Outing v. Commissioner of Correction

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J’VEIL OUTING v. COMMISSIONER
OF CORRECTION
(AC 41224)
Lavine, Moll and Bishop, Js.
Syllabus
The petitioner, who had been convicted of murder in connection with the
shooting death of the victim, sought a writ of habeas corpus, claiming,
inter alia, that his trial counsel and appellate counsel had rendered
ineffective assistance. The petitioner alleged, inter alia, that his trial
counsel improperly failed to present an alibi defense and to rebut the
testimony of N and R, who had given statements to the police indicating
that they had seen the petitioner shoot the victim and had identified
him from police photographic arrays. The petitioner further alleged that
his trial counsel improperly failed to obtain a ruling from the trial court
as to the admissibility at trial of certain testimony by his expert witness,
D, concerning the reliability of witness identifications. D’s proffered
testimony had been excluded during a previous hearing on the petition-
er’s unsuccessful motion to suppress the identification evidence of N
and R after they had recanted their statements to the police and their
identifications of the defendant, which they claimed were the result of
police coercion. After N and R disavowed their statements to the police,
the petitioner’s trial counsel decided not to present D’s testimony at
trial on mistaken identity and changed her approach to the case from
one of mistaken identification to a claim of police coercion. The habeas
court concluded that the petitioner had failed to establish deficient
performance or prejudice with respect to his claims of ineffective assis-
tance of trial or appellate counsel. The habeas court thereafter rendered
judgment denying the petitioner’s habeas petition, from which the peti-
tioner, on the granting of certification, appealed to this court. Held:
1. The habeas court properly determined that the petitioner’s trial counsel
did not render ineffective assistance:
a. There was ample support for the habeas court’s conclusion that trial
counsel’s decision not to present an alibi defense was not constitution-
ally deficient; trial counsel testified that she was concerned that pre-
senting an alibi defense could do more harm than good, as the purported
alibi witnesses placed the petitioner in the vicinity of his home, which
was approximately one mile from the murder scene, at various times
during the early evening of the murder, their testimonies were inconsis-
tent and varied as to the times that they saw the petitioner and as to
their descriptions of him, and many of the witnesses conceded that they
could not account for the petitioner’s whereabouts throughout the entire
time period during which the events at issue occurred.
b. Trial counsel was not ineffective in deciding to forgo additional investi-
gation and rebuttal of the eyewitness statements of N and R, and to
forgo D’s testimony at trial on the issue of misidentification: the record
reflected that part of trial counsel’s third-party culpability theory was
to establish that the statements to the police that were made by N and
R were the product of police coercion, her cross-examination of N and
R advanced that theory, and although additional investigation into the
statements by N and R may have shed more light on their credibility,
the evidence in the record did not support a conclusion that trial coun-
sel’s failure to conduct that additional investigation was unreasonable;
moreover, the record was clear that trial counsel’s decision not to call
D as an expert witness at trial was based on concern that doing so
would have potentially detracted from the petitioner’s coercion defense
and, thus, was a reasonable tactical choice under the circumstances.
c. Trial counsel did not perform deficiently by not preserving for appel-
late review a claim related to the trial court’s exclusion of D’s testimony
regarding factors concerning eyewitness identifications; because trial
counsel already reasonably determined not to present D’s testimony at
the petitioner’s criminal trial, she would have had no strategic reason
to preserve the court’s exclusion of evidence on a matter that she
reasonably believed had been rendered moot by her tactical choice not
to pursue a theory of mistaken identification, at the time of the criminal
trial, decisional law did not permit expert testimony on the subjects for
which trial counsel initially sought to present D’s testimony, and to
impose on counsel the duty to foretell what tack the Supreme Court
would take on that subject would represent the height of post hoc
reasoning, which is not the task of a court on habeas review.
2. The petitioner could not prevail on his claim that his appellate counsel
was ineffective in failing to claim, in his direct appeal, that the trial
court incorrectly denied the petitioner’s request to present surrebuttal
evidence; appellate counsel made a reasonable, strategic decision not to
raise the surrebuttal issue, which fell within the wide range of reasonable
professional assistance, and a court will not second-guess an appellate
counsel’s tactical decision to limit the claims briefed to those that he
or she reasonably viewed as most critical to the appeal.
3. The petitioner’s assertion that the habeas court incorrectly determined
that he did not prove his claim of actual innocence was unavailing, that
court having aptly concluded that the mosaic of evidence presented by
the petitioner did not constitute affirmative proof of actual innocence,
as it did not tend to establish, in relation to the other evidence in the
case, that he could not have committed the crime.
Argued March 14—officially released June 11, 2019
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Oliver, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court; there-
after, the court, Oliver, J., granted the petitioner’s
motion for rectification. Affirmed.
David R. Kritzman, assigned counsel, with whom,
on the brief, was Joshua C. Shulman, assigned counsel,
for the appellant (petitioner).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were, Patrick J. Griffin, state’s
attorney, and Adrienne Russo, deputy assistant state’s
attorney, for the appellee (respondent).
Opinion
BISHOP, J. The petitioner, J’Veil Outing, appeals from
the judgment of the habeas court denying his petition
for a writ of habeas corpus. On appeal, the petitioner
claims that the habeas court erred in concluding that
his trial counsel had not provided ineffective assistance
in failing (1) to properly investigate and present an
alibi defense, (2) to properly investigate and rebut the
testimony of the eyewitnesses to the murder at issue,
and (3) to adequately preserve an issue regarding expert
testimony on eyewitness identification. The petitioner
also claims that the court erred in concluding that his
appellate counsel was not ineffective for failing to raise
the issue, on direct appeal, of the trial court’s refusal
to permit surrebuttal evidence. Finally, the petitioner
claims that the court incorrectly determined that he
had not met his burden of proof regarding his claim
of actual innocence. We affirm the judgment of the
habeas court.
The record reveals that, after a jury trial, the peti-
tioner was convicted on March 20, 2006, of murder in
violation of General Statutes § 53a-54a. Thereafter, the
petitioner was sentenced to fifty years of imprisonment.
The petitioner’s conviction was affirmed on direct
appeal. State v. Outing, 298 Conn. 34, 86, 3 A.3d 1
(2010), cert. denied, 562 U.S. 1225, 131 S. Ct. 1479, 179
L. Ed. 2d 316 (2011).1 In that appeal, our Supreme Court
recited the following underlying facts that the jury rea-
sonably could have found:
‘‘At approximately 6:50 p.m. on June 23, 2005, Nadine
Crimley was walking in a northerly direction on Canal
Street in New Haven, pushing her infant son in a stroller.
To her left, she saw her brother, Ray Caple, standing
on the porch of her residence at 150 Canal Street. As
Crimley walked up the street, she saw the [petitioner],
whom she previously had seen in the neighborhood,
pass her on his bicycle. Another unidentified man rode
a bicycle in front of the [petitioner]. Crimley then turned
her attention back to her son. When she heard a series of
popping noises, she looked up and saw the [petitioner],
who was about ten feet away from her, firing a gun at
the victim, Kevin Wright. The victim fell to the ground,
and the [petitioner] ran from the scene.
‘‘Caple, who had gone to high school with the [peti-
tioner] and had known him for three and one-half years,
also watched the [petitioner] as he rode his bicycle up
Canal Street. As Caple watched, the [petitioner] moved
his right hand toward his waist. Caple believed that the
[petitioner] was reaching for a gun and was going to
shoot him, but decided against doing so because Caple
was holding his two year old daughter. Caple’s mother
and the victim were inside the residence at 150 Canal
Street. Just after the [petitioner] passed the residence
on his bicycle, the victim exited through the back door
of the residence, retrieved his bicycle from the backyard
and walked with it in an easterly direction on Gregory
Street toward its intersection with Canal Street. As
Caple stood on the porch, he heard a gunshot and the
sound of a bicycle falling to the ground. When he looked
around the corner of the porch, he observed Crimley
and her son standing very close to the [petitioner], and
he also saw the [petitioner], who had dismounted from
his bicycle, fire three more shots at the victim. The
[petitioner] then ran away, leaving his bicycle in the
street. Caple ran to the victim, who was unresponsive.
The victim died from a single gunshot wound to the
chest.
‘‘Shortly, after 10 p.m. on the day of the shooting,
Crimley gave a statement to the New Haven police in
which she indicated that she had been able to get a
good look at the shooter and would be able to identify
him. On June 27, 2005, four days after the shooting,
Stephen Coppola, a New Haven police detective, inter-
viewed Crimley and presented her with an array of eight
photographs, including one of the [petitioner]. Crimley
identified the [petitioner] as the shooter and signed and
dated the photographic array. Coppola tape-recorded
his interview of Crimley. On the same day, Coppola
also tape-recorded a statement from Caple and pre-
sented him with a second photographic array. Caple
also identified the [petitioner] as the shooter and signed
and dated the photographic array.
‘‘Prior to trial, both Caple and Crimley recanted their
statements to the police and their identifications of the
[petitioner], claiming that they had been pressured by
the police into giving the statements and making the
identifications. Thereafter, the [petitioner] filed
motions to suppress the identification evidence, claim-
ing that the evidence was unreliable and the product
of an unnecessarily suggestive police identification pro-
cedure. At a hearing on the [petitioner’s] motions, both
Crimley and Caple testified that they did not know who
had killed the victim, that they had been pressured by
the police to give false statements about the events
surrounding the shooting, and that the police had pres-
sured them to falsely identify the [petitioner] as the
shooter. Crimley and Caple acknowledged that they
were extremely frightened about being called as wit-
nesses for the state and identifying the [petitioner] as
the shooter. Coppola and Alfonso Vasquez, a New
Haven police detective who had been present during
Coppola’s interviews of Crimley and Caple, testified
that each of the witnesses had identified the [petitioner]
as the shooter by selecting the [petitioner’s] photograph
from the photographic array spontaneously and without
hesitation. The two detectives unequivocally denied
that they had pressured or influenced either Crimley
or Caple in any way.
‘‘At the conclusion of the detectives’ testimony, the
state maintained that the tape-recorded statements that
Crimley and Caple had given to the police met the
requirements for admissibility set forth in State v.
Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied,
479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).
The trial court found that the testimony of Crimley
and Caple that they had been pressured to give false
statements and to falsely identify the [petitioner] as the
shooter was not credible. The court further concluded
that the statements that they had given to the police
met the Whelan admissibility requirements for purposes
of the suppression hearing.
‘‘Thereafter, at a continuation of the suppression
hearing, the [petitioner] made an offer of proof regard-
ing the testimony of his expert witness, Jennifer Dysart,
concerning the reliability of eyewitness identifications.
The state objected to the testimony, and the court sus-
tained in part and overruled in part the state’s objection
to Dysart’s proffered testimony. Dysart thereafter
offered her opinion that the identification procedures
used generally were not reliable. The trial court there-
after denied the [petitioner’s] motions to suppress the
photographic identifications that had been made of the
[petitioner] by Crimley and Caple.
‘‘At trial, Crimley and Caple testified that the police
had pressured them to give false statements and to
falsely identify the [petitioner] as the shooter. They
further testified that the [petitioner] definitely was not
the shooter and that they did not know who had shot
the victim. Upon the state’s motion pursuant to Whelan,
the trial court admitted redacted tape recordings of the
statements Crimley and Caple had given to the police
as prior inconsistent statements. The trial court also
admitted as exhibits copies of the photographic arrays
that Crimley and Caple had signed and dated. The [peti-
tioner] did not call Dysart as a witness at trial.
‘‘Thereafter, the jury found the [petitioner] guilty of
murder, and the trial court rendered judgment in accor-
dance with the verdict, sentencing the [petitioner] to a
term of imprisonment of fifty years.’’ (Footnotes omit-
ted.) Id., 38–41.
After our Supreme Court affirmed his conviction, the
petitioner filed a petition for a writ of habeas corpus
dated October 5, 2010. The matter was tried on the
petitioner’s fifth amended petition, dated February 26,
2015, in which he set forth claims of ineffective assis-
tance of trial and appellate counsel, a due process claim
regarding the presentation of evidence at trial, and a
claim of actual innocence.2 The hearing on this matter
before the habeas court, Oliver, J., began on March
21, 2016, and continued intermittently for eight days,
concluding on November 22, 2016. Following the receipt
of posttrial briefs, the court issued its memorandum of
decision on November 20, 2017, denying the petition.3
In denying the petition, the habeas court concluded that
the petitioner had not met his burden of establishing
either deficient performance or prejudice with respect
to several of his ineffective assistance of trial counsel
claims, including the claims that his trial counsel failed
to properly investigate and to present an alibi defense,
to investigate and to rebut the testimony of the state’s
eyewitnesses, and to preserve the record concerning
the trial testimony of an expert witness on witness
identifications. The court further concluded that the
petitioner failed to sustain his burden of establishing
deficient performance or prejudice with respect to his
ineffective assistance of appellate counsel claim, and
that the petitioner failed to establish his actual inno-
cence. The court deemed the remainder of the petition-
er’s ineffective assistance of trial and appellate counsel
claims to be abandoned on the basis of the petitioner’s
failure to address them in his posttrial brief. The court
granted the petitioner’s petition for certification to
appeal, and this appeal followed.4 Additional facts and
procedural history will be set forth as necessary.
I
The petitioner raises three claims that his trial coun-
sel rendered ineffective assistance. Before addressing
each claim, we set forth the relevant legal principles
and our well settled standard of review governing inef-
fective assistance of counsel claims. ‘‘In a habeas
appeal, this court cannot disturb the underlying facts
found by the habeas court unless they are clearly erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary.’’ (Internal quotation marks omitted.)
Mukhtaar v. Commissioner of Correction, 158 Conn.
App. 431, 437, 119 A.3d 607 (2015); see also Buie v.
Commissioner of Correction, 187 Conn. App. 414, 417,
202 A.3d 453, cert. denied, 331 Conn. 905, 202 A.3d
373 (2019).
‘‘In Strickland v. Washington, [466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States
Supreme Court established that for a petitioner to pre-
vail on a claim of ineffective assistance of counsel, he
must show that counsel’s assistance was so defective
as to require reversal of [the] conviction. . . . That
requires the petitioner to show (1) that counsel’s perfor-
mance was deficient and (2) that the deficient perfor-
mance prejudiced the defense. . . . Unless a
[petitioner] makes both showings, it cannot be said that
the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
. . .
‘‘To prove that his counsel’s performance was defi-
cient, the petitioner must demonstrate that trial coun-
sel’s representation fell below an objective standard of
reasonableness. . . . Competent representation is not
to be equated with perfection. The constitution guaran-
tees only a fair trial and a competent attorney; it does
not ensure that every conceivable constitutional claim
will be recognized and raised. . . . A fair assessment
of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties inher-
ent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance;
that is, the [petitioner] must overcome the presumption
that, under the circumstances, the challenged action
might be considered sound trial strategy. . . . [C]oun-
sel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exer-
cise of reasonable professional judgment.’’ (Emphasis
added; internal quotation marks omitted.) Moye v. Com-
missioner of Correction, 168 Conn. App. 207, 217–18,
145 A.3d 362 (2016), cert. denied, 324 Conn. 905, 153
A.3d 653 (2017).
‘‘With respect to the prejudice component of the
Strickland test, the petitioner must demonstrate that
counsel’s errors were so serious as to deprive the [peti-
tioner] of a fair trial, a trial whose result is reliable.
. . . It is not enough for the [petitioner] to show that
the errors had some conceivable effect on the outcome
of the proceedings. . . . Rather, [t]he [petitioner] must
show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. . . . A reason-
able probability is a probability sufficient to undermine
confidence in the outcome.’’ (Citation omitted; internal
quotation marks omitted.) Mukhtaar v. Commissioner
of Correction, supra, 158 Conn. App. 438; Holloway v.
Commissioner of Correction, 145 Conn. App. 353, 365,
77 A.3d 777 (2013).
Finally, ‘‘there is no reason for a court deciding an
ineffective assistance claim to approach the inquiry in
the same order or even to address both components
of the inquiry if the defendant makes an insufficient
showing on one. In particular, a court need not deter-
mine whether counsel’s performance was deficient
before examining the prejudice suffered by the defen-
dant as a result of the alleged deficiencies. The object
of an ineffectiveness claim is not to grade counsel’s
performance. If it is easier to dispose of an ineffec-
tiveness claim on the ground of lack of sufficient preju-
dice . . . that course should be followed.’’ Strickland
v. Washington, supra, 466 U.S. 697. Guided by these
principles, we turn to the specific claims made by
the petitioner.
A
We first turn to the petitioner’s claim that his trial
counsel failed to properly investigate and to present an
alibi defense. The following additional information is
relevant to our discussion of this claim. The record
reflects that on June 23, 2005, the New Haven police
received a telephone call regarding a shooting at 6:55
p.m. on Canal Street in New Haven, a separate call
regarding a street fight in the neighborhood of the peti-
tioner’s residence at 7:10 p.m., and another call relating
to the fight at 7:23 p.m. The record reflects, as well,
that the police received a call at 7:57 p.m. regarding a
scooter chase. At the time, the petitioner lived at 24
Harding Place in New Haven.
During the habeas hearing, the petitioner presented
the testimony of then Attorney Auden C. Grogins,5 who
had represented the petitioner in the underlying crimi-
nal trial. Grogins testified that, although she had investi-
gated the potential alibi defense and that either she or
an investigator retained by her had reached out to some
of the alibi witnesses identified by the petitioner, she
had ultimately concluded that an alibi defense was not
strong and that presenting such a defense could, in fact,
be harmful to the petitioner at trial. Grogins’ reasoning
in that regard was multifaceted. She stated that she had
considered the quality of the alibi witnesses and the
fact that all of them were either family members or
close friends with the petitioner’s family. She also had
considered that, although all of the alibi witnesses saw
the petitioner on the street near his home during the
day of the murder, none of them could pinpoint the
petitioner’s whereabouts at the time of the shooting.
She further indicated that sightings of the petitioner
shortly after the murder at locations less than one mile
from the murder scene would have not only been
unhelpful to the petitioner, but would, in fact, have
placed him in the vicinity of the crime.
Grogins testified, as well, that her determination not
to present an alibi defense was informed by her knowl-
edge that the petitioner initially had stated to the police
when he was arrested that he did not recall where he
was at the time of the murder, but had then provided
a list of alibi witnesses the next morning, facts she
believed would have undercut any alibi testimony.
Finally, in regard to an alibi defense, she indicated that
presenting such a defense could have detracted from a
third-party culpability defense, which she had believed
was stronger. Grogins further testified that she had
ultimately concluded, on the basis of her experience
as a trial attorney, that the presentation of an incom-
plete alibi defense, bolstered only by friends and rela-
tives of the accused, often undermines the defendant’s
defense in a murder trial.
Evidence also was presented at the habeas hearing
that the petitioner had given Grogins a list of potential
alibi witnesses and that he had asked her to present
an alibi defense. In particular, the petitioner presented
several witnesses at the habeas hearing who claimed
to have seen the petitioner in his neighborhood close
to the time the shooting occurred. Nakia Black-Geter,
a close friend of the petitioner’s sister, testified that
the petitioner was present when she had arrived at his
home between 5 p.m. and 6 p.m. She testified, as well,
that the petitioner had been present during the fight,
although she could not say whether he was there for
the entire time. Finally, she could not recall whether
the petitioner was riding a bicycle when she had seen
him in the vicinity of the fight.
Additionally, Antjuan Martin, the petitioner’s cousin,
agreed with defense counsel that he had started ‘‘hang-
ing out’’ with the petitioner at 11 a.m. on the day in
question and that he had seen the petitioner riding
around on a mountain bicycle during the fight. He indi-
cated, as well, that the petitioner had been out of his
sight for approximately ten minutes while the petitioner
rode his bicycle to Moe’s Market before the fight
started.6 Martin had no recollection of the clothes that
the petitioner had been wearing or the color of the
bicycle that he had been riding. Dijon Wiggins, who
lived across the street from the petitioner’s home, also
testified that he had observed the petitioner at the fight
and later during the scooter chase. Wiggins recalled
that the petitioner had been riding on a mountain bicy-
cle, but he did not recall whether the petitioner had
been on the bike before the fight began.
Furthermore, Natasha Outing, the petitioner’s sister,
testified that she arrived home from work between 5
p.m. and 5:30 p.m. She indicated that the petitioner had
been present for the fight and had been riding a ten
speed bicycle up and down the street, although she
conceded that she had not seen the petitioner the entire
time. She recalled that the petitioner had been wearing
a blue dickey7 shirt, jeans, and a baseball cap. She indi-
cated, as well, that kids in the neighborhood had been
in the habit of sharing bicycles.
Finally, Eric Williams, a cousin of both the petitioner
and the victim, indicated that he had a close relationship
with the petitioner and testified that the petitioner had
been present at the beginning of the fight. Williams also
testified that the petitioner was in Moe’s Market when
Williams’ mother had called to tell him about the shoot-
ing. Williams recalled that the petitioner had been wear-
ing a dickey shirt, but no hat, during the fight, that the
petitioner had been riding either a mountain bicycle or
a ‘‘baja’’ bicycle, and that he had not seen the petitioner
on the bicycle during the fight. He also indicated that
he had not been with the petitioner prior to the time
he witnessed the petitioner watching the fight.
The petitioner also presented evidence from Donald
Light, a private investigator retained by Grogins, and
Mike Udvardi, a private investigator retained by habeas
counsel. Light testified that he had attempted, with vary-
ing success, to contact the alibi witnesses whose names
had been given to him by Grogins. He testified, as well,
that he had operated without substantial direction from
Grogins and had free rein to follow leads as they devel-
oped. Udvardi testified that the fight and scooter chase
had occurred ‘‘at or about presumably the time of the
shooting . . . .’’ Specifically, he testified that, after his
own investigation, he had been able to determine that
calls were made to the New Haven Police Department
at 7:10 p.m. and 7:23 p.m. regarding the fight, and that
the dispatch time for the scooter chase was approxi-
mately 8 p.m. Udvardi indicated, as well, that his review
of Grogins’ trial file revealed no police reports or other
records indicating an effort on Grogins’ part to ascertain
the timing of these events.
In assessing the petitioner’s alibi witness claim, the
habeas court concluded that the petitioner failed to
meet his burden of proof both as to ineffectiveness and
prejudice. The court concluded that Grogins’ decision
not to present an alibi defense was a matter of trial
strategy and that her strategy was both well considered
and reasonable. The court concluded, as well, that even
if Grogins’ trial strategy had been deficient, the peti-
tioner failed to demonstrate that he was prejudiced by
Grogins’ decision not to present an alibi defense
because the testimony of alibi witnesses would not, in
fact, have exculpated the petitioner. The court reasoned
that the timing of the murder and the locations where
the petitioner was sighted within the time frame
reflected in the record would have allowed the peti-
tioner to commit the murder and return to his neighbor-
hood in time to have been observed by the alibi
witnesses that he presented.
On the basis of our careful review of the record, we
find ample support for the habeas court’s conclusion
that the petitioner failed to prove that Grogins provided
ineffective assistance in failing to pursue and to present
an alibi defense. Our Supreme Court has acknowledged
‘‘that counsel need not track down each and every lead
or personally investigate every evidentiary possibility
before choosing a defense and developing it. . . . [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.
. . . [Particularly] [w]hen the failure to call a witness
implicates an alibi defense, an alibi witness’ testimony
has been found unhelpful and defense counsel’s actions
have been found reasonable when the proffered wit-
nesses would fail to account sufficiently for a defen-
dant’s location during the time or period in question
. . . .’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) Johnson v. Commissioner
of Correction, 330 Conn. 520, 548–49, 198 A.3d 52 (2019).
In Johnson, our Supreme Court discussed whether
trial counsel’s failure to present an alibi witness in that
case constituted ineffective assistance. Although the
underlying facts are, of course, not identical, the reason-
ing of the court in Johnson on this issue is instructive.
The court indicated that ‘‘counsel testified to a variety
of strategic reasons for [her] decision not to present
an alibi defense,’’ and that it was ‘‘required to indulge
[in the] strong presumption that counsel made all signif-
icant decisions in the exercise of reasonable profes-
sional judgment.’’ (Internal quotation marks omitted.)
Id., 550. The court noted the significance of trial coun-
sel’s reasoning for not presenting the alibi defense, par-
ticularly, the fact that ‘‘the alibi witnesses were family,
the alibi placed the petitioner in close proximity to the
crime scene, and the alibi witnesses testified that the
petitioner was home but not within their line of sight.’’
Id., 552. The court concluded that ‘‘counsel made a
reasonable strategic decision because the proffered wit-
nesses would [have] fail[ed] to account sufficiently for
[the petitioner’s] location during the time or period in
question . . . .’’ (Internal quotation marks omitted.)
Id., 554. The court concluded, as well, that ‘‘[e]ven if
there [was] some showing that the [alibi] testimony
would have been helpful in establishing the asserted
[alibi] defense . . . defense counsel made a strategic
decision that presenting an alibi defense had the poten-
tial to be more harmful than helpful to the petitioner’s
case.’’ (Citation omitted; internal quotation marks omit-
ted.) Id.
In the matter at hand, Grogins repeatedly testified at
the habeas hearing that she believed that the third-party
culpability defense was her strongest strategy at the
petitioner’s criminal trial and that she was concerned
that presenting an alibi defense could do more harm
than good. In addition, some of the purported alibi
witnesses indicated that they had seen the petitioner
in the vicinity of the fight, which was first reported to
the police approximately fifteen minutes after the first
report of the murder to the police, while some witnesses
stated that they had observed the petitioner near the
scene of a scooter chase, which took place shortly
before 8 p.m. in the vicinity of the petitioner’s house.
Many of the witnesses conceded, as well, that they
could not account for the petitioner’s whereabouts
throughout the entire time period during which these
events occurred. Although the witnesses each placed
the petitioner in the vicinity of his home, approximately
one mile from the scene of the murder at various times
during the early evening, their testimonies were incon-
sistent and varied as to the time they saw the petitioner
and their descriptions of the petitioner’s clothing and
bicycle. Accordingly, we agree with the habeas court
and conclude that Grogins’ decision not to present an
alibi defense was not constitutionally deficient.
B
The petitioner next claims that Grogins was ineffec-
tive for failing to properly investigate and to rebut the
testimony of the eyewitnesses to the murder. This claim
has two interwoven parts. First, the petitioner claims
that Grogins unreasonably failed to investigate the relia-
bility of statements given by Crimley and Caple. Second,
the petitioner asserts that Grogins unreasonably failed
to preserve the record regarding potential expert testi-
mony on the subject of eyewitness identification.
The following additional information is pertinent to
our discussion. As previously noted, on June 23, 2005,
Crimley gave a statement to the police indicating that
she had witnessed the shooter pass her on a bicycle
and fire a gun at the victim; four days later, she identified
the petitioner as the shooter after being presented with
a photographic array. State v. Outing, supra, 298 Conn.
38–39. Caple, who was a former high school classmate
of the petitioner and had known him for a few years,
also identified the petitioner as the shooter from a pho-
tographic array after indicating that he had witnessed
the shooter ride his bicycle on Canal Street and shoot
the victim. Id. Prior to the start of the petitioner’s crimi-
nal trial, both Crimley and Caple recanted their state-
ments to the police and their identifications of the
petitioner, alleging that they had been coerced into mak-
ing the statements. Id., 39. Thereafter, at the hearing on
the petitioner’s motion to suppress the identifications,
Crimley and Caple testified that they did not know who
the shooter was and that the police had coerced them
into making the statements. Id., 39–40. At the petition-
er’s criminal trial, Crimley and Caple testified, more
adamantly than they had at the suppression hearing,
that they were coerced into identifying the petitioner
as the shooter.
During the habeas trial, Grogins indicated that when
she was confronted with the initial statements from
Crimley and Caple, she initially had intended to elicit
Dysart’s expert testimony concerning the fallibility of
eyewitness identification. Grogins changed course,
however, when she learned that Crimley and Caple had
disavowed their statements and had, instead, alleged
that their statements had been coerced by the police.
From Grogins’ perspective, the new assertions made
by Crimley and Caple had changed her approach
because she was no longer confronting an issue of mis-
taken identity but, rather, a claim of police coercion.
Grogins also testified that presenting Dysart’s testimony
on mistaken identify would have been inconsistent with
her trial strategy of undermining the identifications by
demonstrating that police coercion had occurred.
Accordingly, she decided not to present the testimony
of Dysart at trial.
Grogins testified, as well, that she had directed her
investigator, Light, to interview Crimley and Caple in
an effort to develop their claim of police coercion, but
Light had been unsuccessful in reaching them. Later in
her testimony, Grogins indicated that she did not recall
whether she had instructed Light to make ongoing
efforts to meet with Crimley and Caple after their sup-
pression hearing testimony and prior to trial, but stated
that she would not have any reason to dispute evidence
indicating that such efforts had been made. Light also
testified regarding his efforts to contact Crimley and
Caple. He indicated that he had tried to contact Crimley
and Caple, but those attempts had been unsuccessful.
He indicated, as well, that Grogins had never provided
him with specific instructions to meet with Crimley or
Caple prior to the criminal trial.
In assessing Grogins’ decision not to present Dysart’s
testimony and not to vigorously pursue Caple and Crim-
ley before trial, the habeas court noted that, during the
cross-examinations of Crimley and Caple at the criminal
trial, Grogins concentrated on the issue of coercion
and not whether their initial statements were borne of
mistaken identifications of the petitioner. The court
determined that Grogins had sufficiently articulated the
tactical reasoning behind her method of investigation
and examination of Crimley and Caple. The court also
determined that Grogins had made the tactical decision
not to produce an eyewitness identification expert at
trial and that her decision not to pursue a theory of
mistaken identity was reasonable under the circum-
stances.
The petitioner asserts that, even after Crimley and
Caple had recanted their identifications of the petitioner
at the suppression hearing, Grogins should have made
efforts to contact them in the time period leading up
to the criminal trial and, had she done so, she could
have developed additional evidence regarding the relia-
bility of their statements. The issue before us in this
appeal, however, is not whether all reasonable lawyers
would have made the same tactical decision as Grogins,
but whether her decision to forgo additional investiga-
tion and rebuttal of the eyewitnesses’ statements, which
included forgoing expert testimony on the issue of mis-
identification, fell within the broad parameters of her
decisional discretion. ‘‘Paramount to the effective assis-
tance of counsel is the obligation by the attorney to
investigate all surrounding circumstances of the case
and to explore all avenues that may potentially lead to
facts relevant to the defense of the case. . . . We are
mindful that, under certain circumstances, the failure
to use any expert can result in a determination that a
criminal defendant was denied the effective assistance
of counsel. . . . Nevertheless, the question of whether
to call an expert witness always is a strategic decision.
. . . [S]trategic choices made after thorough investiga-
tion of law and facts relevant to plausible options are
virtually unchallengeable; [but] strategic choices made
after less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) Arroyo v. Commissioner of Cor-
rection, 172 Conn. App. 442, 467, 160 A.3d 425, cert.
denied, 326 Conn. 921, 169 A.3d 235 (2017).
In the case at hand, we do not fault the habeas court’s
conclusion because we believe it accords appropriate
deference to Grogins’ tactical decision making in regard
to forgoing additional investigation into Crimley’s and
Caple’s statements and omitting Dysart’s expert testi-
mony on misidentification at trial. The record reflects
that part of Grogins’ third-party culpability theory at
trial was to establish that the statements made by Crim-
ley and Caple were the product of police coercion.
Grogins’ cross-examination of Crimley and Caple at the
criminal trial advanced that theory by eliciting testi-
mony that they were coerced. Although we acknowl-
edge that additional investigation into Crimley’s and
Caple’s statements may have shed more light on their
credibility as witnesses, evidence in the record does
not support a conclusion that Grogins’ failure to do
so was unreasonable. See Moye v. Commissioner of
Correction, supra, 168 Conn. App. 218 (‘‘To prove that
his counsel’s performance was deficient, the petitioner
must demonstrate that trial counsel’s representation fell
below an objective standard of reasonableness. . . .
Competent representation is not to be equated with
perfection.’’ [Internal quotation marks omitted.]). In
sum, we agree that Grogins’ approach to the handling
of these eyewitnesses fell within the wide range of
reasonably effective assistance. In addition, the record
is clear that Grogins’ decision not to call Dysart as an
expert at trial was based on her concern that doing so
would have potentially detracted from the petitioner’s
coercion defense.8 Thus, we also agree that Grogins’
decision to forgo Dysart’s expert testimony was a rea-
sonable tactical choice under the circumstances and,
accordingly, conclude that Grogins’ performance was
not deficient in this regard.
C
The petitioner next claims that Grogins was ineffec-
tive for failing to preserve for appellate review the trial
court’s exclusion of certain aspects of Dysart’s expert
testimony on eyewitness identification. Specifically, the
petitioner claims that Grogins was ineffective for failing
to obtain a ruling at trial as to the admissibility of five
eyewitness identification factors about which the trial
court had precluded Dysart from testifying at the hear-
ing on the petitioner’s motion to suppress.
The following additional information, as set forth by
our Supreme Court in the petitioner’s direct appeal, is
relevant to our resolution of this claim. Prior to the
start of the criminal trial, ‘‘[b]y way of a proffer, Dysart
testified that . . . there is an undue risk of misidentifi-
cation resulting from the identification procedure if,
as occurred in the [underlying criminal] case: (1) the
photographs are shown to the witness simultaneously
rather than sequentially; (2) after advising the eyewit-
ness that the perpetrator may or may not be in the
photographic array, the police provide the witness with
a form that does not contain a line on which the witness
may indicate that the array does not include the perpe-
trator; and (3) the police do not use a double-blind
identification procedure, that is, one in which the per-
son administering the procedure does not know the
identity of the suspect. Dysart also explained that she
intended to testify that (1) the perpetrator’s use of a
disguise can impair the ability of a witness to make an
accurate identification (disguise effect); (2) under the
principle of unconscious transference, a witness is
more likely to identify a person as the perpetrator if
that person looks familiar to the witness; (3) a witness
tends to focus on the perpetrator’s weapon instead of
on the perpetrator, thereby reducing the likelihood of
an accurate identification (weapons focus effect); (4)
there is little or no correlation between the reliability
of an identification and the witness’ confidence in the
identification; (5) a witness who is under stress while
observing the commission of the crime is less likely to
make an accurate identification of the perpetrator; and
(6) witness collaboration can adversely affect the relia-
bility of an identification. The state objected to Dysart’s
proffered testimony, claiming, inter alia, that it was
inadmissible in light of this court’s determination in
State v. Kemp, 199 Conn. 473, 476–77, 507 A.2d 1387
(1986), and State v. McClendon, 248 Conn. 572, 586–87,
730 A.2d 1107 (1999), [both overruled in part by State
v. Guilbert, 306 Conn. 218, 253, 49 A.3d 705 (2012)],
that such testimony generally is within the common
knowledge and experience of the average person and,
therefore, it would not aid the fact finder in evaluating
the identification evidence.’’ (Footnote omitted; inter-
nal quotation marks omitted.) State v. Outing, supra,
298 Conn. 42–43.
‘‘In reliance on Kemp and McClendon,9 the trial court
precluded Dysart from testifying that the reliability of
the identification can be adversely affected by witness
stress, witness collaboration, the perpetrator’s use of
a disguise and the perpetrator’s use of a weapon, and
that the witness’ confidence in the accuracy of the iden-
tification bears little or no relation to the accuracy of
the identification. In support of its ruling, the court
explained that such testimony was unnecessary
because it was within the realm of . . . common sense
and . . . experience.’’ (Footnote added; internal quota-
tion marks omitted.) Id., 43 n.7. The court, however,
‘‘concluded that, out of an abundance of caution, Dysart
could testify [at the suppression hearing] on the issues
of the simultaneous presentation of photographs, police
instructions to the witness, double-blind administration
of the identification procedure and the theory of uncon-
scious transference. The trial court emphasized that it
was limiting its ruling to the testimony at the hearing
on the motion to suppress . . . and left the issue open
should the [petitioner] seek to introduce Dysart’s testi-
mony at trial.’’ (Internal quotation marks omitted.) Id.,
43–44. After Dysart’s testimony, the court denied the
petitioner’s motion to suppress. See id., 45–46.
In addition, ‘‘at trial, the [petitioner] made a motion
requesting that Dysart be permitted to provide testi-
mony concerning the four factors pertaining to the relia-
bility of eyewitness [identification] procedures about
which the trial court had allowed Dysart to testify at
the suppression hearing. The trial court granted the
[petitioner’s] motion. With respect to the other five fac-
tors about which the trial court precluded Dysart’s testi-
mony at the suppression hearing, however, the
[petitioner] never renewed his request that Dysart be
permitted to testify at trial with respect to those factors.
In fact, the [petitioner] did not call Dysart as a trial
witness at all.’’ Id., 63. The petitioner appealed, claiming,
inter alia, that the trial court had improperly precluded
him from introducing Dysart’s testimony regarding the
additional five factors. See id., 62–63. Our Supreme
Court held that this issue was not preserved for appel-
late review. Id., 63.
For the same reason as stated in part I B of this
opinion, we do not fault Grogins for failing to preserve,
for appellate review, a claim concerning the trial court’s
order disallowing the proffer of Dysart’s testimony con-
cerning the additional five factors that reduce the relia-
bility of eyewitness identification. Because Grogins
already had reasonably determined not to present
Dysart’s testimony at the petitioner’s criminal trial, she
would have had no strategic reason to preserve the
court’s exclusion of evidence on a matter that she rea-
sonably believed had been rendered moot by her tacti-
cal choice not to pursue a theory of mistaken
identification. ‘‘[T]here is no requirement that counsel
call an expert when [s]he has developed a different trial
strategy.’’ (Internal quotation marks omitted.) Davis v.
Commissioner of Correction, 186 Conn. App. 366, 379,
199 A.3d 562 (2018), cert. denied, 330 Conn. 962, 199
A.3d 560 (2019).
Moreover, at the time of the underlying criminal trial,
our decisional law did not permit expert testimony on
the subjects for which Grogins initially sought to pre-
sent expert testimony. Although State v. Kemp, supra,
199 Conn. 473, was overruled in part by State v. Guilb-
ert, supra, 306 Conn. 253,10 recent decisions of this court
that have addressed claims of ineffective assistance of
trial counsel arising from counsel’s decisions on the
issue of expert testimony on eyewitness identification
in between our Supreme Court’s opinions in Kemp and
Guilbert have held that counsel’s decision not to pre-
sent the testimony of an eyewitness identification
expert did not constitute deficient performance. See,
e.g., Davis v. Commissioner of Correction, supra, 186
Conn. App. 378 (‘‘[a]lthough Kemp was overruled . . .
we consider [counsel’s] performance in light of the stan-
dards in effect at the time of the petitioner’s criminal
trial . . . and conclude that the habeas court did not
err in concluding that [counsel’s] performance was not
deficient’’); Bennett v. Commissioner of Correction,
182 Conn. App. 541, 562, 190 A.3d 877 (‘‘because the
law in effect at the time of the criminal trial discouraged
the use of expert testimony on the issue of eyewitness
identification, [counsel] did not perform deficiently by
not presenting expert testimony’’), cert. denied, 330
Conn. 910, 193 A.3d 50 (2018). To impose on counsel
the duty to foretell what tack our Supreme Court would
take on this subject represents the height of post hoc
reasoning, which is not the task of a court on habeas
review. See Ledbetter v. Commissioner of Correction,
275 Conn. 451, 462, 880 A.2d 160 (2005) (Counsel is
not ‘‘required to change then-existing law to provide
effective representation. . . . Counsel instead per-
forms effectively when he elects to maneuver within
the existing law . . . .’’ [Citation omitted; internal quo-
tation marks omitted.]), cert. denied, 546 U.S. 1187, 126
S. Ct. 1368, 164 L. Ed. 2d 77 (2006). Accordingly, we
agree with the habeas court and conclude that Grogins
did not perform deficiently by not preserving for appel-
late review a claim related to the trial court’s exclusion
of Dysart’s expert testimony regarding the additional
five factors concerning eyewitness identifications.
II
The petitioner next claims that his appellate counsel
was ineffective for failing to claim, in his direct appeal,
that the trial court incorrectly denied the petitioner’s
request to present surrebuttal evidence at trial.11 We
note briefly our standard of review of a claim of ineffec-
tiveness of appellate counsel. ‘‘A criminal defendant’s
right to the effective assistance of counsel extends
through the first appeal of right and is guaranteed by
the sixth and fourteenth amendments to the United
States constitution and by article first, § 8, of the Con-
necticut constitution. . . . To succeed on a claim of
ineffective assistance of counsel, a habeas petitioner
must satisfy the two-pronged test articulated in [Strick-
land v. Washington, supra, 466 U.S. 687] . . . . Our
Supreme Court has, however, distinguished the stan-
dards of review for claims of ineffective assistance of
trial counsel and of appellate counsel. . . . For claims
of ineffective assistance of appellate counsel, we must
assess whether there is a reasonable probability that,
but for appellate counsel’s failure to raise the issue on
appeal, the petitioner would have prevailed [on] appeal,
i.e., [obtaining] reversal of his conviction or granting
of a new trial.’’ (Citation omitted; internal quotation
marks omitted.) Smith v. Commissioner of Correction,
148 Conn. App. 517, 530, 85 A.3d 1199, cert. denied, 312
Conn. 901, 91 A.3d 908 (2014).
Additionally, ‘‘[j]ust as with a claim of ineffective
assistance of trial counsel, success on a claim of ineffec-
tive assistance of appellate counsel requires the peti-
tioner to establish that appellate counsel’s
representation fell below an objective standard of rea-
sonableness considering all of the circumstances. . . .
[Although] an appellate advocate must provide effective
assistance, [she] is not under an obligation to raise
every conceivable issue. A brief that raises every color-
able issue runs the risk of burying good arguments
. . . in a verbal mound made up of strong and weak
contentions. . . . Indeed, [e]xperienced advocates
since time beyond memory have emphasized the impor-
tance of winnowing out weaker arguments on appeal
and focusing on one central issue if possible, or at most
on a few key issues. . . . Moreover, [a] habeas court
will not, with the benefit of hindsight, second-guess
the tactical decisions of appellate counsel.’’ (Emphasis
added; internal quotation marks omitted.) Id., 531.
The following additional information is relevant to
this claim. As previously noted, Grogins pursued a claim
of third-party culpability at the petitioner’s criminal
trial. In furtherance of this claim, Shaniah Outlaw testi-
fied on behalf of the petitioner that she had overheard
Darrell Mayes confess to the shooting. Once the peti-
tioner’s defense rested, the state called Vasquez as a
rebuttal witness. Vasquez testified that when he had
interviewed Outlaw, she denied ever telling anyone that
she had overheard Mayes confess. In light of this testi-
mony, Grogins sought to introduce surrebuttal testi-
mony from Allison Carter, Outlaw’s mother. By way of
a proffer, Grogins indicated that Carter would testify
that she was present when her daughter told Vasquez
of the purported confession by Mayes. See State v.
Outing, supra, 298 Conn. 71. The court denied the
request to present Carter’s surrebuttal testimony, and,
on appeal, the petitioner’s appellate counsel, Attorney
James B. Streeto, did not claim that the trial court had
abused its discretion in denying the petitioner’s request
for Carter’s surrebuttal evidence. See id.
Streeto testified at the habeas trial that, given page
limitations for briefing, he did not have the space to
include an argument on this issue and that he had deter-
mined not to present such an argument because, in his
view, it was one of the petitioner’s weaker arguments.
Streeto also testified that the level of deference afforded
a trial court’s decision not to allow surrebuttal evidence
had impacted his assessment of whether to raise it as
an issue on appeal. He believed, as well, that the inclu-
sion of this relatively weak argument could have
detracted from his presentation on the arguments he
briefed.
The habeas court concluded, and we agree, that
Streeto made a reasonable strategic decision not to
raise the surrebuttal issue on appeal, and that his deci-
sion fell within the wide range of reasonable profes-
sional assistance. Our case law is clear that a court
will not second-guess an appellate counsel’s tactical
decision to limit the claims briefed to those claims that
he or she reasonably viewed as most critical to the
appeal. See, e.g., Smith v. Commissioner of Correction,
supra, 148 Conn. App. 532 (petitioner failed to prove
appellate counsel’s performance fell below objective
standard of reasonableness where counsel had
‘‘reviewed the pleadings and transcripts, identified the
possible issues and then strategically determined which
issues had the best chance of winning’’ [internal quota-
tion marks omitted]); Saucier v. Commissioner of Cor-
rection, 139 Conn. App. 644, 652, 57 A.3d 399 (2012)
(appellate counsel’s performance not deficient where
counsel had ‘‘made his tactical decision to focus on the
strongest of the petitioner’s claims on appeal . . . after
considering the relevant case law and whether the claim
was properly preserved, and after consulting with other
experienced counsel’’), cert. denied, 308 Conn. 907, 61
A.3d 530 (2013). Accordingly, we conclude that the
court properly determined that the petitioner failed to
prove that Streeto’s performance was deficient.
III
Finally, the petitioner claims that the habeas court
incorrectly determined that he did not prove his claim
of actual innocence. ‘‘[T]he proper standard for evaluat-
ing a freestanding claim of actual innocence, like that
of the petitioner, is twofold. First, the petitioner must
establish by clear and convincing evidence that, taking
into account all of the evidence—both the evidence
adduced at the original criminal trial and the evidence
adduced at the habeas corpus trial—he is actually inno-
cent of the crime of which he stands convicted. Second,
the petitioner must also establish that, after considering
all of that evidence and the inferences drawn therefrom
as the habeas court did, no reasonable fact finder would
find the petitioner guilty of the crime.’’ Miller v. Com-
missioner of Correction, 242 Conn. 745, 747, 700 A.2d
1108 (1997).
‘‘Actual innocence is not demonstrated merely by
showing that there was insufficient evidence to prove
guilt beyond a reasonable doubt. . . . Rather, actual
innocence is demonstrated by affirmative proof that
the petitioner did not commit the crime. . . . Affirma-
tive proof of actual innocence is that which might tend
to establish that the petitioner could not have commit-
ted the crime even though it is unknown who committed
the crime, that a third party committed the crime or
that no crime actually occurred.’’ (Internal quotation
marks omitted.) Carmon v. Commissioner of Correc-
tion, 178 Conn. App. 356, 371, 175 A.3d 60 (2017), cert.
denied, 328 Conn. 913, 180 A.3d 961 (2018).
This court has stated that ‘‘[a] claim of actual inno-
cence must be based on newly discovered evidence.
. . . This evidentiary burden is satisfied if a petitioner
can demonstrate, by a preponderance of the evidence,
that the proffered evidence could not have been discov-
ered prior to the petitioner’s criminal trial by the exer-
cise of due diligence.’’ (Internal quotation marks
omitted.) Ampero v. Commissioner of Correction, 171
Conn. App. 670, 687, 157 A.3d 1192, cert. denied, 327
Conn. 953, 171 A.3d 453 (2017).
In support of his claim of actual innocence, the peti-
tioner relies on third-party culpability evidence pre-
sented at the habeas trial, which he claims points either
to Antwan Baldwin or Mayes as the shooter. In particu-
lar, the petitioner relies on the fact that Baldwin’s finger-
prints were found on a bicycle left at the murder scene,
which Baldwin acknowledged he owned but claimed
had been stolen from him. The petitioner relies, as well,
on the negative inferences that he contends may be
drawn from Mayes’ invocation at the habeas trial of
his fifth amendment privilege against self-incrimination.
Additionally, the petitioner relies on testimony from his
alibi witnesses that they saw him at the fight and on
testimony from Crimley that the petitioner was not
the shooter.
Given the well established parameters of decisional
law on the topic of actual innocence, this claim warrants
little discussion. The habeas court’s conclusion is apt:
‘‘Even assuming arguendo that the evidence in support
of an actual innocence claim was not required to be
newly discovered, the court finds that the mosaic of
evidence presented by the petitioner does not constitute
affirmative proof of actual innocence, as it does not
tend to establish that the petitioner could not have
committed the crime as it relates to the other evidence
in the case.’’ (Internal quotation marks omitted.) The
court’s apt rejection of this claim needs no embel-
lishment.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The habeas court took judicial notice of the decision in State v. Outing,
supra, 298 Conn. 34, during the habeas trial.
2
In particular, the petitioner raised twenty-nine ineffective assistance of
counsel claims in regard to his trial counsel, including that counsel was
ineffective for failing to properly investigate and present an alibi defense,
failing to properly investigate and rebut the state’s eyewitnesses, and failing
to preserve the record concerning the trial testimony of an expert witness
on witness identifications. The petitioner also claimed that his due process
rights were violated by the trial court’s denial of his request to present
surrebuttal evidence; his appellate counsel provided ineffective assistance
by failing to raise a claim on appeal challenging the trial court’s denial of
his request to present surrebuttal evidence; he was actually innocent; and
the cumulative impact of both his trial and appellate counsels’ errors
deprived him of his right to the effective assistance of counsel and due
process.
3
The parties filed several motions for extensions of time to file their
posttrial briefs. On July 21, 2017, after receiving the parties’ posttrial briefs,
the habeas court reserved the decision on its ruling.
4
The only ineffective assistance of trial counsel claims that the petitioner
raises in his brief on appeal are that his trial counsel failed (1) to properly
investigate and to present an alibi defense, (2) to investigate and to rebut
the testimony of the state’s eyewitnesses, and (3) to preserve the record
concerning the trial testimony of his expert witness on witness identifica-
tions. Thus, the petitioner’s other ineffective assistance of trial counsel
claims raised in his amended petition are deemed abandoned. See Merle S.
v. Commissioner of Correction, 167 Conn. App. 585, 588 n.4, 143 A.3d 1183
(2016) (claims of ineffective assistance of trial counsel not pursued on
appeal are deemed abandoned).
5
Attorney Grogins has since become a judge of the Superior Court. With
no disrespect intended to Judge Grogins, we follow our normal practice in
this opinion of referring to witnesses by their last names after initially
identifying them by their full names.
6
The record reflects that Moe’s Market is located at the intersection of
Dixwell Avenue and Harding Place, about a three minute bicycle ride south
of the petitioner’s residence and, therefore, between his residence and Canal
Street, the scene of the shooting.
7
‘‘Dickey’’ shirt may refer to the ‘‘Dickies’’ brand of apparel. In the habeas
trial transcripts, the term is spelled as ‘‘dickey’’ or ‘‘Dickey.’’ For consistency,
we maintain the spelling as ‘‘dickey.’’
8
Our Supreme Court reached the same conclusion in the petitioner’s
direct appeal, albeit in the context of the petitioner’s claim that the trial court
had improperly barred him from presenting portions of Dysart’s testimony
at his criminal trial. See State v. Outing, supra, 298 Conn. 64 (‘‘[m]oreover,
it is reasonable to conclude that the [petitioner’s] decision not to call Dysart
as a trial witness was a tactical one predicated on the concern that to do
so might detract from the [petitioner’s] claim that Crimley and Caple had
not made a good faith but mistaken identification of the [petitioner] as
the shooter but, rather, had been coerced by the police into identifying
the [petitioner]’’).
9
In State v. Kemp, supra, 199 Conn. 477, and State v. McClendon, supra,
248 Conn. 586, our Supreme Court affirmed the trial court’s exclusion of
expert testimony on eyewitness identification after observing that such
testimony had previously ‘‘been excluded on the grounds that the reliability
of eyewitness identification is within the knowledge of the jurors and expert
testimony generally would not assist them in determining the question.’’
10
After the petitioner’s criminal trial and direct appeal, our Supreme Court
decided State v. Guilbert, supra, 306 Conn. 218, in which it expressly over-
ruled Kemp and State v. McClendon, supra, 248 Conn. 572, and held that
‘‘the reliability of eyewitness identifications frequently is not a matter within
the knowledge of an average juror’’; State v. Guilbert, supra, 251; and ‘‘expert
testimony is an effective way to educate jurors about the risks of misidentifi-
cation.’’ Id., 252.
11
‘‘Surrebuttal evidence is that which is offered to meet evidence raised
in rebuttal. [O]nly evidence to explain away new facts brought forward by
the proponent in rebuttal . . . is properly admissible [in surrebuttal]. . . .
[Our Supreme Court previously has] stated that there is no constitutional
right to present surrebuttal evidence. . . . The presentation of surrebuttal
evidence is a matter resting squarely within the discretion of the trial court.
. . . The defendant must demonstrate some compelling circumstance and
the proffered evidence must be of such importance that its omission puts
in doubt the achievement of a just result.’’ (Internal quotation marks omit-
ted.) State v. Goriss, 108 Conn. App. 264, 272, 947 A.2d 1041, cert. denied,
289 Conn. 904, 957 A.2d 873 (2008).