Read v. Commissioner of Correction ( 2014 )

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RICHARD READ v. COMMISSIONER
OF CORRECTION
(AC 35522)
DiPentima, C. J., and Lavine and Beach, Js.
Argued September 26—officially released November 18, 2014
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Michael Zariphes, assigned counsel, for the appel-
lant (petitioner).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Brian Preleski, state’s
attorney, and Bruce R. Lockwood and Angela R. Macchi-
arulo, senior assistant state’s attorneys, for the appel-
lee (respondent).
Opinion
PER CURIAM. The petitioner, Richard Read, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus. On appeal, the
petitioner claims that the habeas court erred in conclud-
ing that his trial counsel did not render ineffective assis-
tance. We affirm the judgment of the habeas court.
The following facts and procedural history are rele-
vant to our discussion. The petitioner was convicted
of murder, following a jury trial, and subsequently was
sentenced to fifty years incarceration. The petitioner
appealed and this court affirmed the conviction. State
v. Read, 132 Conn. App. 17, 29 A.3d 919, cert. denied,
303 Conn. 916, 33 A.3d 740 (2011). The petitioner claims
that his trial counsel performed deficiently because he
did not contact PokerStars, an online gaming website,
in order to confirm that the petitioner had been logged
onto the website during the evening of the murder.
The murder of which the petitioner was convicted
occurred on October 21, 2005, at approximately 11:45
p.m. At the petitioner’s criminal trial, both the defense
and the prosecution utilized computer experts. Each
expert had examined the petitioner’s computer, but nei-
ther was able to determine whether the petitioner had
been playing online poker on the evening of the murder.
Trial counsel’s investigator did not contact PokerStars,
the online website used by the petitioner, and neither
the defense expert nor the state’s expert contacted
the website.
At the habeas trial, the petitioner presented another
computer expert, Monique Mattei-Ferraro, who testified
that (1) she was able to contact PokerStars via e-mail;
(2) PokerStars had activity logs going back to the time
of the murder; and (3) PokerStars’ records showed that
the petitioner’s username had been logged into the web-
site between 4:43 p.m. and 10:07 p.m. on October 21,
2005, and again between 2:02 a.m. and 4:10 a.m. on
October 22, 2005. Mattei-Ferraro also testified that, in
her opinion, this information would have been available
at the time of the petitioner’s trial in 2007, but that she
had not made this specific inquiry of PokerStars.
The petitioner filed a petition for a writ of habeas
corpus on March 28, 2008.1 After a hearing, the habeas
court denied the petition, reasoning that the petitioner
failed to prove that there was a reasonable probability
that the presentation of additional evidence or experts
from the poker site would have changed the outcome
of the trial. The habeas court granted the petition for
certification to appeal and this appeal followed.
‘‘In a habeas appeal, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous, but our review of whether the
facts as found by the habeas court constituted a viola-
assistance of counsel is plenary.’’ (Internal quotation
marks omitted.) McClellan v. Commissioner of Correc-
tion, 103 Conn. App. 159, 161, 927 A.2d 992 (2007).
‘‘[Under] the familiar two part test for ineffective
assistance of counsel enunciated by the United States
Supreme Court in Strickland [v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] . . .
the . . . [c]ourt determined that the claim must be sup-
ported by evidence establishing that (1) counsel’s repre-
sentation fell below an objective standard of
reasonableness, and (2) counsel’s deficient perfor-
mance prejudiced the defense because there was a rea-
sonable probability that the outcome of the proceedings
would have been different had it not been for the defi-
cient performance.’’ (Internal quotation marks omit-
ted.) Gonzalez v. Commissioner of Correction, 308
Conn. 463, 485, 68 A.3d 624, cert. denied sub nom. Dzur-
enda v. Gonzalez, U.S. , 134 S. Ct. 639, 187 L.
Ed. 2d 445 (2013). ‘‘The second part of the Strickland
analysis requires more than a showing that the errors
made by counsel may have had some effect on the
outcome of the proceeding. . . . Rather, [the peti-
tioner] must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’’ (Internal
quotation marks omitted.) Peruccio v. Commissioner
of Correction, 107 Conn. App. 66, 79, 943 A.2d 1148,
cert. denied, 287 Conn. 920, 951 A.2d 569 (2008). ‘‘A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.’’ Strickland v.
Washington, supra, 694.
The petitioner argues that the habeas court should
have concluded that his trial counsel was ineffective
for failing to direct and to prepare his computer expert
properly in order to obtain and to present evidence that
the petitioner was playing poker online on October 21,
2005,2 the date of the murder.3 Having reviewed the
record, we conclude that the habeas court properly
concluded that the petitioner failed to carry his burden
of establishing prejudice under Strickland.
The evidence presented against the petitioner at the
criminal trial was strong. The state presented evidence
in the criminal trial that the petitioner had spoken to
the victim on the night of the murder, the petitioner’s
DNA was present on a cigarette butt and a Jack Daniels
bottle found near the victim’s body, the petitioner had
access to a gun that was the same caliber as the murder
weapon, ammunition of the same caliber was found in
a pillowcase belonging to the petitioner in a shed where
he admitted to having been that night, the petitioner’s
story of where he had been the night of the murder had
changed several times and was somewhat far-fetched,4
and the petitioner had admitted to a fellow inmate that
he had shot the victim over a disagreement concerning
a poker game. The evidence that the petitioner claims
his trial counsel should have discovered and introduced
at trial was that the petitioner’s username was logged
onto PokerStars between 4:43 p.m. and 10:07 p.m. on
October 21, 2005, and again between 2:02 a.m. and 4:10
a.m. on October 22, 2005. Trial counsel testified at the
habeas trial that he had pursued a reasonable doubt
defense and that, even if he had known of the ‘‘new’’
evidence, he would not have presented that evidence
to the jury: ‘‘No, that wouldn’t . . . have helped my
case at all. . . . [I]f the state had been aware of this
evidence, I would have stayed away from the topic of
his potentially being on [PokerStars] altogether because
it was a short distance from the [petitioner’s] home to
where the body was found, and being off the computer
at 10:07 or whatever it was and by—there’s plenty of
time to be off the computer and accomplish the shoot-
ing.’’ The evidence demonstrated that the petitioner’s
username was not logged on for several hours before
and after the murder, and the jury reasonably could
have thought that the evidence was inculpatory. The
habeas court did not err in concluding that the peti-
tioner was not prejudiced by the failure of his trial
counsel to discover and enter into evidence facts that
were detrimental to the petitioner’s case.5
The judgment is affirmed.
1
The petitioner filed an amended petition on June 18, 2012, alleging three
counts. At the habeas trial, on November 5, 2012, the petitioner withdrew
counts two and three, which alleged several other claims of ineffective
assistance of counsel, and actual innocence, respectively.
2
More specifically, the petitioner argues that even though the evidence
demonstrated only that he was online prior to and following the time of
the murder, it would have shown that he was telling the truth when he told
police he had been online that night and would have deprived the state of
an opportunity to attack his credibility during closing argument.
3
The petitioner also claims that (1) several of the factual findings of the
habeas court were clearly erroneous, and (2) the habeas court erred in
failing to find deficient performance. We disagree that factual findings were
clearly erroneous, and, because the habeas court properly found that the
petitioner failed to satisfy the prejudice prong, the petitioner could not
prevail. See Jefferson v. Commissioner of Correction, 144 Conn. App. 767,
773–74, 73 A.3d 840 (petitioner must prove both deficient performance and
prejudice to prevail in an ineffective assistance claim; failure to prove either
is fatal to claim), cert. denied, 310 Conn. 929, 78 A.3d 856 (2013).
4
The petitioner at one point said that he was in the shed sorting fishing
poles for several hours at the time of the murder.
5
We need not decide the claim by the respondent, the Commissioner of
Correction, that there was no new evidence, not discoverable at the time
of the criminal trial, presented to the habeas court; nor need we decide
whether trial counsel’s performance was deficient.