Otto v. Commissioner of Correction ( 2015 )


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    KENNETH J. OTTO, SR. v. COMMISSIONER
    OF CORRECTION
    (AC 36376)
    Gruendel, Beach and Borden, Js.
    Argued September 15—officially released November 10, 2015
    (Appeal from Superior Court, judicial district of
    Tolland, Sferrazza, J.)
    David J. Reich, for the appellant (petitioner).
    Timothy J. Sugrue, assistant state’s attorney, with
    whom, on the brief, were Gail P. Hardy, state’s attor-
    ney, and Angela R. Macchiarulo and Kelly Masi, senior
    assistant state’s attorneys, for the appellee
    (respondent).
    Opinion
    GRUENDEL, J. The petitioner, Kenneth J. Otto, Sr.,
    appeals from the judgment of the habeas court denying
    his amended petition for a writ of habeas corpus. He
    claims that the court improperly concluded that he had
    not established that his trial counsel and his appellate
    counsel rendered ineffective assistance. We affirm the
    judgment of the habeas court.
    This case involves the murder of an exotic dancer
    in 2007. As recounted by our Supreme Court in the
    petitioner’s direct appeal, ‘‘[t]he victim, who was last
    seen on the afternoon of March 14, 2007, worked as a
    dancer at Kahoots, an exotic dance club located in
    Vernon, where the [petitioner] was a frequent patron
    up until the time that the victim disappeared. Beginning
    several weeks prior to the victim’s disappearance, the
    [petitioner] and the victim initiated a personal relation-
    ship outside of her work at Kahoots. . . . On the after-
    noon of March 14, 2007, the victim left her parents’
    house, where she and her boyfriend lived, indicating to
    her boyfriend that she was going to work and meeting
    up with a client who owned a large parcel of property
    and drove a black truck. The victim did not show up
    for work that evening, nor did she return home that
    night, and no one from her family had any further con-
    tact with her after she left the house that afternoon.
    ‘‘The victim’s family, after becoming concerned about
    the lack of contact from her, filed a missing persons
    report with the East Hartford police department on
    March 16, 2007. Upon investigation of the missing per-
    sons report, the police identified the [petitioner] as an
    individual who potentially had information regarding
    the then missing victim, on the basis of a voice mail
    that the [petitioner] had left for the victim prior to her
    disappearance, and a telephone call that the [petitioner]
    had made to the victim’s house telephone number after
    her disappearance. First, the victim’s family discovered
    a voice mail on the victim’s cell phone from ‘Kenny’
    that was left on the morning of March 14, 2007, stating
    that the caller wanted to get together with the victim.
    Second, the [petitioner] had telephoned the victim’s
    house telephone on March 17, 2007, and when the vic-
    tim’s mother answered, the [petitioner] said: ‘Shamaia,
    call your mom and dad. They [are] worried about you.’
    He would not identify himself and hung up when the
    victim’s mother asked who was calling, but the [peti-
    tioner] did identify himself when the victim’s father
    returned the call to the number revealed by the caller
    identification feature on the house telephone. The [peti-
    tioner] also spontaneously, and without explanation,
    stated to the victim’s father during this call that he had
    a physical problem that rendered him unable to be
    sexually active.
    ‘‘The victim’s family provided the police with the
    information about these calls placed by the [petitioner],
    and Raymond Cheverier, an East Hartford police offi-
    cer, followed up with the [petitioner] to see if he had
    any information about the then missing victim. After
    being informed that the victim had been reported miss-
    ing, the [petitioner] told Cheverier that he had given
    the victim a ride to another Kahoots exotic dance club
    located in East Hartford around 4:30 p.m. on March 14,
    2007, but had not seen her since, and that he was sick
    that evening and had stayed in bed for the next three
    days. The [petitioner] also stated that the victim had
    told him that she intended to stay with a female friend
    for a few days.
    ‘‘On March 21, 2007, investigators from the East Hart-
    ford police department went to the [petitioner’s] house
    and asked to speak with the [petitioner] . . . . Prior
    to leaving for the police station, unprompted by the
    investigators, the [petitioner] stated to Donald Olson,
    an investigator: ‘It’s sad . . . about Mya,’ but did not
    elaborate further on that statement. During the subse-
    quent interview at the police station, the [petitioner]
    gave the investigators an account of his personal rela-
    tionship with the victim and his interactions with her
    on the night of March 14, 2007, which was memorialized
    in a sworn statement that eventually was read to the
    jury at trial. In that statement, the [petitioner] again
    indicated that he had picked up the victim in the after-
    noon of March 14, 2007, and had dropped her off at the
    Kahoots in East Hartford at her request, but denied any
    knowledge of what had happened to her after that time.
    ‘‘On March 21, 2007, the police also discovered that
    the [petitioner] owned a seventy-five acre parcel of
    undeveloped land in Stafford (Stafford property).
    Thereafter, on March 23, 2007, the East Hartford police
    traveled to the Stafford property to search for the miss-
    ing victim, during which time detectives entered the
    property and searched an unlocked camper/trailer
    (trailer) and the other unsecured areas they discovered
    on the property that were large enough to conceal a
    body. The police also conducted a helicopter flyover
    of the Stafford property at that time, during which they
    photographed the site and observed the trailer, two
    sheds, a fire pit, some tractors, and footprints and tire
    tracks in the snow that had fallen on March 16, 2007.
    The police did not find the victim on the property, but
    observed that the fire pit was not snow covered.
    ‘‘Continuing their investigation, the police again
    sought to speak with the [petitioner] . . . on April 7,
    2007 . . . . After engaging the [petitioner] in a casual
    conversation about his interactions with the victim, the
    officers suggested that they visit some of the places the
    [petitioner] had visited with the victim on March 9,
    2007. The [petitioner] . . . informed the officers that,
    on March 9, 2007, the victim had expressed a desire to
    obtain her high school equivalency diploma and to
    attend cosmetology school. The [petitioner] indicated
    that he had given the victim $500 on that date to help
    her attain this goal. He also informed the officers that
    he had discussed his erectile dysfunction with the vic-
    tim on March 9, 2007, and that he was unable to perform
    sexually with her.
    ‘‘Although the [petitioner] seemed to be forthcoming
    with information requested by the officers up to that
    point in the conversation, when the officers began ask-
    ing the [petitioner] about his interactions with the vic-
    tim on March 14, 2007, he became ‘slightly agitated.’
    Additionally, when confronted with information con-
    cerning the victim’s cell phone records, the [petitioner]
    acknowledged that he owned property in Stafford, but
    continued to maintain that he had never brought the
    victim there. The police then asked to perform a consent
    search of the truck the [petitioner] had used when driv-
    ing the victim around, to which the [petitioner] agreed.
    ‘‘The officers and the [petitioner] then returned to
    the [petitioner’s] house, where the truck was located,
    performed the consent search of the truck, and found
    .40 caliber ammunition, .357 caliber ammunition and
    .38 caliber ammunition in a locked gun safe located
    between the two front seats. After completing the con-
    sent search of the truck, the officers discussed arrange-
    ments for a consent search of the [petitioner’s] Stafford
    property . . . . On April 8, 2007, officers from the East
    Hartford police department, with the help of four teams
    of Connecticut state police cadaver dogs, executed a
    consent search of the Stafford property, during which
    two of the cadaver dog teams alerted on a large fire
    pit located in a large clearing on the property, exhibiting
    behavior indicating the presence of human remains.
    Shortly after the dogs alerted on the fire pit, the [peti-
    tioner] revoked his consent to continue the search, and
    both the East Hartford police and the state police offi-
    cers left the Stafford property.
    ‘‘On the basis of the results from the consent search
    on April 8, 2007, the East Hartford police sought and
    obtained search and seizure warrants for the [petition-
    er’s] truck, which they executed on April 12, 2007, and
    his Stafford property, which they executed on April 16,
    2007. The search of the . . . Stafford property, which
    began on April 16, 2007, lasted approximately four days
    and yielded numerous items of evidentiary value. First,
    when police arrived to execute the warrant, they found
    that the [petitioner] had dragged the trailer from the
    primary trailer site, where they had observed it during
    the April 8, 2007 consent search, down to the secondary
    site near the large fire pit, and that the living portion
    of the trailer had been ripped from the frame and
    burned. The police also observed the [petitioner]
    operating a backhoe, digging a hole in which he could
    bury the remains of the trailer. Furthermore, after exca-
    vating the dirt and ash from the large fire pit in the
    secondary site, the police discovered several pieces of
    human tissue, numerous bone fragments and teeth, a
    portion of a human foot, a set of keys that were later
    determined to belong to the victim, two .40 caliber shell
    casings and a .38 Special caliber hollow point bullet.
    The police also recovered a third .40 caliber spent shell
    casing near, but not in, the large fire pit. The police
    continued the search of the property with the primary
    trailer site, from which they recovered an empty
    Cheetos bag, a Clorox Ready-Mop with traces of human
    blood on the handle and mop head, a six foot by two
    foot piece of carpet with a four foot by one foot human
    bloodstain (carpet piece), and a vacuum cleaner bag
    that contained several pieces of plastic and linoleum,
    both of which also had traces of human blood.
    ‘‘On April 20, 2007, before the police had informed
    the [petitioner] that they had recovered the shell casings
    and the bullet from the large fire pit, the [petitioner’s]
    attorney contacted Olson, asking him to come take the
    [petitioner’s] guns for testing and safekeeping. Among
    the guns seized from the [petitioner’s] locked gun safe
    were a .357 caliber revolver, a .38 Special caliber
    revolver and a .40 caliber semiautomatic pistol that had
    been disassembled and was missing its barrel when it
    was surrendered. When asked if he knew what had
    happened to the missing barrel, the [petitioner] told
    Olson that he had lost it.
    ‘‘The items recovered from the . . . Stafford prop-
    erty and the guns were then submitted for forensic
    testing. The tissue samples, bone fragments and charred
    remains of the human foot taken from the large fire pit
    were all tested for DNA evidence and were confirmed
    as the remains of the victim. After conducting DNA
    analysis of the bloodstains from the mop and the pieces
    of plastic and linoleum found in the vacuum cleaner
    bag recovered from the primary trailer site, the forensic
    analysts were able to confirm that the blood on all of
    these items also had come from the victim. With regard
    to the bloodstain on the carpet piece, the forensic ana-
    lysts were able to confirm that a four foot by one foot
    continuous section of it was stained with human blood,
    but because the carpet piece had been soaked by heavy
    rains prior to its recovery by police, the analysts were
    unable to generate a DNA profile from that, and were
    therefore unable to confirm that the blood on the carpet
    piece had come from the victim.
    ‘‘Edward T. McDonough, deputy chief medical exam-
    iner for the state, testified that the remains recovered
    from the fire pit had a gasoline type odor. He also
    testified that nothing was found in the tissue sample
    during the toxicology screening, but based on the fact
    that the specimen submitted for testing had been
    exposed to high levels of heat, a negative test result
    did not conclusively establish that there were no drugs
    or alcohol in the victim’s body at the time of her death.
    McDonough further testified that, because of the frag-
    mentary and burned condition of the remains, it was
    impossible to determine the cause or the manner of
    death.
    ‘‘Albert Harper, a forensic anthropologist and direc-
    tor of the Henry C. Lee Institute of Forensic Science,
    testified that he was asked to examine the bone frag-
    ments recovered from the large fire pit as a consultant
    with the medical examiner’s office. He indicated that
    the bones exhibited characteristics of having been burnt
    in ‘a very hot fire.’ He testified further that the level of
    cremation of the remains was close to that of commer-
    cial cremation, would have required ‘[l]ots of wood’ and
    consistent temperatures of 1500 to 2000 degrees over
    the course of many hours, possibly spanning as many
    as several days. Although, like McDonough, Harper indi-
    cated that he could not determine whether there had
    been any trauma to the bones prior to the cremation
    because the fire process caused significant fragmenta-
    tion of the bones, he was able to determine, based on
    the fact that the skin and a portion of the muscle tissue
    on the remains of the foot recovered were still intact,
    that the victim had been dead for approximately one
    month prior to the discovery of the remains.
    ‘‘Beyond the scientific findings he made on the basis
    of his examination of the bone fragments that left him
    unable to point to any physical evidence to indicate
    that the victim had been the subject of a homicide,
    Harper, nevertheless, further testified that, in his experi-
    ence, ‘a body that has been deliberately cremated is
    indicative of someone wanting to make sure that that
    body is not found, and that would suggest that it’s a
    homicide. . . . Based upon all the cases I’ve ever been
    associated with, when somebody tries to hide a body
    this way, it’s because there was a homicide. There’s a
    reason to hide it. . . . Someone went to a lot of trouble
    to dispose of this body.’
    ‘‘Finally, with regard to ballistics evidence, Edward
    Jachimowicz, supervisor of the firearms and tool mark
    section of the state police forensics laboratory, testified
    that the bullet that had been recovered from the large
    fire pit was a .38 Special caliber bullet that could have
    been fired from either a .38 Special caliber revolver
    or a .357 caliber revolver, but that the bullet was too
    damaged to determine conclusively that it had been
    fired from either of the revolvers that the [petitioner]
    had surrendered. He further testified that, although the
    .40 caliber semiautomatic pistol the [petitioner] had
    surrendered was missing its barrel, and thus was not
    functional when surrendered, Jachimowicz was able to
    perform a test fire of the pistol using a replacement
    barrel from the state police reference collection. From
    this test fire, Jachimowicz was able to compare the
    breech face marks and the firing pin impressions along
    with the extractor marks on the test fired shell casings
    to the .40 caliber shell casings found at the . . .
    Stafford property. On the basis of this comparison, Jach-
    imowicz testified that it was his opinion that the three
    spent shell casings recovered from the Stafford prop-
    erty had been fired by the .40 caliber pistol that the
    [petitioner] had surrendered.’’ (Footnotes omitted.)
    State v. Otto, 
    305 Conn. 51
    , 54–64, 
    43 A.3d 629
    (2012).
    On that evidence, the jury found the petitioner guilty
    of murder in violation of General Statutes § 53a-54a and
    two counts of tampering with evidence in violation of
    General Statutes § 53a-155 (a) (1). 
    Id., 53. The
    trial court
    rendered judgment accordingly and sentenced the peti-
    tioner to a total effective term of sixty years incarcera-
    tion. 
    Id., 64. From
    that judgment, the petitioner
    appealed to our Supreme Court, claiming that (1) the
    evidence adduced at trial was insufficient to prove spe-
    cific intent to commit murder and (2) certain statements
    made during the prosecutor’s closing argument improp-
    erly shifted to the petitioner the burden of proof regard-
    ing his intent, thereby depriving him of a fair trial. Our
    Supreme Court rejected those claims and affirmed the
    judgment of conviction. 
    Id., 81. This
    habeas action followed. The petitioner’s July
    12, 2013 amended petition for a writ of habeas corpus
    contained two counts, alleging ineffective assistance
    of trial counsel and ineffective assistance of appellate
    counsel, respectively. Following a trial, the habeas
    court denied the petition. The court subsequently
    granted certification to appeal from that judgment to
    this court.
    Before considering the specific claims presented by
    the petitioner, we first note the well established parame-
    ters of our review. ‘‘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 consti-
    tuted a violation of the petitioner’s constitutional right
    to effective assistance of counsel is plenary. . . . To
    succeed on a claim of ineffective assistance of counsel,
    a habeas petitioner must satisfy the two-pronged test
    articulated in Strickland v. Washington, 
    466 U.S. 668
    ,
    687, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984). . . . [F]or
    a petitioner to prevail on a claim of ineffective assis-
    tance of counsel, he must show that counsel’s assis-
    tance was so defective as to require reversal of [the]
    conviction . . . . That requires the petitioner to show
    (1) that counsel’s performance was deficient and (2)
    that the deficient performance prejudiced the defense.
    . . . To satisfy the performance prong . . . the peti-
    tioner must demonstrate that his attorney’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. . . . [A] court must
    indulge a strong presumption that counsel’s conduct
    falls within the wide range of reasonable professional
    assistance; that is, the [petitioner] must overcome the
    presumption that, under the circumstances, the chal-
    lenged action might be considered sound trial strategy.’’
    (Citations omitted; internal quotation marks omitted.)
    Mukhtaar v. Commissioner of Correction, 158 Conn.
    App. 431, 437–38, 
    119 A.3d 607
    (2015).
    I
    The petitioner first claims that the habeas court
    improperly concluded that he failed to sustain his bur-
    den of proof in demonstrating ineffective assistance of
    trial counsel. He contends that his trial counsel, Attor-
    ney Edward Gavin, rendered deficient performance in
    cross-examining Harper. More specifically, he argues
    that Gavin’s line of questioning induced Harper to opine
    that the victim’s death was the result of a homicide.
    We do not agree.
    The following additional facts are relevant to this
    claim. At trial, the state introduced the testimony of
    the medical examiner, who testified that it was impossi-
    ble to determine the cause or the manner of the victim’s
    death. The state thereafter called Harper as an expert
    witness. Harper had visited the Stafford property and
    had examined the remains of the victim’s body. In his
    trial testimony, Harper testified, inter alia, that an analy-
    sis of the bone fragments recovered from the fire pit
    on the Stafford property indicated that they likely had
    been burnt at temperatures of 1500 to 2000 degrees
    over the course of many hours, if not days. Harper also
    testified that the condition of those remains indicated
    that the victim had been dead for approximately one
    month prior to their discovery.
    During cross-examination, Gavin questioned Harper
    on whether there was any evidence with respect to
    certain causes of death. The following colloquy tran-
    spired:
    ‘‘[Gavin]: . . . And in regard to the examination of
    this specific evidence, Dr. Harper, were you able to
    make any determination whether or not the remains
    that you reviewed [indicated] that individual was sub-
    ject to a gunshot?
    ‘‘[Harper]: I saw nothing that would have suggested
    that there was a gunshot.
    ‘‘[Gavin]: How about a stabbing?
    ‘‘[Harper]: Nothing that would suggest that.
    ‘‘[Gavin]: Okay. Now, how about a drug overdose?
    ‘‘[Harper]: Absolutely no way I would ever know that.
    ‘‘[Gavin]: Okay. How about a natural cause of death?
    ‘‘[Harper]: Absolutely no way I would ever know that.
    ‘‘[Gavin]: How about a suicide?
    ‘‘[Harper]: No way that I could possibly tell that.
    ‘‘[Gavin]: Sir . . . the analysis you conducted based
    on your radiographic studies, your microscopic studies,
    you were unable to determine whether or not there was
    a difference between the fracture sites that were caused
    as a result of heat versus fracture sites that were caused
    as a result of trauma. Is that correct?
    ‘‘[Harper]: Given the enormous amount of destruction
    of the skeleton, and this is almost the equivalent of a
    commercial cremation, the fact that we could identify
    anything at all I thought was pretty remarkable, let
    alone seeing trauma, because the pieces are simply
    fragmented so totally.
    ‘‘[Gavin]: Hundreds of very small little tiny pieces.
    ‘‘[Harper]: Hundreds of little pieces.
    ‘‘[Gavin]: And, doctor, I take it, then, you would not
    be able to opine as to the cause of death of [the victim].
    ‘‘[Harper]: No.
    ‘‘[Gavin]: Okay. And you wouldn’t be able to opine
    in regard to the manner of [her] death.
    ‘‘[Harper]: Not based upon the physical remains, no.
    ‘‘[Gavin]: Or even the location of her death. I know
    the remains were recovered—
    ‘‘[Harper]: Yes. Yes, I can offer an opinion.
    ‘‘[Gavin]: Okay.
    ‘‘[Harper]: Based upon my experience that a body
    that has been deliberately cremated is indicative of
    someone wanting to make sure that [the] body is not
    found, and that would suggest that it’s a homicide.’’
    The petitioner now contends that his counsel ren-
    dered deficient performance by ‘‘induc[ing]’’ that latter
    response. His claim is unavailing, as Gavin testified
    during the habeas trial that he asked the foregoing ques-
    tions mindful that the medical examiner already had
    testified that it was impossible to determine the cause
    or manner of the victim’s death. For that reason, Gavin
    indicated that he ‘‘was trying to track with [Harper]
    what the testimony was from the medical examiner in
    regard to the autopsy report.’’1 Gavin testified that he
    ‘‘was incredulous’’ when Harper offered his opinion as
    to the manner of the victim’s death. As he explained,
    ‘‘I didn’t think there was a basis for that opinion because
    it flew in the face of the testimony of the medical exam-
    iner. [Harper’s] a forensic anthropologist; he’s not a
    medical examiner. And I just thought his opinion was
    just way out of his area of expertise.’’
    In its memorandum of decision, the court specifically
    credited that testimony, finding that ‘‘[b]ecause the
    medical examiner had eliminated the possibility of
    ascertaining the method of demise from [the victim’s]
    remains, [Gavin] understandably thought that Harper
    would echo that opinion . . . .’’ It is axiomatic that, as
    an appellate court, we do not reevaluate the credibility
    of testimony. ‘‘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 testimony.’’ (Internal
    quotation marks omitted.) Joseph v. Commissioner of
    Correction, 
    117 Conn. App. 431
    , 433, 
    979 A.2d 568
    , cert.
    denied, 
    294 Conn. 906
    , 
    982 A.2d 1080
    (2009). We there-
    fore refuse to disturb that credibility determination. On
    our review of the colloquy between Gavin and Harper,
    we concur with the court’s conclusion that Harper’s
    opinion testimony as to the manner of death was an
    unexpected departure from the testimonial and docu-
    mentary evidence submitted earlier by the medical
    examiner.
    Moreover, Gavin immediately challenged Harper’s
    opinion testimony regarding the manner of death. Gavin
    elicited testimony from Harper indicating that his opin-
    ion was a personal one, rather than one that was based
    on a reasonable degree of medical certainty, and that
    ‘‘[t]here’s no way of telling’’ if the death occurred where
    the remains were found. Under questioning from Gavin,
    Harper also conceded that he was unable to point to
    any physical evidence indicating that the manner of
    death was a homicide. In light of the foregoing, we
    cannot conclude that the petitioner’s trial counsel ren-
    dered deficient performance during the cross-examina-
    tion of Harper.
    II
    The petitioner also contests the court’s conclusion
    that he failed to demonstrate ineffective assistance of
    appellate counsel. The petitioner claims that his appel-
    late counsel, Adele V. Patterson, was deficient in failing
    to challenge the denial of his motion to suppress. We
    disagree.
    Prior to trial, the petitioner filed a motion to suppress
    related to the warrantless search of the Stafford prop-
    erty on March 23, 2007. During the suppression hearing,
    the petitioner conceded that no physical evidence was
    obtained as result of that search. Instead, he sought to
    suppress photographs and observations made by the
    police at that time.2 The court subsequently denied the
    substance of that motion, concluding, inter alia, that
    the search was justified under the emergency doctrine.3
    The court nevertheless suppressed the photographs
    taken by police, ruling that they were beyond the scope
    of the emergency search of the property.
    At the habeas trial, Patterson explained her decision
    not to challenge that determination on appeal. She testi-
    fied that she initially considered challenging the denial
    of the motion to suppress and conducted legal research
    thereon. Patterson ultimately made the strategic deci-
    sion not to pursue such a claim on appeal for multiple
    reasons. First, she considered it to be ‘‘a pretty big
    longshot of a suppression issue,’’ as it was ‘‘pretty rea-
    sonable’’ to conclude that the emergency doctrine
    applied.4 Second, Patterson ‘‘did additional analysis
    with respect to what [the police] located on the property
    at that point in time and whether . . . it was worth it
    to make that claim because what they found at that
    time was pretty minimal . . . .’’ Third, Patterson
    emphasized that ‘‘the most incriminating evidence in
    the case’’ was obtained during a subsequent search of
    the property conducted pursuant to a valid warrant.
    As the court noted in its memorandum of decision,
    the petitioner at the habeas trial produced no expert
    testimony critical of Patterson’s strategic decision. In
    rejecting the petitioner’s claim of ineffective assistance,
    the court reasoned that Patterson’s ‘‘research and
    review of the record demonstrated that the trial court’s
    decision to admit the evidence derived from that search
    was factually supported and legally unassailable. She
    made the tactical decision to omit this weak issue
    because success was improbable, it would detract from
    stronger issues, and the evidence obtained by that
    search played a very small part in the state’s case against
    the petitioner.’’
    On appeal, the petitioner ‘‘must overcome the pre-
    sumption that, under the circumstances, the challenged
    action might be considered sound [appellate] strategy.’’
    (Internal quotation marks omitted.) Mukhtaar v. Com-
    missioner of 
    Correction, supra
    , 
    158 Conn. App. 438
    ;
    see also Alterisi v. Commissioner of Correction, 
    145 Conn. App. 218
    , 227, 
    77 A.3d 748
    (tactical decision of
    appellate counsel not to raise particular claim ordinarily
    matter of appellate tactics and not evidence of incompe-
    tency), cert. denied, 
    310 Conn. 933
    , 
    78 A.3d 859
    (2013).
    The petitioner has not done so. On the facts of this
    case, in which (1) the victim recently had been reported
    missing, (2) she had informed her boyfriend on the date
    of her disappearance that ‘‘she was going to work and
    meeting up with a client who owned a large parcel of
    property and drove a black truck’’; State v. 
    Otto, supra
    ,
    
    305 Conn. 54
    ; and (3) the petitioner had provided the
    police with a sworn statement indicating that he had
    been with the victim on that date, Patterson reasonably
    could conclude that a challenge to the application of
    the emergency doctrine to enter the petitioner’s sev-
    enty-five acre parcel would be unsuccessful. Perhaps
    more significantly, none of the highly incriminating evi-
    dence of the petitioner’s guilt was obtained as a result
    of the March 23, 2007 search. For those reasons, we, like
    the habeas court, decline to second-guess Patterson’s
    tactical decision not to pursue a challenge to the denial
    of the petitioner’s motion to suppress. See Watson v.
    Commissioner of Correction, 
    111 Conn. App. 160
    , 169,
    
    958 A.2d 782
    (‘‘a habeas court will not, with the benefit
    of hindsight, second-guess the tactical decisions of
    appellate counsel’’), cert. denied, 
    290 Conn. 901
    , 
    962 A.2d 128
    (2008). Accordingly, the petitioner’s ineffective
    assistance of appellate counsel claim fails.
    The judgment is affirmed.
    In this opinion the other judges concurred.
    1
    Gavin also testified that the autopsy report ‘‘was incredibly favorable to
    [the petitioner] because the autopsy report could not describe the cause of
    death, could not describe the manner of death, could not describe the time
    of death.’’
    2
    As the petitioner’s trial counsel indicated to the court, ‘‘I’m certainly not
    going to try to create something magical to say that there was a ton of
    evidence seized that day. . . . Your Honor, there wasn’t anything seized
    that I’m aware of. . . . There were photographs taken and observations
    made, and that’s what we’re challenging.’’
    3
    ‘‘The emergency doctrine . . . is rooted in the caretaking function of
    the police. The purpose of the emergency doctrine is to allow the police to
    make a warrantless entry to render emergency aid and assistance to a person
    whom they reasonably believe to be in distress and in need of that assistance.
    . . . The police must have reason to believe that life or limb is in immediate
    jeopardy and that the intrusion is reasonably necessary to alleviate the
    threat.’’ (Citations omitted; internal quotation marks omitted.) State v. Ken-
    drick, 
    314 Conn. 212
    , 230, 
    100 A.3d 821
    (2014).
    4
    With respect to the emergency doctrine, Patterson emphasized that, at
    the time of the March 23, 2007 search, ‘‘the police were still within a pretty
    short time of this person having been reported missing,’’ and that they
    ‘‘thought that she might still be alive [and] had information at that point
    . . . that [the petitioner] had been with her.’’