Arthur v. Commissioner of Correction

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JOHNNIE ARTHUR v. COMMISSIONER
OF CORRECTION
(AC 37403)
Sheldon, Keller and Flynn, Js.
Argued October 13, 2015—officially released January 26, 2016
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Stephen Lebedevitch, with whom, on the brief, was
Stephanie M. O’Neil, for the appellant (petitioner).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Kevin D. Lawlor, state’s attor-
ney, and Erika L. Brookman, assistant state’s attorney,
for the appellee (respondent).
Opinion
KELLER, J. Upon a grant of certification to appeal,
the petitioner, Johnnie Arthur, appeals from the judg-
ment of the habeas court denying his amended petition
for a writ of habeas corpus. On appeal, the petitioner
claims that the habeas court’s decision should be
reversed because that court erred by not concluding
that the petitioner’s trial counsel, Attorney Lawrence
Hopkins, rendered ineffective assistance based upon
(1) the manner in which he addressed evidence related
to the cellular telephone (cell phone) records of the
petitioner’s girlfriend, which were offered into evidence
by the state and admitted at the petitioner’s criminal
trial,1 and (2) his failure to call as a trial witness a taxi
driver who was present at the scene of the crime. We
affirm the judgment of the habeas court.
The following procedural history and facts are rele-
vant to the present appeal. In 2009, the petitioner was
convicted, following a jury trial, of (1) attempt to com-
mit murder, (2) assault in the first degree, (3) criminal
possession of a firearm, and (4) carrying a pistol or
revolver without a permit. This court, in affirming the
petitioner’s conviction on direct appeal, State v. Arthur,
128 Conn. App. 371, 18 A.3d 610, cert. denied, 302 Conn.
910, 23 A.3d 1249 (2011), stated that the jury could have
reasonably found the following facts. ‘‘On the evening
of September 29, 2007, the victim, Andrew Garnett,
attended a party at the Sports Haven nightclub in New
Haven with friends, including Dionte Dixon. While
there, they met Nancy Sonemaneevong, Barbara ‘Shan-
ita’ Green and the [petitioner’s] girlfriend, Robin
DiBenedetto. Green informed Dixon that she had a
crush on his friend, Eugene Wright, and Dixon arranged
for her to meet Wright later that evening. When the
party ended, those individuals departed for Wright’s
apartment at 30 Glade Street in West Haven. Dixon
drove his own car, the victim rode in a second vehicle
with other friends, and DiBenedetto drove Sonemanee-
vong and Green in her red Pontiac Grand Am. At that
time, DiBenedetto was speaking with the [petitioner]
on her cellular telephone.
‘‘When the vehicles arrived at the parking lot at 30
Glade Street in the early morning hours of September
30, 2007, Green immediately entered Wright’s apart-
ment. At that time, the victim and Dixon entered the
Pontiac Grand Am and began flirting with DiBenedetto
and Sonemaneevong. When Sonemaneevong needed to
use a bathroom, Dixon escorted her into Wright’s apart-
ment. The victim remained in the vehicle with DiBened-
etto, who still was on the telephone with the
[petitioner].
‘‘A bystander in the parking lot, Jamie Henderson,
observed a man he knew as ‘Drew’ speaking to the
female driver of the red Pontiac vehicle. He then wit-
nessed a gray Ford Taurus enter the parking lot, from
which a male wearing a dark colored hoodie and hat
emerged looking ‘like he meant business.’ With a hand
in the hoodie, the man asked DiBenedetto to leave with
him, and she refused. The victim informed the man that
‘[s]he good. She with us.’ The man then fired multiple
gunshots at him from close range. As the victim crawled
on the ground, the Ford Taurus and the Pontiac Grand
Am fled the scene.
‘‘Officer Radames Gonce of the West Haven police
department, who at the time was responding to an unre-
lated call nearby, heard the gunshots emanate from the
Glade Street area. As Gonce drove toward Glade Street,
he saw several vehicles driving away at a high rate of
speed, including a gray Ford Taurus with a New York
license plate. When he arrived at the parking lot outside
Wright’s apartment, Gonce found the victim lying on
the ground. The victim subsequently was transported
by ambulance to Yale-New Haven Hospital, where he
was treated for life threatening injuries that included,
inter alia, a collapsed lung, three gunshot wounds to
the chest and one gunshot wound to his left thigh.
Following emergency surgery, the victim recuperated
in the hospital for seven days.
‘‘While investigating the scene of the shooting, Detec-
tive Anthony Simone of the West Haven police depart-
ment learned that the red Pontiac Grand Am had been
located and asked the operator to return to the Glade
Street parking lot. When the vehicle arrived, the opera-
tor was identified as DiBenedetto, who then was trans-
ported to police headquarters. Simone subsequently
interviewed Henderson, Sonemaneevong and Green,
from which he learned that DiBenedetto’s boyfriend
may have been involved in the shooting. He then inter-
viewed DiBenedetto, who was uncooperative and iden-
tified her boyfriend only as ‘Johnnie.’ Further
investigation revealed that DiBenedetto had been talk-
ing on her cellular telephone with the [petitioner] up
to the time of the incident and that she had two cellular
telephones registered in her name, both of which were
used during that conversation. Telephone records,
which were admitted into evidence at trial, established
that DiBenedetto’s initial conversation in the early
morning hours of September 30, 2007, lasted forty-one
minutes and three seconds, from 3:10 a.m. to 3:51 a.m.
Telephone records also established that although the
signal from DiBenedetto’s other telephone was routed
through a cell tower in New Haven at 3:10 a.m., it was
routed through a tower on Campbell Avenue in West
Haven from 3:51 a.m. to 3:56 a.m. The Campbell Avenue
tower is in the vicinity of Glade Street and was used
by both of DiBenedetto’s cellular telephones at that
time. Additional calls between DiBenedetto’s two tele-
phones were made at 3:52 a.m., 3:55 a.m. and 3:57 a.m.
The police received a 911 call reporting the shooting
at 3:57 a.m.
‘‘Simone’s investigation also revealed that DiBened-
etto lived at 719 Orchard Street in New Haven with the
[petitioner]. When police arrived at that property on
the day of the shooting, they found a silver Ford Taurus
with a New York license plate in the backyard. Gonce
arrived later and confirmed that the vehicle looked like
the one he observed fleeing the Glade Street area
moments after the shooting. The police seized the vehi-
cle, and a search revealed a cellular telephone and a
photograph of the [petitioner] with friends at what
appeared to be the party at the Sports Haven nightclub
hours earlier. The police also learned that DiBenedetto
had rented the vehicle from Enterprise Rental Car from
September 28, 2007, through October 1, 2007.
‘‘When Simone interviewed the [petitioner], he con-
firmed that he had attended the party at the Sports
Haven nightclub a day earlier. The [petitioner] stated
that he attended with friends and that he did not drive
there ‘because he doesn’t drive.’ The [petitioner] did
not provide any further information to police at that
time. Nonetheless, Brenda Ollison, DiBenedetto’s
upstairs neighbor at 719 Orchard Street, testified at
trial that she observed the [petitioner] driving the Ford
Taurus on the weekend in question.
‘‘As a result of their preliminary investigation, the
police obtained a description of the person who had
shot the victim. Simone detailed that description at trial
as follows: ‘Black male, approximately five foot nine,
at the time wearing dark pants with a design on the rear
pockets, a dark hooded sweatshirt with red drawstrings
and a red and white design on the front, and a black
fitted baseball style cap.’ DiBenedetto’s sister, Lori Ann
Johnson, testified that she had cared for DiBenedetto’s
son on the evening of September 29, 2007, so that
DiBenedetto could attend the party at the Sports Haven
nightclub. When Johnson went to DiBenedetto’s resi-
dence at 719 Orchard Street on October 1, 2007,
DiBenedetto and the [petitioner] were there. Johnson
observed the [petitioner’s] recently washed clothes on
a chair. She saw a black ‘zip-up,’ a black tee shirt and
dark jeans, which she stated the [petitioner] had worn
to the Sports Haven nightclub. When shown the outfit
worn by the [petitioner] in the photograph found in the
search of the Ford Taurus, Johnson identified it as the
same outfit she had seen drying on the chair at 719
Orchard Street. Johnson further testified that DiBened-
etto drove a ‘red Pontiac Grand Am GT’ at the time of
the shooting.
‘‘While recovering from surgery at the hospital, the
victim spoke with Detective Usha Carr of the West
Haven police department. Carr testified that the victim
stated that, on the night of the shooting, he was ‘hanging
out’ in the parking lot at 30 Glade Street with friends.
While the victim was chatting with a white female in a
red Pontiac Grand Am, ‘a black male drove up’ in a
silver Ford Taurus. The man repeatedly told the woman
with whom the victim had been speaking to leave with
him. The victim told the man that ‘[s]he good. She with
us.’ The victim’s next recollection was the smell of
gunpowder. During the interview, Carr showed the vic-
tim a photographic array, informing him that the
shooter ‘might or might not be’ in the array. The victim
selected the [petitioner’s] photograph as that of his
assailant. The victim refused to sign the photographic
array or to provide a recorded statement, however,
because he did not want to be labeled a ‘snitch.’ At
trial, the victim identified the [petitioner] in court as
the individual that he had selected from the photo-
graphic array.
‘‘The [petitioner] thereafter was arrested and charged
with criminal attempt to commit murder, assault in
the first degree, criminal possession of a firearm and
carrying a pistol or revolver without a permit. While
incarcerated at the MacDougall-Walker Correctional
Institution, the [petitioner] received a visit from
DiBenedetto and his mother, Judith Wright, on January
23, 2009. The visit transpired in a noncontact area,
which contains ‘a glass that separates [the inmate from
the visitors] with a booth and the visitors are on the
opposite side of them and they make contact through
two . . . phone headsets.’ On the date in question, Cor-
rection Officer Rudolfo Santana observed the [peti-
tioner] ‘looking over his shoulder, towards where I was
standing, kind of suspiciously, sort of nervous. So I
started observing him a little bit more closely. I noticed
that he was moving his right hand, like trying to hide
something, bringing it up, bringing it down, and every
time I looked towards him, he would bring it down. So
I approached him from the backside and I noticed he
had his right hand against the window with a piece of
paper and I asked him for it. He handed it to me with
no problem. I looked at the piece of paper. I saw it had
some information on it, so I stated to him to continue
with his visit, and I walked out of that particular area
there. He [stood] up, follow[ed] me, and asked me what
I was going to do with the paper and [told me] to throw
it away, and I gave him a direct order to go sit back
down and continue with his visit.’ Santana identified
the [petitioner] in court as that inmate. Santana further
testified that he brought the paper to a supervisor imme-
diately.
‘‘The paper was admitted as a full exhibit at trial, and
the clerk of court read its contents. The paper listed
two telephone numbers . . . and then stated: ‘(NAME)
Drew Tell him please don’t cooperate with the courts,
[a]nd to tell his friends not too. And if [I] would of
known what [I] know now it wouldn’t never happened,
[d]on’t never tell him your real name ok ma. Ask him
if he could help me, by not cooperating, cry too ma,
don’t talk to nobody but him ma, ok just him. I need
that nigga to not cooperate with them anymore. [I]f
that’s done, with the victim theirs no case.’ At trial, the
victim testified that, after the shooting, he learned that
the [petitioner] was his cousin.
‘‘At the conclusion of the state’s case in his criminal
trial, the [petitioner] moved for a judgment of acquittal
on all charges, arguing primarily that the state had not
proven beyond a reasonable doubt that the [petitioner]
had shot the victim. The court denied the motion, and
the jury thereafter found the [petitioner] guilty on all
counts. The court rendered judgment accordingly and
sentenced the [petitioner] to a total effective term of
twenty-five years incarceration.’’ (Footnotes omitted.)
Id., 373–79.
The petitioner filed a petition for a writ of habeas
corpus in January, 2012, and then filed an amended
petition on November 26, 2013. In the amended petition,
the petitioner claimed that he received ineffective assis-
tance of counsel during his criminal trial based upon
the following six failures of Attorney Hopkins: (1) his
failure to request, pursuant to State v. Porter, 241 Conn.
57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S.
1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), a hearing
(Porter hearing) with respect to the cell phone evi-
dence; (2) his failure to object to Detective Simone’s
opinion testimony that the aforementioned cell phone
records placed the petitioner on Glade Street during
the shooting; (3) his failure to properly cross-examine a
state’s witness, Susan Johnson,2 who offered testimony
pertaining to, inter alia, the process of determining the
approximate location of cell phone users based upon
cell site data and cell phone records; (4) his failure to
present his own expert witness at trial to rebut the
state’s cell phone evidence; (5) his failure to investigate
and call as a witness, Alfred Kidd, a taxi driver who
had been present at the scene of the shooting; and (6)
his failure to properly cross-examine two of the state’s
witnesses who were police officers who responded to
the scene of the shooting.3
The respondent, the Commissioner of Correction,
denied the substance of all of the petitioner’s claims in
a return filed on December 31, 2013. On May 13, 2014,
the court, Cobb, J., held an evidentiary hearing in the
habeas matter, during which the petitioner presented
exhibits and called the following witnesses: (1) Attor-
ney Hopkins; (2) Attorney Aaron J. Romano, an experi-
enced criminal defense attorney; (3) Kidd; (4) Joseph
Sierra, a custodian of records for T-Mobile; and (5)
Justin Darrow, a radio-frequency engineer with exper-
tise in cell phone data. Both parties also filed pretrial
briefs and the petitioner filed a posttrial brief. On Octo-
ber 27, 2014, the habeas court issued a memorandum
of decision wherein it denied the petitioner’s amended
petition. The petitioner thereafter sought certification
to appeal to this court, which the habeas court granted
on November 3, 2014. This appeal followed. Additional
facts will be set forth as necessary.
‘‘We begin our discussion by noting that the effective-
ness of an attorney’s representation of a criminal defen-
dant is a mixed determination of law and fact that . . .
requires plenary review . . . . The sixth amendment
to the United States constitution guarantees a criminal
defendant the assistance of counsel for his defense.
. . . 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 compo-
nents: a performance prong and a prejudice prong. To
satisfy the performance prong, a claimant must demon-
strate that counsel made errors so serious that counsel
was not functioning as the counsel guaranteed . . . by
the Sixth Amendment. . . . To satisfy the prejudice
prong, a claimant must demonstrate that there is a rea-
sonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different. . . . The claim will succeed only if both
prongs are satisfied.’’ (Citations omitted; internal quota-
tion marks omitted.) Ledbetter v. Commissioner of Cor-
rection, 275 Conn. 451, 458, 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); see also Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984) (discussing performance and preju-
dice prongs necessary to establish ineffective assis-
tance claim).
I
We first address the petitioner’s claims that the
habeas court improperly denied his habeas petition by
not concluding that Attorney Hopkins rendered ineffec-
tive assistance in various ways related to the manner
in which he addressed the cell phone evidence admitted
at trial. On appeal, the petitioner claims that he received
ineffective assistance of counsel because of the follow-
ing: (1) Attorney Hopkins failed to ‘‘research and inves-
tigate’’ the limitations of the cell phone records, which
impaired his ability to properly defend the petitioner;
(2) Attorney Hopkins failed to request a Porter hearing
to challenge the state’s argument that the cell phone
records provided data that could be used to determine
the movements of the petitioner on the night of the
shooting; (3) Attorney Hopkins failed to consult with
and to present a cell phone expert to testify regarding
the limitations of the cell phone records, which
impaired his ability to properly defend the petitioner;
and (4) Attorney Hopkins opted not to challenge, in any
manner, the cell phone evidence that the state offered,
which generally revealed counsel’s unreasonable and
inadequate investigation.4
In contesting the petitioner’s ineffective assistance
claim as it relates to the cell phone evidence, the respon-
dent argues the following: (1) that the petitioner’s claim
that Attorney Hopkins inadequately investigated the
limitations of cell phone records should not be
addressed by this court on appeal because it was never
raised in his operative habeas petition and that ground
of ineffectiveness was not considered by the habeas
court; (2) that the petitioner failed to establish ineffec-
tive assistance based upon Attorney Hopkins’ failure
to request a Porter hearing on the cell phone evidence
or to present his own expert on the cell phone evidence;
and (3) that the petitioner failed to establish ineffective
assistance based upon Attorney Hopkins’ failure to
properly cross-examine Susan Johnson or Detective
Simone. Alternatively, the respondent claims that even
if this court concludes that Attorney Hopkins rendered
ineffective assistance in relation to the cell phone evi-
dence under Strickland’s performance prong, the
habeas court’s decision should be affirmed because the
petitioner cannot satisfy Strickland’s prejudice prong
with respect to Attorney Hopkins’ handling of the cell
phone evidence. We agree with the respondent.
A
We decline to review the petitioner’s claim that he
received ineffective assistance of counsel based upon
Attorney Hopkins’ failure to research and investigate
the limitations of the cell phone evidence. ‘‘[A] habeas
petitioner is limited to the allegations in his petition,
which are intended to put the [respondent] on notice
of the claims made, to limit the issues to be decided,
and to prevent surprise.’’ (Internal quotation marks
omitted.) Moye v. Commissioner of Correction, 316
Conn. 779, 789, 114 A.3d 925 (2015). An appellate court
will decline to review a habeas petitioner’s claim where
the petitioner raises it for the first time in appealing
from the habeas court’s decision, where the habeas
court did not address the claim in its decision, and
where the petitioner neither raised such claim in his
operative habeas petition nor sought an articulation of
the habeas court’s decision with respect to such claim.
See Harris v. Commissioner of Correction, 271 Conn.
808, 843–44, 860 A.2d 715 (2004); Bertotti v. Commis-
sioner of Correction, 136 Conn. App. 398, 404, 44 A.3d
892, cert. denied, 307 Conn. 901, 53 A.3d 217 (2012);
Velasco v. Commissioner of Correction, 119 Conn. App.
164, 166 n.2, 987 A.2d 1031, cert. denied, 297 Conn. 901,
994 A.2d 1289 (2010); Copeland v. Warden, 26 Conn.
App. 10, 13–14, 596 A.2d 477 (1991), aff’d, 225 Conn.
46, 621 A.2d 1311 (1993).
In his amended petition for a writ of habeas corpus,
the petitioner did not specifically claim that Attorney
Hopkins rendered ineffective assistance based upon his
failure to investigate the limitations of the cell phone
evidence. To the contrary, as his petition relates to the
cell phone evidence, the petitioner merely claimed that
he had received ineffective assistance because Attorney
Hopkins (1) failed to request a Porter hearing with
respect to the cell phone evidence, (2) failed to object
to testimony pertaining to the cell phone evidence, (3)
failed to properly cross-examine a state’s witness per-
taining to the cell phone evidence, and (4) failed to call
an expert witness on cell phone evidence. Moreover,
in the memorandum of decision denying the habeas
petition, the habeas court did not address any claims
pertaining to Attorney Hopkins’ alleged failure to inves-
tigate the limitations of the cell phone evidence. Rather,
consistent with the petition, the court addressed the
claim as involving failures to request a Porter hearing
on the cell phone evidence, to cross-examine certain
witnesses adequately concerning this evidence, and to
object to portions of these witnesses’ testimony. Thus,
we conclude that the petitioner’s claim that he received
ineffective assistance based upon Attorney Hopkins’
failure to investigate the limitations of the cell phone
evidence is not properly before this court and we
decline to address its merits.
B
We now address the petitioner’s claim that he
received ineffective assistance of counsel because
Attorney Hopkins failed to request a Porter hearing
regarding the cell phone evidence offered by the state
to show the petitioner’s movements on the night of the
shooting. We conclude that the habeas court properly
determined that the petitioner failed to prove prejudice
as a result of Attorney Hopkins’ failure to request a
Porter hearing. The following additional facts are rele-
vant to our review of the petitioner’s claim.
In its effort to establish the movements of the peti-
tioner during the early morning hours of September 30,
2007, the state offered at trial exhibits and testimony
pertaining to the cell phone evidence. Investigation
revealed that DiBenedetto had been talking on her cell
phone with the petitioner up to the time of the incident
and subsequent to it, and that she had two cell phones
registered in her name, both of which were used during
that conversation. The state subpoenaed and offered
as exhibits the T-Mobile call detail records for the calls
placed between DiBenedetto’s two cell phones prior
to, at and subsequent to the time of the shooting. These
records indicated when calls were made and which cell
towers were used to transmit the calls. During its direct
examination of Detective Simone about these cell
phone records, the state elicited his testimony that the
records showed that both of DiBenedetto’s cell phones
were on Glade Street at about the time of the shooting.
In conjunction with its offer of the cell phone records
at trial, the state, on the day after its presentation of
Detective Simone’s testimony, presented testimony
from a T-Mobile custodian of records, Susan Johnson.
During her direct examination, she read from the
records and testified that during the early morning
hours of September 30, 2007, the records for DiBened-
etto’s cell phones indicated that a call was made from
one of those cell phones to the other of those cell
phones at 3:10 a.m. and that this call lasted until 3:51
a.m. Furthermore, Susan Johnson testified that the cell
phone placing the call at 3:10 a.m. initially transmitted
its signal through a cell tower located at 159 Middletown
Avenue in New Haven, which is near the Sports Haven
nightclub. She also testified that this same phone, at
3:57 a.m., transmitted its signal through another cell
tower located at 950 Campbell Avenue in West Haven,
which is near the location at which the shooting
occurred. During his examination of Susan Johnson,
Attorney Hopkins elicited her testimony that the
records showed that the same cell phone later placed
a call at 4:19 a.m. and that it transmitted its signal
through the cell tower located at 159 Middletown Ave-
nue in New Haven at that time.5 After Attorney Hopkins’
examination of Susan Johnson and his initial objection
to the state’s offer of the cell phone records on rele-
vance grounds, the records ultimately were admitted
as a full exhibit. At no time did Attorney Hopkins
request the trial court to conduct a Porter hearing.
‘‘In State v. Porter, supra, 241 Conn. 57, our Supreme
Court adopted the test for determining the admissibility
of scientific evidence set forth in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993). In so doing, our Supreme
Court noted two threshold requirements to the admissi-
bility of scientific evidence. First, that the subject of
the testimony must be scientifically valid, meaning that
it is scientific knowledge rooted in the methods and
procedures of science . . . and is more than subjective
belief or unsupported speculation. . . . This require-
ment establishes a standard of evidentiary reliability
. . . as, [i]n a case involving scientific evidence, eviden-
tiary reliability will be based upon scientific validity.
. . . Second, the scientific evidence must fit the case
in which it is presented. . . . In other words, proposed
scientific testimony must be demonstrably relevant to
the facts of the particular case in which it is offered, and
not simply be valid in the abstract.’’ (Internal quotation
marks omitted.) Scandariato v. Borrelli, 153 Conn. App.
819, 826, 105 A.3d 247 (2014). ‘‘In Porter we recognized
that Daubert’s vagueness as to how and when to apply
the factors of the [Daubert] test was necessary. . . .
In order to maintain flexibility in applying the test, we
did not define what constitutes scientific evidence. . . .
Consequently, our initial inquiry is whether the [evi-
dence] at issue . . . is the type of evidence contem-
plated by Porter.’’ (Citations omitted; internal quotation
marks omitted.) State v. Griffin, 273 Conn. 266, 276,
869 A.2d 640 (2005). The hearing in which this judicial
assessment occurs is referred to as a Porter hearing.
In the present case, we conclude that the habeas
court properly determined that the petitioner failed to
prove prejudice and ineffective assistance of counsel
from Attorney Hopkins’ failure to request a Porter hear-
ing regarding the cell phone evidence. The petitioner
argues in his brief that the state’s use of the cell phone
evidence as evidence of his movements prior to, at the
time of, and after the shooting was improper and should
have been challenged using a Porter hearing. The peti-
tioner also contends that if Attorney Hopkins had
requested, and if the trial court had held, a Porter hear-
ing to examine the reliability of the cell phone evidence,
its admissibility would have been limited by disallowing
its use for the purpose of showing to the jury that
the petitioner was on Glade Street when the shooting
occurred. We fail to see how Attorney Hopkins’ failure
to request a Porter hearing prejudiced the petitioner
at trial.
First, we observe that the petitioner failed to present
evidence that the outcome of a request for a Porter
hearing would have been favorable to the defense. Dur-
ing the petitioner’s habeas proceedings, he presented
the testimony of Attorney Romano, an attorney with
experience in criminal defense matters. Attorney
Romano testified that he routinely files motions for
Porter hearings when prosecutors offer cell phone evi-
dence of this nature but that none of his motions has
been granted. Attorney Hopkins also testified that, in his
experience, cell phone records of this type are generally
admitted into evidence. The petitioner also presented
the testimony of a T-Mobile custodian of records and
a radio-frequency engineer at his habeas proceedings
in order to refute the state’s cell phone evidence. The
habeas court found that this testimony failed to estab-
lish that the trial court would have granted the peti-
tioner a Porter hearing on the cell phone evidence had
Attorney Hopkins moved for one. The testimony pre-
sented by the petitioner’s witnesses at his habeas pro-
ceedings did not help to demonstrate that the cell phone
evidence would be novel scientific evidence so as to
require a Porter hearing prior to its admission. Thus,
we conclude that the petitioner has failed to show that
he was prejudiced by Attorney Hopkins’ failure to
request a Porter hearing because he failed to prove to
the habeas court that such a request would have any
merit or would have changed the outcome of his trial.6
See Harvey v. Commissioner of Correction, 98 Conn.
App. 717, 725, 912 A.2d 497 (2006) (concluding that for
habeas petitioner to show trial counsel was ineffective
due to counsel’s failure to file motion to suppress, peti-
tioner must demonstrate that underlying motion is meri-
torious and that outcome of trial would have been
different had motion been granted), cert. denied, 281
Conn. 914, 916 A.2d 55 (2007).
Second, we conclude on the basis of our review of
the evidence that the petitioner cannot demonstrate
prejudice because the cell phone evidence was not sig-
nificant to the state’s case. See Strouse v. Leonardo,
928 F.2d 548, 556 (2d Cir. 1991) (holding no prejudice
when habeas petitioner’s ineffective assistance appeal
arose from trial where overwhelming evidence of guilt
had been admitted aside from alleged deficiencies of
counsel); Stepney v. Commissioner of Correction, 129
Conn. App. 364, 367–68, 19 A.3d 1262 (2011) (holding
habeas petitioner’s counsel was not ineffective where
alleged shortcomings were deemed strategic decisions
and were made in face of overwhelming evidence of
petitioner’s guilt), cert. denied, 315 Conn. 907, 105 A.3d
236 (2014). Specifically, we agree with the habeas
court’s finding that there was other probative evidence
linking the petitioner to the shooting, namely, (1) the
victim’s identification of the petitioner as the shooter
in a photographic array only days after the shooting
had occurred and his subsequent confirmation of that
identification at trial, and (2) the petitioner’s letter from
prison wherein he essentially admitted that he had com-
mitted the crime. State v. Arthur, supra, 128 Conn.
App. 373–78.7
C
Next, we address the petitioner’s claim that he
received ineffective assistance of counsel because
Attorney Hopkins chose not to challenge the cell phone
evidence. Specifically, the petitioner claims that Attor-
ney Hopkins rendered ineffective assistance by not
objecting—other than on relevance grounds—to the
cell phone evidence or to the testimony of Susan John-
son or Detective Simone about such evidence, and by
not adequately cross-examining these witnesses on this
same evidence.8 The following additional facts are rele-
vant to our resolution of this claim. On the day before
the state offered Susan Johnson’s testimony on the cell
phone evidence at trial to show that both of DiBened-
etto’s cell phones were being used at or about the time
at which the shooting occurred, and that they were
both using cell towers in West Haven and New Haven
during that time period, the state elicited testimony
from Detective Simone. Detective Simone testified that
ex parte search warrants were executed on T-Mobile
for DiBenedetto’s cell phone records and that ‘‘[t]he
goal in obtaining those records was to get the call detail
and call times, as well as cell site locations, which would
identify the area [in] which the calls were placed.’’9 The
state’s direct examination of Detective Simone as it
related to the cell phone records then proceeded as
follows:
‘‘[The Prosecutor]: And what are you able to tell, with
regard to cell site location?
‘‘[Detective Simone]: We are given a longitude-lati-
tude and you were able to pinpoint where the exact
cell tower in any given location was located. . . .
‘‘[The Prosecutor]: Okay. And based upon your inves-
tigation, what were you able to determine?
‘‘[Detective Simone]: We were able to determine that
the forty-two minute phone call that was made by Ms.
DiBenedetto to [the petitioner] was—had originated
and terminated, which started and ended, at hitting a
cell site on West Spring Street, which is about two
blocks away from the Glade Street location. That is the
closest cell tower to Glade Street. . . .
‘‘[The Prosecutor]: And what, with regard to that
forty-two minute conversation, what were you able to
conclude, by reviewing the records?
‘‘[Detective Simone]: We were able to conclude that
the call was placed from Ms. DiBenedetto’s phone to
the phone being held by [the petitioner]. We were able
to tell that [the petitioner] was in New Haven at the
time the phone call was placed from Robin and the
terminating cell site, which is the ending cell site, for
that call for the other phone, for [the petitioner’s] phone,
was also in New Haven.
‘‘[The Prosecutor]: Okay. And at any point in time,
did the—during that time period, did [the petitioner’s]
phone hit off of the West Spring Street tower?
‘‘[Detective Simone]: Yes. At the completion of that
forty-two minute phone call there were, I believe, four
additional calls, not as long in duration. During those
four calls, both phones were in the location of the West
Spring Street cell site.
‘‘[The Prosecutor]: And do you recall what time those
phone calls were made? . . .
‘‘[Detective Simone]: There was a phone call at 3:52
a.m., at 3:55 a.m., and at 3:57 a.m.
‘‘[The Prosecutor]: And which tower—which cell site
did those three calls hit off of?
‘‘[Detective Simone]: The West Spring Street cell
tower.
‘‘[The Prosecutor]: And which cell phone was that
attributed to?
‘‘[Detective Simone]: To the—both cell phones were
on that same—the calls were made from one cell phone
to the other, and they were both on that same tower.
‘‘[The Prosecutor]: Okay. Was there anything else that
you were able to determine by looking at the cell
phone records?
‘‘[Detective Simone]: We were able to determine that
based on the 911—first 911 call coming in at 3:57 a.m.,
following the shooting, the cell records indicate that at
3:58 an additional call was placed, also off the same
cell tower, followed up by additional calls, and the calls,
at that time, started to go away from the West Haven
area and started hitting New Haven towers.
‘‘[The Prosecutor]: Okay. Which you would take to
mean what?
‘‘[Detective Simone]: I would take that to mean that
both phones were on Glade Street prior to the shooting
and at the end of the shooting; at the completion of the
shooting both phones moved away from Glade Street
and returned to New Haven.’’
Attorney Hopkins briefly cross-examined Detective
Simone but did not cross-examine him or object to his
testimony pertaining to his interpretation of the records’
ability to show the petitioner’s location on Glade Street.
We reiterate that Susan Johnson, the T-Mobile custo-
dian of records, testified on the day after Detective
Simone testified at trial. She testified about the cell
phone records of DiBenedetto’s two cell phones, which
were recorded during the early morning hours of Sep-
tember 30, 2007. In essence, Susan Johnson testified
that the records indicated that one of DiBenedetto’s
cell phones made several calls to the other during the
time period spanning from 3:10 a.m. to 4:19 a.m. Further-
more, Susan Johnson testified that these calls initially
were transmitted through a cell tower in New Haven
near the Sports Haven nightclub, were transmitted later
through a cell tower in West Haven near Glade Street
at a time immediately prior to the time at which the
shooting occurred, and finally were transmitted through
a cell tower near DiBenedetto’s residence in New Haven
at a time shortly after the time at which the shooting
occurred. Attorney Hopkins only briefly questioned
Susan Johnson.
Although Detective Simone incorrectly testified that
the cell phone records proved that both of DiBened-
etto’s cell phones were on Glade Street prior to and
after the time of the shooting, we conclude that the
habeas court properly determined that the petitioner
failed to establish prejudice as a result of Attorney
Hopkins’ cross-examination of Detective Simone and
Susan Johnson. With respect to Detective Simone, the
habeas court found that ‘‘the petitioner ha[d] not dem-
onstrated that he was prejudiced by Attorney Hopkins’
failure to object to [Detective Simone’s] testimony . . .
because the evidence linking the petitioner to the crime
was substantial.’’ With respect to Susan Johnson, the
habeas court noted that a trial attorney’s manner of
questioning a witness is a tactical decision that typically
is not second-guessed by a reviewing court. See Velasco
v. Commissioner of Correction, supra, 119 Conn.
App. 172.
The habeas court found credible Attorney Hopkins’
testimony that he did not challenge the ability of the
cell phone evidence to show the movements of the
petitioner because there was additional evidence,
including eyewitness accounts, placing the petitioner
at the scene of the shooting. Furthermore, the habeas
court found credible Attorney Hopkins’ testimony that
he deemed the cell phone evidence to be a ‘‘double-
edged sword’’ because although the evidence placed
the petitioner near the scene of the shooting, it also
established that he was on the cell phone when the
shooting occurred, which, in his opinion, made it less
likely that the petitioner committed the shooting.
In addition to the testimony that the habeas court
noted in the memorandum of decision, Attorney Hop-
kins testified at the habeas trial that he did not see how
much evidentiary weight the cell phone evidence added
to the state’s case against the petitioner because it gen-
erally corroborated undisputed facts. Furthermore,
Attorney Hopkins testified that there was more reliable
evidence showing that the calls between DiBenedetto’s
two cell phones had occurred at about the time of the
shooting and that one easily could have concluded that
the petitioner was using one of those phones at the
time of the shooting based upon such evidence. Finally,
Attorney Hopkins testified that he was more concerned
about other, more incriminating evidence offered by
the state that tended to prove that the petitioner had
committed the shooting, namely, eyewitness accounts
placing him at the scene of the shooting and his letter
from prison wherein he essentially had admitted that
he committed the crime.
Based upon our review of the record, we agree with
the habeas court’s determination that there was other
probative evidence linking the petitioner to the shoot-
ing. See part I B of this opinion. In light of this and
other admitted evidence aside from the cell phone evi-
dence, as well as the testimony pertaining to the cell
phone evidence from the petitioner’s habeas proceed-
ings, we readily conclude that it is not reasonably proba-
ble that any additional or tactically different cross-
examination of Detective Simone or Susan Johnson
regarding the cell phone evidence would have changed
the result of the petitioner’s criminal trial.
D
We now address the petitioner’s claim that he
received ineffective assistance of counsel because of
Attorney Hopkins’ failure to call his own expert witness
who could testify as to a contrary interpretation of the
cell phone evidence than that presented by the state.
‘‘[T]here is no per se rule that requires a trial attorney to
seek out an expert witness.’’ (Internal quotation marks
omitted.) Antonio A. v. Commissioner of Correction,
148 Conn. App. 825, 833, 87 A.3d 600, cert. denied, 312
Conn. 901, 91 A.3d 907 (2014); Thompson v. Commis-
sioner of Correction, 131 Conn. App. 671, 696, 27 A.3d
86, cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011).
‘‘[T]he failure of defense counsel to call a potential
defense witness does not constitute ineffective assis-
tance unless there is some showing that the testimony
would have been helpful in establishing the asserted
defense.’’ (Internal quotation marks omitted.) Harris
v. Commissioner of Correction, 134 Conn. App. 44,
57, 37 A.3d 802, cert. denied, 304 Conn. 919, 41 A.3d
306 (2012).
At the habeas trial, the petitioner presented a radio-
frequency engineer, Darrow, as a witness with expertise
in cell phone data. In essence, Darrow testified that
based upon his review of the cell phone evidence and
the trial record, the cell site data relied upon by the
state could not pinpoint that the cell phone that the
petitioner was using was on a particular street at the
time surrounding the shooting. Darrow, however, did
testify that the cell site data showed that the phone
that the petitioner was using was within 1.7 miles of the
cell tower nearest to Glade Street. Thus, the petitioner’s
own witness interpreted the cell phone evidence in a
manner consistent with what Susan Johnson indicated
the cell phone records revealed at trial. Even if Attorney
Hopkins had called an expert witness during the peti-
tioner’s criminal trial, the jury would have heard that
although the cell phone records did not pinpoint the
petitioner’s exact location, they nevertheless showed
that he was using a cell phone in an area that included
the scene of the crime when it occurred. Accordingly,
we agree with the habeas court that the thrust of Dar-
row’s testimony shows that if Attorney Hopkins had
called an expert witness to testify about the cell phone
evidence at the petitioner’s criminal trial, there is not
a reasonable probability that the outcome of the peti-
tioner’s criminal trial would have been different. Fur-
thermore, the overwhelming evidence of the
petitioner’s guilt aside from the cell phone evidence
would not have been affected by expert testimony. We
conclude that the habeas court did not err in its determi-
nation that the petitioner failed to establish prejudice
as a result of Attorney Hopkins’ decision not to call an
expert witness regarding the cell phone evidence.
II
Finally, we address the petitioner’s claim that the
habeas court erred by not concluding that he received
ineffective assistance of counsel because of Attorney
Hopkins’ failure to call as a trial witness Kidd, a taxi
driver who had been present at the scene of the shooting
and who subsequently gave a statement to the police.
The petitioner claims that he received ineffective assis-
tance because Attorney Hopkins’ decision not to call
Kidd as a witness was not a reasonable strategy, espe-
cially in light of the fact that Kidd was a disinterested
witness who gave a statement to the police that contra-
dicted other evidence linking the petitioner to the
shooting.
At the habeas trial, the petitioner presented Kidd’s
statement to the police as an exhibit and Kidd testified
himself. The substance of Kidd’s statement to the police
was that at about the time of the shooting, he went to
pick up a fare at 31 Glade Street and that when he
stopped to wait, he heard five or six gunshots and then
immediately saw people fleeing. Contrary to the testi-
mony of any of the other witnesses, Kidd stated that
he then heard four or five additional gunshots from a
gun wielded by a black man as he ‘‘was running down
the side of the building after the people that ran.’’ Kidd
stated that the man that he allegedly saw had braided
hair, was not wearing a hat, and was wearing a black
sweatsuit and a black jacket with white panels on the
sides. Kidd also stated that he thought the second suc-
cession of gunshots sounded like they emanated from
a gun of a different caliber than that of the first gun.
During his own testimony at the habeas trial, Kidd
testified that immediately before the shooting occurred,
a man pulled up in a car, exited, and started shooting
into a crowd in the Glade Street parking lot. Kidd further
testified that he ducked down and that the whole shoot-
ing was over in less than one minute. Kidd also testified
that he remembered hearing ‘‘two distinct shots,’’ that
he did not recall seeing more than one shooter, and
that he could only see the shooter’s back.
Attorney Hopkins testified during the habeas trial
that he chose not to call Kidd as a defense witness
primarily because he thought Kidd’s statement to the
police was unreliable. Attorney Hopkins testified that
he believed Kidd to be an unreliable witness particularly
because his version of events did not comport with
those of the other eyewitnesses. Specifically, Hopkins
noted that Kidd was the only eyewitness who believed
that there may have been two shooters, or at least that
two different guns were used, and who described the
shooter as having dreadlocks or braided hair. Further-
more, Hopkins testified that he ‘‘just thought what
[Kidd] was able to add to the entire scenario was a
nullity, essentially.’’
Although the petitioner alleges that Kidd was the only
disinterested witness to the shooting—and thus would
have been particularly persuasive to the jury—the
record reveals that Henderson, an innocent bystander,
also testified to witnessing the shooting. At the petition-
er’s criminal trial, Henderson testified that he only knew
the victim because he was living in the same neighbor-
hood in which he was living at the time of the shooting.
Henderson further testified that he was in the Glade
Street parking lot when the shooting occurred and that
he observed a man wearing a dark-colored hooded
sweatshirt and hat emerge from a gray Ford Taurus
and commit the shooting.
‘‘[T]he failure of defense counsel to call a potential
defense witness does not constitute ineffective assis-
tance unless there is some showing that the testimony
would have been helpful in establishing the asserted
defense.’’ (Internal quotation marks omitted.) Harris
v. Commissioner of Correction, supra, 134 Conn. App.
57. Our review of Kidd’s testimony at the habeas trial
and his statement to the police leads us to agree with
the habeas court’s conclusion that Attorney Hopkins
did not render ineffective assistance by failing to call
him as a witness at trial. In the memorandum of decision
denying the petitioner’s petition, the habeas court found
that ‘‘the petitioner [had] not overcome the strong pre-
sumption that Attorney Hopkins’ decision to not call
Kidd as a witness constituted reasonable trial strategy.’’
In this regard, the court credited as true Attorney Hop-
kins’ testimony that he did not find Kidd reliable and
afforded deference to his strategic decision.
We conclude that the petitioner is unable to show
that these findings are clearly erroneous. We also agree
with the habeas court’s conclusion that the petitioner
failed to prove prejudice under Strickland as a result
of Attorney Hopkins’ failure to call Kidd as a witness.
During the habeas trial, Kidd testified in a manner that
was not at all inconsistent with the testimony of the
other eyewitnesses. Specifically, he testified that he did
not ‘‘recall seeing more than one shooter.’’ Although
Kidd indicated in his statement to the police that he
could not say whether there was only one shooter, his
testimony at the habeas trial sheds light on the weak-
ness of his testimony in the petitioner’s defense. Even
if Kidd had testified that he witnessed more than one
shooter, such testimony would still not have exonerated
the petitioner. In light of the questionable reliability of
Kidd’s testimony and his statement to the police, as well
as the aforementioned abundance of other evidence
linking the petitioner to the shooting, we readily con-
clude that the habeas court did not commit error in
denying the petitioner’s habeas petition based upon its
conclusion that he did not receive ineffective assistance
of counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
1
For the remainder of this opinion, we shall refer to this evidence as the
‘‘cell phone evidence.’’ Specifically, this evidence consisted of cell phone
records and accompanying testimonial evidence that the state offered to
place the petitioner at or near the scene of the crime.
2
Susan Johnson was a representative of the cell phone service provider,
T-Mobile. She was subpoenaed to present the cell phone records that were
admitted as evidence. She also testified about those records at the petition-
er’s criminal trial.
3
At the conclusion of the petitioner’s habeas proceedings, the petitioner
withdrew this sixth ground, and it was not addressed by the habeas court
in its memorandum of decision.
4
The petitioner also claims on appeal that there is a reasonable probability
that the jury would have acquitted him if it had heard evidence about the
limitations of the cell phone evidence. Although the petitioner labels this
claim as separate from his other claims that Attorney Hopkins rendered
ineffective assistance in his treatment of the cell phone evidence, we deem
the claim as being integral to our consideration of these other claims because
it addresses the issue of prejudice, if any, resulting from Attorney Hopkins’
treatment of the cell phone evidence.
5
Other testimony established that the gray Ford Taurus that the shooter
was suspected of driving as he fled the scene was headed to this general
area of New Haven.
6
We note that numerous courts across the country have concluded that
such evidence is sufficiently well established that a -hearing concerning its
scientific reliability is unnecessary, provided that it is relevant to the case
at hand. See, e.g., United States v. Jones, 918 F. Supp. 2d 1, 7 (D.D.C. 2013)
(concluding that Daubert hearing was unnecessary for cell phone records
admitted to locate phone at time calls were placed and noting that the ‘‘use
of cell phone records to locate a phone has been widely accepted in both
federal and state courts across the country’’); see also Jackson v. Allstate
Ins. Co., 785 F.3d 1193, 1204 n.5 (8th Cir. 2015) (rejecting argument that
cell site analysis data is inherently unreliable as evidence); United States
v. Schaffer, 439 Fed. Appx. 344, 347 (5th Cir. 2011) (concluding that expert’s
testimony on historical cell site location data was neither ‘‘untested nor
unestablished’’ and holding that trial court did not abuse discretion in permit-
ting FBI agent to testify as expert in field); Stevenson v. State, 222 Md. App.
118, 133, 112 A.3d 959 (2015) (concluding that cell phone location evidence
was not novel scientific evidence requiring hearing similar to Porter hearing
under Maryland law); Wilder v. State, 191 Md. App. 319, 367, 991 A.2d 172
(‘‘[w]e recognize that cellular telephone technology has become generally
understood’’), cert. denied, 415 Md. 43, 997 A.2d 792 (2010); State v. White,
37 N.E.3d 1271, 1280–81 (Ohio App. 2015) (holding that cell site analysis
from FBI special agent was reliable evidence).
7
In addition to the incriminating evidence noted in the memorandum of
decision, the habeas court adopted the facts as set forth by this court in
the petitioner’s direct appeal, which also included incriminating evidence
against the petitioner. Specifically, these recited facts included Officer
Gonce’s testimony that he saw a gray Ford Taurus with New York license
plates fleeing Glade Street at a high rate of speed immediately after the
shooting. State v. Arthur, supra, 128 Conn. App. 374. Further, these facts
included Detective Simone’s testimony that when he searched a gray Ford
Taurus with New York license plates, which was found in DiBenedetto’s
driveway on September 30, 2007, he found and seized photographs of the
petitioner with friends at a nightclub resembling Sports Haven, in which
the petitioner was wearing clothing resembling the clothing worn by the
shooter. These photographs also appeared to have been taken the night
before. Id., 375–76. Detective Simone also testified that when he interviewed
the petitioner, he confirmed that he had been at the Sports Haven nightclub
on the night of September 29, 2007. Id., 376. Detective Simone further testified
that during this same interview, the petitioner stated that he did not drive,
despite the fact that DiBenedetto’s neighbor, Brenda Ollison, later testified
at the petitioner’s criminal trial that she had witnessed the petitioner driving
a gray Ford Taurus from DiBenedetto’s residence on the weekend of the
shooting. Id. Finally, the facts that the habeas court adopted included testi-
mony from DiBenedetto’s sister, Lori Ann Johnson, that when she went to
DiBenedetto’s residence on October 1, 2007, she observed the petitioner’s
recently washed clothes on a chair, which resembled the clothes that the
petitioner had been wearing at the Sports Haven nightclub in the photograph
found in the gray Ford Taurus and which resembled the clothing that eyewit-
nesses observed the shooter to be wearing. Id.
8
Although the petitioner, in his amended petition, did not specifically
claim that Attorney Hopkins rendered ineffective assistance with respect
to his cross-examination, or lack thereof, of Detective Simone, we interpret
the habeas court’s decision to have addressed the substance of this issue
in its discussion of the petitioner’s claim pertaining to Hopkins’ failure to
object to Detective Simone’s testimony.
9
On the next day of trial, Susan Johnson testified that cell site information
indicates which particular cell tower a cell phone’s incoming and outgoing
calls are transmitted through at a given point in time.