Peeler v. Commissioner of Correction

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RUSSELL PEELER v. COMMISSIONER
OF CORRECTION
(AC 37382)
Alvord, Prescott and Mihalakos, Js.
Argued November 15, 2016—officially released February 14, 2017
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
Lisa J. Steele, assigned counsel, for the appellant
(petitioner).
Harry Weller, senior assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, Craig P. Nowak, senior assistant state’s attorney,
and Richard K. Greenalch, deputy assistant state’s
attorney, for the appellee (respondent).
Opinion
ALVORD, J. The petitioner, Russell Peeler, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus.1 On appeal, the
petitioner claims that the habeas court erroneously (1)
deprived him of his right to self-representation; (2) con-
cluded that his claim that his expeditious criminal trial
schedule violated his constitutional rights had been pro-
cedurally defaulted; (3) concluded that appellate coun-
sel provided effective assistance; and (4) concluded
that the state did not suppress evidence in violation of
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10
L. Ed. 2d 215 (1963).2 We disagree and, accordingly,
affirm the judgment of the habeas court.
The following factual and procedural history, as set
forth in State v. Peeler, 271 Conn. 338, 348–55, 857 A.2d
808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 103
L. Ed. 2d 110 (2005) (Peeler II), is relevant to the present
appeal. ‘‘In the late 1990s, the [petitioner] and his
brother, Adrian Peeler (Adrian), operated a large-scale
drug trafficking network that sold crack cocaine (crack)
throughout the city of Bridgeport. In 1997, the [peti-
tioner] partnered with Rudolph Snead, Jr., to produce
and distribute the crack. Snead’s responsibilities
included providing the [petitioner] with powdered
cocaine, which the [petitioner], with the help of several
associates, processed into crack and then sold on the
streets. The partnership began to sour when, in 1997,
the [petitioner] accused Snead of overcharging him for
the powdered cocaine. Snead responded to the accusa-
tion by ‘shooting up’ a building on Benham Street in
Bridgeport that the [petitioner] used as a ‘crack house.’
According to one of the [petitioner’s] associates, the
[petitioner] vowed to retaliate.
‘‘In September, 1997, the [petitioner], Corey King,
Shawn Kennedy, and the [petitioner’s] cousin, Ryan
Peeler (Ryan), were driving in Bridgeport when the
[petitioner] noticed Snead’s car parked in the lot of a
barber shop. The [petitioner] observed Snead leave the
barber shop, get into his car and drive away. At the
time, the [petitioner] was aware that two young boys,
later identified as Leroy Brown, Jr., and Tyrell Snead
(Tyrell), were passengers in Snead’s car.
‘‘The [petitioner’s] car followed Snead’s car to the
Lindley Avenue entrance ramp to Route 25. As Snead
proceeded up the ramp, he slowed down and pulled
off to the side. The [petitioner’s] vehicle pulled up next
to Snead’s car, and the [petitioner], who was seated in
the right front passenger seat, fired several shots at
Snead from a .40 caliber, semi-automatic handgun.3 The
[petitioner] kept shooting until his gun jammed.
‘‘Several of the shots fired by the [petitioner] hit
Snead, injuring him, but not so severely that he was
unable to drive away. A Bridgeport police officer, who
noticed glass falling from Snead’s car as he drove by,
stopped the vehicle. After Snead explained what had
happened, the officer sent him to St. Vincent’s Medical
Center for treatment.
‘‘At the hospital, another officer from the Bridgeport
police department interviewed Snead and his two young
passengers, Brown and Tyrell. The officer’s investiga-
tive report included the names of all three interviewees.
On the basis of Snead’s identification of the [petitioner]
as the person who had shot him, the [petitioner] was
arrested and charged with attempted murder.
‘‘The [petitioner], however, posted bond and was
released from custody. After his release, the [petitioner]
made it clear to his associates that he was furious with
Snead for reporting the Lindley Avenue shooting to the
police, and that he was going to ‘get’ him for giving a
statement to the police. Subsequently, in May, 1998,
while free on bond, the [petitioner] shot and killed
Snead in the same barber shop that Snead had patron-
ized immediately prior to the Lindley Avenue shooting.
‘‘While investigating Snead’s death, the Bridgeport
police department performed ballistics tests comparing
the shell casings retrieved from the murder scene with
those from the Lindley Avenue shooting. The tests
revealed that all of the bullets had been discharged
from the same gun. The police were also aware that
Brown could identify the [petitioner] as the shooter in
the Lindley Avenue shooting, thus linking him directly
to Snead’s murder. On the basis of this information, the
[petitioner] was arrested and charged with Snead’s
murder.
‘‘The [petitioner], however, again secured his release
by posting bond. As a condition of his release, the [peti-
tioner] was required to observe a curfew and wear an
electronic ankle bracelet to ensure compliance. Despite
these precautions, the [petitioner] continued operating
his drug trafficking business, albeit from a new location.
‘‘In January, 1998, during the course of pretrial discov-
ery in connection with the Lindley Avenue shooting, the
state provided defense counsel with the police report
identifying Brown and Tyrell as the two passengers in
Snead’s car when that shooting had occurred. The trial
court, however, ordered counsel to conceal the names
of the two children from the [petitioner] to ensure
their safety.
‘‘During the fall of 1998, the [petitioner] frequently
discussed his pending cases with his attorney, and often
speculated as to the identity of the state’s witnesses.
He noticed that his attorney had made an extraordinary
effort to prevent him from learning the name or names
of the state’s witnesses. The [petitioner], however,
remembered that during the Lindley Avenue shooting
Snead had been accompanied by two children, Tyrell
and Brown. He therefore surmised that those children
could be the state’s witnesses in the cases pending
against him.
‘‘The [petitioner’s] suspicions were confirmed when,
one day while driving past 207 Earl Avenue in Bridge-
port, where Brown lived with his mother, Karen Clarke,
the [petitioner] saw Brown playing outside. When
Brown saw the [petitioner], he looked surprised and
immediately ran away. As a result, the [petitioner] con-
cluded that Brown was in fact one of the state’s wit-
nesses. The [petitioner] thereafter openly contemplated
the possibility of having someone kill Brown and
Clarke.
‘‘In December, 1998, the [petitioner] told his girl-
friend, Angelina Keene, that she should move away from
Bridgeport because he was going to start killing the
witnesses against him.4 At about the same time, the
[petitioner] offered Kybarris Taylor $10,000 to kill two
people. Specifically, the [petitioner] told Taylor that he
wanted to eliminate ‘two nobodies.’ Taylor refused the
offer. The [petitioner] also asked his brother Adrian
and Josephine Lee, a crack addict and prostitute who
lived across the street from Clarke and Brown, to carry
out the killings. They too initially refused. Ultimately,
however, Adrian agreed to commit the double homicide.
‘‘The [petitioner] also told his associates that he
wanted the witnesses killed with a revolver because,
unlike a .40 caliber semi-automatic handgun, the shell
casings would not be discharged from the revolver,
making it more difficult to link the shootings to the gun.5
In October, 1998, one of the [petitioner’s] associates
in the drug trade, Albrent Daniels, procured for the
[petitioner] the revolver that was to be used to kill
Clarke and Brown. . . . [King, another associate of the
petitioner,] testified that at one point after the [peti-
tioner] had gained possession of the gun, the [peti-
tioner] described to several of his associates, including
Adrian, what he intended to do with it. He said that he
would put the gun to Brown’s head and go ‘[p]ow,’
simulating the sound of a gunshot. The gun eventually
was given to the [petitioner’s] brother, Adrian.
‘‘At this same time, the [petitioner] and his drug traf-
ficking associates moved their crack production to a
house located at 200 Earl Avenue in Bridgeport, across
the street from the house in which Clarke and Brown
then lived. The residents of the 200 Earl Avenue address,
including Lee, were crack users who obtained the drug
from the [petitioner’s] drug trafficking network.
‘‘Lee testified that on January 6, 1999, the day before
the Clarke and Brown murders, the [petitioner] and an
associate, later identified as King, were at the house
located at 200 Earl Avenue. According to Lee, the two
men spent time in the dining room observing Clarke and
Brown’s residence. Lee further testified that another
of the [petitioner’s] associates, later identified as Gary
Garner, and the [petitioner’s] brother, Adrian, also came
by the house that day. At some point, King left Lee’s
residence and, thereafter, Lee observed Adrian and the
[petitioner] conversing in the dining room.
‘‘The [petitioner] and Adrian then entered the kitchen
and ‘cooked’ some crack. Lee testified that the [peti-
tioner] asked her if she would ‘do him a favor . . .
[and] kill the woman across the street . . . .’ Lee, how-
ever, refused to do so. The [petitioner] thereupon asked
Adrian if he would kill Clarke and her son. According
to Lee, Adrian indicated that he would ‘take care of it.’
‘‘The [petitioner] then asked Lee to keep an eye on
the 207 Earl Avenue address and to contact him when
Clarke and Brown returned home. Lee agreed to do so,
and the [petitioner] wrote down his beeper number for
her to call. The [petitioner] then gave Lee a handful of
crack cocaine as payment for her cooperation.
‘‘The next day, when Lee saw Clarke and Brown
return home, she telephoned the [petitioner’s] beeper
number and left her number. When the [petitioner]
called her back, she informed him that Clarke and
Brown had returned home. The [petitioner] said ‘okay’
and hung up the telephone. A few minutes later, Adrian
arrived at Lee’s residence holding a gun. Adrian greeted
Lee and then immediately departed Lee’s residence. Lee
followed him.
‘‘Adrian crossed the street and proceeded toward
Clarke and Brown’s house at 207 Earl Avenue, stopping
first to speak to a lone occupant in a car that was
parked in front of that residence. The occupant of the
car subsequently was identified as Garner. Lee testified
that Garner told her that if she ‘said anything,’ she ‘was
going to be next.’
‘‘Adrian and Lee approached Clarke’s residence and
Lee rang the front doorbell while Adrian remained
behind her. Lee heard a voice from inside the house
ask, ‘[w]ho is it?’ Lee responded, ‘[t]he girl across the
street.’ Clarke cracked open the door, at which time
Adrian pushed past Lee and forced the door open. Lee
testified that she heard the rustle of grocery bags, which
were later found strewn across the floor, and the sounds
of a struggle inside. When Lee entered the house, she
saw Clarke and Brown running up the stairs trying to
escape from Adrian, who was chasing them. According
to Lee, once Clarke and Brown reached the top of the
stairs, she heard a gunshot, and then heard Brown
scream out, ‘mommy, mommy, mommy, mommy,’ from
the top of the stairs. Lee then saw Adrian pursue Clarke
into a bedroom and heard him mention something about
Brown being a witness to a shooting. Lee, who by this
time was at the top of the stairs, testified that she
had heard another gunshot and, immediately thereafter,
observed Adrian emerge from the bedroom. Lee further
stated that she saw Adrian shoot Brown in the head.
Adrian then ran out of the house. Lee, who was still at
the top of the stairs, testified that she initially had stood
frozen, but eventually left to return to her residence at
200 Earl Avenue. On her way out of Clarke and Brown’s
house, Lee noticed Adrian was gone, as was the car in
which Garner had been sitting. Louis Ellis, who also
lived at 200 Earl Avenue, corroborated Lee’s account,
testifying that on the evening of the murders, he heard
four or five gunshots, and shortly thereafter, he heard
Lee run into the house breathing hard, as if out of breath.
‘‘On April 14, 1999, the [petitioner] was arrested for
the murders of Clarke and Brown and charged with
one count of murder, two counts of capital felony—
one for the murder of Brown, and the second for the
double murder—and one count of conspiracy to commit
murder. While incarcerated and awaiting trial, the [peti-
tioner] inculpated himself to fellow inmates. Two of
those inmates, Audrey Holeman and Thomas Kerr, testi-
fied that while each was incarcerated with the [peti-
tioner], the [petitioner] had bragged about his
involvement in the murders. Holman testified that he
had overheard the [petitioner] tell another inmate that
his brother would not testify against him because the
[petitioner] had murdered one person, but his brother
had murdered two, and that the [petitioner] was pleased
with his brother because Adrian ‘had done something
righteous’ for him ‘that nobody else . . . would do
. . . .’ Kerr testified that the [petitioner] had told him
that ‘that bitch,’ Clarke, rather than the [petitioner] him-
self, was responsible for both of the deaths, and that
‘[s]he should have known not to mess with him.’ ’’ (Foot-
notes in original). Id.In June, 2000, after the guilt phase of the petitioner’s
capital felony jury trial, the petitioner was convicted
on all counts.6 Id., 355. During the penalty phase, how-
ever, the jury deadlocked on whether to sentence the
petitioner to death. Id., 407. The state moved for a
mistrial as to the penalty phase, but the court denied
the state’s motion and imposed a sentence of life impris-
onment without the possibility of release. Id., 407–408.
The petitioner subsequently appealed the verdict in his
guilt phase while the state appealed the court’s denial
of its motion for a mistrial as to the penalty phase. Id.,
345–348. On appeal, the Supreme Court affirmed the
petitioner’s convictions, reversed the court’s denial of
the state’s motion for a mistrial, and remanded the case
for a new penalty phase. Id. During the second penalty
phase, the jury recommended and the court imposed a
death penalty sentence. State v. Peeler, 320 Conn. 567,
572 n.3, 133 A.3d 864, cert. denied, U.S. , 137 S. Ct.
110, 196 L. Ed. 2d 89 (2016) (Peeler III). The petitioner
appealed that sentence. Throughout the duration of the
habeas proceeding, the petitioner’s direct appeal of his
death sentence remained pending and, as a result, the
petitioner remained subject to a death penalty sentence.
State v. Peeler, 321 Conn. 375, 376–77, 140 A.3d 811(2016) (per curiam) (Peeler IV). During the pendency
of the present appeal, the Supreme Court vacated the
petitioner’s death penalty sentence as unconstitutional
in accordance with State v. Santiago, 318 Conn. 1, 122
A.3d 1 (2015). Peeler IV, supra, 377. The petitioner was
resentenced to life in prison without the possibility of
release. See id.
The petitioner initiated this habeas action on Novem-
ber 3, 2008. On April 4, 2014, the petitioner filed an
eleven count amended habeas petition, in which he
alleged ineffective assistance of trial and appellate
counsel, constitutional violations based on his criminal
trial schedule, and Brady violations by the state at his
criminal trial. Relevant to the present appeal, the peti-
tioner claimed that: (1) ‘‘[t]he failure [of appellate coun-
sel] to challenge the denial of the motion to change
venue on appeal [due to the amount of pretrial publicity
his case received] constituted’’ ineffective assistance of
counsel; (2) ‘‘[t]he expeditious trial schedule violated
[his] fifth and sixth amendment rights to due process,
compulsory process, to present a defense and to the
effective assistance of counsel’’; and (3) the state vio-
lated Brady by failing to disclose three recordings Lee
made while wearing a concealed recording device for
the Federal Bureau of Investigation (FBI), a recording
made by a federal confidential informant of a conversa-
tion involving Ryan and Keene, and phone records from
200 Earl Avenue. After a trial, the habeas court issued
a memorandum of decision denying the petitioner’s
habeas petition. This appeal followed. Additional facts
will be set forth as necessary.
I
We begin with the petitioner’s claim that the habeas
court committed structural error when it denied his
motion to proceed pro se. We conclude that the petition-
er’s claim lacks merit because he waived his right to
self-representation.
After filing his petition for a writ of habeas corpus
in 2008, the petitioner filed a motion for the appoint-
ment of counsel. The court granted the motion and
appointed two special public defenders. In a letter dated
December 29, 2010, the petitioner asked the court to
replace habeas counsel with different counsel because
they had met with him only once and had failed to
amend his habeas petition, to hire an investigator, or
to review his criminal trial transcripts. On January 7,
2011, the court held a hearing on the petitioner’s motion.
After hearing arguments from the petitioner and habeas
counsel, the court denied the petitioner’s motion to
replace habeas counsel, agreeing that habeas counsel
needed time to review the substantial record in the
petitioner’s case more thoroughly. It also asked habeas
counsel and the petitioner to try to communicate better
and repair their relationship.
In a letter dated April 19, 2011, the petitioner asked
to proceed pro se. On May 26, 2011, the court held a
hearing on the petitioner’s motion. At the hearing, the
petitioner argued that habeas counsel were still not
communicating sufficiently with him or investigating
his case. Habeas counsel explained that ‘‘this file is by
far the largest file that [we] have ever dealt with’’ and
that they were actively working on his case. The peti-
tioner stated that the claim based on Lee’s phone
records was his ‘‘cardinal’’ claim; see Part IV C of this
opinion; and the court engaged in a lengthy discussion
with him about why habeas counsel were obligated to
investigate beyond the narrow phone record issue. The
court also explained that the reason habeas counsel
were slow to respond to him was not because of their
indifference to his case but because, as they previously
explained, they had recently completed another homi-
cide trial. Habeas counsel then shared with the court
some of the logistical and legal issues associated with
the petitioner’s case.
The court proceeded to canvass the petitioner on his
educational background. The petitioner stated that he
graduated high school. When the court attempted to
explore other aspects of his education, however, the
petitioner repeated the reasons why he was dissatisfied
with his current habeas counsel. The court interjected
and cautioned that it and the court monitor were having
difficulty following his rapid dialogue. The court again
explained the enormity of the task presented by the
habeas proceeding and asked the petitioner to be
patient and to cooperate with habeas counsel. The peti-
tioner then stated: ‘‘Well, Your Honor—Your Honor, let
me [be] blunt, Your Honor. I filed this motion so I could
represent myself. (Indiscernible)—represent myself,
you know what I’m saying? I want to represent myself.
I don’t have any use—I don’t want the use of the attor-
ney who says—I want to represent myself (inaudible).’’
The court then stated that ‘‘given the nature of the
issues in this case, given the nature of the proceeding
and given your background, as much of it as you’ve
given to me, that I don’t feel that you can capably repre-
sent yourself. I don’t think that you can effectively rep-
resent yourself.’’
The petitioner continued to argue that he was capable
of representing himself, explaining that he attended a
year of community college, during which he studied
criminal justice. He also stated clearly and unequivo-
cally on multiple occasions that he wanted to represent
himself.7 Nevertheless, the court expressed its concern
that the petitioner was ‘‘not trained in the law’’ and did
not have ‘‘any personal experience other than this case
with the law.’’ The court also observed that it was having
‘‘difficulty understanding some of the things [the peti-
tioner] [had] been telling [it],’’ in part because the peti-
tioner sometimes presented information in a ‘‘very
disjointed’’ manner and spoke ‘‘extremely fast.’’ The
court concluded that the petitioner was not able to
represent himself ‘‘in a reasonably competent way’’ and
that habeas counsel was adequately representing the
petitioner’s interests. Although the petitioner filed four
more motions to replace habeas counsel over the next
three years, at no time thereafter did the petitioner seek
to represent himself.
On April 10, 2014, the court held a hearing on the
petitioner’s final motion for reconsideration of his
motion to replace habeas counsel and habeas counsel’s
motion for a competency evaluation.8 While the court
discussed the petitioner’s motion with the petitioner
and habeas counsel, counsel for the respondent, the
Commissioner of Correction, interjected, asking the
court to clarify whether the petitioner was asking for
a continuance, to replace counsel, or to represent him-
self. The court stated that it understood that he was
seeking new counsel and asked the petitioner to con-
firm. The petitioner responded: ‘‘Right. Effective coun-
sel. A person, person—a person who’s going to afford
me what I’m afforded under the sixth amendment. . . .
My motion is clear. I’m not saying I want to represent
myself. I understand the difficulties, pitfalls that a self-
represented client faces. I need an adequate attorney. I
don’t need someone to say, well, here—we’re going
to—we’re going to satisfy you, here’s a habeas. No. I—
this is serious, you see what I’m saying. You’re not going
to cover issues . . . .’’ (Emphasis added.) In response
to those concerns, the court explained: ‘‘You don’t get
to choose who your trial counsel are. . . . That when
counsel are appointed, as long as they are doing the
job that they’re expected to do, that’s who—that’s who
you get. Your choice is you can represent yourself or
you can go forward with counsel, and if you go forward
with counsel, they’re the captain of the ship.’’ (Empha-
sis added.) The petitioner acknowledged the court’s
remarks, but he gave no indication that he wanted to
represent himself.
The court then admonished the petitioner that pro-
ceeding to trial on his petition while his appeal of his
death sentence was pending could preclude him from
raising similar claims with respect to his second penalty
phase. The petitioner stated that he understood and
then resumed his discussion about why he wanted to
replace habeas counsel. Habeas counsel responded to
his comments. In response to the petitioner’s argu-
ments, the court reminded the petitioner that ‘‘[t]hey’ve
made conclusions that are strategic in nature as to how
they want to pursue it, and that is their right if you want
to be represented by counsel.’’ The court explained that
it believed that the petitioner was receiving effective
assistance of counsel, and, therefore, the court denied
his motion to replace counsel. The court then asked
the petitioner: ‘‘Is it still your desire . . . to go forward
[with the trial] . . . starting next week?’’ The petitioner
replied, ‘‘Yes, Your Honor.’’ The petitioner then
informed the court of an issue that he wanted the court
to be aware of in advance of the habeas trial because
he wanted to preserve the record for his appeal in case
the court denied his petition.
Later in the proceeding, the issue arose, again, as to
whether the petitioner should be proceeding with the
habeas trial in light of the fact that his direct appeal of
his death sentence was still pending. The court stated
that it believed that the petitioner had competently cho-
sen to proceed with the trial even though it might be
against his best interests and the advice of counsel. In
an abundance of caution, counsel for the respondent
stated that ‘‘[i]f [the petitioner] withdraws this [habeas
petition] today or tomorrow or next week, I’m not going
to raise an abuse of the writ claim. I’m going to let him
do that.’’ The court similarly stated that although it
was ‘‘usually . . . very stern with people who want to
withdraw their petition on the eve of trial,’’ it would
permit the petitioner to withdraw his petition if he
changed his mind before trial. The petitioner stated that
he wished to proceed with the habeas trial.
On appeal, the petitioner claims that the court com-
mitted structural error when it improperly denied his
motion to proceed pro se. The petitioner’s argument
assumes that the nonconstitutional right to self-repre-
sentation in a habeas proceeding, found in Practice
Book § 44-3, has the same force and effect as the consti-
tutional right to self-representation in a criminal pro-
ceeding, embodied in the sixth amendment to the
United States constitution.9 The respondent acknowl-
edges that the petitioner has a residual common-law
right to self-representation at a habeas trial, but it argues
that there is no basis under state or federal law for
treating this right as equivalent to the constitutional
right to self-representation.10 The respondent argues
therefore that the appropriate standard of review for a
habeas court’s denial of a motion to proceed pro se is
abuse of discretion and that if this court concludes
that the habeas court abused its discretion, it should
consider whether this error was harmless. The respon-
dent characterizes the court’s ruling as ‘‘problematic,’’
but it contends that any error was cured by the petition-
er’s subsequent waiver of his right to self-representation
or, alternatively, was harmless. We conclude that
regardless of whether the constitutional standard for
the right to self-representation applies to the present
case or the court abused its discretion by denying the
petitioner’s motion to proceed pro se, the petitioner is
not entitled to relief because he explicitly waived his
right to self-representation at the April 10, 2014 hearing.
We assume for the sake of argument only that the
constitutional standards for the waiver of the right to
self-representation apply to the present case.11 It is well
established that once a defendant clearly and unequivo-
cally invokes the right to self-representation, ‘‘the trial
court must canvass the defendant to determine if the
defendant’s invocation of the right, and simultaneous
waiver of his right to the assistance of counsel, is volun-
tary and intelligent.’’ (Emphasis in original.) State v.
Braswell, 318 Conn. 815, 828, 123 A.3d 835 (2015). If
the court does not clearly and conclusively deny the
defendant’s request to represent himself, the defendant
may subsequently waive his right to self-representation
explicitly or implicitly through abandonment. Id., 843–
844. If the court clearly and conclusively denies the
defendant’s request to represent himself, however, ‘‘the
defendant does not waive his right to self-representa-
tion by subsequently acquiescing in being represented
by counsel or by failing to reassert that right.’’ Id., 844.
That is, once a court clearly and conclusively denies a
defendant’s request to represent himself, we will no
longer infer waiver from acquiescence or inaction.
Instead, the defendant must explicitly relinquish or
abandon his right to self-representation for his waiver
to be effective.12
In the present case, it is undisputed that the petitioner
clearly and unequivocally invoked his right to self-repre-
sentation and that the court clearly and conclusively
denied the petitioner’s request to proceed pro se at the
May 26, 2011 hearing. The parties dispute, however,
whether the petitioner subsequently waived his right
to self-representation at the April 10, 2014 hearing. The
petitioner argues that he merely acquiesced to the
appointment of counsel at the April 10, 2014 hearing
because the court previously denied his motion to pro-
ceed pro se and because the habeas trial was scheduled
for the next week. Accordingly, he argues that we can-
not infer a waiver of the right to self-representation
based on his conduct at the April 10, 2014 hearing. We
disagree with the petitioner’s characterization of his
statements and conduct at the April 10, 2014 hearing.
At the April 10, 2014 hearing, the petitioner clearly and
unequivocally stated that he no longer wanted to repre-
sent himself. He further explained that the reason he
did not want to represent himself anymore was that he
now understood ‘‘the difficulties [and] pitfalls that a
self-represented client faces’’ and that he ‘‘need[ed] an
adequate attorney.’’ The court, in an abundance of cau-
tion, told the petitioner that he had the option of repre-
senting himself, but the petitioner gave no indication
thereafter that he had any desire to represent himself.
We find this significant, in part, because the petitioner’s
conduct throughout the habeas proceeding demon-
strates that the petitioner is capable and willing to advo-
cate forcefully and zealously on his own behalf when
the issue is important to him.
We are also not persuaded that the petitioner was
deterred from representing himself by the approaching
trial date. At the April 10, 2014 hearing, the court and
the respondent expressly stated that they were willing
to allow the petitioner to withdraw his petition and
forego trial at that time without any adverse conse-
quences. Although their proffered reason for permitting
the petitioner to withdraw his petition was his pending
direct appeal of his death sentence, it is reasonable to
assume that if the petitioner truly wished to represent
himself, he would have accepted the court’s offer so that
he could avoid proceeding to trial with the unwanted
assistance of counsel.
Accordingly, we conclude that because the petitioner
explicitly waived his right to self-representation, he is
not entitled to reversal of the court’s decision and a
new habeas trial.
II
The petitioner’s next claim is that the court errone-
ously concluded that his claim that he ‘‘was denied his
due process and fair trial rights by the trial court’s
repeated denials of his attorneys’ requests for sufficient
time to prepare a death penalty case’’ had been proce-
durally defaulted. The petitioner argues that because
his due process claim ‘‘was premature’’ at the time of
his direct appeal, it was not procedurally defaulted by
his failure to raise it on direct appeal. The respondent
counters that the petitioner’s claim is unreviewable
because the petitioner argued before the habeas court
only that ‘‘[t]he failure to appeal the issue was due to
ineffective assistance of appellate counsel . . . .’’ We
agree with the respondent.
‘‘When a respondent seeks to raise an affirmative
defense of procedural default, the rules of practice
require that he or she must file a return to the habeas
petition ‘alleg[ing] any facts in support of any claim
of procedural default . . . or any other claim that the
petitioner is not entitled to relief.’ Practice Book § 23-
30 (b). ‘If the return alleges any defense or claim that
the petitioner is not entitled to relief, and such allega-
tions are not put in dispute by the petition, the petitioner
shall file a reply.’ Practice Book § 23-31 (a). ‘The reply
shall allege any facts and assert any cause and prejudice
claimed to permit review of any issue despite any
claimed procedural default.’ Practice Book § 23-31
(c).’’13 Johnson v. Commissioner of Correction, 285
Conn. 556, 567, 941 A.2d 248 (2008). In the present case,
the respondent alleged in the return that the petitioner’s
due process claim was procedurally defaulted. In his
reply, the petitioner argued that ‘‘[t]he failure to appeal
the issue was due to ineffective assistance of appellate
counsel, which vitiates a procedural default claim.’’
Now, for the first time on appeal, the petitioner argues
that appellate counsel ‘‘was not ineffective’’ for not
raising his due process claim on appeal because it ‘‘was
premature’’ at that time.
‘‘It is well settled that this court is not bound to
consider any claimed error unless it appears on the
record that the question was distinctly raised at trial
and was ruled upon and decided by the court adversely
to the appellant’s claim. . . . It is equally well settled
that a party cannot submit a case to the trial court on
one theory and then seek a reversal in the reviewing
court on another.’’ (Citations omitted; internal quota-
tion marks omitted). Mitchell v. Commissioner of Cor-
rection, 156 Conn. App. 402, 408–409, 114 A.3d 168,
cert. denied, 317 Conn. 904, 114 A.3d 1220 (2015). To
review such a newly articulated claim, ‘‘would amount
to an ambuscade of the [habeas] judge.’’ (Internal quota-
tion marks omitted.) Johnson v. Commissioner of Cor-
rection, supra, 285 Conn. 580.
Accordingly, because the court was never provided
with an opportunity to make any factual or legal findings
with respect to the petitioner’s claim that the due pro-
cess claim was premature at the time of the direct
appeal, we decline to review it now for the first time
on appeal.14
III
The petitioner’s third claim on appeal is that appellate
counsel provided ineffective assistance when he failed
to challenge the trial court’s denial of his motion to
change venue. We agree with the habeas court that
appellate counsel rendered effective assistance on
appeal.
To succeed on a claim of ineffective assistance of
counsel, a petitioner must satisfy the two-pronged test
articulated in Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland
requires that a petitioner satisfy both a ‘‘performance
prong’’ and a ‘‘prejudice prong.’’ To satisfy the perfor-
mance prong, ‘‘a [petitioner] must show that counsel’s
conduct fell below an objective standard of reasonable-
ness for competent attorneys [as measured by prevail-
ing professional norms].’’ Davis v. Commissioner of
Correction, 319 Conn. 548, 555, 126 A.3d 538 (2015),
cert. denied sub nom. Semple v. Davis, U.S. , 136
S. Ct. 1676, 194 L. Ed. 2d 801 (2016); Iovieno v. Commis-
sioner of Correction, 242 Conn. 689, 703, 699 A.2d 1003(1997). To satisfy the prejudice prong, ‘‘a [petitioner]
must show a reasonable probability that the outcome
of the proceeding would have been different but for
counsel’s errors.’’ Davis v. Commissioner of Correc-
tion, supra, 555. In the context of a claim of ineffective
assistance of appellate counsel, the petitioner must
establish that ‘‘there is a reasonable probability that,
but for appellate counsel’s failure to raise the issue on
appeal, the petitioner would have prevailed in his direct
appeal, i.e., reversal of his conviction or granting of a
new trial.’’ Small v. Commissioner of Correction, 286
Conn. 707, 722, 724, 946 A.2d 1203, cert. denied sub
nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172
L. Ed. 2d 336 (2008). ‘‘The claim will succeed only if
both [Strickland] prongs are satisfied. . . . It is well
settled that [a] reviewing court can find against a peti-
tioner on either ground, whichever is easier.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) Id., 713.
In the present case, the petitioner’s claim is based
on appellate counsel’s failure to challenge on appeal
the trial court’s denial of his motion for a change of
venue and to argue that his criminal trial was tainted
by prejudicial pretrial publicity. ‘‘For an appellate court
to reverse a conviction on the [ground] of prejudicial
pretrial publicity, a defendant generally must prove
actual juror prejudice. . . . A defendant need not, how-
ever, show actual prejudice in extreme circumstances
whe[n] there has been inherently prejudicial publicity
such as to make the possibility of prejudice highly likely
or almost unavoidable.’’ (Citations omitted; internal
quotation marks omitted.) State v. Reynolds, 264 Conn.
1, 222, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908,
124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004). The burden of
proving inherent prejudice is an exacting one. Inherent
prejudice ‘‘attends only the extreme case’’; Skilling v.
United States, 561 U.S. 358, 381, 130 S. Ct. 2896, 177 L.
Ed. 2d 619 (2010); in which the pervasive or inflamma-
tory pretrial publicity created a ‘‘ ‘circus atmosphere’ ’’;
State v. Townsend, 211 Conn. 215, 226, 558 A.2d 669(1989); or ‘‘utterly corrupted’’ the proceeding. (Internal
quotation marks omitted.) State v. Piskorski, 177 Conn.
677, 688, 419 A.2d 866, cert. denied, 444 U.S. 935, 100
S. Ct. 283, 62 L. Ed. 2d 194 (1979).
‘‘A defendant cannot rely . . . on the mere fact of
extensive pretrial news coverage to establish the exis-
tence of inherently prejudicial publicity. Prominence
does not, in itself, prove prejudice.’’ State v. Reynolds,
supra, 264 Conn. 223. ‘‘[J]urors need not be totally igno-
rant of the facts and issues involved in a criminal trial
and the fact that some jurors have some prior knowl-
edge about the case does not itself constitute identifi-
able jury prejudice.’’ (Internal quotation marks
omitted.) Id., 224. Ordinarily, ‘‘there is no reason to
believe that any influence of the pretrial publicity could
not have been overcome by the voir dire process.’’ Id.
(no inherent prejudice where, inter alia, two jurors were
selected in the two days of jury selection before the
defendant waived his right to a jury trial and elected
to be tried by the court); see also Beck v. Washington,
369 U.S. 541, 555–58, 82 S. Ct. 955, 8 L. Ed. 2d 98 (1962)
(upholding denial of motion for change of venue
because process during jury selection ensured that each
juror chosen was impartial). That is, a reviewing court
may properly conclude that a defendant has failed to
meet his heavy burden of proving inherent prejudice
when ‘‘the voir dire [demonstrates] that an impartial
jury was actually impaneled in an appellant’s case.’’
United States v. O’Keefe, 722 F.2d 1175, 1180 (5th
Cir. 1983).15
With these legal principles in mind, we turn to the
facts that are relevant to this claim. During the pendency
of the petitioner’s case for the Clarke-Brown murders,
the petitioner was charged in two additional criminal
cases. In state court, the petitioner was charged with
attempted murder in violation of General Statutes § 53a-
49 (a) and General Statutes (Rev. to 1997) § 53a-54a
(a), two counts of risk of injury to a child in violation
of General Statutes (Rev. to 1997) § 53-21 (1), and mur-
der in violation of General Statutes (Rev. to 1997) § 53a-
54a (a) in connection with the two shooting incidents
involving Snead (the Snead case). State v. Peeler, 265
Conn. 460, 461–62, 828 A.2d 1216 (2003), cert. denied,
541 U.S. 1029, 124 S. Ct. 2094, 158 L. Ed. 2d 710 (2004)
(Peeler I); Peeler III, supra, 320 Conn. 570. In federal
court, the petitioner was charged with conspiracy to
possess with intent to distribute and distribute multi-
kilogram quantities of cocaine base in violation of 21
U.S.C. §§ 841 (a) (1) and 846 for his drug trafficking
business (the federal narcotics case). United States v.
Kennedy, 21 Fed. Appx. 82, 84–85 (2d Cir. 2001) (sum-
mary order). From September into October 1999, the
petitioner was tried and convicted in the Snead case.
Peeler I, supra, 462; Peeler III, supra, 570. In November,
1999, the petitioner was tried and convicted in the fed-
eral narcotics case. United States v. Kennedy, supra, 85.
The petitioner’s successive trials and the pending
Clarke-Brown trial drew significant media attention. As
a result, the petitioner filed a motion to change venue
on December 7, 1999 based on the inherently prejudicial
nature of the pretrial publicity. In support of that
motion, the petitioner attached several news articles
about his cases and a change of venue study based
on polling data. After a hearing, the court denied the
petitioner’s motion without prejudice. The court indi-
cated that it would attempt to select a jury before
determining whether pretrial publicity had poisoned
the venire and then, if necessary, it would reconsider
the motion to change venue. Over the course of approxi-
mately three months, the petitioner successfully
selected a jury without exhausting all of his peremptory
challenges. The petitioner did not renew his motion to
change venue.
At the petitioner’s first trial, the jury unanimously
found him guilty as charged but deadlocked on whether
to sentence him to death. Peeler II, supra, 271 Conn.
355, 407. After the court denied the state’s motion for
a mistrial as to the penalty phase and imposed a sen-
tence of life imprisonment without the possibility of
release, the state appealed the court’s denial of its
motion for a mistrial while the petitioner appealed the
verdict. Id., 345–348. The petitioner raised five issues on
appeal and provided four alternative bases for affirming
the sentence of life imprisonment. Id. He did not chal-
lenge the court’s denial of his motion to change venue.
On appeal, the Supreme Court affirmed the petitioner’s
convictions, reversed the court’s denial of the state’s
motion for a mistrial, and remanded the case for a new
penalty phase. Id., 345, 423. During the second penalty
phase, the jury recommended and the court imposed
a death penalty sentence, which, at the time of the
petitioner’s habeas trial, was constitutional. See Peeler
IV, supra, 321 Conn. 377.
The petitioner’s appellate counsel, who continued to
represent him in his direct appeal of his death sentence,
testified at the habeas trial. He explained that in prepa-
ration for the petitioner’s first direct appeal he reviewed
the entire record and ‘‘every piece of paper in [trial
counsels’] file.’’ Specifically, he read the memorandum
in support of the motion to change venue ‘‘many times,’’
the newspaper articles and study attached to the
motion, ‘‘a large volume, like a couple inches of Xerox
copies of newspaper articles’’ that were introduced as
an exhibit in the Snead trial, the transcripts from the
hearing on the motion to change venue, and the tran-
scripts from voir dire. Appellate counsel stated that he
ultimately decided not to challenge the court’s denial
of the motion to change venue. He believed that not
exhausting peremptory challenges was ‘‘pretty much
fatal’’ to raising a claim of actual prejudice. He acknowl-
edged that he could have challenged the court’s ruling
by relying on a line of cases in which the court discussed
‘‘the concept of presumed prejudice that flows from
. . . heavy pretrial publicity . . . .’’ He believed, how-
ever, based on his review of these cases and the fact
that ‘‘the defendant lost in every single one of those
cases,’’ that such a claim would be ‘‘hopeless.’’
Appellate counsel then testified that he now believes
that he should have considered more seriously raising
a prejudicial publicity claim based on the inherent preju-
dice standard. Appellate counsel explained that at the
time of the petitioner’s appeal ‘‘[he] knew that [certain
United States Supreme Court pretrial publicity cases]
existed, but [he] didn’t read them. . . . [He] read sum-
maries of what the law was about pretrial publicity,
which discussed these cases.’’ When the issue arose in
another appeal, he developed ‘‘an inkling’’ that ‘‘the case
law here is different than [he] thought it was’’ at the
time of the petitioner’s appeal and that ‘‘there was
another viable argument about change of venue.’’
Because he dismissed the merits of the venue issue,
appellate counsel testified that he approached
reviewing the record in the wrong manner. When
reviewing the voir dire transcripts for appeal, he
focused on whether the court had erroneously denied
any challenges for cause and whether the petitioner
used all of his peremptory challenges. Appellate counsel
explained that what he should have done was read all
of the news articles on the petitioner and then, with
those articles and the inherent prejudice standard in
mind, reviewed the voir dire transcripts to determine
whether the voir dire was adequate to detect express
or latent prejudice against the petitioner.
Nevertheless, appellate counsel acknowledged that
he was limited in the number of issues he could raise on
appeal, that he explored the venue issue when preparing
the appeal, and that he did not think that the venue
claim was a viable issue based on his research. Appel-
late counsel also recognized that ‘‘in almost every case,
I have a dozen issues, and I go with the three best ones’’
so the tactical decision to drop one issue in favor of
another is ‘‘an everyday decision you have to make as
an appellate lawyer.’’ He further acknowledged that in
the petitioner’s appeal in particular he had to evaluate
the strongest issues for reversing the verdict in the guilt
phase and the strongest arguments for affirming the
court’s denial of the state’s motion for a mistrial in
the first penalty phase. For appellate counsel, ‘‘guilt
[became] secondary to penalty’’ because at the time
‘‘[he] was trying to save [the petitioner’s] life,’’ and he
dedicated ‘‘well over half’’ the brief to alternative bases
for affirming the sentence of life imprisonment.
The court concluded that appellate counsel did not
perform deficiently and therefore rejected the petition-
er’s claim of ineffective assistance of appellate counsel.
The court found that appellate counsel had ‘‘thoroughly
familiarized himself with the motion for change of
venue, the law governing such a claim and the tran-
scripts pertinent to the issue. He [then] deliberately
chose to discard that issue as an appellate claim.’’ The
court acknowledged that, given the unsuccessful out-
come of the petitioner’s direct appeal, appellate coun-
sel’s regret at ‘‘having elected to forgo the denial of the
change of venue motion as an appellate issue . . . is
understandable. However, [appellate counsel’s] second-
guessing his own decision [failed] to persuade [it] that
his decision at the time he made it fell below profes-
sional standards.’’ The court agreed with trial counsel’s
observation that the trial court ‘‘exhibited deep sensitiv-
ity and thoroughness in ferreting out the potential [prej-
udicial] effects from pretrial publicity.’’ The court
further observed that to its ‘‘knowledge, no Connecticut
decision has reversed a criminal conviction based on
inherent prejudice.’’ As a result, the court believed that
raising an implied prejudice ‘‘claim would have been a
weak one at best, and the availability of unused peremp-
tory challenges undermined any demonstration of
actual prejudice.’’
On appeal, the petitioner claims that appellate coun-
sel performed deficiently by failing to research and to
argue a claim based on the inherent prejudice standard.
The respondent replies that even if appellate counsel
performed deficiently, the petitioner cannot establish
prejudice because ‘‘the Supreme Court has made clear
that before a defendant can obtain relief for being tried
by a biased panel, he ‘must subsequently [exhaust] all
of his or her peremptory challenges,’ ’’ and he did not.
After carefully reviewing the record, we agree with the
habeas court that appellate counsel’s ‘‘second-guess-
ing’’ of his tactical decisions on appeal is insufficient
to establish deficient performance.
‘‘[Although] an appellate advocate must provide
effective assistance, he is not under an obligation to
raise every conceivable issue.’’ (Internal quotation
marks omitted.) Mozell v. Commissioner of Correction,
87 Conn. App. 560, 563, 867 A.2d 51, cert. denied, 273
Conn. 934, 875 A.2d 543 (2005). ‘‘The determination of
which issues to present, and which issues not to pre-
sent, on an appeal is by its nature a determination com-
mitted to the expertise of appellate counsel, and not
to his client. . . . By that determination, appellate
counsel seeks to focus the concern of the appellate
court on those issues which he deems to be most per-
suasive, and thus does appellate counsel most effec-
tively present his client’s appeal. . . . [A] habeas court
will not, with the benefit of hindsight, second-guess the
tactical decisions of appellate counsel. Legal conten-
tions, like the currency, depreciate through over-issue.
. . . [M]ultiplying assignments will dilute and weaken
a good case and will not save a bad one. . . . The effect
of adding weak arguments will be to dilute the force
of the stronger ones. . . . [I]t is all too tempting for a
[petitioner] to second-guess counsel’s assistance after
conviction or adverse sentence, and it is all too easy
for a court, examining counsel’s defense after it has
proved unsuccessful, to conclude that a particular act
or omission of counsel was unreasonable. . . . 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.’’ (Citations omitted;
internal quotation marks omitted.) Camacho v. Com-
missioner of Correction, 148 Conn. App. 488, 496–97,
84 A.3d 1246, cert. denied, 311 Conn. 937, 88 A.3d
1227 (2014).
In the present case, appellate counsel testified that
he thoroughly reviewed the record in the petitioner’s
case looking for the best claims for his appeal. Appellate
counsel recognized that the denial of the motion to
change venue was a potential issue for appeal. He there-
fore made a preliminary investigation into the merits
of a venue claim, reviewing the record and relevant
case law. Based on that preliminary investigation and
his own reasonable professional judgment, he decided
to focus his time and attention on more meritorious
claims.16 See Hinton v. Alabama, U.S. , 134 S. Ct.
1081, 1088, 188 L. Ed. 2d 1 (2014) (‘‘strategic choices
made after less than complete investigation are reason-
able precisely to the extent that reasonable professional
judgments support the limitations on investigation’’).
This tactical decision was reasonable given the proce-
dural posture of the petitioner’s case and the difficulty
of raising a successful implied prejudice claim. As the
court correctly observed, neither this court nor our
Supreme Court has ever reversed a conviction based
on inherent prejudice.
Accordingly, we conclude that because the petitioner
failed to establish that appellate counsel rendered defi-
cient performance, the habeas court properly denied
his ineffective assistance of appellate counsel claim.
IV
The petitioner’s final claim on appeal is that the state
violated Brady by failing to disclose three recordings
Lee made while wearing a concealed recording device
for the FBI (Lee recordings), a recording made by a
federal confidential informant of a conversation with
Ryan and Keene (CI recording), and phone records from
200 Earl Avenue (Lee’s phone records). We conclude
that the state was not required to disclose the Lee
recordings, the CI recording, or Lee’s phone records
under Brady.
The law governing the state’s obligation to disclose
exculpatory evidence to the defense is well established.
‘‘It is the duty of the state voluntarily to disclose material
in its exclusive possession which would be exonerative
or helpful to the defense . . . .’’ State v. Dolphin, 195
Conn. 444, 455, 488 A.2d 812, cert. denied, 474 U.S. 833,
106 S. Ct. 103, 88 L. Ed. 2d 84 (1985). ‘‘The prosecution’s
duty to disclose applies to all material and exculpatory
evidence that is within its possession or available to it
. . . and that the prosecution knew or should have
known was exculpatory.’’ (Citations omitted; emphasis
omitted.) Demers v. State, 209 Conn. 143, 150–151, 547
A.2d 28 (1988). To prove a Brady violation, therefore,
the petitioner must establish: (1) that the state sup-
pressed evidence (2) that was favorable to the defense
and (3) material either to guilt or to punishment. State
v. Ouellette, 295 Conn. 173, 185, 989 A.2d 1048 (2010).
If the petitioner fails ‘‘to meet his burden as to one of
the three prongs of the Brady test, then we must con-
clude that a Brady violation has not occurred.’’ Morant
v. Commissioner of Correction, 117 Conn. App. 279,
296, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d
1080 (2009).
Brady’s definition of evidence favorable to an
accused encompasses both exculpatory evidence and
impeachment evidence, which ‘‘broadly defined, is evi-
dence having the potential to alter the jury’s assessment
of the credibility of a significant prosecution witness.’’
(Internal quotation marks omitted). Adams v. Commis-
sioner of Correction, 309 Conn. 359, 370, 71 A.3d 512(2013).
The test for materiality is whether the suppressed
evidence in the context of the entire record creates
‘‘a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding
would have been different.’’ (Internal quotation marks
omitted.) State v. Correa, 241 Conn. 322, 361, 696 A.2d
944 (1997). ‘‘[T]he mere possibility that an item of
undisclosed evidence might have helped the defense
or might have affected the outcome of the trial, how-
ever, does not establish materiality in the constitutional
sense.’’ (Emphasis in original; internal quotation marks
omitted.) State v. Ortiz, 252 Conn. 533, 546, 747 A.2d
487 (2000). ‘‘The question [of materiality] is not whether
the defendant would more likely than not have received
a different verdict with the evidence, but whether in
its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence. A reason-
able probability of a different result is accordingly
shown when the government’s evidentiary suppression
undermines confidence in the outcome of the trial.’’
(Internal quotation marks omitted.) Adams v. Commis-
sioner of Correction, supra, 309 Conn. 370–71.
‘‘Whether the petitioner was deprived of his due pro-
cess rights due to a Brady violation is a question of law,
to which we grant plenary review.’’ (Internal quotation
marks omitted.) Davis v. Commissioner of Correction,
140 Conn. App. 597, 606, 59 A.3d 403, cert. denied, 308
Conn. 920, 62 A.3d 1133 (2013). Additionally, ‘‘a trial
court’s determination as to materiality under Brady
presents a mixed question of law and fact subject to
plenary review . . . .’’ State v. Ortiz, 280 Conn. 686,
720, 911 A.2d 1055 (2006). We will not disturb a habeas
court’s findings with respect to the underlying historical
facts or whether the evidence was suppressed unless
the findings are clearly erroneous. Id.; see State v. Ross,
251 Conn. 579, 592, 742 A.2d 312 (1999).
A
We first address the petitioner’s claim that the state
violated Brady when it failed to disclose the Lee
recordings.
At the time of the Clark-Browne murders, Lee lived at
200 Earl Avenue with Kathy Esposito, Norman Williams,
and others. During the initial investigation into the
Clarke-Brown murders, Lee disavowed any involve-
ment and, instead, implicated Esposito. In furtherance
of that lie, Lee agreed to assist federal authorities in
their investigation of Esposito by engaging in conversa-
tions with the residents of 200 Earl Avenue about the
Clarke-Brown murders while wearing a concealed
recording device. The majority of the conversations
in the recordings involve Lee expressing her concerns
about being implicated in the murders, attempting to
talk to Esposito about the murders, and receiving advice
from Williams on how to avoid the continued inquiries
by the police about the murders. Sometime thereafter,
Special Agent James Lawton, the lead agent for the
joint state and federal investigation into the petitioner’s
drug trafficking business, testified about the contents
of the Lee recordings before a federal grand jury.
At the habeas trial, Senior Assistant States Attorney
Joseph Corradino, who prosecuted the petitioner in the
Clarke-Brown case, testified that he did not know about
the Lee recordings until after the petitioner’s criminal
trial and that he did not subsequently disclose them
to the petitioner because he believed that they were
inculpatory. The petitioner’s trial counsel, John Walkley
and William Koch,17 testified that they did not remember
knowing about the Lee recordings at the time of the
petitioner’s first criminal trial; although, they remem-
bered receiving a copy of Lawton’s grand jury testimony
and acknowledged that they likely reviewed it because
of Lawton’s role in the investigation.
The court found that the Lee recordings were not
exculpatory and that they would not have been useful
impeachment evidence at the petitioner’s criminal trial.
Therefore, the state was not obligated to disclose them.
The court noted that ‘‘[i]t must be kept in mind that
Lee was aware of the wire and part of the subterfuge
designed by law enforcement to elicit information from
the occupants of [200 Earl Avenue]. Most of the dialogue
concerned ways to avoid having to respond to police
inquiries about the murders.’’
Having carefully reviewed the record, we conclude
that there is no reasonable probability that the disclo-
sure of the Lee recordings would have put the petition-
er’s entire case in such a different light as to undermine
confidence in the jury’s verdict. See Kyles v. Whitley,
514 U.S. 419, 435, 115 S. Ct. 1555, 131 L. Ed. 2d 490(1995). Accordingly, the Lee recordings are immaterial
and the state was not required to disclose them.
‘‘It is well established that impeachment evidence
may be crucial to a defense, especially when the state’s
case hinges entirely upon the credibility of certain key
witnesses. . . . The rule laid out in Brady requiring
disclosure of exculpatory evidence applies to materials
that might well alter . . . the credibility of a crucial
prosecution witness. . . . Still, the seminal test
remains whether there exists a reasonable possibility
that the outcome of the proceeding would have been
different had the evidence been disclosed to the
defense.’’ (Internal quotation marks omitted.) State v.
Esposito, 235 Conn. 802, 815–16, 670 A.2d 301 (1996).
If the evidence in question ‘‘would not have provided
the defendant with any significant impeachment mate-
rial that was not already available and used by him’’;
id., 819; it is immaterial under Brady. This is true even
if ‘‘the [evidence’s] cumulative effect may have lent
some additional support to the defendant’s attack on
[a witness].’’ Id. ‘‘[T]he Constitution is not violated every
time the government fails or chooses not to disclose
evidence that might prove helpful to the defense.’’ Kyles
v. Whitley, supra, 514 U.S. 436–37.
The petitioner argues that the Lee recordings were
material and noncumulative because they ‘‘were qualita-
tively different from the evidence of Lee’s psychiatric
history or the conflicting statements made by Lee and
Williams during the investigation.’’18 The respondent
disagrees, arguing that the Lee recordings ‘‘were imma-
terial because there was ample confrontation at the
original trial to expose Lee’s bias and the fact that she,
as the petitioner declares, ‘desperately wanted to please
law enforcement.’ ’’ We agree with the respondent.
‘‘In analyzing a Brady claim, the courts must avoid
concentrating on the suppressed evidence in isolation.
Rather, we must place it in the context of the entire
record. . . . Implicit in the standard of materiality is
the notion that the significance of any particular bit of
evidence can only be determined by comparison to
the rest.’’ (Internal quotation marks omitted.) State v.
Marra, 295 Conn. 74, 90 n.10, 988 A.2d 865 (2010). The
record reveals that defense counsel comprehensively
impeached Lee’s credibility and motives for testifying.
The jury was exposed to Lee’s prior inconsistent state-
ments, her letters in which she admitted to lying both
to the police and in court about being involved in the
Clarke-Brown murders,19 her letters in which stated that
she was being pressured by police to inculpate the
petitioner, her cooperation agreement with the federal
government, her plea agreement with the state, the ben-
efits she received from the state, her infatuation with
the detectives investigating the Clarke-Brown murders,
her criminal history, and her crack addiction. Although
disclosure of the Lee recordings would have permitted
further development of this line of questioning by
defense counsel, our review of the record demonstrates
that defense counsel extensively and thoroughly
impeached Lee. Moreover, although Lee’s testimony
was significant, it was not dispositive. The other evi-
dence inculpating the petitioner in the Clarke-Brown
murders further bolsters our confidence in the jury’s
verdict.
Accordingly, we conclude that the Lee recordings are
not Brady material and, therefore, the state was not
required to disclose them.
B
We next address the petitioner’s claim that the state
violated Brady when it failed to disclose the CI
recording.
As part of the joint investigation into the petitioner’s
drug trafficking business, a FBI confidential informant,
also known as a CI, agreed to engage Keene, the peti-
tioner’s girlfriend and mother of his children, and Ryan,
the petitioner’s cousin, in a conversation while wearing
a concealed recording device. During that conversation,
Keene stated that she directed the petitioner’s brother,
Adrian, to tell the petitioner to stop sending her letters
from jail with other people’s names in them. She also
stated that she thought David Jennings, who cooked
crack for the petitioner, was an FBI informant and that
someone needed to kill him. Ryan agreed that ‘‘he needs
to die.’’ Keene and Ryan then discussed Lee, and Keene
stated ‘‘that bitch Josephine [Lee] needs to die.’’ Never-
theless, both agreed that there was no way to kill Lee
while she was incarcerated.
At the petitioner’s criminal trial, Keene and Ryan
testified for the state about their relationship with the
petitioner and certain inculpatory statements he made
to them about the Clarke-Brown murders. Keene
acknowledged that she was currently incarcerated on
federal narcotics conspiracy charges and that she was
testifying against the petitioner in accordance with a
cooperation agreement that she had entered into with
the federal government.20 She stated that she had known
the petitioner since she was eleven years old, that they
had three children together, and that the petitioner usu-
ally told her everything. She admitted to having knowl-
edge of the petitioner’s drug trafficking business, and
she testified that she agreed to help Snead resolve his
dispute with the petitioner. She further testified about
inculpatory statements the petitioner made to her about
his plans to kill Snead, his attempted murder of Snead,
his murdering Snead, and his intent to kill state’s wit-
nesses in the Snead case. Keene stated that she had
never met Lee but that she had heard the petitioner
talk about her.
Keene further stated that she was not involved in the
attempts to kill witnesses. Nevertheless, when Kybarris
Taylor testified that the petitioner offered him $10,000
to kill two ‘‘nobodies,’’ he stated that Keene drove him
to and from that meeting and was present with the two
of them in the car for a portion of their discussion.
Taylor testified that while they were driving away from
the meeting, and after he refused the petitioner’s offer,
Keene asked: ‘‘Why don’t you do that favor for him?
You know, his life is at risk, you know, his life is in
danger?’’ Keene insisted that she was not involved in
this meeting and that this conversation never
happened.
Like Keene, Ryan testified that he was currently incar-
cerated on federal narcotics conspiracy charges and
that he was testifying against the petitioner in accor-
dance with a cooperation agreement that he had entered
into with the federal government.21 He also testified that
in exchange for his testimony he had received immunity
from the state for his involvement in the petitioner’s
drug trafficking business. Ryan stated that he was the
petitioner’s cousin and had known the petitioner his
entire life. Ryan admitted to packaging crack for the
petitioner, to being present when the petitioner first
attempted to murder Snead (and that he saw two boys
in the vehicle with Snead), and to being at 200 Earl
Avenue with the petitioner, participating in his drug
trafficking business. Ryan further testified about incul-
patory statements the petitioner made about murdering
Snead, about his intent to kill Clarke and Brown, and
about the Clarke-Brown murders.
At the habeas trial, Corradino testified that he was
not aware of the CI recording until it was referenced
in the petitioner’s amended habeas petition, and he did
not read the summary of the CI recording until the
habeas trial. Walkley and Koch again acknowledged
that they likely reviewed Lawton’s grand jury testimony,
in which he referenced the CI recording, but neither
recalled knowing about it at the time of trial.
The habeas court concluded that the CI recording was
not Brady material. The court observed: ‘‘The state’s
murder case was premised on the Peeler family running
a major cocaine distribution network in the Bridgeport
area, and the extreme efforts employed by that organi-
zation to maintain that network and remove threats to
members of the group by brutally murdering antago-
nists, including a young child. Rather than undermining
the state’s case, the recorded conversations reinforced
the prosecution’s characterization of the enterprise and
the extent to which this gang’s members were willing
to go to preserve the business and insulate themselves
from the reach of the law. To call this evidence exculpa-
tory puts an untenable spin on what is, in reality, evi-
dence which corroborated the state’s case.’’
On appeal, the petitioner contends that the CI
recording would have been favorable to his defense
because it ‘‘would have painted a very different picture
of both state’s witnesses.’’ He believes that the
‘‘recording emphasizes the strong motivation both wit-
nesses had to say whatever they thought the state
wanted in order to secure plea agreements. Had the
jury heard about the recording, it might have disbe-
lieved Keene and [Ryan] in particular, and perhaps the
other informants and . . . concluded that, at worst,
Peeler was a coconspirator in the murders.’’
We disagree with the petitioner’s characterization of
the CI recording. The CI recording is not exculpatory,
as it has no tendency to establish the petitioner’s lack of
guilt in the Clarke-Brown murders. Rather, it establishes
that the petitioner’s longtime girlfriend and his cousin,
both of whom were involved in his drug trafficking
business, were comfortable discussing the murder of
potential state’s witnesses for his benefit. In a trial
where the state’s theory of the case was that the peti-
tioner convinced his brother to murder an eight year old
witness to shield himself from prosecution for another
murder and to protect his ongoing drug trafficking busi-
ness, this evidence was compellingly unfavorable and
of scant impeachment value.
Even assuming arguendo that the CI recording was
favorable to the petitioner as impeachment evidence,
it is also immaterial. The jury was aware that Keene
and Ryan were testifying with the hope that they would
in fact receive minimal sentences under their federal
cooperation agreements. Consequently, additional evi-
dence that Keene and Ryan were motivated to testify
to avoid further criminal prosecution is cumulative as
to bias and interest and, therefore, immaterial under
Brady.22 See State v. Jones, 60 Conn. App. 866, 877–78,
761 A.2d 789 (2000), cert. denied, 255 Conn. 942, 769
A.2d 59 (2001) (evidence in robbery prosecution that
state’s witness was arrested for larceny day after rob-
bery in conjunction with unrelated incident was ‘‘cumu-
lative as to bias and interest, since the jury was aware
that in exchange for his testimony, [the witness] was
charged only with conspiracy to commit robbery in the
third degree with a recommendation for a three year
sentence for participating in the robbery of the automo-
tive store’’).
Accordingly, we conclude that the CI recording is
not Brady material and, therefore, the state was not
required to disclose it.
C
The petitioner’s final claim is that the state violated
Brady when it failed to disclose Lee’s phone records
from the day of the Clarke-Brown murders.
In 1999, Southern New England Telephone (SNET),
which served the landline for 200 Earl Avenue, retained
two types of phone records relevant to this appeal.
First, it retained records for calls for which there was
a subscriber charge, such as a toll call or a local-to-
local call for which an extra fee was charged. Second,
it retained records for routine local-to-local calls for
which there were no subscriber charges. SNET had a
policy to retain paper documents for their records for
one year and then to purge their files by shredding
the documents.
The state, federal investigators, and defense counsel
incorrectly believed at the time of the Clarke-Brown
investigation and trial that routine local-to-local calls
were not retained by SNET unless a pen register or
trap and trace device had been installed on that particu-
lar phone because SNET never revealed that capability
to them.23 Rather, SNET had a ‘‘strict policy’’ of provid-
ing only the precise information solicited in a subpoena
or search warrant without educating law enforcement
and others as to the existence of other potentially useful
records within its database. Consequently, unless the
requesting party specifically demanded routine local-
to-local call records, SNET would merely supply the
subscriber charge data that appeared in the customer’s
phone bill.
As part of the federal investigation into the petition-
er’s drug trafficking business, the FBI subpoenaed the
phone records for 200 Earl Avenue from SNET. Because
they did not specifically request routine local-to-local
phone records, they received only phone records for
which there was a subscriber charge. Those subpoe-
naed phone records did not reflect the call that Lee
made to the petitioner on January 7, 1999, the day of
the Clarke-Brown murders. These records were subse-
quently disclosed to the state. Any record of local-to-
local phone calls made on January 7, 1999 from 200
Earl Avenue to the petitioner would have been
destroyed before this habeas action commenced pursu-
ant to SNET’s retention protocol.
The habeas court concluded that the state did not
violate Brady with respect to Lee’s phone records
because the lack of knowledge about SNET’s actual
retention capacity ‘‘was pervasive in legal circles and
reasonable . . . no agency of the state ever possessed
or controlled [the unpreserved local-to-local records],
and there is no credible proof that the [subpoenaed or
local-to-local phone] records contained exculpatory
material.’’
The petitioner’s claim on appeal encompasses both
the subpoenaed phone records and the unpreserved
local-to-local phone records. With respect to the sub-
poenaed phone records, the petitioner argues that they
constituted material, exculpatory evidence because
they did not list the phone call Lee purportedly made
to the petitioner on January 7, 1999 to tell him that
Clarke and Brown had returned home. With respect
to the unpreserved local-to-local phone records, the
petitioner argues that Brady required the state to obtain
and disclose them because they might have shown that
Lee did not call the petitioner on January 7, 1999. We
disagree.
In the present case, the absence of a call from Lee
to the petitioner in the subpoenaed records is meaning-
less. SNET did not list local-to-local calls in the type
of records the FBI subpoenaed unless the call generated
a subscriber charge. The petitioner offered no evidence
that a call from Lee to him on January 7, 1999 would
have generated a subscriber charge, and, as a result, it
would be speculative to conclude that any call from
Lee to the petitioner on January 7, 1999 should have
been documented in the subpoenaed phone records.
Accordingly, there is no reasonable probability that had
the subpoenaed phone records been disclosed to the
petitioner, the result of his criminal trial would have
been different.
It is also unknown whether the unpreserved local-
to-local phone records would have supported or contra-
dicted Lee’s testimony that she called the petitioner to
tell him that Clarke and Brown had returned home on
January 7, 1999. That fact alone is fatal to the petition-
er’s Brady claim. See Taft v. Commissioner of Correc-
tion, 159 Conn. App. 537, 554, 124 A.3d 1, cert. denied,
320 Conn. 910, 128 A.3d 954 (2015) (petitioner cannot
establish that trial counsel’s deficient performance prej-
udiced him absent proof of what, if any, impeachment
evidence missing transcripts contained); Lewis v. Com-
missioner of Correction, 116 Conn. App. 400, 408, 975
A.2d 740, cert. denied 294 Conn. 908, 982 A.2d 1082(2009) (no Brady violation where there was no evidence
of agreement between state and state’s witness). Never-
theless, even if we were to assume arguendo that the
unpreserved local-to-local phone records were favor-
able to the petitioner, the state was still not required
to obtain them from SNET and disclose them. Brady
requires the state to disclose all evidence in its exclusive
possession that is favorable to the defendant and mate-
rial. State v. Dolphin, supra, 195 Conn. 455. Brady does
not require the state to obtain and disclose evidence
in the exclusive possession of a private, third party
entity. See United States v. Hutcher, 622 F.2d 1083,
1088 (2d Cir. 1980) (‘‘[c]learly the government cannot
be required to produce that which it does not control
and it never possessed or inspected’’ [internal quotation
marks omitted]); see also Demers v. State, supra, 209
Conn. 151–53 (under Brady, state has duty to disclose
evidence in its or its investigative agencies’ pos-
session).
Accordingly, we conclude that the state was not
required to disclose the Lee phone records under
Brady.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The habeas court granted his petition for certification to appeal. See
General Statutes § 52-470.
2
The petitioner also asks this court to exercise its supervisory authority
to grant him a new criminal trial to remedy the ‘‘distorting effects of a death
penalty prosecution.’’ ‘‘It is well settled that [a]ppellate courts possess an
inherent supervisory authority over the administration of justice.’’ (Internal
quotation marks omitted.) State v. Elson, 311 Conn. 726, 764, 91 A.3d 862(2014). Nevertheless, ‘‘[t]he exercise of our supervisory powers is an extraor-
dinary remedy to be invoked only when circumstances are such that the
issue at hand, while not rising to the level of a constitutional violation, is
nonetheless of utmost seriousness, not only for the integrity of a particular
trial but also for the perceived fairness of the judicial system as a whole.’’
(Internal quotation marks omitted.) Id., 765. We are not convinced that it
is necessary to the due administration of justice for us to invoke our supervi-
sory authority in the present case. Our supervisory authority is meant to
be utilized sparingly and only in extraordinary circumstances, which are
not present here.
3
‘‘We hereinafter refer to this incident as the Lindley Avenue shooting.’’
Peeler II, supra, 271 Conn. 349 n.11.
4
‘‘Specifically, Keene testified that the [petitioner] first told her to move
in November, 1998. She stated that, ‘[the petitioner] told me shit was starting
to get hot and he [was] about to start getting witnesses, witnesses—wait a
minute. First he told me witnesses [were] about to get killed.’ She further
testified that the [petitioner] warned her again on Christmas day in 1998
stating: ‘[The petitioner] was talking in an opening to everybody, but, like
me mainly . . . I’m telling her she better move. Shit about to start getting
hot, meaning people starting to get killed.’ Finally, Keene testified that, when
the [petitioner] spoke about killing witnesses, he quoted the following lyrics
from a rap song: ‘[N]iggers want to lie, niggers wonder why, niggers gonna
die.’ ’’ Peeler II, supra, 271 Conn. 351 n.12.
5
‘‘Although there was no direct evidence presented at trial that the [peti-
tioner] knew that the state had used the shell casings left behind at the
Lindley Avenue shooting to link that shooting to Snead’s murder, the jury
reasonably could have inferred that while preparing his defense to the Snead
murder case, the [petitioner] was informed by his counsel that the state
intended to use the discarded shell casings to link him to Snead’s murder.’’
Peeler II, supra, 271 Conn. 352 n.13.
6
Capital felony trials are divided into two phases: the guilt phase and the
penalty phase. ‘‘[I]n the guilt phase, the jury is charged only with the task
of making the factual determination of whether the state has proved beyond
a reasonable doubt that the defendant committed a capital felony.’’ State
v. Rizzo, 266 Conn. 171, 240, 833 A.2d 363 (2003). ‘‘In the penalty phase, by
contrast, the jury is charged with both fact-finding and nonfact-finding
tasks.’’ Id. Its fact-finding task involves determining whether the state has
established the facts of an aggravant beyond a reasonable doubt and whether
the defendant has established the facts of a mitigant by a preponderance
of the evidence. Id.; see also General Statutes § 53a-46a. Its nonfact-finding
task involves determining, based on its reasoned and moral judgment,
‘‘whether: (1) the factually established mitigant is ‘mitigating in nature’; and
(2) the aggravant outweighs the mitigant.’’ (Emphasis omitted.) State v.
Rizzo, supra, 240. Following this weighing process, the jury must ultimately
determine whether the defendant shall live or die, ‘‘which requires the jury
to ‘make a reasoned moral and individualized determination’ that ‘death is
the appropriate punishment’ in the case.’’ Id., 239.
7
For example, the petitioner made the following statements during the
hearing:
‘‘This is my constitutional right, I just want to exercise—this is what I
have right to, I comprehend that.
***
‘‘Listen, I have a right to defend myself and this is a very serious issue.
I mean I am trying [to] show that my confinement is illegal. It’s illegal, and
they are doing nothing. They’re doing nothing for. They’re doing nothing
for me.
***
‘‘I would like to lay upon the record, I feel that I was (inaudible) I have
the right to represent myself. And I am (inaudible) doing anything. This is
incredible. This is incredible.’’
8
Habeas counsel were concerned with the petitioner’s insistence on pro-
ceeding with the habeas trial while his direct appeal of his death sentence
was pending because the timing could cause him to waive certain claims
and remedies with respect to his second penalty phase.
9
The petitioner asks this court to recognize a constitutional right to self-
representation at a habeas trial pursuant to article first, § 8, of the Connecti-
cut constitution, which states: ‘‘In all criminal prosecutions, the accused
shall have a right to be heard by himself and by counsel . . . .’’ We decline
to address this claim because the petitioner failed to provide an independent
analysis of it under the Connecticut constitution. See State v. Skok, 318
Conn. 699, 701 n.3, 122 A.3d 608 (2015).
The petitioner in his statement of the issues also appears to seek recogni-
tion of a constitutional right to self-representation in a habeas proceeding
under the federal constitution. Nevertheless, the petitioner acknowledges
in his brief that the sixth amendment right to counsel, and the concomitant
right to self-representation, applies only to criminal prosecutions, not civil
habeas proceedings. See Martinez v. Court of Appeal of California, 528
U.S. 152, 120 S. Ct. 684, 145 L. Ed. 2d 597 (2000) (no constitutional right to
self-representation on direct appeal); Pennsylvania v. Finley, 481 U.S. 551,
555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987) (no constitutional right to
counsel in state habeas proceeding); Ross v. Moffitt, 417 U.S. 600, 610–11,
94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974) (no constitutional right to counsel
in discretionary appeal because ‘‘[t]he defendant needs an attorney on appeal
not as a shield to protect him against being ‘haled into court’ by the State
and stripped of his presumption of innocence, but rather as a sword to
upset the prior determination of guilt’’). See also Faretta v. California, 422
U.S. 806, 814, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) (‘‘the Sixth Amendment
right to the assistance of counsel implicitly embodies a ‘correlative right to
dispense with a lawyer’s help’ ’’ during a criminal prosecution). On the
basis of the petitioner’s analysis in his brief, we interpret the petitioner’s
argument as asking us to recognize the right to self-representation in a
habeas proceeding as being equivalent to the constitutional right to self-
representation in a criminal prosecution, not to recognize a right to self-
representation in a habeas proceeding under the federal constitution.
10
Although the petitioner focused in his brief on the statutory right to
counsel and the right to self-representation discussed in our rules of practice,
the respondent focused on the residual common-law right to self-representa-
tion. Whether the right to self-representation during a habeas proceeding
is found in our statutes, rules of practice, or common law does not affect
our analysis in the present case.
11
We emphasize, however, that the petitioner’s claim is based on a non-
constitutional right to self-representation. As a result, the standard for
finding a waiver in the present case would ordinarily be less rigorous than
if it involved the constitutional right to self-representation. See L & R Realty
v. Connecticut National Bank, 246 Conn. 1, 14, 715 A.2d 748 (1998) (appro-
priate to apply lower standard in determining enforceability of prelitigation
contractual jury trial waivers than for waivers in criminal case); Fuentes v.
Shevin, 407 U.S. 67, 94–95, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972) (standards
for waivers of rights in criminal case would not necessarily apply to civil
litigation); see also State v. Francis, 322 Conn. 247, 262, 140 A.3d 927 (2016)
(safeguards employed to protect a defendant’s constitutional right to counsel
do not apply to defendant’s statutory right to counsel). Nevertheless, because
the petitioner’s waiver of his right to self-representation was effective under
the constitutional standard, we need not decide what the appropriate stan-
dard would be for finding waiver in the context of the nonconstitutional
right to self-representation.
12
Although our Supreme Court has held that a defendant cannot implicitly
waive his right to self-representation after a court clearly and conclusively
denies his request to represent himself, it has neither held nor suggested
that a defendant cannot explicitly waive his right to self-representation after
such a ruling. The general rule is that a defendant can waive his rights and
privileges, even constitutional ones, expressly or implicitly. See generally,
State v. Bellamy, 323 Conn. 400, 417–422, 147 A.3d 655 (2016) (collecting
cases); see, e.g., id., 417 (claims of instructional error can be explicitly or
implicitly waived); State v. Woods, 297 Conn. 569, 585–86, 4 A.3d 236 (2010)
(waiver of right to jury trial may be express or inferred from election of a
nonjury trial); State v. Jarzbek, 204 Conn. 683, 697–99, 529 A.2d 1245 (1987)
(right to confront witnesses may be implicitly or expressly waived), cert.
denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988); State v.
Harris, 188 Conn. 574, 580–81, 452 A.2d 634 (1982) (knowing and voluntary
waiver of right to remain silent can be found in both the defendant’s words
or conduct), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354(1983). The reason we will not infer waiver in the context of the right to
self-representation is because there is a risk that a defendant will acquiesce
to the appointment of counsel after the court denies his request to represent
himself because he believes that the option of self-representation is no
longer available or that reasserting his right to self-representation would
be futile, not because he intends to relinquish or abandon his right to
self-representation. See State v. Bellamy, supra, 443 (‘‘waiver involves the
intentional relinquishment or abandonment of a known right or privilege’’
[internal quotation marks omitted]). When a defendant explicitly states that
he no longer wishes to represent himself—for example, because he now
realizes that it is in his best interest to proceed with counsel—there is no
doubt that the defendant intends to relinquish or abandon a known right.
13
Under the cause and prejudice standard, ‘‘the petitioner must demon-
strate good cause for his failure to raise a claim at trial or on direct appeal
and actual prejudice resulting from the impropriety claimed in the habeas
petition. . . . [T]he cause and prejudice test is designed to prevent full
review of issues in habeas corpus proceedings that counsel did not raise
at trial or on appeal for reasons of tactics, inadvertence or ignorance . . . .
[T]he existence of cause for a procedural default must ordinarily turn on
whether the [petitioner] can show that some objective factor external to
the defense impeded counsel’s efforts to comply with the [s]tate’s procedural
rule. . . . [For example] a showing that the factual or legal basis for a claim
was not reasonably available to counsel . . . or . . . some interference by
officials . . . would constitute cause under this standard. . . . A court will
not reach the merits of the habeas claim when the petitioner fails to make the
required showing.’’ (Citations omitted; emphasis omitted; internal quotation
marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556,
567–68, 941 A.2d 248 (2008).
14
We further observe that the record before us is devoid of any specific
factual findings by the court concerning the viability of an appellate claim
challenging the constitutionality of the trial schedule. In other words, the
petitioner’s assertion that this claim was not yet ripe at the time of his direct
appeal lacks factual support in the record. ‘‘We have repeatedly recognized
. . . that the denial of a request for a continuance is appealable.’’ Jackson
v. Commissioner of Correction, 227 Conn. 124, 136, 629 A.2d 413 (1993).
Yet, the petitioner never asked appellate counsel whether his decision not
to challenge the trial schedule on appeal was a tactical decision or one
based on the inadequacy of the appellate record. For this reason as well,
we decline the petitioner’s invitation to review this claim even though he
failed to raise it below.
15
Accord Murphy v. Florida, 421 U.S. 794, 800, 95 S. Ct. 2031, 44 L. Ed.
2d 589 (1975) (no inherent prejudice where voir dire ‘‘indicates no such
hostility to petitioner by the jurors who served in his trial as to suggest a
partiality that could not be laid aside’’); United States v. Campa, 459 F.3d
1121, 1148 (11th Cir. 2006) (‘‘the court’s careful and thorough voir dire
rebutted any presumption of jury prejudice’’); Coleman v. Kemp, 778 F.2d
1487, 1541 n.25 (11th Cir. 1985) (assuming without deciding that presumptive
prejudice can be rebutted by voir dire); Tunnell v. Wiley, 514 F.2d 971, 977
(3d Cir. 1975) (‘‘whatever ‘presumption of prejudice’ may have existed was
effectively ‘rebutted’ by the affidavit submitted by [the prosecutor], showing
the interrogation of the jurors in regard to the allegedly prejudicial article
but an absence of challenges on that basis’’); see also Patton v. Yount, 467
U.S. 1025, 1035, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984) (passage of time
before second trial ‘‘clearly rebuts any presumption of partiality’’ that existed
at time of initial trial).
16
The petitioner incorrectly asserts that appellate counsel provided inef-
fective assistance because he was not aware of the inherent prejudice stan-
dard at the time of the petitioner’s appeal. Although we agree that appellate
counsel equivocated about the research he conducted, his equivocation was
about the degree of research he performed into the inherent prejudice
standard, not about whether he was aware of the inherent prejudice standard
at the time of the petitioner’s appeal. The court clearly credited the portions
of appellate counsels’ testimony in which he admitted to familiarizing himself
with the inherent prejudice standard more than those in which he attempted
to minimize the extent of his research and his familiarity with the law, and
we cannot conclude that the court’s credibility finding was clearly erroneous
in that respect.
17
Walkley also represented the petitioner in the federal narcotics case.
18
The petitioner argues for the first time on appeal that the recordings
were material and favorable to him because they corroborated Williams’
testimony about when the petitioner was at 200 Earl Avenue and further
illuminated the relationship between Williams and Lee, which was important
because Lee wrote him a letter in which she stated that she lied at trial
about the Clarke-Brown murders. See footnote 19 of this opinion. Because
these arguments were never presented to the court, we decline to consider
them for the first time on appeal. See Mitchell v. Commissioner, 68 Conn.
App. 1, 7, 790 A.2d 463, cert. denied, 260 Conn. 903, 793 A.2d 1089 (2002).
19
After Lee testified on behalf of the state in the guilt phase of the petition-
er’s trial, she wrote a letter to Williams, in which she stated: ‘‘Norman, you
know that I lied on the Peelers, but I was scared when the police came to
the house to get me so I told them that I had something to do with the
murder.’’ She was subsequently recalled by the petitioner and examined
concerning this letter.
20
Keene testified that for her narcotics conspiracy conviction her manda-
tory sentencing range was ten years to life imprisonment. Pursuant to her
plea agreement and the cooperation agreement, Keene stated that her sen-
tencing range would become zero to twenty years imprisonment and that
she hoped to receive a time-served sentence.
21
Ryan testified that for his narcotics conspiracy conviction his mandatory
sentencing range was five to forty years imprisonment. Pursuant to his
plea agreement and cooperation agreement, Ryan stated that he could be
sentenced to less than five years imprisonment and that he hoped to be
sentenced to probation.
22
We further observe that the petitioner did not present any evidence that
Keene and Ryan knew about the CI recording at the time of their trial
testimony, that they believed that they could have been prosecuted for their
statements on the CI recording, or that they could have been prosecuted
for conspiring to kill Lee and Jennings. See General Statutes § 53a-48 (a) (‘‘[a]
person is guilty of conspiracy when, with intent that conduct constituting a
crime be performed, he agrees with one or more persons to engage in or
cause the performance of such conduct, and any one of them commits an
overt act in pursuance of such conspiracy’’). Therefore, it is unclear whether
the CI recording would have influenced their trial testimony.
23
A pen register is a device that records the telephone numbers of outgoing
calls. A trap and trace is a device that records the telephone numbers of
incoming calls.