Sanchez v. Commissioner of Correction ( 2014 )

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JORGE SANCHEZ v. COMMISSIONER OF
CORRECTION
(SC 19080)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued April 25—officially released December 2, 2014
Michael J. Culkin, assigned counsel, for the appel-
lant (petitioner).
Linda Currie-Zeffiro, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Gerard Eisenman, former senior assistant
state’s attorney, for the appellee (respondent).
Opinion
PALMER, J. The dispositive issue raised by this
appeal is whether the habeas petitioner, Jorge Sanchez,
has demonstrated that he received ineffective assis-
tance of counsel at his criminal trial for murder and
other offenses because his counsel failed to call two
witnesses whose testimony would have contradicted
that of an important state’s witness regarding the peti-
tioner’s motive to commit those offenses. The petitioner
appeals from the judgment of the Appellate Court dis-
missing his appeal from the habeas court’s judgment
denying his amended petition for a writ of habeas cor-
pus. The Appellate Court dismissed the appeal after
concluding that the habeas court did not abuse its dis-
cretion in denying the petitioner’s request for certifica-
tion to appeal in accordance with General Statutes § 52-
470 (g).1 Sanchez v. Commissioner of Correction, 138
Conn. App. 594, 601, 53 A.3d 1031 (2012). The petitioner
claims that the Appellate Court improperly concluded
that the habeas court acted within its discretion in deny-
ing certification to appeal because he established that
his counsel had performed deficiently in failing to call
the two witnesses, and further, that had those witnesses
testified, there is a reasonable probability that the out-
come of his criminal trial would have been different. We
need not determine whether the habeas court abused
its discretion in denying the petitioner certification to
appeal because even if we assume, without deciding,
that the habeas court’s denial of certification was an
abuse of discretion, we conclude that the petitioner has
not demonstrated that he is entitled to a new trial. We
therefore affirm the Appellate Court’s judgment.
The following factual and procedural history is neces-
sary to our resolution of the petitioner’s appeal. In 1996,
following a jury trial, the petitioner was convicted of
murder, conspiracy to commit murder and larceny in
the first degree in connection with the killing of the
victim, Angel Soto.2 Because the evidence underlying
that conviction is highly relevant to the petitioner’s
claim that his trial counsel’s performance was constitu-
tionally defective, we set forth the facts that the jury
reasonably could have found, as recited in the opinion
of the Appellate Court in his direct appeal; see State v.
Sanchez, 50 Conn. App. 145, 718 A.2d 52, cert. denied,
247 Conn. 922, 722 A.2d 811 (1998); followed by a discus-
sion of the pertinent testimony at the petitioner’s crimi-
nal trial.
‘‘The [petitioner] had been a member of the Latin
Kings gang [in Bridgeport] from approximately 1989
until 1993 when he was expelled for breaking gang
rules. He sought help from his cousin, Antonio Rigual,
in getting back in the gang. Rigual asked his roommate,
Edwardo Ortiz, what the [petitioner] could do to regain
his membership in the gang. Ortiz asked Emanuel
Roman and Richard Morales, the local gang leaders, for
their advice. Roman and Morales informed Ortiz that
the only way the [petitioner] could regain his member-
ship was to kill either Louis Rodriguez, who had had
an affair with Roman’s wife, or the victim . . . who
knew of the affair but [had] failed to report it. Ortiz
. . . relay[ed] this information to the [petitioner when]
the [petitioner] asked Ortiz how he could regain his
membership. Because the [petitioner] did not know the
victim, Ortiz pointed him out.
‘‘With the help of others, the [petitioner] stole a red
van from Devoe Paints and painted it with brown
primer. On the evening of April 8, 1994, the [petitioner],
Jesus Valentin and an individual known as ‘Black’ drove
through Bridgeport in the van looking for the victim.
They saw the victim leave the Savoy Club and followed
his vehicle until it stopped outside a restaurant [named
La Familia]. When the van stopped next to the victim’s
vehicle [at approximately 10:30 p.m.], the [petitioner]
and Black shot him repeatedly and fatally.’’ Id., 146–47.
‘‘After the shooting, the [petitioner], Valentin and
Black attended Rigual’s birthday party, which was
[hosted] by Ortiz. The [petitioner] told Ortiz and Rigual
that he had just killed the victim. Rigual put his necklace
of colored beads on the [petitioner], a sign of gang
membership. The day after the murder, Ortiz and [Lester
Simonetty, the petitioner’s brother] purchased flares,
intending to burn the van, [but the van] was recovered
[by the Bridgeport police from the Evergreen Apart-
ments] before it was burned.
‘‘During their investigation, the police obtained state-
ments from Ortiz, Valentin and Albert Aponte [an
acquaintance of the petitioner], each of whom
recounted substantially the same facts about the vic-
tim’s death.’’ Id., 147. Ortiz had been arrested by federal
authorities in New Jersey and, in exchange for leniency,
provided information to state and federal authorities
about the Latin Kings and various unsolved crimes,
including the victim’s murder. Id., 151. Around the same
time, Aponte, who was being held in Bridgeport on
unrelated charges, ‘‘spoke with members of the Bridge-
port [P]olice [D]epartment about the victim’s murder.
He . . . [subsequently] gave them a tape-recorded
statement, which was transcribed and signed under
penalty of perjury.’’ Id. Thereafter, ‘‘Valentin was
arrested by the Bridgeport police and gave [them] a
signed statement, under oath and witnessed by his
mother.’’3 (Footnote omitted.) Id., 152. The petitioner
then was charged with the victim’s murder.
At the petitioner’s trial, Ortiz testified consistently
with the statement that he had given to the police.
Specifically, he explained how, in response to a query
made by Rigual on the petitioner’s behalf, he sought
and relayed information from Roman and Morales as
to how the petitioner, who had been expelled from the
Latin Kings, could gain readmission into the gang. Ortiz
testified that in addition to speaking with Rigual, he
personally spoke with the petitioner about the matter,
and pointed out the victim to him. Ortiz testified that
the petitioner agreed to kill the victim, and did so about
one week later, thereafter arriving at Rigual’s birthday
party sometime between 11 p.m. and midnight to report
that the victim was dead. According to Ortiz, Rigual
then put his beads around the petitioner’s neck, shook
his hand and saluted him. Ortiz testified that the birth-
day party was well attended—that it was ‘‘pretty
packed’’ with people.
Ortiz testified further that he spoke with the peti-
tioner again about one week after the murder, at which
time the petitioner shared with him additional details
about the crime. Specifically, the petitioner informed
Ortiz that he had committed the murder with another
individual, Black, that they had used a stolen van that
was painted with primer, that Valentin had driven the
van and that the petitioner had wielded an Uzi while
Black fired a .38 caliber weapon. According to Ortiz,
the petitioner told him that they had considered killing
the victim at the Savoy Club, but there were too many
people there, so the petitioner waited in the van, fol-
lowed the victim when he left that establishment, and
then pulled alongside the victim’s vehicle and shot him
after the victim had stopped and double-parked outside
La Familia. Ortiz testified further that on another, subse-
quent occasion, he had spoken with the petitioner,
Black and Valentin together, and they relayed to him
the same details about the murder.4
Ortiz testified additionally that he had spoken with
the petitioner’s brother, Simonetty, following the mur-
der, and the two went to buy flares to burn the van at
the Evergreen Apartments. They never did so, however,
because the van was gone when they returned. Finally,
on both direct and cross-examination, Ortiz discussed
his cooperation agreement, pursuant to which he
expected lenient treatment in his own case in exchange
for his testimony.
Valentin and Aponte also were called to testify at
trial, but they recanted the earlier statements they had
given to the police. Aponte claimed that he had fabri-
cated his statement at Ortiz’ direction when Aponte
visited Ortiz while he was in federal prison. Valentin
acknowledged giving his statement but denied that it
was true. Consequently, Aponte’s and Valentin’s previ-
ous statements to police were both admitted into evi-
dence, for substantive purposes, pursuant to 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),
and § 8-5 (1) of the Connecticut Code of Evidence.5
In Aponte’s statement, he explained that Valentin,
Black and the petitioner told him details about the mur-
der, in particular, that Valentin was driving the van, that
the petitioner shot at the victim with an Uzi, and that
Black brandished a .38 caliber weapon. He relayed spe-
cific details of the murder that the three participants
had provided to him, namely, that they waited for the
victim to leave the Savoy Club in his car, followed
him to La Familia, and began shooting at him after he
parked. He stated further that Black began shooting
first, after which the petitioner opened the side door
of the van and joined in the attack. Aponte claimed that
the petitioner showed him the Uzi beforehand and told
him what he planned to do. He also stated that he
was privy to a conversation between Roman and the
petitioner in which Roman told the petitioner to commit
the murder, that he was present when the petitioner
was readmitted into the gang at Rigual’s birthday party,
and that he witnessed the petitioner and another indi-
vidual known as ‘‘Chino’’ painting the van that was used
in the shooting. According to Aponte, the van was a
new Chevrolet, originally painted red, which the peti-
tioner and Chino painted brown. Aponte stated finally
that the petitioner and Valentin asked him to help burn
the van, which the petitioner told him had been moved
to the Evergreen Apartments, but Aponte declined.
Valentin’s statement likewise explains that he drove
the van used in the victim’s murder and that the peti-
tioner killed the victim. According to Valentin, on the
night of the murder, the petitioner picked him up in
the van and then picked up another ‘‘kid’’ at a different
location. That other individual was African-American,
skinny and approximately nineteen years old. There-
after, the petitioner asked Valentin to drive the van.
After a while, the petitioner ‘‘said that he saw somebody
that he didn’t like. Then we left and came back later.
The guy got into his car and we started to follow him.
Then the other guy parked. That’s when [the petitioner]
told me to stop by the side of him. [The petitioner] and
the guy in the passenger side started shooting. I freaked
out. I drove away. I drove over the bridge and headed
toward Seaside Park. I dropped them off and drove
home. I left the van off one of the side streets of Park
Avenue. Then I walked home.’’ Valentin elaborated that
the three men first saw the victim ‘‘[b]y the light at the
club,’’ then followed him to La Familia. He explained
that the petitioner shot from the side door of the van,
using ‘‘an Uzi or Mak,’’ and that the young African-
American man shot from the passenger door, using a
‘‘smaller gun.’’ Valentin stated that the turn of events
was a surprise to him, as he was completely unaware
the shooting was to occur. When asked whether he had
anything to add to his statement, he asserted that he
felt he had been tricked, and that he had not said any-
thing earlier because he feared for his life and wanted
to go to Puerto Rico.6
A number of other witnesses also testified for the
state. Ronald Pettway, a friend of the victim, testified
that on the night of the murder, he ran into the victim
outside the Savoy Club, and the victim agreed to give
him a ride elsewhere. Along the way, the victim asked
Pettway to buy him a soda. After the victim double-
parked the car, Pettway exited it and had taken a few
steps toward a nearby store when he heard gunshots
behind him and started to run. Thereafter, he saw a
‘‘[b]rown orange’’ van drive away and turn onto Strat-
ford Avenue.
Anibel Florez, who was standing in the doorway of
the La Familia restaurant when the shooting occurred,
testified that a car pulled up and double-parked, a man
exited from the passenger side, a brown van drove up
shortly thereafter, multiple shots were fired from the
passenger side of the van at a man seated behind the
wheel of the car, and the van then took off toward
Stratford Avenue. Jose Rodriguez, who was standing
next to Florez in the restaurant, testified similarly. Wil-
fredo Nieves, a patrolman with the Bridgeport Police
Department who was the first officer to arrive at the
scene at approximately 10:30 p.m., testified that Rodri-
guez and Florez both told him that they saw an African-
American male shooter, although both men had denied
saying so when questioned at trial.
Cozy Shaw, an employee of Devoe Paints, testified
that the business’ new red Chevrolet van had been sto-
len the evening before the victim’s murder, and later
was returned by the police, damaged and painted with
brown primer. Daniel Garcia, a Bridgeport police offi-
cer, testified that the van, which had a fresh coat of
brown primer, was recovered from the Evergreen
Apartments after someone reported an abandoned vehi-
cle, early in the afternoon on the day after the victim’s
murder. Ann Marie Osika, a detective with the Bridge-
port Police Department, testified that she processed
the crime scene and the van and that both were littered
with nine millimeter and .38 caliber bullets, bullet frag-
ments and casings, which she collected and marked.
Thomas Gilchrist, a forensic pathologist and associate
state medical examiner, testified that he performed an
autopsy on the victim, and he described the victim’s
wounds and the bullets he removed from the victim’s
body. William Perez, a detective with the Bridgeport
Police Department who had viewed the autopsy,
described how those bullets were marked and pre-
served for examination. Edward Jachimowicz, a ballis-
tics expert, testified that the bullets collected during
the investigation were fired from two weapons, one a
.38 caliber semiautomatic and the other a nine millime-
ter Uzi.
Michael Kerwin, a Bridgeport police sergeant, testi-
fied that he was present when the petitioner was
arrested, when he was read and waived his rights, and
when he provided a sworn statement. Thereafter, that
statement was read into evidence. In the statement, the
petitioner attested that, on the evening of the victim’s
murder, he arrived at Rigual’s birthday party, which
was also a birthday party for his mother, at about 6
p.m., and that he left the party with Rigual a little before
2 a.m. The petitioner named several other attendees of
the party, including Ortiz, ‘‘most of [his] aunts,’’ his
brother, Aponte, his mother’s friends, ‘‘kids from the
[neighborhood]’’ and his grandmother’s friend. The peti-
tioner stated that he formerly was a member of the
Latin Kings, between 1989 and 1993, but that he had
been ousted when someone reported that he was a
‘‘snitch,’’ and had not been readmitted. The petitioner
denied killing the victim or knowing who did.
At the close of the state’s evidence, the petitioner
moved for a judgment of acquittal on all charges, claim-
ing that the evidence was insufficient to support a jury
finding of guilty on those charges. The trial court denied
the petitioner’s motion, and he then presented a defense
case comprised of four witnesses. Nicole Ouellette, a
friend of the petitioner’s, testified that she had seen
him at Rigual’s party the night of the murder, but she
could not be specific about the time that she saw him
there. Ouellette also stated that, in her view, Ortiz had
a reputation for untruthfulness.
Nilda Sanchez, who is the petitioner’s mother, testi-
fied that she arrived at the party at 9:10 or 9:15 p.m.,
and left at approximately 1:30 a.m., and that she saw
the petitioner there between those times. Nilda Sanchez
stated that most of her family, as well as some friends,
attended the party.
Pedro Orengo, who is Nilda Sanchez’ friend, testified
that he, too, arrived at the party between 9 and 9:30
p.m., and left around 11:30 p.m. or midnight. He testified
further that he had observed the petitioner at the party
during that entire time frame. Orengo agreed that there
were a lot of people at the party. He confirmed that he
had been contacted only recently by the defense to
testify about the party, which had occurred more than
one year before.
Finally, the petitioner presented testimony from Mel-
vin Johnson, a federal inmate who, along with several
others, had shared a cell with Ortiz for a brief time while
they were both in federal custody. Johnson testified that
at that time, Ortiz himself bragged about having killed
the victim over a drug turf disagreement. According to
Johnson, Ortiz stated that he ‘‘shot [the victim] with
two Maks in both hands,’’ which he had learned to do
at the local gun range. Johnson testified that Ortiz told
him a van had been used in the murder, and that the
incident had occurred outside La Familia. On cross-
examination, Johnson acknowledged that he faced then
pending felony charges and that he was hoping for
leniency as a result of his testimony. Johnson admitted
that he was familiar with the murder of the victim before
he was incarcerated because he was from the neighbor-
hood where it occurred, and because Pettway, the vic-
tim’s friend who was with him when he was killed, was
a relative of Johnson’s. Johnson did not identify any
other participants in the crime, but speculated that
someone else must have been driving the van.
To rebut Johnson’s testimony, the state called Eyrn
Vazquez, another federal inmate who had shared the
cell with Johnson and Ortiz. Vazquez testified that Ortiz
had not bragged about shooting the victim as Johnson
had claimed. He testified further that, although he had
charges pending in Rhode Island, he did not expect to
gain anything from his testimony, and that he had not
known either Ortiz or Johnson prior to sharing a cell
with them. Vazquez acknowledged that, in the past, he
had been a member of the Latin Kings in Rhode Island.
In its closing argument, the state emphasized that
the police had separately interviewed Ortiz, Valentin
and Aponte, that all of them had told essentially the
same story regarding the victim’s murder, and that it
was highly unlikely that Ortiz had orchestrated all of
that testimony from a jail cell. Further, the state under-
scored the fact that the story told by the witnesses was
consistent with the available forensic evidence, and that
there was no apparent motivation for the witnesses to
lie or any explanation for why they all would do so in
the same fashion. The state also attacked the petition-
er’s alibi evidence as weak.
The petitioner’s trial counsel, Jonathan J. Demirjian,
in his closing argument, assailed Ortiz’ credibility exten-
sively, arguing that his demeanor as a witness suggested
dishonesty, that he initially did not discuss the crime
with police when he was arrested and that his testimony
was inconsistent with his earlier written statement in
that the former was considerably more complete and
detailed. See footnote 4 of this opinion. Demirjian
argued variously that Ortiz in fact was the perpetrator
of the crime, that he had ordered it, or that he simply
was privy to the facts and was trying to blame the
petitioner to curry favor with authorities.
Thereafter, the jury returned a verdict finding the
petitioner guilty of murder, conspiracy to commit mur-
der and larceny in the first degree, and the trial court
rendered judgment in accordance with the verdict. The
petitioner appealed from the judgment of the trial court
to the Appellate Court, claiming, inter alia, that the
evidence was insufficient to support his convictions. On
August 25, 1998, the Appellate Court issued its opinion
rejecting the petitioner’s claims and affirming the judg-
ment of the trial court. State v. Sanchez, supra, 50 Conn.
App. 146.
Nearly nine years later, in January, 2007, the peti-
tioner filed a petition for a writ of habeas corpus chal-
lenging his conviction. The petitioner alleged that
Demirjian had been ineffective for failing to adduce the
testimony of Rigual and Simonetty at his criminal trial
because, the petitioner claimed, that testimony would
have contradicted the state’s contention, presented
through the testimony of Ortiz, first, that Rigual had
aided the petitioner in gaining readmission into the
Latin Kings predicated on the petitioner’s willingness
to murder the victim, and second, that Simonetty had
agreed to assist the petitioner in disposing of the van
used in the commission of that murder.7
A trial on the habeas petition was held on January
19, 2010, and March 16, 2010. The petitioner presented
brief testimony from Simonetty, Rigual and Demirjian.
The petitioner himself also testified. The totality of that
testimony may be summarized as follows.
Simonetty confirmed that he is the petitioner’s
younger brother. He testified that around the time of
the victim’s murder in April, 1994, he did not know Ortiz
well, but knew Aponte. He claimed to be unfamiliar with
Roman and Morales, and denied that he was a member
of the Latin Kings in 1994. Simonetty further denied
being party to any discussions with Ortiz or Aponte
about the petitioner’s interest in regaining membership
in the Latin Kings or about the petitioner killing the
victim. He similarly denied having such discussions
with Roman and Morales. Finally, Simonetty testified
that he was not familiar with the victim or the facts
and circumstances surrounding his death. On cross-
examination, Simonetty acknowledged that he had been
convicted of manslaughter in 1996, and had a history
of selling drugs.
Rigual acknowledged that he is the petitioner’s
cousin. He agreed that he knew Ortiz prior to 1994
through ‘‘just doing mechanic work and things like
that,’’ but denied that he and Ortiz were friends or
socialized together.8 Rigual also acknowledged know-
ing Aponte, but denied ever hearing of Roman or
Morales. He further testified that he was not a member
of the Latin Kings in April, 1994, and that around that
time, he had no discussions with Ortiz, Aponte, Roman
or Morales regarding the petitioner’s readmission into
the Latin Kings or about the petitioner killing the victim.
Rigual also denied knowing or discussing the victim or
having any personal knowledge of his death. Moreover,
he denied even knowing that the victim had been mur-
dered in April, 1994. On cross-examination, Rigual
admitted that he had prior convictions for assaulting a
police officer and possession of narcotics.
Demirjian testified strictly from memory because his
file in the petitioner’s fourteen year old case could not
be located. He recalled having heard Simonetty’s name,
but not specifically in relation to the petitioner’s case.
He responded similarly when asked whether he remem-
bered Rigual. Demirjian explained that ‘‘[t]here [were]
a lot of cases like [the petitioner’s] around [1995],’’ that
‘‘[a] lot of the names were interchangeable’’ and that
the names of the two men ‘‘were prominent around that
time.’’9 Demirjian testified that his office had investi-
gated the case on behalf of the petitioner, but he had
‘‘no recollection’’ of whether he had sent an investigator
to talk to either Simonetty or Rigual or whether he had
contacted them personally. He did not recall whether
either man had testified at the petitioner’s trial, nor
could he recall whether there would have been any
strategic reason for not calling them.
Finally, the petitioner himself testified that he initially
was unaware of Simonetty’s or Rigual’s alleged involve-
ment in the case, but learned of it sometime during his
trial.10 He stated that, at that point, he asked Demirjian
to call Rigual and Simonetty as witnesses. According
to the petitioner, he wanted the two men to testify
because Ortiz’ claims regarding Ortiz’ interactions with
them were not true.
Following the foregoing testimony and brief argu-
ment by counsel, the habeas court issued an oral ruling
rejecting the petitioner’s claim. The court found that
Demirjian’s failure to call Rigual and Simonetty was not
deficient performance and, even if it were, the petitioner
had not shown prejudice. As to deficient performance,
the court concluded that there was no reason that
Demirjian would or should have called the two men as
witnesses. As to prejudice, the court reasoned that the
testimony provided by Rigual and Simonetty at the
habeas trial concerned only the petitioner’s purported
motive to commit murder, which is not an element of
the crime,11 and further that, because both witnesses
were ‘‘convicted felons’’ with ‘‘a motive to be deceptive
. . . it [was] doubtful that a jury would have given any
real credibility to the testimony had it been presented’’
at the criminal trial. Thereafter, the habeas court denied
the petitioner’s request for certification to appeal from
the dismissal of his petition. The petitioner’s appeal to
the Appellate Court followed.
A majority of the Appellate Court panel rejected the
petitioner’s claim that the habeas court had abused
its discretion in denying him certification to appeal.
Sanchez v. Commissioner of Correction, supra, 138
Conn. App. 601. Accordingly, the Appellate Court dis-
missed the petitioner’s appeal. Id. Focusing on the
habeas court’s conclusion that the petitioner had failed
to prove prejudice, the Appellate Court deferred to that
court’s finding that Rigual and Simonetty lacked credi-
bility as supported by the record and, therefore, was
not clearly erroneous. Id., 599–600. It further agreed
with the habeas court that the proffered testimony
would not have changed the outcome of the petitioner’s
criminal trial. Id., 600–601.
Judge Sheldon dissented, observing that Ortiz, like
Rigual and Simonetty, had an extensive criminal record
as well as pending criminal charges, and that testimony
from Rigual and Simonetty ‘‘would probably have been
quite helpful’’ in undermining the credibility of Ortiz,
whose testimony was essential to the state’s case. Id.,
605. Judge Sheldon also questioned the habeas court’s
statement that Rigual and Simonetty had an unspecified
‘‘[motive] to be deceptive,’’ characterizing it as a ‘‘mere
assertion’’ that did not adequately support the court’s
ruling in view of the potential significance of the wit-
nesses’ testimony.12 Id. (Sheldon, J., dissenting). This
appeal followed.13
The petitioner argues that the Appellate Court
improperly determined that the habeas court did not
abuse its discretion in denying his petition for certifica-
tion to appeal. According to the petitioner, he provided
Demirjian with the names of ‘‘two important rebuttal
witnesses . . . who . . . would have contradicted the
testimony of the state’s key witness,’’ Ortiz, and Demer-
jian, without explanation, failed to call the witnesses
at his criminal trial. The petitioner contends that this
failure amounted to ineffective assistance of counsel,
and that he was prejudiced thereby because, had the
witnesses been called, there is a reasonable probability
that the outcome of his trial would have been different.14
The respondent, the Commissioner of Correction,
argues, to the contrary, that the Appellate Court cor-
rectly found no abuse of discretion because that court
properly held that the habeas court’s factual finding that
a jury was unlikely to have found Rigual and Simonetty
credible was not clearly erroneous. The respondent
points out that the two men offered only general denials
of gang membership and knowledge of the circum-
stances of the victim’s murder, and their testimony was
devoid of specifics that might have lent some credibility
to their brief and otherwise unpersuasive version of the
facts. Moreover, the respondent argues that the case
against the petitioner was not weak, as he suggests, but
included the prior statements of Aponte and Valentin, as
well as the testimony of Ortiz, which the jury credited
despite Ortiz’ self-interest in testifying against the peti-
tioner. We agree with the respondent.
‘‘We begin our analysis by setting forth the appro-
priate standard of review. The habeas court is afforded
broad discretion in making its factual findings, and
those findings will not be disturbed unless they are
clearly erroneous. . . . Thus, [t]his court does not
retry the case or evaluate the credibility of the wit-
nesses. . . . Rather, we must defer to the [trier of
fact’s] assessment of the credibility of the witnesses
based on its firsthand observation of their conduct,
demeanor and attitude. . . . The habeas judge, as the
trier of facts, is the sole arbiter of the credibility of
witnesses and the weight to be given to their testi-
mony. . . .
‘‘Furthermore . . . if either the petitioner or the
respondent is denied a timely request for certification
to appeal from a habeas court’s judgment, such review
may subsequently be obtained only if the appellant can
demonstrate that the denial constituted an abuse of
discretion. . . . We recognize that [i]n enacting § 52-
470 [g], the legislature intended to discourage frivolous
habeas appeals. . . . A habeas appeal that satisfies one
of the criteria set forth in Lozada v. Deeds, 498 U.S.
430, 431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), is
not, however, frivolous and warrants appellate review
if the appellant can show: that the issues are debatable
among jurists of reason; that a court could resolve the
issues [in a different manner]; or that the questions are
adequate to deserve encouragement to proceed further.
. . . [I]f an appeal is not frivolous, the habeas court’s
failure to grant certification to appeal is an abuse of
discretion. . . .
‘‘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 peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria identified in Lozada and adopted
by this court for determining the propriety of the habeas
court’s denial of the petition for certification. Absent
such a showing by the petitioner, the judgment of the
habeas court must be affirmed.’’ (Citations omitted;
internal quotation marks omitted.) Taylor v. Commis-
sioner of Correction, 284 Conn. 433, 448–49, 936 A.2d
611 (2007). In light of our determination, which we
explain more fully hereinafter, that the petitioner’s inef-
fective assistance of counsel claim lacks merit because
he cannot establish that he was prejudiced by Demirji-
an’s allegedly deficient performance, we need not
decide whether the Appellate Court properly deter-
mined that the habeas court acted within its discretion
in denying the petitioner’s request for certification to
appeal from the adverse judgment of the habeas court.
We now turn to the well settled legal principles gov-
erning the petitioner’s claim. ‘‘A criminal defendant is
constitutionally entitled to adequate and effective assis-
tance of counsel at all critical stages of criminal pro-
ceedings. Strickland v. Washington, [466 U.S. 668, 686,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. This right arises
under the sixth and fourteenth amendments to the
United States constitution and article first, § 8, of the
Connecticut constitution. . . . It is axiomatic that the
right to counsel is the right to the effective assistance
of counsel. . . . A claim of ineffective assistance of
counsel consists of two components: a performance
prong and a prejudice prong. To satisfy the performance
prong . . . the petitioner must demonstrate that his
attorney’s representation was not reasonably compe-
tent or within the range of competence displayed by
lawyers with ordinary training and skill in the criminal
law. . . . To satisfy the prejudice prong, [the peti-
tioner] must demonstrate that there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.
. . . The claim will succeed only if both prongs are
satisfied.’’ (Citations omitted; internal quotation marks
omitted.) Gonzalez v. Commissioner of Correction, 308
Conn. 463, 470, 68 A.3d 624, cert. denied sub nom. Dzur-
enda v. Gonzalez, U.S. , 134 S. Ct. 639, 187 L. Ed.
2d 445 (2013). Consequently, ‘‘[i]t is well settled that
‘[a] reviewing court can find against a petitioner on
either ground, whichever is easier.’ . . . Valeriano v.
Bronson, 209 Conn. 75, 86, 546 A.2d 1380 (1988); see
also Strickland v. Washington, supra, 697 (‘a court need
not determine whether counsel’s performance was defi-
cient before examining the prejudice suffered by the
defendant’).’’ (Emphasis in original.) Small v. Commis-
sioner of Correction, 286 Conn. 707, 713, 946 A.2d 1203,
cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129
S. Ct. 481, 172 L. Ed. 2d 336 (2008).
Like the Appellate Court, we focus on the prejudice
prong of Strickland in evaluating the petitioner’s claim
of ineffective assistance of counsel. ‘‘In making [the
prejudice] determination, a court hearing an ineffec-
tiveness claim must consider the totality of the evidence
before the judge or the jury.’’ (Internal quotation marks
omitted.) Gaines v. Commissioner of Correction, 306
Conn. 664, 688–89, 51 A.3d 948 (2012). ‘‘[A] verdict or
conclusion only weakly supported by the record is more
likely to have been affected by errors than one with
overwhelming record support. . . . [T]he ultimate
focus of inquiry must be on the fundamental fairness
of the proceeding whose result is being challenged. . . .
The benchmark for judging any claim of ineffectiveness
must be whether counsel’s conduct so undermined the
proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just
result.’’ (Citations omitted; internal quotation marks
omitted.) Id., 689.
We begin by emphasizing that the criminal case
against the petitioner was not, as he contends, a weak
one that was entirely dependent on the testimony of
Ortiz, who, because he had agreed to cooperate with
the state to gain leniency in his own criminal case, had
reason to falsely implicate the petitioner. Rather, three
individuals, one of whom was an eyewitness to, and an
apparently unwitting participant in, the victim’s murder,
provided essentially the same detailed account of the
crime and the surrounding facts and circumstances, and
that account meshed neatly with the available physical
evidence and the testimony of other, disinterested wit-
nesses.15 Importantly, moreover, nothing that any of the
men said about the crime contradicted what the others
said in any significant respect.
Specifically, Ortiz, Aponte and Valentin each pro-
vided information about the crime based on their vary-
ing roles in the matter and, consistent with the differing
nature of their involvement, each gave certain details
not supplied by the other two. At the same time, how-
ever, each also conveyed the same core facts about the
murder: that it was committed by the petitioner and
Black, while Valentin drove, in a recently stolen,
repainted van; that the petitioner had used an Uzi, firing
from the van’s side door, and Black had wielded a
smaller weapon, firing from the passenger seat; that
the men had followed the victim from the Savoy Club
to La Familia, attacking him after he had stopped and
double-parked; and that the van, soon thereafter, was
moved to the Evergreen Apartments. These details
matched the ballistics evidence presented by the state,
Pettway’s explanation of where he and the victim had
been shortly before the crime, the descriptions of the
shooting provided by Pettway, Florez and Rodriguez,
and police testimony regarding the recovery and condi-
tion of the van. In short, the consistency of the three
men’s accounts, all of which were also consistent with
the other evidence, combined to establish a strong case
against the petitioner. Furthermore, the fact that the
accounts were similar, but not identical, and at the same
time did not contain any irreconcilable contradictions,
made it highly unlikely that they were a coordinated
fabrication, as the petitioner now suggests.
Additionally, although the petitioner attempted to
refute the state’s case with alibi and third party culpabil-
ity evidence, that evidence was not especially compel-
ling and, not surprisingly, it was discredited by the jury.
As to the petitioner’s alibi, various witnesses’ testimony,
and the petitioner’s own statement to police, indicated
that the party at which the petitioner claimed to be at
the time of the murder was well attended by a large
number of the petitioner’s friends and relatives, yet very
few of the guests appeared to attest to his presence
there. Moreover, those who did appear, such as the
petitioner’s mother, testified only vaguely that they saw
him throughout a general time frame, and could not
state definitively that he was present at the party at the
specific time that the murder had occurred. Regarding
third party culpability, the petitioner, relying largely
on rumor, innuendo and the testimony of Johnson—
testimony that was contradicted by the ballistics evi-
dence—further attempted to persuade the jury that
Ortiz himself had killed the victim. In the end, however,
the jury was unconvinced.
It is against this backdrop that we review the testi-
mony presented by the petitioner at his habeas trial to
determine whether there is a reasonable probability
that, had it been presented at his criminal trial, the
result of that criminal trial would have been different.
Turning first to Simonetty, we have no difficulty in
concluding that his testimony would not have changed
the outcome of the criminal trial, even if the jury had
found it to be credible. First, most of Simonetty’s testi-
mony did not conflict with the evidence presented at
the petitioner’s criminal trial. In particular, neither Ortiz
nor any other witness testified that Simonetty was privy
to any conversations with Roman, Morales, Ortiz or
Aponte as to how the petitioner could gain readmission
into the Latin Kings gang and, consequently, his testi-
mony in that regard would have been of no moment.
Second, although Simonetty’s assertion that he was not
a member of the Latin Kings and was unfamiliar with
the victim and the facts and circumstances surrounding
his death is contrary to Ortiz’ testimony that he and
Simonetty had planned to burn the van used in the
crime, that assertion does not directly refute the evi-
dence of the petitioner’s participation in, or motive to
commit, that crime. Rather, assuming that Simonetty’s
testimony would have been believed had Demirjian pre-
sented it, it would have undercut Ortiz’ testimony on a
peripheral and ultimately inconsequential matter, that
is, a planned disposition of the van that never actu-
ally occurred.
We turn next to the testimony of Rigual. In contrast
to Simonetty’s testimony, Rigual’s testimony bore on a
more significant matter, namely, the petitioner’s motive
to murder the victim. Although, as the habeas court
recognized, evidence of motive is unnecessary to estab-
lish the elements of the crimes charged, such evidence
nevertheless is important, and proving a motive is likely
to strengthen the state’s case. State v. Wilson, 308 Conn.
412, 430, 64 A.3d 91 (2013). Evidence of motive, like all
of the other evidence in the case, must be weighed by
the jury. Id. ‘‘The role motive plays in any particular
case necessarily varies with the strength of the other
evidence in the case. The other evidence may be such
as to justify a conviction without any motive being
shown. [Alternatively] [i]t may be so weak that without
a disclosed motive the guilt of the accused would be
clouded by a reasonable doubt.’’ (Internal quotation
marks omitted.) State v. Harris, 182 Conn. 220, 224,
438 A.2d 38 (1980).
Although Rigual’s testimony at the habeas hearing
concerned motive, a potentially important matter, we
nevertheless conclude that there is no reasonable prob-
ability that his testimony would have changed the out-
come of the petitioner’s criminal trial. As we previously
have explained, the state’s case against the petitioner
was relatively strong. Three separate witnesses, includ-
ing an eyewitness participant, provided consistent
accounts of the petitioner’s actual commission of the
crime and his account of it thereafter, and that account,
which was credited by the jury, was supported by other
evidence presented by the state.
Furthermore, and perhaps most important, the
habeas court concluded that a jury was unlikely to have
found Rigual credible, and we agree with the Appellate
Court that the habeas court’s finding in this regard
is not clearly erroneous.16 First, as a relative of the
petitioner, Rigual was hardly a disinterested witness;
rather, his relationship to the petitioner provided him
with a strong motive to testify in a manner helpful to
the petitioner. Second, Ortiz, Aponte and Valentin each
provided substantive, detailed and consistent state-
ments regarding the murder and the surrounding cir-
cumstances, while Rigual issued only a summary denial
of any knowledge of or connection to the crime.17 Third,
Rigual’s claim that he was only casually acquainted with
Ortiz was unlikely to be believed, as it was unaccompa-
nied by any refutation of Ortiz’ testimony that the two
men were roommates, and that Ortiz had hosted a large
birthday party for Rigual on the night of the murder.
Fourth, as the habeas court intimated, because Ortiz
had implicated Rigual in gang membership and involve-
ment in a serious crime, Rigual’s denial of the truth
of Ortiz’ testimony would be an expected response,
whether truthful or not.18 Fifth, although the petitioner
claimed that he was at Rigual’s birthday party for the
entire evening on which the murder occurred and that
the two men had driven home from the party together,
Rigual offered no testimony in support of that alibi.
Finally, the habeas court was in the best position to
observe Rigual’s conduct, demeanor and attitude while
testifying, and that court explicitly found him not
credible.19
The petitioner nevertheless contends that the testi-
mony he presented at the habeas hearing was crucial
evidence that would have undermined Ortiz’ credibility
and, had it been adduced at his criminal trial, the jury
likely would have disbelieved Ortiz. After reviewing the
record of the criminal trial, we are not persuaded. As
a general matter, the jury was fully aware of Ortiz’ bias
and his potential motivation to lie. He was subject to
rigorous cross-examination, a general attack on his
veracity by a friend, Ouellette, and an accusation by
Johnson, his former cellmate, that he had taken credit
for the victim’s murder. Demirjian focused his closing
argument on Ortiz’ lack of veracity and accused him of
committing the crime. Still, the jury found Ortiz credi-
ble. In light of the foregoing, we are not convinced that
there is a reasonable probability, had the jury also heard
Rigual’s and Simonetty’s rather cursory and self-serving
denials of their alleged involvement in the matter—
denials that the habeas court found to be not credible—
that the result would have been different.
In support of his claim, the petitioner relies on this
court’s opinions in Bryant v. Commissioner of Correc-
tion, 290 Conn. 502, 964 A.2d 1186, cert. denied sub
nom. Murphy v. Bryant, 558 U.S. 938, 130 S. Ct. 259,
175 L. Ed. 2d 242 (2009), and Gaines v. Commissioner
of Correction, supra, 306 Conn. 664. In each of those
cases, we concluded that the habeas court properly had
determined that the habeas petitioner’s trial counsel
had rendered ineffective assistance by failing to call
certain witnesses during the petitioner’s criminal trial.
Gaines v. Commissioner of Correction, supra, 678–79;
Bryant v. Commissioner of Correction, supra, 503–504.
Both cases, however, are readily distinguishable from
the present case. In Bryant, a jury convicted the peti-
tioner, Bernale Bryant, of manslaughter in the first
degree after crediting the state’s evidence that he had
dragged two men from their car and beat them, one of
them fatally, because the men had failed to pay him in
connection with a drug deal. Bryant v. Commissioner
of Correction, supra, 504–505.
In his subsequent habeas petition, Bryant alleged that
his trial counsel was ineffective for failing to present
a third party culpability defense predicated on the testi-
mony of four witnesses, namely, the driver of the car
that struck the victims’ car, two emergency medical
technicians who arrived shortly thereafter and the girl-
friend of the surviving victim, with whom that victim
had spoken shortly after the incident. Id., 506. At the
habeas trial, the driver of the other vehicle testified
that, shortly before the collision, he had heard gunshots;
that a second car was pursuing the victims’ car; that a
Hispanic man,20 carrying something in his hand, exited
the second car after the collision and looked into the
victims’ car before departing; and that at no time had
he witnessed the victims being pulled from their vehicle
and beaten. Id., 507–508. Both emergency medical tech-
nicians testified that, upon arriving at the scene, they
noticed what appeared to be a gunshot wound to the
deceased victim’s head. Id., 508. Finally, the girlfriend
of the surviving victim testified that that victim, shortly
after the incident, reported to her that ‘‘there had been
an incident with three Hispanic males and a gun.’’ (Inter-
nal quotation marks omitted.) Id.
After hearing the four witnesses’ testimony, the
habeas court in Bryant found their credibility to be
‘‘ ‘considerable and compelling’ because all four were
neutral witnesses who were not meaningfully
impeached at the habeas hearing,’’21 and, upon conclud-
ing that both prongs of Strickland had been met,
granted the petition. Id., 510–11. In holding that the
Appellate Court improperly had reversed the judgment
of the habeas court, we observed that the habeas court
reasonably found that the petitioner’s witnesses were
neutral and credible, and that their testimony, which
was fully consistent with statements they had made
contemporaneous to the events in question, provided
a firm basis for a convincing third party culpability
defense, which, we explained, ‘‘likely would have per-
meated to some degree every aspect of the [criminal]
trial and raised a reasonable doubt in the minds of the
jury as to the petitioner’s guilt.’’ Id., 523. We also noted
the dubious credibility of the state’s eyewitnesses,22
concluding that the testimony presented by Bryant at
the habeas trial ‘‘would have called into question the
most basic elements of the state’s case: (1) that [Bryant]
was the individual who killed [the victim]; and (2) that
[the victim] died as a result of a beating.’’ Id., 520.
In Gaines v. Commissioner of Correction, supra, 306
Conn. 666–67, the petitioner, Norman Gaines, was con-
victed of capital felony, murder and conspiracy to com-
mit murder in connection with the shooting deaths of
two people. The state’s trial evidence consisted, in part,
of the testimony of two individuals who claimed that
Gaines had access to the type of weapons used in the
incident and that he had taken credit for the crime. Id.,
668. Gaines testified in his own defense, denying that
he was involved in the murders and claiming that he
had a prior dispute with the two state’s witnesses, who
were lying in an effort to frame him. Id., 669, 674.
After he was convicted, Gaines filed a habeas petition
claiming that his trial counsel had been ineffective for
failing to interview and call two witnesses who could
have provided an alibi defense for him on the night
of the murders. Id., 669–70. Both of those witnesses
appeared at the habeas trial and testified that, on that
evening, Gaines had helped one of them move to a
new apartment. Id., 671–73. They provided detailed and
consistent information as to the timetable of the move
and Gaines’ participation in it, including the fact that
he did not leave at any time that evening, and they
offered reasonable explanations for why they had not
come forward sooner. Id.
The habeas court in Gaines granted the petition after
finding, inter alia, that the proffered testimony was
‘‘credible and compelling’’ and ‘‘would have served as
a substantial counterweight to the evidence of guilt
presented at trial’’ that likely would have affected the
verdict. (Internal quotation marks omitted.) Id., 675–76.
On appeal, this court agreed with the habeas court that
the alibi evidence, had it been introduced, likely would
have created a reasonable doubt as to Gaines’ guilt and
caused the jury to return a different verdict. Id., 688.
We relied heavily on the fact that the habeas court had
found the witnesses credible, despite other evidence
the state contended would have been used to impeach
them. Id., 690–91. We observed further that the state’s
case against Gaines was not particularly strong, and
that the alibi evidence would have undermined the testi-
mony of the state’s primary witnesses, who were other-
wise uncontradicted, on the seminal question of
whether Gaines had committed the murders. Id.,
691–92.
As the foregoing summaries make clear, although
Bryant and Gaines both involved ineffective assistance
of counsel claims predicated on trial counsel’s failure
to call certain witnesses, they bear little other similarity
to the petitioner’s case. First and foremost, in each of
those cases, the habeas court expressly found that the
proffered witnesses were compelling and credible.
Additionally, those witnesses were neutral, uninvolved
parties who either provided their accounts contempora-
neously with the crime at issue, or gave a sound and
credible reason for not having done so. Here, in stark
contrast, the habeas court found Rigual and Simonetty
not credible, a finding that is amply supported by the
evidence. Moreover, in addition to the fact that both
Rigual and Simonetty are related to the petitioner, the
state’s evidence implicated both of them, albeit some-
what peripherally, in the crime itself. Consequently,
they cannot be characterized as impartial or disinter-
ested witnesses. In addition, they apparently did not
come forward with their exculpatory testimony until
approximately fourteen years after the crime. Finally,
aside from issues of credibility, the substance and qual-
ity of the testimony offered by the two men differs
significantly from that provided by the witnesses in
Bryant and Gaines: unlike the testimony in those cases,
the testimony of Rigual and Simonetty was not particu-
larly detailed, and it did not directly concern the ulti-
mate issues in the case, such as whether the charged
crime actually occurred, whether a third party instead
of the petitioner committed the crime or whether the
petitioner could not have committed the crime because
he was elsewhere when it occurred.
‘‘As we have previously indicated, to satisfy the preju-
dice prong—[to show] that his trial counsel’s deficient
performance prejudiced his defense—[a habeas] peti-
tioner must establish that counsel’s errors were so seri-
ous as to deprive the [petitioner] of a fair trial, a trial
whose result is reliable. . . . The petitioner must
establish that, as a result of his trial counsel’s deficient
performance, there remains a probability sufficient to
undermine confidence in the verdict that resulted in
his appeal. . . . In order to demonstrate such a funda-
mental unfairness or miscarriage of justice, the peti-
tioner should be required to show that he is burdened by
an unreliable conviction.’’ (Citations omitted; internal
quotation marks omitted.) Michael T. v. Commissioner
of Correction, 307 Conn. 84, 101–102, 52 A.3d 655 (2012).
In the present matter, the petitioner failed to make this
showing. For that reason, we agree with the Appellate
Court that the habeas court properly dismissed the peti-
tioner’s application for a writ of habeas corpus alleging
ineffective assistance of counsel.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
General Statutes § 52-470 (g) provides in relevant part: ‘‘No appeal from
the judgment rendered in a habeas corpus proceeding brought by or on
behalf of a person who has been convicted of a crime in order to obtain
such person’s release may be taken unless the appellant, within ten days
after the case is decided, petitions the judge before whom the case was
tried . . . to certify that a question is involved in the decision which ought
to be reviewed by the court having jurisdiction and the judge so certifies.’’
We note that § 52-470 has been amended since the time the petitioner
filed his appeal from the habeas proceeding; see Public Acts 2012, No. 12-
115, § 1; by the addition of several new subsections and the recodification
of the previously existing subsections. What was previously codified as § 52-
470 (b) is currently codified as § 52-470 (g), with no language changes. For
purposes of convenience, we refer to the current revision of the statute.
2
The petitioner received a total effective sentence of sixty years impris-
onment.
3
At the time he gave his statement, Valentin was seventeen years old.
4
Throughout his cross-examination of Ortiz and subsequent closing argu-
ment, the petitioner’s trial counsel attempted to persuade the jury that Ortiz’
trial testimony was inconsistent with his earlier statement to police. Although
the testimony included more and different information than did the state-
ment, it did not directly contradict the statement. Specifically, in his written
statement, Ortiz described a conversation that he had had with Black alone
in which Black relayed to him the details of the murder. Those details are
entirely consistent with those that Ortiz, at trial, testified that the petitioner
had provided him during other conversations. On redirect examination, Ortiz
clarified that on three separate occasions, he had spoken about the murder
with, respectively, the petitioner individually, Black individually, and the
petitioner, Black and Valentin together. Ortiz testified further that, when he
gave his statement to the police, he informed them that he had first heard
of the murder from the petitioner, and then from Black.
5
See footnote 15 of this opinion.
6
Valentin initially was charged in connection with the victim’s murder,
but those charges were dismissed before he was called to testify at the
petitioner’s trial. The jury was made aware of that circumstance.
7
The petitioner also alleged that Demirjian had been ineffective for failing
to present the testimony of Morales and Roman, the local Latin Kings gang
leaders who allegedly had ordered the killing of the victim, but he failed
thereafter to submit any evidence or argument in support of those allega-
tions. Accordingly, they have been abandoned.
8
In contrast, at the petitioner’s criminal trial, Ortiz repeatedly testified
that in 1994, he was Rigual’s roommate and that, on the night of the victim’s
murder, he had hosted the birthday party for Rigual. That testimony was
not contested at the criminal trial.
9
According to Demirjian, ‘‘[t]here were a lot of Latin King[s] cases or
alleged Latin King[s] cases around the mid-90s and a lot of names were
being thrown around. There was a big federal case going on at the time.
There were several cases going on in the Bridgeport courthouse for a three
or four year period that seemed to revolve around the same twenty, twenty-
five names [that] kept coming up. Did they come up specifically in this
case? They may have. . . . I couldn’t say no, I couldn’t say yes. But they
. . . were familiar to me around the same time.’’
10
The petitioner first testified on direct examination that he learned of
Simonetty’s and Rigual’s alleged involvement in the crime when Demirjian
gave him some unspecified ‘‘statements,’’ then he claimed that the informa-
tion came from Aponte, who was able to ‘‘slip’’ him some papers when the
petitioner was in lockup. On cross-examination, the petitioner testified that
Simonetty’s and Rigual’s names came up for the first time during Ortiz’
trial testimony.
11
Specifically, the habeas court stated that, ‘‘the best that Simonetty and
Rigual could have established in this case is motive for [the petitioner] to
have committed the crimes for which he was found guilty by the jury, and
as is well known, motive is not an element of the crime.’’ As we explain more
fully hereinafter; see footnote 12 of this opinion; in light of the substance of
the two men’s testimony, we conclude that the trial court misspoke when
rendering its oral decision, and instead intended to indicate that the most
that testimony would have demonstrated, if credited, was the petitioner’s
lack of motive.
12
Additionally, in Judge Sheldon’s view, the habeas court improperly had
concluded ‘‘that [Rigual’s and Simonetty’s] testimony would have hurt the
petitioner’s defense by giving him a motive to murder [the victim] . . . .’’
Sanchez v. Commissioner of Correction, supra, 138 Conn. App. 604 (Sheldon,
J., dissenting). According to Judge Sheldon, that conclusion was
‘‘unfounded’’ because the testimony actually would have contradicted Ortiz’
testimony and the state’s theory of the case. Id., 604–605 (Sheldon, J.,
dissenting). We agree with Judge Sheldon that, in light of the substance of
Rigual’s and Simonetty’s testimony at the habeas trial, such a conclusion
simply does not make sense. We also agree with the Appellate Court majority,
however, that Judge Sheldon’s interpretation of the habeas court’s decision,
in this regard, is inaccurate. As the majority opinion explains, although the
habeas court’s oral decision may have been worded inartfully, it is more
reasonably read as expressing the court’s rationale that the proffered testi-
mony would have gone only to the question of motive and undermined the
state’s theory as to that issue. Id., 597 n.4.
Finally, Judge Sheldon contended that, in criticizing the habeas court’s
reasoning with respect to its conclusion that neither Rigual nor Simonetty
would have been a persuasive witness, he was not improperly revisiting
that court’s credibility determinations. Id., 605 n.2 (Sheldon, J., dissenting).
In support of this assertion, Judge Sheldon explained that the habeas court
did not actually make such determinations but, rather, was assessing the
likelihood that a jury would have believed Rigual and Simonetty had they
testified at the petitioner’s criminal trial. Id., 605–606 n.2 (Sheldon, J., dis-
senting). Like the Appellate Court majority, we are not convinced that this
is a distinction with any difference. Id., 601 n.6.
13
We granted the petitioner’s request for certification to appeal from the
judgment of the Appellate Court, limited to the following question: ‘‘Did the
Appellate Court correctly conclude that the habeas court did not abuse its
discretion in denying the petition for certification to appeal insofar as the
Appellate Court examined the petitioner’s underlying claim of ineffective
assistance of counsel and found the habeas court’s factual finding not to
be clearly erroneous?’’ Sanchez v. Commissioner of Correction, 307 Conn.
951, 58 A.3d 976 (2013) (setting forth certified question as modified upon
grant of Commissioner of Correction’s motion to reconsider and modify
certified question as originally stated; see Sanchez v. Commissioner of
Correction, 307 Conn. 939, 56 A.3d 949 [2012]).
14
The petitioner also argues that Demirjian failed personally to contact
Rigual and Simonetty, or to direct an investigator to do so, for the purpose
of evaluating their testimony. The petitioner did not raise this claim in the
habeas court; his claim of deficient performance, rather, was predicated
solely on Demirjian’s failure to call the two men as witnesses. Because the
petitioner’s claim of an inadequate investigation was raised for the first time
on appeal, we decline to review it. We note, moreover, that the record of
the proceedings in the habeas court does not support the claim that Demir-
jian failed to conduct an investigation to determine whether Rigual and
Simonetty might have information helpful to the defense. Neither of the two
men testified, for example, that they were not contacted by the defense,
and Demirjian testified that an investigation was conducted, but he could
not recall the specifics of that investigation.
15
We disagree with the petitioner’s suggestion that the statements of
Aponte and Valentin were not believable because they subsequently were
recanted, and that they should be disregarded when evaluating the strength
of the state’s case against him. Although out-of-court statements offered to
prove the truth of their contents ordinarily constitute inadmissible hearsay,
‘‘[i]n State v. Whelan, supra, 200 Conn. 753 . . . we adopted a hearsay
exception allowing the substantive use of prior written inconsistent state-
ments, signed by the declarant, who has personal knowledge of the facts
stated, when the declarant testifies at trial and is subject to cross-examina-
tion.’’ (Internal quotation marks omitted.) State v. Simpson, 286 Conn. 634,
641–42, 945 A.2d 449 (2008). ‘‘In addition to signed documents, the Whelan
rule [which is codified at § 8-5 (1) of the Connecticut Code of Evidence] also
is applicable to tape-recorded statements [such as Aponte’s] that otherwise
satisfy its conditions.’’ Id., 642.
‘‘The Whelan hearsay exception applies to a relatively narrow category
of prior inconsistent statements . . . [and was] carefully limited . . . to
those prior statements that carry such substantial indicia of reliability as
to warrant their substantive admissibility.’’ (Internal quotation marks omit-
ted.) Id. Like statements admitted pursuant to other hearsay exceptions,
Whelan statements are ‘‘admissible to establish the truth of the matter
asserted [within them] because [they fall] within a class of hearsay evidence
that has been deemed sufficiently trustworthy to merit such treatment. Thus,
as with all other admissible nonhearsay evidence, we allow the fact finder
to determine whether the hearsay statement is credible upon consideration
of all the relevant circumstances.’’ Id., 642–43.
The statements at issue were signed, sworn and consistent with the other
evidence presented at trial. Although at trial, Aponte testified that his state-
ment was false and that Ortiz had directed him to provide it, the jury
apparently disbelieved him. As to Valentin, there was no evidence suggesting
that Ortiz had influenced him in similar fashion. Moreover, Valentin’s state-
ment, insofar as it directly implicated Valentin himself in the crime, bore
particular indicia of reliability. Cf. State v. DeFreitas, 179 Conn. 431, 448–49,
426 A.2d 799 (1980) (recognizing that otherwise trustworthy or corroborated
statement against penal interest provides considerable assurance of reliabil-
ity). In sum, the jury, after considering all of the relevant circumstances,
reasonably found Valentin’s and Aponte’s statements to be credible and
their recantations to be false.
16
Like Judge Sheldon in his dissent, we agree with the petitioner that the
fact that a witness has a criminal background does not necessarily render his
or her testimony not credible. See Sanchez v. Commissioner of Correction,
supra, 138 Conn. App. 605–606 n.2. As we explain hereinafter, however, the
habeas court’s finding that Rigual would not have been found credible by
a jury is amply supported by the record and, therefore, not clearly erroneous.
Although the habeas court, in its oral ruling, focused on Rigual’s criminal
record, we nevertheless may presume, in the absence of any indication to
the contrary, that the court considered all of the evidence when assessing
his credibility. See Gaines v. Commissioner of Correction, supra, 306
Conn. 690–91.
17
For the most part, Rigual’s answers to the questions posed of him at
the habeas trial consist of one word responses, without elaboration.
18
As we previously have noted, in finding that Rigual and Simonetty lacked
credibility, the habeas court referred to their ‘‘motive to be deceptive . . . .’’
19
Quite apart from the credibility of Rigual and Simonetty, we agree with
the state that the petitioner also failed to establish that, had Rigual and
Simonetty been called to testify at his criminal trial, they would have done
so rather than invoke their privilege against self-incrimination, an option
that would have been very appealing in light of the state’s evidence implicat-
ing them in the events surrounding the victim’s murder. Indeed, neither
Rigual nor Simonetty testified that he would have appeared and given his
version of events at the petitioner’s trial, had he been asked. Thus, this is
not a case in which potential witnesses came forward with information
before or during a criminal trial, but were turned away by defense counsel.
In fact, it is not clear whether either man, both of whom are related to the
petitioner, appeared voluntarily even at the petitioner’s habeas trial, as
the record reflects that Rigual’s and Simonetty’s presence was secured
by subpoena.
20
Bryant is African-American. Bryant v. Commissioner of Correction,
supra, 290 Conn. 507 n.4.
21
‘‘Specifically, the habeas court stated, ‘[a]t this point, the court needs
to comment upon the credibility of the four missing witnesses. In brief, it
is considerable and compelling. All four of these individuals are law-abiding
citizens; there was no meaningful impeachment of their testimony at the
habeas trial; and, none of the witnesses knew or were in any way acquainted
or associated with the petitioner. They are completely disinterested, obser-
vant, qualified and dispassionate witnesses. All of them have appropriate
training that would allow them to make the statements that they did. This
court, being in the best position to judge the credibility of the proffered
witnesses, believes that a jury likewise would have found their testimony
to be credible and highly persuasive.’’ (Internal quotation marks omitted.)
Bryant v. Commissioner of Correction, supra, 290 Conn. 511 n.6.
22
The state’s eyewitnesses were the surviving victim, who was highly
intoxicated at the time of the offense and admitted that he had lied to police
officers investigating the incident, and an individual who did not make a
statement until four years later during an interrogation following his unre-
lated felony arrest. Bryant v. Commissioner of Correction, supra, 290 Conn.
519. The two witnesses gave inconsistent statements as to whether Bryant
had beaten both victims or only the deceased victim. Id., 519, 525. Addition-
ally, the second witness was only fourteen years old at the time of the
incident, and he admitted that he was under the influence of marijuana.
Id., 524.