Figueroa v. Commissioner of Correction

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GEORGE FIGUEROA v. COMMISSIONER
OF CORRECTION
(AC 42140)
Alvord, Prescott and DiPentima, Js.
Syllabus
The petitioner, who previously had been convicted of the crimes of murder
and carrying a pistol without a permit in connection with the shooting
death of the victim, sought a writ of habeas corpus, claiming, inter alia,
that his trial counsel, D, rendered ineffective assistance by failing to
request an alibi instruction. He claimed that his appellate counsel, C,
rendered ineffective assistance by failing to raise a claim on direct
appeal that his sixth amendment right to a trial by jury was violated by
the trial court’s handling of a jury note inquiring about the testimony
of a witness, T, that invaded the fact-finding province of the jury. The
habeas court rendered judgment denying in part and dismissing in part
the habeas petition, from which the petitioner, on the granting of certifi-
cation, appealed to this court. Held:
1. The habeas court properly determined that the petitioner was not preju-
diced by any alleged ineffective assistance of D as the petitioner failed
to establish that there was a reasonable probability that, but for D’s
failure to request an alibi instruction, the outcome of the petitioner’s
criminal trial would have been different; the petitioner’s alibi defense
was weak, as the petitioner testified vaguely that he believed he was
in New York City on the day of the murder, his only alibi witness did
not testify as to his whereabouts on the day of the murder but only
testified that he had moved to New York City a couple of months prior
to the murder, there was substantial evidence linking the petitioner to
the murder of the victim, including the testimony of two eyewitnesses
who observed the petitioner shoot the victim, testimony which the jury
clearly credited over the testimony of the petitioner, and there was
evidence that the victim and the petitioner had engaged in a previous
altercation in which the petitioner shot at the victim two years earlier.
2. The habeas court properly determined that the petitioner was not preju-
diced by C’s failure to raise a sixth amendment claim on direct appeal;
the trial court did not impermissibly find facts in violation of the petition-
er’s sixth amendment right to a jury trial, as that court’s reference to
certain relevant pages of the transcript of T’s tape-recorded statement
to the police, in response to the jury’s question during deliberations,
was not improper marshaling of the evidence, as the statement was in
evidence, the court did not specifically read portions of the statement
to the jury but only highlighted pages it believed were material to the
jury’s request, it allowed the jury to review the statement itself and
reminded the jurors that the weight accorded to the evidence was up
to them.
3. The habeas court properly dismissed the petitioner’s freestanding claim
that the trial court violated his state and federal constitutional rights
to a jury trial on the ground of procedural default; on direct appeal, the
petitioner failed to argue that the court, in its handling of the jury note,
impermissibly found facts in violation of his right to a jury trial, and he
failed to meet his burden of proving that his procedural default should
be excused; the petitioner failed to prove that he was prejudiced by
the trial court’s handling of the jury note, and, thus, the petitioner’s
constitutional right to a trial by jury was not violated.
Argued September 16, 2020—officially released January 5, 2021
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, Kwak, J.; judgment
denying in part and dismissing in part the petition, from
which the petitioner, on the granting of certification,
appealed to this court. Affirmed.
Michael W. Brown, for the appellant (petitioner).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Rebecca A. Barry, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
DiPENTIMA, J. The petitioner, George Figueroa,
appeals from the judgment of the habeas court denying
in part and dismissing in part his petition for a writ of
habeas corpus. On appeal, the petitioner claims that the
court erred by concluding that (1) he failed to sustain
his burden of establishing prejudice caused by his trial
counsel’s failure to request an alibi instruction, (2) he
failed to sustain his burden of establishing prejudice
caused by his appellate counsel’s failure to argue on
direct appeal that his constitutional right to a trial by
jury was violated, and (3) his claim that his constitu-
tional right to a trial by jury was violated was procedur-
ally defaulted. We affirm the judgment of the habeas
court.
The following facts and procedural history are rele-
vant to our resolution of the petitioner’s claims. The
petitioner was charged with murder in violation of Gen-
eral Statutes § 53a-54a (a) and carrying a pistol without
a permit in violation of General Statutes § 29-35. The
matter proceeded to trial, and the jury returned a verdict
of guilty on both counts. The trial court, Hartmere,
J., accepted the verdict and imposed a total effective
sentence of sixty years imprisonment. The petitioner
thereafter appealed from the judgment of conviction
On appeal, we affirmed the petitioner’s conviction.
See State v. Figueroa, 74 Conn. App. 165, 810 A.2d 319(2002), cert. denied, 262 Conn. 947, 815 A.2d 677 (2003).
The following facts, which the jury reasonably could
have found, were set forth in our opinion in that appeal.
In the summer of 1995, the petitioner and the victim,
John Corbett, were involved in a physical altercation
on Lilac Street in New Haven. Id., 166. During that
altercation, the victim hit the petitioner in the face.
Thereafter, the petitioner retreated to his residence on
Lilac Street, retrieved his gun, and, from a window of
his third floor apartment, began firing at the victim. Id.,166–67. The victim was not injured during this incident,
which was never reported to the police. Id., 167.
Shortly thereafter, the victim was incarcerated until
sometime in November, 1997. Id. Approximately two
weeks after his release, on the afternoon of December
7, 1997, the victim was standing at the corner of Lilac
and Newhall Streets, speaking with Edward Wells. Id.The two men were standing in front of 44-46 Lilac Street
when the petitioner approached, driving his white 1997
Toyota Camry, which he parked in front of a red sports
car that also was parked along the side of Lilac Street.
Id. The petitioner got out of his car and entered 40-42
Lilac Street. Id.In the meantime, Ebonie Moore approached, driving
her black car, which she parked along Lilac Street
behind the red sports car. Id. She and her passenger,
Takheema Williams, who had dated the petitioner, were
sitting in Moore’s car listening to music. Id.The petitioner then emerged from the 40-42 Lilac
Street residence and stood near his car. Id. The victim
told Wells that he wanted to speak with the petitioner,
and he walked over to where the petitioner was stand-
ing. Id. ‘‘The two talked for a short time, they shook
hands, and then a shot was fired. As [the victim] turned
away from the [petitioner], he fell face down onto the
sidewalk. Wells and Moore then watched as the [peti-
tioner] stood over [the victim], with his arm fully
extended and a pistol in his hand, and fired several
additional shots into [the victim’s] body. The [peti-
tioner] then walked to his white Toyota Camry, which
was parked a few feet away, got into the driver’s seat
and sped along Lilac Street toward Newhall Street.’’
Id., 167–68.
Wells ran to Moore’s parked car, banged on the win-
dow, and yelled for Moore to call for an ambulance
because ‘‘ ‘[the petitioner] had just shot [the victim].’ ’’
Id., 168. Moore and Wells administered cardiopulmo-
nary resuscitation (CPR) to the victim until the police
arrived. Id. ‘‘Shortly thereafter, an ambulance arrived
and transported [the victim] to Yale-New Haven Hospi-
tal where he was pronounced dead about eight minutes
after his arrival. [The victim] suffered six gunshot
wounds. He was shot once in the stomach, four times
in the lower back and once in the back of his left
shoulder. Either or both of two of the wounds to [the
victim’s] lower back were fatal.’’ Id.‘‘Soon thereafter, Wells and Moore arrived at the hos-
pital where they told a New Haven police detective that
it was the [petitioner] who had shot [the victim]. Within
the next few days, both Wells and Moore gave state-
ments to the police implicating the [petitioner] as the
shooter and selected the [petitioner’s] photograph from
a photographic array, identifying him as the man who
shot [the victim]. On December 10, 1997, Williams gave
the police a tape-recorded statement regarding the
December 7, 1997 shooting on Lilac Street.’’ Id. There-
after, the matter proceeded to trial, and the petitioner
was convicted.
Following his direct appeal, the petitioner filed a pro
se petition for a writ of habeas corpus on August 14,
2006. The habeas court, Swords, J., granted the motion
to dismiss filed by the respondent, the Commissioner
of Correction, and this court affirmed the habeas court’s
judgment and dismissed the petitioner’s appeal. See
Figueroa v. Commissioner of Correction, 123 Conn.
App. 862, 871, 3 A.3d 202 (2010), cert. denied, 299 Conn.
926, 12 A.3d 570 (2011). Thereafter, the petitioner filed
a second petition for a writ of habeas corpus, which is
the subject of this appeal. In the operative petition dated
August 14, 2017, the petitioner alleged ineffective assis-
tance of trial and appellate counsel. He also alleged
that his constitutional rights to a trial by jury and due
process of law had been violated. The habeas court,
Kwak, J., denied in part and dismissed in part the peti-
tion. The court determined that the petitioner had failed
to prove that he was prejudiced by any of the alleged
errors. The petitioner filed a petition for certification
to appeal, which the court granted. Additional facts will
be set forth as necessary.
I
The petitioner claims that the habeas court erred
in concluding that he was not prejudiced by his trial
counsel’s failure to request an alibi instruction. Specifi-
cally, the petitioner argues that there is a reasonable
probability that the outcome of his trial would have
been different if the jury had been instructed as to how
it should assess the alibi evidence presented at his trial.
The petitioner contends that the jury, without proper
guidance, could have believed that he had the burden
of proving his alibi. In response, the respondent argues
that an alibi instruction would not have led the jurors
to question the credibility of Wells and Moore due to
the strong evidence of the petitioner’s identity as the
shooter and the weakness of the petitioner’s alibi evi-
dence. Moreover, the respondent contends that the peti-
tioner was not prejudiced because the jurors had the
capacity to assess alibi evidence adequately without
the aid of a specific alibi instruction by relying on their
common knowledge. We agree with the respondent that
the court properly concluded that the petitioner was
not prejudiced by any alleged ineffectiveness of his
trial counsel.
The following additional facts and procedural history
are relevant. At trial, both Wells and Moore testified
that they saw the petitioner shoot the victim. Wells
testified that he heard a shot, saw the victim fall to the
ground, and then watched as the petitioner stood over
the victim and continued to fire at him. He further stated
that he had a good look at the petitioner, it was not
dark out, he had an unobstructed view, and there was
no question in his mind that the petitioner was the
individual firing at the victim. Wells also testified that,
after the petitioner drove off in his car, Wells banged
on the window of Moore’s car and asked her to call an
ambulance because the petitioner had just shot the
victim. Wells told the police officers at the scene that
the petitioner had shot the victim, and repeated this to
the detectives who took his statement at the police
station later that evening. While at the station, the police
showed Wells approximately six or seven photographs,
and asked him to identify the petitioner. Wells identified
the petitioner from the photographs.
Following Wells’ testimony, Moore testified that she
also saw the petitioner shoot the victim. Specifically,
she testified that she saw the petitioner talking with
the victim, saw the victim turn away and begin to walk
toward her car, and then watched as the petitioner
began to fire at the victim. Moore testified that the
victim fell over and the petitioner stood over him and
continued to fire. After he stopped firing at the victim,
the petitioner got into his car and drove off. Moore
testified that Wells then came up to her car and yelled
that ‘‘[the petitioner] just shot [the victim].’’ Moore and
Wells performed CPR on the victim. Moore went to
Yale-New Haven Hospital with Wells and another friend,
and later told a detective there that the petitioner ‘‘did
the shooting.’’ The following day, Moore went to the
police station, and iterated that the petitioner had shot
the victim. While there, the police showed Moore a
photographic array from which she was able to identify
the petitioner as the shooter.
The petitioner testified during his criminal trial. On
direct examination, he stated that he was not in New
Haven on December 7, 1997, the day of the murder.
Although the petitioner testified that he could not
remember exactly where he was, he believed that he
was in New York City watching a football game with
friends. During cross-examination, the petitioner
repeated that he was in New York City on the day of
the murder watching a football game, specifically in
Yonkers at the house of a friend, Clifton McQueen. He
further stated that there were around eight to ten people
at McQueen’s house, and that he did not remember any
of their names.
In support of the petitioner’s contention that he was
not in New Haven on the date of the shooting, the
defense also called Tanya Fleming, the mother of one
of the petitioner’s daughters, as a witness. Fleming testi-
fied that the petitioner stayed with her in New Haven
until September, 1997, and that, sometime during that
month, he left to go to New York City. She further
testified that the petitioner left his white Toyota Camry
with her when he went to New York. She also testified
that when she went to Maryland for Thanksgiving for
approximately two weeks, she left the Camry at her
apartment. When she returned home, however, the
Camry was gone. Fleming did not report the car as
stolen because she had not made any payments on it,
and assumed that it had been repossessed.1 The police
later found the white Toyota Camry abandoned in
Orange at a rest area along the Merritt Parkway.
Prior to closing arguments, the court discussed the
final version of the jury charge with the prosecutor and
defense counsel, Chris DeMarco. DeMarco confirmed
with the court that he was not requesting an alibi
instruction because he did not believe there was an
alibi. On the basis of defense counsel’s representations,
the court stated that it would not give the jury an alibi
instruction. During closing argument, DeMarco noted
that the petitioner was not sure where he was on the
day of the murder, and that he was unable to have any
alibi witness testify for this reason. DeMarco repeated
this theme later on, stating that he was unable to call
McQueen to testify as an alibi witness because the peti-
tioner was unsure as to his own whereabouts on the
day of the shooting.
During the petitioner’s habeas trial, DeMarco testified
about his decision not to request an alibi instruction.
DeMarco testified that he had not sought an alibi
instruction because the petitioner’s alibi claim ‘‘[was
not] solid.’’ Specifically, although he believed that the
jury could have credited the petitioner’s testimony that
he did not know exactly where he was on the day of
the murder, DeMarco did not think that the petitioner
was entitled to an alibi instruction because, legally, he
could not be an alibi witness for himself. He also testi-
fied that he did not believe that Fleming’s testimony
was strong enough to support an alibi claim because
any person could leave Connecticut and travel to and
from a neighboring state in a few hours.
The petitioner then called Attorney Michael Fitzpa-
trick to testify as an expert witness regarding trial and
appellate advocacy. Fitzpatrick opined that DeMarco
should have requested an alibi instruction. He testified
that, in his opinion, this failure prejudiced the petitioner
because it deprived him of a ‘‘recognized defense and
a basis for acquittal.’’ Fitzpatrick stated that, although
technically speaking the petitioner could not be an alibi
witness for himself, he believed that Fleming’s testi-
mony ‘‘put things over the top and entitled him to an
alibi instruction.’’ Finally, he testified that without an
alibi instruction, the jury would not have received clear
guidance on who had the burden of proving or disprov-
ing an alibi defense, as they ‘‘may very well believe that
the party that’s offered the evidence has the burden to
prove it.’’
Following trial, the habeas court concluded that the
petitioner had failed to sustain his burden of establish-
ing prejudice with respect to his ineffective assistance
of trial counsel claim. Specifically, the habeas court
found that ‘‘[i]n the underlying criminal case, the evi-
dence linking the petitioner to the crime was substan-
tial, including testimony by multiple eyewitnesses who
identified the petitioner as the shooter. Based on the
record, the court finds that there does not exist a rea-
sonable likelihood that the outcome of the petitioner’s
trial would have been different if an alibi instruction
had been given.’’ Thereafter, the habeas court denied
the petitioner’s claim.
We are guided by the following relevant legal princi-
ples. ‘‘In a habeas appeal, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous, but our review of whether the
facts as found by the habeas court constituted a viola-
tion of the petitioner’s constitutional right to effective
assistance of counsel is plenary.’’ (Internal quotation
marks omitted.) Buie v. Commissioner of Correction,
187 Conn. App. 414, 417, 202 A.3d 453, cert. denied, 331
Conn. 905, 202 A.3d 373 (2019).
‘‘A claim of ineffective assistance of counsel as enun-
ciated in Strickland v. Washington, [466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], consists of
two components: a performance prong and a prejudice
prong. To satisfy the performance prong . . . the peti-
tioner must demonstrate that his attorney’s representa-
tion was not reasonably competent or within the range
of competence displayed by lawyers with ordinary train-
ing and skill in the criminal law. . . . Our Supreme
Court has stated that the performance inquiry must be
whether counsel’s assistance was reasonable consider-
ing all the circumstances, and that [j]udicial scrutiny of
counsel’s performance must be highly deferential. . . .
‘‘An error by counsel, even if professionally unreason-
able, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the
judgment. . . . To satisfy the second prong of Strick-
land, that his counsel’s deficient performance preju-
diced his defense, the petitioner must establish that, as
a result of his trial counsel’s deficient performance,
there remains a probability sufficient to undermine con-
fidence in the verdict that resulted in his appeal. . . .
The second prong is thus satisfied if the petitioner can
demonstrate that there is a reasonable probability that,
but for that ineffectiveness, the outcome would have
been different. . . . In making this determination, a
court hearing an ineffectiveness claim . . . must con-
sider the totality of the evidence before the judge or
the jury. . . . 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 petitioner’s claim will succeed only if both prongs
are satisfied. . . . Unless a [petitioner] makes both
showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversary process
that renders the result unworkable. . . . A court can
find against a petitioner, with respect to a claim of
ineffective assistance of counsel, on either the perfor-
mance prong or the prejudice prong, whichever is eas-
ier.’’ (Internal quotation marks omitted.) Leon v. Com-
missioner of Correction, 189 Conn. App. 512, 530–31,
208 A.3d 296, cert. denied, 332 Conn. 909, 209 A.3d
1232 (2019).
On the basis of our review of the record, we conclude
that the petitioner has failed to establish that there was
a reasonable probability that, but for DeMarco’s failure
to request an alibi instruction, the outcome of his trial
would have been different. In the present case, there
was substantial evidence linking the petitioner to the
victim’s murder. Specifically, two eyewitnesses testified
to observing, at close range, the petitioner shoot the
victim. Wells testified that he was about a ‘‘house away’’
from the petitioner when he heard a shot and saw the
victim fall to the ground. Wells then watched as the
petitioner stood over the victim and shot him approxi-
mately seven times. Wells further testified that he had
an unobstructed and good view of the petitioner, and
that it was light out. Upon witnessing the event, Wells
immediately banged on the window of Moore’s car, told
her that the petitioner had just shot the victim, and
asked her to call an ambulance. He told the police both
at the scene and later that evening at the police station
that the petitioner was the victim’s shooter, and he
identified the petitioner from a photographic array.
Wells’ testimony thus provided strong evidence of the
petitioner’s guilt.
Moore independently corroborated Wells’ identifica-
tion of the petitioner. Moore testified that she witnessed
the incident at close range, from approximately two
car lengths away.2 Even though a tree and a red car
were partially obstructing her view, Moore testified that
she saw the petitioner speaking with the victim, saw
them shake hands following their conversation, saw the
victim turn away, and then watched as the petitioner
began firing at the victim. Although Moore did not see
the gun, she could tell that the petitioner was firing at
the victim because she felt a vibration and saw ‘‘fire
come out’’ from the petitioner’s arm. Moore then testi-
fied that the petitioner stood over the victim and shot
him approximately seven times. Following the shooting,
Moore stated that Wells ran up to her car, banged on
her window, and shouted that ‘‘[the petitioner] just shot
[the victim].’’ Moore traveled to the hospital with Wells
and a friend and, while there, she told a detective that
‘‘[the petitioner] did the shooting.’’ The next day, Moore
went to the police station, where she iterated that the
petitioner had shot the victim, and identified him from
a photograph array. Moore’s testimony, therefore, also
provided strong evidence of the petitioner’s identity as
the shooter.
In addition to the eyewitness testimony, the state
presented circumstantial evidence against the peti-
tioner during his trial on the issues of intent and motive,
further establishing the likelihood that he was the
shooter.3 ‘‘Evidence of prior threats by a defendant
directed to his victim has been held relevant to the
issues of intent and motive.’’ (Internal quotation marks
omitted.) State v. Fisher, 57 Conn. App. 371, 376, 748
A.2d 377, cert. denied, 253 Conn. 914, 754 A.2d 163(2000). Here, during the petitioner’s criminal trial,
Moore testified that, in the summer of 1995, the peti-
tioner and the victim had been involved in an alterca-
tion. During that summer, the victim and the petitioner
had gotten into a physical fight, and the victim ‘‘beat
the [petitioner] up.’’ This angered the petitioner, who
went into his house and began shooting out the window
at the victim. The victim was not shot during this inci-
dent, which was never reported to the police. Moore’s
testimony demonstrated that the petitioner had threat-
ened the victim previously, and provided circumstantial
evidence that the petitioner intended to shoot the vic-
tim, and had a motive for doing so. Such evidence,
therefore, provided additional support for the state’s
case against the petitioner. On the record presented,
we thus are not persuaded that there is a reasonable
probability that the outcome of the petitioner’s trial
would have been different had his defense counsel
requested an alibi instruction given the strength of the
state’s case.
Moreover, the very nature of an alibi and the detailed
instructions that the court gave the jury on the burden of
proof and witness credibility undermine the petitioner’s
argument that he was prejudiced by the lack of an alibi
instruction. An alibi ‘‘is a claim by the defendant that
he or she was in a place different from the scene of
the crime at the time of the alleged offense.’’ State v.
Tutson, 278 Conn. 715, 733, 899 A.2d 598 (2006). ‘‘A
defendant asserting an alibi and relying upon it as a
defense is entitled to have the jury charged that the
evidence offered by him on that subject is to be consid-
ered by them in connection with all the rest of the
evidence in ascertaining whether he was present, and
that if a reasonable doubt on that point exists, it is the
jury’s duty to acquit him.’’ State v. Butler, 207 Conn.
619, 631, 543 A.2d 270 (1988). However, a ‘‘trial court
has no duty to instruct upon alibi in the absence of a
request, and . . . the failure to instruct in such an
instance will not ordinarily constitute reversible error,
even though substantial alibi evidence may have been
introduced by the defense.’’ (Internal quotation marks
omitted.) Id. ‘‘While an alibi is commonly called a
defense, strictly speaking it is merely rebuttal of the
state’s evidence.’’ (Internal quotation marks omitted.)
State v. Parham, 174 Conn. 500, 510, 391 A.2d 148(1978). Accordingly, ‘‘an unrequested instruction is not
necessary inasmuch as it is within the common knowl-
edge of jurors, without being told, that if the accused
was at a place other than the scene of the commission
of a crime requiring personal presence, he cannot be
guilty.’’ (Internal quotation marks omitted.) Id.Here, although the court did not deliver an alibi
instruction to the jury, it repeatedly emphasized that
the state had the burden of proof throughout its instruc-
tions. The court initially told the jury that ‘‘the burden
to prove the [petitioner] guilty of the crime with which
he is charged is upon the state. The [petitioner] does
not have to prove his innocence. This means that the
state must prove beyond a reasonable doubt each and
every element necessary to constitute the crime
charged.’’ The court later instructed the jury that the
‘‘state must prove beyond a reasonable doubt that the
[petitioner] caused the death of [the victim] with the
intent to cause the death. The state must prove beyond
a reasonable doubt that the [petitioner] caused the
death of [the victim] by the use of a firearm.’’
The court also provided the jury with thorough
instructions on witness credibility. Specifically, the
court instructed the jury that it ‘‘must decide which
testimony to believe and which testimony not to believe.
You may believe all, none or any part of any witness’
testimony, that is up to you. In making that decision
you may take into account a number of factors including
the following: (1) Was the witness able to see or hear
or know the things about which that witness testified?
(2) How well was the witness able to recall or describe
those things? (3) What was the witness’ manner while
testifying? (4) Did the witness have an interest in the
outcome of this case, or any bias or prejudice concern-
ing any party or any matter involved in the case? (5)
How reasonable was the witness’ testimony considered
in the light of all the evidence in the case? And (6)
was the witness’ testimony contradicted by what that
witness has said or done at another time, or by the
testimony of other witnesses or by other evidence?’’
The petitioner did not object to the burden of proof
and witness credibility portions of the court’s charge
to the jury.
Because the state had the burden of proving that the
petitioner caused the death of the victim by use of a
firearm, to find the petitioner guilty, the jury necessarily
needed to find that the state had proven beyond a rea-
sonable doubt that the petitioner was present at the
scene of the crime and had, in fact, shot and killed the
victim. Although the jurors did not receive a specific
instruction from the court regarding a claim of alibi, it
was within their common knowledge ‘‘without being
told, that if the accused was at a place other than the
scene of the commission of a crime requiring personal
presence, he cannot be guilty.’’ (Internal quotation
marks omitted.) State v. Parham, supra, 174 Conn. 510.
By finding the petitioner guilty, the jury clearly weighed
the credibility of the witnesses’ testimony, in accor-
dance with the court’s instructions, and rejected the
petitioner’s testimony that he had been in New York
City during the time of the murder, and instead credited
the testimony of both Wells and Moore that they saw
the petitioner shoot the victim. See State v. Perez, 147
Conn. App. 53, 111, 80 A.3d 103 (2013) (acknowledging
that ‘‘[i]t is a fundamental principle that jurors are pre-
sumed to follow the instructions given by the judge’’
(internal quotation marks omitted)), aff’d, 322 Conn.
118, 139 A.3d 654 (2016). The jury’s apparent rejection
of the petitioner’s alibi indicates that it did not find his
testimony credible. Moreover, in light of the court’s
instructions that placed the burden of proof squarely
on the state, the jury would not have been misled by
the absence of any discussion in the charge of the peti-
tioner’s alibi claim. See State v. Parham, supra, 510(concluding absence of alibi instruction could not have
misled jury when it was clear jury was instructed that
it could not find defendant guilty unless he was at scene
of burglary and defendant failed to claim error in charge
regarding burden and quantum of proof required for
conviction). Consequently, receiving an alibi instruction
likely would not have caused the outcome of the peti-
tioner’s trial to be different.
The weakness of the petitioner’s alibi evidence pre-
sented at trial further indicates that the petitioner was
not prejudiced by DeMarco’s failure to request an alibi
instruction. During trial, the petitioner testified vaguely
that he was not in New Haven on the day of the murder,
and that he ‘‘believed’’ he was in New York City watch-
ing a football game with friends. Although he later
stated during cross-examination that he was at the
house of his friend Clifton McQueen, neither McQueen,
nor any of the approximately eight to ten people whom
the petitioner said were with him but whom he could
not name, testified in order to corroborate his alibi.
The petitioner’s only alibi witness was Tanya Flem-
ing, and her testimony did not strengthen the alibi claim.
Although she testified that the petitioner left Connecti-
cut to move to New York City sometime in September,
1997, she did not testify as to the petitioner’s where-
abouts on December 7, 1997, the day of the murder.
Even assuming that the petitioner had moved to New
York City in September, 1997, Fleming’s testimony did
not foreclose the possibility that the petitioner returned
to Connecticut on December 7, 1997, murdered the
victim, and then returned to New York City. Indeed, as
DeMarco testified during the petitioner’s habeas trial,
Fleming’s testimony did not strongly corroborate the
petitioner’s alibi because any person can leave Connect-
icut and travel to and from a neighboring state in a few
hours. Due to Fleming’s inability to specify where the
petitioner was on the day of the murder, the jury faced a
credibility determination between the petitioner’s claim
that he was in New York City, and the testimony of
Wells and Moore that they witnessed the petitioner
shoot the victim. By returning a guilty verdict, the jury
appears to have credited the testimony of Wells and
Moore rather than that of the petitioner. The petitioner,
therefore, has not met his burden of demonstrating that
there is a reasonable probability that, but for DeMarco’s
failure to request an alibi instruction, the outcome of
his trial would have been different.4
On the basis of the record, we conclude that the
habeas court properly determined that, due to the sub-
stantial evidence linking the petitioner to the crime, the
petitioner cannot establish prejudice as a result of any
allegedly deficient performance by his trial counsel.
Accordingly, his claim of ineffective assistance of trial
counsel fails.
II
The petitioner next claims that the habeas court erred
by concluding that he was not prejudiced by his appel-
late counsel’s failure to raise as a claim on direct appeal
that the trial court’s handling of a jury note inquiring
about Takheema Williams’ testimony violated his sixth
amendment right to a trial by jury. Specifically, the
petitioner argues that a claim that the trial court violated
his sixth amendment rights by invading the fact-finding
province of the jury is more ‘‘favorable’’ to a criminal
defendant than the claim raised by his appellate coun-
sel, and that the habeas court erred by failing to con-
sider this when determining that the petitioner was not
prejudiced. In response, the respondent contends that
the petitioner was not prejudiced by his appellate coun-
sel’s failure to raise a sixth amendment claim because
any alleged court fact-finding was limited to a single
eyewitness, and, due to the strength of Wells’ and
Moore’s testimony, Williams’ identification testimony
was of marginal significance. We agree with the respon-
dent that the petitioner was not prejudiced by his appel-
late counsel’s failure to raise a sixth amendment claim.
The following additional facts and procedural history
are relevant to this claim. At trial, the state called Wil-
liams to testify about the events on the day of the
murder. Williams testified that she was with Moore on
Lilac Street on December 7, 1997. Williams and Moore
went to the flea market, and then returned to Lilac
Street in Moore’s black car. When the two of them
returned, Moore once again parked her car on Lilac
Street. The state then attempted to ask Williams ques-
tions about the events that transpired after she and
Moore returned to Lilac Street, but Williams testified
that she was unable to remember most of the day’s
events. As a result, her taped statement from December
10, 1997, and a twenty-one page transcript of that tape
were admitted into evidence as full exhibits for substan-
tive and impeachment purposes pursuant to State v.
Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479
U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).5
On April 27, 2000, during the fifth day of jury delibera-
tions, the jury submitted the following question to the
court: ‘‘We’d like to hear if [Takheema] Williams was
ever asked to answer the question ‘Did you see [the
petitioner] at the scene?’ ’’ After reviewing Williams’
testimony, and outside the presence of the jury, the
court stated to counsel that ‘‘[t]he literal answer [to the
question] is no, she was never asked that question. . . .
I think, in terms of the live testimony, the answer is
‘no.’ She was never asked that question.’’ The court
further stated, however, that Williams’ Whelan state-
ment had been admitted for substantive and impeach-
ment purposes, and that on pages eighteen6 and twenty7
of the transcript of that statement, she did testify as to
what she saw. The court indicated that it intended to
inform the jurors that there were two parts to their
question, the first being whether there was live testi-
mony to that effect and the second being whether there
was other evidence to that effect. DeMarco objected
on the ground that any reference to the relevant pages
of Williams’ Whelan statement would constitute an
improper marshaling of the evidence. He requested that
the court refrain from making any specific reference
to page numbers. The court noted the objection, but
stated that it intended to reference the page numbers
in order to ‘‘shortcut’’ it for the jury.
Thereafter, the jury was brought back into the court-
room. The court instructed the jury that Williams was
never asked whether she saw the petitioner at the scene
during her in-court testimony. The court also told the
jurors, however, that it ‘‘want[ed] to remind you that
as to the witness [Takheema] Williams, her prior tape
recorded statement was introduced. . . . You have
that. The transcript is state’s exhibit 97, which you also
have, and I’ll refer you to my instructions on the use
of that statement, which [is] on page eighteen of my
instructions as to the use you may make of it. I’ll also
refer you to, in the transcript, and if you listen to the
tape-recorded statement, pages eighteen and twenty,
of her statement, but again, it’s up to you as to what
weight you accord to any evidence. I just wanted to
remind you of that. So, I think the answer to your
question is in two parts, then, as I’ve described.’’ Four
days later, on May 1, 2000, the jury returned a verdict
of guilty of both counts.
On direct appeal, the petitioner claimed that ‘‘the trial
court improperly directed the jury to two pages of a
witness’ twenty-one page statement in response to a
question by the jury during its deliberations.’’ State v.
Figueroa, supra, 74 Conn. App. 165. He argued that the
court’s response to the jury’s inquiry was improper and
violated his right to a fair trial because ‘‘(1) the court
had authority to refer the jury to Williams’ in-court
testimony only and lacked authority to direct the jury
to Williams’ Whelan statement, and (2) referring to only
two pages of the twenty-one page Whelan statement
constituted an improper marshaling of the evidence by
the court in favor of the state.’’8 Id., 171. The petitioner
made this claim pursuant to the due process clause
of the fourteenth amendment. This court rejected the
petitioner’s claims, holding that ‘‘[t]he court’s reference
to particular pages of the Whelan statement in an effort
to answer the jury’s inquiry did not constitute a marshal-
ing of evidence in favor of the state but, instead, a
simple response to the jury’s request for a review of a
portion of the record under Practice Book § 42-26.’’
Id., 176. We also concluded that ‘‘the court acted in
furtherance of the interests of justice by referring the
jury to Williams’ Whelan statement because, if it had
not done so, the court would not have been completely
responsive to the jury’s request. In addition, we fail to
see how the court violated the defendant’s constitu-
tional right to a fair trial by referring the jury to Williams’
Whelan statement because it already had been admitted
for substantive purposes and was in the jury’s posses-
sion during its deliberations. Accordingly, the defendant
cannot prevail on his claim because he has failed to
demonstrate that the alleged constitutional violation
. . . exists and . . . deprived [him] of a fair trial
. . . .’’ (Internal quotation marks omitted.) Id., 174–75.
During the petitioner’s habeas trial, his appellate
counsel, Richard Condon, testified that, on direct
appeal, he had argued that the defendant was denied
his right to a fair trial only in violation of the fourteenth
amendment’s due process clause. He testified that he
did not raise a sixth amendment claim on appeal
because the arguments involved with such a claim
would have been similar to and duplicative of the claims
he brought under the fourteenth amendment. Later that
day, Fitzpatrick testified that he was of the opinion that
it was objectively unreasonable for Condon not to have
raised a sixth amendment claim. Fitzpatrick testified
that a sixth amendment claim is stronger than a four-
teenth amendment claim because the standard of
review for a sixth amendment claim is not the more
deferential abuse of discretion standard, and, under the
sixth amendment, ‘‘any intrusion into the jury’s right to
decide and decide along the facts is reversible error.’’9
The habeas court held that the ‘‘petitioner has failed
to sustain his burden of establishing prejudice with
respect’’ to his claim premised on the ineffective assis-
tance of Condon. The habeas court further concluded
that ‘‘[p]ursuant to the record, the court determines
that the petitioner has failed to sustain his burden of
proving prejudice by demonstrating a reasonable proba-
bility that, but for [Condon’s] failure to raise the issue
on appeal, the petitioner would have prevailed in his
direct appeal. The Appellate Court’s holding in the peti-
tioner’s direct appeal indicates that it is not reasonably
likely that the petitioner would prevail on his claim that
he was deprived of a fair trial by the trial court’s actions
in handling the jury note. . . . Therefore, this claim
must be denied.’’ Accordingly, the habeas court denied
the petitioner’s claim.
We are guided by the following relevant legal princi-
ples. ‘‘To succeed on an ineffective assistance of appel-
late counsel claim, the petitioner must satisfy both the
performance prong and the prejudice prong ofStrick-
land . . . .’’ Tutson v. Commissioner of Correction,
168 Conn. App. 108, 122, 144 A.3d 519, cert. denied, 323
Conn. 933, 150 A.3d 233 (2016). ‘‘The first part of the
Strickland analysis requires the petitioner to establish
that appellate counsel’s representation fell below an
objective standard of reasonableness considering all of
the circumstances. . . . To satisfy the prejudice prong,
the petitioner must demonstrate that there is a reason-
able 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 convic-
tion or granting of a new trial. . . . Thus, to determine
whether a habeas petitioner had a reasonable probabil-
ity of prevailing on appeal, a reviewing court necessarily
analyzes the merits of the underlying claimed error in
accordance with the appropriate appellate standard for
measuring harm.’’ (Citations omitted; internal quotation
marks omitted.) Id., 123.
The sixth amendment to the United States constitu-
tion provides in relevant part that, ‘‘[i]n all criminal
prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been commit-
ted . . . .’’ U.S. Const., amend. VI. ‘‘The [c]onstitution
casts judge and jury in mutually supporting—yet never-
theless distinct—roles. Undeniably inherent in the con-
stitutional guarantee of trial by jury is the principle that
a court may not step in and direct a finding of contested
fact in favor of the prosecution regardless of how over-
whelmingly the evidence may point in that direction.
The trial judge is . . . barred from attempting to over-
ride or interfere with the jurors’ independent judgment
in a manner contrary to the interests of the accused.’’
(Internal quotation marks omitted.) United States v.
Argentine, 814 F.2d 783, 788 (1st Cir. 1987). ‘‘Although
[a court] may, at its discretion, reread testimony where
the jury makes a request to have specific testimony
reread . . . the culling of testimony in response to a
jury’s open-ended question may, in effect, make the
court a finder of fact . . . .’’ (Citations omitted; internal
quotation marks omitted.) United States v. Rivera-San-
tiago, 107 F.3d 960, 965 (1st Cir. 1997). A constitutional
error may thus occur where a court’s ‘‘answer to a jury’s
factual question had the effect of mandating that the
jury reach a conclusion on a particular issue.’’ Id.; see
also C & H Associates Ltd. Partnership v. Stratford,
122 Conn. App. 198, 203, 998 A.2d 833 (2010) (‘‘litigants
have a constitutional right to have factual issues
resolved by the jury’’ (internal quotation marks
omitted)).
Nevertheless, the court has discretion when
determining how to respond to a jury question that
arises during deliberation. Practice Book § 42-26 pro-
vides that ‘‘[i]f the jury after retiring for deliberations
requests a review of certain testimony, the jury shall
be conducted to the courtroom. Whenever the jury’s
request is reasonable, the judicial authority, after notice
to and consultation with the prosecuting authority and
counsel for the defense, shall have the requested parts
of the testimony read to the jury.’’ ‘‘[T]he trial court
has discretion to grant a jury’s request to review testi-
mony. . . . What portions of the record, if any, will be
submitted to the jury for [its] consideration is a matter
of sound judicial discretion. . . . In determining
whether the trial court has abused its discretion, the
unquestioned rule is that great weight is due to the
action of the trial court and every reasonable presump-
tion should be given in favor of its correctness . . . .
[T]he exercise of [the trial court’s] discretion will not
constitute reversible error unless it has clearly been
abused or harmful prejudice appears to have resulted.’’
(Internal quotation marks omitted.) State v. Martinez,
171 Conn. App. 702, 743–44, 158 A.3d 373, cert. denied,
325 Conn. 925, 160 A.3d 1067 (2017).
As a preliminary matter, we note that the petitioner
makes the conclusory statement that his appellate coun-
sel’s failure to raise a sixth amendment claim was preju-
dicial because ‘‘if the province of the jury is violated
as to a material fact in a criminal proceeding, reversal
is virtually automatic.’’ In the petitioner’s view, because
reversal is automatic when the province of the jury
is violated, his appellate counsel rendered ineffective
assistance by failing to raise a sixth amendment claim
because the analysis of a sixth amendment claim based
on court fact-finding is more favorable to a criminal
defendant. We have found no authority for the proposi-
tion that reversal is automatic if the province of the
jury is violated, nor has the petitioner provided us with
any authority for his assertion. We, therefore, conclude
that this claim is inadequately briefed. See State v. Clau-
dio C., 125 Conn. App. 588, 600, 11 A.3d 1086 (2010)
(‘‘[W]e are not required to review claims that are inade-
quately briefed. . . . We consistently have held that
[a]nalysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure
to brief the issue properly.’’ (Internal quotation marks
omitted.)), cert. denied, 300 Conn. 910, 12 A.3d 1005(2011). Accordingly, we address whether the petitioner
was prejudiced by any allegedly ineffective assistance
of his appellate counsel on other grounds.
As we concluded on direct appeal, it was within the
court’s discretion to refer the jury to Williams’ Whelan
statement because the jury’s inquiry was not limited to
in-court testimony. The jury requested to know whether
Williams ‘‘was ever asked to answer the question, [D]id
you see [the petitioner] at the scene?’’ (Emphasis in
original; internal quotations marks omitted.) State v.
Figueroa, supra, 74 Conn. App. 173. Because Williams
was never asked that question during her in-court testi-
mony, ‘‘the most reliable means for the jury fairly and
intelligently to ascertain whether she ever had been
asked and had answered that question was for the court
to refer the jury to a material part of the evidence,
namely, Williams’ Whelan statement, which already was
in the jury’s possession.’’ Id. Referring the jury to Wil-
liams’ Whelan statement, therefore, was a matter
entirely within the court’s discretion, and the court did
not abuse its discretion in doing so. Id., 173–74.
We also refer to our conclusion on direct appeal that
the court did not unfairly and prejudicially marshal the
evidence in favor of the state when it referred to two
particular pages of Williams’ Whelan statement. As we
noted previously, the court did not marshal the evidence
in favor of the state, and its response to the jury’s
question was, instead, ‘‘a simple response to the jury’s
request for a review of a portion of the record under
Practice Book § 42-26.’’ Id., 176. Because the court has
discretion to determine what portions of the record, if
any, should be submitted to the jury for its review, it
was ‘‘in the court’s discretion to determine that those
particular pages, and not the entire twenty-one page
statement, were responsive to the jury’s request.’’ Id.,
177.
We now turn to the issue of whether the petitioner
was prejudiced by his appellate counsel’s failure to
argue that the court violated the petitioner’s sixth
amendment right to a jury trial by referring the jury to
two pages of Williams’ Whelan statement. We conclude
that the petitioner was not prejudiced because the court
did not violate the petitioner’s sixth amendment rights
by impermissibly finding facts. Although the court
referred the jury to two specific pages of Williams’
Whelan statement, the manner in which the court han-
dled this referral did not constitute fact-finding. First,
the court never affirmatively stated that Williams had
been asked and answered the question of whether she
had seen the petitioner at the scene. Instead, the court
informed the jury that it wanted ‘‘to remind you that
as to the witness Takheema Williams, her prior tape-
recorded statement was introduced. . . . I’ll also refer
you to, in the transcript, and if you listen to the tape-
recorded statement, pages eighteen and twenty, of her
statement . . . .’’ The court, therefore, left it to the jury
to review Williams’ statement to determine if she had
indeed stated that she had witnessed the petitioner at
the scene.10
Second, the court did not selectively read only por-
tions of Williams’ Whelan statement to the jury when
answering its question. Although the court highlighted
the two pages of her statement that the court believed
were material to the jury’s request, the court did not
read any of her statement to the jury and, again, left it
to the jury to review the statement itself. It also never
represented to the jury that it should review only this
portion of her statement. It, thus, cannot be said that
the court’s referral to Williams’ Whelan statement culled
her statement and, in effect, made the court a finder
of fact. See United States v. Rivera-Santiago, supra,107 F.3d 965.
Third, the court’s instructions about the use of Wil-
liams’ statement indicates that the court did not over-
ride or interfere with the jurors’ independent judgment.
Specifically, the court instructed the jurors that ‘‘it’s up
to you as to what weight you accord to any evidence.’’
The court also referred the jury to its prior instructions
on the use of Williams’ statement, in which it had
instructed the jury that it could use her statement for
both substantive and impeachment purposes. The
court’s instructions thus reinforced to the jury that it
was not required to find that Williams had ever stated
that the petitioner was at the scene and, even if it did
find she had made that statement, it was up to the jury
to determine what weight to give the statement.
Consequently, we conclude that the court left the
consideration of Williams’ statement completely to the
jury’s discretion, and did not, in effect, mandate that
the jury reach a particular conclusion on the issue of
whether Williams ever stated that she had seen the
petitioner at the scene. See United States v. Rivera-
Santiago, supra, 107 F.3d 965. The court, therefore, did
not impermissibly find facts in violation of the petition-
er’s sixth amendment right to a jury trial.
We are unpersuaded by the petitioner’s argument to
the contrary. The petitioner mainly relies on federal
cases in arguing that the court’s handling of the jury
note violated his sixth amendment right to a jury trial.
These cases, however, are distinguishable. The cases
he relies on are direct appeals from a judgment of con-
viction rendered following a jury trial. None of the cases
involves a claim made during a habeas proceeding that
the appellant was denied effective assistance of appel-
late counsel. Moreover, the cases are factually distin-
guishable from the present case. In the cases that the
petitioner cites, the court reversed the appellant’s con-
viction because the trial court impermissibly found
facts by: (1) selectively reading portions of the germane
testimony and affirmatively representing to the jury that
the testimony it read would provide ‘‘ ‘the’ ’’ answer to
the jury’s question; id., 966; (2) presenting a witness’
testimony as an accomplished fact derived from a col-
laborative checking of the record; United States v.
Argentine, supra, 814 F.2d 787; (3) improperly permit-
ting the attorneys to deliver supplemental arguments
on a jury’s question when a one word answer would
have provided a direct and complete response; United
States v. Ayeni, 374 F.3d 1313, 1316 (D.C. Cir. 2004);
and (4) endorsing the jury’s preliminary interpretation
of an indictment and directing the jury to evidence that
the jury had not inquired about in its note. United States
v. Miller, 738 F.3d 361, 383–84 (D.C. Cir. 2013).
In the present case, the court’s handling of the jury
note did not implicate any of these concerns. As pre-
viously observed, the court here never affirmatively
represented that Williams had ever answered the ques-
tion of whether she had seen the petitioner at the scene.
Instead, the court simply directed the jury to the rele-
vant portions of her testimony that were material to the
jury’s inquiry and reminded the jurors that the weight
accorded to that evidence was up to them. See State
v. Ruffin, 144 Conn. App. 387, 406–407, 71 A.3d 695(2013) (concluding that there was no error in court’s
instructions when court instructed jury on nature of
inconsistent evidence and jury’s role in determining
witness credibility to aid jury in assessing credibility
of and weighing witness’ prior statements), aff’d, 316
Conn. 20, 110 A.3d 1225 (2015); State v. Figueroa, supra,74 Conn. App. 173 (concluding that court did not abuse
its discretion when most reliable means for jury to
ascertain answer to its question was to refer jury to
material part of evidence already in jury’s possession).
The cases that the petitioner relies on, therefore, are
distinguishable.
We conclude that the habeas court properly deter-
mined that the petitioner failed to meet his burden of
proving the prejudice prong of Strickland. In the pres-
ent case, the court did not impermissibly find facts in
violation of the petitioner’s sixth amendment right to
a jury trial. Because there was no sixth amendment
violation, the petitioner has failed to meet his burden
of proving that there is a reasonable probability that,
but for appellate counsel’s failure to raise the sixth
amendment issue on appeal, he would have prevailed
on direct appeal. Accordingly, his claim of ineffective
assistance of appellate counsel fails.
III
Finally, the petitioner claims that the habeas court
erred by dismissing his claim that the trial court’s han-
dling of the jury note violated his federal and state
constitutional rights to jury fact-finding. This freestand-
ing claim, which the habeas court dismissed on the
ground of procedural default, was not tethered to any
ineffective assistance of counsel claim. The petitioner
argues that the habeas court incorrectly concluded that
this claim was procedurally defaulted or, alternatively,
that he failed to prove cause and prejudice necessary
to overcome the default. In response, the respondent
contends that the habeas court correctly concluded that
this claim was procedurally defaulted. We agree with
the respondent that the petitioner’s claim was procedur-
ally defaulted and that the petitioner failed to show that
he was prejudiced by the improprieties he claims in
his petition.
The following additional facts and procedural history
are relevant. In his operative petition for a writ of habeas
corpus, the petitioner alleged that his constitutional
right to a trial by jury was violated. Specifically, the
petitioner alleged that his right to a trial by jury is
protected by the sixth amendment to the United States
constitution, and article first, § 19, of the Connecticut
constitution.11 He further alleged that the trial court
invaded the province of the jury by improperly
responding to the jury note, and that this violation of
his right to a trial by jury was a structural error that is
not subject to the harmless error analysis. The petition-
er’s freestanding claim that his constitutional right to
a trial by jury was violated was not raised either at the
petitioner’s criminal trial or in his direct appeal.
The respondent sought dismissal of this claim on
procedural default grounds. The habeas court agreed
with the respondent and concluded that the petitioner’s
claim was procedurally defaulted. The habeas court
held that ‘‘the petitioner has failed to allege a legally
cognizable cause and prejudice to rebut his procedural
default, and he is thus barred from having the claim
raised in his petition decided on the merits in the habeas
corpus forum.’’12 Accordingly, the habeas court dis-
missed the petitioner’s claim.
‘‘A party in a habeas appeal procedurally defaults on
a claim when he raises issues on appeal that were not
properly raised at the criminal trial or the appeal there-
after. . . . Habeas, as a collateral form of relief, is gen-
erally available to litigate constitutional issues only if
a more direct route to justice has been foreclosed
through no fault of the petitioner. . . . The reviewabil-
ity of habeas claims not properly pursued on appeal is
subject to the cause and prejudice standard.’’ (Citation
omitted; internal quotation marks omitted.) Gaskin v.
Commissioner of Correction, 183 Conn. App. 496, 511,
193 A.3d 625 (2018). ‘‘[A] petitioner must demonstrate
good cause for his failure to raise a claim . . . on direct
appeal and actual prejudice resulting from the impropri-
ety 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 . . . . The cause and preju-
dice requirement is not jurisdictional in nature, but
rather a prudential limitation on the right to raise consti-
tutional claims in collateral proceedings.’’ (Citation
omitted; internal quotation marks omitted.) Id., 515.
‘‘Cause and prejudice must be established conjunc-
tively. . . . If the petitioner fails to demonstrate either
one, a trial court will not review the merits of his habeas
claim.’’ (Internal quotation marks omitted.) Mish v.
Commissioner of Correction, 133 Conn. App. 845, 850,
37 A.3d 179, cert. denied, 305 Conn. 918, 47 A.3d 390(2012).
‘‘For a petitioner to demonstrate prejudice, he must
shoulder the burden of showing, not merely that the
errors at his trial created a possibility of prejudice, but
that they worked to his actual and substantial disadvan-
tage, infecting his entire trial with error of constitutional
dimensions. . . . [T]he petitioner would have to dem-
onstrate that . . . there was a substantial likelihood
that the jury would not have found the petitioner guilty
of the crime of which he was convicted. . . . This is
the same showing of prejudice that is required for
Strickland . . . errors. . . . A reasonable probability
is a probability sufficient to undermine confidence in
the outcome.’’ (Internal quotation marks omitted.) Gas-
kin v. Commissioner of Correction, supra, 183 Conn.
App. 515–16.
In the present case, the habeas court correctly deter-
mined that the petitioner’s freestanding claim that his
federal and state constitutional rights to a trial by jury
were violated was procedurally defaulted. On direct
appeal, the petitioner failed to argue that the trial court
impermissibly found facts in violation of his right to a
jury trial under the sixth amendment to the United
States constitution and article first, § 19, of the Connect-
icut constitution. The habeas court, therefore, could
only consider the petitioner’s procedurally defaulted
freestanding claim if the petitioner could demonstrate
good cause for his failure to raise it on direct appeal
and actual prejudice from this claimed impropriety.
Gaskin v. Commissioner of Correction, supra, 183
Conn. App. 515.
The habeas court properly determined that the peti-
tioner failed to meet his burden of proving that his
procedural default should be excused. Here, the peti-
tioner failed to prove that he was prejudiced by the
trial court’s handling of the jury note. As observed in
part II of this opinion, the trial court did not impermissi-
bly find facts in its handling of the jury note. The peti-
tioner’s constitutional right to a trial by jury, therefore,
was not violated. Because there was no violation, the
petitioner has failed to demonstrate that there was a
substantial likelihood that the jury would not have
found him guilty. Due to the conjunctive nature of the
cause and prejudice standard, the petitioner’s failure
to meet his burden of proving prejudice prevented the
habeas court from excusing his procedural default.
Mish v. Commissioner of Correction, supra, 133 Conn.
App. 850. Accordingly, the habeas court properly dis-
missed the petitioner’s freestanding claim that his fed-
eral and state constitutional rights to a jury trial were
violated on the ground of procedural default.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Fleming later testified on cross-examination that the petitioner left her
his car so that she could get to and from work, and that she had assumed
responsibility for making payments on the car. She never registered the car
in her name.
2
Upon returning to Lilac Street, Moore parked her car behind a red car,
which was parked right behind the petitioner’s white Camry.
3
Although motive is not an element of the charges against the defendant;
see General Statutes §§ 29-35 and 53a-54a; ‘‘[e]vidence of motive is a highly
relevant factor for assessing the guilt or innocence of a defendant. . . .
Motive is a fact which may be inferred from circumstances; hence the
circumstances from which it may be inferred are relevant.’’ (Emphasis omit-
ted; internal quotation marks omitted.) State v. Carter, 84 Conn. App. 263,
278, 853 A.2d 565, cert. denied, 271 Conn. 932, 859 A.2d 931 (2004), cert.
denied, 544 U.S. 1066, 125 S. Ct. 2529, 161 L. Ed. 2d 1120 (2005). Any evidence
of the petitioner’s motive or intent to shoot the victim, therefore, is highly
relevant in assessing the strength of the state’s case and whether the peti-
tioner was prejudiced by his defense counsel’s failure to request an alibi
instruction.
4
The petitioner also argues on appeal that he was prejudiced by statements
that his defense counsel made during closing argument that seemingly under-
mined the alibi evidence that had been presented during trial. These state-
ments consist of two comments during the entirety of his counsel’s closing
argument. First, DeMarco argued that he did not present an alibi witness
because the petitioner was not sure where he was on the day of the murder.
DeMarco attempted to explain the petitioner’s lack of certainty about his
whereabouts by arguing that the petitioner had no reason to remember that
date if he indeed did not murder the victim, as he was arrested in September,
1998, approximately nine months after the murder. Second, DeMarco noted
to the jury that he could not call McQueen as an alibi witness because the
petitioner was not positive where he was, and thus where McQueen was,
on the day of the murder.
Due to this lack of certainty, defense counsel stated that he was not
permitted to call McQueen as a witness. In light of the strength of the state’s
case against the petitioner, the strength of the court’s instructions, and the
weakness of the petitioner’s alibi evidence that we have noted above, we
conclude that the petitioner has not met his burden of proving that he was
prejudiced by these comments. See Leon v. Commissioner of Correction,
supra, 189 Conn. App. 540 (concluding that petitioner was not deprived of
right to effective assistance of counsel despite petitioner’s challenge to
defense counsel’s remarks during closing argument because petitioner failed
to meet burden of proving that outcome would have been different where
evidence strongly supported jury’s verdict).
5
In State v. Whelan, supra, 200 Conn. 753, our Supreme Court adopted a
rule ‘‘allowing the substantive use of prior written inconsistent statements,
signed by the declarant, who has personal knowledge of the facts stated,
when the declarant testifies at trial and is subject to cross-examination.’’
Pursuant to Whelan, a court can admit a witness’ prior written inconsistent
statement for substantive purposes when the witness claims to have no
memory of the subject they are being asked to testify about. See id., 749
n.4 (‘‘inconsistencies may be found . . . in denial of recollection’’).
6
Page eighteen of Williams’ Whelan statement reveals the following collo-
quy between Williams and Detective Edwin Rodriguez:
‘‘Q. Okay, when was the last time you’d seen [the petitioner]? Two days
before the shooting?
‘‘A. Yes.
‘‘Q. And you saw him the day he took off in the car, too.
‘‘A. Uh-huh.’’
7
Page twenty of Williams’ Whelan statement reveals the following colloquy
between Williams and Detective Edwin Rodriguez:
‘‘Q. Getting back to when you were in the vehicle, and you stated to me,
[Moore] told you something after everything was done. What did she tell
you, again? Can you tell—
‘‘A. You seen that. You know who did it.
‘‘Q. And she meant saying that if you saw the same thing she did?
‘‘A. Yeah.
‘‘Q. And you told her no at the time. Is that correct?
‘‘A. No, I didn’t.
‘‘Q. And what did you tell her?
‘‘A. I told her ‘yeah.’
‘‘Q. Okay, you told her you—you saw the same thing she saw.
‘‘A. Uh-huh.’’
8
On appeal, the petitioner conceded that his claim that the trial court
had acted beyond the scope of its authority when referring the jury to
Williams’ Whelan statement was unpreserved. State v. Figueroa, supra, 74
Conn. App. 171. Accordingly, we reviewed this claim pursuant to State v.
Golding, 213 Conn. 233, 239–40, 567 A. 2d 823 (1989).
9
We note that Fitzpatrick further opined that the petitioner would have
prevailed on appeal if the stronger sixth amendment claim had also been
raised; we do not address the propriety of that opinion in this appeal.
See generally Hodges v. Commissioner of Correction, 187 Conn. App. 394,
404–405, 202 A.3d 421(‘‘expert opinion as to the ultimate issue in a case is
admissible only when necessary for the trier of fact to make sense of the
proffered evidence, rendering the situation . . . of such a nature as to
require an expert to express an opinion on the precise question upon which
the court ultimately had to pass’’ (internal quotation marks omitted)), cert.
denied, 331 Conn. 912, 203 A.3d 1246 (2019).
10
It is clear from the transcript of the colloquies identified in footnotes
6 and 7 of this opinion that Williams was never asked the precise question
of whether she had seen the petitioner at the scene. During her statement
to the police, Williams did, however, state that she had seen the petitioner
on the day he took off in the car, and that she had confirmed with Moore
that she had seen the same thing that Moore had seen and that she knew
who shot the victim. See footnotes 6 and 7 of this opinion. Accordingly, the
jury could have interpreted the colloquies between Williams and the detec-
tive taking her statement as the functional equivalent of being asked whether
she had seen the petitioner at the scene and, thus, material to its inquiry.
See State v. Figueroa, supra, 74 Conn. App. 173 (concluding that most
reliable means for jury to assess whether Williams had ever been asked and
had ever answered question was to refer jury to material part of evidence
already in jury’s possession).
11
Article first, § 19, of the Connecticut constitution provides that ‘‘[t]he
right of trial by jury shall remain inviolate . . . .’’ Our Supreme Court contin-
ually has reaffirmed this principle that ‘‘[l]itigants have a constitutional right
to have issues of fact determined by the jury.’’ Douglass v. 95 Pearl Street
Corp., 157 Conn. 73, 80–81, 245 A.2d 129 (1968); see also C & H Associates
Ltd. Partnership v. Stratford, supra, 122 Conn. App. 203 (noting same).
12
The habeas court did not specify in its memorandum of decision whether
it was relying on the state or federal right to jury fact-finding when dismissing
the petitioner’s claim.