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RYAN THOMPSON v. COMMISSIONER OF CORRECTION (AC 32044)
Robinson, Bear and Peters, Js. Argued April 11--officially released September 27, 2011

(Appeal from Superior Court, judicial district of Tolland, Nazzaro, J.)

Adele V. Patterson, senior assistant public defender, for the appellant (petitioner). Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Patricia M. Froehlich, state's attorney, Angela R. Macchiarulo, senior assistant state's attorney, and Erika L. Brookman, deputy assistant state's attorney, for the appellee (respondent).

Opinion

BEAR, J. The petitioner, Ryan Thompson, appeals following the denial of his petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus. The petitioner claims that the habeas court abused its discretion in denying certification to appeal in that it (1) erred in rejecting his claim that his trial counsel had provided ineffective assistance and (2) erred in excluding evidence relevant and admissible to prove the elements of ineffective assistance of counsel. We dismiss the appeal. The following relevant facts, as stated by our Supreme Court in State v. Thompson, 266 Conn. 440, 832 A.2d 626 (2003), and adopted by the habeas court, are as follows. ``On April 18, 1998, the victim, Robert McCaffery, and his best friend, John Jones, attended a party at the apartment of Ron Harding in the Moosup section of Plainfield. The [petitioner] and four of his friends, Robert Comeau, Jared Gilkenson, Brandy Stebbins and David Stebbins, also attended, although Harding had not invited them. The [petitioner] and his friends arrived in Brandy Stebbins' car, a purple Chevy Cavalier. The [petitioner] was wearing a white Nike pullover jacket and a baseball cap. Gilkenson had brought the [petitioner]'s nunchakus1 to the party, which he at first wore in the front of his pants. Later, he showed the nunchakus to people at the party. During the party, an argument started among David Stebbins, the [petitioner] and two brothers, Matt Benoit and Chris Benoit, which continued outside Harding's apartment. Sometime during the course of the argument, while they were still inside, Chris Benoit pushed David Stebbins, who then grabbed the nunchakus from Gilkenson, spun them around, and broke them on the stair railing. Harding, who had come outside because he had heard about the fight, broke it up and told the [petitioner] and David Stebbins to leave. At the same time, and because of the fight, Mandie Green, one of Harding's roommates, told everyone that the party was over. ``In the meantime, before the party had ended, Jones and the victim had decided to leave, but they heard the altercation out front, so they took an alternate route to their car, climbing down the fire escape and cutting through a neighboring yard. While they were walking, Jones suggested that they climb onto the roof of a nearby garage to smoke a cigarette and watch the argument. They climbed on the roof, but by then the argument appeared to have ended. Jones was kneeling in front, watching Harding's apartment, and the victim was either kneeling or standing behind and to the right of Jones, out of his field of view. Jones could see persons walking back inside Harding's apartment. He heard a pop coming from his left, but did not think it was significant. When Jones had almost finished his cigarette, he asked the victim if he was ready to leave, but

received no response. He turned around to look at the victim and saw that he was lying on his back. He leaned over the victim and saw blood coming from the side of his head. When he tried to give the victim mouth-tomouth resuscitation, the victim coughed up blood, and Jones began to yell for help.2 ``At roughly the same time that Jones and the victim were climbing onto the roof, Harding, who was standing at the end of the driveway with his friend Robert Latour, saw the [petitioner], David Stebbins and Gilkenson enter Brandy Stebbins' car. Harding then began walking back up the stairs to his apartment. Latour, who remained outside, saw the [petitioner] and Gilkenson get into Brandy Stebbins' car. David Stebbins then walked over to the car, reached into it, walked over to Latour with a rifle, aimed the rifle directly at Latour's face, and told Latour that he would shoot him. Latour responded, Whatever. David Stebbins then returned to the car, handed the rifle inside the car, and entered the car. Latour then saw the car drive for a short distance and then stop. Latour next saw the [petitioner], wearing a white Nike jacket, exit the car carrying something that looked like a rifle, and run between two houses. Latour then heard a pop, and heard Jones screaming from the nearby garage rooftop. In order to ascertain what had happened, Latour walked on the grass toward the garage roof where Jones and the victim were located. Jones was yelling that the victim had been shot and that someone should call 911. Latour went back into Harding's apartment and told the people inside to call 911. ``Meanwhile, Harding also had heard the popping sound and came back down the stairs and outside. He saw a person, whom he could not positively identify, but who was wearing a white pullover jacket, running with his hands in front of him. That person ran to Brandy Stebbins' car and entered it, and the car drove off. Harding then saw Jones on a roof, waving his arms and yelling for someone to call 911. Harding climbed up to the roof, where he found Jones kneeling over the victim and screaming help me. ``Officer Brandon Tyrrell of the Plainfield police department arrived at the scene, where Harding told him that the [petitioner], who had returned to the scene and was walking nearby, still wearing a white jacket, might have some information. Tyrrell drove over to the [petitioner] and asked him about the party, and the [petitioner] responded that he knew only what others had told him. When Tyrrell continued to question the [petitioner], the [petitioner] repeatedly stated: Just arrest me. I didn't shoot anybody. Just arrest me. Tyrrell told the [petitioner] that he was not under arrest, and that Tyrrell just wanted to question him. Tyrrell then left the [petitioner] with another officer and returned to the crime scene. The [petitioner] then reappeared at

the scene and began to yell that he had not shot anyone and questioned why anyone would believe that he had done so. Tyrrell and the other investigating officers asked the [petitioner] to leave. When the [petitioner] continued to cause a disturbance, Tyrrell arrested him for breach of the peace, brought him to the police station, and told him that he was under arrest for causing a disturbance, not for shooting anyone. The [petitioner], who appeared to be intoxicated, continued to insist that he did not shoot anyone and also asked Tyrrell if the guy was all right. ``Meanwhile, detectives were sent to locate and interview the other occupants of Brandy Stebbins' car. At approximately 1:50 a.m. on April 19, Detective Martin Graham and Lieutenant William Holmes located David Stebbins at his home, along with Brandy Stebbins, Gilkenson and Stebbins' mother. David Stebbins accompanied Graham and Holmes to their cruiser, where he provided a written statement that he, Brandy Stebbins, Gilkenson and the [petitioner] had left the party without incident. David Stebbins and Gilkenson also agreed to go [to] the police station for administration of a gunshot residue test. When they entered the station, Graham heard the [petitioner], in an adjoining room, screaming, yelling and swearing. After administration of the test, the police drove David Stebbins home. ``While Graham and Holmes were taking David Stebbins' statement, Detectives Richard Bedard and David LeBlanc interviewed the [petitioner] at the police station. Immediately after the [petitioner] had waived his Miranda rights,3 LeBlanc noticed a bite wound on the [petitioner]'s forearm, which the [petitioner] told him he had inflicted on himself while he was in his cell. The [petitioner] was agitated, and expressed concern that he had been arrested for shooting someone. After Bedard and LeBlanc assured him that he was under arrest for breach of the peace, not for shooting someone, the [petitioner] agreed to speak to them. During the interview, the [petitioner] asked them who had been hurt and how. When Bedard said that someone at the party had been shot, the [petitioner] immediately jumped up and started to scream and swear at the detectives. After they had succeeded in calming the [petitioner], he asked: What did he get shot with a .22? The detectives were surprised at this question because at that point no one involved in the investigation knew the caliber of the weapon used, and they glanced at each other. The [petitioner] then stated: Or a shotgun. When Bedard responded that the weapon used was not a shotgun, the [petitioner] again began screaming and swearing at the detectives. When the detectives had once again calmed the [petitioner], Bedard asked him who at the party had a gun. The [petitioner] again became belligerent, swearing and insisting that there was no gun at the party. When the detectives told the [petitioner] that they would be questioning everyone

who was at the party that night, he replied, Well, my boys won't talk to you. ``During the interview, LeBlanc left the room to answer a page. When he returned, he informed the [petitioner] that he had just been told that the victim was not expected to survive and that the victim's family had decided to donate his organs. At that point, the [petitioner] became enraged, making growling noises, clenching his fists, screaming obscenities and making obscene gestures at LeBlanc. Realizing that they could not control the [petitioner], the detectives decided to end the interview. ``When LeBlanc and Bedard had finished interviewing the [petitioner], Bedard took a statement from Gilkenson, who was still at the station. In his statement, Gilkenson denied any wrongdoing by himself or any member of his group. The [petitioner] also subsequently gave a written statement, indicating that he went to the party, but that he and his friends left the party at around 11 p.m. without incident. ``On April 19, 1998, Joseph Luberto, who knew the [petitioner] from school and had heard about the shooting, called the [petitioner] and asked him whether he had done it. The [petitioner] denied shooting the victim. Furthermore, although Luberto had not mentioned and did not know the caliber of the weapon, the [petitioner] added that he did not know how to load a .22 caliber rifle.4 ``Also on April 19, 1998, based on information they had received in the course of their interview of Latour, the police decided to interview Gilkenson and David Stebbins a second time.5 Detectives Norman Nault and Steven Rief questioned Gilkenson at his home, in the presence of both of his parents. Initially, Gilkenson repeated his initial assertion that he had no knowledge pertaining to the murder of the victim, but, upon being told that the police had information that someone from Brandy Stebbins' car shot the victim, and upon the urging of his parents, Gilkenson gave the police a second statement, in which he told them that when he, David Stebbins, Brandy Stebbins and the [petitioner] were leaving the party, the [petitioner], before they left and before he got into the car, came running toward the car with a rifle in his hand. The [petitioner] got into the backseat and leaned the gun against the side window, covering the gun with his arm. The [petitioner] then said something about he just shot somebody, let's get the hell out of here. ``Bedard and LeBlanc located David Stebbins at home, and he agreed to accompany them to the police station for questioning. In David Stebbins' second statement, he said that when the [petitioner] had arrived at his house to go to the party, the [petitioner] had stuffed a .22 caliber rifle down his pant leg. The [petitioner]

told David Stebbins, Brandy Stebbins and Gilkenson that he was going to sell it to someone in Moosup. Brandy Stebbins then said, I hope that's not loaded, to which the [petitioner] replied in the negative.6 When they arrived at the party, the [petitioner] left the rifle in the backseat of the car. When they left the party, David Stebbins, the [petitioner], Gilkenson and Brandy Stebbins were in the car. They pulled away, and the [petitioner] told Brandy Stebbins to stop the car and that he would be right back. The [petitioner] then exited the car holding the rifle, and ran in between two buildings that were near Harding's apartment. Within fifteen seconds, they all heard a popping noise. The [petitioner] then came running back to the car, got into the backseat with the rifle in his hand, threw the rifle into the backseat and said, let's get out of here. I think I hit somebody. When they arrived at David Stebbins' house, the [petitioner] took the rifle and ran toward his house. David Stebbins stated that he and Gilkenson were real scared and hoped that the [petitioner] had not shot anybody. ``On April 20, 1998, the police arrested the [petitioner] for the murder of the victim. At the time of the arrest, detectives seized the white jacket that the [petitioner] had been seen wearing on the night of April 18. The gunshot residue test performed on the jacket revealed one particle of lead and one particle of antinomy, both of which are consistent with gunshot residue. The gunshot residue tests performed on swabs taken from Gilkenson and David Stebbins revealed lead on both of their hands.'' (Internal quotation marks omitted.) State v. Thompson, supra, 266 Conn. 444

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