Davis v. Commissioner of Correction , 186 Conn. App. 366 ( 2018 )

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JAMES L. DAVIS III v. COMMISSIONER OF
CORRECTION
(AC 40090)
DiPentima, C. J., and Lavine and Sheldon, Js.
Syllabus
The petitioner, who previously had been convicted of manslaughter in the
first degree, assault in the first degree and carrying a pistol without a
permit, sought a writ of habeas corpus, claiming that his trial counsel
provided ineffective assistance. The habeas court rendered judgment
denying the habeas petition and, thereafter, denied the petition for certifi-
cation to appeal, and the petitioner appealed to this court. Held:
1. The habeas court did not abuse its discretion in denying the petition for
certification to appeal, the petitioner having failed to show that the
issues raised were debatable among jurists of reason, that a court could
have resolved the issues in a different manner, or that the questions
raised were adequate to deserve encouragement to proceed further.
2. The habeas court properly determined that the petitioner was not denied
his right to effective assistance of counsel:
a. The petitioner’s claim that his trial counsel was ineffective by failing
to file a motion in limine to preclude certain firearm related evidence
found in a room where the petitioner had stayed was unavailing; the
petitioner’s trial counsel testified that the admission into evidence of
the firearm related evidence was part of his third-party culpability
defense, and there was a strong presumption that the trial strategy
employed by the petitioner’s trial counsel was reasonable and a result
of the exercise of professional judgment.
b. The petitioner’s trial counsel was not ineffective by failing to consult
with or to present the testimony of an eyewitness identification expert;
trial counsel’s performance was not deficient in light of the standards
in effect at the time of the petitioner’s criminal trial, trial counsel’s
theory of defense was not misidentification but, rather, was third-party
culpability, counsel was not required to call an expert and was entitled
to make strategic choices in preparation for trial, and the petitioner
made no showing as to how consulting with a memory expert would
have assisted trial counsel or that the result would have been different
had counsel done so.
c. The petitioner did not demonstrate that his trial counsel rendered
ineffective assistance by failing to object to the testimony of a laboratory
supervisor on the ground that her testimony violated the petitioner’s
right to confrontation under the federal constitution, as articulated in
Crawford v. Washington (541 U.S. 36); at the time of the trial that
led to the petitioner’s conviction, it was evident that the definition of
‘‘testimonial’’ under Crawford was evolving, and trial counsel did not
render ineffective assistance by maneuvering within the existing law
and declining to advance a novel theory.
d. The petitioner’s claim that his trial counsel was ineffective by failing
to prepare the petitioner for his presentence investigation interview
was unavailing; trial counsel was present during the interview, and the
petitioner made no showing that his honest comments made during the
interview regarding selling drugs or possessing a gun made a difference
in the sentence imposed.
Argued September 7—officially released December 4, 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, Fuger, J.; judgment
denying the petition; subsequently, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Heather Clark, for the appellant (petitioner)
Michael L. Regan, state’s attorney, for the appellee
(respondent).
Opinion
DiPENTIMA, C. J. The petitioner, James L. Davis III,
appeals from the judgment of the habeas court denying
his second amended petition for a writ of habeas cor-
pus. On appeal, the petitioner claims that the court
(1) abused its discretion in denying his petition for
certification to appeal and (2) erred in concluding that
his trial counsel had not rendered ineffective assistance
by failing to (A) file a motion in limine to preclude
certain evidence, (B) consult with and present the testi-
mony of an eyewitness identification expert, (C) object
to the testimony of a laboratory supervisor on the
ground that the testimony violated his right to confron-
tation under the federal constitution and (D) prepare
the petitioner for the presentence investigation inter-
view. We dismiss the petitioner’s appeal.
The following facts and procedural history are rele-
vant to our resolution of the petitioner’s claims. The
petitioner was charged with murder by use of a firearm
in violation of General Statutes § 53a-54a (a), attempt
to commit murder in violation of General Statutes
§§ 53a-49 (a) (2) and 53a-54a (a), three counts of assault
in the first degree in violation of General Statutes § 53a-
59 (a) (5) and carrying a pistol without a permit in
violation of General Statutes § 29-35 (a). The matter
proceeded to trial twice; both ended in mistrials due
to the inability of the jury to reach a unanimous verdict.
Following the petitioner’s third trial, the jury returned
a verdict of not guilty on the count of murder, but guilty
of the lesser included offense of manslaughter in the
first degree in violation of General Statutes § 53a-55a,
not guilty of attempt to commit murder, guilty of three
counts of assault in the first degree, and guilty of car-
rying a pistol without a permit. The trial court, Hadden,
J., accepted the verdict and sentenced the petitioner
to a total effective sentence of forty-eight years impris-
onment.
On direct appeal, our Supreme Court affirmed the
petitioner’s conviction. See State v. Davis, 283 Conn.
280, 929 A.2d 278 (2007). The following facts, which
the jury reasonably could have found, were set forth
on direct appeal: ‘‘The events in question took place in
the early morning hours of November 14, 1999, at the
Sportsmen’s Athletic Club (club) at 40 High Street in
Norwich. Joseph Ellis arrived at the club with Susan
Gomez at approximately midnight. Ellis had arranged
to meet Jermaine Floyd, Timothy McCoy and Xavier
Cluff there. The [petitioner], Susan Gomez’ estranged
husband, and Ricky Gomez, Ron Pires, Clayton Bal-
linger and Yolanda Pires were in the poolroom of the
club when Ellis arrived. Ellis went to the bar area,
accompanied by Floyd and McCoy, and saw Ricky
Gomez and Ron Pires, both of whom he knew, looking
at him through a service window between the bar and
the poolroom. Ellis then left the bar area and went to
the club’s office to make arrangements for a birthday
party. When he came out of the office, Ellis saw Ricky
Gomez, Ron Pires and a third person whom he could
not clearly see walk in and out of the bathroom several
times. Ricky Gomez left the club, came back with some-
thing concealed under his jacket and again entered the
bathroom. Gomez then left the bathroom, and, shortly
thereafter, another person came out and started shoot-
ing a gun. The shooter’s face was covered with a cloth
of some type.
‘‘The shooter first shot Joseph Dubose. He then shot
Ellis in the left leg and went to the front door of the
club, where he fired two more shots. He returned to
Ellis and shot him in the right leg, upper right arm and
armpit, and left forearm. At that point, the cloth over
the shooter’s face slipped, and Ellis recognized him as
the [petitioner].
‘‘At approximately 1:16 a.m. on November 14, 1999,
members of the Norwich Police Department responded
to an alarm at the club. Upon entering the club, they
observed Dubose and Ellis lying on the floor with appar-
ent gunshot wounds. One of the officers also observed
that Floyd, who was able to stand on his own, had been
shot in the buttocks. Emergency medical personnel
transported Dubose, Ellis and Floyd to William W.
Backus Hospital in Norwich. Cluff, who had been shot
in the arm during the incident, arrived at the hospital
by other means of transportation. Dubose was declared
dead at approximately 2:11 a.m.
‘‘Later on the day of the shooting, members of the
Norwich Police Department, assisted by members of
the state police eastern district major crime squad,
recovered ten spent .40 caliber shell casings and eleven
bullet fragments from the scene of the shooting. The
Norwich police recovered two additional bullet frag-
ments on November 16, 1999. All of the shell casings
had been fired from the same .40 caliber Glock semiau-
tomatic handgun.
‘‘Several months prior to the shooting, in September,
1999, Wilfred Pepin had reported the theft of several
guns, including a .40 caliber Glock semiautomatic hand-
gun, from his residence in Lisbon. After the shooting,
the Norwich Police Department contacted Pepin and
inquired if Pepin had retained possession of any casings
that had been discharged from the Glock handgun.
Pepin was able to find three casings that he thought
may have been discharged from the gun and provided
them to the police. Two of those casings matched the
casings that had been recovered at the club.
‘‘On January 5, 2000, Adrianne Cook went to the Nor-
wich police station and informed the police that the
[petitioner] was staying at her apartment at 29 Carpen-
ter Street in Norwich and that he had refused to leave.
The police went to the apartment and arrested the [peti-
tioner] for criminal trespassing. They also seized a black
duffel bag from the room in which the [petitioner] had
been staying. The duffel bag contained a number of
guns and gun paraphernalia that had been stolen from
Pepin. Several of the items, including a gun case, a
magazine clip, two screws, an Allen wrench and spare
magazine holders, were linked to Pepin’s .40 caliber
Glock handgun, but the gun itself never was recovered.’’
(Footnote omitted.) Id., 284–86.
In January, 2016, the petitioner filed his second
amended petition for a writ of habeas corpus in which
he alleged ineffective assistance of trial counsel,
Michael Fitzpatrick, on several grounds. The habeas
court, Fuger, J., denied the petition. The court deter-
mined that Fitzpatrick had testified credibly and con-
cluded that the petitioner had proven neither deficient
performance nor prejudice. The petitioner filed a peti-
tion for certification to appeal, which the court denied.
This appeal followed. Additional facts will be set forth
as necessary.
I
The petitioner claims that the court abused its discre-
tion in denying his petition for certification to appeal
because it improperly denied his claims of ineffective
assistance of counsel. We do not agree.
‘‘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. . . . To prove that the denial of his petition
for certification to appeal constituted an abuse of dis-
cretion, the petitioner must demonstrate that the [reso-
lution of the underlying claim involves issues that] are
debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to
proceed further. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’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 peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by [our Supreme
Court] for determining the propriety of the habeas
court’s denial of the petition for certification.’’ (Cita-
tions omitted; internal quotation marks omitted.) Sand-
ers v. Commissioner of Correction, 169 Conn. App. 813,
821–22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904,
156 A.3d 536 (2017).
II
We now examine the petitioner’s underlying claims
of ineffective assistance of counsel to determine
whether the court abused its discretion in denying the
petition for certification to appeal.
‘‘It is well established that [a] criminal defendant is
constitutionally entitled to adequate and effective assis-
tance of counsel at all critical stages of criminal pro-
ceedings . . . . This right arises under the sixth and
fourteenth amendments to the United States constitu-
tion and article first, § 8, of the Connecticut constitu-
tion. . . . As enunciated in Strickland v. Washington,
[466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984)], this court has stated: It is axiomatic that the
right to counsel is the right to the effective assistance
of counsel. . . . A claim of ineffective assistance of
counsel consists of two components: a performance
prong and a prejudice prong. To satisfy the performance
prong . . . the petitioner must demonstrate that his
attorney’s representation was not reasonably compe-
tent or within the range of competence displayed by
lawyers with ordinary training and skill in the criminal
law. . . . The second prong is . . . satisfied if the peti-
tioner can demonstrate that there is a reasonable proba-
bility that, but for that ineffectiveness, the outcome
would have been different. . . . An ineffective assis-
tance of counsel claim will succeed only if both prongs
[of Strickland] are satisfied.’’ (Citations omitted; inter-
nal quotation marks omitted.) Sanders v. Commis-
sioner of Correction, supra, 169 Conn. App. 823. ‘‘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 peti-
tioner’s constitutional right to effective assistance of
counsel is plenary.’’ (Internal quotation marks omitted.)
Mourning v. Commissioner of Correction, 169 Conn.
App. 444, 449, 150 A.3d 1166 (2016), cert. denied, 324
Conn. 908, 152 A.3d 1246 (2017).
A
The petitioner claims that the court improperly failed
to conclude that Fitzpatrick rendered ineffective assis-
tance by failing to file a motion in limine to preclude
certain firearm and firearm-related evidence found in
a room where the petitioner had stayed, on the grounds
that it was not relevant, was more prejudicial than pro-
bative and constituted uncharged misconduct. We are
not persuaded.
The following additional facts are relevant. Pepin, a
gun collector, testified at the criminal trial that, on
September 27, 1999, twelve firearms were stolen from
his residence, including a .40 caliber Glock semiauto-
matic, as well as items related to the Glock. A black
duffel bag found by the police in the room where the
defendant had been staying in Cook’s apartment con-
tained a number of firearms and firearm-related items
that had been stolen from Pepin: two Smith & Wesson
.45 caliber revolvers, as well as items that were related
to the Glock: an Allen wrench and two screws; a Glock
magazine plate, a spare magazine holder, and a gun
case for the Glock. Pepin testified that some items that
were recovered in the duffel bag did not belong to him:
a .30 caliber magazine, two .30 caliber round magazines
taped together end-to-end, a .22 caliber round magazine
with eight rounds of ammunition, and a pouch with
two .30 caliber round magazines. The duffel bag also
contained clothing, and a receipt to Richard Gomez
from Bebe and O’Neill, a law firm in Norwich. Pepin’s
Glock was not recovered.
Edward Jachimowicz, the state’s firearm and tool
mark identification expert, testified at the criminal trial
that all ten spent shell casings found at the scene had
been fired from the same .40 caliber Glock semiauto-
matic pistol. At the request of the Norwich police
department, Pepin found three spent shell casings that
he thought may have been discharged from the Glock,
and testing revealed that the striations on two of the
spent shell casings matched the striations on the casings
recovered at the club. Jachimowicz testified that the
.45 caliber Smith & Wesson revolvers found in the duffel
bag were incapable of firing .40 caliber ammunition.
The petitioner argues that Fitzpatrick should have
sought to exclude the two Smith & Wesson revolvers
on the ground of relevancy. The petitioner contends
that the Smith & Wesson revolvers were not the same
caliber as the Glock used to commit the offenses and
thus could not have fired the .40 caliber ammunition
that struck the victims. He also argues that the state
did not offer any evidence that the petitioner had stolen
the Smith & Wesson revolvers from Pepin’s residence,
and that there was no indication as to who possessed
the revolvers in the one and one-half months between
the date of the offenses and the time when the revolvers
were seized on January 5, 2000. The petitioner further
argues that, assuming that the Smith & Wesson revolv-
ers were relevant, those revolvers and the firearm-
related evidence discovered by police in the duffel bag
was more prejudicial than probative. He also contends
that the firearms and the firearm-related evidence was
inadmissible uncharged misconduct evidence.
We note that ‘‘[t]he decision of a trial lawyer not to
make an objection is a matter of trial tactics, not evi-
dence of incompetency. . . . [T]here is a strong pre-
sumption that the trial strategy employed by a criminal
defendant’s counsel is reasonable and is a result of
the exercise of professional judgment . . . .’’ (Citation
omitted; internal quotation marks omitted.) Toccaline
v. Commissioner of Correction, 80 Conn. App. 792, 801,
837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413,
cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854,
125 S. Ct. 301, 160 L. Ed. 2d 90 (2004). Fitzpatrick testi-
fied at the habeas trial that the admission into evidence
of the firearms and firearm-related items in the duffel
bag was part of his third-party culpability defense. Fitz-
patrick explained at the habeas trial that if Ricky Gomez
had possession of the duffel bag and, therefore, had
possession of Pepin’s Smith & Wesson firearms, ‘‘then
arguably he was in possession of the Glock.’’ The habeas
court determined that Fitzpatrick testified ‘‘admirably’’
and that it took ‘‘no issue with the actions to which
. . . Fitzpatrick testified.’’
Fitzpatrick did not render deficient performance
when he failed to file a motion in limine to preclude
evidence that he thought would assist his theory of
defense.1 The inference that whoever possessed the
duffel bag containing Smith & Wesson revolvers along
with other items stolen from Pepin also had possessed
Pepin’s Glock, supported the petitioner’s third-party
culpability defense that the crimes had been perpe-
trated by Ricky Gomez, whose receipt from Bebe and
O’Neill was in the duffel bag, or by Ballinger. If the jury
believed the state’s theory, the firearm related evidence
would tend to inculpate the petitioner; however, if the
jury had believed Fitzpatrick’s defense, the evidence
would have tended to point a finger at one of the third
parties as the perpetrator. ‘‘There is a strong presump-
tion that counsel’s attention to certain issues to the
exclusion of others reflects trial tactics rather than
sheer neglect. . . . After an adverse verdict at trial
even the most experienced counsel may find it difficult
to resist asking whether a different strategy might have
been better, and, in the course of that reflection, to
magnify their own responsibility for an unfavorable out-
come. Strickland, however, calls for an inquiry into the
objective reasonableness of counsel’s performance, not
counsel’s subjective state of mind.’’ (Citation omitted;
internal quotation marks omitted.) Harrington v. Rich-
ter, 562 U.S. 86, 109–10, 131 S. Ct. 770, 178 L. Ed. 2d
624 (2011). Accordingly, we conclude that the habeas
court properly determined that Fitzpatrick’s representa-
tion was not deficient, under Strickland, with respect
to his decision not to file a motion in limine with respect
to the firearm and firearm related evidence in the duf-
fel bag.
B
The petitioner next claims that the court improperly
failed to conclude that Fitzpatrick rendered ineffective
assistance (1) for failing to present the testimony of an
eyewitness identification expert and (2) for failing to
consult an eyewitness identification expert to prepare
for witness examinations, closing argument and jury
instructions. We disagree.
At the habeas trial, the petitioner presented as an
expert witness, Deryn Strange, a cognitive psychologist
who specializes in memory and memory distortion.
Strange testified that there are three stages of memory:
encoding, storage, and retrieval. Strange explained the
factors that can impact memory negatively during each
of the three stages of memory. At the habeas trial, the
petitioner’s habeas counsel explained that ‘‘Fitzpatrick
could have consulted with an expert and could have
used that in requesting a jury instruction . . . and
could have used that in closing in focusing the jury on
the factors that would affect the witness’s memory;
particularly . . . Ellis, since his credibility was so focal
to the case.’’ The habeas court determined that
Strange’s testimony bore ‘‘little to no relevance to the
question of effective representation of the criminal trial
defense counsel.’’
The petitioner cannot prevail on his claim that Fitzpa-
trick performed deficiently by not presenting the testi-
mony of an eyewitness identification expert. The recent
case of Bennett v. Commissioner of Correction, 182
Conn. App. 541, 190 A.3d 877, cert. denied, 330 Conn.
910, 193 A.3d 50 (2018), is directly on point. In that
case, as in the present case, the controlling law at the
time of the underlying criminal trial, ‘‘on the issue was
State v. Kemp, 199 Conn. 473, 507 A.2d 1387 (1986),
overruled in part by State v. Guilbert, 306 Conn. 218,
49 A.3d 705 (2012), in which our Supreme Court
observed ‘that the reliability of eyewitness identifica-
tion is within the knowledge of jurors and expert testi-
mony generally would not assist them in determining
the question. . . . Such testimony is also disfavored
because . . . it invades the province of the jury to
determine what weight or effect it wishes to give to
eyewitness testimony.’ ’’ Id., 562. Although Kemp was
overruled in 2012, we consider Fitzpatrick’s perfor-
mance in light of the standards in effect at the time of
the petitioner’s criminal trial in 2004, and conclude that
the habeas court did not err in concluding that Fitzpa-
trick’s performance was not deficient. See id., 561.
‘‘Counsel . . . performs effectively when he elects to
maneuver within the existing law . . . .’’ (Internal quo-
tation marks omitted.) Id.
Moreover, Fitzpatrick testified at the habeas trial that
his theory of defense was not misidentification, but
rather was third-party culpability, and that Ellis had a
motive to lie and implicate the petitioner. He stated
that he did not consult an eyewitness identification
expert ‘‘because that was not the horse I chose to ride
in this case.’’ ‘‘[T]here is no requirement that counsel
call an expert when he has developed a different trial
strategy.’’ Stephen J.R. v. Commissioner of Correction,
178 Conn. App. 1, 13, 173 A.3d 984 (2017), cert. denied,
327 Conn. 995, 175 A.3d 1246 (2018). ‘‘[T]here is no per
se rule that requires a trial attorney to seek out an expert
witness. . . . Furthermore, trial counsel is entitled to
make strategic choices in preparation for trial.’’ (Inter-
nal quotation marks omitted.) Brian S. v. Commis-
sioner of Correction, 172 Conn. App. 535, 542, 160 A.3d
1110, cert. denied, 326 Conn. 904, 163 A.3d 1204 (2017).
The petitioner also claims that the court erred in
declining to conclude that Fitzpatrick performed defi-
ciently by failing to consult an eyewitness identification
expert in preparation for trial. We disagree. Fitzpatrick’s
decision not to pursue a misidentification defense and,
therefore, not to consult an eyewitness identification
expert does not amount to deficient performance.
‘‘[S]trategic choices made after thorough investigation
of law and facts relevant to plausible options are virtu-
ally unchallengeable . . . .’’ (Internal quotation marks
omitted.) Gaines v. Commissioner of Correction, 306
Conn. 664, 680, 51 A.3d 948 (2012). ‘‘[T]he failure of
defense counsel to call a potential defense witness does
not constitute ineffective assistance unless there is
some showing that the testimony would have been help-
ful in establishing the asserted defense.’’ (Internal quo-
tation marks omitted.) Kellman v. Commissioner of
Correction, 178 Conn. App. 63, 77–78, 174 A.3d 206
(2017). The petitioner has not shown how consultation
with a memory expert would have assisted Fitzpatrick
when he chose to pursue a third-party culpability
defense rather than a misidentification defense.
Furthermore, the petitioner has not demonstrated
that there is a reasonable probability that had Fitzpa-
trick consulted with an expert and introduced expert
testimony, the result would have been different. The
petitioner’s argument focuses on two of the state’s wit-
nesses, Ellis and Bickham. In his brief, the petitioner
describes Strange’s testimony as it relates to the
changes in Ellis and Bickham’s testimony over the
course of the three trials. The petitioner has not shown
how consultation with an eyewitness identification
expert would have impacted Fitzpatrick’s performance
at trial, or altered his cross-examination of Ellis and
Bickham. At the third criminal trial, Fitzpatrick thor-
oughly cross-examined Ellis on his intoxication, motive
to lie and inconsistencies in his testimony in the three
trials. Fitzpatrick also extensively cross-examined Bick-
ham on the inconsistencies in his testimony at the three
trials with respect to his description of the perpetrator.
In light of this, we agree with the habeas court that
Strange’s testimony establishes neither deficient perfor-
mance nor prejudice. ‘‘It is well established that a peti-
tioner in a habeas proceeding cannot rely on mere
conjecture or speculation to satisfy either the perfor-
mance or prejudice prong but must instead offer demon-
strable evidence in support of his claim.’’ (Internal
quotation marks omitted.) Lopez v. Commissioner of
Correction, 142 Conn. App. 53, 59, 64 A.3d 334 (2013).
Accordingly, the petitioner’s claim cannot prevail
under Strickland.
C
The petitioner next claims that Fitzpatrick provided
ineffective assistance by failing to object to the testi-
mony of a laboratory supervisor, Debra Messina, on the
ground that her testimony violated his right to confron-
tation under the federal constitution, as articulated in
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004), in the absence of testimony
from the criminalist, Fung Kwok, who had performed
the physical testing on the items submitted to the labo-
ratory. We are not persuaded.
Messina, the supervising criminalist at the state foren-
sic lab, testified as to the processes used in examining
Ballinger’s hands and football jersey for gunshot resi-
due. Kwok performed the tests on the submitted items.
Messina’s role, as Kwok’s supervisor, was to ensure
that he followed procedure. Messina reviewed Kwok’s
worksheets and results and signed the laboratory report
that Kwok generated. Kwok testified at the first trial
regarding his examination of the submitted items and
was subject to cross-examination by Fitzpatrick. Kwok
did not testify at the petitioner’s second or third trial.
Crawford v. Washington, supra, 541 U.S. 36, was
decided on March 8, 2004, and the petitioner’s third
trial was held in May and June of 2004. ‘‘In Crawford
v. Washington, [supra, 541 U.S. 36], the [United States]
Supreme Court substantially revised its approach to
confrontation clause claims. Under Crawford, testimo-
nial hearsay is admissible against a criminal defendant
at trial only if the defendant had a prior opportunity
[to cross-examine the witness who is otherwise]
unavailable to testify at trial. . . . In adopting this cate-
gorical approach, the court overturned existing prece-
dent that had applied an open-ended balancing [test]
. . . conditioning the admissibility of out-of-court
statements on a court’s determination of whether the
proffered statements bore adequate indicia of reliabil-
ity.’’ (Citations omitted; internal quotation marks omit-
ted.) State v. Buckland, 313 Conn. 205, 212, 96 A.3d
1163 (2014), cert. denied, U.S. , 135 S. Ct. 992,
190 L. Ed. 2d 837 (2015).
The United States Supreme Court, in Crawford,
‘‘declined to define the terms testimonial and nontesti-
monial . . . .’’ State v. Kirby, 280 Conn. 361, 380, 908
A.2d 506 (2006). Five years after the petitioner’s third
trial, the United States Supreme Court in Melendez–
Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527,
174 L. Ed. 2d 314 (2009), addressed the meaning of
‘‘testimonial’’ in the context of certificates of analysis
setting forth the results of forensic testing. The court
held that the certificates stating that the submitted sub-
stance was cocaine were ‘‘functionally identical to live,
in-court testimony, doing precisely what a witness does
on direct examination’’ and that the ‘‘affidavits were
testimonial statements, and the analysts were ‘wit-
nesses’ for the purposes of the Sixth Amendment.’’
(Internal quotation marks omitted.) Id., 310–11.
In 2018, this court determined in State v. Walker,
180 Conn. App. 291, 183 A.3d 1, cert. granted, 328 Conn.
934, 183 A.3d 634 (2018), that testimony of a forensic
science examiner regarding her comparison of two DNA
profiles, one of which was generated by another analyst,
did not violate the defendant’s right to confrontation
because ‘‘the primary analyst who performed and super-
vised the generation and analysis of the DNA profiles
and resulting findings, testified and was available for
cross-examination.’’ Id., 307. The Walker court rea-
soned, citing Melendez–Diaz v. Massachusetts, supra,
557 U.S. 305, that ‘‘it is not the case . . . that anyone
whose testimony may be relevant in establishing the
chain of custody, authenticity of the sample, or accu-
racy of the testing device, must appear in person as
part of the prosecution’s case. . . . Although [i]t is the
obligation of the prosecution to establish the chain of
custody . . . this does not mean that everyone who
laid hands on the evidence must be called. . . . [G]aps
in the chain [of custody] normally go to the weight of
the evidence rather than its admissibility.’’ (Citation
omitted; internal quotation marks omitted.) Id., 303.
Our Supreme Court granted certification in Walker on
this issue.2
Approximately two months prior to the petitioner’s
third trial, the Supreme Court released Crawford. At
that time, Fitzpatrick did not have the guidance from
Melendez-Diaz and its progeny on the definition of ‘‘tes-
timonial’’ or from State v. Walker. It is evident that the
issue was evolving at the time of the petitioner’s third
trial, and Fitzpatrick did not render ineffective assis-
tance for declining to advance a novel theory. ‘‘[W]hile
the failure to advance an established legal theory may
result in ineffective assistance of counsel under Strick-
land, the failure to advance a novel theory never will
. . . [and] [c]ounsel cannot be faulted for failing to
advance a novel legal theory which has never been
accepted by the pertinent courts . . . . Counsel
instead performs effectively when he elects to maneu-
ver within the existing law, declining to present
untested . . . legal theories. . . . [R]easonably effec-
tive representation cannot and does not include a
requirement to make arguments based on predictions
of how the law may develop . . . .’’ (Citations omitted;
internal quotation marks omitted.) Ledbetter v. Com-
missioner of Correction, 275 Conn. 451, 461–62, 880
A.2d 160 (2005), cert. denied sub nom. Ledbetter v.
Lantz, 546 U.S. 1187, 126 S. Ct. 1368, 164 L. Ed. 2d 77
(2006). The petitioner has failed to satisfy Strickland’s
performance prong, and therefore he cannot prevail on
this claim.
D
The petitioner last claims that Fitzpatrick rendered
ineffective assistance when he failed to prepare the
petitioner for the presentence investigation interview.
We disagree.
Fitzpatrick testified at the habeas trial that he was
present with the petitioner during the presentence inter-
view. He did not recall whether he had met with the
petitioner in preparation for the presentence interview.
The petitioner testified that he met with Fitzpatrick
prior to the presentence interview and that Fitzpatrick
told him to be honest in the interview. During the pre-
sentence interview, the petitioner admitted that he
began selling drugs in 1998, and that he had been sus-
pended from high school for possessing a gun. The
presentence investigation report indicates that Fitzpa-
trick advised the petitioner not to discuss pending
charges in that it notes that the petitioner declined to
comment on his version of the events ‘‘based on an
appeal that will take place in the future.’’ At sentencing,
the court stated that ‘‘it would appear, having reviewed
the evidence in this case and reviewing the presentence
investigation report, that this is an incident that arises
from a subculture of violence, a subculture of drug
dealing, a subculture of protection of turf, none of which
may be tolerated by society, none of which can be
tolerated by this court.’’ The petitioner’s total exposure
was over 100 years and the petitioner received a sen-
tence of forty-eight years imprisonment.
The petitioner has not satisfied the prejudice prong
of Strickland. Although the court referenced the pre-
sentence investigation report at sentencing, the court
gave no indication that the petitioner’s comments dur-
ing the presentence investigation interview regarding
selling drugs or possessing a gun had an impact on the
sentence imposed. The petitioner’s suggestion that the
sentencing court relied on those statements in sentenc-
ing him is speculative. Because the petitioner has not
demonstrated that his honest comments made during
his sentencing interview made a difference in the sen-
tence imposed, we conclude that the court properly
rejected the petitioner’s claims of ineffective assistance
of counsel. See Ruffin v. Commissioner of Correction,
106 Conn. App. 396, 400, 943 A.2d 1105, cert. denied,
286 Conn. 922, 949 A.2d 481 (2008).
Accordingly, we conclude that the petitioner has not
shown that the issues raised in his petition for a writ
of habeas corpus as resolved by the court are debatable
among jurists of reason, that a court could resolve the
issues in a different manner or that the questions raised
deserve encouragement to proceed further. Therefore,
the petitioner has failed to demonstrate that the court’s
denial of his petition for certification to appeal reflects
an abuse of discretion.
The appeal is dismissed.
In this opinion the other judges concurred.
1
We also note that had Fitzpatrick filed a motion in limine, it is highly
unlikely that the trial court would have granted the motion as to the Smith &
Wesson firearms and the items relating to Pepin’s Glock. It is likely that
the court would have determined that the Smith & Wesson firearms and
the items relating to the Glock that had been stolen from Pepin (1) were
highly probative of the identity of the individual who had had possessed
Pepin’s Glock and, by reasonable inference, had committed the crimes
charged and (2) were not evidence of prior misconduct because they directly
tend to prove guilt. ‘‘[T]he failure to pursue unmeritorious claims cannot
be considered conduct falling below the level of reasonably competent
representation.’’ Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990).
Although it may be less clear how the court might have ruled regarding the
items in the duffel bag that did not belong to Pepin, even if those items
were inadmissible, there is no proposition that counsel must always seek
to exclude objectionable evidence; rather our jurisprudence ‘‘mandates def-
erence to the tactics of trial counsel.’’ See Toccaline v. Commissioner of
Correction, supra, 80 Conn. App. 802.
2
The certified question is: ‘‘Did the Appellate Court properly determine
that the defendant’s sixth amendment right to confrontation was not violated
by testimony from a lab analyst regarding a known DNA profile generated
from a swab processed by another analyst who did not testify at trial?’’
State v. Walker, 328 Conn. 934, 183 A.3d 634 (2018).