Mercado v. Commissioner of Correction , 183 Conn. App. 556 ( 2018 )

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MARCOS MERCADO v. COMMISSIONER OF
CORRECTION
(AC 39802)
Alvord, Keller and Prescott, Js.
Syllabus
The petitioner, who had been convicted of murder, felony murder, and
robbery in the first degree, sought a writ of habeas corpus, claiming
that his trial counsel had provided ineffective assistance by, inter alia,
failing to object to the use of testimony elicited from the petitioner on
cross-examination and from his former girlfriend, B, in the state’s rebut-
tal, regarding whether the petitioner had acknowledged to B that he
had committed certain crimes in the past. The petitioner also claimed
that his trial counsel was ineffective in failing to object to evidence
pertaining to the petitioner’s possession of a certain assault rifle seized
incident to his arrest, and failing to present testimony from a firearms
expert to prove that the assault rifle was not the murder weapon. The
habeas court rendered judgment denying the habeas petition on the
ground that the petitioner had failed to establish that trial counsel’s
claimed errors prejudiced him and, thereafter, denied the petition for
certification to appeal, and the petitioner appealed to this court. Held
that the habeas court did not abuse its discretion in denying the petition
for certification to appeal, as the petitioner failed to show that there
was a reasonable probability that but for trial counsel’s alleged unprofes-
sional errors, the result of the proceeding would have been different:
it was unlikely that the preclusion of the challenged evidence would
have changed the result of the petitioner’s criminal trial when viewed
in the context of the overwhelming amount of evidence against the
petitioner, including his voluntary confession to the police that he shot
the victim with the assault rifle that he retrieved from the trunk of
his vehicle and that he took the victim’s game console, which was
corroborated by forensic evidence and the testimony of, inter alia, the
state’s experts and B, and the petitioner could not show that if his trial
counsel had presented the evidence of his own firearms expert, the
result of his criminal trial would have been different, as the petitioner
failed to show that such an expert would have offered any opinions in
addition or contrary to those of the state’s expert at his criminal trial;
furthermore, the petitioner could not prevail on his claim that his trial
counsel had provided ineffective assistance by failing to object to the
state’s recalling of B on rebuttal and to adequately preserve that issue
for purposes of appellate review, as the testimony of the petitioner’s
criminal defense expert at the habeas trial established only that this
court did not review the petitioner’s claim on direct appeal because it
was not preserved for appeal, and in the absence of expert testimony
that this court would have reversed the petitioner’s conviction had trial
counsel preserved the record for appeal, the petitioner had provided
no basis from which a court could find a reasonable probability that
the result of his appeal would have been different.
Argued March 20—officially released July 24, 2018
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Sferrazza, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Peter Tsimbidaros, for the appellant (petitioner).
Lisa A. Riggione, senior assistant state’s attorney,
with whom, on the brief, were Brian Preleski, state’s
attorney, and Kelli A. Masi, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
ALVORD, J. The petitioner, Marcos Mercado, appeals
from the denial of his petition for certification to appeal
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 abused its dis-
cretion in denying his petition for certification to appeal
and improperly rejected his claim that his trial counsel
rendered ineffective assistance. Specifically, the peti-
tioner claims that his trial counsel rendered ineffective
assistance by failing: (1) to take appropriate measures
at trial to preclude the introduction of evidence of the
petitioner’s prior commission of crimes; (2) to take
appropriate measures to preclude, or failing to call an
expert to challenge, the state’s introduction of firearms
and ballistics evidence; and (3) to adequately preserve
an issue for appellate review. We conclude that the
habeas court did not abuse its discretion in denying
the petition for certification to appeal. Accordingly, we
dismiss the appeal.
The following facts, as set forth by this court on the
petitioner’s direct appeal, are relevant to our resolution
of the petitioner’s claims. ‘‘On December 26, 2007, the
Southington police went to the apartment of the victim,
Thomas Szadkowski, at 81 Academy Street to check on
his welfare, as he had not reported to work that day.
The police found the victim in his kitchen, lying dead
of a gunshot wound. During their search of the victim’s
apartment, the Southington and state police observed
a number of open windows on the screen of the victim’s
computer. One window depicted an America Online
instant message exchange between the [petitioner] and
the victim, which took place between approximately
8:45 and 9:45 p.m. on December 24, 2007.
‘‘The instant message screen revealed that the victim
had invited the [petitioner] to his apartment. Another
open screen displayed the [petitioner’s] photograph and
profile. The [petitioner] accepted the invitation and
drove to the victim’s apartment. After the [petitioner]
and the victim engaged in a sexual act, the [petitioner]
retrieved a gun from his motor vehicle, returned to
the victim’s apartment and shot him. When he left the
apartment, the [petitioner] took the victim’s Xbox 360
game console (Xbox). On December 26, 2007, the [peti-
tioner] gave the Xbox to a former girlfriend, Laurel
Brooks, as a gift for her younger brother. The [peti-
tioner] was arrested at his home in New Britain on
December 30, 2007. He subsequently signed a written
statement and confessed, during a videotaped inter-
view, to having shot the victim.1’’ (Footnote in original.)
State v. Mercado, 139 Conn. App. 99, 100–101, 54 A.3d
633, cert. denied, 307 Conn. 943, 56 A.3d 951 (2012).
The court appointed Attorneys Christopher D. Eddy
and Kenneth W. Simon to represent the petitioner. In
a substitute long form information, the state charged the
petitioner with murder in violation of General Statutes
§ 53a-54a, felony murder in violation of General Statutes
§ 53a-54c, and robbery in the first degree in violation
of General Statutes § 53a-134 (a) (2). After a trial, the
jury found the petitioner guilty of all three counts. The
trial court, Espinosa, J., merged the felony murder con-
viction into the murder conviction and sentenced the
petitioner to a total effective sentence of seventy years
incarceration on the murder and robbery charges. The
petitioner appealed from the judgment of conviction,
which this court affirmed. See id., 100, 107. The peti-
tioner then petitioned for certification to our Supreme
Court, which that court denied. State v. Mercado, 307
Conn. 943, 56 A.3d 951 (2012).
On March 3, 2016, the petitioner filed a third amended
petition for a writ of habeas corpus, in which he alleged
the ineffective assistance of his trial counsel. Specifi-
cally, as summarized by the habeas court in its memo-
randum of decision, the petitioner claimed that his trial
counsel provided him with ineffective assistance by
‘‘failing to object, exclude, or move to limit the use of
testimony elicited from the petitioner on cross-exami-
nation and from Laurel Brooks, in the state’s rebuttal,
regarding whether the petitioner had acknowledged to
Brooks having committed robberies in the past . . .
failing to object, exclude, or move to limit the use of
evidence pertaining to the petitioner’s possession of
a .223 caliber [AR-15] Bushmaster assault rifle seized
incident to his arrest . . . failing to present testimony
from a firearms expert to prove that [the] Bushmaster
rifle was not the murder weapon; and . . . failing to
investigate adequately the possibility that Richard Diaz
was the real culprit.’’2
A trial commenced before the habeas court, Sfer-
razza, J., on October 3, 2016. The court heard testimony
from Lieutenant Joseph Rainone, a Waterbury police
officer who testified at the petitioner’s criminal trial as
a firearms expert for the state; Dr. Albert Harper, a
firearms expert; Attorneys Eddy and Simon; Diaz; Car-
men Baez, an investigator for the Office of the Public
Defender; Attorney Sebastian DeSantis, a Connecticut
criminal defense attorney; and the petitioner.
After trial, in a written memorandum of decision
dated October 13, 2016, the habeas court denied the
petition for a writ of habeas corpus. The court deter-
mined that the petitioner had failed to establish that trial
counsel’s claimed errors prejudiced him. The petitioner
then filed a petition for certification to appeal, which
the habeas court denied. This appeal followed.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
[the petitioner] must demonstrate that the denial of
his petition for certification constituted an abuse of
discretion. . . . Second, if the petitioner can show an
abuse of discretion, he must then prove that the deci-
sion of the habeas court should be reversed on the
merits. . . . A petitioner may establish an abuse of dis-
cretion by demonstrating that the issues are debatable
among jurists of reason . . . [the] court could resolve
the issues [in a different manner] . . . or . . . the
questions are adequate to deserve encouragement to
proceed further. . . . In determining whether the
habeas court abused its discretion in denying the peti-
tioner’s request for certification, we necessarily must
consider the merits of the petitioner’s underlying claims
to determine whether the habeas court reasonably
determined that the petitioner’s appeal was frivolous.’’
(Internal quotation marks omitted.) Brown v. Commis-
sioner of Correction, 179 Conn. App. 358, 364, 179 A.3d
794, cert. denied, 328 Conn. 919, 181 A.3d 91 (2018).
‘‘We examine the petitioner’s underlying claim[s] of
ineffective assistance of counsel in order to determine
whether the habeas court abused its discretion in deny-
ing the petition for certification to appeal. Our standard
of review of a habeas court’s judgment on ineffective
assistance of counsel claims is well settled. In a habeas
appeal, this court cannot disturb the underlying facts
found by the habeas court unless they are clearly erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary.’’ (Internal quotation marks omitted.)
Parrott v. Commissioner of Correction, 107 Conn. App.
234, 236, 944 A.2d 437, cert. denied, 288 Conn. 912, 954
A.2d 184 (2008).
‘‘In order to establish an ineffective assistance of
counsel claim a petitioner must meet the two-pronged
test enunciated in Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Specifi-
cally, the claim must be supported by evidence estab-
lishing that (1) counsel’s representation fell below an
objective standard of reasonableness, and (2) counsel’s
deficient performance prejudiced the defense because
there was a reasonable probability that the outcome of
the proceedings would have been different had it not
been for the deficient performance. . . . Because both
prongs of Strickland must be demonstrated for the
petitioner to prevail, failure to prove either prong is fatal
to an ineffective assistance claim.’’ (Citation omitted;
internal quotation marks omitted.) Hall v. Commis-
sioner of Correction, 152 Conn. App. 601, 608, 99 A.3d
1200, cert. denied, 314 Conn. 950, 103 A.3d 979 (2014).
‘‘[A] court need not determine the deficiency of coun-
sel’s performance if consideration of the prejudice
prong will be dispositive of the ineffectiveness claim.’’
(Internal quotation marks omitted.) Parrott v. Commis-
sioner of Correction, supra, 107 Conn. App. 237.
The petitioner contends on appeal that the habeas
court abused its discretion in denying his petition for
certification to appeal because his trial counsel ren-
dered ineffective assistance in three respects. He first
claims that trial counsel was ineffective in ‘‘failing to
take appropriate measures to preclude the admission
of the highly prejudicial evidence of Mr. Mercado’s prior
commission of crimes.’’ Specifically, he argues that trial
counsel ‘‘did not adequately object’’ when the state elic-
ited testimony from the petitioner at his criminal trial
regarding statements he allegedly made to Brooks about
committing crimes in the past,3 and ‘‘did not adequately
object’’ when the state recalled Brooks on rebuttal.4
The petitioner’s second claim is that trial counsel
was ineffective in failing to take appropriate measures
to preclude, or failing to call an expert to challenge, the
state’s introduction of firearms and ballistics evidence.
Specifically, he argues that trial counsel did not ‘‘take
appropriate measures to preclude the introduction of
highly prejudicial irrelevant evidence, including the .223
caliber AR-15 Bushmaster assault [rifle] seized from
[the petitioner’s] home, two .22 caliber bullets, and ref-
erences to a conversion kit which would not have ren-
dered the AR-15 Bushmaster capable of firing .22 caliber
bullets.’’ He further argues that trial counsel was inef-
fective in failing to introduce expert testimony to estab-
lish that ‘‘the conversion kit the state alleged Mr.
Mercado possessed did not render the .223 caliber AR-
15 Bushmaster weapon capable of firing the fatal bul-
let.’’ The petitioner contends that these errors ‘‘provided
a basis for the jury to convict the [petitioner] on side
issues.’’
Finally, and closely related to his first claim, the peti-
tioner claims that by failing to object to the state’s
recalling of Brooks on rebuttal, trial counsel ‘‘failed to
adequately preserve [the] issue for purposes of appel-
late review.’’ He notes that, on direct appeal of his
conviction to this court, this court declined to review
his claims related to the admission of Brooks’ testimony
because ‘‘the issue had not been properly preserved
by trial [counsel] during the criminal proceeding.’’ See
footnote 4 of this opinion. He contends that ‘‘his convic-
tion would have been overturned had trial [counsel]
preserved the issue properly.’’ We address the petition-
er’s claims together.
‘‘Because the court determined that the petitioner
had not proven that he was prejudiced by the perfor-
mance of his trial counsel, our focus on review is
whether the court correctly determined the absence of
prejudice.’’ Weinberg v. Commissioner of Correction,
112 Conn. App. 100, 108, 962 A.2d 155, cert. denied, 291
Conn. 904, 967 A.2d 1221 (2009). ‘‘With respect to the
prejudice component of the Strickland test, the peti-
tioner must demonstrate that counsel’s errors were so
serious as to deprive the [petitioner] of a fair trial, a
trial whose result is reliable. . . . It is not enough for
the [petitioner] to show that the errors had some con-
ceivable effect on the outcome of the proceedings. . . .
Rather, [t]he [petitioner] must show that there is a rea-
sonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.
. . . When a [petitioner] challenges a conviction, the
question is whether there is a reasonable probability
that, absent the errors, the fact finder would have had a
reasonable doubt respecting guilt.’’ (Internal quotation
marks omitted.) Id., 107.
We conclude that the habeas court did not abuse its
discretion in denying the petition for certification to
appeal. The petitioner failed to satisfy his burden of
showing a reasonable probability that had trial counsel
objected to the complained of evidence, or presented
the testimony of a firearms expert, the fact finder would
have had a reasonable doubt respecting guilt. Notably,
the petitioner presented no support for his contention
that ‘‘the jury did not consider the evidence overwhelm-
ing’’ beyond the fact that the jury deliberated for four
days before reaching a verdict.5 Upon review, nothing
in the record suggests that but for the claimed errors
of trial counsel, the result of the trial would have
been different.6
We note that ‘‘[t]he strength of the state’s case is a
significant factor in determining whether an alleged
error caused prejudice to the petitioner. The stronger
the case, the less probable it is that a particular error
caused actual prejudice.’’ (Internal quotation marks
omitted.) Weinberg v. Commissioner of Correction,
supra, 112 Conn. App. 115. As the habeas court rightfully
concluded, the state’s case against the petitioner
included an ‘‘overwhelming’’ amount of forensic evi-
dence and testimony to support a finding of guilt. That
evidence included: (1) physical evidence at the crime
scene that ‘‘largely corresponded’’ with details supplied
by the petitioner in his voluntary confession;7 (2)
Brooks’ testimony that the petitioner brought her an
Xbox, without its box, on December 26, 2007, which
she later gave to Detective Jay Suski of the Southington
Police Department; (3) testimony of Officer Michael
David Kahn, a systems administrator for the town of
Southington, that Xbox serial numbers are unique to
each unit; (4) Detective Suski’s testimony that the serial
number on the Xbox seized from Brooks’ home matched
the serial number listed on a receipt seized from the
victim’s home; (5) Brooks’ testimony that when the
petitioner visited her on December 26, he was exhibiting
strange behavior, including physically shaking; (6)
Brooks’ testimony that during that visit, the petitioner
told her he had ‘‘done something,’’ and that ‘‘there was
a witness, but there’s not anymore,’’ and then asked
‘‘how come it doesn’t bother him’’; (7) Lieutenant Rai-
none’s testimony that upon comparing a .22 caliber
bullet recovered in the petitioner’s backyard, where
the petitioner engaged in target shooting, with the .22
caliber bullet removed from the victim’s head, he deter-
mined that the two bullets were fired from the same
gun; (8) Lieutenant Rainone’s testimony that, although
the .223 caliber AR-15 seized from the petitioner’s home
was incapable of firing a .22 caliber bullet, it could be
modified to fire a .22 caliber bullet; (9) evidence that
demonstrated that the petitioner had access to both .22
caliber firearms, as well as adapters capable of allowing
the seized AR-15 to fire a .22 caliber bullet; (10) images
of messages exchanged between screen names associ-
ated with the petitioner and the victim,8 showing that
the petitioner had communicated with the victim on
the evening of December 24, 2007, and arranged to
meet at the victim’s home; (11) forensic analysis of the
petitioner’s and the victim’s computers confirming that
communication occurred between the petitioner and
the victim on December 24, 2007; (12) testimony of
Diaz, whom the petitioner attempted to portray as the
perpetrator of the crimes here, regarding his verifiable
alibi on Christmas Eve, 2007;9 and (13) Diaz’ testimony
that when he visited the petitioner while the petitioner
was incarcerated prior to his trial, the petitioner con-
fessed to him that ‘‘he did it.’’
Perhaps most significantly, the petitioner also volun-
tarily confessed to killing the victim and then taking
his Xbox.10 In a voluntary statement given to Lieutenant
James P. Wardwell of the New Britain Police Depart-
ment, the petitioner confessed to communicating with
the victim on the evening of December 24, 2007, via
America Online instant messenger, arranging to meet
the victim at the victim’s home so that the petitioner
could perform a sexual act on the victim, visiting the
victim’s home soon after arranging the meeting, per-
forming the agreed upon sexual act on the victim, and
then shooting the victim with an AR-15 that he retrieved
from the trunk of his vehicle. As the habeas court noted,
that confession was video recorded. At the petitioner’s
criminal trial, both an audio-visual recording and a tran-
script of the confession were admitted as full exhibits.
When considered in light of the petitioner’s detailed,
and largely corroborated confession, it is difficult to
imagine how trial counsel’s claimed errors caused him
to suffer prejudice. See Lewis v. Commissioner of Cor-
rection, 89 Conn. App. 850, 866, 877 A.2d 11 (agreeing
with habeas court’s conclusion that even if trial counsel
should have objected to witness’ testimony regarding
petitioner’s post-Miranda silence, petitioner was not
prejudiced as result of counsel’s failure to do so because
state had already elicited testimony that petitioner
twice confessed to killing victim), cert. denied, 275
Conn. 905, 882 A.2d 672 (2005).
We agree with the habeas court that the inculpatory
evidence against the petitioner was ‘‘overwhelming and
rooted in the petitioner’s voluntary confession, which
the jury had . . . occasion to review visually and audi-
bly. The specifics of that confession were corroborated
in every salient respect by forensic evidence and testi-
mony. The purported deficiencies of defense counsel
were truly insignificant when weighed against the evi-
dence that supported the jury’s verdict.’’ Viewed in the
context of this overwhelming amount of evidence
against him, it is unlikely that preclusion of the chal-
lenged evidence would have changed the result of the
petitioner’s criminal trial. See, e.g., Arthur v. Commis-
sioner of Correction, 162 Conn. App. 606, 624, 131 A.3d
1267 (‘‘we conclude on the basis of our review of the
evidence that the petitioner cannot demonstrate preju-
dice because the [challenged] evidence was not signifi-
cant to the state’s case’’), cert. denied, 323 Conn. 915,
149 A.3d 496 (2016); cf. Eubanks v. Commissioner of
Correction, 166 Conn. App. 1, 21, 140 A.3d 402 (‘‘the
failure of the petitioner’s trial counsel to object to the
admission of [the witness’] . . . testimony on hearsay
grounds prejudiced the petitioner because when the
corroborating evidence is viewed in the absence of the
substantive use of that testimony, there is very little
evidence to support the petitioner’s conviction’’), cert.
granted, 323 Conn. 911, 149 A.3d 980 (2016).
It is also unlikely that had trial counsel presented the
testimony of a firearms expert, the jury would have had
a reasonable doubt concerning guilt.11 As the habeas
court concluded: ‘‘The prosecution’s own expert testi-
fied before the jury that the Bushmaster, in the condi-
tion in which it was found, could not have fired the
deadly shot. Both the fatal bullet and the bullet recov-
ered from the petitioner’s backyard were fired out of
the same barrel, but that barrel was not the one present
on the Bushmaster found at the petitioner’s residence.’’
(Emphasis in original.) On the basis of this, the court
found that ‘‘[t]he jury was completely educated by the
state’s expert to the precise facts about which a defense
expert might testify.’’
We agree with the habeas court’s determination that,
because the petitioner failed to show that an expert
would have offered any opinions in addition or contrary
to those of the state’s expert at his criminal trial, he
could not show that if trial counsel had presented the
evidence of his own expert, the result of his criminal
trial would have been different. The petitioner, there-
fore, failed to show that he was prejudiced by trial
counsel’s failure to present cumulative expert testi-
mony. See, e.g., Hall v. Commissioner of Correction,
supra, 152 Conn. App. 610 (‘‘[b]ecause the videotape
was merely cumulative of the testimony of numerous
eyewitnesses who identified the petitioner as the [per-
petrator], the petitioner cannot show that as a result
of his trial counsel’s deficient performance, there
remains a probability sufficient to undermine confi-
dence in the verdict that resulted in his appeal’’ [internal
quotation marks omitted]); Weinberg v. Commissioner
of Correction, supra, 112 Conn. App. 108 (affirming
habeas court’s conclusion that petitioner had failed to
demonstrate that he was prejudiced by trial counsel’s
failure ‘‘to disprove adequately that the knife seized
from the petitioner’s apartment could have caused the
victim’s wounds,’’ on the basis that petitioner’s evidence
at habeas trial regarding knife ‘‘was not substantively
different from the evidence trial counsel elicited from
the medical examiner during the underlying criminal
trial’’); Madagoski v. Commissioner of Correction, 104
Conn. App. 768, 775-76, 936 A.2d 247 (2007) (concluding
that petitioner failed to demonstrate that fact finder
would have reasonable doubt as to petitioner’s guilt
if trial counsel had interviewed and called potential
witness, because ‘‘his testimony, at most, would have
been cumulative of other evidence’’), cert. denied, 286
Conn. 905, 944 A.2d 979 (2008).
Finally, with respect to the petitioner’s claim that
trial counsel failed to preserve an issue for appeal, the
petitioner has failed to satisfy his burden of showing a
reasonable probability that, had trial counsel objected
to Brooks’ testimony, his conviction would have been
overturned on appeal. The habeas court rejected the
petitioner’s argument that but for trial counsel’s alleged
errors, the outcome of his appeal would have been
different. The petitioner, in his brief to this court, argues
that he has shown prejudice by pointing to the trial
court’s ‘‘threshold determination in granting the [peti-
tioner’s] motion in limine that the evidence was indeed
prejudicial,’’ and ‘‘the expert legal testimony introduced
at the habeas trial.’’ Upon review of the record, how-
ever, it is clear that Attorney DeSantis’ testimony to
which the petitioner refers establishes only that this
court did not review the petitioner’s claim on direct
appeal because it was not preserved for appeal, which
is not in dispute.
A further review of Attorney DeSantis’ testimony
reveals that he testified only that a reasonably compe-
tent attorney would have objected to the state’s attempt
to ask the petitioner about his ‘‘other crimes’’ conversa-
tion with Brooks, which, if sustained, would have had
the effect of precluding ‘‘other crimes testimony’’ from
Brooks. He further testified that if the objection were
overruled, it would have preserved the record for
appeal. At no time did Attorney DeSantis testify that
had trial counsel preserved the record for appeal, this
court would have reversed the petitioner’s conviction.
Therefore, in light of the fact that the petitioner has
provided no basis from which a court could find a
reasonable probability that the result of his appeal
would have been different, we agree with the habeas
court’s finding that the petitioner failed to prove that
he was prejudiced by this claimed error.
Simply put, even if we were to determine that trial
counsel’s performance was deficient, in light of our
review of the record and the sheer strength of the state’s
case against the petitioner, we conclude that the peti-
tioner’s claim that the result of his criminal proceedings
would have been different is highly speculative at best.12
The petitioner has failed to demonstrate that the issues
raised are debatable among jurists of reason, that a
court could resolve the issues in a different manner, or
that the questions deserve encouragement to proceed
further. Accordingly, the habeas court did not abuse
its discretion in denying the petition for certification
to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
‘‘The [petitioner] filed a motion to suppress his statements claiming that
they were the product of police intimidation and coercion and therefore
were not voluntary. The court denied the motion to suppress. Before the
jury, the [petitioner] testified that his written and videotaped statements
were not the truthful product of his free will. He agreed to sign the statements
to provide the police with the information they wanted in order to end the
police questioning.’’ State v. Mercado, 139 Conn. App. 99, 101 n.3, 54 A.3d
633, cert. denied, 307 Conn. 943, 56 A.3d 951 (2012).
2
Diaz is the petitioner’s cousin.
3
On January 1, 2008, Brooks gave a voluntary statement to Detective Jay
Suski of the Southington Police Department, in which she stated: ‘‘Marcos
has talked to me in the past about committing crimes. He’s talked about
wanting to do robberies. He would give me details about how he would tie
people up or break into their home when they weren’t home.’’
4
Before the state called Brooks to testify during its case-in-chief, trial
counsel filed a motion in limine to preclude her from ‘‘testifying concerning
the [petitioner’s] alleged past about committing crimes.’’ (Internal quotation
marks omitted.) State v. Mercado, supra, 139 Conn. App. 102. Trial counsel
argued that the probative value of such testimony would be outweighed by
its prejudicial effect. Id. The trial court granted the motion in limine with
respect to the state’s direct examination of Brooks, finding that ‘‘the preju-
dice outweighs the probative value with respect to the statement that [the
petitioner] has talked to me [Brooks] in the past about committing crimes.’’
(Internal quotation marks omitted.) Id., 102–103. The court, however, explic-
itly noted that ‘‘the motion is granted with respect to the testimony on direct
examination. If the defense on cross-examination opens the door or upon
cross-examination of the [petitioner], then this would not—the court’s
order doesn’t apply.’’ (Emphasis added; internal quotation marks omitted.)
Id., 103.
The state offered Brooks’ testimony in conformity with the court’s order.
Id. On cross-examination of the petitioner, the state requested permission
from the court to question the petitioner about whether he had made these
statements to Brooks. Id., 103–104. Trial counsel objected, arguing that the
probative value of the petitioner’s statements were outweighed by their
prejudicial effect. Id., 104. The court overruled the objection, and the state
questioned the petitioner about these statements. Id. The petitioner denied
making the statements. Id. During its rebuttal case, the state recalled Brooks,
and elicited testimony regarding these statements. Id. Trial counsel did not
object to recalling Brooks or her resulting testimony. Id., 104–105.
On direct appeal to this court, the petitioner claimed that (1) the trial
court abused its discretion by permitting the prosecutor to cross-examine
him about prior misconduct that did not fall within the exception governing
admissibility of prior misconduct evidence contained in § 4-5 (b) of the 2009
edition of the Connecticut Code of Evidence, now § 4-5 (c), and (2) the
prosecutor’s ‘‘deliberate violation’’ of the court’s ruling on the motion in
limine while examining Brooks on rebuttal warranted reversal of his convic-
tion. See id., 100, 105. With respect to the first claim, this court concluded
that because trial counsel objected to the state eliciting this testimony only
on the basis that the evidence was more prejudicial than probative, not that
it constituted inadmissible prior misconduct, the claim was not preserved
for appeal. Id., 104, 106–107. With respect to the second claim, this court
concluded that because trial counsel did not object to the state’s examination
of Brooks on rebuttal, seek to have her rebuttal testimony stricken, or request
a limiting or curative instruction, that claim was likewise unpreserved for
appeal. Id., 105–106. This court declined to review those unpreserved eviden-
tiary claims and affirmed the judgment of the trial court. Id., 107.
5
The petitioner argues that ‘‘the record reveals the jury considered Brooks’
testimony central to its determination of guilt since the jury sought portions
of her testimony played back.’’ The record reveals that the jury did in fact
request that one segment of Brooks’ testimony be played back during its
deliberations but, as stated by the trial court, requested only: ‘‘Can we hear
Laurel Brooks’ initial testimony March 3rd. That’s number one. Number
two: Can we see the letter that Marcos wrote to Laurel?’’ (Emphasis added.)
The first request related to Brooks’ testimony during the state’s case-in-
chief, and the second referred to a letter that was marked for identification
during the trial. The court accommodated the first request, but denied
the second. Notably, Brooks did not testify during the state’s case-in-chief
regarding the petitioner’s prior commission of crimes; she did so only when
the state recalled her on rebuttal. The record does not reflect that the
jury, at any time, requested playback of Brooks’ testimony on rebuttal. We
therefore reject this argument as unsupported by the record.
6
In his brief to this court, the petitioner repeatedly refers to the trial
court’s ‘‘threshold determination’’ that the evidence regarding his alleged
statements to Brooks was prejudicial. He argues that ‘‘[t]he criminal trial
court as a threshold matter determined the prejudice to the [petitioner] of
this evidence outweighed its probative value in granting [trial counsel’s]
motion in limine to preclude this evidence. Therefore, this evidence has
already been deemed prejudicial by the judge who actually presided over
the criminal trial.’’ According to the petitioner, ‘‘the prejudicial nature of
the evidence has been established.’’
The petitioner appears to conflate a determination by the trial court that
a piece of evidence is prejudicial with a determination of prejudice, in the
context of an ineffective assistance claim, pursuant to Strickland. As the
petitioner correctly notes, ‘‘[e]vidence is prejudicial when it tends to have
some adverse effect upon a defendant beyond tending to prove the fact or
issue that justified its admission into evidence.’’ (Internal quotation marks
omitted.) State v. Reynolds, 152 Conn. App. 318, 326, 97 A.3d 999, cert.
denied, 314 Conn. 934, 102 A.3d 85 (2014). In the context of an ineffective
assistance claim, however, for a petitioner to satisfy his burden of proving
that he was prejudiced by counsel’s deficient performance, ‘‘[i]t is not enough
for the [petitioner] to show that the errors had some conceivable effect on
the outcome of the proceedings. . . . Rather, [t]he [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.’’ (Internal
quotation marks omitted.) Weinberg v. Commissioner of Correction, supra,
112 Conn. App. 107. These inquiries are distinct. We therefore reject the
petitioner’s argument that prejudice was established at the trial court
because the court granted his motion in limine.
7
For example, in the petitioner’s voluntary statement to Lieutenant James
P. Wardwell, the petitioner confessed to shooting the victim a single time
‘‘around his face,’’ dragging the victim’s body from the living room to the
kitchen, covering the victim’s face with a cloth, and pouring ‘‘soap or some-
thing’’ all around the victim’s body. Those details were corroborated by
evidence that the victim died of a single shot to the head, which went from
front to back, a ‘‘contact transfer blood pattern blood-like stain’’ between
the living room and kitchen, what appeared to be a pillow burned over the
face of the victim, and ‘‘an Arm and Hammer-type of liquid, blue liquid that
was poured on the [victim],’’ as well as the laundry detergent bottle recovered
near the victim’s body.
8
In the petitioner’s voluntary statement to Lieutenant James P. Wardwell,
he admitted to using the screen name ‘‘Marcos Mercado, Jr.’’
9
Specifically, at the criminal trial, Diaz testified that on December 24,
2007, he went to church with his wife and his daughter around 6 p.m.
Because it was Christmas Eve, the church was full of other parishioners.
Following the church service, he, his wife, and his daughter celebrated
Christmas Eve with his mother-in-law and father-in-law at their house. He,
his wife, and his daughter returned to their apartment in Southington around
1 a.m. on Christmas morning.
His testimony at the habeas trial was largely consistent with his prior
testimony at the criminal trial. The habeas court found Diaz’ testimony to
be ‘‘very credible, including his statement that his cousin, the petitioner,
admitted to him that he killed the victim.’’ ‘‘[T]his court does not retry the
case or evaluate the credibility of the witnesses. . . . Rather, we must defer
to the [trier of fact’s] assessment of the credibility of the witnesses based
on its firsthand observation of their conduct, demeanor and attitude. . . .
The habeas judge, as the trier of facts, is the sole arbiter of the credibility of
witnesses and the weight to be given to their testimony.’’ (Internal quotation
marks omitted.) Mourning v. Commissioner of Correction, 169 Conn. App.
444, 455, 150 A.3d 1166 (2016), cert. denied, 324 Conn. 908, 152 A.3d 1246(2017).
10
As we have noted, before his criminal trial, the petitioner moved to
suppress his confession, claiming that it was not voluntary. See footnote 1
of this opinion. The court denied the motion to suppress. State v. Mercado,
supra, 139 Conn. App. 101 n.3. The petitioner subsequently testified before
the jury that his written and videotaped statements ‘‘were not the truthful
product of his free will,’’ and ‘‘[h]e agreed to sign the statements to provide
the police with the information they wanted in order to end the police
questioning.’’ Id. The jury obviously did not credit his version of events. As
the habeas court noted, ‘‘the petitioner makes no claim that [the evidence
of his confession] was inadmissible evidence at his criminal trial.’’
11
In his voluntary statement to Lieutenant Wardwell, the petitioner
claimed that he shot the victim with the .223 caliber AR-15 that the police
seized from his house at the time of his arrest. He claimed that he used an
adapter, which modified the AR-15 to allow it to shoot .22 caliber bullets.
At the criminal trial, the unmodified AR-15 was entered into evidence as a
full exhibit. The state’s firearms expert, Lieutenant Rainone, testified that,
in its unmodified condition, the AR-15 was incapable of firing the .22 caliber
bullet that killed the victim. Trial counsel did not call a firearms expert.
At the petitioner’s habeas trial, Lieutenant Rainone again testified that
the AR-15 admitted at the petitioner’s criminal trial, in its unmodified condi-
tion, was incapable of firing the .22 caliber bullet that killed the victim. The
petitioner presented the testimony of a firearms expert, Dr. Harper, who
testified, consistent with Lieutenant Rainone’s testimony, that the AR-15
admitted at the petitioner’s criminal trial was incapable of firing a .22 caliber
bullet. He further testified that even if the AR-15 was modified to fire a .22
caliber bullet, the two bullets recovered from the victim’s head and the
petitioner’s backyard could not have been fired from the AR-15 in the condi-
tion in which it was seized, unless the barrel was changed. Dr. Harper
testified that, with respect to the issue of the murder weapon, he agreed
with Lieutenant Rainone’s testimony that the AR-15 seized and entered into
evidence at the petitioner’s criminal trial did not fire the .22 caliber bullet
that killed the victim.
When trial counsel was questioned about the admission of the AR-15 at
the petitioner’s criminal trial, Attorney Eddy testified that trial counsel
engaged a firearms expert, but that expert ‘‘came to the same conclusion
as Lieutenant Rainone,’’ so trial counsel made the tactical decision to allow
the state to introduce the AR-15. This allowed trial counsel to argue to the
jury that the gun recovered from the petitioner’s home was not the murder
weapon, even according to the state’s own expert. Attorney Simon testified
that trial counsel hired a firearms expert, but that his opinions were ‘‘not
particularly helpful.’’ He testified that he argued to the jury that the seized
AR-15 was not the murder weapon, and that trial counsel thought that such
an argument was ‘‘as good as it got’’ for the petitioner.
12
In support of his argument that his counsel’s deficient performance
prejudiced him, the petitioner repeatedly cites to this court’s decision in
State v. Coccomo, 115 Conn. App. 384, 972 A.2d 757 (2009), rev’d, 302 Conn.
664, 31 A.3d 1012 (2011). He contends that, in Coccomo, this court ‘‘over-
turned a conviction on the basis that the prejudicial impact on the defendant
of the evidence outweighed its probative value.’’
In Coccomo, the defendant was convicted of three counts of manslaughter
in the second degree with a motor vehicle, three counts of misconduct with
a motor vehicle, and one count of operating a motor vehicle while under
the influence of intoxicating liquor or drugs. State v. Coccomo, supra, 115
Conn. App. 385–86. On direct appeal, the defendant argued that the trial
court improperly admitted consciousness of guilt evidence which was more
prejudicial than probative. Id., 386, 401. This court agreed, and concluded
that the trial court abused its discretion in admitting the challenged evidence,
and that because the state’s case was not very strong, ‘‘the admission of
the prejudicial evidence . . . likely tipped the scale in favor of the state.’’
Id., 402. This court reversed the judgment of conviction and remanded the
case for a new trial. Id.
The petitioner’s reliance on Coccomo is misplaced for several reasons,
the most obvious of which being that, on appeal to our Supreme Court,
that court reversed the judgment of this court and remanded the case for
affirmance of the judgment of conviction. State v. Coccomo, 302 Conn. 664,
697, 31 A.3d 1012 (2011).