author: WEST, J.

text:
    SHAWN CROCKER v. COMMISSIONER OF CORRECTION
    (AC 30786)
    Bishop, Harper and West, Js.

      Argued September 22, 2010
    officially released January 18, 2011

      Mark M. Rembish, special public defender, for the appellant (petitioner).

      James M. Rails, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

WEST, J.

The petitioner, Shawn Crocker, appeals from the judgment of the habeas court denying his third amended petition for a writ of habeas corpus. On appeal, he claims that the court improperly concluded that he had not been denied effective assistance of counsel when his habeas counsel failed: (1) to raise claims of ineffective assistance of his trial and appellate counsel, (2) to raise a claim that the prosecution did not disclose exculpatory evidence, (3) to investigate potentially exculpatory information and (4) to raise a claim that the petitioner’s second criminal trial constituted a violation of the double jeopardy clause of the fifth amendment to the United States constitution. We affirm the judgment of the habeas court.

The relevant facts and procedural history surrounding the petitioner’s conviction were set forth by this court in our decision affirming the denial of his first petition for habeas relief. See Crocker v. Commissioner of Correction, 101 Conn. App. 133, 134-35, 921 A.2d 128, cert. denied, 283 Conn. 905, 927 A.2d 916 (2007). “Shortly before 7:30 p.m. on October 27, 1997, George David Wright drove a stolen Jeep Cherokee to the Quinnipiac Terrace housing complex in New Haven, also known as the Island. The victim, Daryl Price, was in the passenger seat of the Jeep, and Calvin Taylor was seated in the back. At the housing complex, Wright and Taylor exited the vehicle, and Tacuma Grear approached the Jeep to talk to the victim. They talked about the [fatal shooting] of Grear’s brother, Corey Grear [by the victim], which had occurred approximately one week earlier, for which the victim . . . apologized. Corey Grear was a friend of the [petitioner], and the [petitioner] had held [Corey Grear] in his arms after [Corey] Grear was fatally shot by the victim. The [petitioner] had witnessed the victim shoot Corey Grear. Corey Grear was also a member, as was the [petitioner], of the Island Brothers, a street gang into which the victim had been introduced and sponsored by the [petitioner]. As his sponsor, the [petitioner] was responsible for disciplining the victim should the victim kill a fellow gang member. As Tacuma Grear walked away from the Jeep, the [petitioner] had come up to the driver’s side of the Jeep carrying a handgun. He then leaned into the Jeep and fired four times into the vehicle. Two .45 caliber bullets hit the victim, killing him, and two other bullets were found in the Jeep. . . . After a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a-54a and criminal possession of a firearm in violation of General Statutes § 53a-217.” (Citation omitted; internal quotation marks omitted.) Id., 134-35.

After his conviction, the petitioner filed a direct appeal with this court, and we affirmed the conviction. See State v. Crocker, 83 Conn. App. 615, 852 A.2d 762, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004). At all times during his direct appeal, the petitioner was represented by attorney Adele V. Patterson. Id.

“Following his unsuccessful appeal, the petitioner filed an amended petition for a writ of habeas corpus, alleging, inter alia, ineffective assistance of his trial counsel, Leo Ahem, who had represented the petitioner throughout his first criminal trial, which resulted in a mistrial, and then again in his second trial.” Crocker v. Commissioner of Correction, supra, 101 Conn. App. 135. In the first habeas trial, the petitioner claimed that Ahem rendered ineffective assistance by fading to object to the admission of the transcript testimony of Travis Jenkins, which was elicited during the petitioner’s first criminal trial and that he failed to investigate or to obtain evidence prior to the start of the second criminal trial. See id., 134, 138. The petitioner argued that Jenkins’ testimony was inadmissible because he was unavailable for cross-examination at the second criminal trial. See id., 138.

At the conclusion of his first habeas trial, the court rejected the petitioner’s claims of ineffective assistance of counsel, and this court affirmed that judgment. Id., 144. In that appeal, we concluded that the petitioner had failed to demonstrate that “there [was] a reasonable probability that, but for the admission of the Jenkins transcript, the result of the trial would have been different.” See id., 141.

On June 21, 2007, the petitioner filed a third amended petition for a writ of habeas corpus, claiming, on this occasion, that his first habeas counsel, attorney Genevieve Salvatore, rendered ineffective assistance. Specifically, he claimed, inter alia, that Salvatore rendered ineffective assistance by failing: (1) to raise various claims of ineffective assistance of the petitioner’s trial and appellate counsel, (2) to investigate potentially exculpatory information, (3) to raise a claim that the prosecution did not disclose exculpatory evidence and (4) to raise a claim that the petitioner’s second criminal trial violated double jeopardy.

In that habeas trial, which is the subject of this appeal, the court, A. Santos, J., heard testimony from the petitioner, Salvatore and Detective Richard Pelletier of the New Haven police department. In particular, Salvatore was questioned extensively regarding her representation of the petitioner during his first habeas trial. On January 26, 2009, the court, by way of a twenty page memorandum of decision, denied the petitioner’s claims of ineffective assistance of counsel. This appeal followed. Additional facts will be set forth as necessary.

In reviewing claims that are based on ineffective assistance of counsel, we begin by setting forth the familiar and well settled standard of review articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687,104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “In Strickland, which applies to claims of ineffective assistance during criminal proceedings generally, the United States Supreme Court determined that the claim must be supported by evidence establishing that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.” (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008). “The first prong is satisfied by proving that counsel made errors so serious that he was not functioning as the ‘counsel’ guaranteed by the sixth amendment. The second prong is satisfied if it is demonstrated that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Russell v. Commissioner of Correction, 49 Conn. App. 52, 53, 712 A.2d 978, cert. denied, 247 Conn. 916, 722 A.2d 807 (1998), cert. denied sub nom. Russell v. Armstrong, 525 U.S. 1161, 119 S. Ct. 1073, 143 L. Ed. 2d 76 (1999).

“ ‘[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel’s performance was ineffective and that this ineffectiveness prejudiced the petitioner’s prior habeas proceeding. . . . [T]he petitioner will have to prove that one or both of the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . . .’ Harris v. Commissioner of Correction, 108 Conn. App. 201, 209-10, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). Therefore, as explained by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice: he must ‘prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective.’ ... Id., 842; see also Denby v. Commissioner of Correction, 66 Conn. App. 809, 812-13, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002).” (Emphasis altered.) Lapointe v. Commissioner of Correction, 113 Conn. App. 378, 394-95, 966 A.2d 780 (2009).

“Because both prongs [of Strickland] must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong. . . . Accordingly, a court need not determine the deficiency of counsel’s performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim.” (Internal quotation marks omitted.) Pierce v. Commissioner of Correction, 100 Conn. App. 1,11-12, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007).

We will now address each of the petitioner’s claims of ineffective assistance individually, cognizant that his claims regarding previous habeas counsel will not succeed if the claims of ineffective assistance of trial counsel lack merit. See Lapointe v. Commissioner of Correction, supra, 113 Conn. App. 395. On appeal, the petitioner asserts, inter alia, that the court improperly concluded that attorney Salvatore did not render ineffective assistance. Under this rubric, the petitioner raises eight issues. We will address each of these issues in turn.

I

Under the first set of issues put forth by the petitioner, he claims that Salvatore rendered ineffective assistance by failing to raise claims of ineffective assistance of trial and appellate counsel. We disagree.

A

The petitioner’s first argument within this set of issues asserts that Ahem provided ineffective assistance for failing to object to the out-of-court photographic identification of the petitioner offered through the testimony of Detective William Piascyk of the New Haven police department. Specifically, the petitioner argues that because the identifying witness, Jenkins, was unavailable for cross-examination at the second criminal trial, any extrajudicial identification of the petitioner provided by him is prohibited by our Supreme Court’s holding in State v. Outlaw, 216 Conn. 492, 582 A.2d 751 (1990).

The following additional facts are relevant to our resolution of the petitioner’s claim. During the petitioner’s second criminal trial, Jenkins was unavailable to testify. Thereafter, the court admitted into evidence the transcript of Jenkins’ testimony from the petitioner’s first criminal trial. See Crocker v. Commissioner of Correction, supra, 101 Conn. App. 138. The transcript of Jenkins’ direct and cross-examination from the petitioner’s first criminal trial provided a version of the events different from what he originally had told Piascyk during their initial interview. During that interview, Jenkins identified the petitioner from a photographic array and told police that he had witnessed the petitioner shoot the victim. See id., 139. At the petitioner’s first criminal trial, however, he recanted these statements and gave equivocal testimony with respect to his identification of the petitioner from the photographic array. See id., 139-40. After the transcript was admitted into evidence, the prosecution called Piascyk to the witness stand. Piascyk testified that prior to Jenkins’ giving his written statement identifying the petitioner as the person who had shot the victim, Jenkins was shown a photographic array from which he also identified the petitioner. The petitioner now argues that Ahern’s failure to object to this testimony resulted in ineffective assistance.

In its memorandum of decision, the court found that neither Ahem nor Salvatore provided ineffective assistance by not challenging Piascyk’s testimony, which included Jenkins’ extrajudicial identification of the petitioner from the photographic array, under State v. Outlaw, supra, 216 Conn. 492. The court also found that “even if deficient performance were to be presumed, the petitioner [could not] establish prejudice” because the identification of him by Jenkins was already admitted into evidence prior to Piascyk’s testimony regarding the photographic array.

We agree with the habeas court that the petitioner failed to establish prejudice under Strickland,. As the court correctly concluded, Jenkins’ testimony identifying the petitioner from the photographic array had already been admitted into evidence through the transcript. Consequently, Piascyk’s testimony appears duplicative of evidence that had already been presented to the jury, namely, that Jenkins identified the petitioner from a photographic array. This testimony merely served to supplement the transcript testimony and did not prejudice the petitioner. See Jeffrey v. Commissioner of Correction, 36 Conn. App. 216, 223, 650 A.2d 602 (1994) (no prejudice to petitioner when jury presented with evidence that was substantially same); Schnabelv. Tyler, 32 Conn. App. 704, 712, 630 A.2d 1361 (1993) (“[ejvidence that ‘was simply cumulative and supplementary’ to the other evidence admitted during the course of the trial is unlikely to have an effect on the jury”), aff'd, 230 Conn. 735, 646 A.2d 152 (1994); cf. Duncan v. Mill Management Co. of Greenwich, Inc., 124 Conn. App. 415,424,4 A.3d 1268 (2010) (reversal not required when improperly admitted evidence is merely cumulative of properly admitted evidence); State v. Rosedom, 34 Conn. App. 141, 147, 640 A.2d 634 (1994) (virtually identical evidence unlikely to have prejudicial effect on jury).

Moreover, Piascyk’s testimony was far from the only evidence linking the petitioner to the murder. The state also introduced other significant evidence that was probative of the petitioner’s guilt. See Crocker v. Commissioner of Correction, supra, 101 Conn. App. 140 (admission of Jenkins transcript nonprejudicial in light of other probative evidence presented by state). Based on the foregoing, the petitioner has failed to demonstrate that there was a reasonable probability that, but for Piascyk’s testimony, the result of the trial would have been different. Accordingly, the petitioner has failed to satisfy the prejudice prong of Strickland. See Strickland v. Washington, supra, 466 U.S. 694-96.

B

The petitioner next argues that Salvatore rendered ineffective assistance by failing to claim that Ahern’s performance was deficient for failing to object to the admission into evidence of a tape-recorded statement by Tacuma Grear. Specifically, the petitioner claims that Tacuma Grear’s 1998 tape-recorded statement to police was unreliable in light of his previous inconsistent statements at the petitioner’s probable cause hearing and, thus, was inadmissible under State v. Whelan, 200 Conn. 743, 753-54, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

The following additional facts are relevant to our resolution of the petitioner’s claim. During the petitioner’s probable cause hearing on December 23, 1997, Tacuma Grear testified that he was at the crime scene, and, although he heard gunshots and witnessed a person near the driver’s side of the Jeep, he could not identify that person. See State v. Crocker, supra, 83 Conn. App. 620. On June 18, 1998, Tacuma Grear provided police with a tape-recorded statement, and this time he indicated that he had witnessed the petitioner at the crime scene leaning into the driver’s side window of the vehicle and then simultaneously saw flashes coming from the petitioner’s arm, heard gunshots and then saw the victim slumped in the seat of the vehicle. At trial, a partial transcript of the 1998 tape-recorded statement was admitted as a prior inconsistent statement, and Tacuma Grear was cross-examined regarding its contents. The petitioner now claims that because Tacuma Grear had a motive for killing the victim and was fearful that he would be charged with the murder, the 1998 statement was rendered unreliable. We are not persuaded.

The habeas court found that the tape-recorded statement of Tacuma Grear fell under the exception to the hearsay rule for prior inconsistent statements articulated in Whelan. See footnote 10 of this opinion. Accordingly, the court concluded that Salvatore did not render ineffective assistance for not raising this claim as a result of there being little basis for an objection from Ahern.

After a careful review of the record, we agree with the court and conclude that Tacuma Grear’s 1998 tape-recorded statement satisfied all of the Whelan criteria and, thus, was sufficiently reliable to be admitted into evidence. See State v. Hart, 118 Conn. App. 763, 783, 986 A.2d 1058 (statement that satisfies Whelan requirements is presumptively admissible absent strong showing that it is unreliable), cert. denied, 295 Conn. 908, 989 A.2d 604 (2010).

The petitioner argues that because Tacuma Grear’s statement contradicted his previous testimony at the petitioner’s probable cause hearing, both Ahem and Salvatore rendered ineffective assistance when they failed to challenge the testimony as being unreliable under Whelan. We find this argument to be unavailing. Inconsistent statements are precisely the type of substantive evidence that is allowed under the rule of Whelan. See State v. Whelan, supra, 200 Conn. 752. The fact that a statement, submitted under Whelan, may or may not be truthful does not diminish its reliability. See State v. Mukhtaar, 253 Conn. 280, 307, 750 A.2d 1059 (2000) (once statement satisfies Whelan requirements, “its credibility is grist for the cross-examination mill”). Because Tacuma Grear’s statement satisfied the conditions precedent set forth in Whelan, we cannot conclude that counsels’ failure to object to the statement or to raise the issue on habeas appeal constituted ineffective assistance.

Additionally, we are not persuaded by the petitioner’s assertion that Tacuma Grear’s statement was given under circumstances so unduly coercive or extreme as to render it unreliable. See id., 306. The petitioner argues that because Tacuma Grear testified that police threatened him with arrest if he did not implicate the petitioner, his statement was unreliable. Detective Frank Roberts of the New Haven police department, however, testified that during the interview with Tacuma Grear the tape recorder was never turned off and then on; Tacuma Grear was not told to implicate the petitioner in any way; Tacuma Grear was not threatened in any way; nor did Tacuma Grear appear to be under the influence of alcohol or drugs. Therefore, we agree with the court that this was hardly the unusual case in which a statement satisfies the requirements of Whelan, yet must be kept from the jury because it was deemed unduly coercive or extreme. See id., 307.

Based on the foregoing we cannot conclude that counsels’ performance “fell below an objective standard of reasonableness” for failure to raise this claim. Strickland v. Washington, supra, 466 U.S. 668. Accordingly, the petitioner’s claim fails to satisfy the first prong of Strickland. See id., 687-88.

C

The petitioner next argues that the court improperly concluded that his appellate counsel, Patterson, did not render ineffective assistance by failing to brief a claim of prosecutorial impropriety adequately. Specifically, the petitioner claims that the prosecutor improperly commented on his post-Miranda silence during closing arguments in violation of Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). We disagree.

The following additional facts aid our discussion. On November 3, 1997, the petitioner voluntarily went to the New Haven police station to speak with Piascyk. Although the petitioner was not in custody, Piascyk read the petitioner his Miranda rights because he was the primary suspect in the murder investigation. After receiving those rights, the petitioner signed a form voluntarily waiving his right to remain silent and proceeded to answer the majority of Piascyk’s questions. Thereafter, the petitioner informed Piascyk that he had several alibi witnesses who would attest to his innocence; however, when asked by Piascyk to identify the names of those alleged witnesses, he refused. Subsequently, at the petitioner’s second criminal trial, the prosecutor argued during his closing remarks: “Remember, on November 3, 1997, [the petitioner] wouldn’t even tell the police who his alibi witness[es] were [or] who was there . . . .”

On direct appeal, we declined to review this issue because we concluded that the petitioner had failed to brief the claim adequately. See State v. Crocker, supra, 83 Conn. App. 660. Although the petitioner continues to claim that the prosecutor’s remarks were an improper comment on his post-Miranda silence, the claim is now advanced under the auspices of an ineffective assistance claim against Salvatore.

The habeas court concluded that the petitioner could not succeed on this claim because there was clearly no Doyle violation, and, consequently, the petitioner failed to demonstrate prejudice under the second prong of Strickland. We agree.

“It is axiomatic . . . that Doyle is not applicable when a defendant has waived his right to remain silent.” State v. Fluker, 123 Conn. App. 355, 365, 1 A.3d 1216, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010). “While a defendant may invoke his right to remain silent at any time, even after he has initially waived his right to remain silent, it does not necessarily follow that he may remain ‘selectively’ silent.” State v. Talton, 197 Conn. 280, 295, 497 A.2d 35 (1985). Furthermore, “[a] Doyle violation may, in a particular case, be so insignificant that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible question or comment upon a defendant’s silence following a Miranda warning.” (Internal quotation marks omitted.) State v. Daugaard, 231 Conn. 195, 212, 647 A.2d 342 (1994), cert. denied, 513 U.S. 1099, 115 S. Ct. 770, 130 L. Ed. 2d 666 (1995). “The cases wherein the error has been found to be prejudicial disclose repetitive references to the defendant’s silence, reemphasis of the fact on closing argument, and extensive, strongly-worded argument suggesting a connection between the defendant’s silence and his guilt.” (Internal quotation marks omitted.) Id., 213.

By voluntarily choosing to sign a waiver form and, more importantly, answering questions, the petitioner unambiguously chose not to assert his right to remain silent. See State v. Talton, supra, 197 Conn. 295. Additionally, his behavior in alternating between speaking and not speaking was not an invocation of his right to remain silent. See id.

Therefore, we agree with the court’s conclusion that the comments made by the prosecution did not constitute a violation under Doyle. The petitioner, therefore, has failed to demonstrate, under the second prong of Strickland, that he was prejudiced by the prosecutor’s comments. See Strickland v. Washington, supra, 466 U.S. 695-96. Accordingly, this claim fails.

n

We turn next to the petitioner’s claim that Salvatore rendered ineffective assistance by failing to raise a claim that the state failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,10 L. Ed. 2d 215 (1963). Specifically, the petitioner argues that Tacuma Grear’s testimony from State v. Talton, Superior Court, judicial district of New Haven, Docket No. CR-97-0446889-T (January 8, 1999), provided exculpatory evidence that would have impacted the decision in the petitioner’s second criminal trial, and, thus, the state was required to disclose this evidence pursuant to Brady. We disagree.

The following additional facts aid our discussion. During the same period of time that the petitioner’s second criminal trial was under way, Tacuma Grear also testified at the Talton trial. His testimony in Taitón identified “Slim Goodie” as Shawn Bethea, although at the petitioner’s second criminal trial, Tacuma Grear identified the petitioner as “Slim Goodie.” The habeas court resolved this discrepancy by noting that during his second habeas trial the petitioner explained that the surname “Bethea” comes from his mother’s side of the family and that he is, in fact, known on the street as “Goodie” or “Slim Goodie.” The court also noted that Tacuma Grear’s taped statement to the police also identified the petitioner as Goody. Although Salvatore could not recall reviewing the Taitón transcript specifically, she testified that it was her understanding that the petitioner had several street names and that raising a claim premised on the misidentification of these names was without merit because “Shawn Bethea and Shawn Crocker and Slim Goodie [were] all the same person.” The habeas court found that Tacuma Grear’s testimony in Taitón did not contradict his later testimony, nor did it provide exculpatory evidence for the petitioner. Consequently, the court concluded that the state was not required to disclose Tacuma Grear’s testimony under Brady, and, thus, the petitioner failed to demonstrate either deficient performance or prejudice.

“ ‘Exculpatory’ has been defined to mean ‘[cjlearing or tending to clear from alleged fault or guilt; excusing.’ Black’s Law Dictionary (6th Ed. 1990).” State v. Falcon, 90 Conn. App. 111, 121, 876 A.2d 547, cert. denied, 275 Conn. 926, 883 A.2d 1248 (2005). “The rule laid out in Brady requiring disclosure of exculpatory evidence applies to materials that might well alter . . . the credibility of a crucial prosecution witness.” (Internal quotation marks omitted.) Id., 122. In the present case, Tacuma Grear’s testimony was already rife with inconsistencies. See part I B of this opinion. Moreover, his testimony from Taitón appears to refer simply to the petitioner by one of his many street names. We agree with the court’s conclusion that adding one more inconsistency, in which Tacuma Grear confusingly refers to the petitioner by a different street name, was immaterial to the petitioner’s guilt and that it did not alter Tacuma Grear’s credibility to a degree that mandated disclosure under Brady.

Accordingly, we agree with the court that there was no Brady violation in the present case and that the petitioner has failed to demonstrate either deficient performance or prejudice under Strickland as to this claim. See Strickland v. Washington, supra, 466 U.S. 688-90, 694-96.

Ill

A

The petitioner next claims that Salvatore rendered ineffective assistance in failing to investigate potentially exculpatory information. Specifically, he argues that both Salvatore and Ahem should have explored introducing statements given by Ernest Henry. The petitioner argues that Henry’s purported statements to a private investigator would have challenged the reliability of Wright’s testimony identifying the petitioner as the perpetrator of the crime. At the second habeas trial, Salvatore testified that she was aware of Henry’s statements but made a tactical determination that they would not have been beneficial in the petitioner’s habeas appeal. The habeas court agreed and found that Salvatore’s decision not to make this claim was a strategic decision well within the range provided by reasonable professional assistance under Strickland. On appeal, the petitioner claims that the habeas court overlooked the benefits of raising such a claim when it rendered its decision. We disagree.

After our careful review of the record, we agree with the habeas court and conclude that the petitioner has not demonstrated that Salvatore’s performance was “outside the wide range of professionally competent assistance” articulated in Strickland. See id., 690. In Johnson v. Commissioner of Correction, 222 Conn. 87, 96, 608 A.2d 667 (1992), our Supreme Court construed the performance prong of Strickland, stating that “[strategic choices made after thorough investigation of [the] law and facts relevant to plausible options are virtually unchallengeable . . . .” “[T]he [petitioner] must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland v. Washington, supra, 466 U.S. 689, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83 (1955). It is clear from the record that Salvatore considered bringing a claim using Henry’s statement but ultimately concluded that the risk of relying on Henry’s statement outweighed its benefit because it included information that might have inculpated the petitioner. See footnote 20 of this opinion. This decision by Salvatore “falls into the category of trial strategy or judgment calls that we consistently have declined to second guess.” Lewis v. Commissioner of Correction, 89 Conn. App. 850, 868, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005). Accordingly, the petitioner’s claim fails. See Strickland v. Washington, supra, 688-90.

B

The petitioner next claims that Salvatore was ineffective for failing to raise a claim that Ahern’s performance was deficient by not preventing the testimony of Wright from being entered into evidence. Specifically, the petitioner claims that Salvatore failed to investigate adequately evidence that would have illustrated Ahern’s ineffective assistance regarding the admission of this testimony. The court concluded that the petitioner had abandoned this claim because (1) it was not addressed in his posttrial brief and (2) he failed to adduce evidence in support of the claim during the habeas trial. See Wooten v. Commissioner of Correction, 104 Conn. App. 793, 801, 936 A.2d 263 (2007) (claim deemed “abandoned because the petitioner failed to present any evidence in support of his position”), cert. denied, 289 Conn. 911, 957 A.2d 868 (2008). Although the petitioner now addresses the inadmissibility of Wright’s testimony in an ineffective assistance claim, he is, for all practical purposes, challenging the admissibility of Wright’s testimony during the second criminal trial. Having carefully reviewed the record, we agree with the court that the petitioner failed to adduce new evidence that would have supported his claim that Salvatore failed to investigate adequately evidence that would have ultimately rendered Wright’s testimony unreliable. See State v. Crocker, supra, 83 Conn. App. 650-51 (petitioner’s adequate and full opportunity to cross-examine witness rendered testimony reliable). Accordingly, this claim fails.

IV

We turn finally to the petitioner’s claim that the court improperly concluded that Salvatore did not render ineffective assistance for failing to claim that his second criminal trial violated his rights pursuant to the double jeopardy clause of the fifth amendment to the United States constitution. Specifically, the petitioner asserts that Ahem failed to properly frame his motion to dismiss on the ground that the prosecutor’s remarks at the close of the first criminal trial were a deliberate attempt to produce a mistrial. We disagree.

“The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense.” Oregon v. Kennedy, 456 U.S. 667, 671, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982). “ ‘[A] trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which [the defendant] was subjected.’ Richardson v. United States, 468 U.S. 317, 326, 104 S. Ct. 3081, 82 L. Ed. 2d 242 (1984).” State v. James, 247 Conn. 662, 674, 725 A.2d 316 (1999). The United States Supreme Court, however, has carved out a narrow exception to this rule for cases in which it is determined that the prosecutor “intended to provoke the defendant into moving for a mistrial.” (Internal quotation marks omitted.) State v. Butler, 262 Conn. 167, 175, 810 A.2d 791 (2002), quoting Oregon v. Kennedy, supra, 679.

The habeas court clearly concluded that “[t]he record reveals beyond dispute that the petitioner’s original criminal trial resulted in a mistrial due to a hung jury.” Moreover, the court also addressed the petitioner’s claim that Ahem was ineffective for failing to include deliberate prosecutorial inducement of a mistrial in his original motion to dismiss. Although the petitioner asserts broadly that the state initiated a mistrial because it was aware that the first trial was not going well, he has failed to offer evidence that the prosecutor in the first trial intended to produce a mistrial. Based on the habeas court’s findings and the petitioner’s own dearth of evidence regarding any prosecutorial intent to produce a mistrial, we conclude that the petitioner’s claim is without merit. See Lewis v. Commissioner of Correction, supra, 89 Conn. App. 861 (petitioner’s failure to produce evidence to support claims resulted in failure to demonstrate prejudice under Strickland).

Accordingly, we conclude that the petitioner’s claim is without merit. On the basis of the foregoing, his ineffective assistance claim against Salvatore is unavailing and fails under both prongs of Strickland. See Strickland v. Washington, supra, 466 U.S. 687; see also Moore v. Commissioner of Correction, 119 Conn. App. 530, 542, 988 A.2d 881 (failure to present meritorious claim does not establish deficient performance), cert. denied, 296 Conn. 902, 991 A.2d 1103 (2010); Lewis v. Commissioner of Correction, supra, 89 Conn. App. 862.

The judgment is affirmed.

In this opinion the other judges concurred.

       See Oregon v. Kennedy, 456 U.S. 667, 671, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982) (“[t]he Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense”).

       In that appeal, we noted that the Jenkins transcript was not particularly strong evidence for the state, given that it contradicted a previous statement tiiat he had given to the police in which he identified the petitioner as the person who shot the victim. See Crocker v. Commissioner of Correction, supra, 101 Conn. App. 139. Additionally, we concluded that the state presented a significant amount of other probative evidence regarding the petitioner’s guilt. See id., 140; see also part I A of this opinion.

       The petitioner was represented by attorney Joseph Visone during his second habeas trial and is currently represented by attorney Mark M. Rembish on appeal.

       In State v. Outlaw, supra, 216 Conn. 496-97, our Supreme Court held that it was improper, under State v. McClendon, 199 Conn. 5, 10, 505 A.2d 685 (1986), for a police officer testifying at trial to corroborate an out-of-court identification made by an unavailable witness if the declarant of that identification was not available for cross-examination or if the declarant had not been exposed at trial to “cross-examin[ation] about his previous identification of the defendant from the photographic array.” State v. Outlaw, supra, 498. We take no position on the issue presented under Outlaw because we determine that our analysis of the petitioner’s ineffective assistance claim under the prejudice prong of Strickland is dispositive. See Pierce v. Commissioner of Correction, supra, 100 Conn. App. 11-12.

       As we noted during the petitioner’s first habeas appeal, “[t]he [trial] court made a finding that the state had established, pursuant to § 8-6 of the Connecticut Code of Evidence and the common law, that Jenkins was unavailable to testify. The court then admitted into evidence Jenkins’ testimony from the petitioner’s first [criminal] trial and permitted Ahem to preserve any objections he may have had as to the content of the testimony. After a recess in order to permit Ahern to review the transcript, the court asked him if he had any comments on the substance of the transcript, and he responded that he did not. After the state rested, and while the petitioner was presenting his case, the state informed the court that Jenkins was present. Ahem objected to the state’s opening its case and calling Jenkins to testify, and the court sustained the objection.” Crocker v. Commissioner of Correction, supra, 101 Conn. App. 138-39.
      During his first habeas appeal to this court, the petitioner claimed that Ahem had provided ineffective assistance by objecting to the state’s opening of its case in order to permit Jenkins to testify. Id., 139. During the first habeas trial, Ahem testified that he did not want Jenkins to testify because although he believed that Jenkins had been somewhat cooperative when he testified at the first criminal trial, he did not want to risk Jenkins’ giving potentially damaging live testimony, regardless of the evidence presented by the prosecution. Id.
      In that appeal, we took no position as to whether Jenkins’ transcript was admitted properly as a prior inconsistent statement under State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), because we determined that the petitioner’s failure to satisfy the prejudice prong of Strickland was dispositive. See Crocker v. Commissioner of Correction, supra, 101 Conn. App. 138 n.l, 139 n.2.

       On direct examination by the state, Jenkins testified that after he was shown a photographic array at the police station, he signed his name under a photograph of the petitioner. Jenkins was then asked by the prosecutor: “Did you sign that photograph to identify the person you saw shooting [the victim] on October 27, 1997?” Jenkins responded: “No, sir.” During cross-examination, the following exchange occurred between Jenkins and Ahem:
      “Q. But just so we all understand your testimony, did you sign that photograph because the police pointed it out or wanted you to sign it?
      “A. Wanted me to sign.
      “Q. And did you in fact sign that photograph at their behest or direction?
      “A. Yes, sir.”

       During the second habeas trial, Salvatore testified that she could not recall having raised the issue of whether Piascyk’s testimony should have been objected to, nor could Salvatore recall having been familiar with State v. Outlaw, supra, 216 Conn. 492.

       Because we conclude that the petitioner has failed to satisfy the prejudice prong under Strickland, we need not determine whether Ahem or Salvatore rendered ineffective assistance by failing to object or to raise a claim regarding Piascyk’s testimony under State v. Outlaw, supra, 216 Conn. 492. See Crocker v. Commissioner of Correction, supra, 101 Conn. App. 139 n.2.

       The petitioner also claims that the court improperly concluded that Salvatore did not render ineffective assistance when she did not raise a claim of ineffective assistance regarding Ahern’s failure to object to the admission into evidence of a map drawn by Piascyk and Jenkins. We disagree.
      The following additional facts aid our discussion. At the petitioner’s second criminal trial, the state admitted into evidence a sketched map of the crime scene drawn by Piascyk under Jenkins’ direction during the same interview in which Jenkins identified the petitioner as the man who shot the victim. The map was admitted as an exception to the hearsay rule for business records.
      As we concluded in part I A of this opinion, the jury had already been exposed to Jenkins’ testimony, in which he identified the petitioner as the man who shot the victim. In his testimony, Jenkins also admitted to collaborating with Piascyk to draw a map of the crime scene. Therefore, we cannot conclude that a diagram illustrating what Jenkins already described in his testimony would have created reasonable doubt for the jury regarding the guilt of the petitioner. See part IA of this opinion; Jeffrey v. Commissioner of Correction, supra, 36 Conn. App. 223 (petitioner not prejudiced when substantially same evidence placed before jury). Accordingly, we conclude that the petitioner’s claim fails to satisfy the prejudice prong under Strickland. See Strickland v. Washington, supra, 466 U.S. 694-96.
      As a result of having concluded that the petitioner has failed to demonstrate prejudice under Strickland, we need not determine whether Ahem rendered ineffective assistance for not raising an objection to the admission of the map under the business record exception to the hearsay rule. See Pierce v. Commissioner of Correction, supra, 100 Conn. App. 12 n.5.

       In Whelan, our Supreme Court carved out an exception to the hearsay rule regarding the admission of prior inconsistent statements into evidence for situations in which the statements possess an indicia of reliability and trustworthiness. See State v. Whelan, supra, 200 Conn. 752-53. The Whelan rule allows a prior inconsistent statement to be used as substantive evidence if it satisfies four requirements: (1) the prior inconsistent statement was in writing; (2) the declarant signed the statement; (3) the declarant has personal knowledge of the statement; and (4) the declarant testified at trial and was subject to cross-examination. Id., 753. Whelan also explained that “prior tape recorded statements possess similar indicia of reliability and trustworthiness to allow their substantive admissibility as well.” Id. 754 n.9.

       Tacuma Grear was in police custody after being arrested on an unrelated matter.

       The record reflects that Tacuma Grear’s statement (1) was reliably recorded, (2) was authenticated by him during his testimony at trial, (3) showed that he possessed personal knowledge of its contents and (4) was subject to cross-examination regarding its contents during the petitioner’s second criminal trial. See State v. Crocker, supra, 83 Conn. App. 623-24; see also State v. Woodson, 227 Conn. 1,22, 629 A.2d 386 (1993) (trial witness’ tape-recorded statement to police satisfied Whelan criteria).

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       In Doyle v. Ohio, supra, 426 U.S. 610, the United States Supreme Court “held that the impeachment of a defendant through evidence of his silence following his arrest and receipt of [warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)] violates due process. . . . [I]t noted that silence in the wake of Miranda warnings is insolubly ambiguous and consequently of little probative value. Second and more important[ly], it observed that while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” (Internal quotation marks omitted.) State v. Bereis, 117 Conn. App. 360, 373, 978 A.2d 1122 (2009).

       Because we conclude that the petitioner has failed to satisfy the prejudice prong of Strickland, we need not determine whether Patterson’s failure to brief this claim adequately constituted ineffective assistance. See Crocker v. Commissioner of Correction, 101 Conn. App. 139 n.2.

       Even assuming that the prosecutor’s remarks were improper, they were insignificant and isolated in comparison to the entire closing argument. Therefore, we agree with the court that the petitioner failed to prove prejudice regarding this claim.

       “In Brady v. Maryland [supra, 373 U.S. 87] the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. To establish a Brady violation, the defendant must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the defendant, and (3) it was material [either to guilt or to punishment], . . . The United States Supreme Court ... in United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), [held] that undisclosed exculpatory evidence is material, and that constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) State v. Falcon, 90 Conn. App. 111, 120-21, 876 A.2d 547, cert. denied, 275 Conn. 926, 883 A.2d 1248 (2005).

       The Taitón trial also involved the prosecution of members of the gang associated with the Quinnipiac Terrace housing complex in New Haven, also known as “the Island.” See State v. Talton, 63 Conn. App. 851, 779 A.2d 166, cert. denied, 258 Conn. 907, 782 A.2d 1250 (2001).

       The habeas court concluded that the petitioner was procedurally defaulted from pursuing this claim for having failed to file the requisite return as provided by Practice Book § 23-31. See Practice Book § 23-31. Relying on Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001), the court concluded that the petitioner failed to satisfy the cause and prejudice components required to cure such a.default. The court found that even if it presumed that the petitioner could show cause, he could not establish prejudice. We agree.

       Salvatore testified that she was aware of a statement that Henry had given to a private investigator in which he identified the shooter as short and stocky with no restrictions to his gait, whereas the petitioner is tall and slender and reportedly walked with a limp. Salvatore decided, however, that the remainder of Henry’s statement contradicted what the petitioner had told her and, therefore, was potentially damaging to the case. Consequently, Salvatore opined that basing a claim on Henry’s alleged statements was not worth the risk in order “to try and elicit one jewel . . . that maybe could help you.”

       During the petitioner’s second criminal trial, the transcript of Wright’s testimony from the petitioner’s probable cause hearing was admitted into evidence. See State v. Crocker, supra, 83 Conn. App. 646. The trial court found that Wright was unavailable pursuant to § 8-6 of the Connecticut Code of Evidence. Id. On direct appeal, we concluded that, not only was the admission of Wright’s testimony sufficiently reliable to satisfy the requirements for an unavailable witness, as set forth in Crawford v. Washington, 541 U.S. 36,124 S. Ct. 1354,158 L. Ed. 2d 177 (2004); State v. Crocker, supra, 646-50; moreover, the testimony did not prejudice the petitioner. State v. Crocker, supra, 649-51.

       The court also concluded that, because the claim regarding the admissibility of Wright’s testimony had been addressed on direct appeal, it was precluded from considering the claim. See footnote 21 of this opinion.

       In his brief, the petitioner cursorily argues that Salvatore did not give a logical reason why this claim was not raised during his first habeas appeal. Our review of the transcript from the second habeas trial, however, reveals that Salvatore did give a tactical reason for not raising the issue and that she was aware that Wright’s account of what the petitioner was wearing differed somewhat from what the petitioner claimed he was wearing on the night of the murder. In her testimony, Salvatore stated that she had advised the petitioner that, in her opinion, his testimony effectively “nullified other people’s testimony” because there were so many conflicting versions of the events regarding the petitioner that were introduced at trial.

       The petitioner’s first trial ended in a mistrial as a result of a hung jury.


source: Caselaw Access Project

author: BEAR, J.

license: Public Domain

text:
    ROBERT J. CAMPANELLI ET AL. v. CANDLEWOOD HILLS TAX DISTRICT
    (AC 32523)
    DiPentima, C. J., and Bear and Flynn, Js.

      Argued October 13, 2010
    officially released January 18, 2011

      Doris B. DAmbrosio, for the appellants (plaintiffs).

      Joseph L. Gegeny, for the appellee (defendant).
   Opinion

BEAR, J.

The plaintiffs, Robert J. Campanelli and Linda DiSarro, appeal from the judgment of the trial court rendered in favor of the defendant, the Candle-wood Hills Tax District (district). The plaintiffs allege that they acquired title by adverse possession to a portion of undeveloped property owned by the district located a4jacent to their property. The trial court found that the plaintiffs had failed to rebut the presumption that the district, a quasi-municipal corporation, held its property for public use and, therefore, was immune from a claim of adverse possession. We affirm the judgment of the trial court.

The trial court found the following facts. The property at issue is located at 20 Brook Drive, New Fairfield, and is owned by the district. The property is partially wooded, undeveloped land, part of which contains wetlands. Testimony and other evidence at trial demonstrated that, from 1988 until 2007, the district used its property for a variety of purposes. During the winter season, the property was used for the disposal of excess plowed roadway snow, and, during the fall season, it was used for the disposal of leaves and debris that would accumulate in the catch basins on or near the residents’ property. The residents often were permitted to dispose of household garbage and debris in a dumpster located on the property.

On October 15,2004, however, the town of New Fair-field instructed the district to cease and to desist from using the property as a waste disposal site because it is located in a designated wetlands area. Thereafter, the district installed “no trespassing” signage and a locked gate to deter private users and, to the extent possible, to ensure entry only by those who were authorized by the district.

In late 2006, the district’s board of directors considered a proposal to build a clubhouse on the property that “could be used for community functions, rented out for private parties and as a playground for kids.” Deep soil test tests were performed by an engineering company to determine if the property would be an appropriate location for a septic system. The proposal subsequently was defeated by a vote of the district.

The plaintiffs have resided at 18 Brook Drive since November, 1983, and have been the record titleholders of 18 Brook Drive since September, 1988. At trial, testimony and other evidence demonstrated that the plaintiffs had engaged in a number of activities for their own purposes on a portion of 20 Brook Drive that abuts their own property. Campanelli maintained this portion of the district’s property by clearing high bushes, removing weeds and cutting the grass. He also stored a large pile of wood and parked his trailer on this portion of the property. Campanelli also purchased and distributed fill to level the surface on this portion of the property.

Following receipt of the October, 2004 notice from the town of New Fairfield, the district advised Campa-nelli in writing to remove his woodpile from the district’s property. A subcontractor, who was in the process of removing the dumpster on the district’s property, knocked down the fence at the entrance to the property. Campanelli took it upon himself to install a new post and chain at the entrance. The district’s manager then cut the lock placed there by Campanelli. In a letter dated December 27, 2004, Campanelli informed the district’s tax collector, business manager and board that he was deducting from his tax bill the cost of supplies and labor for installing the post and chain. In that same letter, Campanelli informed the district that he was entitled to use the property as he had done for more than twenty years. He also claimed to have protected the property “from illegal dumping on a wetlands site” and advised the district about the need for tree, drain and road maintenance. In a February 11, 2005 response to Campanelli’s letter, the tax collector and business manager for the board rejected the payment and credit claim, returned Campanelli’s check and issued a new statement to the plaintiffs charging the full assessment with interest for late payment.

On April 10, 2007, the district installed a chain-link fence along the property line that separates 18 Brook Drive and 20 Brook Drive. The district also hired a contractor to move Campanelli’s woodpile onto his property at 18 Brook Drive. The plaintiffs commenced this action on or about April 19, 2007.

Following a trial on January 9, 2009, the court, Som-mer, J., concluded that the plaintiffs had failed to satisfy their burden of rebutting the presumption that the district held the relevant property for public use and consequently was immune from a claim of adverse possession. This appeal followed.

Both the plaintiffs and the defendant agree that the applicable standard of review is the clearly erroneous standard. “A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Gordon v. Tobias, 262 Conn. 844, 849, 817 A.2d 683 (2003).

The issue before this court is whether the trial court properly determined that the disputed property could not be taken by adverse possession because it was held for public use by a tax district.

A legally created tax district is a quasi-municipal corporation. Alarm, Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 547, 427 A.2d 822 (1980); Larkin v. Bontatibus, 145 Conn. 570, 576, 145 A.2d 133 (1958). “Quasi-municipal corporations are governed by the law applicable to municipal corporations.” Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 294, 533 A.2d 208 (1987).

“Title to realty held in fee by a state or any of its subdivisions for a public use cannot be acquired by adverse possession.” Goldman v. Quadrato, 142 Conn. 398,402-403,114 A.2d 687 (1955). “In light of the myriad of public uses that may be advanced through public ownership of undeveloped lands . . . property that is held in fee simple ownership by municipalities must be presumed to be held for public use. It follows that the party seeking title by adverse possession must bear the burden of rebutting that presumption. Municipal immunity from adverse possession is the rule and not the exception, and we have consistently held that the party seeking to acquire title by adverse possession bears the burden of proving all the elements of adverse possession.” American Trading. Real Estate Properties, Inc. v. Trumbull, 215 Conn. 68, 80, 574 A.2d 796 (1990). Public rights to municipal property will not be forfeited by lack of use absent some additional evidence indicating that the municipality intended to abandon the property. Appeal of Phillips, 113 Conn. 40, 45, 154 A. 238 (1931). “[T]he public use requirement can be satisfied even if a property is not presently subject to public use so long as it is held with an intention to develop it at some time in the future.” American Trading Real Estate Properties, Inc. v. Trumbull, supra, 79.

The plaintiffs’ burden, therefore, was to rebut the presumption that the property was being held for public use. See id., 79-80; Cornfield Point Assn. v. Old Saybrook, 91 Conn. App. 539, 563, 882 A.2d 117 (2005). We agree with the court that the plaintiffs failed to meet this burden.

The trial court expressly found that there was no evidence that the district intended to abandon the property. Whether the district continued to hold the property for public use without abandoning it presents a question of fact and, accordingly, the trial court’s finding will not be disturbed unless it is clearly erroneous. Id., 564. Over the years, the district used the property for a variety of community based activities, including disposal of leaves and plowed roadway snow. The district also permitted property owners in the district to dispose of household garbage and debris on the property. The district’s board later considered a proposal to build a community center on the land. The proposal was considered only months before the filing of this action, and the fact that the proposal was defeated does not definitively indicate that there is no intention to pursue possible development at the property in the future. These actual and proposed uses of the property over many years clearly support the trial court’s finding that the property was not abandoned by the district.

The plaintiffs, however, argue that in order for a use to be “public,” it must be open to the general public. The plaintiffs assert that an essential feature of property dedicated to public use is that it is not confined to “ ‘privileged individuals . . . The plaintiffs, in effect, are asking this court to require of all municipal property the level of public access associated with state owned or municipally owned public parks and beaches in order to be eligible for immunity from adverse possession. See Leydon v. Greenwich, 257 Conn. 318, 777 A.2d 552 (2001); Laurel Beach Assn. v. Milford, 148 Conn. 233, 169 A.2d 748 (1961). The plaintiffs have advanced no viable reason or basis to adopt such a rule for all property owned by a municipality or quasi-municipal corporation. We, therefore, reject the plaintiffs’ argument that the district’s property must be open to the public at large in order to qualify for immunity from claims of adverse possession.

The plaintiffs also argue that the fact that “no trespassing” signs later were installed on the property defeats the district’s claim of immunity because the general public did not have access to the property. Public use, however, “includes a myriad of uses, many of which do not involve a physical intrusion on the land.” Cornfield Point Assn. v. Old Saybrook, supra, 91 Conn. App. 563. For example, municipal water systems have a definite public purpose, but municipalities are permitted to regulate access to their reservoirs. See Sachem’s Head Property Owners’ Assn. v. Guilford, 112 Conn. 515, 518, 152 A. 877 (1931) (“[i]t is not open to question that a municipal water system, provided under and pursuant to legislative authority, which furnishes water for fire protection and other municipal purposes and to individual inhabitants of the municipality for compensation, is used for a public purpose”); see also General Statutes § 25-45 (“[t]he legislative body of any city or borough may make, alter and repeal ordinances to regulate or prevent fishing, trespassing or any nuisance in or upon any property of such city or borough or of any subdivision thereof’).

The state has conferred a similar right of immunity from claims of adverse possession against public utilities. See General Statutes § 16-237; Northeast Generation Co. v. Marcello, 92 Conn. App. 753, 762, 887 A.2d 384 (2005). Public utilities, by way of analogy, perform a clear public use, even if the general public does not have physical access to their property.

In American Trading Real Estate Properties, Inc., for example, our Supreme Court stated that “[a] municipality might, for example, elect to buffer a park from encroaching development by maintaining undeveloped property adjacent to the park. Similarly, a municipality might attempt to preserve the character of the community by acquiring ‘open space’ land or ‘greenbelts’ or might seek to protect wildlife or inland wetlands by purchasing land to be left in an undisturbed state. A standard of public use that fails to include such uses would do a great disservice to these commendable efforts to protect the environment. ” American Trading Real Estate Properties, Inc. v. Trumbull, supra, 215 Conn. 80. “[T]he rationale underlying the immunity of municipalities from adverse possession, that the public should not lose its rights to property as a result of the inattention of a governmental entity . . . applies with even greater force to situations involving undeveloped lands, which may, by their nature, gamer even less attention from local governments suffering from the constraints of scarce fiscal resources.” (Citation omitted.) Id., 80-81.

The property at issue here has been utilized by the district for a number of different community purposes. Additionally, when the district learned that the property was subject to environmental restrictions under the town inland wetlands and watercourses regulations, it acted to protect the property from refuse disposal and other improper activities in compliance with town requirements. It continued to explore additional appropriate use of the property, but currently the property remains undeveloped and access to the property is limited. However, in light of the myriad of “public uses” that do not involve general public access to state or municipal property, we reject the plaintiffs’ argument that the general public must have access to the property in order for it to qualify for immunity from adverse possession.

For these reasons, we agree with the trial court that the plaintiffs presented insufficient evidence to rebut the presumption that the defendant holds 20 Brook Drive for public use. Accordingly, we hold that the court’s conclusion that the defendant is immune from the plaintiffs’ claim of adverse possession was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       “[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his [or her] own and without the consent of the owner. ... A finding of [a]dverse possession is not to be made out by inference, but by clear and positive proof. . . . [C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. . . . The burden of proof is on the party claiming adverse possession. . . .
      “Despite [this] exacting standard, our scope of review is limited. . . . Because adverse possession is a question of fact for the trier . . . the court’s findings as to this claim are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A trial court’s findings in an adverse possession Case, if supported by sufficient evidence, are binding on a reviewing court . . . .” (Internal quotation marks omitted.) Shepard Group, LLC v. Arnold, 124 Conn. App. 41, 44-45, 3 A.3d 975 (2010).

       Where title to real property is claimed by adverse possession, the standard is clear and positive proof. Roche v. Fairfield, 186 Conn. 490, 498, 442 A.2d 911 (1982). In Clark v. Drska, 1 Conn. App. 481, 487, 473 A.2d 325 (1984), we concluded that “clear and positive proof’ is the same as “clear and convincing evidence.” See Gemmell, v. Lee, 59 Conn. App. 572, 578, 757 A.2d 1171 (adverse possession must be proved by clear and convincing evidence), cert. denied, 254 Conn. 951, 762 A.2d 901 (2000); see also footnote 1 of this opinion.

       General Statutes § 16-237 provides in relevant part: “No length of possession, user or occupancy of any buildings or land, or adverse to any easement therein or right thereto belonging to a telegraph, telephone or electric light or power corporation, and used or acquired for use for its corporate purposes, shall create or continue any right in or to such land, or adverse to any such easement.”

       See, e.g., American Trading Real Estate Properties, Inc. v. Trumbull, supra, 215 Conn. 81-82 (“[sjince the plaintiff has presented no evidence indicating that the defendant holds the property for some nonpublic use or has abandoned its intention to hold the roadway for public puiposes, we conclude that the plaintiff has failed to rebut the presumption that the defendant holds the roadway for public use”).