Taylor v. Commissioner of Correction

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DEVON TAYLOR v. COMMISSIONER
OF CORRECTION
(AC 35133)
Beach, Alvord and Keller, Js.
Argued October 9, 2014—officially released January 13, 2015
(Appeal from Superior Court, judicial district of
Tolland, Bright, J.)
Peter Tsimbidaros, assigned counsel, for the appel-
lant (petitioner).
Lisa A. Riggione, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Marcia A. Pillsbury, deputy assistant
state’s attorney, for the appellee (respondent).
Opinion
KELLER, J. The petitioner, Devon Taylor, appeals
from the judgment of the habeas court denying his
amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the court erroneously
concluded that (1) the petitioner’s trial counsel did not
render ineffective assistance of counsel for his failure
to (a) introduce evidence to impeach the state’s primary
identification witness, (b) introduce evidence to estab-
lish that a police officer’s alleged bias unduly influenced
identification evidence, (c) introduce third party culpa-
bility evidence, (d) impeach and challenge the admis-
sion of expert opinion testimony regarding fingerprint
evidence, and (e) object to the trial court’s errors in its
handling of a jury note, (2) the petitioner’s appellate
counsel did not render ineffective assistance of counsel
for his failure to raise a claim on appeal related to the
trial court’s errors in its handling of a jury note, and
(3) the trial court did not violate his constitutional rights
in its handling of a jury note. We affirm the judgment
of the habeas court.
The following facts, as apparent in the record or as
stated by this court in an earlier appeal and found by
the habeas court, and procedural history are relevant
to this appeal. On August 27, 1993, ‘‘[Jay Murray, the
victim,] and Ronald Wightwood, [Murray’s] companion,
were attempting to purchase drugs [in Hartford]. They
met the [petitioner] and indicated to him that they
wanted cocaine. The [petitioner] and the victim dis-
cussed the purchase and the [petitioner] entered the
victim’s pickup truck and drove it to the vicinity of a
car wash on Albany Avenue. The [petitioner] exited the
truck and retrieved a plastic bag containing a white
powdery substance, which he gave to the victim. After
the victim sampled and rejected the substance, the [peti-
tioner] drove the truck and its occupants to Milford
Street. The [petitioner] left the truck but returned sev-
eral minutes later and shot the victim with a revolver
through the driver’s side window of the truck. All of
those events occurred in the presence of Wightwood.
The police found $150 in the truck and also found the
[petitioner’s] fingerprints on the exterior and interior
of the truck.’’ State v. Taylor, 52 Conn. App. 790, 792,
729 A.2d 226 (1999). The victim later died in a hospital.
The petitioner was charged with murder in violation
of General Statutes § 53a-54 and criminal possession of
a firearm in violation of General Statutes § 53a-217. In
1997, a jury found the petitioner guilty on both charges.
The trial court, Barry, J., sentenced the petitioner to
a total effective term of sixty years imprisonment. This
court affirmed the judgment of conviction on appeal.
Id., 791.
Subsequently, the petitioner filed an amended peti-
tion for a writ of habeas corpus, which is at issue in
this appeal.1 The amended petition contains four counts.
Count one alleges that Kenneth Simon, the petitioner’s
trial counsel, provided ineffective assistance of counsel
on the grounds that, inter alia, Simon failed (1) to intro-
duce evidence to impeach the state’s primary identifica-
tion witness, Wightwood, (2) to adequately seek to
suppress Wightwood’s allegedly suggestive identifica-
tion of the petitioner and impeach police on their ‘‘possi-
ble tainting,’’ (3) to investigate and introduce evidence
to establish a third party culpability defense, (4) to
impeach the expert opinion testimony of Kenneth Zer-
cie, an employee at the state forensic laboratory, con-
cerning fingerprint evidence, and (5) to object to the
trial court’s errors in its handling of a jury note.2 Count
two broadly alleges that Glenn W. Falk, the petitioner’s
appellate counsel, provided ineffective assistance of
counsel. Count three alleges that the trial court violated
the petitioner’s constitutional rights by providing an
erroneous charge to the jury regarding the definition
of the ‘‘intent’’ element of murder. Count four broadly
and vaguely alleges that the petitioner’s incarceration
violates his constitutional rights under the fifth and
fourteenth amendments to the federal constitution and
article first, § 8, of the Connecticut constitution. The
respondent, the Commissioner of Correction, filed a
return denying the petitioner’s allegations in the
amended petition and raising the special defense of
procedural default with regard to the petitioner’s claim
in count three as to the trial court’s instruction on the
intent element of murder. The petitioner filed a reply
denying the respondent’s procedural default defense.
Both parties then filed pretrial briefs.
Following a trial to the court, both parties filed post-
trial briefs. Approximately seven months after the par-
ties filed their posttrial briefs, the court held a hearing
wherein the parties appeared on the record and dis-
cussed some of the issues raised before the court. In
particular, the court and the parties discussed the peti-
tioner’s claims pertaining to the trial court’s handling
of the jury note.3 The court then permitted the parties
to provide supplemental briefs regarding those claims,
which both parties submitted a few weeks thereafter.
The court, Bright, J., subsequently issued a memoran-
dum of decision denying the petition. First, the court
concluded that Simon did not render ineffective assis-
tance of counsel, rejecting multiple allegations underly-
ing the petitioner’s claim.4 Second, the court concluded
that Falk did not provide ineffective assistance of coun-
sel.5 Third, the court concluded that the petitioner’s
claim that the trial court committed constitutional error
in its charge to the jury regarding the intent element
of murder was procedurally defaulted and, in any event,
meritless because the charge was correct and not mis-
leading. Fourth, the court concluded that the petition-
er’s claim that the trial court committed constitutional
error in its handling of the jury note was both procedur-
ally defaulted and not raised properly before the habeas
court. Nonetheless, the court considered the claim on
its merits, concluding that the trial court’s errors did not
prejudice the petitioner and were, therefore, harmless.
Finally, the court rejected the petitioner’s broad claim
in count four that his incarceration violated his constitu-
tional rights, citing its conclusions that the petitioner
did not prove any of his allegations in counts one, two,
or three of his amended petition.
The petitioner filed a petition for certification to
appeal from the court’s judgment, which the court
granted. Before filing his appeal with this court, the
petitioner filed a motion for reconsideration, which the
habeas court denied. The petitioner then filed a motion
for rectification, arguing that the habeas court improp-
erly failed to use a structural error analysis to determine
whether the trial court had violated his constitutional
rights. The habeas court denied his motion. This appeal
followed. Additional facts and procedural history will
be set forth as necessary.
I
The petitioner claims that the habeas court errone-
ously concluded that Simon did not render ineffective
assistance of counsel on multiple grounds. We disagree
and address each ground in turn.
We begin by setting forth the relevant standard of
review governing ineffective assistance of counsel
claims. ‘‘The application of the habeas court’s factual
findings to the pertinent legal standard . . . presents
a mixed question of law and fact, which is subject to
plenary review. . . .
‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings. . . . This right
arises under the sixth and fourteenth amendments to
the United States constitution and article first, § 8, of
the Connecticut constitution. . . . It is axiomatic that
the right to counsel is the right to the effective assis-
tance 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. . . . To satisfy the prejudice prong, a claimant
must demonstrate that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. . . . The
claim will succeed only if both prongs are satisfied.’’
(Citation omitted; internal quotation marks omitted.)
Hardison v. Commissioner of Correction, 152 Conn.
App. 410, 424, 98 A.3d 873 (2014).
A
First, the petitioner claims that the habeas court erred
in concluding that Simon did not render ineffective
assistance of counsel for failing to offer certain testi-
mony and introduce certain documents to impeach the
state’s primary identification witness, Wightwood. Spe-
cifically, the petitioner claims that Simon should have
offered the testimony of Anthony Perez, a detective at
the Hartford Police Department who was the first offi-
cer to encounter Wightwood after the shooting, or, at
a minimum, introduced a police report authored by
Perez regarding the shooting. The petitioner further
claims that Simon should have introduced a document
prepared by Luisa St. Pierre, another detective at the
Hartford Police Department. We disagree and address
each claim in turn.
1
The petitioner claims that Simon should have offered
the testimony of Perez or, at a minimum, introduced a
police report authored by Perez. The following addi-
tional facts, as found by the court, are relevant here.
Perez, who was the first officer to have contact with
Wightwood after the shooting, filled out a police report
in connection with the shooting. The report contained
a ‘‘Suspects’’ section, wherein Perez wrote that the sus-
pected shooter was a black male with a dark complex-
ion, was between twenty-two and twenty-three years
old, was between five feet, five inches and five feet,
seven inches tall, weighed approximately 160 pounds,
had a mustache, and wore a hat and a green shirt.6 Perez
did not identify the exact source of the description in
his report, although he noted in the report that he had
spoken with two witnesses on the night of the shooting,
Wightwood and Katrina Davis. Shortly after speaking
with Perez, Wightwood was interviewed by St. Pierre.
Wightwood orally described the suspect to St. Pierre
as a black male with a medium complexion, between
twenty and twenty-five years old, five feet, nine inches
tall, and having a medium build, a well-groomed mus-
tache, and short hair. The parties stipulated at the
habeas trial that the petitioner was a black male and
was five feet, ten inches tall. The petitioner claimed
before the habeas court that Simon should have offered
Perez’ testimony or introduced Perez’ report to impeach
Wightwood on the discrepancy between the two
descriptions, alleging that Wightwood was the source
of the description entered into the ‘‘Suspects’’ section
of Perez’ report.
The habeas court rejected this claim, noting that
Perez’ report did not specify the source of the descrip-
tion contained in the ‘‘Suspects’’ section of the report.
The court acknowledged that Perez wrote in the report
that Davis described the suspected shooter as wearing
a hat, a black shirt, jeans, and sneakers.7 The court
determined, however, that it was unclear whether the
description contained in the ‘‘Suspects’’ section of the
report was provided by Wightwood, Davis, or ‘‘an amal-
gamation of the two.’’ Perez was unavailable to testify
at the habeas trial to offer testimony identifying the
source of the description. Without Perez’ testimony con-
firming that Wightwood provided the description
entered into the ‘‘Suspects’’ section, the court con-
cluded that the petitioner failed to meet his burden of
proof to show that Simon’s performance was deficient
for not introducing Perez’ testimony or Perez’ report
to impeach Wightwood.
On appeal, the petitioner claims that the habeas court
erred by concluding that it was unclear whether Wight-
wood provided the description contained in the ‘‘Sus-
pects’’ section of Perez’ report. The petitioner further
claims that Simon rendered ineffective assistance of
counsel for failing to call Perez or to introduce his
police report, offering the same arguments he presented
before the habeas court to support this claim.
We agree with the habeas court’s analysis of this
claim. ‘‘[O]ur habeas corpus jurisprudence places a
heavy burden on the petitioner to establish that, not-
withstanding his conviction, he is entitled to a new
trial.’’ (Internal quotation marks omitted.) Fine v. Com-
missioner of Correction, 147 Conn. App. 136, 144, 81
A.3d 1209 (2013). It is unclear on the face of Perez’
report who provided the exact description contained
in the ‘‘Suspects’’ section and no other evidence sheds
light on the issue.8 If Wightwood did not provide that
description, then the report would have been useless
for the purpose for which the petitioner argues that it
should have been presented by Simon, specifically, to
impeach Wightwood in relation to any descriptions of
the suspected shooter that he provided. Without Perez’
testimony clarifying this ambiguity, the habeas court
correctly concluded that the petitioner failed to meet his
burden of proving that Simon was deficient for failing to
call Perez as a witness or introduce Perez’ report to
impeach Wightwood.
For the foregoing reasons, we agree with the habeas
court that the petitioner has not met his burden to prove
that Simon’s performance was deficient for failing to
offer Perez’ testimony or to introduce Perez’ report to
impeach Wightwood. Therefore, the petitioner cannot
prevail on his claim of ineffective assistance of counsel
on this ground.
2
Next, the petitioner claims that Simon should have
introduced a document prepared by St. Pierre. The fol-
lowing additional facts, as found by the court, are rele-
vant here. More than one year after the shooting, St.
Pierre sent a document entitled ‘‘Request For Examina-
tion of Physical Evidence’’ to a forensic laboratory seek-
ing to compare the petitioner’s fingerprints to those
found on the victim’s truck. St. Pierre wrote in the
document that ‘‘[o]ne witness riding in the truck was
too drunk to make an identification.’’ The petitioner
argued before the habeas court that Simon should have
introduced this document to provide the jury with St.
Pierre’s statement that Wightwood was ‘‘too drunk to
make an identification’’ in order to undermine Wight-
wood’s identification of the petitioner as the suspected
shooter. Simon testified at the habeas trial that he was
aware of the document during the criminal trial, but
chose not to introduce it because he believed it was
inadmissible hearsay.
The habeas court rejected this claim. The court
explained that, although Simon did not introduce St.
Pierre’s document into evidence, he used the document
on cross-examination to orally publish St. Pierre’s writ-
ten statement in the document to the jury. The following
exchange occurred between Simon and St. Pierre at
the criminal trial:
‘‘[Simon]: In fact, when you made out your police
report on this matter, you said Mr. Wightwood appeared
to be under the influence of alcohol. Did you not?
‘‘[St. Pierre]: Yes.
‘‘[Simon]: And, further, when you made request for
examination of physical evidence, that is, the compari-
son of the fingerprints, you stated that one witness
riding in the truck was too drunk to make an identifica-
tion. Isn’t that so?
‘‘[St. Pierre]: At that time it appeared that he had
been drinking, yes.
‘‘[Simon]: But your statement was that one witness
riding in the truck was too drunk to make an identifi-
cation?
‘‘[St. Pierre]: It appeared to me that he was drunk,
yes.’’9
Moreover, the court found that both Simon and the
prosecution stated in their closing arguments that St.
Pierre had determined that Wightwood was ‘‘too drunk
to make an identification.’’ The court concluded that it
was not ‘‘objectively unreasonable’’ for Simon to forgo
introducing the document as an exhibit when St.
Pierre’s statement that Wightwood ‘‘was too drunk to
make an identification’’ was provided to the jury
through St. Pierre’s testimony and mentioned by both
parties during closing arguments before the jury.10
Therefore, the court concluded that Simon’s perfor-
mance was not deficient.
On appeal, the petitioner claims, using the same argu-
ments he presented before the habeas court, that the
habeas court erred in concluding that Simon did not
render ineffective assistance of counsel due to his fail-
ure to introduce St. Pierre’s document. We agree with
the habeas court’s analysis of this claim. While we rec-
ognize that statements made during closing arguments
do not constitute evidence before the jury; see State v.
Carter, 122 Conn. App. 527, 533, 998 A.2d 1217 (2010),
cert. denied, 300 Conn. 915, 13 A.3d 1104 (2011); we
agree that St. Pierre’s statement regarding Wightwood’s
condition that she wrote in the document was suffi-
ciently provided to the jury through St. Pierre’s testi-
mony. Simon twice asked St. Pierre whether she
believed Wightwood was ‘‘too drunk to make an identifi-
cation’’ on the night of the shooting. While the jury
reasonably could have interpreted St. Pierre’s first
reply, which was that she believed Wightwood ‘‘had
been drinking, yes,’’ as nonresponsive, the jury reason-
ably could have interpreted her second reply, that she
believed Wightwood ‘‘was drunk, yes,’’ as an affirmative
answer to Simon’s question. As a result, St. Pierre’s
document would have constituted cumulative evidence
of this fact. See Hall v. Commissioner of Correction,
152 Conn. App. 601, 610, 99 A.3d 1200 (counsel’s deci-
sion not to introduce cumulative evidence did not preju-
dice petitioner), cert. denied, 314 Conn. 950, A.3d
(2014).
For the foregoing reasons, we agree with the habeas
court that the petitioner has not met his burden to prove
that Simon’s performance was deficient for failing to
introduce St. Pierre’s document to impeach Wightwood.
Therefore, the petitioner cannot prevail on his claim of
ineffective assistance of counsel on this ground.
B
Second, the petitioner claims that Simon rendered
ineffective assistance of counsel because he did not
introduce St. Pierre’s ‘‘Request For Examination of
Physical Evidence,’’ as discussed previously in part I A
of this opinion, at a pretrial suppression hearing and
at trial to establish that St. Pierre exhibited bias against
the petitioner. The following additional facts, as found
by the court, are relevant here. More than one year
after the shooting, St. Pierre presented a photographic
array to Wightwood at a Hartford police station. Wight-
wood identified the petitioner, whose photograph was
in the array, as the suspected shooter. The petitioner
argues that St. Pierre’s document established St.
Pierre’s bias against the petitioner because St. Pierre
wrote in that document that ‘‘[t]he above listed suspect
[the petitioner] is the person who pulled the trigger,
making every effort to place him in the truck.’’
The respondent asserts that this court should not
review the petitioner’s claim because the petitioner did
not present it before the habeas court and the habeas
court did not address it in its memorandum of decision.
We agree. What the petitioner actually argued before
the court was that Simon should have introduced cer-
tain other statements made by St. Pierre, before and
during the presentation of the photographic array, unre-
lated to her statement in the document, that indicated
that she unduly influenced Wightwood’s identification.
The court rejected that specific claim. As the petitioner
concedes in his appellate brief, however, the court made
no mention of the petitioner’s claim that Simon should
have introduced St. Pierre’s document to establish bias
in Wightwood’s identification of the petitioner.11 There-
fore, we decline to consider this claim. See Henderson
v. Commissioner of Correction, 129 Conn. App. 188,
198, 19 A.3d 705 (‘‘[a] reviewing court will not consider
claims not raised in the habeas petition or decided by
the habeas court’’), cert. denied, 303 Conn. 901, 31 A.3d
1177 (2011).
C
Third, the petitioner claims that the habeas court
erroneously concluded that Simon did not render inef-
fective assistance of counsel because he did not locate,
interview, and offer the testimony of Antoine Williams,
who allegedly had information that would have estab-
lished a third party culpability defense for the peti-
tioner.12 Williams provided the following testimony at
the habeas trial. Williams was near the scene of the
shooting and saw Anthony Bennefield, whom Williams
described as an ‘‘associate,’’ run toward him through
an empty field. Bennefield appeared to be sweating,
breathing heavily, and appeared nervous and excited.
Bennefield told Williams that two white males tried to
rob him and asked Williams to walk with him back
toward the area of the shooting. Bennefield also sug-
gested creating an alibi, namely, that they were walking
to a friend’s home nearby, if the police approached
them and asked questions. Williams testified that, on
the basis of Bennefield’s appearance and behavior, he
believed Bennefield may have been involved in the
shooting. A police officer stopped them as they were
walking near the scene of the shooting and asked why
they were there. Williams replied that they were simply
curious about the commotion and that they did not
have any knowledge concerning the shooting. Williams
did not tell the police that night about his suspicions
regarding Bennefield. Furthermore, Williams testified
that Bennefield had died sometime prior to the habeas
trial. No evidence was presented indicating Bennefield’s
date of death. The petitioner claimed before the habeas
court that Simon would have established a third party
culpability defense had he found, interviewed, and
offered Williams as a witness at his criminal trial.
The habeas court concluded that, for two reasons,
Simon’s performance was not deficient for failing to
find, interview, and call Williams to testify. First, the
court found that the petitioner failed to prove that Wil-
liams was available for Simon to interview or offer as
a witness. There was no evidence produced indicating
Williams’ whereabouts from 1995 to 1997, the time dur-
ing which Simon was preparing for the petitioner’s crim-
inal trial. The petitioner argued that it was reasonable
for the court to infer that Williams was available to
Simon because the police had listed Williams as residing
at a Hartford address in the petitioner’s arrest warrant,
dated December 29, 1994, and further because Neil
Hunt, a private investigator who took written state-
ments from Wightwood and Williams regarding the
shooting years after the petitioner’s conviction, had
located Williams in Hartford in 2002. The court declined
to make that inference.13 The court also noted that the
petitioner had the opportunity to elicit testimony
regarding Williams’ whereabouts from 1995 to 1997 dur-
ing the habeas trial, but failed to do so. Second, the court
found that the petitioner failed to prove that Williams
would have provided exculpatory testimony at trial.
The court found that Williams had provided potentially
exculpatory information to Hunt and to the court
through his testimony at the habeas trial. Despite this,
the court stated that Williams failed to provide the
police with the same exculpatory information on the
night of the shooting in 1993 and when they interviewed
him in 1994. The court thereby concluded that it was
unlikely that Williams would have provided Simon with
any useful information even if Simon had located and
interviewed him prior to the criminal trial.14
On appeal, the petitioner claims, using the same argu-
ments he presented before the habeas court, that the
habeas court erred in concluding that Simon did not
render ineffective assistance of counsel for failing to
locate and interview Williams, and to introduce Wil-
liams’ testimony. We agree with the habeas court’s anal-
ysis of this claim. To argue that Simon rendered
ineffective assistance of counsel for failing to offer Wil-
liams as a witness, the petitioner had to prove, ‘‘ ‘by
demonstrable realities’ ’’; Hopkins v. Commissioner of
Correction, 95 Conn. App. 670, 677, 899 A.2d 632, cert.
denied, 279 Conn. 911, 902 A.2d 1071 (2006); that Wil-
liams was available to Simon while he was preparing
for trial. See, e.g., Floyd v. Commissioner of Correction,
99 Conn. App. 526, 532, 914 A.2d 1049 (affirming denial
of ineffective assistance of counsel claim where peti-
tioner failed to prove availability of witnesses, contents
of testimony and whether testimony would have favor-
ably impacted outcome), cert. denied, 282 Conn. 905,
920 A.2d 308 (2007); Hopkins v. Commissioner of Cor-
rection, supra, 677; Lewis v. Commissioner of Correc-
tion, 89 Conn. App. 850, 861, 877 A.2d 11 (affirming
denial of ineffective assistance of counsel claim where
petitioner failed to prove availability of witnesses), cert.
denied, 275 Conn. 905, 882 A.2d 672 (2005). Here, it is
unclear where Williams resided from 1995 to 1997. As
the court found, the petitioner elicited no testimony
from Williams as to his residence during that time
period. Because the petitioner had the burden to prove
Williams’ availability ‘‘ ‘by demonstrable realities’ ’’;
Hopkins v. Commissioner of Correction, supra, 677;
rather than by mere speculation, we decline to draw
the inference that Williams must have lived in Hartford
from 1995 to 1997 because the police listed Hartford
as his address in 1994 and Hunt located him in Hartford
in 2002.
Furthermore, the petitioner failed to meet his burden
to prove that Williams would have provided favorable
information to Simon prior to the criminal trial. See
Thomas v. Commissioner of Correction, 141 Conn.
App. 465, 472, 62 A.3d 534 (‘‘[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 helpful in
establishing the asserted defense’’ [internal quotation
marks omitted]), cert. denied, 308 Conn. 939, 66 A.3d
881 (2013); Floyd v. Commissioner of Correction,
supra, 99 Conn. App. 532 (ineffective assistance claim
fails where petitioner did not prove witnesses were
available to testify at criminal trial, what subject of
testimony would be and whether testimony would have
had favorable impact on trial’s outcome). As the court
correctly found, Williams did not explain his suspicions
about Bennefield to the police when they approached
him on the night of the shooting or when they inter-
viewed him the following year. Therefore, the petitioner
has not proven, ‘‘ ‘by demonstrable realities’ ’’; Hopkins
v. Commissioner of Correction, supra, 95 Conn. App.
677; rather than by mere speculation, that Simon would
have elicited exculpatory information from Williams to
establish a third party culpability defense at the crimi-
nal trial.
For the foregoing reasons, we agree with the habeas
court that the petitioner has not met his burden to prove
that Simon’s performance was deficient for failing to
locate and interview Williams, or to introduce Williams’
testimony to establish a third party culpability defense
at the criminal trial. Therefore, the petitioner cannot
prevail on his claim of ineffective assistance of counsel
on this ground.
D
Fourth, the petitioner claims that the habeas court
erred in concluding that Simon did not render ineffec-
tive assistance of counsel because he failed to address
Zercie’s expert opinion testimony concerning finger-
print evidence. Specifically, the petitioner claims that
Simon should have challenged the admissibility of Zer-
cie’s opinion that the petitioner was the last individual
to touch the victim’s truck, and sought a disclosure of
the summary of Zercie’s opinion and a basis for Zercie’s
opinion. In the alternative, the petitioner claims that
Simon should have impeached Zercie’s opinion that the
petitioner was the last individual to touch the victim’s
truck during the criminal trial. We disagree and address
each claim in turn.
The following additional facts, as found by the court
or as evident in the record, are relevant here. Zercie
testified at the criminal trial that a set of fingerprints
belonging to the petitioner was located on or near the
victim’s truck’s door frame and that, on the basis of his
review of the fingerprints, the petitioner was the last
person to touch the door frame. At the habeas trial,
Simon testified that he consulted with a fingerprint
expert prior to the criminal trial, who concluded that
the fingerprints belonged to the petitioner. Simon testi-
fied that he decided not to call the fingerprint expert as
a witness because Simon believed his testimony would
have undermined the petitioner’s defense.
The petitioner argued before the habeas court that
Simon should have challenged Zercie’s conclusions that
the petitioner’s fingerprints were located on the victim’s
truck and that the petitioner was the last person to
touch the victim’s truck. At the habeas trial, the peti-
tioner, through an offer of proof, offered the testimony
of Simon Cole, a teacher and researcher in the field of
sociology of forensic science, to indicate that Simon
could have introduced evidence to challenge the validity
of Zercie’s opinions. The court rejected Cole’s proffered
testimony regarding the reliability of fingerprint identi-
fication in 1997, the year of the petitioner’s criminal
trial, as irrelevant, but the court accepted into evidence
four articles, predating 1997, that discussed whether
the age of fingerprints could be reliably determined.
The petitioner also called Leon Kaatz, an attorney, as
a legal expert who testified that he agreed with Simon’s
decision not to challenge the fingerprint evidence, call-
ing the fingerprint evidence a ‘‘red herring.’’ Kaatz testi-
fied that he would have argued instead that the last
person to touch the truck was not necessarily the sus-
pect, and he further would have asked Zercie on cross-
examination whether someone could have touched the
truck without leaving a print.
The habeas court concluded that Simon did not ren-
der ineffective assistance of counsel for his handling of
Zercie’s testimony. Regarding Zercie’s testimony about
the presence of the petitioner’s fingerprints on the
truck, the court credited Simon’s testimony that he had
consulted with a fingerprint expert and, as a matter of
trial strategy, relied on the consultation as a reason not
to challenge Zercie’s conclusion that the petitioner’s
fingerprints were found on the victim’s truck. The court
further supported its conclusion on the basis of Kaatz’
testimony that he agreed with Simon’s decision not to
challenge Zercie’s conclusion concerning the presence
of the petitioner’s fingerprints.
Regarding Zercie’s opinion that the petitioner was
the last person to touch the truck, the court rejected
the petitioner’s argument that Simon should have made
a greater effort to challenge that conclusion. The court
found that Simon did argue at trial, as Kaatz suggested,
that a second person may have approached the truck
and shot the victim, which mitigated the inference that
the petitioner was the shooter because he was the last
person to touch the truck. In addition, the court found
that it was unclear how Zercie would have answered
Kaatz’ question as to whether another individual could
have touched the door frame without leaving a print.
Without testimony from Zercie at the habeas trial as
to his response to that question, the court could not
conclude that Zercie’s answer at the criminal trial would
have been favorable to the petitioner. The court also
rejected the four articles submitted into evidence by
the petitioner concerning the reliability of determining
the age of fingerprints, finding them inapplicable
because Zercie did not testify to the age of the finger-
prints found on the victim’s truck but rather to the
relative time placement between the various finger-
prints on the truck. Even if the articles were relevant,
the court further found that the petitioner submitted
no evidence indicating that a trial attorney practicing
in 1997 would have been aware of the articles.
For the foregoing reasons, the court rejected the peti-
tioner’s claims concerning Simon’s handling of Zercie’s
expert opinion testimony.
1
The petitioner first claims that Simon rendered inef-
fective assistance for failing to object to the admission
of Zercie’s testimony that, in his opinion, the petitioner
was the last person to touch the victim’s truck. The
petitioner argues that evidence he produced at the
habeas trial illustrated that Zercie’s conclusion was not
scientifically valid at the time of the criminal trial. In
addition, the petitioner claims that Simon should have
sought a disclosure of the summary of Zercie’s opinion
and a basis for Zercie’s opinion.
The respondent asserts that this court should not
review the petitioner’s claims because the petitioner
failed to raise them before the habeas court. We agree.
It is axiomatic that we do not review claims on appeal
that were not properly raised before the habeas court.
See Hedge v. Commissioner of Correction, 152 Conn.
App. 44, 59, 97 A.3d 45 (2014). ‘‘The principle that a
plaintiff may rely only upon what he has alleged is basic.
. . . It is fundamental in our law that the right of a
plaintiff to recover is limited to the allegations of his
complaint. . . . While the habeas court has consider-
able discretion to frame a remedy that is commensurate
with the scope of the established constitutional viola-
tions . . . it does not have the discretion to look
beyond the pleadings and trial evidence to decide claims
not raised. . . . The purpose of the [petition] is to put
the [respondent] on notice of the claims made, to limit
the issues to be decided, and to prevent surprise.’’ (Cita-
tions omitted; internal quotation marks omitted.) Holley
v. Commissioner of Correction, 62 Conn. App. 170, 181,
774 A.2d 148 (2001).
Here, the petitioner did not allege in his amended
complaint that Simon failed to challenge the admissibil-
ity of Zercie’s testimony or request a disclosure of the
summary of his opinion along with the basis of his
opinion. The petitioner only alleged that Simon ‘‘did
not consult with any experts to assist in the presentation
of the petitioner’s case, including experts in the area
of fingerprints and fingerprint analysis . . . [and] did
not present expert testimony in support of [the petition-
er’s] defense . . . .’’
Furthermore, the petitioner focused his argument in
his posttrial brief on Simon’s alleged failure to impeach
Zercie adequately. The petitioner summarily stated that
‘‘[t]here is a question as to whether Zercie’s testimony
was even admissible’’ without further elaboration. Like-
wise, the petitioner merely listed Simon’s failure to seek
a disclosure of the summary of Zercie’s testimony and
a basis for his opinion as an alleged shortcoming of
Simon’s performance. The respondent did not address
these claims in his posttrial brief, which was filed on
the same date as the petitioner’s posttrial brief. Our
case law dictates that claims raised by a petitioner for
the first time in a posttrial brief are not reviewable by
this court when a respondent has no notice of such
claims and no opportunity to respond to them in its
posttrial brief. See Holley v. Commissioner of Correc-
tion, supra, 62 Conn. App. 181 (no review of claim
raised for first time in posttrial brief); Jenkins v. Com-
missioner of Correction, 52 Conn. App. 385, 406–407,
726 A.2d 657 (finding that habeas court improperly
reviewed claim raised for first time in posttrial brief),
cert. denied, 249 Conn. 920, 733 A.2d 233 (1999).
For the foregoing reasons, we decline to review these
claims on appeal.
2
The petitioner next claims that the habeas court erred
in concluding that Simon did not render ineffective
assistance of counsel for his failure to impeach Zercie’s
opinion that the petitioner was the last person to touch
the truck. The petitioner argues that, in accord with
Kaatz’ testimony, Simon should have provided an alter-
nate explanation for the presence of the petitioner’s
prints on the victim’s truck. In addition, the petitioner
argues that the time deposition of his fingerprints was
a critical issue on which Simon should have challenged
Zercie’s opinion. The petitioner also argues that the
habeas court’s finding that the articles submitted by
the petitioner did not cover the scope of Zercie’s opinion
was clearly erroneous and, therefore, that Simon could
have used the articles to impeach Zercie.
We agree with the habeas court’s analysis of this
claim. The petitioner suggests that Simon did not
address Zercie’s opinion that the petitioner was the
last person to touch the victim’s truck. As the court
correctly found, however, Simon argued during closing
arguments that a third party may have approached the
truck and shot the victim without leaving a print,
undermining the inference that the petitioner was the
suspected shooter because he was the last person to
touch the truck. Kaatz testified that he would have
presented a similar argument. Although Kaatz also
would have asked Zercie whether someone could have
touched the truck without leaving a print, it is unknown
what Zercie’s answer would have been because he did
not testify at the habeas trial. Further, we agree with the
court that the four articles submitted by the petitioner
at the habeas trial would not have been effective in
impeaching Zercie’s opinion. As the court correctly
found, all four articles discussed the determination of
the age of fingerprints, which is inapposite to Zercie’s
opinion that the petitioner was the last person to leave
fingerprints on the truck.15 Even if those articles were
on point, we also agree with the court that the petitioner
produced no evidence indicating that it was reasonable
for Simon in 1997 to find such evidence and introduce
it to impeach Zercie.
For the foregoing reasons, we agree with the habeas
court that the petitioner has not met his burden to prove
that Simon’s performance was deficient in his handling
of Zercie’s expert opinion testimony.16 Therefore, the
petitioner cannot prevail on his claim of ineffective
assistance of counsel on this ground.
E
Finally, the petitioner claims that Simon rendered
ineffective assistance of counsel because he failed to
object to the trial court’s decision to seal a jury note
without an explanation on the record, its refusal to
divulge the contents of the note to counsel, and its
instruction to the jury following its receipt of the note.
The petitioner further claims that Simon should have
sought a mistrial on the basis of the trial court’s errors.
We disagree.
The following additional facts, as found by the habeas
court, are relevant here. On the third day of delibera-
tions, the trial court received a jury note signed by the
foreperson.17 The note read:
‘‘Judge Barry–I have polled the jury 4 times after
various deliberations and discussions. Votes were as
follows on the charge of murder:
‘‘10-8-97 4G 5NG 3 undecided
‘‘10-9-97 6G 5NG 1 undecided
‘‘10-9-97 7G 5NG
‘‘10-10-97 7G 5NG
‘‘I started discussion this AM with a proposal to com-
promise—that is, that we would find [the petitioner]
not guilty on murder and move to convict on a lesser
charge. This proposal was rejected by 4 jurors.
‘‘Deliberations continued and a 4th vote was taken.
‘‘Next steps??’’
The court had the following exchange with the fore-
person after receiving the note:
‘‘The Court: . . . Let me ask you . . . am I correct,
having read your note—would I be correct to state that
the jury is in disagreement as to a verdict of guilty or
not guilty regarding the first count of murder?
‘‘The Foreperson: Yes, Your Honor. And, therefore,
we never got to the second count.
‘‘The Court: I understand. I believe that you have
deliberated for a total of somewhere around four hours
or approximately a little more. And I may be wrong
about that. But both yesterday and today and for a total
of four to five hours, I believe, but I’m not certain. In
any event, I believe more deliberations are necessary.
I want to remind you that you have to deal with count
one as charged first, that is the charge of murder, and
reach a unanimous decision of guilt or nonguilt as to
that charge, if you possibly can. If your unanimous
verdict is guilty, you will move on to count two. If your
unanimous verdict on murder in the first count is not
guilty, then and only then will you consider lesser
included offenses of murder as I instructed you. And
then, after having done that, you would move on to
count two.
‘‘If you remain in disagreement on the charge of mur-
der after further deliberations, let us know in the same
manner with simply a note to the effect that you are
in disagreement on the first count, and we will bring
you back into court for further instructions.’’
After the jury left the courtroom, the court marked
the note as a court exhibit and sealed it. The court
stated that a verbatim recitation of the note’s contents
was not placed into the record or revealed to counsel,
but that counsel knew that the jury was in disagreement
about reaching a unanimous verdict on the murder
charge and was seeking advice on how to proceed.
Counsel did not object to the trial court’s decision to
seal the note or its instruction to the jury following
receipt of the note. The note was unsealed for the first
time during the habeas trial.
The habeas court rejected the petitioner’s claim that
Simon rendered ineffective assistance of counsel for
failing to object to the trial court’s decision to seal the
jury note or failure to permit Simon to address the note.
The court first concluded that Simon’s performance
was deficient in regard to the jury note. The court found
that the trial court failed to follow Practice Book § 42-
49,18 which required a court to articulate its reasoning
on the record if it decided to seal any portion of the
court’s file. The court further found that, in any event,
a trial court could not prevent a defendant from viewing
the contents of a jury note. In addition, the court noted
that Practice Book § 42-719 required a court to provide
notice and a ‘‘reasonable opportunity to be present’’ to
parties before communicating with jurors on any aspect
of a case. The court determined that the trial court
failed to follow these procedures.
Furthermore, the court found the following regarding
Simon’s performance: Simon did not request, on the
record, to see the note; Simon did not object to the
court’s handling of the note; reasonably competent trial
counsel would have known the law, as it existed at
the time of the petitioner’s trial, concerning jury notes;
reasonably competent counsel would have been aware
of his or her client’s rights to view a jury note and
respond to it; there was no strategic or tactical reason
not to request, on the record, to view the note; there
was no strategic or tactical reason not to object to
the court’s handling of the note; and any off-the-record
discussion by Simon with the trial court judge about
the note, if it occurred, did not constitute a sufficient
substitute for discussing the note on the record. On the
basis of these findings, the court concluded that Simon’s
performance was deficient as it related to the trial
court’s handling of the note.
The court proceeded to conclude that Simon’s defi-
cient performance, as it related to the jury note, did
not prejudice the petitioner. The petitioner, in reliance
on United States v. Ronder, 639 F.2d 931 (2d Cir. 1981),
argued that the trial court’s instruction to the jury in
response to the note constituted a defective, prejudicial
‘‘Chip Smith’’ charge20 that required correction. In
Ronder, a jury submitted three notes to the trial court
on its final day of deliberations. Id., 934. The trial court
did not share the contents of any of the notes with
defendant’s counsel and unilaterally responded to each
note. Id. The United States Court of Appeals for the
Second Circuit concluded that the trial court committed
reversible error by not revealing the contents of the
notes to the defendant’s counsel, explaining that coun-
sel could have contributed valuable input in tailoring
the court’s response to each note. Id., 934–35. In addi-
tion, the Second Circuit emphasized that the evidence
in the case was sharply disputed and that the jury had
twice reported a deadlock, making defense counsel’s
involvement in the court’s responses to the notes criti-
cal. Id.
The habeas court disagreed with the petitioner and
distinguished Ronder on the grounds that, inter alia,
the jury here was not deadlocked, the trial court had
not provided the jury with a defective Chip Smith
charge, but merely instructed the jury to continue delib-
erating and to reach a verdict on the murder charge
before considering any lesser included offenses or the
other charge, and there was no evidence that the jury
felt time pressured to reach a verdict after receiving
the court’s instruction in response to the note. The
court found that the jurors deliberated for at least one
hour and one-half after receiving the court’s instruction
and then, following a three day holiday weekend, delib-
erated for an additional three hours before reaching
a verdict.
Furthermore, the habeas court stated that the trial
court addressed the note ‘‘in the most typical of ways’’
by instructing the jury in open court to, inter alia, con-
tinue deliberating and reach a unanimous verdict on
the murder charge before considering lesser included
offenses and the other charge. According to the habeas
court, a Chip Smith charge was neither provided to
the jury nor needed by the jury at that point in its
deliberations. Because the trial court’s response to the
note was reasonable, the court determined that Simon
would not have suggested any alternative response to
the note had the trial court shared the contents of the
note with him. The habeas court found that ‘‘[t]he peti-
tioner presented no evidence, either from Attorney
Simon or [his] expert, Attorney Kaatz, that competent
counsel would have done anything differently had they
been aware of the note.’’ On the basis of its foregoing
findings, the court concluded that it could ‘‘not see how
the outcome of the trial could have reasonably been
different had the trial court shown [the jury note] to
the petitioner and Attorney Simon, and given them an
opportunity to respond.’’
The petitioner also argued that prejudice was to be
presumed under the circumstances of this case because
the trial court’s failure to share the contents of the note
with Simon and to permit Simon to provide input into
the court’s response to the note effectuated a ‘‘construc-
tive’’ denial of counsel. See Strickland v. Washington,
466 U.S. 668, 692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)
(‘‘[a]ctual or constructive denial of the assistance of
counsel altogether is legally presumed to result in preju-
dice’’). The petitioner cited a Court of Appeals of New
York case, People v. O’Rama, 78 N.Y.2d 270, 579 N.E.2d
189, 574 N.Y.S.2d 159 (1991), to support this proposition.
In O’Rama, an individual juror sent a note21 to the trial
court indicating that the jury was deadlocked. Id., 275.
The trial court, without divulging the contents of the
note, unilaterally addressed the jury. Id. The court asked
five jurors whether they believed the jury could reach
a unanimous verdict, to which four jurors responded
affirmatively. Id. The court ‘‘ ‘implor[ed]’ ’’ the jury to
try to reach a unanimous verdict and administered an
Allen charge.22 Id. On appeal, the Court of Appeals con-
cluded that the trial court had committed reversible
error in failing to divulge the contents of the jury note
to the defendant’s counsel, in violation of a New York
law of criminal procedure.23 Id., 278–79. The court
rejected the state’s argument that reversal was
improper without a showing of specific prejudice, stat-
ing that ‘‘[m]anifestly, [the] defendant was prejudiced
by the court’s actions, since the decision to withhold
the contents of the juror’s note deprived him of the
opportunity to have input, through counsel or other-
wise, into the court’s response to an important, substan-
tive juror inquiry. . . . [T]he trial court did respond to
the juror’s inquiry with a substantive Allen instruction
that was, unquestionably, intended to have an effect on
the deliberative process. In this context, the court’s
failure to notify counsel of the note’s contents, which
resulted in a denial of the right to participate in the
charging decision, was inherently prejudicial . . . .’’
(Citation omitted; emphasis omitted; footnote omitted.)
Id., 279–80.
The habeas court rejected this argument. First, the
court emphasized that, to support his ineffective assis-
tance of counsel claim, the petitioner bore the burden
of establishing prejudice by a preponderance of the
evidence. The court refused to presume prejudice. Sec-
ond, the court noted that, in direct appeals, other
reviewing courts adjudicating similar issues concerning
jury notes performed harmless error analyses, under
which a showing that the proclaimed errors affected
the outcome of the respective cases was necessary to
prevail. Finally, the court distinguished the present case
from O’Rama, noting that the jury in the present case
was not deadlocked and did not receive a Chip Smith
charge.
For the foregoing reasons, the court concluded that
the petitioner failed to prove that Simon’s deficient
performance prejudiced him.24
On appeal, the petitioner claims, using the same argu-
ments he presented before the habeas court, that the
habeas court erred in concluding that Simon did not
render ineffective assistance of counsel for not
addressing the trial court’s errors in its handling of the
jury note. We agree with the habeas court’s analysis of
this claim. Both the petitioner and the habeas court
agree that Simon’s performance in relation to the jury
note was deficient. His deficient performance did not,
however, prejudice the petitioner. As the court found,
the trial court’s instruction in response to the note did
not amount to a defective, prejudicial Chip Smith
charge. Instead, the trial court appropriately directed
the jury to continue its deliberations and addressed the
note’s statement that some jurors proposed ‘‘compro-
mis[ing]’’ on the murder charge by instructing them to
reach a unanimous verdict on the murder charge before
considering any lesser included offenses or the other
charge. In addition, the petitioner was not prejudiced
by the trial court’s failure to provide the jury with a
Chip Smith charge following its receipt of the note. The
foreperson stated that the jury was in ‘‘disagreement’’
on the verdict of the murder charge after approximately
four hours of deliberations following the jury’s review of
selected portions of witness testimony and instructions.
We are not persuaded that the jury was deadlocked and
that the trial court should have considered administer-
ing a Chip Smith charge.25 Therefore, we agree with the
habeas court that there is not a reasonable probability
that the outcome of the trial would have been different
had Simon viewed the note.
Furthermore, we agree with the court that this is not
one of the rare instances wherein a petitioner need not
prove prejudice to establish an ineffective assistance
of counsel claim. See Anderson v. Commissioner of
Correction, 127 Conn. App. 538, 550, 15 A.3d 658 (2011)
(‘‘an ineffectiveness claim predicated on an actual con-
flict of interest is unlike other ineffectiveness claims in
that the petitioner need not establish actual prejudice’’),
aff’d, 308 Conn. 456, 64 A.3d 325 (2013). Indeed, as the
court found, the Second Circuit has performed harmless
error analyses when reviewing, in direct appeals, poten-
tial errors committed by trial courts in their handling
of jury notes. See, e.g., Morris v. United States, 523
Fed. Appx. 7, 9 (2d Cir. 2013) (summary order); United
States v. Collins, 665 F.3d 454, 460–61 (2d Cir. 2012);
United States v. Mejia, 356 F.3d 470, 476 (2d Cir. 2004);
Krische v. Smith, 662 F.2d 177, 178–79 (2d Cir. 1981);
United States v. Ronder, supra, 639 F.2d 934–35.26 We
are not persuaded that the circumstances of this case
require us to remove from the petitioner the burden to
prove prejudice.
Finally, even though it is not binding authority, we
also agree with the court that O’Rama is distinguishable
from this case. From the outset, we note that O’Rama
involved a direct appeal on the basis of a trial court’s
failure to follow a rule of New York criminal procedure
rather than a claim of ineffective assistance of counsel
brought before a habeas court. In any event, the facts
in O’Rama are starkly different from this case. In
O’Rama, the trial court received three separate jury
notes indicating an evident deadlock. In addition, the
trial court administered a clear Allen charge in response
to two of those notes. Here, the jury was not deadlocked
and the trial court did not administer a Chip Smith
charge. As we previously determined, a Chip Smith
charge was not necessary under the circumstances of
this case. Therefore, we cannot conclude that the trial
court’s failure to share the contents of the note with
Simon and consult with Simon before responding to
the note prejudiced the petitioner.
For the foregoing reasons, we agree with the court
that the petitioner has not met his burden to prove that
Simon’s deficient performance, in relation to the trial
court’s handling of the jury note, prejudiced him. There-
fore, the petitioner cannot prevail on his claim of inef-
fective assistance of counsel on this ground.
II
The petitioner next claims that the habeas court erred
in concluding that Falk did not render ineffective assis-
tance of counsel for failing to raise a claim on appeal
concerning the sealed jury note.27 We disagree.
We begin by setting forth the relevant standard of
review governing ineffective assistance of appellate
counsel claims. ‘‘Whether the representation a [peti-
tioner] received . . . was constitutionally inadequate
is a mixed question of law and fact. . . . As such, that
question requires plenary review by this court . . . .
‘‘To succeed on a claim of ineffective assistance of
counsel, a habeas petitioner must satisfy the two-
pronged test articulated in [Strickland v. Washington,
supra, 466 U.S. 687]. Strickland requires that a peti-
tioner satisfy both a performance prong and a prejudice
prong. . . . In order to satisfy the performance prong,
the petitioner must show that appellate counsel’s repre-
sentation fell below an objective standard of reason-
ableness considering all of the circumstances. . . . In
order to satisfy the prejudice prong, the petitioner must
demonstrate there is a reasonable probability that, but
for appellate counsel’s failure to raise the issue on
appeal, the petitioner would have prevailed in his direct
appeal, i.e., reversal of his conviction or granting of a
new trial. . . . [T]o determine whether a habeas peti-
tioner had a reasonable probability of prevailing on
appeal, a reviewing court necessarily analyzes the mer-
its of the underlying claimed error in accordance with
the appropriate appellate standard for measuring
harm.’’ (Citations omitted; internal quotation marks
omitted.) Santaniello v. Commissioner of Correction,
152 Conn. App. 583, 587–88, 99 A.3d 1195, cert. denied,
314 Conn. 937, A.3d (2014).
On appeal, the petitioner claims that the habeas court
erred in concluding that Falk did not render ineffective
assistance of counsel for his failure to raise on direct
appeal any claims pertaining to the trial court’s handling
of the jury note. The petitioner rehashes the argument
he presented before the habeas court that the trial
court’s handling of the jury note violated his constitu-
tional rights and, therefore, Falk’s inaction on direct
appeal was deficient and prejudicial. The habeas court
rejected that claim on its merits.28 The court found that
the petitioner presented no evidence regarding the
extent to which Falk considered the jury note or why
he chose not to claim on appeal that the trial court
improperly handled the jury note. Falk did not testify
at the habeas trial. Furthermore, citing its previous con-
clusion that the trial court’s errors regarding the jury
note did not prejudice the petitioner, the court could not
conclude that Falk’s failure to raise a claim pertaining to
the jury note on appeal prejudiced the petitioner. For
the foregoing reasons, the court concluded that Falk
did not render ineffective assistance of counsel.
We agree with the habeas court’s analysis of this
claim. The petitioner did not call Falk as a witness at
the habeas trial and presented no evidence to explain
Falk’s strategy on appeal. Therefore, the petitioner has
not met his burden to prove that Falk’s performance fell
below an objective standard of reasonableness under
these circumstances. Id. In addition, as we discussed
in part I E of this opinion, the petitioner was not preju-
diced by the trial court’s errors in its handling of the
jury note. Consequently, the petitioner has not met his
burden to prove that he would have prevailed on appeal
had Falk raised a claim concerning the jury note. Id.
For the foregoing reasons, we agree with the court
that the petitioner cannot prevail on this claim.
III
Finally, the petitioner claims that the court erred
in concluding that the trial court did not violate his
constitutional rights in its handling of the jury note, as
discussed in part I E of this opinion. Specifically, the
petitioner claims that the court erroneously performed
a harmless error analysis rather than a structural error
analysis in reviewing his claim. In the alternative, the
petitioner claims that the court erroneously concluded
that the trial court committed harmless error in its
handling of the jury note. The respondent asserts that
this court should not review the petitioner’s claim
because it was not properly raised before the habeas
court and it is procedurally defaulted. We agree with
the respondent and decline to review the petitioner’s
claim on the basis of our conclusion that it is procedur-
ally defaulted.
In its memorandum of decision, the habeas court
explicitly stated that this claim was procedurally
defaulted due to the petitioner’s failure to raise it on
direct appeal.29 The court rejected the petitioner’s argu-
ment that his failure to raise the issue on direct appeal
stemmed from the ineffectiveness of his trial and appel-
late counsel, citing its conclusions that neither Simon
nor Falk rendered ineffective assistance of counsel.
Consequently, the court concluded that the petitioner’s
claim was procedurally defaulted. Nonetheless, the
court proceeded to consider the claim on its merits,
finding that the trial court’s errors did not prejudice
the petitioner and were, therefore, harmless.
We agree with the habeas court that the petitioner’s
claim is procedurally defaulted due to his failure to
raise it on direct appeal and, therefore, we decline to
review it. For this court to review a claim that the
petitioner was required to raise on direct appeal but
failed to do so, ‘‘the petitioner must demonstrate good
cause for his failure to raise a claim at trial or on direct
appeal and actual prejudice resulting from the impropri-
ety claimed in the habeas petition. . . . [T]he cause
and prejudice test is designed to prevent full review of
issues in habeas corpus proceedings that counsel did
not raise at trial or on appeal for reasons of tactics,
inadvertence or ignorance.’’ (Emphasis omitted; inter-
nal quotation marks omitted.) Epps v. Commissioner
of Correction, 153 Conn. App. 729, 736–37, A.3d
(2014).
The petitioner argues that the ineffective assistance
of counsel rendered by Simon and Falk led to his failure
to raise his claim on appeal. Therefore, he claims that
he satisfied the ‘‘good cause and prejudice’’ test. We
disagree. As we previously determined in parts I E and
II of this opinion, the habeas court correctly determined
that the petitioner did not prove that Simon or Falk
rendered ineffective assistance of counsel on any
ground, including their failure to address the trial
court’s errors in its handling of the jury note. Conse-
quently, the petitioner cannot prove that he satisfied
the ‘‘good cause and prejudice test’’ in order to prevail
on his ineffective assistance of counsel claim. We, there-
fore, decline to review this claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The petitioner first filed a petition for a writ of habeas corpus on May
4, 2006. The petitioner then filed an amended petition for a writ of habeas
corpus on February 3, 2011. On April 25, 2011, the petitioner filed a motion
to amend his amended petition, which the court granted on May 9, 2011.
2
The petitioner amended his petition to raise allegations concerning the
trial court’s handling of the jury note as follows:
‘‘Trial counsel failed to file certain motions during the proceedings, includ-
ing a motion relating to the trial court’s sealing of a note drafted by the
jury. . . . Connecticut Practice Book § 42-49, which was in effect at the
time, mandated the trial court to articulate the ‘overriding interest’ which
required the seal of the document, which the trial court did not do. Trial
counsel failed to seek the articulation of, failed to ensure that there existed an
overriding interest to require the seal, and failed to argue that the petitioner’s
rights were violated, including those of due process.’’
These allegations were set forth in count one and incorporated into counts
two, three, and four.
3
Initially, the court explained that the jury note had been mismarked at
the habeas trial and, therefore, the court wanted to correct the record.
Without objection, the court ‘‘open[ed] up the factual record’’ and permitted
the petitioner to introduce the jury note as a full exhibit. This eventually
led to a discussion of the merits of the petitioner’s claims concerning the
jury note.
4
The court described the petitioner’s claim of ineffective assistance of
counsel to be a ‘‘broad attack on virtually everything trial counsel did or
did not do . . . .’’ The court did not address some of the petitioner’s allega-
tions in count one on the basis of its determination that the petitioner had
abandoned the allegations due to his failure to provide sufficient evidence
at trial and to brief the issues adequately. The petitioner does not raise any
claims in this regard before this court on appeal.
5
In his posttrial brief, the petitioner claimed that, in his direct appeal,
Falk rendered ineffective assistance of counsel for his failure to challenge
the trial court’s intent instruction regarding the murder charge and the trial
court’s handling of the jury note. The court questioned whether the petitioner
properly raised these claims in his amended petition or at the habeas trial.
In any event, the court considered the merits of the petitioner’s claims
because the respondent did not argue that the court was barred procedurally
from reviewing those claims.
6
The ‘‘Suspects’’ section of the report contained boxes to input informa-
tion regarding a criminal suspect’s sex, race, age, height, weight, hair color,
hair type, complexion, and other miscellaneous information.
7
Perez entered this information into a section of the report entitled ‘‘Inci-
dent Details,’’ wherein Perez summarized his actions and observations after
responding to the dispatch concerning the shooting.
8
At the habeas trial, Wightwood testified that he did not recall meeting
Perez or providing a description to him. The petitioner then showed Wight-
wood Perez’ report and asked if it refreshed his recollection as to whether
he gave a description to Perez shortly after the shooting, specifically refer-
encing the ‘‘Suspects’’ section of the report. In response, Wightwood replied,
‘‘[y]eah, I guess.’’ Wightwood then, upon the petitioner’s request, read the
information contained in the ‘‘Suspects’’ section into the record. The peti-
tioner did not ask Wightwood to confirm that the description in the ‘‘Sus-
pects’’ section came solely from him.
We acknowledge that the habeas court is ‘‘the sole arbiter of the credibility
of witnesses and the weight to be given to their testimony.’’ (Internal quota-
tion marks omitted.) Michael G. v. Commissioner of Correction, 153 Conn.
App. 556, 560, A.3d (2014). On the basis of the habeas court’s
conclusion that it is unclear whether Wightwood provided the description in
the ‘‘Suspects’’ section, we presume that the court did not credit Wightwood’s
equivocal testimony that potentially supported the proposition that Wight-
wood was the source of the description contained in the ‘‘Suspects’’ section.
9
The trial court transcript indicates that St. Pierre had testified: ‘‘It
appeared to me that he was drink, yes.’’ (Emphasis added.) The habeas
court surmised that the word ‘‘drink’’ was a scrivener’s error that instead
should have read ‘‘drunk.’’
The respondent subsequently filed a motion for rectification to modify
the record showing that St. Pierre had stated ‘‘drunk’’ in her testimony. The
habeas court granted the motion.
10
The court also rejected the petitioner’s argument that there was a signifi-
cant difference between a jury hearing St. Pierre’s testimony about Wight-
wood’s intoxicated state, and seeing the written statement in St. Pierre’s
request. In support of his claim, the petitioner cited a decision of the United
States Court of Appeals for the Ninth Circuit, Hart v. Gomez, 174 F.3d 1067,
1069–70 (9th Cir.), cert. denied, 528 U.S. 929, 120 S. Ct. 326, 145 L. Ed. 2d
254 (1999), wherein the court held that trial counsel was ineffective for not
offering into evidence documents that would corroborate a key defense
witness’ testimony. The habeas court distinguished Hart, noting that the
evidence in Hart buttressed the defense witness’ testimony while undermin-
ing a state’s witness’ testimony on a critical issue in the case. In contrast,
the court found that St. Pierre’s request did not serve a similar purpose in
this case because St. Pierre acknowledged the contents of the request and,
therefore, no corroboration was required.
11
The court rejected a separate claim made by the petitioner that Simon
should have introduced St. Pierre’s document to challenge the conclusion,
as being based on bias, that the petitioner’s fingerprints were located on
the victim’s truck. That claim is wholly distinct from the claim that the
petitioner raises here.
12
The petitioner argued before the habeas court that Simon should have
introduced the testimony of two other individuals who were located by the
police near the scene of the shooting, Greg Evans and Anthony Bennefield.
The court concluded that Simon did not render ineffective assistance of
counsel for his failure to offer the testimony of Evans, Bennefield, or Williams
to establish a third party culpability defense. In his brief, the petitioner
focuses his claim on the court’s conclusion regarding Williams. He states,
without analysis, that Evans was available to testify at the criminal trial,
but does not address the court’s conclusions that Evans’ testimony would
not have provided exculpatory evidence at trial. To the extent that the
petitioner raises the claim that Simon provided ineffective assistance of
counsel for failing to call Evans as a witness, we decline to review it due
to the petitioner’s failure to brief the claim adequately. See Saunders v.
Commissioner of Correction, 137 Conn. App. 493, 512 n.5, 48 A.3d 728, cert.
denied, 307 Conn. 920, 54 A.3d 182 (2012). Likewise, the petitioner states,
without analysis, that Simon would have discovered exculpatory evidence
by locating and interviewing Bennefield without discussing the court’s con-
clusions that the petitioner presented no evidence showing Simon could
have located Bennefield prior to the criminal trial and that Bennefield would
have provided Simon with favorable information. To the extent that the
petitioner raises the claim that Simon provided ineffective assistance of
counsel for failing to call Bennefield as a witness, we decline to review it
due to the petitioner’s failure to brief the claim adequately. See id.
Furthermore, the petitioner appears to claim, for the first time on appeal,
that Simon should have offered the testimony of certain officers who wit-
nessed Bennefield acting ‘‘suspiciously’’ to establish a third party culpability
defense. We decline to review this claim because the petitioner raised it for
the first time on appeal; see Hedge v. Commissioner of Correction, 152
Conn. App. 44, 59, 97 A.3d 45 (2014); and because the claim was not addressed
by the habeas court in its memorandum of decision. See Henderson v.
Commissioner of Correction, supra, 129 Conn. App. 198 (‘‘[a] reviewing
court will not consider claims not raised in the habeas petition or decided
by the habeas court’’).
13
The court further supported its conclusion by finding that Hunt located
Williams in 2002 only after performing numerous Internet searches and
interviewing multiple individuals, and that another investigator, Gerald
O’Donnell, had difficulty in serving Williams with a subpoena to testify at
the habeas trial in 2011. The petitioner initially claimed that Williams was
unavailable to testify at the habeas trial, calling O’Donnell as a witness to
prove Williams’ unavailability. Williams ultimately appeared to testify three
weeks after the petitioner argued that he was unavailable. The court deter-
mined that the petitioner’s own difficulties in finding and introducing Wil-
liams at the habeas trial undermined the petitioner’s argument that it was
reasonable to infer that Williams was available to Simon between 1995
and 1997.
14
The court also suggested that Williams’ willingness to testify regarding
Bennefield may have been influenced by Bennefield’s death, considering
that Williams appeared willing to discuss his suspicions about Bennefield
only after Bennefield’s death. The court noted that the petitioner offered
no evidence suggesting that Williams would have cooperated and testified
as to his suspicions concerning Bennefield while Bennefield was alive.
15
Cole indicated that studies directly undermining Zercie’s opinion existed
in 1997, but he did not identify those studies, and the petitioner did not
introduce any articles into evidence other than the four articles concerning
the age of fingerprints.
16
The petitioner, without analysis, claims that Simon failed to introduce
St. Pierre’s ‘‘Request For Examination of Physical Evidence,’’ as discussed
in parts I A and B of this opinion, to ‘‘raise bias’’ in the forensic finding that
the petitioner’s fingerprints were located on the victim’s truck. The habeas
court rejected this claim, noting that Kaatz testified that he would have
admitted that the petitioner’s fingerprints were located on the victim’s truck.
Furthermore, the court questioned how Simon could have challenged, in
good faith, the assertion that the petitioner’s fingerprints were located on
the victim’s truck when the expert he consulted with confirmed that claim.
The petitioner failed to address the court’s analysis in his appellate briefs. To
the extent that the petitioner raises the claim that Simon provided ineffective
assistance of counsel for failing to introduce St. Pierre’s document to raise
bias in the forensic finding that the petitioner’s fingerprints were located
on the victim’s truck, we decline to review it due to the petitioner’s failure
to brief the claim adequately. See Saunders v. Commissioner of Correction,
137 Conn. App. 493, 512 n.5, 48 A.3d 728, cert. denied, 307 Conn. 920, 54
A.3d 182 (2012).
17
According to the habeas court, the jury did not commence deliberations
on its first day of deliberations until late in the day, after hearing closing
arguments and jury instructions. The jury spent the majority of its second
day of deliberations discussing various prior jury notes with the court and
hearing playbacks of testimony and instructions. After hearing the playbacks,
the jury deliberated for approximately four hours before submitting the note
at issue on appeal, which the foreperson signed at 11:50 a.m. on the morning
of the third day of deliberations.
18
Practice Book § 42-49 was formerly § 895 in 1997, the year of the petition-
er’s criminal trial. Section 895 provided in relevant part: ‘‘(b) . . . [T]he
judicial authority . . . may order that files, affidavits, documents or other
materials on file with the court or filed in connection with a court proceeding
be sealed . . . if the judicial authority concludes that such order is neces-
sary to preserve an interest which is determined to override the public’s
interest . . . in viewing such materials. . . .
‘‘(c) In connection with any order issued pursuant to paragraph (b) of
this rule, the judicial authority shall, on the record in open court, articulate
the overriding interest being protected and shall specify its findings underly-
ing such order. . . .’’
19
Practice Book § 42-7 was formerly § 845 in 1997, the year of the petition-
er’s criminal trial. Section 845 provided: ‘‘All communications from the jury
to the judicial authority shall be in writing. The judicial authority shall
require that a record be kept of all communications received by him from
a juror or the jury after the jury have been sworn, and he shall not communi-
cate with a juror or the jury on any aspect of the case itself, as distinguished
from matters relating to physical comforts and the like, except after notice
to all parties and reasonable opportunity for them to be present.’’
20
A Chip Smith charge provides guidance to a deadlocked jury in reaching
a verdict. See State v. O’Neil, 261 Conn. 49, 74–75, 801 A.2d 730 (2002).
Our Supreme Court has adopted the following language for Chip Smith
charges: ‘‘The instructions that I shall give you now are only to provide you
with additional information so that you may return to your deliberations
and see whether you can arrive at a verdict.
‘‘Along these lines, I would like to state the following to you. The verdict
to which each of you agrees must express your own conclusion and not
merely the acquiescence in the conclusion of your fellow jurors. Yet, in
order to bring your minds to a unanimous result, you should consider the
question you have to decide not only carefully but also with due regard and
deference to the opinions of each other.
‘‘In conferring together, you ought to pay proper respect to each other’s
opinions and listen with an open mind to each other’s arguments. If the
much greater number of you reach a certain conclusion, dissenting jurors
should consider whether their opinion is a reasonable one when the evidence
does not lend itself to a similar result in the minds of so many of you who
are equally honest and equally intelligent, who have heard the same evidence
with an equal desire to arrive at the truth and under the sanctions of the
same oath.
‘‘But please remember this. Do not ever change your mind just because
other jurors see things differently or to get the case over with. As I told
you before, in the end, your vote must be exactly that—your own vote. As
important as it is for you to reach a unanimous agreement, it is just as
important that you do so honestly and in good conscience.
‘‘What I have said to you is not intended to rush you into agreeing on a
verdict. Take as much time as you need to discuss the matter. There is no
need to hurry.’’ (Emphasis omitted.) Id.
21
This was the third note that the court received indicating a deadlock,
though it is unclear whether the court revealed the contents of the previous
notes to counsel or conferred with counsel in its responses to the previous
notes. People v. O’Rama, supra, 78 N.Y.2d 274–75. On appeal, the defendant
challenged the court’s handling of only the third note. Id., 276.
22
See Allen v. United States, 164 U.S. 492, 501–502, 17 S. Ct. 154, 41 L.
Ed. 528 (1896). An Allen charge, like a Chip Smith charge, provides guidance
to a deadlocked jury and is generally used in federal courts. State v. Felici-
ano, 256 Conn. 429, 431 n.3, 778 A.2d 812 (2001). The court in O’Rama also
administered an Allen charge in response to the second note it received
indicating that the jury was deadlocked. People v. O’Rama, supra, 78
N.Y.2d 275.
23
Section 310.30 of the Consolidated Laws of New York provides: ‘‘At any
time during its deliberation, the jury may request the court for further
instruction or information with respect to the law, with respect to the content
or substance of any trial evidence, or with respect to any other matter
pertinent to the jury’s consideration of the case. Upon such a request, the
court must direct that the jury be returned to the courtroom and, after
notice to both the people and counsel for the defendant, and in the presence
of the defendant, must give such requested information or instruction as
the court deems proper. With the consent of the parties and upon the request
of the jury for further instruction with respect to a statute, the court may
also give to the jury copies of the text of any statute which, in its discretion,
the court deems proper.’’ N.Y. Crim. Proc. L. § 310.30 (McKinney 2002).
24
The petitioner also argued that Simon’s failure to object to the trial
court’s handling of the note compounded an allegedly defective charge the
trial court provided to the jury regarding the intent element of murder. The
court rejected this argument, and the petitioner does not challenge that
ruling on appeal before this court.
25
In fact, the trial court suggested that it would have provided the jury
with a Chip Smith charge if further deliberations did not yield any progress.
After directing the jury to continue deliberating solely on the murder charge,
the court stated the following: ‘‘If you remain in disagreement on the charge
of murder after further deliberations, let us know in the same manner with
simply a note to the effect that you are in disagreement on the first count,
and we will bring you back into court for further instructions.’’ (Empha-
sis added.)
26
We turn to federal case law for guidance in resolving this issue involving
the petitioner’s constitutional rights because our review of Connecticut case
law has failed to uncover cases wherein our courts have reviewed analogous
errors committed by trial courts in their handling of jury notes.
27
The habeas court also rejected the petitioner’s claim that Falk rendered
ineffective assistance of counsel for failing to challenge on appeal the trial
court’s instruction on the intent element of murder. The petitioner is not
challenging on appeal that portion of the court’s decision.
28
The habeas court initially questioned whether the petitioner properly
raised this claim before it. The court stated that the petitioner made ‘‘conclu-
sory assertions’’ in his petition that Falk’s performance was deficient and
prejudicial. The court further asserted that the petitioner performed a ‘‘per-
functory’’ analysis of this claim in his posttrial brief, which, according to
the court, was the first time he specifically claimed that Falk rendered
ineffective assistance of counsel for failing to address the jury note on
appeal. Nonetheless, the court reached the merits of the petitioner’s claim
on the ground that the respondent failed to argue that the court was procedur-
ally barred from reviewing the claim.
The respondent claims that this court should not review the petitioner’s
claim on its merits on the basis of the habeas court’s conclusions that the
petitioner failed to raise it in his amended petition or at the habeas trial.
Upon our review of the petitioner’s amended petition, we conclude that the
petitioner adequately raised this claim in his amended petition and we,
therefore, review the court’s ruling in relation to that claim on its merits.
29
The habeas court also determined that the petitioner’s claim that the
trial court committed constitutional error by providing an allegedly defective
charge to the jury regarding the intent element of murder was procedurally
defaulted on the same basis. The petitioner did not raise before this court
any claim pertaining to any alleged errors committed by the trial court in
relation to that charge.
In addition, the court concluded that the petitioner failed to set forth the
claim that the trial court committed constitutional error by its handling of
the jury note in his amended petition. We do not address that determination
on the basis of our conclusion that the petitioner’s claim was procedur-
ally defaulted.