Weaving v. Commissioner of Correction

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DAVID WEAVING v. COMMISSIONER
OF CORRECTION
(AC 39566)
Keller, Elgo and Flynn, Js.
Syllabus
The petitioner, who had been convicted of the crime of manslaughter in
the second degree in connection with a motor vehicle accident in which
the petitioner’s vehicle struck and killed a child, filed a second petition
for a writ of habeas corpus, claiming that his criminal trial counsel
and his first habeas counsel had rendered ineffective assistance. The
petitioner claimed that his trial counsel was ineffective in failing to
present the testimony of an accident reconstruction expert and that his
prior habeas counsel was ineffective in failing to advance that claim in
the first habeas action. 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 that the habeas court
did not abuse its discretion in denying the petition for certification to
appeal; that court properly determined that the petitioner’s criminal trial
counsel was not deficient in failing to present unfavorable testimony
from an accident reconstruction expert, as trial counsel made a reason-
able, tactical decision to pursue an alternate theory of defense, and her
representation of the petitioner resulted in an acquittal on the most
serious charge against him, and because the petitioner’s claim against
his trial counsel failed, his claim of ineffective assistance on the part
of his prior habeas counsel also failed.
Argued October 4—officially released December 12, 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, Sferrazza, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Samuel Allan Greenberg, assigned counsel, for the
appellant (petitioner).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Maureen Platt,
state’s attorney, and Marc G. Ramia, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
ELGO, J. The petitioner, David Weaving, appeals fol-
lowing 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. The petitioner
contends that the habeas court abused its discretion
by denying his petition for certification to appeal and
by rejecting his claims that counsel at both his criminal
trial and his first habeas proceeding rendered ineffec-
tive assistance. Having thoroughly reviewed the record,
we conclude that the habeas court properly denied the
petition for certification to appeal and, thus, dismiss
the appeal.
The facts underlying the petitioner’s criminal convic-
tion are set forth in this court’s decision on his direct
appeal. ‘‘Shortly before 7 p.m. on April 27, 2007, the
[petitioner] was driving his motor vehicle south on
Route 69 in Prospect. In Prospect, Route 69 is a residen-
tial, two lane road, with one northbound and one south-
bound lane of travel. Although it was a foggy evening
and the road surface was damp, the [petitioner] was
traveling at approximately 80 miles per hour, well in
excess of the posted speed limit of 45 miles per hour.
As he crested a small hill near Radio Tower Road, the
[petitioner] came upon another car traveling in his lane
at or below the posted speed limit. Approaching a per-
mitted passing zone, the [petitioner] accelerated and
began to cross over into the northbound lane in order
to pass the slower moving vehicle. Just as he was doing
so, the [petitioner] noticed a young boy standing on the
pedals of a bicycle near the center of the northbound
lane. The boy was dressed in dark clothing, the bicycle
he was riding was black and there was no headlamp
on the bicycle. The [petitioner] immediately applied his
brakes and attempted to steer back into the southbound
lane in an effort to avoid hitting the boy. The [petition-
er’s] speed, however, coupled with the conditions of
the roadway, made avoiding the boy impossible. The
[petitioner’s] vehicle collided with the bicycle, throwing
the boy onto the hood and windshield and tossing debris
along the side of the road. Despite the efforts of emer-
gency medical personnel and physicians, the boy died
from his injuries. The [petitioner] subsequently was
arrested and charged with manslaughter in the first
degree in violation of General Statutes § 53a-55 (a) (3)
and manslaughter in the second degree in violation of
[General Statutes] § 53a-56 (a) (1).’’ State v. Weaving,
125 Conn. App. 41, 43–44, 6 A.3d 203 (2010), cert. denied,
299 Conn. 929, 12 A.3d 569 (2011).
At the petitioner’s criminal trial, ‘‘a central tenet of
the defense was that the [petitioner] was traveling at
or near the posted speed limit of 45 miles per hour
as he entered the northbound lane to pass the slower
moving vehicle in front of him. Both parties presented
expert testimony as to the [petitioner’s] speed moments
before the collision, focusing particularly on the time
when the [petitioner] first applied his brakes. The state’s
expert, a specialist in accident reconstruction, testified
that, according to his forensic and mathematical analy-
ses, the [petitioner] ‘was traveling at a minimal speed
of 83 miles per hour.’ This determination was based
primarily on the length of skid marks caused by the
[petitioner’s] sudden braking, which measured over 360
feet, but also took account of the condition of the road-
way at the time of the accident. The defense offered the
expert testimony of a behavioral psychologist trained in
principles of human reaction and response time. During
recross-examination, the defense expert conceded that
the length of the skid marks was consistent with a
finding that the [petitioner] was traveling 83 miles per
hour at the moment when he began braking.’’ (Footnote
omitted.) Id., 44–45. At the conclusion of trial, the jury
found the petitioner not guilty of manslaughter in the
first degree and guilty of manslaughter in the second
degree. This court affirmed that judgment of conviction
on direct appeal. Id., 57.
On August 31, 2009, the petitioner commenced his
first habeas action, with Attorney Andrew J. Cates serv-
ing as habeas counsel. His operative petition for a writ
of habeas corpus advanced nineteen claims of ineffec-
tive assistance on the part of the petitioner’s criminal
trial counsel, Attorney Cheryl Heffernan. In particular,
the petitioner alleged that Heffernan was deficient in
failing to ‘‘properly vet the credentials’’ of both ‘‘the
human factors expert whose testimony she presented
at trial,’’ and ‘‘the accident reconstructionist retained
by her’’ to determine whether they were ‘‘truly qualified
to render opinions which contradicted and/or
impeached the testimony of the State’s accident recon-
structionist . . . .’’ The petition also alleged that Hef-
fernan ‘‘failed to instruct her accident reconstructionist
to undertake an independent investigation into the acci-
dent, the conditions of the petitioner’s motor vehicle,
and the like . . . .’’
A habeas trial followed, at which Heffernan testified.
She explained that she had prior experience with acci-
dent reconstruction cases and was familiar with the
techniques and methods utilized therein. Heffernan tes-
tified that, in handling such cases, she necessarily relies
on experts. As she put it, ‘‘I am a lawyer. . . . I’m not
an engineer. I’m not a reconstructionist. I have to rely
on my experts.’’ Prior to the petitioner’s criminal trial,
Heffernan obtained authorization from the state to pro-
cure experts on his behalf. She testified that she initially
sought the assistance of Richard Hermance, an accident
reconstruction expert, due to his solid reputation, and
the fact that her law partner had utilized him ‘‘a number
of times [and] found him to present very well [with] a
tremendous amount of credibility and professionalism
and skill . . . .’’ After securing his services, Heffernan
furnished Hermance with copies of all the evidence
from the scene of the accident, including police reports,
photographs and statements.1
Heffernan testified that, after Hermance reviewed the
evidence, he notified her that he could not offer testi-
mony to challenge the state’s calculations with respect
to the speed of the petitioner’s vehicle. Heffernan never-
theless ‘‘talked to him numerous times and tried to see
if [she] could work something out’’ to present his expert
testimony. Although those efforts were unsuccessful,
Hermance did suggest the retention of a human factors
expert as the ‘‘best way’’ to proceed with the petitioner’s
defense. Heffernan then contacted Patrick McGuire, a
human factors expert, who provided expert testimony
at the petitioner’s criminal trial that, irrespective of the
speed of the petitioner’s vehicle, the accident could not
have been avoided. Heffernan’s trial strategy was to
rely on that testimony to establish that ‘‘regardless of
the speed of [the] vehicle, that [the petitioner] could
not have avoided striking this child because the child
had been in the road improperly and it was a bad situa-
tion.’’ In so doing, Heffernan sought to negate the ele-
ments of extreme indifference to human life and
recklessness, which are essential to the charged
offenses under §§ 53a-55 (a) (3) and 53a-56 (a) (1),
respectively. As she testified, ‘‘[o]ur argument was that
the speed is not what caused the accident. It was the
circumstances that existed that were beyond [the peti-
tioner’s] control. He could not have reacted in time
regardless of how fast he was going. . . . [T]hat’s
where the reaction time was relevant. So, [McGuire]
was there to testify that [if the petitioner had been]
driving at forty-five miles an hour, which . . . was the
speed limit on that road, that he still would have hit
this child.’’
In addition, Heffernan confirmed in her habeas testi-
mony that she consulted with Hermance, her accident
reconstruction expert, in challenging the expert evi-
dence offered by the state. She testified, and the record
confirms, that a Porter hearing2 was held at her behest
prior to the petitioner’s criminal trial, at which the opin-
ions offered by the state’s accident reconstruction
expert were scrutinized. At the conclusion of that hear-
ing, the trial court concluded that the methodology of
the state’s expert was valid.
In its memorandum of decision on the petitioner’s
first habeas action, the court determined, as to all nine-
teen allegations of ineffective assistance, that the peti-
tioner had not established ‘‘that he was prejudiced in
any way.’’ The court also rejected the petitioner’s con-
tention that Heffernan was deficient in failing to prop-
erly vet the credentials of McGuire and Hermance. The
court then addressed the petitioner’s claim that Heffer-
nan failed to instruct Hermance to perform an indepen-
dent investigation of the accident, stating in relevant
part: ‘‘[T]he court finds [that] [t]he petitioner has failed
to prove any prejudice because the testimony by coun-
sel was that after she consulted with her expert about
the calculations and evidence and diagrams that she
presented, the expert indicated [that he] would not be
able to challenge the results of the state police. [Heffer-
nan] also indicated that she and her investigator both
went out and rechecked the measurements . . . that
were provided by the . . . state police and the various
diagrams, and the court took that testimony reasonably
to indicate that since she raised no challenge, that she
and her investigator also must have come up with simi-
lar or the same calculations. . . . [T]he petitioner has
failed to present—and again, it’s their affirmative obli-
gation to provide and present evidence here that, if that
evidence was presented, there would have been some
different or more favorable result; the petitioner has
failed to do that or to present that evidence, so either—
again, for the reason that the petitioner has failed to
present any evidence, the court finds the claim to be
abandoned and it is dismissed. The small amount of
evidence that was presented here all indicated that
counsel had consulted thoroughly with her expert wit-
ness and simply was not able to get the results that the
petitioner wanted, and the court finds that . . . there
was no showing of deficient performance in counsel’s
respect on that issue.’’ Weaving v. Warden, Superior
Court, judicial district of Tolland, Docket No. CV-09-
4003183-S, 2012 WL 6965414, *2 (October 2, 2012).
In addition, the court addressed certain claims
regarding Heffernan’s investigation of the accident
reconstruction prepared by the state. In concluding that
those claims were without merit, the court noted that
‘‘in all of these issues or questions regarding the troop-
ers and their qualifications . . . [Heffernan] filed and
litigated an entire Porter hearing, and if that doesn’t
seek to call into question the qualifications and conclu-
sions raised by the state’s expert witness, I don’t know
what does. I mean, that’s a claim by counsel that says
this is junk science or these people aren’t qualified to
testify to the conclusions they’re giving [and should not
be admitted into evidence]; she litigated that motion,
the court denied the motion. And so, going all the way
back to the Porter hearing, the court frankly finds that
it’s [unsure] what else the petitioner claims counsel
should have done; she sought to keep the testimony,
frankly, out of trial, and the court overruled that after
a lengthy hearing on the officer’s qualifications and the
conclusions he reached. And so, that’s an additional
basis why any and all of the claims related to counsel’s
failure to properly cross-examine or question the state’s
expert witnesses and the police officers, who testified
about accident reconstruction, have failed to be
proven.’’ Id., *4. Accordingly, the court denied the peti-
tion for a writ of habeas corpus. The petitioner did not
appeal from that judgment.
The petitioner commenced a second habeas action in
2013. His amended petition for a writ of habeas corpus
contained two counts of ineffective assistance. The first
alleged that Heffernan was deficient in failing to present
the testimony of an accident reconstruction expert at
his criminal trial. In the second count, the petitioner
alleged that Cates was deficient in failing to advance
that claim in the first habeas action. At the subsequent
habeas trial, the petitioner presented the testimony of
only one expert witness, Kent E. Boots, an accident
reconstructionist from California. On the basis of cer-
tain assumptions that he made regarding the petitioner’s
vehicle at the time of the accident, Boots opined that
its speed ‘‘at the area of impact was somewhat less
than the . . . conclusion that the state police . . .
came to.’’ Utilizing his own friction value, Boots esti-
mated that the petitioner’s vehicle was ‘‘travelling
approximately forty-nine miles per hour at impact.’’
On cross-examination, Boots acknowledged, consis-
tent with McGuire’s expert testimony at the petitioner’s
criminal trial, that the accident would have occurred
whether the vehicle was travelling forty-nine or eighty-
three miles per hour. Boots further noted that, at the
criminal trial, the petitioner had testified that he could
not see over or around the vehicle in front of him just
prior to the accident, and that he made the decision to
pass that vehicle without being able to see if there was
a hazard ahead. For that reason, Boots opined that,
irrespective of the speed of the petitioner’s vehicle, it
would have been impossible for the petitioner to per-
ceive the boy in the road when he attempted to pass
in the opposite lane. On the basis of his training and
experience as both a law enforcement officer and an
accident reconstructionist, Boots also opined that it
was not safe for the petitioner to enter the opposite
lane in such circumstances.
By memorandum of decision filed July 25, 2016, the
habeas court rejected the petitioner’s claims. It stated:
‘‘[T]he dispositive flaw in the petitioner’s accusation of
legal incompetence by Attorney Heffernan is that she
did, in fact, consult with an experienced and well-
regarded accident reconstructionist, [Hermance], a per-
son whom her law firm had utilized in other cases.
Hermance reviewed the pertinent materials concerning
the fatal accident and concluded that the state’s expert
opinion as to the petitioner’s speed of about eighty-three
miles per hour was correct. Based on that unfavorable
conclusion, Attorney Heffernan chose to rely exclu-
sively on the expert testimony of McGuire that the colli-
sion was inevitable even if the petitioner was traveling
at the speed limit; i.e., speed did not contribute to caus-
ing the fatality. The petitioner presented no criminal
defense expert who criticized Attorney Heffernan’s
decision. The court is unaware of any professional obli-
gation of defense counsel to keep consulting with differ-
ent experts until one can be found whose opinions
comport with those desired by the defense. . . . Attor-
ney Heffernan sought advice from an appropriate
source. She acted reasonably in relying on that advice,
especially because Hermance’s opinions matched those
of the state’s accident reconstructionist. Her approach
of utilizing, instead, the human factor specialist appears
to this court to have been professionally sound and
resourceful and even a bit ingenious. Certainly, this
tactic met or exceeded the skill possessed by ordinarily
competent defense lawyers. Consequently, the court
determines that the petitioner has failed to satisfy his
burden of proving, by a preponderance of the evidence,
that Attorney Heffernan’s representation’’ was defi-
cient. In light of that determination, the court also
rejected the claim of ineffective assistance on the part
of Cates. The court therefore denied the petition for a
writ of habeas corpus. The petitioner then filed a peti-
tion for certification to appeal to this court, which the
habeas court denied, and this appeal followed.
At the outset, we note that ‘‘[t]he standard of review
and legal principles that govern our consideration of
the petitioner’s claims on appeal are well settled. The
use of a habeas petition to raise an ineffective assistance
of habeas counsel claim . . . was approved by our
Supreme Court in Lozada v. Warden, 223 Conn. 834,
613 A.2d 818 (1992). In Lozada, the court determined
that the statutory right to habeas counsel for indigent
petitioners provided in General Statutes § 51-296 (a)
includes an implied requirement that such counsel be
effective, and it held that the appropriate vehicle to
challenge the effectiveness of habeas counsel is through
a habeas petition. . . . [T]he court explained that [t]o
succeed in his bid for a writ of habeas corpus, the
petitioner must prove both (1) that his appointed habeas
counsel was ineffective, and (2) that his trial counsel
was ineffective. . . . As to each of those inquiries, the
petitioner is required to satisfy the familiar two-pronged
test set forth in Strickland v. Washington, [466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. First,
the [petitioner] must show that counsel’s performance
was deficient. . . . Second, the [petitioner] must show
that the deficient performance prejudiced the defense.
. . . Unless a [petitioner] makes both showings, it can-
not be said that the conviction . . . resulted from a
breakdown in the adversary process that renders the
result unreliable. . . . In other words, a petitioner
claiming ineffective assistance of habeas counsel on
the basis of ineffective assistance of trial counsel must
essentially satisfy Strickland twice . . . .’’ (Emphasis
in original; internal quotation marks omitted.) Abreu
v. Commissioner of Correction, 172 Conn. App. 567,
574–75, 160 A.3d 1077, cert. denied, 326 Conn. 901, 162
A.3d 724 (2017). Our Supreme Court has characterized
that task as a ‘‘herculean’’ one. Lozada v. Warden,
supra, 843.
Having reviewed the record of the present appeal, we
can improve little on the habeas court’s well reasoned
analysis. As this court previously has observed, ‘‘[a] trial
attorney is entitled to rely reasonably on the opinion of
an expert witness . . . and is not required to continue
searching for a different expert.’’ (Citation omitted.)
Stephen S. v. Commissioner of Correction, 134 Conn.
App. 801, 816, 40 A.3d 796, cert. denied, 304 Conn. 932,
43 A.3d 660 (2012). Moreover, it is well established that
when a criminal defense attorney consults with ‘‘an
expert in a relevant field’’ who thereafter apprises coun-
sel that he or she cannot provide favorable testimony,
counsel is ‘‘entitled to rely reasonably on [that] opinion
. . . and [is] not required to continue searching for a
different expert.’’ Id., 817; see also Brian S. v. Commis-
sioner of Correction, 172 Conn. App. 535, 544, 160 A.3d
1110 (‘‘[t]he fact that the petitioner later was able to
present testimony at his habeas trial from . . . a differ-
ent expert, perhaps more specialized than [the expert
originally consulted by his criminal trial counsel] . . .
did not establish that counsel’s performance was defi-
cient for relying on [the original] expert opinion in prep-
aration for the petitioner’s criminal trial’’), cert. denied,
326 Conn. 904, 163 A.3d 1204 (2017).
As the United States Supreme Court has explained in
the context of ineffective assistance of counsel claims,
‘‘[t]he selection of an expert witness is a paradigmatic
example of the type of ‘strategic choic[e]’ that, when
made ‘after thorough investigation of [the] law and
facts,’ is ‘virtually unchallengeable.’ ’’ Hinton v. Ala-
bama, U.S. , 134 S. Ct. 1081, 1089, 188 L. Ed. 2d 1
(2014); accord Brian S. v. Commissioner of Correction,
supra, 172 Conn. App. 543–44 (rejecting claim of defi-
cient performance when trial counsel consulted with
expert, made strategic decision not to present his testi-
mony at trial or to seek another opinion, and ‘‘strateg-
ized that the best course of action’’ was alternate theory
of defense); Bharrat v. Commissioner of Correction,
167 Conn. App. 158, 170, 143 A.3d 1106 (rejecting claim
of deficient performance when trial counsel consulted
with expert but ultimately ‘‘made the reasonable, strate-
gic decision not to call an expert witness at the underly-
ing criminal trial’’), cert. denied, 323 Conn. 924, 149 A.3d
982 (2016); Stephen S. v. Commissioner of Correction,
supra, 134 Conn. App. 817 (emphasizing that ‘‘trial coun-
sel is entitled to make strategic choices in preparation
for trial’’). The record in the present case indicates that,
after consulting with an expert in accident reconstruc-
tion and utilizing his expertise to challenge the state’s
expert testimony in a pretrial Porter hearing, Heffernan
made a reasonable, tactical decision to pursue an alter-
nate theory of defense, rather than offering that expert’s
unfavorable testimony. The record also indicates that
Heffernan’s representation of the petitioner ultimately
resulted in an acquittal on the most serious charge
before the jury.
We conclude that the petitioner has failed to demon-
strate that Heffernan rendered deficient performance
at his criminal trial. He has not established that Heffer-
nan’s conduct was not reasonably competent, or that
it fell outside the range of competence displayed by
lawyers with ordinary training and skill in the criminal
law. Accordingly, the petitioner cannot prevail on his
claims that his criminal trial counsel and his first habeas
counsel rendered ineffective assistance. See Abreu v.
Commissioner of Correction, supra, 172 Conn. App.
583 (‘‘because the petitioner failed to establish that he
had a viable claim of ineffective assistance of trial coun-
sel, his assertion that his prior habeas counsel provided
ineffective assistance by failing to raise that claim simi-
larly lacks merit’’). We therefore conclude that the court
did not abuse its discretion by denying the petition for
certification to appeal. See Lozada v. Deeds, 498 U.S.
430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms
v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).
The appeal is dismissed.
In this opinion the other judges concurred.
1
In her testimony, Heffernan acknowledged that, aided by an investigator,
she conducted her own inspection of the scene of the accident, and the
skid marks from the petitioner’s vehicle in particular. She nonetheless testi-
fied that, because the scene had changed since the date of the accident and
the skid marks had faded, that investigation was of no value.
2
See State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523
U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).