author: BISHOP, J.

text:
    DAVID J. WEINBERG v. COMMISSIONER OF CORRECTION
    (AC 27897)
    Bishop, Robinson and Freedman, Js.

      Argued October 17, 2008
    officially released January 13, 2009

      Deborah G. Stevenson, special public defender, for the appellant (petitioner).

      Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Robin Lipsky, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

BISHOP, J.

The petitioner, David J. Weinberg, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying certification to appeal and that it improperly (1) determined that his trial counsel rendered effective assistance, (2) determined that his appellate counsel rendered effective assistance and (3) rejected his claim of actual innocence. We dismiss the petitioner’s appeal.

The record reveals the following pertinent facts and history. The petitioner’s conviction was affirmed by the Supreme Court on direct appeal. In its opinion, the Supreme Court set forth the factual background as follows. “On the evening of August 3,1984, Joyce Stochmal was at her home in the town of Seymour, preparing to leave for an overnight stay at her place of employment, the Silver Hills Kennel, located in the town of Ansonia. In contemplation of working at the kennel the next morning, she packed a blue gym bag with the following items: an orange Silver Hills Kennel T-shirt, a pair of Calvin Klein cut-off jeans, a bra, underpants, socks and a small zippered makeup bag containing an Estee Lauder eyeliner pencil and mascara. Stochmal left her home at approximately 10:30 p.m. and was last seen alive at approximately 10:45 p.m., walking along the nearby Squantuck Road in the direction of Ansonia.

“That same night, August 3,1984, the [petitioner] was at the Prime Time Cafe, a bar located approximately one half mile from Squantuck Road. When he left the bar, he drove along Squantuck Road where he encountered Stochmal. The [petitioner], thereafter, beat Stoch-mal about her head and face and stabbed her repeatedly in the back, chest and neck. After inflicting these fatal wounds, he disposed of Stochmai’s body in Lake Zoar and then started a fire along the banks of the Pomperaug River where he burned the contents of Stochmal’s gym bag.

“In the afternoon of the next day, August 4,1984, the [petitioner] indicated to his girlfriend, D, who had just returned from an overnight stay in New York, that he had discovered a dirt road near his place of employment and he wanted to go see what was there. D agreed to go along, and they drove in the [petitioner’s] car to a secluded area along the Pomperaug River. The [petitioner] indicated that he had been at that location the night before and that his car had gotten stuck. D and the [petitioner] then got out of the car, and the [petitioner] started wading through the shallow water to cross the river. D followed him, and when they reached the opposite bank, she watched as the [petitioner] began digging through the remains of a fire. Twenty to thirty minutes later they left.

“On August 4, 1984, the [petitioner] shaved off his beard and, from that date, stopped carrying in public a knife he had previously kept in a sheath on his belt. He also removed a large sticker from the hood of his car and painted the white wheels on his car black.

“The [petitioner] became a suspect in the murder of Joyce Stochmal following a police investigation of information given to them by D. D, who has a long history of mental illness manifested in such symptoms as auditory and visual hallucinations and delusions, went to the police barracks in Southbury on August 17, 1984, to complain about the psychiatric treatment she was receiving at a particular clinic. In the course of her conversation with the police officers, she told them about the fire site to which the [petitioner] had taken her on August 4. After describing the location of the site, its surroundings, and the details of what had occurred on the afternoon she and the [petitioner] had gone there, she took the police to show them the area.

“The police seized the charred remains from the fire site. The following items were found in those remains: an orange fabric that matched the weave, composition, melting point and dye of an orange Silver Hills Kennel T-shirt; a Calvin Klein button; some Calvin Klein rivets; bra hooks and eyes; a zipper fragment consistent with those found on small makeup bags; pieces of an eyeliner pencil that matched the dye and construction of the Estee Lauder eyeliner the victim was known to have used; a twisted wire containing fibers consistent with those found on a mascara brush; charred fabric that appeared to be from a sock; and a blue fiber.

“The police interviewed the [petitioner] on August 22,1984, concerning his activities on the night of August 3, 1984. When asked if he had seen anyone walking along the road as he had left the Prime Time Cafe, the [petitioner] volunteered that he had not driven on Squantuck Road. He explained that, due to transmission problems with his car, he had taken a route home that had fewer hills, a route police later discovered to be 6.7 miles longer than the Squantuck Road route to his home.

“After further investigation, two warrants were issued, one for the search of the [petitioner’s] body and the other for the search of his residence and car. The police seized from the [petitioner’s] apartment a buck knife later determined to be similar in size and configuration to the murder weapon. Seized from the trunk of the [petitioner’s] car was a bloody hair fragment consistent with the unusually fine texture of the victim’s hair and also a blue fiber that matched in dye and structure a fiber found in the charred remains at the fire site.” State v. Weinberg, 215 Conn. 231, 233-35, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990).

On November 22, 1998, after a trial to the jury, the petitioner was convicted of murder in violation of General Statutes § 53a-54a, and, as noted, his conviction was affirmed on appeal.

On October 15, 1997, the petitioner filed this petition for a writ of habeas coipus. The habeas trial was based on an amended petition dated June 6, 2003, in which the petitioner alleged that he was deprived of the effective assistance of trial and appellate counsel and that he was actually innocent. As to trial counsel, the petitioner claimed that counsel rendered ineffective assistance by (1) failing to determine whether the knife found at the petitioner’s apartment could have caused the victim’s wounds, (2) failing to impeach the state’s key witness, (3) unnecessarily eliciting prejudicial testimony from several witnesses and (4) failing to object to inadmissible evidence and that these deficiencies rendered his conviction unreliable. As to appellate counsel, the petitioner claimed that counsel rendered ineffective assistance by failing to claim that the presumptive blood tests on both the knife recovered from his apartment and the hairs found in his trunk were inadmissible. The petitioner separately claimed that he is actually innocent of murder. By memorandum of decision filed March 29, 2006, the court denied the petition, finding that the petitioner did not prove that he was prejudiced by his counsels’ performance and that he had not proven his actual innocence. The court thereafter denied the petition for certification to appeal from its decision. This appeal followed. Additional facts will be set forth as necessary.

I

“Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion.” (Internal quotation marks omitted.) Amado v. Commissioner of Correction, 110 Conn. App. 345, 347, 954 A.2d 887, cert. denied, 289 Conn. 941, 959 A.2d 1006 (2008). “To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Citations omitted.) Newsome v. Commissioner of Correction, 109 Conn. App. 159, 162, 951 A.2d 582, cert. denied, 289 Conn. 918, 957 A.2d 878 (2008). “If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” Amado v. Commissioner of Correction, supra, 347. On the basis of our thorough review of the record, we conclude that the court did not abuse its discretion in denying the petition for certification to appeal.

“The petitioner’s right to the effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution, and by article first, § 8, of the constitution of Connecticut. In Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . 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 unreliable. Because both prongs . . . 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. . . .

“With respect to the prejudice component of the Strickland test, the petitioner must demonstrate that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. ... It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings. . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt.” (Citations omitted; internal quotation marks omitted.) Griffin v. Commissioner of Correction, 98 Conn. App. 361, 365-66, 909 A.2d 60 (2006). In light of the teachings of this decisional law, it is clear that the court paved no new legal ground in deciding the petitioner’s claims regarding his trial counsel solely on the prejudice prong.

Because the court determined that the petitioner had not proven that he was prejudiced by the performance of his trial counsel, our focus on review is whether the court correctly determined the absence of prejudice. With the foregoing in mind, we turn to the petitioner’s specific claims.

A

The petitioner first claims that trial counsel failed to disprove adequately that the knife seized from the petitioner’s apartment could have caused the victim’s wounds. Specifically, he argues that trial counsel’s performance was deficient and prejudicial because he failed (1) to conduct independent tests on the knife seized from the petitioner’s apartment, (2) to cross-examine Harold Wayne Carver II, the state’s chief medical examiner, who performed the victim’s autopsy, as to the measurements of the wounds and whether the petitioner’s knife could have caused them and (3) to provide Elliot Gross, a defense witness and a physician, with sufficient information about the knife in evidence prior to trial.

As correctly noted by the habeas court in its detailed analysis of this issue, the evidence elicited by the petitioner at the habeas trial regarding the configuration of the knife found at the petitioner’s home and its lack of correlation to the victim’s wounds was not substantively different from the evidence trial counsel elicited from the medical examiner during the underlying criminal trial. Indeed, we note that the petitioner’s expert on this issue, Cyril Wecht, a physician, was complimentary of trial counsel’s cross-examination of the medical examiner.

On the basis of our examination of the record, we find no fault in the habeas court’s conclusion that the petitioner failed to demonstrate that he had been prejudiced by his trial counsel’s handling of the knife issue.

B

The petitioner next claims that trial counsel rendered ineffective assistance by failing to impeach D. The respondent argued, and the habeas court agreed, that viewed in light of all the evidence before the jury, impeachment of D on the basis of inconsistent statements in a letter that she wrote would not have altered the jury’s assessment of the petitioner’s guilt.

The following additional facts relate to the petitioner’s claim. During the habeas trial, Howard Weinberg, the petitioner’s father, testified that after trial counsel appealed from the petitioner’s conviction and lost, he retrieved the petitioner’s file from trial counsel’s office to deliver it to another attorney. In the process, Howard Weinberg discovered a letter in his son’s file written by D in which she stated that she and the petitioner had not crossed the Pomperaug River to go to the fire site. During the habeas trial, the petitioner demonstrated that although trial counsel had possession of this letter prior to trial, he did not use it to impeach D regarding her testimony that she and the petitioner had crossed the river. In assessing this claim, the habeas court concluded, in essence, that this discrepancy regarding whether D and the petitioner had or had not crossed the river to get to the fire site was relatively unimportant, and, as a consequence, trial counsel’s failure to highlight this difference did not prejudice the petitioner. We agree.

As noted by the habeas court, the trial record reveals that counsel did highlight D’s psychiatric disabilities, especially her tendency to hallucinate about the petitioner, and various inconsistencies in D’s testimony. Additionally, as noted by the trial court, this statement by D in her letter regarding crossing the river was consistent with a concession she made on cross-examination that she had previously told Mary Ann Bearse, a social worker, that she had not crossed the Pomperaug River with the petitioner.

On the basis of our review of the record, we conclude that the petitioner has failed to demonstrate that there is a reasonable probability that if trial counsel had impeached D on the basis of the letter, the jury would have had a reasonable doubt respecting the guilt of the petitioner. Even if we were to assume arguendo that trial counsel's failure to impeach D on the basis of her inconsistent statements constituted deficient performance, we agree with the habeas court's assessment that no prejudice resulted from that deficiency. If D had been impeached on the basis of the letter, her testimony, at most, would have been cumulative of other evidence. See Madagoski v. Commissioner of Correction, 104 Conn. App. 768, 776, 936 A.2d 247 (2007) (where witness' testimony would have been cumulative of other evidence at trial, petitioner failed to show reasonable probability that fact finder would have otherwise had reasonable doubt respecting petitioner's guilt), cert. denied, 286 Conn. 905, 944 A.2d 979 (2008). We conclude, therefore, that the habeas court correctly determined that the petitioner did not demonstrate that trial counsel's alleged deficiency produced an unreliable result. See Strickland v. Washington, supra, 466 U.S. 687.

C

The petitioner also claims that trial counsel provided ineffective assistance by unnecessarily eliciting prejudicial testimony from D, from Joshua Kricker, an intern at trial counsel’s law firm, and from Mary Ann Stochmal, the victim’s mother. We are not persuaded.

The petitioner first argues that trial counsel elicited prejudicial testimony during his cross-examination of D. Trial counsel began his cross-examination of D by reviewing her extensive psychiatric records and history of suffering from hallucinations, including those regarding the petitioner. Trial counsel also utilized approximately fifty-five exhibits relating to D’s numerous psychiatric treatments. After trial counsel elicited testimony from D that in the time period including August 3, 1984, her hallucinations were “bad all the time,” he then questioned her about inconsistencies in her testimony regarding the events of August 4, 1984. D conceded that she had previously told Bearse that she and the petitioner never crossed the river. Trial counsel then noted that D had previously testified that she had first gone to the fire site, then a root beer stand and then back to her parent’s house, but that she had told the police that she had gone to the fire site after going to the root beer stand and before going to the steel bridge. Trial counsel later asked D, “didn’t you tell the state police that while you were [at the steel bridge] on the same afternoon that you had claimed you went to the campfire, that there were two young guys on the bridge and that you watched them jumping off the bridge, and you claimed that [the petitioner] wanted to jump off the bridge but you talked him out of it?” D admitted that she had made those statements and that she was “mixed up” about the sequence of events on the date in question.

The petitioner claims that because D had not mentioned during direct examination that she and the petitioner had been on the steel bridge, above where the victim’s purse was later found, this damaging information was brought to the jury’s attention only through trial counsel’s inartful questioning of D. The petitioner contends, therefore, that D’s testimony prejudiced him by placing him at the location where a very important piece of evidence was found.

“[A] court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” (Citation omitted.) Peruccio v. Commissioner of Correction, 107 Conn. App. 66, 84, 943 A.2d 1148, cert. denied, 287 Conn. 920, 951 A.2d 569 (2008). Here, we note the existence of substantial evidence from which the jury found the petitioner guilty, aside from the bridge testimony. Additionally, trial counsel successfully elicited from D that she had a history of hallucinations about the petitioner, that she was confused about the events on the date in question and that she had made inconsistent statements regarding the sequence of events on August 4. We conclude, therefore, that the habeas court correctly determined that the petitioner failed to demonstrate that there is a reasonable probability that if trial counsel had never elicited D’s testimony regarding the steel bridge, the jury would have had a reasonable doubt respecting the guilt of the petitioner.

The petitioner next argues that trial counsel elicited damaging testimony during his direct examination of Kricker, which placed the petitioner at the site at which the incriminating evidence was found. Kricker testified that on June 1, 1985, he had interviewed D while she was at Griffin Hospital’s psychiatric ward. During the interview, D told him that on August 3, 1984, she had gone to Oneonta, New York, for the night in an effort to escape the severe hallucinations from which she was suffering. She returned to Connecticut the next day. D told Kricker that on August 7, she and the petitioner had driven to the steel bridge and that the petitioner had stated a desire to jump into the water. Afterward, D told Kricker that she and the petitioner had crossed the banks of the Pomperaug River, where the petitioner went to the fire site because he wanted to make sure that the fire was out. Kricker further testified that D told him that while she was at the river with the petitioner, “a van full of hippies” who were having a picnic were arrested during a police drug raid. She told Kricker that the petitioner’s brother was there as well. Kricker also testified that D did not recall bringing the state police to that area.

Although we agree that Kricker’s recitation of his interview of D bolstered evidence of the petitioner’s presence at the steel bridge, this portion of the testimony was cumulative. Additionally, Kricker’s testimony exposed inconsistencies in D’s statements and reinforced the testimony of the petitioner’s expert witness, Walter Borden, a psychiatrist, who testified that D had a tendency to reconstruct separate events to become a single event or delusion and that this was an aspect of the misidentification syndrome from which she suffered. We conclude, therefore, that whether or not it was prudent for trial counsel to elicit testimony from Kricker regarding his meeting with D, the petitioner has not demonstrated that Kricker’s testimony was prejudicial to his defense. See Mitchell v. Commissioner of Correction, 109 Conn. App. 758, 766, 953 A.2d 685 (2008).

The petitioner’s final argument regarding trial counsel’s alleged elucidation of prejudicial testimony relates to trial counsel’s direct examination of Mary Ann Stoch-mai. We are unpersuaded.

The record reveals that Stochmal’s direct examination largely concerned matters not having a direct bearing on any significant issues in contention. As such, whatever value or lack of value there may have been in having Stochmai testify, the habeas court correctly determined that the petitioner failed to demonstrate that he was prejudiced by counsel’s handling of Stochmai.

D

The petitioner next asserts that he was prejudiced by trial counsel’s admitted failure to object to testimony that the petitioner had changed his personal appearance and the appearance of his car on August 4, 1984, one day after the victim’s murder. We are not persuaded.

The record reveals that prior to trial, trial counsel made a motion in limine for a ruling to preclude witnesses from offering testimony concerning the petitioner’s change in appearance and that of his car, following the victim’s murder. The court declined to rule on the motion and indicated that it would take the matter up when the testimony went before the jury. During the trial, trial counsel did not make a timely objection when D’s father testified about the petitioner’s changed appearance because trial counsel’s “attention had wandered.” At the habeas hearing, trial counsel explained that “[cjertainly, it was my intention to make [the objection], as I indicated before he came on the [witness] stand. I want to say that in my view, that momentary inattentiveness constitutes a sixth amendment violation.”

The petitioner argues that the admission of the evidence was extremely prejudicial because the jury reasonably could infer from the testimony that the petitioner changed his appearance and the appearance of his car to mask his identity after he had killed the victim.

On the basis of our review of the record, we conclude that the petitioner cannot show prejudice under this claim because the testimony that he had changed his appearance and the appearance of his car was but one of the several pieces of evidence supporting the jury’s guilty verdict. See Peruccio v. Commissioner of Correction, supra, 107 Conn. App. 84. Thus, the habeas court properly concluded that the result of the proceeding would not have been different, even if the testimony had not been admitted. See Carneiro v. Commissioner of Correction, 109 Conn. App. 513, 519, 497 A.2d 390 (petitioner failed to show prejudice where result of proceeding would not have been different even if witness testimony had been excluded), cert. denied, 289 Conn. 936, 958 A.2d 1244 (2008). Moreover, the habeas court properly noted that the most incriminating evidence was that a blue fiber located at the fire site scientifically matched, in both dye and structure, a blue fiber found in the trunk of the petitioner’s car. This blue fiber provided an additional connection between the petitioner and the scene of the murder. Additionally, hairs found in the petitioner’s trunk were “microscopically similar” to the victim’s hair, which was unusually fine. In light of this more compelling evidence, it is not reasonably probable that had trial counsel objected to the changed appearance testimony, the jury would have had a reasonable doubt respecting the petitioner’s guilt.

It is axiomatic that in a habeas matter premised on the ineffective assistance of counsel, the petitioner must show that “counsel’s errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable.” Strickland v. Washington, supra, 466 U.S. 687. Further, “[t]he petitioner’s burden of proving that a fundamental unfairness [has] been done is not met by speculation but by demonstrable realities.” Mitchell v. Commissioner of Correction, supra, 109 Conn. App. 766. Finally, we note that “[t]he strength of the state’s case is a significant factor in determining whether an alleged error caused prejudice to the petitioner. The stronger the case, the less probable it is that a particular error caused actual prejudice.” Griffin v. Commissioner of Correction, supra, 98 Conn. App. 367. In this case, the record reflects that the habeas court correctly determined that none of the alleged acts or omissions of trial counsel cast doubt on the reliability of the jury’s verdict.

We conclude, therefore, that the habeas court did not abuse its discretion in denying the petition for certification to appeal from that court’s finding that the petitioner was not prejudiced by counsel's alleged errors.

II

The petitioner next claims that appellate counsel rendered ineffective assistance by failing (1) to challenge on appeal the admission of the presumptive blood test performed on the knife seized from his apartment and the hairs seized from the trunk of his vehicle and (2) to request supplemental briefing or reargument on this issue.

The petitioner relies on State v. Moody, 214 Conn. 616, 573 A.2d 716 (1990), in which the defendant claimed that the trial court improperly admitted testimony that a stain found on one of his shoes had yielded a positive result on a “presumptive test for blood,” meaning that the stain “could be human blood, animal blood or something other than blood.” Id., 628. In Moody, the court concluded that “the result of the presumptive test for blood had no probative value whatsoever. The test result did nothing toward establishing the likelihood of the presence of human blood on the sole of the defendant’s shoe. . . . [T]hus, the trial court abused its discretion by admitting it into evidence.” Id. The petitioner contends that although the Moody decision was released after his appeal was argued, appellate counsel had ample time to seek reargument on the basis of Moody and to seek permission to include the claim in a supplemental brief to the court.

Our Supreme Court has noted that to satisfy the prejudice prong of an ineffective assistance of counsel claim, a petitioner must establish that “there is a reasonable probability that, but for appellate counsel’s failure to raise the issue on appeal, the petitioner would have prevailed in his direct appeal, i.e., reversal of his conviction or granting of a new trial.” Small v. Commissioner of Correction, 286 Conn. 707, 722, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008).

“While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. . . . [I]t is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment.” (Internal quotation marks omitted.) Bailey v. Commissioner of Correction, 107 Conn. App. 362, 367, 947 A.2d 2, cert. denied, 287 Conn. 922, 951 A.2d 568 (2008).

On the basis of our review of the record, we conclude that even if appellate counsel had submitted a supplemental brief and filed a motion for reargument on the basis of Moody, the petitioner cannot show that it is reasonably probable that he would have prevailed on appeal. Although the Moody court concluded that the presumptive blood test was irrelevant, the court granted a new trial on the ground that the defendant established that the trial court’s admission of the test was harmful because it misled the jury. State v. Moody, supra, 214 Conn. 627-30. The petition in this case is easily distinguishable from Moody. Evidence that presumptive blood was found on the knife seized from the petitioner’s apartment was inconsequential because ample evidence was offered that the knife in evidence was not used to kill the victim. Further, although presumptive blood was found on the hairs seized from the petitioner’s trunk, the more probative evidence was the testimony that the hairs were microscopically consistent with the victim’s unusually fine hair. Thus, it is not reasonably probable that, but for appellate counsel’s presumed error, the petitioner would have prevailed in his direct appeal. We conclude, therefore, that the habeas court properly determined that the petitioner failed to show ineffective assistance of appellate counsel and did not abuse its discretion in denying the petition for certification on that ground.

Ill

The petitioner finally claims that the court abused its discretion in denying his petition for certification to appeal with respect to his claim of actual innocence. Specifically, the petitioner asserts that “assuming arguendo, that newly discovered evidence is not required,” he submitted “substantial and copious amounts of evidence to support his claim” of actual innocence. He further argues that “the exculpatory evidence presented, coupled with testimony that the evidence knife was not the knife or the type of knife used to cause the victim’s death, sufficiently supports [his] actual innocence claim.” We do not agree.

Our Supreme Court has concluded that “the proper standard for evaluating a freestanding claim of actual innocence, like that of the petitioner, is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence— both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial— he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime.” Miller v. Commissioner of Correction, 242 Conn. 745, 747, 700 A.2d 1108 (1997).

Here, the court found that because the petitioner had failed to submit any newly discovered evidence, he had “failed to even make the threshold requirement by which a claim of actual innocence may be pursued. ” The court concluded, therefore, that the petitioner “failed to meet his burden of proving actual innocence with clear and convincing evidence [such] that no reasonable finder of fact would conclude that the petitioner is guilty.”

“Our Supreme Court has deemed the issue of whether a habeas petitioner must support his claim of actual innocence with newly discovered evidence an open question in our habeas jurisprudence. . . . This court, however, has held that a claim of actual innocence must be based on newly discovered evidence. ... [A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered. . . . This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner’s criminal trial by the exercise of due diligence.” (Citations omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 101 Conn. App. 465, 470-71, 922 A.2d 221 (2007). We agree that the petitioner failed to offer any newly discovered evidence before the habeas court.

The petitioner contends that the testimony that the knife in evidence was not the knife or even the type of knife used to cause the victim’s death sufficiently supports his actual innocence claim. Because Wecht’s findings regarding the knife in evidence, however, were the same as those made by Gross and Carver in the underlying criminal trial, the petitioner has failed to present newly discovered evidence that was not available at the time of the criminal trial. See id., 471.

We conclude, therefore, that the court properly denied the petition for certification to appeal from the denial of the petition for a writ of habeas corpus with respect to his claim of actual innocence.

The appeal is dismissed.

In this opinion the other judges concurred.

        State v. Weinberg, 215 Conn. 231, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990).

       Our Supreme Court referred to the petitioner’s girlfriend by her first initial to protect her privacy. State v. Weinberg, 215 Conn. 231, 238 n.6, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990). We shall do the same.


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    CLIFFORD W. YOUNG v. KAROLINA YOUNG
    (AC 28844)
    Flynn, C. J., and Lavine and Hennessy, Js.
    Argued October 21, 2008
    officially released January 13, 2009

      Francis A. Teodosio, for the appellant (plaintiff).

      Robert S. Reger, for the appellee (defendant).
   Opinion

FLYNN, C. J.

The plaintiff, Clifford W. Young, appeals from the judgment of the trial court in favor of the defendant, Karolina Young, rendered after a trial to the court. On appeal, the plaintiff claims that the court improperly (1) found that the defendant had never quit-claimed to the plaintiff her interest in a property owned jointly by the parties, (2) failed to render judgment quieting title to the property in the plaintiff and (3) held that the plaintiff had not established a claim of title to the property via adverse possession. We affirm the judgment of the court.

The following facts are relevant to our resolution of the plaintiffs appeal. The plaintiff and the defendant were married in 1957. At the time the defendant initiated dissolution proceedings in 1977, the parties owned jointly four properties: two in Shelton, Connecticut, and two in New Mexico. The court’s judgment of dissolution, rendered November 2, 1977, ordered the plaintiff and the defendant immediately to list for sale the Connecticut properties known as 67 Lynne Terrace, which was the marital residence, and lot 27 Cynthia Lane. Proceeds from the sales were to be divided equally between the parties. The court also ordered the plaintiff to quitclaim his interest in one of the New Mexico properties to the defendant and the defendant likewise to quitclaim her interest in the other New Mexico property to the plaintiff. The order further required the plaintiff to pay to the defendant $3800 in exchange for the defendant’s release of her interest in a mutual fund.

The obligations of the parties were further set forth in a handwritten agreement, executed by the plaintiff and the defendant at the time of the dissolution. This agreement, though not disputed by the parties, was not incorporated into the dissolution judgment. The agreement provided that the Cynthia Lane property was to be sold for not less than $20,000. The agreement further required the plaintiff to loan the defendant a sum that would allow the defendant to obtain the amount of $20,000. As to the Lynne Terrace property, the agreement set a sales price of $55,000 and afforded each party a right of first refusal, to be exercised within ten days. The plaintiff was to vacate the property immediately, and the defendant was to vacate in ten days, at which time, the plaintiff would resume occupancy. The plaintiff was to pay the mortgage, taxes and insurance until the sale. Net proceeds from the sale of the property were to be divided equally between the parties.

Following entry of the dissolution judgment, the plaintiff eventually resumed residence at the Lynne Terrace property, while the defendant purchased a condominium. The sale of the Cynthia Lane property realized $27,000, from which the parties each received approximately $13,487. The Lynne Terrace property, however, was never sold, and the plaintiff continued to reside there, while the defendant eventually moved to Georgia. From 1977 onward, the plaintiff paid the mortgage, taxes, insurance and provided for the general upkeep of the property. The defendant made no such contributions.

In August, 2003, the plaintiff contacted the defendant and informed her that the Lynne Terrace property had been burglarized. Among the items stolen, according to the plaintiff, was a quitclaim deed to the Lynne Terrace property executed by the defendant in favor of the plaintiff. The quitclaim deed had never been recorded on the Shelton land records. The plaintiff requested that the defendant send him a new deed to replace the allegedly stolen deed. Upon the defendant’s refusal, the plaintiff initiated the underlying action.

By way of his revised complaint, filed November 18, 2005, the plaintiff sought to quiet title to the Lynne Terrace property pursuant to General Statutes § 47-31. The complaint also contained a claim that the plaintiff had acquired title to the property by adverse possession. The defendant filed an answer, special defense and counterclaim in which she sought a partition of the interests of the parties in the property, a sale of the property and division of the proceeds between the parties, and a monetary award of compensation for the plaintiffs use and occupancy of the property since 1977.

The matter was tried before the court on November 15 and 16,2006. The plaintiff testified that on December 2, 1977, he delivered a check in the amount of $10,200 to attorney Richard Lynch. The plaintiff indicated that these funds constituted payment for the defendant’s interest in the Lynne Terrace property and that, in exchange for the sum, he had received a quitclaim deed for that property executed by the defendant. The plaintiff testified that Lynch required him to execute a quitclaim deed to the New Mexico property at that time. The plaintiff stated that he first realized the quitclaim deed to the 67 Lynne Terrace residence had never been recorded after his house was burglarized and he inquired about the deed at Shelton city hall.

The plaintiff also testified that in 1982, he received a telephone call from Lynch indicating that Lynch had misplaced the quitclaim deed to one of the New Mexico properties that the plaintiff had executed in favor of the defendant. The plaintiff entered into evidence a letter from Lynch dated October 19, 1982, in which Lynch asked the plaintiff to execute a quitclaim deed to the New Mexico property. Lynch wrote that he was anxious to close the file and was “unable to do so until the court order is fully complied with.”

Besides his testimony, the plaintiff offered into evidence a copy of a cashier’s check in the amount of $10,200 made out to the defendant. A notation on the check read: “Re: Clifford Young Payment for final settlement.” The plaintiff also offered a ledger entry he claimed to have made documenting his payment. The entry read: “Buy out Karla [the defendant] half interest in house. Rec [Quit] Claim Deeds for house and NM property. Payment for final settlement.” The plaintiffs current wife, Shirley Steeves-Young, testified that she had seen the quitclaim deed before it had been stolen, though she admitted that she had not read the deed’s property description. In addition, upon the plaintiffs request, the court took judicial notice of financial affidavits the parties had submitted to the court in October, 1979. The Lynne Terrace property was listed as an asset on the plaintiffs affidavit but not on the defendant’s.

The defendant testified that she had never executed a quitclaim deed to the Lynne Terrace property. She explained that, following the dissolution of the parties’ marriage, and pursuant to the agreement executed by the parties, she moved out of the marital residence and into a condominium. The defendant testified that the $10,200 transfer from the plaintiff represented the defendant’s $3800 interest in the mutual fund, referenced in both the dissolution order and the agreement, plus a loan from the plaintiff, provided for by the agreement, to allow the defendant to purchase the condominium. The defendant further testified that she never attempted to force the sale of the Lynne Terrace property because she could not afford an attorney at the time, and that she intended that her interest in the property pass to her children upon her death. The defendant also testified that the property did not appear on her 1979 financial affidavit because she believed the property was in the process of being sold, and, therefore, did not need to be listed.

By memorandum of decision filed May 4, 2007, the court ruled in favor of the defendant on both counts of the complaint. The court concluded that the defendant had never transferred her interest in the Lynne Terrace property and, therefore, remained the owner of a one-half interest in the property. The court held that the plaintiffs adverse possession claim failed because the defendant had left the property by agreement of the parties and that the plaintiffs continued occupancy was not hostile to the defendant’s rights but instead was by her consent. As to the defendant’s counterclaim, the court held that the plaintiffs expenditures in maintaining the property offset any claim the defendant could make for use and occupancy. Considering the conflicting interests of the parties, the court ordered the property sold and proceeds divided according to the original dissolution judgment of November 2, 1977. The plaintiffs appeal followed.

I

The plaintiff first claims that the court improperly determined that the defendant had never quitclaimed her interest in the Lynne Terrace property to the plaintiff. Although the plaintiff concedes that “there is evidence to support the trial court’s conclusion that a quitclaim deed was never executed,” he argues that the court’s finding was incorrect “in light of all the evidence in the record . . . .”

We begin with the applicable standard of review. “We review the court’s findings of fact under the clearly erroneous standard. . . . The trial court’s findings 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 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 . . . .” (Internal quotation marks omitted.) Seligson v. Brower, 109 Conn. App. 749, 753-54, 952 A.2d 1274 (2008).

In support of his claim, the plaintiff highlights various portions of the evidentiary record and argues that they support his version of the events, namely, that the defendant quitclaimed the Lynne Terrace property to him in 1977. The plaintiff cites the 1979 financial affidavits and argues that if the defendant believed she owned an interest in the property, she would have included it in her affidavit. The plaintiff contends that the fact that Lynch did not mention the Lynne Terrace property in his 1982 letter to the plaintiff indicates that the order to sell the property had already been effectuated. The plaintiff also maintains that his testimony and the evidence of his actions following the dissolution support his claim that the quitclaim deed in fact had been executed. Finally, the plaintiff refers to Steeves-Young’s testimony that she saw the quitclaim deed. In light of this evidence, the plaintiff argues, the court’s finding that the defendant never executed a quitclaim deed was clearly erroneous. We are unpersuaded.

The plaintiff is correct to the extent that the evidence he underscores could be judged to support his claim that a quitclaim deed had been executed and the defendant’s interest in the property transferred to him. However, the evidence was not so strong as to foreclose any other conclusion. Outside of the testimony of the plaintiff and Steeves-Young, there was no direct evidence that the quitclaim deed ever existed. No other witness testified to this effect, and there was no documentary evidence, such as a photocopy of the deed or any evidence that the deed had ever been recorded, to support the plaintiffs claim. In addition, the court had the testimony of the defendant to the effect that she had never executed a quitclaim deed to the property.

The court also was entitled to credit the defendant’s explanation for the $10,200 payment from the plaintiff to the defendant and not to credit the plaintiffs contrary explanation. In order to perform its duty, the court had to determine the credibility of the witnesses. “It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... On appeal, we do not retry the facts or pass on the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) Newbury Commons Ltd. Partnership v. Stamford, 226 Conn. 92, 99, 626 A.2d 1292 (1993). “[W]e give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses . . . .” (Citation omitted; internal quotation marks omitted.) Briggs v. McWeeny, 260 Conn. 296, 322, 796 A.2d 516 (2002). An appellate court cannot decide matters of credibility, as “[credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude.” (Internal quotation marks omitted.) McCarthy v. Ward Leonard Electric Co., 104 Conn. App. 535, 545, 935 A.2d 189 (2007).

Our thorough review of the record reveals that, although the evidence was in conflict, nonetheless, there was sufficient evidence for the court’s conclusion that the defendant never quitclaimed her interest in the Lynne Terrace property to the plaintiff. We therefore conclude that the court’s finding was not clearly erroneous.

II

The plaintiff next claims that the court improperly failed to render judgment quieting title to the Lynne Terrace property in the plaintiffs name. He argues that because his complaint described the property, the manner in which he acquired title to the property and the person claiming an adverse interest in the property, and that the evidence supported his claim, the court should have quieted title in him. We disagree.

General Statutes § 47-31 (a) provides in relevant part: “An action may be brought by any person claiming title to . . . real . . . property . . . against any person who may claim to own the property ... or to have any interest in the property . . . adverse to the plaintiff ... for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property. ...” (Emphasis added.) A plaintiff seeking to quiet title in a property must “describe the property in question and state the plaintiffs claim, interest or title and the manner in which the plaintiff acquired the claim, interest or title and shall name the person . . . who may claim the adverse estate or interest. ...” (Emphasis added.) General Statutes § 47-31 (b).

The court properly declined to find in favor of the plaintiff on his quiet title claim. As we have discussed in reviewing the plaintiffs first claim, the record contained sufficient evidence for the court to determine that the defendant never quitclaimed her interest in the property to the plaintiff. The plaintiffs and the defendant’s interests in the property, therefore, are not adverse. The parties own the property jointly, as they did at the time of the dissolution of their marriage. The plaintiff, therefore, could not maintain successfully an action to quiet title in the property.

Ill

The plaintiffs final claim is that the court improperly held that he had not established a claim of title to the Lynne Terrace property by adverse possession. Specifically, the plaintiff contends that the court incorrectly determined that he occupied the Lynne Terrace property under the agreement of the parties, and, therefore, his occupation was not hostile to the rights of the defendant. We disagree.

“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. . . . [0]nly in rare instances is [an appellate] court justified in holding, as a matter of law, that [adverse possession] has been established. A trial court’s findings in an adverse possession case, if supported by sufficient evidence, are binding on a reviewing court. . . .

“Where title is claimed by adverse possession, the burden of proof is on the claimant. . . . The essential elements of adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant without license or consent of the owner. . . . Such a possession is not to be made out by inference, but by clear and convincing proof. . . . The doctrine of adverse possession is to be taken strictly.” (Internal quotation marks omitted.) Porter v. Morrill, 108 Conn. App. 652, 666, 949 A.2d 526, cert. denied, 289 Conn. 921, 958 A.2d 152 (2008); see also General Statutes § 52-575.

Again, the record contained sufficient evidence for the court’s conclusion that the defendant never quit-claimed her interest in the property to the plaintiff. There was also sufficient evidence from which the court could have concluded that the plaintiffs presence on the property was with the permission of the defendant. The parties’ agreement, executed on November 2,1977, the day the court rendered judgment of dissolution, provided in part: “The [husband] will vacate the property tonight. The [wife] shall vacate the property within 10 days at which time the [husband] shall resume occupancy. [The husband] shall advance mortgage payments including taxes and insurance which shall be credited as an expense of sale.” The agreement, therefore, provided a basis for the court to conclude that the plaintiff initially occupied the property with the permission of the defendant. The defendant testified as to her reasons for not earlier forcing a sale of the property, which included her intention that her interest in the property pass to her heirs upon her death. Such testimony was consistent with the conclusion that the plaintiff occupied the property under the agreement.

We conclude that there was ample support in the record for the court’s conclusion that the plaintiffs continued occupation of the property was under the agreement of the parties and, thus, with permission of the defendant. Given this conclusion, the court held correctly that the plaintiff had not established the elements of adverse possession, as he could not prove that the defendant had been ousted from possession or that his continued occupation was without the defendant’s consent.

The judgment is affirmed.

In this opinion the other judges concurred.

       The agreement provided in relevant part: “Real estate at Cynthia Lane to be sold for . . . not less than $20,000. The proceeds will be split equally. However, the [husband] will loan sufficient funds of the proceeds to permit [the wife] to obtain $20,000 from the proceeds.”

       In addition, the revised complaint included a third count in which the plaintiff claimed that the defendant had “abandoned all her right, title and interest” in the Lynne Terrace property. The court struck this count on August 7, 2006. The count was not repleaded and is not a subject of the present appeal.


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. CHRISTOPHER BROWN
    (AC 27602)
    Flynn, C. J., and Bishop and Lavery, Js.
    Argued September 18, 2008
    officially released January 13, 2009

      Cameron R. Dorman, special public defender, for the appellant (defendant).

      Melissa Patterson, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Roger S. Dobris, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Christopher Brown, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and carrying a pistol without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that the trial court improperly violated his sixth amendment right of confrontation by allowing testimonial hearsay statements to be admitted. We conclude that the defendant’s sixth amendment rights were violated and, accordingly, reverse the judgment of the conviction and remand the matter for a new trial.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. At approximately 7:30 a.m. on June 17, 2004, the defendant’s brother (victim) was shot in his chest at or near his home. The victim’s home was approximately seventy-five feet from the Hill Health Center in New Haven. After the victim was shot, he ran toward the health center, yelling that he had been shot. Staff at the health center helped the victim lie down outside on the curb and called 911. Officer Alan Turecheck of the New Haven police department arrived at the health center and called for fire, emergency and ambulance assistance. He approached the victim and asked for his name, date of birth and where he lived. The victim answered those questions. Turecheck then asked the victim who had shot him, but the victim responded that he needed a moment because he was in pain. Fire and ambulance personnel arrived and began treating the victim. The victim was then placed in the ambulance to transport him to a hospital emergency room, and Turecheck also got into the ambulance. Turecheck’s stated purpose for going with the victim in the ambulance was to obtain a dying declaration. During the short ambulance ride to the emergency room, Turecheck again asked the victim who had shot him, to which he responded that his brother, the defendant, had shot him. When Turecheck asked the victim what the motive may have been, he answered that he had had an argument with the defendant but became evasive as to what the argument was about.

At trial, the victim refused to testify or state his name. Defense counsel filed a motion in limine to preclude the testimony of Turecheck regarding the victim’s identification of the defendant as the shooter. After an offer of proof, the court ruled that the verbal identification given to Turecheck was hearsay but that it fell within the excited utterance exception to the rule against hearsay. The defendant was convicted of assault in the first degree and carrying a pistol without a permit. This appeal followed.

The defendant claims that the court improperly admitted the victim’s hearsay statements to Turecheck and that these statements were testimonial hearsay that violated the defendant’s confrontation rights under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The state claims that the purpose of the statement was to resolve an ongoing emergency, rather than to collect information that would be relevant to a criminal prosecution. We agree with the defendant. We note at the outset that it is undisputed that the defendant properly preserved this issue for appellate review when he filed a relevant motion in limine and objected at trial.

In State v. Slater, 285 Conn. 162, 939 A.2d 1105, cert. denied, 553 U.S. 1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008), our Supreme Court recently examined Crawford. “Under Crawford v. Washington, supra, 541 U.S. 68, the hearsay statements of an unavailable witness that are testimonial in nature may be admitted under the sixth amendment’s confrontation clause only if the defendant has had a prior opportunity to cross-examine the declarant. Hearsay statements that are nontestimonial in nature are not governed by the confrontation clause, and their admissibility is governed solely by the rules of evidence. Davis v. Washington, 547 U.S. 813, 823-24, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). Thus, the threshold inquiry for purposes of the admissibility of such statements under the confrontation clause is whether they are testimonial in nature. Because this determination is a question of law, our review is plenary. . . .

“In Crawford, the Supreme Court declined to spell out a comprehensive definition of testimonial .... Instead, the court defined a testimonial statement in general terms: A solemn declaration or affirmation made for the purpose of establishing or proving some fact. . . . The court did note, however, three formulations of th[e] core class of testimonial statements . . . [1] ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially ... [2] extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions . . . [and 3] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial . . . .” (Citations omitted; internal quotation marks omitted.) State v. Slater, supra, 285 Conn. 169-70. “[I]n Davis v. Washington, supra, 547 U.S. 822, the United States Supreme Court elaborated on the third category and applied a ‘primary purpose’ test to distinguish testimonial from nontestimonial statements given to police officials, holding: ‘Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.’ ” State v. Smith, 289 Conn. 598, 623, 960 A.2d 993 (2008). Our Supreme Court reaffirmed this precedent by holding that whether a statement is testimonial in nature focuses “on the reasonable expectation of the declarant that, under the circumstances, his or her words later could be used for prosecutorial purposes.” State v. Slater, supra, 172.

In the present case, the stated purpose for Ture-check’s presence in the ambulance with the victim was so that he could obtain a dying declaration. This is precisely a situation that Crawford’s protections intend to remedy. Specifically, in telling Turecheck that his brother had shot him, the victim should have been under the reasonable expectation that this statement would later be used for his brother’s prosecution. The victim was under no present threat of the defendant, as the victim had fled the scene of the shooting and was undergoing treatment for his injuries. He was in the presence of emergency medical staff and a police officer when he made this statement. Further, Turecheck’s additional questioning that sought a motive for the crime indicates that his intent was to seek information for a future prosecution. The interaction between Turecheck and the victim clearly was investigatory, and the answers to Turecheck’s questions were testimonial statements. Because the victim refused to testify in this case, the defendant had no opportunity to cross-examine him on these statements. The court improperly allowed Ture-check to testify in this case about the victim’s statements to him.

“It is well established that a violation of the defendant’s right to confront witnesses is subject to harmless error analysis .... The state bears the burden of proving that the error is harmless beyond a reasonable doubt.” (Citations omitted.) State v. Smith, supra, 289 Conn. 628. The state does not argue in its brief, however, that the admission of the statements to Turecheck, in violation of the defendant’s confrontation clause rights, constituted harmless error beyond a reasonable doubt, and, accordingly, on the basis of the foregoing, we cannot conclude that it was harmless. See State v. Kirby, 280 Conn. 361, 387, 908 A.2d 506 (2006).

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       In a separate case that was consolidated with the charges at issue here, the defendant was charged with murder in violation of General Statutes § 53a-54a. The jury, however, did not reach a unanimous verdict on that charge, and the court declared a mistrial. The defendant accepted a plea agreement that included a guilty plea to the murder charge, and the court sentenced him to thirty years in prison for the murder, which was to run concurrently to a five year sentence for assault in the first degree and a one year sentence for carrying a pistol without a permit. The murder conviction is not at issue in this appeal.

       The defendant also claims that it was improper for the court to deny his motion for a mistrial. Because the first issue is dispositive of his appeal, we need not address this second issue.

       Because we determine that the victim’s statements were testimonial in nature, we do not consider whether they properly were ruled spontaneous utterances. See State v. Slater, 285 Conn. 162, 939 A.2d 1105 (whether hearsay statement properly admitted as spontaneous utterance considered after statement held nontestimonial), cert. denied, 553 U.S. 1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008).


author: LAVINE, J.

text:
    PERCY MEJIA v. COMMISSIONER OF CORRECTION
    (AC 29234)
    Lavine, Beach and Stoughton, Js.

      Argued November 21, 2008
    officially released January 13, 2009

      Sarah F. Summons, special public defender, for the appellant (petitioner).

      Robin S. Schwartz, assistant state’s attorney, with whom, on the brief, was Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

LAVINE, J.

The petitioner, Percy Mejia, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court, Fuger, J., (1) abused its discretion by denying his petition for certification to appeal and (2) improperly found that future petitions for a writ of habeas corpus challenging the quality of representation the petitioner received would constitute an abuse of the writ and be subject to summary dismissal. We dismiss the appeal.

On March 12, 1991, the petitioner shot Fermon Roy Smith in the back. State v. Mejia, 233 Conn. 215, 219, 221, 658 A.2d 571 (1995). The petitioner “was convicted after a jury trial of murder in violation of General Statutes § 53a-54a, unlawful possession of a weapon in a motor vehicle in violation of General Statutes § 29-38, carrying a pistol without a permit in violation of General Statutes § 29-35, and unlawful possession of a sawed-off shotgun in violation of General Statutes § 53a-211. The trial court imposed a total effective sentence of forty-five years incarceration.” State v. Mejia, supra, 216-18. In his direct appeal, in which he was represented by attorney Neal Cone, the petitioner claimed, among other things, that “his conviction for murder was based on insufficient evidence, or was against the weight of the evidence . . . .” Id., 219. Our Supreme Court affirmed the conviction. Id., 243.

In 1996, the petitioner filed a petition for a writ of habeas corpus, alleging that his trial counsel, assistant public defender Susan Brown, had rendered ineffective assistance. Attorney David B. Rozwaski represented the petitioner in that proceeding. The petitioner alleged that he told Brown that “the shooting was an accident. He also told her that he suffered from diabetes and that this condition may have contributed to his actions. After having the petitioner examined by an endocrinologist, Brown determined that the petitioner’s medical condition would not provide the basis for a defense. When Brown informed the petitioner that his diabetes would not constitute a defense, he sought to have her dismissed as his attorney. When his motion was denied, he stopped cooperating with her in the defense of his case. Brown then filed a motion to have the petitioner examined for competency, which was granted. The petitioner was found to be incompetent and was institutionalized for approximately three months. Following a second hearing to determine the petitioner’s competency, the petitioner was found to be competent to understand the nature of the charges and to aid in his defense.” Mejia v. Commissioner of Correction, 48 Conn. App. 230, 232, 716 A.2d 894, cert. denied, 245 Conn. 902, 719 A.2d 1163 (1998). The habeas court, W. Sullivan, J., found that the petitioner had failed to demonstrate that Brown’s representation was deficient or prejudicial to the petitioner and therefore dismissed the petition for a writ of habeas corpus. Id., 231-32.

In affirming the judgment of the first habeas court, this court stated that “[a]t no time during the habeas hearing did the petitioner show that there was anything [Brown] could have done to obtain a different result. The petitioner failed even to suggest what evidence could or should have been offered in support of a defense of insulin shock. Moreover, the petitioner presented no evidence during the habeas hearing to show that his diabetes or his medications were in any way a factor in the murder.” Id., 233.

The petitioner, represented by attorney Patrice A. Cohan, filed a second petition for a writ of habeas corpus in 1997. Mejia v. Commissioner of Correction, Superior Court, judicial district of Hartford, Docket No. CV-97-0568110-S (May 12, 1999). The respondent, the commissioner of correction, filed a motion to dismiss the second petition, alleging that the second petition was a successive petition and constituted an abuse of the writ. Prior to the hearing on the motion to dismiss, the petitioner withdrew the petition.

On November 29, 2001, the petitioner, acting pro se, filed a third petition for a writ of habeas corpus. Mejia v. Commissioner of Correction, 98 Conn. App. 180, 184, 908 A.2d 581 (2006). Attorney Shawn L. Council, who was appointed to represent the petitioner, filed an amended petition on behalf of the petitioner. In the amended petition, the petitioner alleged that he received ineffective assistance from Brown, from Kenneth Simon, who had been substituted as trial counsel, and from Cone, Rozwaski and Cohan. The respondent responded to the third petition claiming that the second, third and fourth counts should be dismissed due to the petitioner’s having withdrawn his second petition for a writ of habeas corpus. Id., 185. After hearing the arguments of the parties, the court, White, J., dismissed “all of the petitioner’s claims. With respect to the claims against Brown and Simon, the court concluded that these either were, or could have been, raised in his prior petitions, and therefore constituted an abuse of the writ. Regarding the claims made against the other attorneys who had represented the petitioner at various proceedings, the court determined that the failure to establish that Brown and Simon were ineffective foreclosed the claims against subsequent counsel.” Id. The petitioner filed an appeal following the court’s denial of his petition for certification to appeal. Id.

On appeal, this court concluded that Judge White properly “concluded that the petitioner’s claims relating to the insulin shock defense had been litigated previously and constituted an abuse of the writ and were res judicata. [Judge White] further determined that with respect to the noninsulin shock claims of ineffective assistance against Brown and Simon, the petitioner failed to meet the cause and prejudice test as a threshold to review of these claims.” Id., 187. This court also concluded that the claim as to Cohan was properly dismissed. Id., 198. With regard to the claims against Cone and Rozwaski, this court concluded that those claims were newly alleged and that the petitioner was entitled to a hearing with respect to them. Id., 191, 193. The claims pertaining to Cone and Rozwaski were remanded for further proceedings. Id., 198.

On remand, following a hearing, Judge Fuger rendered an oral decision. With respect to the allegations that Rozwaski’s representation of the petitioner in the first petition for a writ of habeas corpus was deficient for failing to inform the sentencing court, Freed, J., that the petitioner was taking the medication Tegretol, Judge Fuger concluded that “assuming that the failure to adequately advise and specifically advise Judge Freed that the petitioner was taking Tegretol is some sort of deficient performance, there was no evidence before this court as to what effect, if any, the ingestion of this medication might produce. It is the petitioner’s burden to demonstrate that there is a reasonable probability that the result would have been different . . . ,” The petitioner therefore could not prevail on his claims against Rozwaski under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

The allegations of ineffective assistance of counsel against Cone were premised on a footnote in the petitioner’s direct appeal. On direct appeal, the petitioner claimed, in part, that “there was insufficient evidence to support his conviction of murder or, in the alternative, that the conviction of murder was against the weight of the evidence.” (Emphasis added.) State v. Mejia, supra, 233 Conn. 222-23. Our Supreme Court noted: “We do not address the [petitioner’s] claim that the conviction was against the weight of the evidence because this claim is not briefed adequately for appellate review.” Id., 223 n.13. Judge Fuger found that assuming that the footnote “is evidence of deficient performance, there is no evidence before this court that can possibly lead to a finding of prejudice. Indeed, all the available evidence in this habeas case clearly and conclusively points to guilt on the part of the petitioner. Therefore, far from being a conviction against the weight of the evidence, it would appear that the conviction is solidly and totally supported by the evidence, leading to the conclusion that even had the issue been adequately briefed, it would have been to no avail; hence, no prejudice to the petitioner.”

The habeas court denied the petition for certification to appeal, and the petitioner appealed to this court.

I

The petitioner’s first claim is that the habeas court abused its discretion by denying his petition for certification to appeal from the denial of his third petition for a writ of habeas corpus. We disagree.

“Faced with the habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the [denial] of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must prove that the decision of the habeas court should be reversed on the merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Wright v. Commissioner of Correction, 111 Conn. App. 179, 181-82, 958 A.2d 225 (2008), cert. denied, 290 Conn. 904, 962 A.2d 796 (2009).

“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 violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Griffin v. Commissioner of Correction, 97 Conn. App. 200, 202, 903 A.2d 273, cert. denied, 280 Conn. 922, 908 A.2d 543 (2006). To prevail on a claim of ineffective assistance of counsel, the petitioner must satisfy both prongs of the test established in Strickland v. Washington, supra, 466 U.S. 668. “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.” (Internal quotation marks omitted.) Wright v. Commissioner of Correction, supra, 111 Conn. App. 183.

On the basis of our review of the record, the briefs and arguments of the parties, we conclude that the habeas court did not abuse its discretion when it denied the petition for certification to appeal. We agree with the court that assuming, without deciding, that Cone and Rozwaski rendered ineffective assistance, the petitioner failed to demonstrate that he was prejudiced thereby and how the outcome would have been different, save for counsels’ deficient performance. The petitioner failed to show how his ingesting Tegretol affected him or how providing that information to Judge Freed at the time of sentencing would have resulted in a different outcome. The petitioner also has failed to demonstrate how Cone’s failure to brief adequately the claim that the petitioner’s conviction was against the weight of the evidence would have produced a different outcome on direct appeal. See footnote 5. The petitioner, therefore, has failed to demonstrate that the denial of his petition for certification to appeal is debatable among jurists of reason or that a court could resolve his claims in a different manner.

II

The petitioner’s second claim is that the habeas court’s finding that “any further habeas petitions seeking to challenge the quality of representation received by the petitioner in this matter will constitute an abuse of the writ and be subject to summary dismissal” was plain error and not in compliance with General Statutes § 52-470 (a). The respondent has addressed this claim by arguing that “[although the court’s comments appear, at first blush, to constitute a ruling, they actually are dicta with cautionary value to the petitioner only.” We agree with the respondent that the court’s comments did not constitute a ruling.

A court will not resolve a claimed controversy on the merits unless it is satisfied that the controversy is justiciable. See State v. Nardini, 187 Conn. 109, 111-12, 445 A.2d 304 (1982). “Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant.” (Internal quotation marks omitted.) Seymour v. Region One Board of Education, 261 Conn. 475, 481, 803 A.2d 318 (2002). Justiciability consists of standing, ripeness and mootness. See Esposito v. Specyalski, 268 Conn. 336, 346-47, 844 A.2d 211 (2004).

An issue is not ripe if it presents a hypothetical injury or a claim that is contingent on the happening of some event that has not, and indeed, may not, transpire. Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 626, 822 A.2d 196 (2003). The claim raised by the petitioner is contingent on his filing a petition for a writ of habeas coipus in the future. The court’s comments as to any future petition for a writ of habeas corpus the petitioner may file have no bearing on the denial of the petitioner’s third petition for a writ of habeas corpus, which is the underlying basis for the current appeal. The claim, therefore, is not ripe, and we may not adjudicate it.

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner thereafter filed a petition for sentence review. The sentence review division of the Superior Court affirmed the sentence, stating: “In reviewing the sentence imposed by the court, we find that it was way below the maximum that could be given by the court. When considering the violence of the act of murder and taking into consideration the criminal history of the petitioner, we find . . . the sentence imposed not to be disproportionate and appropriate when compared with the mandates of Practice Book § 942 [now § 43-28].” State v. Mejia, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CR-91-83124 (November 26, 1996).

       See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (articulating two-pronged test applicable to claims of ineffective trial counsel).

       Although Brown did not represent the petitioner at his sentencing hearing, the petitioner alleged that Brown provided ineffective assistance by failing to provide relevant and vital information to substitute counsel. After the petitioner was convicted, he stopped cooperating with Brown and filed a grievance against her. Substitute counsel, Kenneth W. Simon, was then appointed to represent the petitioner. Mejia v. Commissioner of Correction, supra, 48 Conn. App. 233. The habeas court’s judgment that Brown did not provide ineffective assistance of counsel was affirmed by this court. Id.

       See Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001) (petitioner must satisfy cause and prejudice standard to overcome claim of procedural bypass).

       Moreover, Judge Fuger found that “[gjiven that the petitioner was facing a potential seventy-five years in prison for what can only be characterized as a cold-blooded murder, the fact that Judge Freed sentenced him to only forty-five years is a tribute to the advocacy of attorney Simon’s representation. Any assumption that there might have been an effect of advising Judge Freed as to the petitioner’s being on Tegretol would be pure speculation. This court, therefore, sees nothing wrong with the performance of attorney Simon. Consequently, the decision by attorney Rozwaski not to pursue a claim of ineffective assistance of counsel against attorney Simon is sound legal strategy and hardly any evidence of being ineffective.”

       We also note that our Supreme Court did not agree with the petitioner’s constitutional claim that he was convicted on the basis of insufficient evidence. See State v. Mejia, supra, 233 Conn. 222-25.