Brown v. Commissioner of Correction ( 2015 )

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RANDALL BROWN v. COMMISSIONER
OF CORRECTION
(AC 37056)
DiPentima, C. J., and Keller and Mihalakos, Js.
Argued September 18, 2015—officially released December 15, 2015
(Appeal from Superior Court, judicial district of
Tolland, Mullins, J.)
Patrick Paoletti, with whom, on the brief, were Gray-
son Colt Holmes and Stephanie M. O’Neil, for the appel-
lant (petitioner).
Rita M. Shair, senior assistant state’s attorney, with
whom, were Tamara Grosso, assistant state’s attorney,
and, on the brief, Gail P. Hardy, state’s attorney, for
the appellee (respondent).
Opinion
MIHALAKOS, J. The petitioner, Randall Brown,
appeals following the judgment of the habeas court
denying his amended petition for a writ of habeas cor-
pus. On appeal, the petitioner claims that the habeas
court erred when it found that his criminal trial counsel,
Robert Meredith, did not render ineffective assistance
of counsel by failing to fully investigate and call two
potential alibi witnesses. We affirm the judgment of the
habeas court.
The following facts, as set forth in the petitioner’s
direct appeal; see State v. Brown, 299 Conn. 640, 11
A.3d 663 (2011); and procedural history are relevant to
our resolution of this appeal. On May 23, 2005, the
petitioner, along with three others, Eddy Hall, Jr., Idris
France, and Chijoke Jackson, attempted to rob the vic-
tim, Demarco Mitchell. Id., 644–45. After entering the
victim’s car, ostensibly to purchase crack cocaine,
France pointed a gun at his head. Id., 645. The victim
and France struggled for control of the gun; the victim
then fled. Id. The petitioner chased the victim, who
tripped and fell near the curb of 103–105 Colebrook
Street in Hartford. Id., 646. The petitioner shot the vic-
tim in the head and drove away in a car driven by
Jackson. Id.The petitioner was arrested and charged with felony
murder in violation of General Statutes § 53a-54c, mur-
der in violation of General Statutes § 53a-54a (a), rob-
bery in the first degree in violation of General Statutes
§§ 53a-134 (a) (4) and 53a-8, attempt to commit robbery
in the first degree in violation of General Statutes
§§ 53a-49 (a) (2) and 53a-134 (a) (4), conspiracy to com-
mit robbery in the first degree in violation of General
Statutes §§ 53a-48 (a) and 53a-134 (a) (4), carrying a
pistol or revolver without a permit in violation of Gen-
eral Statutes § 29-35 (a) and criminal possession of a
firearm in violation of General Statutes § 53a-217 (a)
(1). Id., 643. Following a jury trial, the petitioner was
convicted on all seven counts and sentenced to ‘‘a total
effective term of fifty-five years incarceration.’’ Id., 646.
Our Supreme Court affirmed the conviction on direct
appeal. Id., 643. Thereafter, on August 16, 2013, the
petitioner filed an amended petition for a writ of habeas
corpus challenging his conviction on the ground of inef-
fective assistance of counsel. As relevant to the present
appeal, he claimed that Meredith was ineffective in fail-
ing to investigate and present the testimony of Tonya
Horne and Pasquale Sanseverino, which he claimed
would have established an alibi for him at the time of
the murder.1 Following trial, the habeas court denied
the petition. Thereafter, the petitioner sought certifica-
tion to appeal from the denial of his petition for writ
of habeas corpus, which the habeas court granted. On
appeal, the petitioner claims that the habeas court
improperly found that Meredith was not ineffective in
failing to further investigate and call Horne and Sansev-
erino as alibi witnesses. Additional facts will be set
forth as necessary.
We begin by setting forth the applicable standard of
review and the law governing ineffective assistance of
counsel claims. ‘‘The habeas court is afforded broad
discretion in making its factual findings, and those find-
ings will not be disturbed unless they are clearly errone-
ous. . . . Historical facts constitute a recital of
external events and the credibility of their narrators.
. . . Accordingly, [t]he habeas judge, as the trier of
facts, 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.) Anderson v. Commissioner of Correction,
313 Conn. 360, 375, 98 A.3d 23 (2014), cert. denied sub
nom. Anderson v. Semple, U.S. , 135 S. Ct. 1453,
191 L. Ed. 2d 403 (2015).
‘‘[A] criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings. Strickland v. Wash-
ington, [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 constitu-
tion and article first, § 8, of the Connecticut constitu-
tion. . . . As enunciated in Strickland v. Washington,
supra, 687, this court has stated: It is axiomatic that the
right to counsel is the right to the effective assistance of
counsel. . . . A claim of ineffective assistance of coun-
sel 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 competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. . . . To
satisfy the prejudice prong, a claimant must demon-
strate 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.’’ (Internal
quotation marks omitted.) Gaines v. Commissioner of
Correction, 306 Conn. 664, 677–78, 51 A.3d 948 (2012).
I
We first consider whether the habeas court properly
concluded that Meredith was not ineffective in failing
to investigate Horne further. The petitioner argues that
Horne’s testimony that she went to Action Auto Center
(Action Auto)2 with the petitioner on May 23, 2005,
and then spent the entire night with him would have
accounted for his location at the time of the murder.
He asserts that Meredith and Meredith’s investigator,
Jennifer Lee, should have investigated Horne further
because her testimony could have provided the peti-
tioner with an alibi. The respondent, the Commissioner
of Correction, contends that Meredith’s decision not to
further investigate Horne was reasonable because her
testimony regarding Action Auto would not account for
the petitioner’s location when the murder occurred.
Further, there was a discrepancy between when the
petitioner said he and Horne were at Action Auto and
when Horne said they were there. Finally, the respon-
dent argues that Meredith could have determined that as
the petitioner’s girlfriend, Horne would lack credibility.
We agree with the respondent.
The following additional facts are relevant to our
resolution of this claim. The petitioner testified at the
habeas trial that from their first meeting, he told Mere-
dith he was not present at the time of the murder, but
rather was at Action Auto with Horne. He maintained
that Horne would confirm this and that his brother
would help Meredith to get in contact with the people
at Action Auto. The petitioner testified that he provided
Meredith with contact information for Horne and his
brother. He did not testify, until asked by his habeas
attorney, that he told Meredith that Horne was with him
the entire time; moreover, he testified in an ambiguous
manner, such that it is unclear whether he told Meredith
that Horne was with him the entire time he was at
Action Auto, or for the rest of the night.3
The petitioner further testified regarding what he did
at Action Auto and for the rest of the night. When
he arrived, it was dark and Action Auto was closed,
although there were still some people present. He
knocked on the door and a man, whom he identified
at the habeas trial as Sanseverino, opened the door for
him. The petitioner purchased an amplifier for his car
and received a receipt.4 He testified that he left the
amplifier at his mother’s house, went to get Chinese
food, and then went to Horne’s house. It was there that
he received a telephone call concerning the Colebrook
Street shooting; he then called his mother, who lived
four or five blocks from Colebrook Street, to make sure
that neither she nor his brother had been hurt.
Meredith testified regarding his conversations with
the petitioner and his investigation into the potential
for an alibi defense based on the testimony of Sansever-
ino and Horne. He testified that at their first meeting,
the petitioner stated that he had not committed the
crime and he was at Action Auto at 8:55 p.m., the time
at which the police received the 911 call about the
murder. The petitioner further informed Meredith that
the store closed at 9 p.m., and that he was ushered
out of the store quickly because it was closing. The
petitioner told Meredith that both ‘‘Pasquale,’’ whose
last name he did not know, and Horne were with him.
Meredith requested that Lee verify the alibi that the
petitioner was at Action Auto at 9 p.m., went to his
mother’s house, and then spent the night with Horne.
Meredith also testified that Lee interviewed Horne.
Lee testified regarding her interview with Horne,
whom she understood to be the petitioner’s girlfriend.
The interview was by telephone; Horne confirmed that
she was with the petitioner to procure speakers5 at
Action Auto on May 23, 2005. Lee’s notes, which were
submitted into evidence at the habeas trial, indicated
that the petitioner and Horne were at Action Auto at
around sundown, where they met an individual named
Pasquale. They stayed for fifteen to twenty minutes,
then took the amplifier to the petitioner’s mother’s
house. Horne also testified at the habeas trial, but stated
that she did not remember speaking to Lee.6
Meredith testified that following her investigation,
Lee provided him with her notes. On the basis of Lee’s
notes, Meredith decided not to investigate Horne fur-
ther as an alibi witness; he explained his decision in
his habeas testimony. He noted that according to Lee’s
notes Horne said she and the petitioner arrived at Action
Auto as it was getting dark or about to get dark. Mere-
dith testified: ‘‘[T]hat was a critical piece of information
because what that told me when I put two and two
together is that, at best, Tonya Horne was at Action
Auto at 8:12. That’s inconsistent with the alibi that [the
petitioner] told me because he said he was at Action
Auto at 9. She said she was there for about twenty
minutes when it was just about getting dark. So if you
add that up, give her the benefit of the doubt, then
we’re at 8:12, the sun’s setting,7 she’s at Action Auto
for twenty minutes. That brings us to 8:32.’’ Meredith
maintained that this left the petitioner with ample time
to drive from the Berlin Turnpike, where Action Auto
was located, to the location of the crime by 8:55 p.m.
He then explained his decision not to call Horne as an
alibi witness: ‘‘[I]f anyone did any investigation and she
were to testify at trial and said she was there for about
twenty minutes and upon cross-examination she’s not
gonna be a good alibi witness because the alibi is not—
based on her testimony, the alibi—based on those notes,
what her anticipated testimony would be, she wouldn’t
be a good alibi witness because essentially she doesn’t
provide the alibi that [the petitioner] was at Action Auto
at the time of the crime, 8:55.’’ Meredith did not recall
whether the notes said that Horne was with the peti-
tioner for the entire night. Meredith also testified that
while the petitioner maintained his claim that he was
at Action Auto, just prior to trial the petitioner told
Meredith he was on Colebrook Street at the time of
the incident.
In its memorandum of decision, the habeas court
found that Meredith ‘‘conducted a reasonable investiga-
tion into the information provided by Horne, and ade-
quately explained why he chose not to call her to testify
at trial.’’ The habeas court found that Meredith’s con-
duct did not constitute deficient performance and that
the petitioner had failed to establish that he was preju-
diced by Meredith’s performance. We agree.
‘‘[A] court deciding an actual ineffectiveness claim
must judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as
of the time of counsel’s conduct. . . . At the same time,
the court should recognize that counsel is strongly pre-
sumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable
professional judgment.’’ (Internal quotation marks
omitted.) Gaines v. Commissioner of Correction,
supra, 306 Conn. 679–80. ‘‘The reasonableness of coun-
sel’s actions may be determined or substantially influ-
enced by the [petitioner’s] own statements or actions.
Counsel’s actions are usually based, quite properly, on
informed strategic choices made by the [petitioner] and
on information supplied by the [petitioner]. . . .
[W]hen a defendant has given counsel reason to believe
that pursuing certain investigations would be fruitless
or even harmful, counsel’s failure to pursue those inves-
tigations may not later be challenged as unreasonable.’’
Id., 681. ‘‘[O]ur habeas corpus jurisprudence reveals
several scenarios in which courts will not second-guess
defense counsel’s decision not to investigate or call
certain witnesses or to investigate potential defenses,
such as when . . . counsel learns of the substance of
the witness’ testimony and determines that calling that
witness is unnecessary or potentially harmful to the
case . . . .’’ (Footnote omitted.) Id., 681–82.
The failure to investigate a potential alibi may provide
grounds for granting a habeas petition, depending on
the potential reliability of the alibi and the reasonable-
ness of counsel’s decision not to investigate it. See id.,
666 (granting petition that claimed failure to investigate
alibi witness), but see Llera v. Commissioner of Correc-
tion, 156 Conn. App. 421, 430, 114 A.3d 178 (denying
petition that claimed insufficient investigation of alibi
witness), cert. denied, 317 Conn. 907, 114 A.3d 1222(2015). ‘‘Defense counsel will be deemed ineffective
only when it is shown that a defendant has informed
his attorney of the existence of the witness and that
the attorney, without a reasonable investigation and
without adequate explanation, failed to call the witness
at trial.’’ (Internal quotation marks omitted.) Gaines v.
Commissioner of Correction, supra, 681.
In considering the performance prong of Strickland,
the habeas court must focus on the evidence regarding
what Meredith knew when he made the decision, rather
than on what Horne testified to at the habeas trial but
did not testify that she related to Lee or Meredith. See
Gaines v. Commissioner of Correction, supra, 306
Conn. 679–80 (reasonableness of counsel’s conduct
viewed as of time of counsel’s conduct). The petitioner
claims that Meredith knew or should have known two
ways Horne could have provided the petitioner with an
alibi. First, she could have demonstrated that she and
the petitioner were at Action Auto at the time of the
murder. Second, she could have demonstrated that she
and the petitioner were together for the rest of the
night. We disagree and conclude that the habeas court
properly determined that Meredith’s performance was
not deficient due to his failure to investigate Horne
further.
With respect to the petitioner’s claim that Horne
would have demonstrated that she and the petitioner
were at Action Auto at the time of the murder, the
habeas court credited Meredith’s calculations that there
was sufficient time between when the petitioner and
Horne would have left Action Auto and when the mur-
der occurred for the petitioner to get to the murder
scene. We agree with the habeas court’s factual determi-
nation on this issue, especially given that Meredith’s
calculations were premised on the latest possible time
that the petitioner and Horne could have left Action
Auto. Because Horne’s statement to Lee that it was
‘‘getting dark’’ is not a precise time on which to predi-
cate an alibi, it was quite possible that Horne’s testi-
mony would have indicated that they left Action Auto
significantly earlier than the 8:32 p.m. time that Mere-
dith indicated was the latest possible time they could
have left.
We next consider whether Meredith, after concluding
that Horne’s testimony regarding the petitioner’s pres-
ence at Action Auto would not provide the alibi the
petitioner had claimed it would, should have investi-
gated further the possibility that Horne could provide
an alibi by testifying that she and the petitioner were
together for the entire night. Even in his habeas testi-
mony, the petitioner focused on Action Auto, and made
only one ambiguous reference regarding being with
Horne the entire time after he was prompted by his
habeas attorney.8 The investigation request written by
Meredith directed Lee to verify the petitioner’s alibi
that he was at Action Auto at 9 p.m. on the night of
the murder; it also briefly noted the petitioner’s state-
ment that he brought the amplifier to his mother’s house
and then spent the night at Horne’s house. According
to Lee’s notes, Horne stated that after leaving Action
Auto, she and the petitioner dropped the amplifier off
at the petitioner’s mother’s house; the notes do not say
whether Horne mentioned anything about being with
him for the rest of the night. According to the petition-
er’s habeas testimony, his mother’s house was approxi-
mately four or five blocks from Colebrook Street, where
the murder occurred. Although Meredith could have
investigated further whether Horne could provide an
alibi for the rest of the night, he testified that he was
worried about setting up an alibi that the jury would
easily dismiss. Instead, Meredith chose to focus on the
weaknesses in the state’s case.
We agree with the habeas court that Meredith’s deci-
sion to focus on the weaknesses in the state’s case was
a valid trial strategy. In the context in which Horne was
suggested as a witness, and given what Meredith knew
at the time, the habeas court properly determined that
the petitioner failed to demonstrate that Meredith’s per-
formance was deficient. The petitioner has not met his
burden of demonstrating that Meredith’s ‘‘representa-
tion was not reasonably competent or within the range
of competence displayed by lawyers with ordinary train-
ing and skill in the criminal law.’’ (Internal quotation
marks omitted.) Gaines v. Commissioner of Correc-
tion, supra, 306 Conn. 678.
Even if Meredith’s performance was deficient, how-
ever, the petitioner nonetheless has also failed to prove
that he was prejudiced by Meredith’s failure to call
Horne as a witness at the petitioner’s criminal trial. The
petitioner asserts that Horne could have presented a
valuable alternative to the prosecution’s version of the
murder by providing the petitioner with an alibi, and
that this alibi would have been valuable whether the
jury concluded that the petitioner was at Action Auto
or elsewhere with Horne at the time of the murder. The
petitioner contends that the issue of Horne’s potential
bias as the petitioner’s girlfriend was not raised at the
habeas trial and her testimony at the petitioner’s crimi-
nal trial would have created a reasonable probability
that the outcome of the proceedings would have been
different. The respondent claims that the inconsistency
between Horne’s statements and the petitioner’s testi-
mony demonstrated how weak her testimony would be,
and that her testimony could not have made a difference
to the state’s strong case against the petitioner.
To prevail on the prejudice prong of a claim of ineffec-
tiveness of counsel, the petitioner ‘‘must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the
outcome.’’ Strickland v. Washington, supra, 466 U.S.
694. ‘‘[T]he question is whether there is a reasonable
probability that, absent the [alleged] errors, the fact
finder would have had a reasonable doubt respecting
guilt.’’ Id., 695. ‘‘In making this determination, a court
hearing an ineffectiveness claim must consider the
totality of the evidence before the judge or the jury.
. . . Some errors will have had a pervasive effect on
the inferences to be drawn from the evidence, altering
the entire evidentiary picture, and some will have had an
isolated, trivial effect. Moreover, a verdict or conclusion
only weakly supported by the record is more likely to
have been affected by errors than one with overwhelm-
ing record support.’’ Id., 695–96. ‘‘This 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.’’ (Internal quotation marks
omitted.) Greene v. Commissioner of Correction, 96
Conn. App. 854, 857, 902 A.2d 701, cert. denied, 280
Conn. 916, 908 A.2d 536 (2006).
The following additional facts are relevant to our
resolution of this claim. Horne testified at the habeas
trial that she and the petitioner went to Action Auto to
buy an amplifier, although she could not testify as to
the time. Horne further testified that, after they dropped
the amplifier off at the petitioner’s mother’s house, they
rode around for a little while, and when they ‘‘got
home,’’ the petitioner received a call about the shooting.
As previously stated, Meredith also testified that while
the petitioner maintained his claim that he was at Action
Auto, just prior to trial the petitioner stated to Meredith
that he was on Colebrook Street at the time of the
incident.
The habeas court determined that the petitioner had
failed to meet his burden of establishing that there
was a reasonable probability that the outcome of the
proceeding would have been different had Horne been
called to testify at the petitioner’s criminal trial. On the
basis of our review of the record, we agree with the
habeas court that there was not a reasonable probability
that Horne’s testimony would have altered the outcome
of the trial. Horne’s habeas testimony suggests that she
could have testified that at the time of the murder, she
and the petitioner were riding around together in the
vicinity of Colebrook Street. The petitioner’s contradic-
tory statements regarding whether he was on Colebrook
Street create doubt as to the credibility of his claim
regarding Horne’s effectiveness as a witness. In con-
trast, at the criminal trial the petitioner was identified
by three separate eyewitnesses. In addition, one of the
witnesses, Hall, testified that the petitioner told him
‘‘to say that [the petitioner] wasn’t there the night of
the shooting.’’9
Although two of the eyewitnesses were coconspira-
tors who told conflicting stories, the third was the vic-
tim’s half-brother, Devon Roberts. Roberts and Jackson
stated that they saw the petitioner shoot the victim.
Also, Hall testified that the petitioner stood over him
with a gun, then ran toward the victim. Hall then heard
gunshots, but did not see the petitioner shoot the
victim.
The petitioner claims that each eyewitness lacked
credibility. The petitioner notes that Jackson and Hall
presented conflicting testimony regarding a number of
details, including what the petitioner was wearing. He
also claims that Roberts’ testimony lacked credibility
because Roberts informed the police about what he
saw two months after the shooting; he testified at trial
that he fled the scene because he had an outstanding
warrant for his arrest. This evidence was before the jury.
Although there were weaknesses in the state’s case,
the evidence presented at the habeas trial does not
demonstrate a reasonable probability that, but for Mere-
dith’s decision not to call Horne as a witness, the result
of the proceeding would have been different. The
habeas court, therefore, properly concluded that the
petitioner had failed to demonstrate that Meredith’s
decision not to interview Horne further or to call her
as a witness at trial constituted ineffective assistance
of counsel.
II
We next consider the petitioner’s claim that he was
prejudiced by Meredith’s failure to call Sanseverino as
a witness.10 The petitioner argues that Sanseverino was
a disinterested witness who could have testified that
the petitioner was at Action Auto at the time of the
murder and who could have bolstered Horne’s credibil-
ity. The respondent asserts that the timing issues make
it clear that, even if the jury believed Sanseverino, his
testimony would not provide an alibi for the petitioner.
The following additional facts are relevant to our resolu-
tion of this claim.
Lee testified that she obtained the receipt for the
amplifier the petitioner purchased at Action Auto and
took pictures of what she termed the ‘‘speaker box’’ at
the petitioner’s mother’s house. The petitioner identi-
fied the box as the amplifier box, which contained both
speakers and an amplifier. In addition, Lee spoke to
another employee at Action Auto, who confirmed that
Sanseverino frequently sold audio equipment at Action
Auto, although he was not employed there.
Sanseverino testified at the habeas trial regarding his
encounter with the petitioner. He was working at Action
Auto on the Berlin Turnpike in May of 2005. Sanseverino
stated that in May, 2005, Action Auto closed at 6 p.m.
on Sunday; 7 p.m. on Monday, Tuesday, and Wednesday;
and 8 p.m. on Thursday, Friday, and Saturday, but he
did not know what day of the week it was when the
petitioner came to the store. He saw the petitioner
knocking on the door after the store was closed. He
then sold him an amplifier and gave him a receipt. When
presented with the petitioner’s copy of the receipt, he
identified it as the same, confirming the model number
of the amplifier he sold to the petitioner. Sanseverino
also recalled that after the petitioner bought the ampli-
fier, they went out to the petitioner’s car, where Sansev-
erino saw a female passenger in the car. He testified
that the process took thirty to forty-five minutes, that
when the petitioner left depended on whether they
closed at 7 p.m. or 8 p.m. that day, and that the petitioner
could have left at 8:30 p.m. or 8:45 p.m. He identified the
receipt as corresponding to the amplifier the petitioner
purchased, and noted it stated the date as May 23, 2005.
The habeas court indicated that May 23, 2005, the
day the murder occurred, was a Monday; it then found
that ‘‘[t]he testimony by Sanseverino regarding the peti-
tioner’s presence at Action Auto . . . approximately
thirty minutes after the store closed at 7 p.m. directly
contradicts the petitioner’s testimony that he arrived
at the store around 9 p.m. and stayed for an hour to
an hour and a half, and does not provide a strong alibi
defense for the petitioner based on the time of the
victim’s murder.’’ It therefore determined that the peti-
tioner had not shown a reasonable probability that the
outcome of the proceedings would have been different
had Meredith called Sanseverino, and that it need not
determine whether Meredith’s conduct constituted defi-
cient performance. We likewise conclude that the peti-
tioner failed to meet his burden of establishing that he
was prejudiced by Meredith’s performance.
The timing issues cited by the habeas court demon-
strate that Sanseverino’s testimony would not have
been any more helpful than Horne’s regarding the peti-
tioner’s presence at Action Auto.11 The habeas court
properly concluded that Sanseverino’s testimony did
not demonstrate a reasonable probability that, but for
Sanseverino’s absence, the result of the petitioner’s
criminal trial would have been different.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The petitioner also alleged ineffective assistance regarding Meredith’s
failure to call additional witnesses to establish a third party culpability
defense and to conduct further pretrial investigations regarding whether
the petitioner was ever incarcerated with Hall, such that Hall could have
heard inculpatory statements made by the petitioner. He has not pursued
these claims on appeal, and, therefore, they are deemed abandoned. See
Atkinson v. Commissioner of Correction, 125 Conn. App. 632, 636 n.5, 9
A.3d 407 (2010), cert. denied, 300 Conn. 919, 14 A.3d 1006 (2011).
2
Witnesses and the parties vary regarding whether the name of this store
is Action Auto, Action Audio, Action Auto Center, or Action Auto Sound.
For the purposes of this opinion, we will refer to it as Action Auto.
3
The petitioner’s attorney examined him as follows:
‘‘Q. Did you tell him that you were with Tonya Horne?
‘‘A. Yes.
‘‘Q. Did you tell him that you went to Action [Auto]?
‘‘A. Yes.
‘‘Q. Did you tell him that afterwards—that Tonya Horne was with you
the entire time?
‘‘A. Yes.’’
4
The receipt for the amplifier was admitted as an exhibit at the habeas
trial, was signed by Sanseverino and bore the date of May 23, 2005.
5
The petitioner later clarified that the amplifier box contained speakers
and an amplifier; this explains the inconsistency in how the parties referred
to it.
6
As will be discussed in the following colloquy, Horne testified at the
habeas trial regarding the night of the murder, but she said she did not
remember Lee; she testified at the habeas trial that she remembered speaking
to a lawyer as follows:
‘‘Q. Okay. And when [the petitioner] got an attorney, did you ever speak
to the attorney?
‘‘A. Mm-hmm.
‘‘Q. And what did you tell the attorney?
‘‘A. That I was with [the petitioner].
‘‘Q. Okay. Did you explain why that was important?
‘‘A. I didn’t—I don’t remember me explaining it.
‘‘Q. Okay. But you essentially told the attorney that you were with [the
petitioner] when?
‘‘A. The day of the murder.
‘‘Q. Okay. Did you tell the attorney—or do you remember a conversation
about Action Auto?
‘‘A. I’m not for sure.’’
7
Meredith testified that Lee printed out a weather report for the night of
the murder, which stated the time of sunset. He kept a copy of this weather
report, which was submitted into evidence.
8
See footnote 3 of this opinion.
9
Hall testified, outside of the jury’s presence, that this conversation
occurred at ‘‘Walker,’’ i.e., MacDougall-Walker Correctional Institution. In
the habeas trial, the petitioner claimed he was not incarcerated at MacDou-
gall-Walker, but at Cheshire Correctional Institution. The records specialist
for the Department of Correction, Michelle Deveau, testified at the habeas
trial that inmates at different institutions may be transported to a central
location prior to court appearances. The habeas court found that Meredith
was not ineffective in failing to further investigate this issue, and the peti-
tioner does not raise it on appeal.
10
The habeas court did not determine whether Meredith’s failure to investi-
gate Sanseverino constituted deficient performance. ‘‘If it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient prejudice
. . . that course should be followed.’’ (Internal quotation marks omitted.)
Smith v. Commissioner of Corrections, 141 Conn. App. 626, 632, 62 A.3d
554, cert. denied, 308 Conn. 947, 67 A.3d 290 (2013).
11
The petitioner also argues that Sanseverino’s testimony could have bol-
stered Horne’s testimony that the petitioner was with her for the rest of
the night. Although Sanseverino’s testimony could have bolstered Horne’s
testimony about the petitioner being at Action Auto, it would have shed
little light on the veracity of Horne’s testimony regarding what followed.
Even with Sanseverino’s testimony, Horne’s testimony would not have been
sufficient to create a reasonable probability of a different result in the
petitioner’s criminal trial.