Meletrich v. Commissioner of Correction

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ANGEL MELETRICH v. COMMISSIONER OF
CORRECTION
(AC 38418)
Lavine, Elgo and Beach, Js.
Syllabus
The petitioner, who had been convicted of the crimes of robbery in the first
degree, conspiracy to commit robbery in the first degree, larceny in the
first degree, and conspiracy to commit larceny in the first degree, sought
a writ of habeas corpus. He claimed, inter alia, that his trial counsel
provided ineffective assistance by failing to present the testimony of
the petitioner’s aunt, G, as an alibi witness at the criminal trial. The
petitioner’s conviction stemmed from a robbery that took place at a
fast-food restaurant, in which three men with concealed faces entered
the restaurant through a side door. One of the employees of the restau-
rant, B, admitted to the police that she was involved in the robbery and
claimed that before she went to work she had met the petitioner and
another person, who asked her to leave the door open at closing time so
that they could rob the restaurant. The habeas court rendered judgment
denying the petition and, thereafter, denied the petition for certification
to appeal, and the petitioner appealed to this court. Held:
1. The habeas court did not abuse its discretion in denying the petition for
certification to appeal with respect to the petitioner’s claim that his trial
counsel had rendered ineffective assistance by failing to call G as an
additional alibi witness during the criminal trial, as the petitioner failed
to demonstrate that his trial counsel’s performance was deficient or
that he was prejudiced by his trial counsel’s decision, and a resolution
of the claim did not involve an issue that was debatable among jurists
of reason.
2. The habeas court did not err in concluding that the petitioner’s trial
counsel was not deficient in failing to call G to testify: although G
testified that the petitioner was home at the time of the robbery and
when he was alleged to have met with B to discuss his plan to rob the
restaurant, it was clear that G was not with the petitioner every moment,
the jury reasonably could have inferred, given the close proximity of
the restaurant, that the petitioner could have left G’s house to confront
B on her way to work without G’s knowledge, G’s testimony would have
been cumulative of the testimony of D that she had been with the
petitioner every moment during the time period of the robbery and
beforehand, and trial counsel testified at the habeas trial that, following
an investigation, he had determined that D could provide the best alibi
because she could cover the petitioner’s whereabouts at the time of the
robbery; moreover, the petitioner was not prejudiced by the failure of
his trial counsel to call G as a witness, as G’s testimony was cumulative
and did not provide the petitioner with an airtight alibi, G was not an
entirely neutral and disinterested witness, the jury could have found
that the petitioner had conspired about the robbery at a time prior to
when he was with D at G’s house, and, therefore, this court’s confidence
in the verdict was not undermined by the failure of trial counsel to
present G’s testimony.
Argued September 8—officially released November 28, 2017
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, and tried to the court, Fuger, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Matthew C. Eagan, assigned counsel, with whom
were Michael S. Taylor, assigned counsel, and, on the
brief, Emily Graner Sexton, assigned counsel, for the
appellant (petitioner).
Melissa Patterson, assistant state’s attorney, with
whom, on the brief, were Brian Preleski, state’s attor-
ney, and Lisa Maria Proscino, former special deputy
assistant state’s attorney, for the appellee (respondent).
Opinion
BEACH, J. The petitioner, Angel Meletrich, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his petition for a writ of habeas corpus. On appeal,
the petitioner claims that the habeas court abused its
discretion in denying his petition for certification to
appeal and erred in not finding that his trial counsel
provided ineffective assistance by failing to call the
petitioner’s aunt as an additional alibi witness during
the petitioner’s criminal trial. We disagree and, accord-
ingly, dismiss the appeal.
As recited by the habeas court, the facts which the
jury reasonably could have found concerning the peti-
tioner’s underlying conviction are as follows: ‘‘[T]he
petitioner was charged with one count of robbery in
the first degree in violation of General Statutes § 53a-
134 (a) (4), one count of conspiracy to commit robbery
in the first degree in violation of General Statutes
§§ 53a-48 and 53a-134, one count of larceny in the first
degree in violation of General Statutes [Rev. to 2007]
§ 53a-122 (a) (2), and one count of conspiracy to commit
larceny in the first degree in violation of . . . § 53a-48
and [General Statutes (Rev. to 2007) §] 53a-122. The
petitioner, represented by Attorney Claud Chong, pro-
ceeded to a jury trial. The jury returned verdicts of guilty
on all counts, finding the petitioner guilty of counts one
and three as a coconspirator on the theory of vicarious
liability. The petitioner appealed from the judgment of
conviction; however, the appeal was withdrawn. . . .
‘‘On Wednesday, November 21, 2007, the day before
Thanksgiving, the McDonald’s restaurant near the New
Brite Plaza area of New Britain had been open for busi-
ness. The public could enter and exit the restaurant
from two doors, one at the front of the building and
the other on the side, that are unlocked during business
hours and are locked when the restaurant is closed.
The side door latch did not work properly and tape was
placed over the latch to allow the door to open during
business hours. At the end of the day, when the side
door needed to be secured, the tape would be removed
so that the latch would prevent the door from opening.
‘‘Shortly before midnight, when both the inside of
the restaurant and the drive-through window stopped
transacting business, the employees then on-site pre-
pared to close the restaurant. Among those employees
were Assistant Manager Angel Echevarria and Bethza
Meletrich. Echevarria’s responsibilities at closing
included collecting the eight cash register drawers in
a safe located in a small office in the back of the restau-
rant. The proceeds from the day’s sales, gift cards, cou-
pons, the register drawers themselves with $100 of start-
up money for the next business day and any other
valuables would be secured in the safe. The cash pro-
ceeds from sales and gift cards were placed in bank
deposit bags and then secured inside the back office
safe.
‘‘Although it was normally Echevarria’s responsibility
to lock the two outside doors, on the evening of Novem-
ber 21, 2007, he was training another manager to count
the money in the registers and asked Bethza Meletrich
to lock the two outside doors. Although Bethza Mele-
trich initially locked both doors, which involved remov-
ing the tape on the side door’s latch, she returned to
replace the tape on the side door latch. One of the
restaurant’s surveillance cameras shows Bethza Mele-
trich on her cell phone as she walked past the registers
to the side door. Shortly thereafter, Bethza Meletrich
walked past the registers again, and then three men,
later described by Echevarria as being light skinned and
of normal height and average size, who were dressed
in dark hooded sweatshirts with the hoods pulled over
their heads, and whose faces were concealed by dark
ski masks, entered the McDonald’s restaurant through
the side door and made their way to the back office.
‘‘Two of the men brandished handguns, one chrome
with a wooden handle and the other black. One of the
men called Echevarria by his nickname, Sidio, a name
either uncommon or unique to Echevarria, but known
to employees of the McDonald’s, including Bethza Mele-
trich. After one of the men asked Echevarria where the
money was located, he told them in the office safe. One
of the robbers stacked either seven or eight of the
register drawers and carried the stack, described by
Echevarria as heavy and difficult to carry, out of the
restaurant. Echevarria called 911 after the three men
exited the restaurant and then went to the side door and
observed a car driving away. Three of the surveillance
cameras in the restaurant captured footage of the
robbery.
‘‘The police responded to the restaurant and began
their investigation, which included interviewing all
employees. Although Bethza Meletrich initially denied
any involvement, she later gave a statement to New
Britain police officers admitting her involvement in the
robbery. In her statement, dated November 26, 2007,
Bethza Meletrich indicated that she met Adam [Mar-
cano] and the petitioner, whose nickname was ‘Rome’
or ‘Romeo,’ before she went to work. They asked her
to leave the door open at closing time so that they could
rob the restaurant. According to Bethza Meletrich, she
was first offered money for her cooperation, which she
declined, and then her two cousins threatened her and/
or her girlfriend. Bethza Meletrich informed the police
that the petitioner was armed with a silver gun that had
a brown handle, which he displayed to her while it was
tucked into his waistband. The petitioner and Adam
Marcano, accompanied by a third person unknown to
Bethza Meletrich, entered the restaurant shortly before
midnight through the side door she had left unlocked.
‘‘Also on November 26, 2007, the police executed a
search warrant for one of the apartments in, as well
as the basement of, 20 Acorn Street, New Britain, a
multifamily dwelling approximately six blocks, or less
than one mile, from the [McDonald’s] restaurant that
was robbed. The petitioner was at the apartment when
the police executed the search warrant. Although the
Marcano brothers were not present at that time, the
police found items belonging to both Adam and Anthony
Marcano in the apartment. The police investigation
determined that the petitioner and both Marcano broth-
ers lived at 20 Acorn Street on the first floor.
‘‘The police also found three black hooded
sweatshirts in the apartment. After gaining access to
the basement from the apartment, the police searched
the basement and found: two money deposit bags, one
of which contained several rolls of coins and loose
quarters; a plastic bag containing three black ski masks,
one pair of black fleece gloves and one pair of brown
knit gloves; and three cash register drawers, one of
which contained a McDonald’s coupon. Subsequently,
in January, 2008, the police received a phone call from
the landlord of 20 Acorn Street apprising the police that
other items had been found concealed under a subfloor
of the basement. The police returned to 20 Acorn Street
and seized five additional cash register drawers, one
of which had a McDonald’s sticker on it, that had been
concealed under the subfloor.
‘‘Forensic evidence recovered included [fingerprints]
and palm prints from the plastic bag that contained the
masks and gloves, as well as DNA from two of the ski
masks. Three of the fingerprints—the right index, the
right thumb, and the left thumb—were identified as
belonging to Anthony [Marcano]. A DNA sample
obtained from the petitioner allowed a comparison to
[be] made with DNA from two of the masks. One mask
interior had DNA from at least three individuals; the
petitioner was determined to be a contributor to that
DNA profile. As to this mask . . . an individual could
be included statistically in this profile at the ratio of 1
in 120,000 African-Americans, 1 in 69,000 Caucasians
and 1 in 66,000 Hispanics. A DNA sample from another
mask’s exterior had DNA from at least four individuals;
the petitioner was determined to be a contributor to
that DNA profile. As to that mask . . . an individual
could be included statistically in this profile at the ratio
of 1 in 390 African-Americans, 1 in 120 Caucasians and
1 in 170 Hispanics. . . .
‘‘The state contended that the petitioner was guilty
of the robbery and larceny in the first degree charges
either as a principal offender or as an accessory to
another participant in the crime. Additionally, the court
instructed the jury on the robbery and larceny in the
first degree charges as to the theory of vicarious liabil-
ity. Thus, if the jury found beyond a reasonable doubt
that the state had proven all elements of the conspiracy
to commit robbery and larceny in the first degree
charges, but that the state had not proven that the
petitioner was a principal or accessory as [to] the rob-
bery and larceny charges in counts one and three, then
the jury could consider whether the petitioner was crim-
inally liable for the criminal acts of the other [coconspir-
ators] under vicarious liability. The jury was charged
accordingly.
‘‘The jury returned guilty verdicts on all counts. Spe-
cifically, the jury found the petitioner guilty of both the
robbery and larceny in the first degree charges as a
[coconspirator] under the theory of vicarious liabil-
ity. . . .
‘‘The court, Espinosa, J., sentenced the petitioner on
February 5, 2010 [to a] . . . total effective sentence
on all counts [of] twenty-three years of incarceration,
followed by five years of special parole. The petitioner
appealed from the judgment of conviction, but with-
drew the appeal.’’ (Footnotes omitted.)
In his seven count petition for a writ of habeas corpus,
filed October 28, 2014, the petitioner claimed, inter alia,
that Chong rendered ineffective assistance by, inter alia,
failing to present the testimony of Guillermina Mele-
trich,1 the petitioner’s aunt, at the petitioner’s crimi-
nal trial.
The petitioner’s habeas trial began on February 9,
2015. In its memorandum of decision of August 18, 2015,
the habeas court denied the petition for a writ of habeas
corpus on all counts. The petitioner then filed a petition
for certification to appeal from the court’s judgment,
which the court denied. This appeal followed. Addi-
tional facts will be discussed as necessary.
I
The petitioner claims that the habeas court abused
its discretion in denying his petition for certification to
appeal from the denial of his habeas petition claiming
ineffective assistance of counsel. Specifically, he argues
that because the issue is debatable among jurists of
reason, a court could resolve the issue differently, and,
therefore, the habeas court abused its discretion in
denying his petition for certification to appeal. We
disagree.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
[the petitioner] must demonstrate that the denial of
his petition for certification constituted an abuse of
discretion. . . . Second, if the petitioner can show an
abuse of discretion, he must then prove that the deci-
sion of the habeas court should be reversed on the
merits. . . . To prove that the denial of his petition for
certification to appeal constituted an abuse of discre-
tion, the petitioner must demonstrate that the [resolu-
tion of the underlying claim involves issues that] are
debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to
proceed further. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by [our Supreme
Court] for determining the propriety of the habeas
court’s denial of the petition for certification.’’ (Cita-
tions omitted; internal quotation marks omitted.) Sand-
ers v. Commissioner of Correction, 169 Conn. App. 813,
821–22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904,
156 A.3d 536 (2017).
As we discuss more fully in part II of this opinion,
we disagree with the petitioner’s claim that Chong per-
formed deficiently by failing to call Guillermina Mele-
trich as an additional alibi witness during the
petitioner’s criminal trial; nor was the petitioner preju-
diced by Chong’s decision. Because the resolution of
the petitioner’s claim does not involve an issue that is
debatable among jurists of reason, we conclude that
the habeas court did not abuse its discretion in denying
certification to appeal from the denial of the petition
for a writ of habeas corpus.
II
We turn to the questions of whether Chong performed
deficiently by failing to call Guillermina Meletrich as an
additional alibi witness during the petitioner’s criminal
trial, and thereby prejudiced the defense. We agree with
the habeas court.2
‘‘We begin with the standard of review applicable to
this claim. The habeas court is afforded broad discre-
tion in making its factual findings, and those findings
will not be disturbed unless they are clearly erroneous.
. . . Historical facts constitute a recital of external
events and the credibility of their narrators. . . .
Accordingly, [t]he habeas judge, as the trier of facts, is
the sole arbiter of the credibility of witnesses and the
weight to be given to their testimony. . . . The applica-
tion of the habeas court’s factual findings to the perti-
nent legal standard, however, presents a mixed question
of law and fact, which is subject to plenary review. . . .
‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings. . . . This right
arises under the sixth and fourteenth amendments to
the United States constitution and article first, § 8, of
the Connecticut constitution. . . . As enunciated in
Strickland v. Washington, [466 U.S. 668, 686, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], [our Supreme Court]
has stated: It is axiomatic that the right to counsel is
the right to the effective assistance of counsel. . . . A
claim of ineffective assistance of counsel consists of
two components: a performance prong and a prejudice
prong. . . . The claim will succeed only if both prongs
are satisfied.’’ (Citation omitted; internal quotation
marks omitted.) Spearman v. Commissioner of Correc-
tion, 164 Conn. App. 530, 537–38, 138 A.3d 378, cert.
denied, 321 Conn. 923, 138 A.3d 284 (2016).
At the habeas trial, Guillermina Meletrich testified
that she arrived home at 4:30 p.m., on November 21,
2007, and that the petitioner and his girlfriend3 were
there when she arrived. She stated that she knew that
he did not leave the house that day ‘‘[b]ecause every
time I came in he was there . . . .’’ When asked if she
would have testified at the petitioner’s criminal trial,
she stated, ‘‘They had asked me once to testify if he
was at my house that day . . . and I said he was, but
they never called me.’’ When asked if she would have
testified as she did at the habeas trial, she said, ‘‘Yes,
because it’s the truth. He was home.’’
In its memorandum of decision, the habeas court
made the following findings: ‘‘[Guillermina] Meletrich
testified that the petitioner and his girlfriend were at
the house when the robbery was committed. Given that
the jury found the petitioner guilty as a coconspirator
under the theory of vicarious liability, the petitioner
did not need to be at or near the McDonald’s restaurant
when the robbery was committed. Therefore, the evi-
dence presented by [Guillermina] Meletrich in the
habeas proceeding does not show deficient perfor-
mance by . . . Chong for failing to present her testi-
mony to the jury, nor that the petitioner was prejudiced
thereby.’’ The habeas court made no findings as to
whether Guillermina Meletrich was credible.
The petitioner argues on appeal that the habeas court
incorrectly concluded that Chong’s failure to call Guil-
lermina Meletrich as an additional alibi witness did not
amount to ineffective assistance. The petitioner con-
tends that the court erred in its findings regarding Guil-
lermina Meletrich’s testimony, because her testimony
provided an alibi for not only the time of the actual
robbery, but also for the time when, according to Bethza
Meletrich, the petitioner and Adam Marcano presented
the plan to her at the park. The petitioner claims that
this testimony, therefore, would have established a full
alibi for not only the actual robbery, but also for the
conspiracy to commit the robbery, as well, because
Bethza Meletrich’s testimony was the only direct testi-
mony linking the petitioner to the conspiracy.
Having thoroughly reviewed the record, we conclude
that even if the habeas court had credited Guillermina
Meletrich’s testimony such that the petitioner could not
have confronted Bethza Meletrich in the park, Chong
was still not constitutionally ineffective in failing to
present Guillermina Meletrich’s testimony. Chong had
no compelling reason to call her, and we are also not
persuaded that the outcome would have been different
if her testimony had been presented.
A
‘‘To prove his or her entitlement to relief pursuant
to Strickland, a petitioner must first satisfy what the
courts refer to as the performance prong; this requires
that the petitioner demonstrate that his or her counsel’s
assistance was, in fact, ineffective in that counsel’s per-
formance was deficient. To establish that there was
deficient performance by petitioner’s counsel, the peti-
tioner must show that counsel’s representation fell
below an objective standard of reasonableness. . . . A
reviewing court must view counsel’s conduct with a
strong presumption that it falls within the wide range
of reasonable professional assistance. . . . The range
of competence demanded is reasonably competent, or
within the range of competence displayed by lawyers
with ordinary training and skill in the criminal law. . . .
‘‘[J]udicial scrutiny of counsel’s performance must
be highly deferential. It is all too tempting for a defen-
dant to second-guess counsel’s assistance after convic-
tion 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 omis-
sion of counsel was unreasonable. . . . A fair assess-
ment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s chal-
lenged conduct, and to evaluate the conduct from coun-
sel’s perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge
a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance;
that is, the [petitioner] must overcome the presumption
that, under the circumstances, the challenged action
might be considered sound trial strategy. . . . In recon-
structing the circumstances, a reviewing court is
required not simply to give [the trial attorney] the bene-
fit of the doubt . . . but to affirmatively entertain the
range of possible reasons . . . counsel may have had
for proceeding as [he] did . . . .’’ (Citations omitted;
internal quotation marks omitted.) Spearman v. Com-
missioner of Correction, supra, 164 Conn. App. 538–39.
‘‘The failure of defense counsel to call a potential
defense witness does not constitute ineffective assis-
tance unless there is some showing that the testimony
would have been helpful in establishing the asserted
defense. Defense counsel will be deemed ineffective
only when it is shown that a defendant has informed
his attorney of the existence of the witness and that
the attorney, without a reasonable investigation and
without adequate explanation, failed to call the witness
at trial. The reasonableness of an investigation must be
evaluated not through hindsight but from the perspec-
tive of the attorney when he was conducting it.’’ State
v. Talton, 197 Conn. 280, 297–98, 497 A.2d 35 (1985).
Where an alibi defense contains omissions for crucial
time periods, the alibi is insufficient, and it is not defi-
cient performance to fail to present that defense. See
Jackson v. Commissioner of Correction, 149 Conn.
App. 681, 701–702, 89 A.3d 426 (2014), appeal dismissed,
321 Conn. 765, 138 A.3d 278, cert. denied sub nom.
Jackson v. Semple, U.S. , 137 S. Ct. 602, 196 L.
Ed. 2d 482 (2016). ‘‘[W]here the [new] evidence merely
furnishes an additional basis on which to challenge
[previously admitted evidence, the credibility of which]
has already been shown to be questionable . . . the
[new] evidence may properly be viewed as cumulative,
and hence not material, and not worthy of a new trial.’’
(Internal quotation marks omitted.) Horn v. Commis-
sioner of Correction, 321 Conn. 767, 787, 138 A.3d
908 (2016).
‘‘We [note] that our review of an attorney’s perfor-
mance is especially deferential when his or her deci-
sions are the result of relevant strategic analysis. . . .
Thus, [a]s a general rule, a habeas petitioner will be
able to demonstrate that trial counsel’s decisions were
objectively unreasonable only if there [was] no . . .
tactical justification for the course taken. . . .
‘‘[O]ur habeas corpus jurisprudence reveals several
scenarios in which courts will not second-guess defense
counsel’s decision not to investigate or call certain wit-
nesses or to investigate potential defenses, such as
when . . . counsel learns of the substance of the wit-
ness’ testimony and determines that calling that witness
is unnecessary or potentially harmful to the case . . . .
Further, we generally have upheld an attorney’s choice
to call certain witnesses instead of others. . . .’’ (Cita-
tions omitted; internal quotation marks omitted.) Spear-
man v. Commissioner of Correction, supra, 164 Conn.
App. 540–42.
‘‘We recognize, however, that there have been
instances when our Supreme Court and this court have
held that an attorney’s failure to call specific witnesses
was deficient performance.’’ Id., 542. See, e.g., Bryant
v. Commissioner of Correction, 290 Conn. 502, 516–20,
964 A.2d 1186, cert. denied sub nom. Murphy v. Bryant,
558 U.S. 938, 130 S. Ct. 259, 175 L. Ed. 2d 242 (2009);
Vazquez v. Commissioner of Correction, 107 Conn.
App. 181, 185–87, 944 A.2d 429 (2008); Siano v. Warden,
31 Conn. App. 94, 104–105, 623 A.2d 1035, cert. denied,
226 Conn. 910, 628 A.2d 984 (1993).
‘‘Finally, we turn to the legal principles governing our
review of the proffered testimony of the petitioner’s
alibi witnesses. Our Supreme Court has clarified that
in Connecticut, the crux of the alibi defense is to create
a reasonable doubt as to key elements of the state’s
case. [A]lthough an alibi is sometimes spoken of as a
defense, it operates, in this state, to entitle an accused
to an acquittal when he has so far proved his alibi that
upon all the evidence a reasonable doubt of his guilt
has been raised. . . . Circumstantial evidence can be
used to support, or disprove, an alibi defense. . . .
‘‘[A]bsent a sufficient tactical reason, the failure to
call an alibi witness can constitute deficient perfor-
mance. . . . Where the proffered witnesses would fail
to account sufficiently for a defendant’s location during
the time or period in question, however, a failure to
present certain alibi witnesses has been upheld as rea-
sonable under the circumstances.’’ (Citations omitted;
internal quotation marks omitted.) Spearman v. Com-
missioner of Correction, supra, 164 Conn. App. 544–46.
‘‘[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. In
other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that
makes particular investigations unnecessary.’’ (Internal
quotation marks omitted.) Gaines v. Commissioner of
Correction, 306 Conn. 664, 680, 51 A.3d 948 (2012).4
The following facts from the petitioner’s habeas and
criminal trials are pertinent to our analysis. At the peti-
tioner’s habeas trial, the petitioner testified that he told
Chong that he had several alibi witnesses, including
Guillermina Meletrich and Christina Diaz. Chong testi-
fied that he could not ‘‘recall the names of the relatives,
but [he] did speak to a number of the relatives . . . .’’
He did ‘‘recall speaking to an aunt who lived at [20
Acorn Street],’’ but could not recall specific names.
When asked if he recalled speaking to an aunt who said
the petitioner was home during the day and evening of
the robbery, Chong said, ‘‘It’s possible, but again . . .
as to specific conversations, I don’t recall.’’ After being
presented with a police report, Chong said, ‘‘Again, I
don’t remember names, but I do remember, prior to
trial, during the course of conducting the investigation,
I—myself and my investigator did speak to a number
of family members and friends . . . .’’ He continued,
‘‘A number of family and friends were staying at that
residence in New Britain, and we spoke with a number
of family and friends to establish an alibi for [the peti-
tioner]. . . . I . . . recall that a girlfriend claimed that
she was in bed with [the petitioner] at the time of the
McDonald’s . . . robbery, and she in fact testified at
the trial to provide an alibi defense. I’m sure I spoke
to other relatives, but it was my judgment at the time
that she would provide the best testimony with respect
to his whereabouts at the time of the robbery.’’ When
questioned about whether having additional alibi wit-
nesses would have bolstered the defense of the peti-
tioner, Chong could not answer, stating it required
speculation, and he reiterated that ‘‘after interviewing
a number of family members and friends who were at
the residence, people were coming and going and family
. . . members could not account for his presence every
hour, every minute of the day and night. The only person
who could testify in my judgment and provide the
strongest testimony was the girlfriend who said . . .
that she was in bed with him at the . . . specific time
that the robbery occurred . . . .’’ After being asked
again if presenting additional alibi witnesses would
have helped, Chong again could not answer, and the
habeas court intervened, calling the petitioner’s habeas
counsel argumentative. Chong then said that he remem-
bered an aunt who said the petitioner was at the house
the day of the robbery, but could not account for his
whereabouts within the specific time frame of the rob-
bery’s commission. When asked if he knew what time
Guillermina Meletrich could provide an alibi for, Chong
stated, ‘‘No, no. It’s . . . important to understand . . .
that . . . the McDonald’s restaurant was within a five
minute drive from the home.’’
The criminal trial record reflects that Christina Diaz
did testify as an alibi witness for the petitioner. She
testified that she arrived at 20 Acorn Street on Novem-
ber 21, 2007, during daylight hours, and was with the
petitioner for every moment. She said he did not leave
the house, and that she did not recall him slipping out.
On all the evidence and facts found by the court, we
conclude that Chong’s representation was not deficient
by failing to call Guillermina Meletrich as an alibi wit-
ness. Although Guillermina Meletrich testified that the
petitioner was home the entire time from 4:30 p.m.
onward, it was also clear that she was not with him
every moment of that time frame. She said, ‘‘[e]very
time I came in he was there,’’ implying, of course, that
there were times when she was not physically with
him. Given the close proximity of the McDonald’s, as
evidenced by Chong’s testimony at the habeas trial and
Bethza Meletrich’s testimony at the criminal trial, it
would have been reasonable for the jury to infer that
the petitioner could have left the house to confront
Bethza Meletrich on her way to work without Guiller-
mina Meletrich’s knowledge.
Guillermina Meletrich’s testimony also would have
been cumulative of that of Diaz. Diaz testified at the
criminal trial that she had been with the petitioner every
moment from the time she arrived until after the rob-
bery. Guillermina Meletrich stated that Diaz was with
the petitioner when she came to see him. Finally, Chong,
who did not remember every detail, testified nonethe-
less that he or his investigator interviewed several
friends and family members and thought Diaz could
provide the best alibi because she could cover the peti-
tioner’s whereabouts at the time of the robbery. Diaz
testified at the criminal trial that she was with the peti-
tioner continuously from before sunset, which neces-
sarily covered the time when Bethza Meletrich,
according to her testimony, was confronted by the peti-
tioner and Adam Marcano. We conclude that the peti-
tioner has not shown that Chong’s investigation and trial
strategy were deficient by reason of his not presenting
cumulative testimony that would have been less com-
prehensive than that of Diaz.5
B
To prevail on a claim of ineffective assistance of
counsel, a petitioner must show both deficient perfor-
mance and prejudice; a failure to prove either deficient
performance or prejudice is fatal to his or her claim.
Bryant v. Commissioner of Correction, supra, 290
Conn. 510. Although we have determined that the
habeas court did not err in finding that the petitioner
did not prove deficient performance by Chong, we also
find that the habeas court did not err in finding that
his performance did not satisfy the prejudice prong of
Strickland. See Strickland v. Washington, supra, 466
U.S. 691–96.
‘‘Our analysis of the prejudice prong requires us to
determine the probable effect that counsel’s alleged
defective performance had under the circumstances of
the case before the court. Thus, [t]o satisfy [this] prong,
a claimant must demonstrate that there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.
. . . In assessing prejudice under Strickland, the ques-
tion is not whether a court can be certain counsel’s
performance had no effect on the outcome or whether
it is possible a reasonable doubt might have been estab-
lished if counsel acted differently. . . . Instead, Strick-
land asks whether it is reasonably likely the result
would have been different. . . . This does not require
a showing that counsel’s actions more likely than not
altered the outcome, but the difference between Strick-
land’s prejudice standard and a more-probable-than-
not standard is slight and matters only in the rarest
case. . . . The likelihood of a different result must be
substantial, not just conceivable. . . .
‘‘In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the . . . jury. Some of the factual find-
ings will have been unaffected by the errors, and factual
findings that were affected will have been affected in
different ways. Some errors will have had a pervasive
effect on the inferences to be drawn from the evidence,
altering the entire evidentiary picture, and some will
have had an isolated, trivial effect. Moreover, a verdict
or conclusion only weakly supported by the record is
more likely to have been affected by errors than one
with overwhelming record support. . . . [A] court
making the prejudice inquiry must ask if the defendant
has met the burden of showing that the decision reached
would reasonably likely have been different absent the
errors. . . . [I]n assessing whether there is a substan-
tial likelihood that the addition of such evidence would
have resulted in a different outcome, we must consider
the cumulative effect of all of the evidence. . . .
‘‘[T]he ultimate focus of inquiry must be on the funda-
mental fairness of the proceeding whose result is being
challenged. . . . The benchmark for judging any claim
of ineffectiveness must be whether counsel’s conduct
so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having
produced a just result.’’ (Citations omitted; internal quo-
tation marks omitted.) Spearman v. Commissioner of
Correction, supra, 164 Conn. App. 565–66.
As discussed in part II A of this opinion, Guillermina
Meletrich’s testimony was cumulative of that provided
by Diaz at the criminal trial. We are not persuaded that
the addition of Guillermina Meletrich’s testimony would
have reasonably affected the jury’s verdict. Among
other considerations, neither witness was entirely neu-
tral and disinterested. See Bryant v. Commissioner of
Correction, supra, 290 Conn. 518 (‘‘in circumstances
that largely involve a credibility contest . . . the testi-
mony of neutral, disinterested witnesses is exceedingly
important’’ [internal quotation marks omitted]).
Furthermore, Guillermina Meletrich’s testimony did
not provide the petitioner with an airtight alibi, even
as to the time Bethza Meletrich was approached in the
park. More critically, the jury could have believed Diaz’
testimony to the effect that the petitioner was in the
house with her from when she arrived, and the peti-
tioner still could have conspired to commit the robbery;
the plan could have been devised at an earlier time
and executed later.6 Bethza Meletrich testified that the
petitioner and Adam Marcano approached her with a
preformed plan; the jury reasonably may have inferred
that the petitioner and Adam Marcano formed their plan
prior to the confrontation with Bethza Meletrich. Thus,
our confidence in the verdict has not been undermined
by the failure to present Guillermina Meletrich’s tes-
timony.
In summary, the petitioner is unable to demonstrate
that he was prejudiced by Chong’s failure to call Guiller-
mina Meletrich as an alibi witness. Consequently, as he
has failed to demonstrate either deficient performance
or prejudice, the petitioner’s claim of ineffective assis-
tance of counsel must fail. In light of the foregoing, the
habeas court did not abuse its discretion in denying the
petition for certification to appeal for this claim.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petition for a writ of habeas corpus and the habeas court’s memoran-
dum of decision refer to her as ‘‘Guiellermo,’’ but the habeas trial transcripts
and the petitioner’s appellate brief spell the name ‘‘Guillermina.’’ She is
also sometimes referred to as ‘‘Gigi.’’ We will refer to her as ‘‘Guillermina’’
throughout this opinion.
2
The habeas court considered and rejected a number of claims brought
by the petitioner. The claim regarding the failure to call Guillermina Meletrich
is the only claim pursued on appeal. We note that the habeas court devoted
only six lines in its memorandum of decision to the analysis of this issue.
To the extent that the habeas court’s precise reasoning does not appear in
the record, we presume that the court’s reasoning was correct. See Water
Street Associates Ltd. Partnership v. Innopak Plastics Corp., 230 Conn. 764,
773, 646 A.2d 790 (1994) (‘‘to the extent that the trial court’s memorandum
of decision may be viewed as ambiguous . . . we read an ambiguous record,
in the absence of a motion for articulation, to support rather than to under-
mine the judgment’’).
3
The ‘‘girlfriend’’ referred to is Christina Diaz, who in the petitioner’s
criminal trial, testified as an alibi witness and referred to herself as the
petitioner’s ex-wife.
4
We note as well that appellate courts, and habeas courts, are not necessar-
ily compelled to reach a conclusion of ineffective deficient performance if
trial counsel has not called as a witness a person who can provide useful
information. See Morant v. Commissioner of Correction, 117 Conn. App.
279, 302–304, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009)
(counsel not ineffective for failing to call alibi witness when witness was
not strong and others were available). Experienced trial counsel are well
aware that virtually every witness has vulnerabilities, or would provide
information on cross-examination that could favor his opponent. See Michael
T. v. Commissioner of Correction, 319 Conn. 623, 637–38, 126 A.3d 558
(2015) (counsel not ineffective for failing to call ‘‘highly credible’’ expert
witness because his ‘‘opinion would have been vulnerable to attack on
various grounds’’). As a criminal defendant is protected to a degree by the
burden of proof, a choice not to call witnesses who are not crucial may be
wise. See Harrington v. Richter, 562 U.S. 86, 111, 131 S. Ct. 770, 178 L. Ed.
2d 624 (2011) (‘‘[w]hen defense counsel does not have a solid case, the best
strategy can be to say that there is too much doubt about the [s]tate’s theory
for a jury to convict’’).
5
We note that the petitioner has asserted that the court’s factual finding
was erroneous in stating that Guillermina Meletrich ‘‘testified that the peti-
tioner and his girlfriend were home with her at the time of the robbery,’’
and in concluding that because the petitioner was convicted as a coconspira-
tor, ‘‘the petitioner did not need to be at or near the McDonald’s restaurant
when the robbery was committed.’’ The petitioner claims that this finding
shows that the court mistakenly found that the aunt’s alibi testimony did
not cover the time that Bethza Meletrich was confronted in the park. A
more accurate characterization is that the court was simply silent as to the
time when Bethza Meletrich was confronted. Even were we to accept the
petitioner’s claim of factual error, we nonetheless would not conclude that
Chong’s performance was deficient, for reasons previously stated.
Additionally, the claim that the petitioner could not have been a coconspir-
ator if he did not confront Bethza Meletrich in the park is not persuasive.
We discuss the issue more fully in part II B of this opinion.
6
The prohibited act in the conspiracy context is the agreement, not the
substantive crime. See, e.g., State v. Pond, 315 Conn. 451, 472–75, 108 A.3d
1083 (2015). The petitioner asserts that the only evidence of the timing of
the agreement indicates that the agreement was made when the plan was
announced to Bethza Meletrich in the park. There is no logical reason,
however, why the jury could not have fully believed Diaz—and thus Guiller-
mina Meletrich’s information would have had no additional value—and also
have found that the petitioner agreed at a prior time to commit the robbery.
This inference is supported by the charges brought against the petitioner
at his criminal trial. The information charged the petitioner with four counts,
each of which occurred ‘‘on or about’’ the date of the robbery, which means
the conspiracy did not have to form precisely during Bethza Meletrich’s
walk to work for the jury to find the petitioner guilty. (Emphasis added.)