
2
‘‘Rainone testified that although there are methods through which .40
caliber bullets can be fired in a .45 caliber gun, in this particular case that
did not occur.’’ State v. Eubanks, supra, 133 Conn. App. 108 n.1
3
‘‘The prior hearing was held pursuant to State v. Stevens, 278 Conn. 1,
895 A.2d 771 (2006), for purposes of determining whether the [petitioner]
had violated the conditions of his plea agreement on prior charges, and
occurred on multiple days. For clarity, we refer to [Tanika] McCotter’s prior
testimony as her ‘Stevens testimony.’ ’’ State v. Eubanks, supra, 133 Conn.
App. 108 n.2.
4
The amended petition for a writ of habeas corpus enumerated multiple
deficiencies, however, in this appeal, the petitioner is only challenging the
court’s ruling on his trial counsel’s failure to object on hearsay grounds to
the substantive use of the portions of Tanika McCotter’s Stevens testimony
during which she was impeached with her statement to police.
5
The petitioner requested the habeas court to articulate, inter alia,
‘‘whether its finding that [petitioner’s trial counsel] ‘adequately objected to
[Tanika] McCotter’s testimony from the Stevens hearing being introduced
into evidence’: (1) constitutes a finding that [the petitioner’s trial counsel]
did object to the Stevens testimony and the hearsay within the Stevens
testimony being admitted as substantive evidence, and, if so, the factual
basis for that finding; or (2) constitutes a finding that [the petitioner’s trial
counsel’s] failure to object to the Stevens testimony and the hearsay within
the Stevens testimony being admitted as substantive evidence was reason-
able, and, if so, the legal basis for that finding. . . .’’
6
The petitioner made an additional argument that certification to appeal
was improperly denied because the court’s reliance on Strickland’s presump-
tion of competent representation was unsound. Because we are reversing
the court’s decision on other grounds, we do not reach this argument.
7
The record reflects that the petitioner’s trial counsel objected to the
admission of the Stevens testimony on the ground that the state did not
exercise due diligence in attempting to locate her and that he did not have
the opportunity at the prior hearing effectively and adequately to cross-
examine the witness, however, he did not object based on hearsay grounds.
8
Section 8-6 of the Connecticut Code of Evidence provides in relevant
part: ‘‘The following are not excluded by the hearsay rule if the declarant
is unavailable as a witness:
‘‘(1) Former testimony. Testimony given as a witness at another hearing
of the same or a different proceeding, provided (A) the issues in the former
hearing are the same or substantially similar to those in the hearing in which
the testimony is being offered, and (B) the party against whom the testimony
is now offered had an opportunity to develop the testimony in the former
hearing. . . .’’
9
Section 8-5 of the Connecticut Code of Evidence provides in relevant
part: ‘‘The following are not excluded by the hearsay rule, provided the
declarant is available for cross-examination at trial:
‘‘(1) Prior inconsistent statement. A prior inconsistent statement of a
witness, provided (A) the statement is in writing or otherwise recorded by
audiotape, videotape, or some other equally reliable medium, (B) the writing
or recording is duly authenticated as that of the witness, and (C) the witness
has personal knowledge of the contents of the statement. . . .’’
Section 8-7 of the Connecticut Code of Evidence provides: ‘‘Hearsay within
hearsay is admissible only if each part of the combined statements is indepen-
dently admissible under a hearsay exception.’’
10
State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S.
994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). See footnote 12 of this opinion.
11
Section 8-9 of the Connecticut Code of Evidence provides: ‘‘A statement
that is not admissible under any of the foregoing exceptions is admissible
if the court determines that (1) there is a reasonable necessity for the
admission of the statement, and (2) the statement is supported by equivalent
guarantees of trustworthiness and reliability that are essential to other
evidence admitted under traditional exceptions to the hearsay rule.’’
12
Assuming, arguendo, that the residual exception could be applied to
admit for substantive purposes the portions of Tanika McCotter’s Stevens
testimony in which she was impeached with her statement to the police,
on the basis of the facts in the record, it is unlikely that, under that exception,
the court would have admitted such evidence. In evaluating whether those
portions of her Stevens testimony bore indicia of trustworthiness and reliabil-
ity to afford the trier of fact a satisfactory basis for evaluating the truth of
the impeachment testimony, we observe that, at the Stevens hearing, Tanika
McCotter testified that she had been coerced into providing her statement
to the police and she testified to a different version of events. Also, the
police statement was not admitted at the Stevens hearing for substantive
purposes, but was marked as an identification exhibit and used to impeach
her testimony.
The more fundamental problem with the respondent’s reliance on the
residual exception is that the Whelan rule; see State v. Whelan, 200 Conn.
743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed.
2d 598 (1986); codified in § 8-5 (1) of the Connecticut Code of Evidence,
specifically applies to the evidence at issue as it governs the admission for
substantive purposes of prior written inconsistent statements. To apply the
residual exception in the present circumstances, in which Tanika McCotter
did not testify at trial and was not subject to cross-examination, would
conflict with Whelan. See State v. Williams, supra, 231 Conn. 249–50 (Whelan
does not apply when declarant of prior inconsistent statement does not
testify at trial); State v. Atkins, supra, 57 Conn. App. 349 (use of prior
inconsistent statement for impeachment purposes does not implicate
Whelan).
‘‘It is well settled that, [a]n out-of-court statement offered to prove the
truth of the matter asserted is hearsay and is generally inadmissible unless
an exception to the general rule applies. . . . In State v. Whelan, supra,
200 Conn. 743, however, [our Supreme Court] adopted a hearsay exception
allowing the substantive use of prior written inconsistent statements, signed
by the declarant, who has personal knowledge of the facts stated, when the
declarant testifies at trial and is subject to cross-examination. This rule has
also been codified in § 8-5 (1) of the Connecticut Code of Evidence, which
incorporates all of the developments and clarifications of the Whelan rule
that have occurred since Whelan was decided.’’ (Citation omitted; internal
quotation marks omitted.) State v. Simpson, 286 Conn. 634, 641–42, 945
A.2d 449 (2008).
13
In Gerardi, the defendant’s conviction of possession of a machine gun
for an aggressive and offensive purpose was reversed on the basis of an
issue regarding a mandatory presumption in the jury instructions. State v.
Gerardi, supra, 237 Conn. 353–54.