Date: 06-07-2016

Case Style: DAVID EUBANKS v. COMMISSIONER OF CORRECTION

Case Number: AC 36251

Judge: Thomas G. West

Court: Connecticut Appellate Court

Plaintiff's Attorney: Margaret Gaffney Radionovas, senior assistant state’s attorney,
Michael Dearington, state’s attorney, and David Clifton, assistant state’s attorney

Defendant's Attorney: Deren Manasevit

Description: The petitioner, David Eubanks, appeals following 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 General 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 denyinghispetitionforawritofhabeascorpusclaiming ineffective assistance of trial counsel. The respondent, the Commissioner of Correction, disagrees. We agree withthepetitioner,andtherefore,reversethejudgment 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.902,37A.3d745(2012).‘‘Atapproximately6a.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 turnedontoWallStreet,Hinesbelievedthatitwaslikely that the occupants of the vehicle had discharged the gunshots; as a result he began to follow the SUV. Hines reportedtheincidenttodispatchandactivatedhiscruiser’s lights and sirens. ‘‘The SUV traveled through the city and onto the entranceramptoInterstate91;it‘wouldnotstop.’Hines observeda‘darkcoloreditemcomeoutofthepassenger side window’ and ‘a silver colored item come out of thedriversidewindow.’Basedonhistrainingandexperience, Hines believed the items thrown out of the windows 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. . . .’ ‘‘Beforeenteringthehighway,theSUVstopped.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 [petitioner] 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 JoshuaArmistead investigatedthe areaof 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 thatthecasings‘lookedliketheywerefiredfromsomebody moving on Elm Street.’ Lieutenant Joseph Rainone, 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 carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a), one count of criminal possessionofapistolorrevolverinviolationofGeneral Statutes § 53a-217c (a) (1), one count of criminal possession 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 testimony on the ground that the state did not exercise due diligence in attempting to locate her and that he did nothavetheopportunityatthepriorhearingeffectively andadequatelytocross-examinethewitness.Thecourt 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,asagreeduponbytheparties,andwassubmitted 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, policecruisersfollowingtheSUV.Shewasarrestedand taken to a police station. She stated that although she heard gunshots, she never saw a gun on the day in question. Whileat the policestation, she toldthe detectives, in a recorded statement, that both of the passengers—Jayeron McCotter and the [petitioner]—were shootinggunsfromtheSUV.Sheinitiallytoldthepolice thatshedidnotseeagun,butthatafter‘theypressured for like ever’ and told her she could lose her children ifshedidnotcooperate,shetoldthemthatbothpassengershadfiredguns.Inresponsetoaquestionofwhether 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 beingtruthful to the police officers during the interview. ‘‘At the conclusion of the jury trial, the [petitioner] was foundguilty of unlawfulpossession of aweapon in amotorvehicleandofcriminalviolationofaprotective 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, rendered ineffective assistance in failing to specifically object on hearsay grounds to the substantive use of the portionsofTanikaMcCotter’sStevenstestimonyduring which she was impeached with her statement to police andthat,butforhistrialcounsel’sineffectiveness,there was a reasonable probability that the result of petitioner’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’strialcounseldidnotrenderineffectiveassistance.Thecourtconcludedthatthepetitionerhadfailed toprovethathistrialcounsel’srepresentationwasdeficient 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 testimony 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 petitionerfiledapetitionforcertificationtoappealfrom 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 specificallyobjectedtotheadmissionofTanikaMcCotter’s Stevens testimony—including her statements to the police—as substantive evidence . . . .’’ State v. Eubanks,supra,133Conn.App.111.Giventhepetitioner’s belief that the habeas court’s finding that the petitioner’s trial counsel ‘‘adequately objected’’ to McCotter’sStevenstestimonyappearedtobeinconflict with this court’s determination that he ‘‘never specificallyobjected’’ toMcCotter’s Stevens testimony assubstantive 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 representation at the petitioner’s criminal trial.5 The habeas court denied the petitioner’s motion for articulation, andthiscourtgrantedthepetitioner’smotionforreview 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 trialcounsel’sfailuretoobjecttothe Stevenstestimony was reasonable. In response, the habeas court’s articulation stated: ‘‘(1) [the petitioner’s trial counsel] objectedtotheStevenstestimonybeingintroducedinto 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 presentedastothismatter.Suchafindingwouldbeerroneous because it lacks sufficient evidentiary basis.’’ First, we set forth ‘‘the applicable standard of review and procedural hurdles that the petitioner must surmount 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 denialofcertificationconstitutedanabuseofdiscretion 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 SupremeCourtinLozadav.Deeds,498U.S.430,431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as the appropriate standard for determining whether the habeas court abused its discretion in denying certification to appeal. This standard requires the petitioner to demonstrate that the issues are debatable among jurists of reason;that acourt could resolve theissues[in adiffer
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 demonstrate 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 reasonably determined that the petitioner’s appeal was frivolous.’’ (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 thedefiniteandfirmconvictionthatamistakehasbeen committed.’’ (Internal quotation marks omitted.) Anderson v. Commissioner of Correction, 114 Conn. App.778,784,971A.2d766,cert.denied,293Conn.915, 979 A.2d 488 (2009). For the reasons we set forth, we conclude that the habeas court abused its discretion bydenyingcertificationtoappealthepetitioner’sclaim. ‘‘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 courthasstated:Itisaxiomaticthattherighttocounsel 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 representationfellbelowanobjectivestandardofreasonableness, 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 demonstrated 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 ineffectiveassistance oftrial counsel.6 In itsarticulation, 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 portionsofTanikaMcCotter’sStevenstestimonyduring 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 deficient because there was sufficient evidence presented during the habeas trial to rebut the presumption that histrialcounselexercisedreasonableprofessionaljudgment. We agree, and therefore, we conclude that the habeascourtimproperlydeniedthepetitioner’sineffective 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. Becauseofthedifficultiesinherentinmakingtheevaluation, a court must indulge a strong presumption that counsel’sconductfallswithinthewiderangeofreasonable professional assistance; that is, the [petitioner] mustovercomethepresumptionthat,underthecircumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed 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). Ondirectexaminationatthehabeastrial,thepetitioner’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 crossexamination, 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].’’Basedonhistestimonyatthehabeastrial, it is clear that his intention was to keep the Stevens testimony transcripts from being admitted into evidence by objecting on any grounds available. The petitioner’s trial counsel did not indicate that he made a reasonable tactical judgment to refrain from objecting basedonhearsaygrounds,nordidheofferareasonable professional judgment that an objection based on hearsay grounds would not have succeeded. See People v. Fillyaw,409Ill.App.3d302,315,948N.E.2d1116(2011) (‘‘[w]e hold that counsel’s apparent unfamiliarity with the law and failure to object on the proper grounds to theimproperadmissionof[awitness’writtenstatement to police] was unprofessional . . . and his performance thus meets the first prong of the Strickland standard’’ [citation omitted]). When Tanika McCotter testified at the Stevens hearing, 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 ifeach part is independentlyadmissible, the priorinconsistentstatementatissue herewasnotindependently admissiblefor substantivepurposes 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 substantive 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 substantive 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 inadmissibleassubstantiveevidence.Therespondentassertsthat 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 testimonythat therespondentargueswere admissiblewere comprised of her impeachment testimony, and thus those portions lack the ‘‘equivalent guarantees of trustworthiness and reliability’’ as required by § 8-9.12 With respect to the respondent’s argument that those portions of Tanika McCotter’s Stevens testimony would have been admissible for the nonhearsay purpose of ‘‘explaininghertestimonythatwhatshetoldpolicewas 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 thatbothpassengersinthecarpossessedguns.Furthermore, 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). Thefailureofthepetitioner’strialcounseltoobjectto 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 testified that his strategy was to object and to prevent Tanika McCotter’s Stevens testimony from being admitted intoevidenceforsubstantivepurposes.Giventhisstrategy and the fact that Tanika McCotter’s Stevens testimony 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 competence displayed by lawyers with ordinary training and skill in criminal law.’’ (Internal quotation marks omitted.) 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.
2d1(2014).Moreover,areasonablycompetentattorney 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 referencing her prior statementto police not being admitted for substantive purposes. This court, in the past, has determined that certificationtoappealshouldhavebeengrantedwhencounsel’s actions appeared to conflict with what might generally be considered effective representation even though explicitly tactical or strategic. See Gibson v. Commissioner 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 certificationshouldhavebeengranted’’),cert.denied,295Conn. 919,991A.2d565(2010).In Robinsonv. 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 certificationto appeal where trial counsel 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 thepetitioner’strialcounselwasnotineffectivebecause 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 concluded that ‘‘[w]hether counsel should have applied for youthful offender treatment was an issue debatable amongreasonablejurists’’andthatthepetitionforcertification should have been granted. Id. In the present case, the petitioner’s trial counsel did notassertthatheactivelychosenottoobjectonhearsay grounds as part of a trial strategy, but rather testified at the habeas trial that ‘‘[he] was definitely trying to keepoutthetranscriptsfromtheStevenshearing.’’Furthermore, 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 testimony 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 thatthefailureofthe petitioner’strialcounseltoobject 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 whetherthepetitionerwasprejudicedbyhistrialcounsel’s failure to object. We conclude that the court improperly concluded that the petitioner failed to demonstrate 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 thatthere isareasonable probabilitythat,but forcounsel’s unprofessionalerrors, the result ofthe 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 discretioninmakingitsfactualfindings,andthosefindingswillnotbedisturbedunlesstheyareclearlyerroneous. . . . 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 freetobelievetheportionofTanikaMcCotter’sStevens testimonyinwhichsheacknowledgedtellingthepolice thatbothofthepassengersintheSUVwerefiringguns. . . . Her testimony would permit a reasonable jury to conclude that, combined with the corroborating testimony 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 possession of a weapon in a motor vehicle on the day in question.Insum,whenallthecorroboratingevidenceis viewedinlightofTanikaMcCotter’sStevenstestimony, there was sufficient evidence from which the jury reasonably 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 possessedaguninamotorvehicle.SeeStatev.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 unregistered 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 vehiclebythepolice.AlthoughthedefendantinGerardi was originally convicted of possession of a machine gunforanaggressiveandoffensivepurposeinviolation 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 theyhadobservedbeingthrownfromthevehicleduring thepursuit.Therefore,butforthefailureofthepetitioner’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 reasonable probability that theresult of the proceeding would have been different. Strickland v. Washington, supra, 466 U.S. 694. Thus, the failure of the petitioner’s trial counseltoobjecttotheadmissionofTanikaMcCotter’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. Thepetitionerhassuccessfullydemonstratedthatthe resultofhisineffectiveassistanceclaiminvolvesissues 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 encouragementtoproceedfurther.Accordingly,weconcludethat thehabeascourtabuseditsdiscretionindenyingcertification 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
uretoobjecttothesubstantiveuseofTanikaMcCotter’s Stevens testimony.

Outcome: 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 isremandedtothehabeascourtwithdirectiontorender judgment granting the petition for a writ of habeas corpus as to this claim and to order a new trial for the petitioner.

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