Browne v. Commissioner of Correction ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
BRYANT BROWNE v. COMMISSIONER
OF CORRECTION
(AC 36190)
Lavine, Beach and Mullins, Js.
Argued March 2—officially released June 16, 2015
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
Naomi T. Fetterman, for the appellant (petitioner).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Peter A. McShane, state’s
attorney, and Yamini Menon, assistant state’s attorney,
for the appellee (respondent).
Opinion
BEACH, J. The petitioner, Bryant Browne, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus. The petitioner
claims that the court erred in concluding that he failed
to prove that (1) trial counsel rendered ineffective assis-
tance for not retaining expert witnesses as to various
issues at trial, (2) trial counsel rendered ineffective
assistance at sentencing, and (3) appellate counsel ren-
dered ineffective assistance for failing to raise a certain
claim on appeal. We affirm the judgment of the
habeas court.
The following facts were set forth by this court in
State v. Browne, 84 Conn. App. 351, 854 A.2d 13, cert.
denied, 271 Conn. 931, 859 A.2d 930 (2004): ‘‘On January
28, 2000, the [petitioner] was an unemployed drug
addict with a $40 a day heroin habit. That morning, he
met his accomplice, Victor Santiago, in New Haven and
drove to Middletown. At approximately 11:30 a.m., the
pair forcibly entered the unoccupied home of the Frau-
lino family. They ransacked the house, collecting jew-
elry, cash and electronic equipment. Shortly thereafter,
Rosemary Fraulino returned home and observed an
unfamiliar motor vehicle in the driveway. She did not
stop at her house but instead called the police on her
cellular telephone to alert them to the suspicious
occurrence.
‘‘John Labbadia, a Middletown police officer,
responded to the scene and partially blocked the [peti-
tioner’s] vehicle in the driveway. The [petitioner] and
Santiago saw Labbadia arrive. When the officer walked
to the rear of the house, they abandoned some of the
Fraulinos’ possessions in the living room and foyer. The
[petitioner] got into his vehicle and sped away with
his accomplice.
‘‘Labbadia, believing that he had interrupted a bur-
glary, radioed the police dispatcher. He pursued the
[petitioner] and Santiago on back roads and side streets
to Route 9. George Dingwall, a sergeant on the Middle-
town police force, heard Labbadia’s broadcast and
joined the pursuit. A Portland police officer also heard
Labbadia’s broadcast. Three police cruisers with lights
and sirens activated followed the [petitioner’s] vehicle
south on Route 9 at a high rate of speed.
‘‘The state police had been alerted, and a number of
troopers positioned themselves at exit six on Route 9.
One trooper placed stop sticks across a lane of the
highway, but the [petitioner] successfully avoided them.
Several troopers then joined the chase. The [petitioner]
operated his vehicle in an erratic manner back and forth
across the highway.
‘‘Near exit four in Essex, Dingwall drove his cruiser
beside the [petitioner’s] vehicle. The [petitioner]
lost control of his cruiser, which spun around and off
the highway, crashing in a heavily wooded portion of
the median.
‘‘The [petitioner] continued to drive south on Route
9 at a high rate of speed. Scott Wisner, a state trooper,
positioned his cruiser alongside the [petitioner’s] vehi-
cle. The [petitioner] swerved toward Wisner’s cruiser,
striking it. Wisner dropped back, and Labbadia moved
his cruiser ahead of the [petitioner’s] vehicle. The [peti-
tioner’s] car struck the rear of Labbadia’s cruiser, which
also spun out of control and off the highway. The [peti-
tioner] then drove onto Interstate 95 southbound.
‘‘The state police responded in force. One trooper
preceded the pursuit and warned motorists to move off
the highway. State troopers used their cruisers to block
the entrance ramps to the interstate highway. At exit
sixty-seven, the state troopers deployed stop sticks
again, but the [petitioner] veered off the roadway to
avoid them. At exit sixty-three in Clinton, police cruisers
were parked in the gore between the exit and entrance
ramps to the highway. State troopers were standing in
the gore in another effort to deploy stop sticks. The
[petitioner] saw the trap and drove off the highway
through the gore, coming dangerously close to the
troopers standing there. He drove onto the entrance
ramp and back onto the highway.
‘‘The [petitioner] continued to weave through traffic.
Between exits fifty-nine and fifty-eight in Guilford,
Adam Brown, a state trooper, successfully deployed
stop sticks under the tires of the [petitioner’s] vehicle.
Nevertheless, the [petitioner] kept going and at exit
fifty-seven attempted to force Robert Hart, a state
trooper, off the highway. The [petitioner] stopped his
vehicle, which was traveling on the rims of its wheels,
against the Jersey barriers near exit fifty-four in
Branford.
‘‘When the [petitioner] got out of his vehicle, he said,
‘I’m on drugs, man—real bad—I’m on drugs.’ Personalty
belonging to the Fraulino family was found in the [peti-
tioner’s] vehicle. As a state trooper was transporting the
[petitioner] to the state police barracks in Westbrook,
a police radio dispatch broadcasted information that
Dingwall had been transported to a hospital by Life Star
helicopter. In response, the [petitioner] made several
unsolicited remarks: ‘It’s not my fault; I’m on drugs;
you can’t blame me for any of this because I’m on drugs.’
Dingwall died as a result of his injuries.’’ (Footnotes
omitted.) Id., 355–58.
‘‘The [petitioner] was charged in five informations
with numerous criminal and motor vehicle violations,
which were consolidated for trial. The jury found him
guilty of larceny in the third degree in violation of Gen-
eral Statutes §§ 53a-124 (a) (2) and 53a-119, attempt to
commit larceny in the third degree in violation of Gen-
eral Statutes §§ 53a-49 (a), 53a-124 (a) (2) and 53a-119,
conspiracy to commit burglary in the third degree in
violation of General Statutes §§ 53a-48 (a) and 53a-103,
conspiracy to commit larceny in the third degree in
violation of General Statutes §§ 53a-48 (a) and 53a-124,
disregarding an officer’s signal by engaging an officer
in a pursuit resulting in death in violation of General
Statutes § 14-223 (b), interfering with an officer in viola-
tion of General Statutes § 53a-167a (a), attempt to com-
mit assault of a peace officer in violation of General
Statutes §§ 53a-49 (a) (2) and 53a-167c (a) (1), criminal
mischief in the first degree in violation of General Stat-
utes § 53a-115 (a) (1), misconduct with a motor vehicle
in violation of General Statutes § 53a-57, reckless driv-
ing in violation of General Statutes § 14-222 and engag-
ing an officer in pursuit in violation of General Statutes
§ 14-223 (b). The [petitioner’s] total effective sentence
was thirty-two years in the custody of the commissioner
of correction.’’ Id., 354 n.1. ‘‘The jury found the [peti-
tioner] not guilty of burglary in the first degree, conspir-
acy to commit burglary in the first degree, felony
murder, manslaughter in the first degree, criminal mis-
chief in the first degree and two counts of attempt to
commit assault in the first degree. The jury was unable
to reach a verdict on the charges of attempt to commit
assault of a peace officer and reckless endangerment
in the first degree, and the court declared a mistrial
as to those counts.’’ Id., 355 n.2. Santiago was tried
separately. Id., 356 n.3. The petitioner’s judgment of
conviction was affirmed on direct appeal. Id., 395.
In his third amended petition for a writ of habeas
corpus, the petitioner alleged (1) ineffective assistance
of his trial counsel, Norman A. Pattis, in failing to retain
an expert witness to appraise or to contest the valuation
of the allegedly stolen items; in failing to employ an
expert witness to challenge the state’s theories of causa-
tion and intent as to the death of Dingwall; in failing to
retain an expert to contest the state’s theory regarding
contact between the petitioner’s vehicle and Wisner’s
police cruiser; and in failing to prepare adequately for
the petitioner’s sentencing, and (2) ineffective assis-
tance of his appellate counsel, Mark Rademacher, for
failing to raise a certain claim on appeal. The habeas
court denied his petition. The court granted the petition
for certification to appeal. The petitioner filed a motion
for articulation, requesting the court to address the
ground that trial counsel was ineffective at sentencing.
The court granted the motion and issued an articulation
denying that claim. This appeal followed.
We begin with our standard of review for claims of
ineffective assistance of counsel. ‘‘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 violation of the petitioner’s constitu-
tional right to effective assistance of counsel is plenary.
. . . As enunciated in Strickland v. Washington, [466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]
. . . [a] claim of ineffective assistance of counsel con-
sists of two components: a performance prong and a
prejudice prong. To satisfy the performance prong . . .
the petitioner must demonstrate that his attorney’s rep-
resentation 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. . . . A court
can find against a petitioner, with respect to a claim of
ineffective assistance of counsel, on either the perfor-
mance prong or the prejudice prong . . . .
‘‘Additionally, a fair assessment of attorney perfor-
mance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the
time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the [peti-
tioner] must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy. . . . [C]ounsel is strongly
presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reason-
able professional judgment.’’ (Citations omitted; inter-
nal quotation marks omitted.) Roberts v. Commissioner
of Correction, 155 Conn. App. 360, 362–64, 109 A.3d
956, cert. denied, 316 Conn. 902, 111 A.3d 470 (2015).
I
The petitioner claims on appeal that the court erred
in concluding that he had failed to prove ineffective
assistance of trial counsel for failing to retain an expert
(1) to appraise or to contest the valuation of the stolen
items, and (2) to challenge the state’s theories of causa-
tion and intent as to the death of Dingwall, and to
contest the state’s theory regarding contact between
the petitioner’s vehicle and Wisner’s police cruiser. We
are not persuaded.
A
The petitioner claims that the court erred in rejecting
his claim that trial counsel provided ineffective assis-
tance by not retaining an expert witness to contest the
state’s evidence at trial as to the value of the items
that the petitioner stole or attempted to steal from the
Fraulino residence. We are not persuaded.
The petitioner was convicted of larceny in the third
degree and attempt to commit larceny in the third
degree. For the jury to have found the petitioner guilty
of both charges under § 53a-124 (a) (2), it would have
had to find that the value of the property exceeded
$1000 for each respective count. General Statutes § 53a-
121 (a) (1) provides in relevant part that ‘‘value means
the market value of the property . . . at the time and
place of the crime or, if such cannot be satisfactorily
ascertained, the cost of replacement of the property or
services within a reasonable time after the crime.’’
At the petitioner’s criminal trial, Rosemary Fraulino
testified as to items that were stolen or attempted to
be stolen, including jewelry and electronics items; she
did not know the value of the items. State v. Browne,
supra, 84 Conn. App. 385. Outside the presence of the
jury, the state proffered the testimony of Michael Frau-
lino as to the value of items that the petitioner stole or
attempted to steal from the home. He stated that he
had visited various retail establishments in an effort
to determine the market value of the items. Id. The
petitioner’s trial counsel objected on grounds of hearsay
and lack of foundation; the court overruled the objec-
tion. Id. In the jury’s presence, Michael Fraulino testi-
fied as to the purchase price, replacement value and
value of the items if sold on the open market. Id., 389.
The value of the property, regardless of the formulation,
exceeded $1000. Id.At the habeas trial, the petitioner presented the
expert testimony of a jewelry appraiser who testified
that many of the gold jewelry items were personalized
and thus needed to be melted down in order to be sold,
and that the total value of the jewelry items was $326.
The petitioner also presented information from an
insurance adjuster who calculated the fair market value
of the electronic items, using a straight line depreciation
of 10 percent per year for each item. He valued the
items at: $116 for the Sony nineteen inch television,
$199 to $233 for the Zenith twenty-seven inch television,
$113 for the Zenith VCR, and $159 for the Sega
Dreamcast. He was unable to place a value on the Sony
camcorder because he did not know its year and model.
Pattis testified at the habeas trial that he did not
consult an expert regarding the valuation of the items
taken from the Fraulino home. He testified that he ‘‘had
no strategic reason. It was an oversight.’’ He testified
that ‘‘[m]y eye was on the death counts,’’ and ‘‘all my
time was trying to avoid the manslaughter and felony
murder convictions. There was little doubt in my mind
that [the petitioner] was present in the home and that
there [were] some crimes committed. I just was trying
to save what I could of his life.’’ He further testified
that he was successful in getting the petitioner acquitted
of the more serious charges. Regarding the testimony
of Michael Fraulino as to valuation, Pattis testified that
‘‘[i]t was difficult for me to believe that the jury was
going to find him credible on that point. . . . [W]e
spent a lot of time investigating [Michael Fraulino], and
I knew a fair amount about him. I didn’t expect him to
testify as an expert on valuation.’’ Pattis testified that at
the criminal trial, he cross-examined Michael Fraulino
regarding his estimates and stated at the habeas trial
that his ‘‘estimates were unreliable . . . I didn’t think
it should be admitted and it should be accorded no
weight, but as I said earlier, it didn’t occur to me to get
a countervailing expert, and I didn’t, even after I heard
the testimony.’’
The habeas court found that ‘‘it was clear from
reviewing the transcript that [Pattis] believed that the
state’s failure to have their own expert was a fatal
mistake, and he was adequately prepared to make the
challenge when the state attempted to introduce the
evidence through [Michael] Fraulino. It is clear from
the record that the strategy, rather than putting on affir-
mative evidence of value, was to prevent any evidence
of value from coming before the jury, which would have
been fatal to the larceny and attempted larceny in the
third degree charges if he had succeeded.’’ The court
further stated that Pattis objected to the admission of
Michael Fraulino’s testimony as to value and subjected
him to ‘‘vigorous cross-examination, bringing to light
for the jury, if they chose to accept it . . . that
[Michael] Fraulino’s sentimental attachment to the
property resulted in inflated values. Attorney Pattis also
succeeded in getting [Michael] Fraulino to admit that
he had no idea what the various pieces of property
would have been worth in or around January 28, 2000.
This is the classic ‘hindsight is 20/20’ argument being
made by the petitioner. Attorney Pattis had what
appears to have been a more than reasonable strategy
to prevent the state from presenting any evidence at
all on an essential element of the larceny third related
charges. In hindsight, however, that strategy was not
successful. An unsuccessful trial strategy, however, is
not per se one [and] the same with constitutionally
deficient representation. . . . In the present case, the
court finds that Attorney Pattis’ strategy, although ulti-
mately unsuccessful, was not unreasonable, nor did his
approach lack the reasonable level of competence and
preparation that one would expect from a criminal
defense attorney under similar circumstances.’’ (Cita-
tions omitted.)
The petitioner claims that the court erred in conclud-
ing that Pattis did not perform deficiently by failing to
retain an expert to present an independent valuation
of the items or to contest the value given to the items
by Michael Fraulino. He argues that expert evidence
was presented at the habeas trial that revealed that the
values of the items stolen and attempted to be stolen
were both less than $1000 and, thus, insufficient to
sustain the conviction of the charges of larceny and
attempt to commit larceny.1 We are not persuaded.
Expert testimony as to value is not required to sustain
a conviction for larceny. On direct appeal, this court
concluded that an owner of property is competent to
testify as to the value of the property he owns and
that ‘‘[t]he rule establishing an owner’s competence to
testify reflects both the difficulty of producing other
witnesses having any knowledge upon which to base
an opinion especially where the stolen items are never
recovered . . . and the common experience that an
owner is familiar with her property and knows what it
is worth. . . . It is difficult, however, to conceive of
an owner having an innate concept of value simply by
virtue of ownership. An owner must of necessity rely
on other sources for his knowledge of value. Thus, [t]he
owner of an article, whether he is generally familiar
with such values or not, ought certainly to be allowed
to estimate its worth; the weight of his testimony (which
often would be trifling) may be left to the jury; and
courts have usually made no objections to this policy.’’
(Citation omitted; emphasis omitted; internal quotation
marks omitted.) State v. Browne, supra, 84 Conn. App.
387–88; see also State v. Adams, 14 Conn. App. 119,
125–26, 539 A.2d 1022 (1988) (owner’s testimony as to
value of car sufficient to establish market value at time
of crime to support conviction of larceny in fourth
degree).
Pattis’ not presenting expert testimony to contradict
Michael Fraulino’s testimony did not constitute defi-
cient performance. Although Pattis testified that, in
hindsight, he would have retained an expert to testify
as to valuation, he also testified that his strategy was
to focus on the more serious murder charges and to
cross-examine Michael Fraulino vigorously as to valua-
tion regarding the larceny charges. The habeas court
found this to be reasonable trial strategy.
The concentration on cross-examination and, of
course, trying to preclude allowing Michael Fraulino’s
opinions into evidence, constituted reasonable strategy
and may well have turned out to have been superior to
calling experts to testify. Although there was nothing
necessarily inconsistent in trying to keep out or entirely
discredit Michael Fraulino’s evidence and also calling
an expert, the potentially negative aspect of calling an
expert ought not be overlooked. The experts who testi-
fied at the habeas trial on behalf of the petitioner
assigned significant value to the property. Though less
than $1000 with respect to each charge,2 the values
assigned by the experts, if believed, were sufficient to
support a conviction of slightly lesser degrees of lar-
ceny, but a floor would have been established. Much
of the value of successful cross-examination of Michael
Fraulino would have been lost. Further, cross-examina-
tion of experts at trial may have yielded benefits for
the state’s case. Decisions as to what witnesses to call
at trial sometimes resemble a chess game: each move
seeking an advantage may have the potential to create
or to expose a weakness.
Pattis’ not calling an expert as to value, even if the
option was not considered by him at the time, did not
render his performance defective. Pattis’ actions in this
regard clearly fell ‘‘into the category of trial strategy or
judgment calls that we consistently have declined to
second guess.’’ (Internal quotation marks omitted.)
Crocker v. Commissioner of Correction, 126 Conn. App.
110, 132, 10 A.3d 1079, cert. denied, 300 Conn. 919, 14
A.3d 333 (2011).
B
The petitioner next claims that the court erred in
concluding that Pattis did not render deficient perfor-
mance by not retaining an expert witness to testify and
to challenge the state’s theory of causation as to the
death of Dingwall and the collision between Wisner’s
cruiser and the petitioner’s vehicle, which resulted in
Wisner’s vehicle being forced off the road. We disagree.
As to Dingwall’s death, the jury reasonably could
have found the following facts. Labbadia and Dingwall
attempted to box in the petitioner’s vehicle; Labbadia
positioned his cruiser in front of the petitioner’s vehicle
and slowed down. State v. Browne, supra, 84 Conn.
App. 359. Dingwall drove his cruiser alongside the peti-
tioner’s vehicle and the petitioner swerved into the
travel lane occupied by Dingwall’s cruiser. Id. Dingwall
avoided a collision, but lost control of his cruiser, which
spun counterclockwise off the highway and collided
with trees on the median strip. Id. An accident recon-
struction expert for the state police, Jae Fontanella,
discovered that Dingwall’s cruiser was equipped with
three Goodyear all season tires and one snow tire. Id.At the accident scene, Fontanella viewed tire marks
that indicated that the cruiser had been oversteered to
the left, causing the vehicle to move counterclockwise.
Id. Darryl Fieldman, a Goodyear product-analyst engi-
neer, prepared a report stating that it was important for
a police cruiser operating at high speeds to be equipped
with four of the same type of tires. Id. At the criminal
trial, Fontanella and Fieldman could not determine the
cause of the accident. Id., 360. Fieldman noted that it
was possible but improbable that the mismatched tires
on Dingwall’s cruiser caused the cruiser to spin off the
road. Id. The petitioner’s theory at the criminal trial,
however, was that the fatal accident was substantially
caused by mismatched tires on Dingwall’s police
cruiser. Id., 365. The jury apparently did not agree with
the petitioner’s theory. The jury found the petitioner
guilty of the crimes of misconduct with a motor vehicle
and disregarding an officer’s signal by engaging an offi-
cer in pursuit, causing death.
At the habeas trial, the petitioner presented the fol-
lowing expert testimony regarding the cause of Ding-
wall’s death. James H. Gifford, an expert in the forensic
analysis of tires, testified that Dingwall’s police cruiser
had mismatched tires, as there were three all season
tires and, on the right rear wheel, a winter tire. The
differences between the tire designs caused the vehicle
to oversteer to the left, resulting in Dingwall’s loss of
control of the vehicle during the high speed pursuit.
On cross-examination, Gifford conceded that ‘‘[i]f [Din-
gwall] didn’t have to make those evasive maneuvers,
he wouldn’t have lost control.’’ The petitioner also pre-
sented the testimony of Dr. Christopher Shapley, an
expert in vehicle dynamics. Shapley opined that the loss
of control of Dingwall’s vehicle was due to ‘‘maximum
power coupled with some maneuvering. I believe that
it was the use of excessive power [and] speed that
triggered that loss of control, and this was due to the ini-
tiation.’’
As to the collision with Wisner’s vehicle, the state’s
theory at the criminal trial was that the petitioner drove
his vehicle close to Wisner’s cruiser in an attempt to
force Wisner off the road. The petitioner’s theory was
that, using boxing maneuvers, Wisner drove his vehicle
close to the petitioner’s vehicle, thereby causing the
collision. The jury apparently disagreed with the peti-
tioner’s theory. With respect to the collision of the peti-
tioner’s vehicle with Wisner’s cruiser, the jury found
the petitioner guilty of attempt to commit assault on a
peace officer and first degree criminal mischief.
Shapley testified at the habeas trial that the contact
between the petitioner’s vehicle and Wisner’s cruiser
was caused by Wisner’s attempt to pass the petitioner,
which put Wisner’s cruiser at risk of being in contact
with the petitioner’s vehicle. Shapley testified that
‘‘[b]ut for the attempt to pass at that point, there would
have been no contact.’’
At the habeas trial, Pattis testified that he did not
retain experts to testify as to the issues of causation
and intent regarding Dingwall’s death, and the collision
between the petitioner’s car and Wisner’s cruiser
because ‘‘[i]t struck me that I had enough to work with
in the state’s file, that I didn’t have to prove what caused
the accident. I just had to shed doubt. I had to put room
between [the petitioner’s] actions and what caused the
accident, and I thought I could accomplish that through
the state’s experts.’’ He testified that his strategy was
to impeach the state’s witnesses.
With respect to both incidents involving Dingwall and
Wisner, the court found that Pattis provided effective
and competent representation. He was prepared to
cross-examine every state’s witness in great detail, he
challenged even slight differences between their trial
testimony and prior statements, and ‘‘succeeded in get-
ting nearly every important fact witness placed on the
[witness] stand by the state to admit that they had
modified their trial testimony to be more favorable to
the state than some prior statement or testimony the
witness had given. The detail with which Attorney Pattis
cross-examined the state’s expert witnesses, using sci-
entific terms and terms of art in their respective fields
to thoroughly question them about their findings, also
made it quite clear that he had gone through pains to
educate himself on their reports and the subjects about
which they were going to testify, and it was evident
that he was properly prepared to challenge them on
cross-examination. . . . In all, this court finds that
there is no question that Attorney Pattis represented
the petitioner in this matter with all the competence
and vigor one would expect of a reasonably trained and
educated defense attorney.’’
The habeas court properly concluded that Pattis did
not render deficient performance by not offering expert
testimony as to the cause of Dingwall’s loss of control
of his vehicle or as to the cause of the collision with
Wisner’s vehicle. Pattis’ trial strategy was to cross-
examine the state’s witnesses vigorously and effectively
rather than to call additional experts. On cross-exami-
nation at the habeas trial, the petitioner’s experts con-
ceded points that could have helped the state’s case.
A strategy of making points by cross-examination of
his opponent’s witnesses may well have been more
effective than presenting testimony through his own
witnesses, who, at the habeas trial, agreed with some
of the state’s contentions.
II
The petitioner next claims that the court erred in
rejecting his claim that Pattis was ineffective at sentenc-
ing because of inadequate preparation. We disagree.
In his third amended petition, the petitioner claimed
that Pattis failed to investigate adequately and to pre-
sent mitigation evidence. The petitioner claims on
appeal that at sentencing, Pattis presented no evidence
of the petitioner’s ability to rehabilitate and, as a result,
the court imposed a thirty-two year sentence on the
petitioner, who was thirty-six years old at the time of
the crimes.
‘‘Sentencing by its nature is a discretionary decision
that requires the trial court to weigh various factors
and to strike a fair accommodation between a defen-
dant’s need for rehabilitation or corrective treatment,
and society’s interest in safety and deterrence.’’ (Inter-
nal quotation marks omitted.) State v. Wade, 297 Conn.
262, 284, 998 A.2d 1114 (2010).
At sentencing, Dingwall’s widow testified emotion-
ally about Dingwall’s death, and the prosecutor stressed
that police officers make ultimate sacrifices to protect
citizens. Pattis stressed that the petitioner was not con-
victed of murder, was not a ‘‘cop killer’’ and that all
persons are ‘‘equal and redeemable . . . .’’ Eric
Browne III, the petitioner’s brother, spoke on the peti-
tioner’s behalf. He explained that ‘‘[w]e all think
because we live in the suburbs that . . . it doesn’t
affect us, these things from the city. These drugs are
everywhere.’’ He stated that the petitioner had been
involved with drugs and had been addicted for eighteen
years, but that ‘‘he’s a beautiful person outside of the
drugs . . . [and] we just hope that . . . my brother’s
given another chance because . . . I do still believe he
can be a good member of society, a productive mem-
ber.’’ Joan Browne-Perkins, the petitioner’s aunt,
described the petitioner’s ‘‘winning smile with the per-
sonality to match and the naturally inquisitive mind.’’
She explained that the petitioner was always ‘‘taking
something apart and trying to figure out how it worked,’’
but that one day he became involved in the ‘‘culture of
drugs,’’ that his addiction changed his life and that his
addiction, like any other disease, needs to be treated.
She explained that the petitioner had been involved
in treatment for his addiction and that he had ‘‘never
maliciously, deliberately or purposefully hurt anyone.’’
The petitioner’s father, Eric Browne, Jr., stated that the
petitioner’s addiction ‘‘has taken a toll on all of us.’’
The petitioner expressed regret for his actions on the
day at issue, and explained that he had struggled with
recovery, that he was under the influence on the night
of the crimes and that he had not wanted to hurt anyone.
The sentencing court stated that the case was ‘‘a
tough case for this jury.’’ The court stated that the
petitioner’s family seemed like a ‘‘very good family,’’
and that the petitioner had a supportive and ‘‘excellent
upbringing . . . .’’ The court stated that ‘‘[t]he ends of
sentencing are rehabilitation, deterrence, punishment,
and in this particular case I’m really not as concerned
with rehabilitation. . . . I think the main purpose of
this sentencing is punishment.’’ The court noted that
the petitioner was not a productive member of society
but rather a ‘‘career criminal’’ with a long record of
burglaries rooted in a drug habit. He had been involved
previously in high speed chases.
At the habeas trial, the petitioner presented the fol-
lowing testimony regarding sentencing. Eric Browne III
testified that the petitioner was a good and compassion-
ate person who did ‘‘a lot of things for a lot of people,’’
and that on the day in question, the ‘‘person that was
out there that day wasn’t really [the petitioner]. [He]
. . . under normal circumstances wasn’t the type of
person, that was just him that day.’’ He further testified
that he had discussed certain things with Pattis prior
to testifying, but that there was ‘‘really no preparation’’
for the sentencing hearing. The petitioner’s father testi-
fied that there was no real preparation for the sentenc-
ing hearing. He further testified that the petitioner was
‘‘somewhat of a MacGyver genius’’ who could repair
things that did not appear repairable. He explained that
‘‘[w]hat I do know is the boy has a good heart. He’s
made some bad choices. Had he made other choices,
he might not be where he is today.’’ The petitioner’s
girlfriend, who did not speak at sentencing, explained
the circumstances of her meeting the petitioner and
that the petitioner had a good heart. The petitioner’s
mother, who also did not speak at sentencing, explained
what a good person the petitioner was and explained
that he took a ‘‘wrong path.’’
In its articulation, the court concluded that the peti-
tioner had not proven his claim of ineffective assistance
at sentencing because the petitioner was not preju-
diced. The court explained that the evidence presented
at the habeas trial consisted of testimony from the peti-
tioner’s relatives about his being a good person before
he became involved with drugs. The court concluded
that much of the testimony at the habeas trial regarding
sentencing was merely cumulative and that its sub-
stance reasonably could have been gleaned by the sen-
tencing court from the remarks that were offered at
sentencing. The habeas court stated that ‘‘even that
small amount of evidence presented at the habeas trial
that could be considered new was not so compelling
that it would support a finding that there was a reason-
able probability that the petitioner would have received
a more favorable sentence if the information had been
presented to the sentencing judge. . . . As such, the
petitioner’s claim fails because he has failed to establish
that he suffered any prejudice.’’ (Citation omitted.)
The habeas court properly concluded that the peti-
tioner failed to demonstrate prejudice. The court cor-
rectly noted that the testimony at the habeas trial
regarding sentencing was predominantly cumulative of
the statements actually made at sentencing and that
the additional statements were not likely, if offered, to
have made a difference in the sentencing. Contrary to
the petitioner’s claim on appeal, the sentencing court
did hear the petitioner’s relatives discuss his good heart
and good qualities. The sentencing court, however, did
not find these factors to be especially persuasive. The
sentencing court determined that in light of the petition-
er’s history of chronic drug abuse, his not being a pro-
ductive member of society, his failure to turn his life
around despite many chances at rehabilitation, and his
long criminal record, he was beyond rehabilitation and
that the purpose of his sentence was punishment.
III
The petitioner last claims that the habeas court erred
in concluding that he had not proven his claim that
his appellate counsel, Attorney Mark Rademacher, was
ineffective for failing to raise an issue on direct appeal.
We disagree.
‘‘To succeed on an ineffective assistance of appellate
counsel claim, the petitioner must satisfy both the per-
formance prong and the prejudice prong of Strickland.’’
Haywood v. Commissioner of Correction, 153 Conn.
App. 651, 662, 105 A.3d 238, cert. denied, 315 Conn. 908,
105 A.3d 235 (2014). To prevail on the performance
prong, the petitioner must ‘‘establish that appellate
counsel’s representation fell below an objective stan-
dard of reasonableness considering all of the circum-
stances. . . . While an appellate advocate must
provide effective assistance, he is not under an obliga-
tion to raise every conceivable issue. A brief that raises
every colorable issue runs the risk of burying good
arguments . . . in a verbal mound made up of strong
and weak contentions. . . . Indeed, [e]xperienced
advocates since time beyond memory have emphasized
the importance of winnowing out weaker arguments
on appeal and focusing on the central issue if possible,
or at most on a few key issues.’’ (Internal quotation
marks omitted.) DaEria v. Commissioner of Correc-
tion, 107 Conn. App. 539, 542, 946 A.2d 249, cert. denied,
289 Conn. 911, 957 A.2d 877 (2008).
Prior to the criminal trial, the state filed a motion in
limine seeking to preclude the petitioner from entering
into evidence documents pertaining to the pursuit poli-
cies of the Middletown Police Department and an
alleged prior pursuit by Dingwall that resulted in a repri-
mand. After a hearing and an in camera review of the
documents, the trial court granted the motion as to the
reprimand and denied it as to the pursuit policies. In
his third amended petition, the petitioner claimed that
Rademacher was ineffective for failing to raise on direct
appeal a claim that the trial court erroneously granted,
over defense counsel’s objection, a motion in limine
by the state to preclude the petitioner from offering
evidence or inquiring into a prior pursuit by Dingwall. At
the habeas trial, the petitioner introduced a document
indicating that Dingwall had been issued a verbal warn-
ing for violating the department’s high speed pursuit
policy. Pattis testified at the habeas trial that he had
tried to question causation, with respect to Dingwall’s
death, and to show that Dingwall had a history of reck-
less pursuits, and that, coupled with the mismatched
tires on Dingwall’s car, an uncoordinated pursuit was
a ‘‘recipe for disaster.’’ Rademacher testified that he
included in his appellate brief the issues he thought
were the strongest and the ones that ‘‘had the greatest
potential for knocking out those convictions for which
[the petitioner] got the most time.’’ He explained that
the motion in limine at issue related to causation of
Dingwall’s death, which ‘‘was raised more generally in
the first and second issues of my brief,3 and that this
got down to raising it as an evidentiary matter, you
know, evidentiary areas [are] not, to me, as important
as the constitutional issues that were raised in issues
one and two.’’ (Footnote added.)
The habeas court concluded that the petitioner had
not proven that Rademacher had rendered deficient
performance during the petitioner’s direct appeal. The
court credited the testimony of Rademacher that he
considered the issues, raised those that he thought
would provide the petitioner with the best chance of
succeeding on direct appeal, and emphasized claims
regarding the charges for which the petitioner had
received the longest sentences. The court further noted
that the petitioner did not present evidence that called
into question Rademacher’s knowledge of the law or
the reasonableness of his decisions.
We agree with the habeas court’s analysis of this
claim. ‘‘Legal contentions, like the currency, depreciate
through over-issue. The mind of an appellate judge is
habitually receptive to the suggestion that a lower court
committed an error. But receptiveness declines as the
number of assigned errors increases. Multiplicity hints
at lack of confidence in any one [issue . . . and multi-
plying] assignments of error will dilute and weaken a
good case and will not save a bad one. . . . Most cases
present only one, two, or three significant questions.
. . . The effect of adding weak arguments will be to
dilute the force of the stronger ones.’’ (Internal quota-
tion marks omitted.) Ormsby v. Frankel, 54 Conn. App.
98, 113 n.6, 734 A.2d 575 (1999), aff’d, 255 Conn. 670,
768 A.2d 441 (2001). Four issues were raised on direct
appeal, with two claims having subarguments. See State
v. Browne, supra, 84 Conn. App. 351. In Rademacher’s
judgment, raising an additional argument, particularly
an evidentiary one that repeated the concept of causa-
tion already brought to light in the first two claims,
was not sound strategy. Rademacher’s decision not to
pursue this issue on direct appeal fell within ‘‘the wide
range of reasonable professional assistance’’; Strick-
land v. Washington, supra, 466 U.S. 689; and did not
constitute deficient performance.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The petitioner also argues that it was improper for Michael Fraulino to
testify as to replacement cost because under § 53a-121, market value is the
primary method of establishing value, and replacement cost can be used
only if market value cannot be satisfactorily ascertained, and the testimony
as to value set forth at the habeas trial by the petitioner’s experts demon-
strated that market value could be satisfactorily ascertained.
On direct appeal, this court rejected the petitioner’s argument that Michael
Fraulino should not have been permitted to testify as to the value of the
stolen property. State v. Browne, supra, 84 Conn. App. 384–89.
2
The petitioner was charged with larceny as to the items he actually stole,
and attempted larceny as to the items he left in the vicinity of the doorway
as he left the house in a hurry. State v. Browne, supra, 84 Conn. App. 377–78.
3
Rademacher raised a claim of evidentiary insufficiency regarding the
crimes of which the petitioner was convicted relating to Dingwall’s death
and a claim of instructional error relating to the causation of Dingwall’s
accident. State v. Browne, supra, 84 Conn. App. 358–67.