Brewer v. Commissioner of Correction

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JOHN BREWER v. COMMISSIONER
OF CORRECTION
(AC 40984)
Alvord, Sheldon and Eveleigh, Js.*
Syllabus
The petitioner, who had been convicted of the crimes of murder and criminal
possession of a firearm, filed a second petition for a writ of habeas
corpus, claiming that he received ineffective assistance from B, the
counsel who represented him with respect to his first habeas petition.
The habeas court rendered judgment dismissing three counts of the
second habeas petition and denying the petition as to the remaining
count. On appeal, this court concluded that the habeas court improperly
dismissed the claim of ineffective assistance of B in the second habeas
petition and remanded the matter for further proceedings. While the
appeal in the second habeas matter was pending, the petitioner filed a
third petition for a writ of habeas corpus, claiming that his second habeas
counsel rendered ineffective assistance. The third habeas petition and
the matter on remand concerning the second habeas petition were con-
solidated. Following a trial, the habeas court rejected the petitioner’s
claim that B was ineffective in failing to claim that his trial counsel
rendered ineffective assistance by failing to consult with a certain expert
and to object to the admission of certain prior inconsistent statements.
From the judgment rendered thereon, the petitioner, on the granting of
certification, appealed to this court. Held:
1. The habeas court properly concluded that B did not render ineffective
assistance in failing to claim in the petitioner’s first habeas action that
trial counsel rendered ineffective assistance by not consulting a forensic
pathologist to reconstruct the crime scene to discredit certain eyewit-
ness testimony; trial counsel investigated the possibility of a crime scene
reconstruction by consulting with D, an expert criminalist, who told
trial counsel that he could not perform such a reconstruction due to
the nature of the evidence available, trial counsel was entitled to rely
on D’s representation that the crime scene could not be reconstructed
and was not required to search for another expert to perform a recon-
struction, and because the testimony of the state’s medical examiner
at the petitioner’s criminal trial was consistent with the testimony of
the forensic pathologist that the petitioner presented at his habeas trial,
the jury had before it the same evidence that presumably would have
been revealed by an expert forensic pathologist.
2. The habeas court properly determined that B was not ineffective in failing
to claim in the petitioner’s first habeas corpus action that trial counsel
was ineffective in failing to object to the admission of certain prior
inconsistent statements from two witnesses; both trial counsel and B
testified at the habeas trial that it was not necessary to object to the
admission of evidence simply for the sake of objecting and that the
evidence at issue must be viewed within the context of the entire case,
trial counsel also testified that he did not object to the admission of
the statements at issue because he considered the admission of them
beneficial to the petitioner in that they highlighted the lack of credibility
of the two witnesses, and the habeas court properly determined that
trial counsel’s decision not to object to their admission was a reasonable
strategic decision based on his assessment that the statements were
beneficial to the petitioner.
Argued January 8—officially released April 30, 2019
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland, where the court, Kwak, J., dismissed the
petition in part; thereafter, the remaining count of the
petition was tried to the court; judgment denying the
petition; subsequently, the court denied the petition for
certification to appeal, and the petitioner appealed to
this court, which affirmed in part, reversed in part, and
remanded the matter for further proceedings; there-
after, the court, Sferrazza, J., granted the petitioner’s
motion to consolidate; subsequently, the matter was
tried to the court, Hon. John F. Mulcahy, Jr., judge
trial referee; judgment denying the petition, from which
the petitioner, on the granting of certification, appealed
to this court. Affirmed.
Daniel Fernandes Lage, assigned counsel, for the
appellant (petitioner).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Eva Lenczewski, supervisory assistant state’s
attorney, for the appellee (respondent).
Opinion
SHELDON, J. Following the granting of his petition
for certification to appeal, the petitioner, John Brewer,
appeals from the judgment of the habeas court denying
his petition for a writ of habeas corpus alleging ineffec-
tive assistance by his prior habeas counsel. On appeal,
the petitioner claims that the habeas court erred in
rejecting his claim that his prior habeas attorney ren-
dered ineffective assistance by failing to allege that his
criminal trial counsel rendered ineffective assistance
by failing (1) to consult with a forensic pathologist to
reconstruct the crime scene, and (2) to object to the
admission into evidence of certain witness statements.
We affirm the judgment of the habeas court.
The petitioner was convicted, following a jury trial,
of murder in violation of General Statutes § 53a-54a (a)
and criminal possession of a firearm in violation of
General Statutes (Rev. to 2001) § 53a-217, upon which
he ultimately was sentenced to a total effective sentence
of sixty years incarceration. His conviction was later
affirmed by our Supreme Court on direct appeal. See
State v. Brewer, 283 Conn. 352, 927 A.2d 825 (2007).
The Supreme Court set forth the following facts that
reasonably could have been found by the jury. ‘‘In the
early morning hours of December 29, 2001, the victim,
Damian Ellis, was with his friends, Damian Wade and
Arthur Hall, at the Athenian Diner in Waterbury (diner).
The [petitioner] also was present at the diner with a
group of friends that included Jason Greene, his
brother, Michael Greene, and Gregory Hunter. The vic-
tim’s group had a verbal altercation with the [petitioner]
and Hunter that prompted the restaurant manager to
eject both groups of men from the diner. The two groups
engaged in some additional verbal sparring and then
separated once outside the diner.
‘‘The [petitioner’s] group entered a black Lexus sport
utility vehicle, driven by Hunter, and was exiting the
diner parking lot when Hunter stopped the car in front
of the victim, who was standing outside the entrance
to the diner. Either Hunter or the victim reinitiated the
dispute, and Hunter subsequently exited the vehicle and
approached the victim’s group with a knife in his hand.
The victim backed away from Hunter, down a ramp on
the side of the diner, as the [petitioner] exited the vehi-
cle and moved to the corner of the building near the
ramp. The [petitioner] walked up to the victim and
shot him twice with a nine millimeter Cobray M-11
semiautomatic pistol. One shot entered the victim’s
brain and likely killed him within five seconds.
‘‘Following the shooting, the [petitioner] got back
into the Lexus, which was now driven by Jason Greene,
and the two men left the scene. The [petitioner] threw
the gun out of the car’s window and shortly thereafter
exited the vehicle. Jason Greene later directed the
police to the area in which the [petitioner] had dis-
carded the murder weapon.’’ Id., 353–54.
Following his conviction, the petitioner filed his first
habeas corpus petition in 2006, in which he was repre-
sented by Attorney Walter Bansley III, alleging ineffec-
tive assistance of his trial counsel, Attorney John Cizik.
The habeas court, Fuger, J., denied his petition and
his subsequent petition for certification to appeal. This
court dismissed his appeal from the judgment of the
habeas court. Brewer v. Commissioner of Correction,
133 Conn. App. 904, 34 A.3d 480, cert. denied, 304 Conn.
910, 39 A.3d 1121 (2012).
The petitioner filed a second habeas corpus action
in April, 2010. His amended petition in that action, filed
on June 5, 2013, contained four counts, three of which
were dismissed by the second habeas court, Kwak, J.
The second habeas court denied the petition as to the
one remaining count claiming ineffective assistance of
appellate counsel on direct appeal. The petitioner
appealed from the denial of the petition for certification
to appeal, and this court dismissed in part and reversed
in part the judgment of the second habeas court. Brewer
v. Commissioner of Correction, 162 Conn. App. 8, 22–
23, 130 A.3d 882 (2015). This court dismissed the appeal
as to the petitioner’s claims of ineffective assistance of
trial counsel and prosecutorial impropriety, but con-
cluded that the dismissal of his claim of ineffective
assistance of prior habeas counsel was improper and,
therefore, remanded that claim to the habeas court for
further proceedings in accordance with law. Id. The
petitioner did not challenge the denial of his claim of
ineffective assistance of appellate counsel.
While the appeal from the second habeas court’s judg-
ment was pending, the petitioner filed a third habeas
corpus petition alleging that his second habeas counsel,
Attorney Vicki Hutchinson, rendered ineffective assis-
tance. The third habeas corpus petition and the present
matter, on remand from this court, were ordered consol-
idated by the court, Sferrazza, J., upon motion of the
petitioner’s current habeas counsel.
On September 5, 2017, following a trial, the habeas
court, Hon. John F. Mulcahy, Jr., judge trial referee,
filed a memorandum of decision rejecting the petition-
er’s claims that his first habeas counsel, Bansley, was
ineffective in failing to claim in his first habeas action,
that his criminal trial counsel, Cizik, rendered ineffec-
tive assistance by failing to consult with a forensic
pathologist to reconstruct the crime scene, and failing
to object to the admission of prior inconsistent state-
ments by Jason Greene and Michael Greene. The court
subsequently granted the petitioner’s petition for certifi-
cation to appeal and this appeal followed.
‘‘The use of a habeas petition to raise an ineffective
assistance of habeas counsel claim, commonly referred
to as a habeas on a habeas, was approved by our
Supreme Court in Lozada v. Warden, 223 Conn. 834,
613 A.2d 818 (1992). In Lozada, the court determined
that the statutory right to habeas counsel for indigent
petitioners provided in General Statutes § 51-296 (a)
includes an implied requirement that such counsel be
effective, and it held that the appropriate vehicle to
challenge the effectiveness of habeas counsel is through
a habeas petition. . . . In Lozada, the court explained
that [t]o succeed in his bid for a writ of habeas corpus,
the petitioner must prove both (1) that his appointed
habeas counsel was ineffective, and (2) that his trial
counsel was ineffective. [Id.,] 842. As to each of those
inquiries, the petitioner is required to satisfy the familiar
two-pronged test set forth in Strickland v. Washington,
[466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984)]. First, the [petitioner] must show that counsel’s
performance was deficient. . . . Second, the [peti-
tioner] must show that the deficient performance preju-
diced the defense. . . . Unless a [petitioner] makes
both showings, it cannot be said that the conviction
. . . resulted from a breakdown in the adversary pro-
cess that renders the result unreliable. . . . Lozada v.
Warden, supra, 842–43. In other words, a petitioner
claiming ineffective assistance of habeas counsel on
the basis of ineffective assistance of trial counsel must
essentially satisfy Strickland twice . . . .
‘‘In any case presenting an ineffectiveness claim, the
performance inquiry must be whether counsel’s assis-
tance was reasonable considering all the circum-
stances. . . . Judicial scrutiny of counsel’s
performance must be highly deferential and courts 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 chal-
lenged action might be considered sound trial strategy.
. . . [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.
. . . With respect to the prejudice prong, the petitioner
must establish that if he had received effective represen-
tation by habeas counsel, there is a reasonable probabil-
ity that the habeas court would have found that he
was entitled to reversal of the conviction and a new
trial . . . .
‘‘It is well settled that in reviewing the denial of a
habeas petition alleging the ineffective assistance of
counsel, [t]his 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.)
Adkins v. Commissioner of Correction, 185 Conn. App.
139, 150–52, 196 A.3d 1149, cert. denied, 330 Conn. 946,
196 A.3d 326 (2018).
I
The petitioner first claims on appeal that the habeas
court erred in concluding that Bansley did not render
ineffective assistance by failing to allege in his first
habeas action that Cizik’s representation of him was
ineffective because he failed to consult with a forensic
pathologist to reconstruct the crime scene to discredit
the state’s case—more specifically, the eyewitness testi-
mony of Gregory Hunter. We disagree.
In addressing this claim, the habeas court set forth
the following summation of the evidence adduced at
the petitioner’s criminal trial. ‘‘Evidence presented indi-
cated the shooting occurred on a down slanted ramp
off (and to the side of) the stairs leading to and from
the doorway of the diner. Hunter acknowledged that
the argument inside the diner escalated to the point
that his group (Hunter, [the] petitioner, and the two
Greenes) and the victim’s group (Ellis, AJ, and Damien
Wade) were asked by the management to leave—‘take
it outside.’ In his statement to the police, Hunter
described the circumstances of the shooting, as follows:
‘Once outside the argument got worse and we were
yelling at each other. [Ellis] was yelling to me that me
and my cousins were all snitches and I was yelling back
at him that he was the snitch. We yelled at each other
to go meet up at the hill to fight. Then me, the Greenes
and [the petitioner] walked to the Lexus and got in and
wanted to drive out to go up to Long Hill to fight [Ellis].
I was driving. We were driving up the driveway toward
the street and near the entrance on the ramp area I saw
[Ellis] and he was yelling at me . . . I got pissed so I
stopped the Lexus by the ramp and got out. I walked
up the stairs toward [Ellis]. We were face to face on
the ramp and . . . [Ellis] was walking backwards
down the ramp and I was walking towards him. I had
a folding knife out and I was holding it while walking
at him. Mike Greene and some other people were trying
to hold me back and telling me to chill. I saw [the
petitioner] get out of the passenger side of the Lexus
walking toward the corner side of the diner and he was
holding his gun. [The petitioner’s] gun was on a strap
that was on his shoulder. Me and [Ellis] were still yelling
at each other and we were near the corner of the diner.
I could see [the petitioner] walk up to [Ellis] and [the
petitioner] shot him in the right side of the head and
[Ellis] spun around and started falling backward and
[the petitioner] shot him again in the chest. I saw [the
petitioner] run back into the Lexus and Jason [Greene]
drove off. Me and Mike went across the street to the
gas station and Mike saw some guy he knew and asked
him for a ride and he gave us a ride to mother’s house.
Yesterday morning, [December 29, 2001], when the
police came to talk to me I turned over to them the
knife I had when I was arguing with [Ellis].’
‘‘Hunter’s trial testimony was substantially consistent
with his statement to the police. Prior to his testimony,
the medical examiner, Dr. Arkady Katsnelson, had testi-
fied and the postmortem report was put in evidence; as
would be expected, given an obvious concern stemming
from frontal entry wounds and right to left trajectories,
Hunter was examined closely and extensively by both
counsel concerning the positioning of himself and the
petitioner at the time of the shooting. He testified on
direct: By the time I pulled out my knife, the petitioner
‘came from behind him [the victim] and shot him.’
Hunter testified the victim was facing him. ‘He [the
petitioner] came . . . kind of like towards around from
his back, like the right side of him.’ When asked where
he was standing when he heard the gunshots, he
answered, ‘on the ramp . . . with Ellis . . . looking
toward’ me. Hunter also stated he could see the gun in
the petitioner’s hand, a distinctive gun that he had seen
the petitioner with earlier that evening.
‘‘On cross, Hunter said that at the time of the first
shot, the gun was not pressed up against the side of
the victim’s head; he estimated that the gun was ‘about
two or three feet away from [the victim] when first
fired. When asked from which side of [the victim] the
gun came into view, Hunter answered, ‘[l]ike towards
. . . the back left side of him [the victim].’ On redirect,
Hunter testified that at the time the shot was fired, the
petitioner would have been behind [the victim] to the
left. On further examination, Hunter stated that the
first shot hit [the victim] in the head, [the victim] spun
around, ‘almost right in front of [the petitioner], but at
that time, Mike Greene was . . . pulling me away and
all I seen . . . was the back of . . . [the victim]’ when
I (Hunter) heard the second shot. Hunter was asked
‘as you sit here now, is there any doubt in your mind
that [the petitioner] was the one who held the gun and
pulled the trigger that fired the shots into [the victim]?’
The response was, ‘No.’
‘‘Dr. Katsnelson testified that the bullet to the head
penetrated the victim’s skull from right to left and exited
from the rear of the head; the bullet tract is front to
back, right to left, and slightly downward. . . . He testi-
fied that it is his opinion that there was only one shooter
because the gunshot wounds are the same, right to left,
and front to back, and the general direction of each
bullet track is the same. He believes the two shots were
fired within a short period of time because they are
basically ‘in the same directions to the head and to the
chest cavity;’ he cannot be more specific about the
length of time between the two shots, but ‘I can tell
because the shots are in the same general directions
. . . I believe there was an extremely short interval
between the shots.’ Dr. Katsnelson testified that the
entry wound to the head was not a contact wound; the
muzzle of the gun was not pressed against the victim’s
head. He believed the shooter was in front of the victim
and ‘the victim’s right side was exposed to the gun.’
Because there was evidence of gun powder stippling
on the skin of the head, he believes the victim was shot
from a distance of approximately, not exactly, up to six
feet—‘[i]n my opinion, it’s approximately in the range
of six feet.’. . .
‘‘Dr. Katsnelson said he thought the shot to the head
came from the front, but the shooter could have been
on the side of the victim; it could have been from the
side, from the front, but not from the back. And, the
victim’s head could have been turned to the side;
‘[d]epends on the position of the head in this time when
he was shot.’ Dr. Katsnelson testified: ‘I don’t believe
that somebody will see a gun [and] not try to turn the
head or to move somewhere and he was even in the
front of the shooter, probably the victim was trying to
somehow instinctively . . . turn his head and received
the bullet in the right side.’ ’’ (Footnotes omitted.)
At his habeas trial, the petitioner offered the testi-
mony of Dr. Mark Taff, an expert in forensic pathology
and crime scene reconstruction, to contradict Hunter’s
testimony that the petitioner had approached the victim
from his rear left side before shooting him in the right
side of the head. Taff testified, inter alia: ‘‘The bullet
passed through the [victim’s] head from a right to left
direction. The bullet in the chest went from right to
left. So, the person who is shooting the victim, assuming
it’s a freeze-frame position, is going to be most likely
somewhere in front of the victim, somewhere to the
victim’s right.’’ Taff expressed the view that the position
of the shooter in front of the victim, slightly to the
right, was essentially beyond dispute absent a person,
or persons, of extraordinary dexterity.
The habeas court also heard testimony from Cizik,
who testified that he considered the possibility of a
crime scene reconstruction and, to that end, he con-
sulted with Dr. Peter DeForest, who is a criminalist. At
Cizik’s request, DeForest examined all of the evidence,
read all of the reports and looked at all of the photos
in this case. DeForest told Cizik that he was unable to
do a reconstruction of the crime scene because there
was insufficient physical evidence in the case, and there
were too many variables in the evidence that did exist,
to do so. For example, the crime scene had not been
immediately secured, so there no way to be certain if
the shell casings were where they would have been
when ejected from the gun, and there was no way to
determine where or how the victim fell. DeForest did,
however, counsel Cizik on some of the areas to cross-
examine the medical examiner, as well as the police
officers who processed the evidence at the crime scene.
Cizik testified that he did not think it was necessary to
consult a forensic pathologist because DeForest
advised him fully.
Bansley also testified at the petitioner’s habeas trial.
Bansley recalled reviewing the trial transcripts in this
case and noticing inconsistencies between Hunter’s tes-
timony and the physical evidence as interpreted by Kats-
nelson. He testified that because of those
inconsistencies, he conferred with a forensic patholo-
gist, a doctor who he had used in other cases, and who
was a former medical examiner in Connecticut. After
reviewing the crime scene reports, the pathologist told
Bansley that he could not be of any help because there
were problems with the crime scene, specifically, as
Bansley stated, ‘‘things being moved around.’’ Based
upon that response, Bansley did not pursue the claim
further. Bansley also emphasized that such a claim was
immaterial because the petitioner claimed that he was
not present when the victim was shot and had pro-
ceeded to trial with an alibi defense.
On the basis of the foregoing testimony, and its review
of the trial court record, the habeas court rejected the
petitioner’s claim that Cizik was ineffective in not con-
sulting a forensic pathologist. The court held: ‘‘This
court has the highest respect for both experts; both Dr.
Katsnelson and Dr. Taff have impeccable credentials
and years of experience in the field of forensic pathol-
ogy. Each, according to the evidence, has performed
thousands of autopsies. It certainly appears that Dr. Taff
agreed with the medical examiner as to the likelihood
of movement of victim and shooter while the murder
unfolded; as his report states: ‘Just the sight of a gun
pointed at a human target is enough to trigger a rapid,
behavioral response in both the victim . . . and the
shooter . . . which would change the spatial relation-
ship between the actors.’ It is the court’s view that what
took place on that ramp did not occur in particularly
slow motion, or in any sort of a ‘freeze-frame’ manner.
It is also the court’s view that in the factual commission
of the actual shooting, there are, necessarily, many vari-
ables regarding positioning.
‘‘Dr. Taff postulated that an easy manner in which
to reconstruct a shooting was to compare the victim
to the sun at the center of the universe with the planets
(shooters) orbiting around the victim. He testified that
such [a] ‘dynamic helps to understand all possible spa-
tial relationships, distances, angles, heights, and move-
ment of the individuals involved.’ However, Dr. Taff
observed that ‘in contrast to solid planetary masses,
human beings have articulated joints which are flexible
and able to bend/change positions and alter body
lengths.’ Here, both bullets passed through the victim
front to back and right to left; therefore, Dr. Taff testi-
fied, ‘the person who is shooting the victim, assuming
it’s freeze-frame position, is going to be most likely
somewhere in front of the victim, and somewhere to
the victim’s right.’ . . .
‘‘Seemingly predicated on an assumption of substan-
tial immobility of shooter and victim, a courtroom dem-
onstration with the doctor as the victim and counsel
as the shooter was presented. This claimed demonstra-
tive aid consisted of various scenarios, around four
quadrants; in each, either party, the victim or the
shooter, was presented as, or presumed to be, station-
ary. Such, in the court’s view, was not particularly realis-
tic considering the entire evidence, including Hunter’s
statement, his testimony, and the statements and testi-
mony of others. The totality of the evidence does not
readily lend itself to a brief series of still frames.
‘‘It is clear from the evidence that when Hunter
jumped out of the Lexus, tempers were flaring; he was
armed with a knife and walking at [the victim], with
the latter moving backward down the ramp toward the
corner of the building. The victim was being pursued
by an enraged Hunter, armed with a knife, and, whether
known or unknown, someone approaching him from
behind with a gun. At the same time, Damian Wade was
between the victim and Hunter trying to keep the two
apart; also, at the same time, Michael Greene was grab-
bing Hunter attempting to hold him back. The evidence
indicates, indeed, much movement; as the respondent
[the Commissioner of Correction] argues, even a minor
bend, twist, crouch, or a slight turn could have signifi-
cant impact on any opinion as to the precise position
of the shooter or the victim when the first shot was fired.
Thus, there exist innumerable imponderables. Such, in
the court’s view, offers reasonable confirmation to what
Dr. DeForest related to trial counsel and to what habeas
counsel’s forensic pathologist opined: there was not
enough physical evidence to do a meaningful recon-
struction.
‘‘What Dr. Taff’s report and testimony do is highlight
the obvious inconsistency between Dr. Katsnelson’s
findings and an isolated portion of Hunter’s statement
(and testimony) describing the actual shooting. But,
that inconsistency was apparent from the very begin-
ning and was addressed through examination of wit-
nesses at trial, trial counsels’ summations, and
postverdict discussions by first habeas counsel with a
forensic pathologist. At the criminal trial, the petition-
er’s counsel cross-examined Hunter on his version of
the shooting and made reference to the inconsistent
evidence in summation. The state certainly acknowl-
edged the importance of the issue when, toward the
end of its summation, it referred to ‘the physics of this,
how it all happens,’ and offered a somewhat plausible
explanation. . . . Thus, the issue was neither over-
looked nor ignored by counsel. As Attorney Bansley
put it, an expert was not needed to know that there
was a discrepancy between the Katsnelson findings and
part of the Hunter account of the incident.
‘‘From the inception of his representation of the peti-
tioner, and throughout the case, trial counsel, Attorney
Cizik, consulted and conferred with his expert, Dr.
DeForest, who advised that a crime scene reconstruc-
tion was not feasible given the many variables and the
dearth of physical evidence. Dr. DeForest remained on
in a consulting capacity aiding trial counsel, through
his experience and expertise, in the preparation of the
case and the cross-examination of witnesses. Neither
the evidence nor the record supports any finding of
deficient performance on the part of trial counsel in
not retaining the services of, or otherwise consulting
with, a forensic pathologist relative to the anatomical
positioning of shooter and victim.
‘‘Furthermore, the petitioner’s defense in the criminal
case, from the very beginning, was grounded on an alibi,
as is apparent from the credible testimony of trial and
prior habeas counsel before this court, the petitioner’s
testimony before the jury, the petitioner’s testimony [in
his previous habeas trial], and the presentation of the
petitioner’s alibi witness at the criminal trial, David
Whitney. It would seem that positioning evidence
related to shooter and victim—who was standing where
when the gun was fired—is of somewhat questionable
materiality, even for impeachment purposes, when the
petitioner claims he was not even there. . . .
‘‘Based upon the foregoing, the court concludes that
the petitioner has failed to show that Attorneys Cizik
and Bansley rendered deficient representation in the
criminal trial and the first habeas. Even if the court
were to assume deficient performance has been proven,
which it has not, the petitioner has not proven that
he was prejudiced by such deficient performance by
undermining this court’s confidence in the outcome of
the criminal trial.’’ (Emphasis added; footnotes
omitted.)
On appeal, the petitioner claims that Bansley should
have claimed, in his first habeas action, that Cizik’s
representation of him was ineffective because he should
have consulted a forensic pathologist to reconstruct
the crime scene to undermine Hunter’s testimony.
We disagree.
‘‘As this court previously has observed, [a] trial attor-
ney is entitled to rely reasonably on the opinion of an
expert witness . . . and is not required to continue
searching for a different expert. . . . Moreover, it is
well established that when a criminal defense attorney
consults with an expert in a relevant field who there-
after apprises counsel that he or she cannot provide
favorable testimony, counsel is entitled to rely reason-
ably on [that] opinion . . . and [is] not required to con-
tinue searching for a different expert. . . . [T]he
selection of an expert witness is a paradigmatic exam-
ple of the type of strategic choic[e] that, when made
after thorough investigation of [the] law and facts, is
virtually unchallengeable.’’ (Citations omitted; internal
quotation marks omitted.) Nicholson v. Commissioner
of Correction, 186 Conn. App. 398, 413–14, 199 A.3d 573(2018), cert. denied, 330 Conn. 961, 199 A.3d 19 (2019).
Here, Cizik investigated the possibility of a crime
scene reconstruction by consulting with DeForest, an
expert criminalist. DeForest told Cizik that he could
not perform such a reconstruction due to the nature of
the evidence available. Cizik was entitled to rely on
DeForest’s representation that the crime scene could
not be reconstructed, and was not required to search
for another expert to perform a reconstruction. More-
over, the testimony of the state’s medical examiner,
Katsnelson, was consistent with Taff’s testimony, so
the jury had before it the same evidence that presum-
ably would have been revealed by a forensic pathologist
such as Taff. We thus conclude that the habeas court
properly concluded that Bansley did not render ineffec-
tive assistance in failing to claim in the petitioner’s first
habeas action that Cizik rendered ineffective assistance
to the petitioner in not consulting a forensic pathologist.
II
The petitioner also claims that the habeas court erred
in rejecting his claim that Bansley rendered ineffective
assistance by failing to claim in the petitioner’s first
habeas action that Cizik was ineffective by failing to
object at trial to the admission, as substantive evidence,
of prior inconsistent statements of Jason Greene and
Michael Greene. We disagree.
The habeas court set forth the following facts in its
discussion of this claim. ‘‘Jason Greene gave two state-
ments to Waterbury Police Detective Kennelly on
December 29, 2001, within hours of the murder. The
statements are inconsistent in a number of respects.
The most glaring inconsistency concern[ed] his first
statement reciting he saw the petitioner jump out of
the Lexus and ‘walk up to [the victim] point a gun at
him and shoot him twice.’ In the second statement he
changes his recollection of the shooting as follows:
‘[W]e all walked back to the Lexus . . . Greg was driv-
ing . . . [the victim] was standing in the middle of the
walkway and yelled something at us . . . Greg got out
along with Michael and [the petitioner] . . . I watched
Greg walked up the front stairs and down the walkway
. . . [the petitioner] was walking down the driveway
to the corner of the building . . . I got out of the rear
seat and got in the driver’s seat . . . Then I heard two
shots behind me . . . looked back to see what was
happening and [the petitioner] was getting into the front
passenger seat . . . I looked down and saw a gun in
his hand . . . I asked [the petitioner] what was going
on and he said ‘‘go, go, I shot that dude . . . .’’’ In his
trial testimony, he denied ever telling the police that
he saw the petitioner shoot [the victim]. Detective Ken-
nelly testified, credibly, to the circumstance sur-
rounding the taking of both statements.
‘‘With respect to Michael Greene, he provided a state-
ment on December 29, 2001, to Waterbury Police Sgt.
Jannetty, also within hours of the murder, in which he
said that at first he did not want to say anything about
[the petitioner] shooting [the victim] ‘because [the peti-
tioner’s] my cousin, and I didn’t want to see him go to
jail.’ In the statement, Michael Greene gives the follow-
ing account of what occurred: ‘[The victim] and Gregory
kept arguing in the lobby . . . [the petitioner] also had
some words with . . . [the victim] . . . he seemed to
be sticking up for Gregory . . . [the victim] was saying
he wanted to handle it all another day . . . [the peti-
tioner] was saying ‘‘[Expletive] that, we ain’t letten’ this
[expletive] ride’’ . . . We got in the Lexus . . . I
looked in the backseat and saw the petitioner holding
a gun . . . the gun he always carries . . . When we
got up to the front of the diner by the ramp . . . [the
victim] was saying something . . . Gregory jumped out
of the driver’s side to confront [the victim] . . . Me
and [the petitioner] ran out of the Lexus and I grabbed
Gregory from behind . . . [the petitioner] walked up
to [the victim] from behind, said ‘‘[Expletive],’’ and held
up the gun and shot him twice . . . [the victim] fell
onto the ramp, and landed backwards on the side of the
diner.’ In his trial testimony, Michael Greene basically
repudiates critical portions of his December 29, 2001
statement denying that he actually saw the petitioner
shoot [the victim], and that he observed the petitioner
with a gun. [Jannetty] testified, credibly, to the circum-
stance[s] surrounding the taking of both statements.’’
At the habeas trial, Cizik testified that he did not
object to the substantive admission of the Greenes’
statements because those statements undermined their
credibility and ‘‘that could only be a good thing for the
jury to see.’’
Bansley agreed with Cizik’s strategic decision not to
object to the admission of the statements of the
Greenes, testifiying that ‘‘the more inconsistent state-
ments that were presented in court, were more effective
to the defense in showing that these individuals were
untruthful and shouldn’t be believed. I thought that was
more important than objecting to it. I don’t . . . per-
sonally . . . believe in objecting just because you can
and just because you can win an objection. You’ve got to
look beyond that and see whether the evidence actually
hurts, and in this case I thought it was helpful because
it impeached the credibility of the witnesses.’’ Bansley
further explained: ‘‘[W]hen I looked at the totality of
the evidence and reviewed the transcripts, I thought it
was more favorable that this evidence went in than not
. . . [because] both of these individuals were present
at the scene. Easily, you could have pointed fingers at
them, so they had a reason to lie. On top of that, they’re
talking about the police making threats. Frankly, I
thought the combination of all that brought a fair
amount of reasonable doubt.’’1
The habeas court held: ‘‘Attorney Cizik, as an experi-
enced criminal trial lawyer, was well aware of the evi-
dentiary law on the substantive use of inconsistent
statements under 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)]. He was also well aware that
Whelan was not a ‘blanket rule’ . . . and of the trial
court’s limited ‘gate-keeping’ function upon objection.
[Cizik] testified, credibly, that he did not adhere to the
concept of objecting for the sake of objecting, particu-
larly where it appeared futile based on his assessment,
and most especially when he believed the admission of
the statements would benefit the defense by unveiling
initial falsehoods and highlighting a [witness’] proclivity
to fabricate. In the court’s view, such was a prudential
tactical determination on the part of counsel, and no
evidence has been presented that, under these circum-
stances, the decision not to object rendered the repre-
sentation, under the Strickland standard, ‘outside the
range of competence displayed by lawyers with ordi-
nary training and skill in the criminal law,’ nor has the
petitioner shown the required prejudice.’’ (Footnote
omitted.)
On appeal, the petitioner claims that the habeas court
erred in rejecting his claim that Bansley rendered inef-
fective assistance by failing to raise, in his first habeas
action, the claim that Cizik’s representation of him was
deficient in failing to object to the statements at issue
because that failure allowed ‘‘harmful evidence against
[the petitioner to reach] the jury.’’ We disagree.
As noted herein, our scrutiny of counsel’s perfor-
mance is highly deferential, and we must indulge a
strong presumption that counsel’s performance falls
within a wide range of reasonable representation. See
Adkins v. Commissioner of Correction, supra, 185
Conn. App. 151.
Both Cizik and Bansley testified that it is not neces-
sary to object to the admission of evidence simply for
the sake of objecting, and that the evidence at issue
must be viewed within the context of the entire case.
Cizik testified at the habeas trial that he did not object
to the admission of the statements at issue because he
considered the admission of those statements beneficial
to the petitioner. Bansley agreed with Cizik’s assess-
ment that the inconsistency of those statements was
beneficial to the petitioner in that they highlighted the
lack of credibility of the two witnesses. Even if there
was a likelihood that the trial court would have sus-
tained an objection to the admission of the statements,
we agree with the habeas court that Cizik’s decision not
to object to their admission was a reasonable strategic
decision based on his assessment that the statements
were beneficial to the petitioner. We thus conclude that
the habeas court properly determined that Bansley was
not ineffective in failing to claim in the petitioner’s first
habeas corpus action that Cizik was ineffective in failing
to object to the admission of the statements of Jason
Greene and Michael Greene.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Bansley also testified that the admission of the statements was irrelevant
to the petitioner’s defense at trial, which was that he was not even present
when the victim was killed.