Bennett v. Commissioner of Correction

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CALVIN BENNETT v. COMMISSIONER OF
CORRECTION
(AC 37131)
Lavine, Elgo and Beach, Js.
Syllabus
The petitioner, who had been convicted of the crimes of aiding and abetting
murder, felony murder, home invasion and burglary in the first degree,
sought a writ of habeas corpus, claiming that his trial counsel had
rendered ineffective assistance by, inter alia, failing to adequately chal-
lenge the eyewitness testimony of B and C. At the habeas trial, the
petitioner claimed, inter alia, that his trial counsel should have offered
expert testimony on the issue of the reliability of eyewitness identifica-
tion, and the petitioner presented the testimony of a legal expert, S, in
support of that claim. The petitioner also offered into evidence as a full
exhibit a copy of the transcript of certain expert testimony at a hearing,
pursuant to State v. Porter (241 Conn. 57), in the trial of his codefendant,
M, and the habeas court declined to admit the transcript into evidence
as a full exhibit. The habeas court rendered judgment denying the habeas
petition and, thereafter, denied the petition for certification to appeal,
and the petitioner appealed to this court. Held:
1. The habeas court did not abuse its discretion in denying the petition for
certification to appeal with respect to the petitioner’s claims that the
court improperly declined to admit as a full exhibit the transcript of
the expert testimony presented at M’s criminal trial and that his trial
counsel performed deficiently by inadequately challenging eyewitness
testimony, the petitioner having failed to demonstrate that the issues
he raised were debatable among jurists of reason, or that a court could
have resolved them in a different manner.
2. The habeas court did not abuse its discretion in declining to admit the
transcript of the expert testimony from M’s criminal trial into evidence
as a full exhibit, which the petitioner claimed was admissible for the
purpose of showing the basis for S’s expert opinions: although, in certain
circumstances, the information that an expert witness relied on may be
admissible for the purpose of showing the basis for the opinions of that
expert, there was no requirement that such documents be admitted as
a full exhibit, as the facts contained therein were hearsay, and the record
showed that S testified at length about the developments in the law
regarding eyewitness identification, about the opinions expressed by
the expert in M’s criminal trial, and about studies underlying the changes
in the law; moreover, the habeas court did not err by not taking judicial
notice of the transcript, as the opinions expressed by the expert witness
in M’s criminal trial were not the sort of uncontested facts contemplated
by the concept of judicial notice, and the court acted within its discretion
under the applicable provision (§ 2-1) of the Connecticut Code of Evi-
dence, and the petitioner’s unpreserved claim that the habeas court
should have admitted the transcript as a full exhibit pursuant to the
residual exception to the hearsay rule was not reviewable, the petitioner
having failed to raise the claim before the habeas court.
3. The petitioner could not prevail on his claim that the habeas court erred
in concluding on the merits that his right to the effective assistance of
counsel was not violated: that court did not err in its conclusion that
the petitioner’s trial counsel did not perform deficiently by not moving
to suppress B’s in-court identification of the petitioner, as trial counsel’s
performance had to be considered in light of the legal standards in
effect at the time of the petitioner’s criminal trial, which allowed for
the exclusion of an in-court identification only when it was tainted by
an unnecessarily suggestive and unreliable out-of-court identification,
and provided that, in all other circumstances, as here, a defendant’s
protection against the obvious suggestiveness in any courtroom confron-
tation was his right to cross-examination, which trial counsel here per-
formed effectively; moreover, there was no merit to the petitioner’s
claim that his trial counsel performed deficiently by not presenting an
expert on the issue of eyewitness identification, as the controlling law
at the time of the petitioner’s criminal trial discouraged the use of expert
testimony on that issue and it was, thus, reasonable for trial counsel to
use cross-examination to attack the weight of the testimony of B and
C, and the petitioner’s claim that his trial counsel performed deficiently
by not emphasizing, in the course of cross-examination, certain factors
identified as important by our Supreme Court in evaluating the reliability
of an eyewitness identification was unavailing, as trial counsel’s perfor-
mance could not be evaluated according to standards enunciated by
our Supreme Court three years after the criminal trial.
Argued December 11, 2017—officially released June 12, 2018
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland and tried to the court, Fuger, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Michael W. Brown, assigned counsel, for the appel-
lant (petitioner).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Marc G. Ramia, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
BEACH, J. The petitioner, Calvin Bennett, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his petition for a writ of habeas corpus. On appeal, the
petitioner claims that the habeas court (1) abused its
discretion in denying his petition for certification to
appeal, (2) abused its discretion in declining to admit
into evidence a transcript from the criminal trial of
another defendant, and (3) erred in finding that his right
to the effective assistance of counsel at his criminal trial
had not been violated. We disagree and, accordingly,
dismiss the appeal.
Our Supreme Court, in the petitioner’s direct appeal,
recited the following facts, as found by the three judge
trial court. ‘‘[The victim] James Caffrey lived in the
second floor apartment of 323 Hill Street in Waterbury
with his girlfriend Samantha Bright and one other room-
mate. [The victim’s] mother, Emilia Caffrey, lived in the
first floor apartment. In the late afternoon of Saturday,
October 26, 2008, [the victim] and Bright had five visi-
tors, including [the codefendant] Tamarius Maner, in
their living room. Maner had a clear view of the bed-
room from where he was seated in the living room.
Maner purchased a small amount of marijuana from
[the victim] and paid him some money, which [the vic-
tim] put in the bedroom. [The victim] kept the marijuana
in the bedroom. [The victim] remarked that he had
saved $500 for a child that he was expecting with Bright.
‘‘At about that time, Maner and the [petitioner] lived
next door to each other in Bridgeport and had done drug
business together. Maner contacted the [petitioner] by
cell phone during the evening of Saturday, October 26.
Shortly after midnight on Sunday, October 27, Maner
and the [petitioner] drove from Bridgeport to Waterbury
to go to [the victim’s] apartment. They were carrying
loaded handguns.
‘‘Just after 1 a.m., the doorbell to the second floor
apartment at 323 Hill Street rang and [the victim]
answered the door. A conversation of a few seconds
with . . . [the victim] ensued. Maner then shot [the
victim] in the face from a distance of one to three
feet with a .45 caliber handgun. [The victim] fell in the
hallway in a pool of blood and died from the gunshot
wound to the head.
‘‘Maner and the [petitioner] walked past [the victim]
and into a bedroom. There the [petitioner] put a gun
to Bright’s head and asked: Where is everything? Bright
understood the question to inquire about money and
drugs. Bright referred them to the top dresser drawer.
Maner opened it and threw its contents on the bed-
room floor.
‘‘At about that time, they heard the screams of Emilia
son lying in the second floor hallway. The [petitioner]
told Bright to keep her head down and face toward
the wall. Maner and the [petitioner] then ran into the
kitchen, which Emilia Caffrey had also entered in order
to call 911. Maner, who was standing at the stove, fired
one shot at [Emilia] Caffrey and missed. The [petitioner]
was standing at the window.
‘‘Maner and the [petitioner] then ran out of the
kitchen, pushing [Emilia] Caffrey to the floor as they
left. They returned to their car and arrived back in
Bridgeport around 2 a.m.
‘‘Police interviews of some of the Waterbury visitors
to [the victim’s] apartment on the afternoon of October
26 led to the identity of Maner . . . . Further police
investigation, including analysis of Maner’s cell phone
calls, brought police to an apartment in Bridgeport
where they found the [petitioner]. The [petitioner] vol-
untarily returned to Waterbury with the police and told
them that he had not left Bridgeport on the night in
question. When confronted with the fact that his cell
phone records showed him in Waterbury during the
time of the crimes, the [petitioner] put his head down
for a minute and then indicated that he had nothing
more to say. A search, pursuant to a warrant, of his
apartment in Bridgeport revealed a suitcase containing
the [petitioner’s] clothes, a loaded .45 caliber pistol,
and a sock containing sixty-one rounds of ammunition.’’
(Internal quotation marks omitted.) State v. Bennett,
307 Conn. 758, 761–63, 59 A.3d 221 (2013).
Our Supreme Court noted that the petitioner ‘‘was
charged with aiding and abetting murder in violation
of General Statutes §§ 53a-8 and 53a-54a, felony murder
in violation of General Statutes § 53a-54c, home inva-
sion in violation of General Statutes § 53a-100aa (a) (1),
and burglary in the first degree in violation of General
Statutes § 53a-101 (a) (3). The [petitioner] elected a trial
to a three judge court . . . . The panel, consisting of
Cremins, Crawford and Schuman, Js., rendered a
unanimous verdict of guilty on all of the charges except
aiding and abetting murder, on which a majority of
the panel found the [petitioner] guilty, and thereafter
rendered judgment in accordance with the verdict and
imposed a total effective sentence of sixty years impris-
onment. . . . [T]he [petitioner] directly appealed from
the judgment of conviction to [our Supreme Court]. On
appeal, the [petitioner] contend[ed]: (1) that there was
insufficient evidence to convict him of aiding and abet-
ting murder; and (2) that he did not knowingly waive
his right to a jury trial.’’ (Citation omitted.) Id., 760–61.
Our Supreme Court reversed the judgment as to the
petitioner’s first claim but affirmed it in all other
respects. Id., 777.
In his amended petition for a writ of habeas corpus,
filed February 4, 2014, the petitioner claimed that his
trial counsel, Lawrence Hopkins, rendered ineffective
assistance by, among other things, failing adequately
to challenge the eyewitness testimony of Bright and
Emilia Caffrey. The habeas court denied the petition
for a writ of habeas corpus and a subsequent petition
for certification to appeal from the court’s judgment.
This appeal followed. Additional facts will be discussed
as necessary.
I
The petitioner claims that the habeas court erred in
denying his petition for certification to appeal from the
denial of his habeas petition. Specifically, he argues
that because the issues are debatable among jurists
of reason and a court could have resolved the issues
differently, the habeas court abused its discretion in
denying his petition for certification to appeal.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
[the petitioner] must demonstrate that the denial of
his petition for certification constituted an abuse of
discretion. . . . Second, if the petitioner can show an
abuse of discretion, he must then prove that the deci-
sion of the habeas court should be reversed on the
merits. . . . To prove that the denial of his petition for
certification to appeal constituted an abuse of discre-
tion, the petitioner must demonstrate that the [resolu-
tion of the underlying claim involves issues that] are
debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to
proceed further. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by [our Supreme
Court] for determining the propriety of the habeas
court’s denial of the petition for certification.’’ (Cita-
tions omitted; internal quotation marks omitted.) Sand-
ers v. Commissioner of Correction, 169 Conn. App. 813,
821–22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904,
156 A.3d 536 (2017).
As we discuss more fully in parts II and III of this
opinion, we disagree with the petitioner’s claims that
the habeas court abused its discretion in declining to
admit as a full exhibit a transcript of expert testimony
presented at Maner’s criminal trial and that Hopkins
performed deficiently in inadequately challenging eye-
witness testimony. Because the resolution of the peti-
tioner’s claims does not involve an issue that is
debatable among jurists of reason and a court could
not reasonably have resolved the issues differently, we
conclude that the habeas court did not abuse its discre-
tion in denying certification to appeal from the denial
of the petition for a writ of habeas corpus.
II
We turn to the question of whether the habeas court
abused its discretion in refusing to admit as a full exhibit
a transcript of expert testimony from Maner’s criminal
trial. The petitioner argues that the transcript was rele-
vant evidence in support of his claim that Hopkins ren-
dered ineffective assistance by failing to present at the
criminal trial an expert witness on the issue of the
reliability of eyewitness identification. We conclude
that the habeas court did not abuse its discretion in its
evidentiary ruling.
We first set forth our standard of review. ‘‘To the
extent [that] a trial court’s admission of evidence is
based on an interpretation of [our law of evidence], our
standard of review is plenary. For example, whether
a challenged statement properly may be classified as
hearsay and whether a hearsay exception properly is
identified are legal questions demanding plenary
review. . . . We review the trial court’s decision to
admit [or exclude] evidence, if premised on a correct
view of the law, however, for an abuse of discretion.
. . . The trial court has wide discretion to determine
the relevancy of evidence and the scope of cross-exami-
nation. . . . Thus, [w]e will make every reasonable
presumption in favor of upholding the trial court’s rul-
ing[s] [on these bases] . . . . In determining whether
there has been an abuse of discretion, the ultimate
issue is whether the court . . . reasonably [could have]
conclude[d] as it did.’’ (Internal quotation marks omit-
ted.) Weaver v. McKnight, 313 Conn. 393, 426, 97 A.3d
920 (2014).
‘‘[A]n out-of-court statement offered to establish the
truth of the matter asserted is hearsay. . . . As a gen-
eral rule, such hearsay statements are inadmissible
unless they fall within a recognized exception to the
hearsay rule. . . . A hearsay statement that does not
fall within one of the traditional exceptions to the hear-
say rule nevertheless may be admissible under the resid-
ual exception to the hearsay rule provided that the
proponent’s use of the statement is reasonably neces-
sary and the statement itself is supported by equivalent
guarantees of trustworthiness and reliability that are
essential to other evidence admitted under traditional
exceptions to the hearsay rule. . . .
‘‘Reasonable necessity may be established by show-
ing that unless the hearsay statement is admitted, the
facts it contains may be lost, either because the declar-
ant is dead or otherwise unavailable, or because the
assertion is of such a nature that evidence of the same
value cannot be obtained from the same or other
sources.’’ (Citations omitted; internal quotation marks
omitted.) Corbett v. Commissioner of Correction, 133
Conn. App. 310, 319–20, 34 A.3d 1046 (2012).
The following additional facts, which appear in the
record, are relevant. At his habeas trial, the petitioner
claimed that Hopkins should have offered expert testi-
mony on the issue of the reliability of eyewitness identi-
fication. The petitioner presented a legal expert, Lisa
Steele, who testified comprehensively. Although she
was qualified as a legal expert, the habeas court did
not find Steele to be qualified as an expert in the science
of eyewitness identification. Steele then testified that
she had reviewed all of the transcripts and briefs in the
cases of both the petitioner and Maner;1 she had also
reviewed the witness statements by Bright and Emilia
Caffrey. Steele opined that Hopkins could have applied
State v. Ledbetter, 275 Conn. 534, 881 A.2d 290 (2005),
cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed.
2d 537 (2006), and State v. Marquez, 291 Conn. 122,
967 A.2d 56, cert. denied, 558 U.S. 895, 130 S. Ct. 237,
175 L. Ed. 2d 163 (2009), to highlight weaknesses in the
identification procedures used in the present case to
identify the petitioner as a perpetrator. Specifically, the
police had used nonblind simultaneous photographic
arrays, and the officer conducting the process knew the
identities of the suspects. Steele opined that Hopkins
should have forcefully highlighted the effects of stress,
lighting, and the threatened use of weapons on the
reliability of eyewitness identification through cross-
examination and by using an expert in the field of eye-
witness identification.
Steele contrasted the petitioner’s criminal case to
that of Maner, in which the expert testimony of Steven
Penrod, a psychologist, was presented. She noted that
Penrod had testified about the subconscious influences
that officers exert in the presentation of photographic
arrays to witnesses when the officers are aware of a
suspect’s identity. She said that an expert such as Pen-
rod would have been effective in educating the three
judge court about factors such as the effect of stress
on eyewitness identification. On cross-examination, the
respondent, the Commissioner of Correction, elicited
from Steele the information that Maner was convicted
despite the use of Penrod at his trial.
During Steele’s testimony, the petitioner offered into
evidence as a full exhibit his exhibit 19 for identifica-
tion, which was a copy of the transcript of the Porter2
hearing in Maner’s trial on the issue of Penrod’s qualifi-
cations as an expert. Steele had reviewed the transcript
prior to her testimony, and from it she gleaned informa-
tion regarding the science of eyewitness identification
as it related to Maner’s trial. The respondent objected
to its introduction as a full exhibit, apparently on rele-
vancy grounds, because the testimony took place in the
trial of a different defendant and the trial took place
approximately one year after the petitioner’s criminal
trial. The habeas court and the petitioner’s counsel then
engaged in the following colloquy:
‘‘The Court: [W]hat’s the purpose you’re seeking to
introduce this for?
‘‘[The Petitioner’s Counsel]: Your Honor, I seek to
submit it as a full exhibit for the purpose of the informa-
tion that . . . Steele reviewed and the basis of formu-
lating her opinions or the opinions that she will be
formulating in this particular trial.
‘‘The Court: Not for the truth contained within?
‘‘[The Petitioner’s Counsel]: Not as far as what hap-
pened to . . . Maner’s trial or anything like that. Basi-
cally, just the information regarding the science of
witness identification.
‘‘The Court: Well, there, I assume, is testimony by
. . . Penrod?
‘‘[The Petitioner’s Counsel]: Correct.
‘‘The Court: And are you seeking to have me accept
that as for the truth contained in that testimony?
‘‘[The Petitioner’s Counsel]: For that limited purpose,
yes, Your Honor.
‘‘The Court: How’s that not hearsay?
‘‘[The Petitioner’s Counsel]: Well, I believe Your
Honor can take judicial notice [of] the particular tran-
script. If nothing else, it was a part of . . . Maner’s
appeal and that part of his appellate record.
‘‘The Court: What do I care about . . . Maner’s
[appeal]? I mean . . . this case involves [the peti-
tioner].
‘‘[The Petitioner’s Counsel]: I understand that, but
. . . Maner was [the petitioner’s] codefendant . . . . I
submit to the court that the information contained
therein is relevant to [the petitioner] as far as the eyewit-
ness identification is concerned, and the . . . availabil-
ity of the information that . . . Hopkins had and failed
to utilize at the time of [the petitioner’s] trial.
‘‘The Court: Objection’s sustained.’’
The record reveals, then, that the rationale advanced
for admission as a full exhibit was somewhat scattered.
The petitioner first suggested that the exhibit was
admissible for the purpose of showing a basis for
Steele’s opinions. Although, in some circumstances,
such information may be admissible for that limited
purpose,3 there is no requirement that such documents
be admitted as full exhibits, because the ‘‘facts’’ con-
tained therein are hearsay nonetheless. See, e.g., Tadros
v. Tripodi, 87 Conn. App. 321, 329, 866 A.2d 610 (2005)
(‘‘[t]he court was well within its discretion to allow [the
witness] to testify as to the bases of his expert opinion,
regardless of whether the documentation on which he
relied was itself admissible’’ [emphasis added]). The
record reveals that Steele testified at considerable
length about the developments in the law regarding
eyewitness identification, including Ledbetter and State
v. Guilbert, 306 Conn. 218, 49 A.3d 705 (2012),4 she
testified about the opinions which Penrod had
expressed during the Porter hearing in Maner’s criminal
trial; and the petitioner agreed in his brief that Steele
testified about the studies underlying the changes in
the law. The court did not abuse its discretion in declin-
ing to admit the transcript as a full exhibit on the basis
of it having been used in the formulation of Steele’s
expert opinions.
The petitioner also argues that the court erred by not
taking judicial notice of the transcript, because it was
a document created in the course of another judicial
proceeding. Section 2-1 of the Connecticut Code of Evi-
dence states in relevant part that ‘‘[a] court may, but
is not required to, take notice of matters of fact, in
accordance with subsection (c),’’ which provides that
a ‘‘judicially noticed fact must be one not subject to
reasonable dispute in that it is either (1) within the
knowledge of people generally in the ordinary course
of human experience, or (2) generally accepted as true
and capable of ready and unquestionable demonstra-
tion.’’ The opinions expressed by Penrod were simply
not the sort of uncontested facts contemplated by the
concept of judicial notice. See, e.g., State v. Guilbert,
supra, 306 Conn. 230 (admissibility of expert testimony
dependent on whether witness offered as expert has
any peculiar knowledge or experience, not common to
world, which aids fact finder); see also State v. Porter,
241 Conn. 57, 84–85, 698 A.2d 739 (1997), cert. denied,
523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).
In any event, the rule on its face grants discretion to
the court, and the court did not abuse its discretion,
especially in light of Steele’s testimony on the same
topic.
The petitioner argues on appeal that the court should
have admitted the transcript as a full exhibit pursuant
to the residual exception to the hearsay rule. This rea-
soning was not advanced to the habeas court and, thus,
was not preserved for review. ‘‘An appellant who chal-
lenges on appeal a trial court’s exclusion of evidence
is limited to the theory of admissibility that was raised
before and ruled upon by the trial court. A court cannot
be said to have refused improperly to admit evidence
during a trial if the specific grounds for admission on
which the proponent relies never were presented to the
court when the evidence was offered. . . . Error does
not lie in the exclusion of evidence claimed on an inad-
missible ground even though it might have been admis-
sible had it been claimed on another and different
ground [at trial]. . . . A contrary policy would allow
trial court proceedings to become a Kafkaesque aca-
demic test which [the trial judge] may be determined
to have failed because of questions never asked of him
or issues never clearly presented to him.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Polynice, 164 Conn. App. 390, 401, 133 A.3d 952, cert.
denied, 321 Conn. 914, 136 A.3d 1274 (2016). We, there-
fore, decline to review the claim that the transcript
should have been admitted on the basis of the residual
exception to the hearsay rule.5
Finally, Steele testified about the many resources
available to Hopkins at the time of the petitioner’s crimi-
nal trial, including the science that was beginning to
be accepted in the law. We do not see what value the
transcript would have added to the habeas court’s analy-
sis. The habeas court did not abuse its discretion in
declining to admit exhibit 19 into evidence as a full
exhibit.
III
The petitioner also claims that the habeas court erred
in concluding on the merits that the petitioner’s right
to the effective assistance of counsel was not violated.
The petitioner argues that Hopkins performed defi-
ciently by inadequately challenging the eyewitness testi-
mony of Bright and Emilia Caffrey. Specifically, he
argues that Hopkins should have moved to suppress
the identification made by Bright and should have more
effectively challenged the testimony of Bright and Emi-
lia Caffrey. We disagree.
We begin with the standard of review applicable to
this claim. ‘‘The habeas court is afforded broad discre-
tion in making its factual findings, and those findings
will not be disturbed unless they are clearly erroneous.
. . . Historical facts constitute a recital of external
events and the credibility of their narrators. . . .
Accordingly, [t]he habeas judge, as the trier of facts, is
the sole arbiter of the credibility of witnesses and the
weight to be given to their testimony. . . . The applica-
tion of the habeas court’s factual findings to the perti-
nent legal standard, however, 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. . . . As enunciated in
Strickland v. Washington, [466 U.S. 668, 686, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], [our Supreme Court]
has stated: It is axiomatic that the right to counsel is
the right to the effective assistance of counsel. . . . A
claim of ineffective assistance of counsel consists of
two components: a performance prong and a prejudice
prong. . . . The claim will succeed only if both prongs
are satisfied. . . .
‘‘To prove his or her entitlement to relief pursuant
to Strickland, a petitioner must first satisfy what the
courts refer to as the performance prong; this requires
that the petitioner demonstrate that his or her counsel’s
assistance was, in fact, ineffective in that counsel’s per-
formance was deficient. To establish that there was
deficient performance by the petitioner’s counsel, the
petitioner must show that counsel’s representation fell
below an objective standard of reasonableness. . . . A
reviewing court must view counsel’s conduct with a
strong presumption that it falls within the wide range
of reasonable professional assistance. . . . The range
of competence demanded is reasonably competent, or
within the range of competence displayed by lawyers
with ordinary training and skill in the criminal law. . . .
‘‘[J]udicial scrutiny of counsel’s performance must be
highly deferential. . . . A fair assessment of attorney
performance requires that every effort be made to elimi-
nate 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 inherent in making
the evaluation, a court must indulge a strong presump-
tion that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the [peti-
tioner] must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy. . . . In reconstructing the
circumstances, a reviewing court is required not simply
to give [the trial attorney] the benefit of the doubt . . .
but to affirmatively entertain the range of possible rea-
sons . . . counsel may have had for proceeding as [he]
did . . . .’’ (Citations omitted; internal quotation marks
omitted.) Spearman v. Commissioner of Correction,
164 Conn. App. 530, 537–39, 138 A.3d 378, cert. denied,
321 Conn. 923, 138 A.3d 284 (2016).
The following additional facts are relevant. At the
habeas trial, Hopkins testified that he hired an investiga-
tor to interview witnesses but did not use the results
of that investigation in the petitioner’s defense. Hopkins
testified to knowing that Bright and Emilia Caffrey were
shown photographic arrays, which included a photo-
graph of the petitioner two days after the shooting, and
that Bright had not been able to identify the petitioner
at that time. Bright later identified the petitioner at a
probable cause hearing and at trial. Hopkins also testi-
fied that he had reviewed Bright’s statement to police,
in which she said that she did not get a good look at
either of the two intruders. Hopkins said he ‘‘never
pursued a motion to suppress [Bright’s in-court identifi-
cations] . . . because, really, we used all of that back-
ground . . . for purposes of cross-examination, both
in the probable cause hearing and at trial, and made a
big issue out of it in front of . . . the three judge panel.’’
The habeas court then engaged in the following dis-
cussion with the petitioner’s counsel.
‘‘The Court: [Counsel], may I ask you a question?
‘‘[The Petitioner’s Counsel]: Yes, Your Honor.
‘‘The Court: [Bright] did not identify [the peti-
tioner]. Correct?
‘‘[The Petitioner’s Counsel]: Correct.
‘‘The Court: What . . . is there to suppress?
‘‘[The Petitioner’s Counsel]: The in-court identifica-
tion, Your Honor.
‘‘The Court: That’s her testimony.
‘‘[The Petitioner’s Counsel]: Well, it was. It wasn’t. But
it was also an identification that was made in court—
‘‘The Court: Well, I understand.
‘‘[The Petitioner’s Counsel]: —when asked.
‘‘The Court: But she’s there. She’s under oath.
‘‘[The Petitioner’s Counsel]: Correct.
‘‘The Court: She’s subject to cross-examination. . . .
[W]here is anything to be suppressed?
‘‘[The Petitioner’s Counsel]: I claim that a motion still
could have been done, argued. I’ll move off this subject
and I’ll—
‘‘The Court: I’m not telling you to move off. I’m just
asking you: where is the evidence that was subject to
a potential motion for suppression?
‘‘[The Petitioner’s Counsel]: Well, it would have been
the in-court identification. You could have moved to
suppress that. You could have also addressed it through
cross-examination.
‘‘The Court: Didn’t [Hopkins] just say he did that?
‘‘[The Petitioner’s Counsel]: Correct. I’m just clarify-
ing things, Your Honor.
‘‘The Court: So, what motion was [Hopkins] to have
filed pretrial before [Bright] made an identification in
court?
‘‘[The Petitioner’s Counsel]: It would have been a
motion to suppress, but he did not do that.
‘‘The Court: There was nothing to suppress.
‘‘[The Petitioner’s Counsel]: And I—
‘‘The Court: Was there?
‘‘[The Petitioner’s Counsel]: —understand that, Your
Honor. That is correct, Your Honor. . . . Your Honor’s
correct. I’ll withdraw that line of questioning. I won’t
proceed further on that.’’
The petitioner’s counsel then asked Hopkins if he
sought to suppress Emilia Caffrey’s identification of the
petitioner. Hopkins responded that he did not, stating: ‘‘I
just didn’t feel that there were any reasonable grounds
upon which to base such a motion.’’
In its memorandum of decision, the habeas court
stated the following: ‘‘The petition . . . attempts to
take . . . Hopkins to task for failing to adequately
address a suppression motion as to the pretrial eyewit-
ness identification of the petitioner by . . . Bright.
What emerged loud and clear from the testimony that
was received in this case is that there really were not
any grounds upon which the evidence could be sup-
pressed at trial. The petitioner’s own legal expert also
made it abundantly clear in her testimony that it was
her opinion that there was no basis upon which the
evidence could be prevented from being presented to
the three judge panel. So, there is nothing in . . . Hop-
kins’ trial representation on this point that merits
habeas relief. . . .
‘‘At the outset of this discussion, it is clear that . . .
Hopkins did an outstanding job of cross-examining both
of the eyewitnesses on their identifications. The tran-
scripts reveal it to be a vigorous and thorough job.
All of the facts that were necessary to undermine the
credibility and reliability of those identifications of the
petitioner were elucidated on [cross-examination]. In
fact, the petitioner’s own legal expert conceded as much
in her testimony.’’
The petitioner claims that pursuant to the principles
stated in State v. Dickson, 322 Conn. 410, 141 A.3d 810(2016), cert. denied, U.S. , 137 S. Ct. 2263, 198
L. Ed. 2d 713 (2017), decided approximately two years
after the decision of the habeas court in the present
case, Hopkins should have moved to suppress Bright’s
identification of the petitioner because she had been
unable to identify the petitioner from a photographic
array several days after the shooting, but later made
in-court identifications. At the probable cause hearing,
Bright testified that she first recognized the petitioner
when he had appeared in court after his arrest.
In Dickson, our Supreme Court concluded ‘‘that first
time in-court identifications, like in-court identifica-
tions that are tainted by an unduly suggestive out-of-
court identification, implicate due process protections
and must be prescreened by the trial court.’’ Id., 426.
The court specifically described the state of the law
prior to its decision in Dickson: an in-court identifica-
tion was subject to exclusion only when tainted by
an unnecessarily suggestive and unreliable out-of-court
identification; otherwise, an in-court identification was
subject only to cross-examination. Id., 422–23. The
court further stated that its holding regarding pre-
screening was to apply only to future cases and pending
related cases, and was not to be applied retroactively
in habeas actions. Id., 450–51 and 451 n.34.
At the time of the petitioner’s criminal trial, the con-
trolling law was State v. Smith, 200 Conn. 465, 512 A.2d
189 (1986), overruled in part by State v. Dickson, 322
Conn. 410, 141 A.3d 810 (2016), cert. denied, U.S.
, 137 S. Ct. 2263, 198 L. Ed. 2d 713 (2017). In Smith,
our Supreme Court stated that it knew ‘‘of no authority
which would prohibit, as unduly suggestive, an exclu-
sively in-court identification. . . . The defendant’s pro-
tection against the obvious suggestiveness in any
courtroom confrontation is his right to cross-examina-
tion. . . . The innate weakness in any in-court testimo-
nial identification is grounds for assailing its weight
rather than its admissibility.’’ (Citations omitted; inter-
nal quotation marks omitted.) Id., 470.
We of course consider Hopkins’ performance in light
of standards in effect at the time of the petitioner’s
criminal trial. ‘‘Counsel . . . performs effectively when
he elects to maneuver within the existing law . . . .’’
(Internal quotation marks omitted.) Ledbetter v. Com-
missioner of Correction, 275 Conn. 451, 462, 880 A.2d
160 (2005), cert. denied sub nom. Ledbetter v. Lantz,
546 U.S. 1187, 126 S. Ct. 1368, 164 L. Ed. 2d 77 (2006).
At the time of the petitioner’s criminal trial, there was
no legal ground for suppression, and Hopkins cross-
examined effectively. The habeas court did not err in
its conclusion that Hopkins did not perform deficiently
by not moving to suppress Bright’s identification.
The petitioner also argues that Hopkins did not ade-
quately attack the identifications made by Bright and
Emilia Caffrey. The petitioner specifically points to fac-
tors such as lighting, the short duration of the incident,
and stress experienced by the witnesses at the time
they saw the perpetrators, which, he now claims, should
have been more forcefully developed. He also posits
that the identifications were cross-racial and, as such,
would have affected the reliability of the identifications.
The petitioner argues that Hopkins should have used
an expert and should have stressed more applicable
case law.
There is no merit to the claim that Hopkins performed
deficiently by not presenting an expert on the issue of
eyewitness identification. At the time of the petitioner’s
criminal trial, the controlling law on the issue was State
v. Kemp, 199 Conn. 473, 507 A.2d 1387 (1986), overruled
in part by State v. Guilbert, 306 Conn. 218, 49 A.3d 705(2012), in which our Supreme Court observed ‘‘that
the reliability of eyewitness identification is within the
knowledge of jurors and expert testimony generally
would not assist them in determining the question. . . .
Such testimony is also disfavored because . . . it
invades the province of the jury to determine what
weight or effect it wishes to give to eyewitness testi-
mony.’’ (Citation omitted; internal quotation marks
omitted.) Id., 477.
Three years after the petitioner’s criminal trial, our
Supreme Court decided Guilbert, which overruled
Kemp. The court concluded that Kemp was ‘‘out of step
with the widespread judicial recognition that eyewit-
ness identifications are potentially unreliable in a vari-
ety of ways unknown to the average juror.’’ State v.
Guilbert, supra, 306 Conn. 234. The court also observed
that cross-examination ‘‘often is not as effective as
expert testimony at identifying the weaknesses of eye-
witness identification testimony because cross-exami-
nation is far better at exposing lies than at countering
sincere but mistaken beliefs.’’ Id., 243. The court noted
that ‘‘some circumstances undoubtedly call for more
than mere cross-examination of the eyewitness.’’ (Inter-
nal quotation marks omitted.) Id., 244.
Again, because the law in effect at the time of the
criminal trial discouraged the use of expert testimony
on the issue of eyewitness identification, Hopkins did
not perform deficiently by not presenting expert testi-
mony. It was reasonable for Hopkins to use cross-exam-
ination to attack the weight of the testimony of Bright
and Emilia Caffrey. Therefore, the habeas court did not
err in failing to find deficient performance pertaining
to this claim.
Finally, the petitioner claims that Hopkins performed
deficiently by not stressing in the course of cross-exami-
nation, even if an expert were not called to testify,
several factors identified as important in Guilbert. Per-
formance of counsel is not to be evaluated according
to standards enunciated three years after the criminal
trial. For example, in State v. Marquez, supra, 291 Conn.
164–65, our Supreme Court had held that a nonblind
photographic array was not unnecessarily suggestive.
We have reviewed the record of the cross-examinations6
and we conclude that the habeas court did not err in
finding the performance adequate.
The appeal is dismissed.
In this opinion the other judges concurred.
1
Maner, a coparticipant in the petitioner’s criminal activity, was tried
separately from, and after, the petitioner. The transcripts of Maner’s trial
were available to the petitioner at his habeas trial.
2
See State v. Porter, 241 Conn. 57, 80–90, 698 A.2d 739 (1997), cert. denied,
523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).
3
Section 7-4 (b) of the Connecticut Code of Evidence provides: ‘‘The facts
in the particular case upon which an expert bases an opinion may be those
perceived by or made known to the expert at or before the proceeding. The
facts need not be admissible in evidence if of a type customarily relied on
by experts in the particular field in forming opinions on the subject. The
facts relied on pursuant to this subsection are not substantive evidence,
unless otherwise admissible as such evidence.’’ (Emphasis added.)
4
Steele was appellate counsel for the defendant in both Ledbetter and
Guilbert.
5
We note that, although a court may take judicial notice of a file in another
case; see, e.g., State v. Bunkley, 202 Conn. 629, 648, 522 A.2d 795 (1987);
the specific evidence sought to be admitted is subject to ordinary evidential
standards, such as relevance and hearsay. State v. Speers, 17 Conn. App.
587, 601–602, 554 A.2d 769, cert. denied, 211 Conn. 808, 559 A.2d 1142, cert.
denied, 493 U.S. 851, 110 S. Ct. 150, 107 L. Ed. 2d 108, cert. denied sub nom.
George v. Connecticut, 493 U.S. 893, 110 S. Ct. 241, 107 L. Ed. 2d 192(1989). Such evidence may well be admissible to show that information
or documentation exists, as opposed to the truth of the information or
documentation. See, e.g., Heritage Village Master Assn., Inc. v. Heritage
Village Water Co., 30 Conn. App. 693, 701, 622 A.2d 578 (1993); see also C.
Tait & E. Prescott, Connecticut Evidence (5th Ed. 2014) § 2.16.5, p. 125. In
the present case, there was no dispute that the information existed.
6
During Hopkins’ cross-examination of Bright, he stressed, among other
things, her inability to give to the police an accurate description of the
intruders due to lighting issues, inconsistencies between her initial statement
to the police and testimony at trial, her not looking at the intruders because
she was told to look away, the short duration of the incident, and her inability
to pick the petitioner from a photographic array shortly after the shooting.
During Hopkins’ cross-examination of Emilia Caffrey, he asked her, among
other things, about her statement to the police in which she stated that she
did not get a good look at one of the two intruders, presumably the petitioner,
her being startled because she was fired upon, the short duration of the
incident, and her hesitancy in selecting the petitioner from a photo-
graphic array.