text:
    JOSE J. MARTINEZ v. COMMISSIONER OF CORRECTION
    (AC 34428)
    Bear, Keller and Peters, Js.

      Argued October 18
    officially released December 24, 2013

      Robert T. Rimmer, assigned counsel, for the appellant (petitioner).

      Sarah Hanna, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Adrienne Maciulewski, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

KELLER, J.

The petitioner, Jose J. Martinez, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly rejected his claims that his trial counsel, Attorney Howard A. Lawrence, rendered ineffective assistance by failing to (1) move to dismiss the underlying criminal charge for lack of jurisdiction because a hearing in probable cause was not held within sixty days of the filing of the information as required by General Statutes § 54-46a, (2) seek a special credibility instruction as to the testimony of jailhouse informants, and (3) explain meaningfully to the petitioner the state’s final plea offer. We disagree, and, accordingly, affirm the judgment of the habeas court.

This case arises from the petitioner’s conviction in 2003 of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a. The following facts and procedural history are relevant to the resolution of this appeal. “The [petitioner] and the victim, Hector Pacheco, sold heroin in the area of Poplar Street in New Haven. On the evening of September 2, 1996, the [petitioner] and the victim had a loud argument concerning the [petitioner’s] intention to sell drugs at a location used by the victim. The victim told the [petitioner] that ‘it wasn’t going to happen,’ and the [petitioner] became upset.

“The next morning, at approximately 9:30 a.m., the victim and the [petitioner] had a second argument, and the victim reiterated his position that he would prevent the [petitioner] from seizing his location. The [petitioner] then left the area but returned later that morning. He told the victim, T told you I’d be back,’ and drew a handgun from the inside of his pants. The [petitioner] shot the victim and fled from the area while the victim was taken to Yale-New Haven Hospital, where he subsequently died. Thomas Gilchrist, apathologistinthe chief medical examiner’s officer, performed an autopsy and determined that a gunshot wound to the chest and abdomen caused the victim’s death.

“Following an investigation, the police obtained an arrest warrant but were unable to locate the [petitioner] for several years. After shooting the victim, the [petitioner] fled to Philadelphia, Pennsylvania, and used a false name and date of birth to escape discovery. While using the alias ‘Edwin Acevedo,’ the [petitioner] was arrested on unrelated charges and placed in custody in 1999.

“The [petitioner’s] identity eventually was discovered, and he was returned to Connecticut.” (Footnote omitted.) State v. Martinez, 95 Conn. App. 162, 164-65, 896 A.2d 109, cert. denied, 279 Conn. 902, 901 A.2d 1224 (2006). Subsequently, the petitioner was first arraigned in the New Haven judicial district on August 24, 2001, at which time he was twenty-one years old, and the case was transferred to the adult part A criminal docket. On October 19, 2001, the petitioner, who was fifteen years and eleven months old at the time the crime was committed, appeared for the purposes of commencing a hearing in probable cause. There, it was discovered that the statutory procedures for initiating criminal procedures against a minor had not been observed. Therefore, in accordance with General Statutes § 46b-133 (b), the court, Blue, J., ordered the case to be transferred to the Superior Court for Juvenile Matters (juvenile court). The petitioner appeared before the juvenile court on October 24, 2001, where, on the basis of the charges and his age at the time of the offense, the case automatically was transferred back to the adult part B criminal docket pursuant to General Statutes (Rev. to 2001) § 46b-127. On the same day, October 24, 2001, the petitioner was arraigned anew and his case was transferred to the adult part A criminal docket. The court held the petitioner’s probable cause hearing on November 2, 2001, and November 26, 2001.

The petitioner’s first trial resulted in a mistrial because the jury could not reach a unanimous verdict. Id., 166 n.2. After a second jury trial, the petitioner was convicted of manslaughter in the first degree with a firearm. Id., 166. The court, Hon. Ronald J. Fracasse, judge trial referee, sentenced the petitioner to forty years imprisonment, suspended after thirty years, followed by five years probation. Id. Lawrence represented the petitioner at all relevant times throughout the two trials. Following the petitioner’s direct appeal, this court affirmed the judgment of conviction. Id. This habeas action followed.

The petitioner filed two habeas petitions, on September 6,2006, and March 31,2010, following his conviction and direct appeal. The respondent, the commissioner of correction, moved to consolidate the petitions, which the court, Fuger, J., granted. On June 29, 2011, the petitioner filed an amended petition that alleged that the performance of his trial counsel was ineffective in several ways. Specifically, the petitioner claimed, inter alia, that Lawrence rendered deficient representation because he failed to (1) move to dismiss for lack of jurisdiction because a hearing in probable cause was not held within sixty days of the filing of the information as required by § 54-46a, (2) seek a special credibility instruction as to the testimony of jailhouse informants, and (3) explain meaningfully and adequately to the petitioner the state’s final plea offer.

Following a trial at which both the petitioner and Lawrence testified, the habeas court, Cobb, J., issued its memorandum of decision denying the amended petition on all counts. With respect to the petitioner’s first two claims, the habeas court concluded that the petitioner had failed to produce any evidence establishing that Lawrence’s reasons not to move to dismiss or to request a jailhouse informant instruction were unreasonable, and, therefore, that the petitioner had failed to meet his burden of proving that Lawrence’s representation was deficient. Also, the habeas court credited Lawrence’s testimony over that of the petitioner and found that Lawrence meaningfully had explained the state’s final plea offer to the petitioner in a manner that the petitioner could understand. The court granted the petition for certification to appeal on February 27, 2012. Additional facts will be set forth as necessary.

We initially set forth the standard of review and legal principles that guide our analysis of the petitioner’s claims of ineffective assistance of counsel. “[I]n 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. . . . We note, also, that [i]t is well established that a reviewing court is not in the position to make credibility determinations. . . . This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Citation omitted; internal quotation marks omitted.) Smith v. Commissioner of Correction, 121 Conn. App. 85, 92, 994 A.2d 317, cert. denied, 297 Conn. 921, 996 A.2d 1193 (2010).

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel .... 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. . . .

“The first component of the Strickland test, generally referred to as the performance prong, requires that the petitioner show that counsel’s representation fell below an objective standard of reasonableness. ... In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense, after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]oun-sel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. . . .

“Even if a petitioner shows that counsel’s performance was deficient, the second prong, or prejudice prong, requires that the petitioner show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Grant v. Commissioner of Correction, 86 Conn. App. 392, 397-98, 861 A.2d 1191 (2004), cert. denied, 273 Conn. 903, 868 A.2d 744 (2005).

Mindful of these guiding principles, we address the petitioner’s three claims of ineffective assistance of counsel in turn.

I

The petitioner first claims that the court erred in concluding that Lawrence did not render deficient performance by failing to move to dismiss the underlying criminal case for lack of jurisdiction because a hearing in probable cause was not held within sixty days of the filing of the information as required by § 54-46a. We are not persuaded.

At the commencement of the habeas trial, the petitioner’s habeas counsel stated that no evidence would be presented on this probable cause issue because the claim only required legal argument. The petitioner essentially argues that determining when the sixty day limitation period commenced—either on August 24, 2001, when the petitioner was first arraigned, or October 24, 2001, upon his transfer from juvenile court to the regular criminal docket—is dispositive of whether Lawrence rendered ineffective assistance of counsel. The petitioner contends that if the sixty day period commenced on August 24, 2001, Lawrence’s failure to move to dismiss necessarily constituted ineffective assistance of counsel because “there could be no possible strategic reasons to [forgo] a motion to dismiss.” We are not persuaded.

Even if we assume the correctness of the petitioner’s proposition that the sixty day limitation period commenced on August 24, 2001, the petitioner has not satisfied his burden of demonstrating that Lawrence’s performance was deficient. As we noted, with regard to the performance prong of Strickland, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Internal quotation marks omitted.) Grant v. Commissioner of Correction, supra, 86 Conn. App. 398. “The law presumes that counsel is competent until evidence has been introduced to the contrary. Strickland v. Washington, [supra, 466 U.S. 689]. It is elementary jurisprudence that the determination of whether counsel’s conduct was ineffective is a peculiarly fact bound inquiry.” Lapointe v. Commissioner of Correction, 67 Conn. App. 674, 679, 789 A.2d 491, cert. denied, 259 Conn. 932, 793 A.2d 1084 (2002). Moreover, “[i]t is well established that a petitioner in a habeas proceeding cannot rely on mere conjecture or speculation to satisfy either the performance or prejudice prong [of Strickland] but must instead offer demonstrable evidence in support of his claim.” (Internal quotation marks omitted.) Lopez v. Commissioner of Correction, 142 Conn. App. 53, 59, 64 A.3d 334 (2013).

In the present case, we agree with the habeas court that the petitioner did not overcome the presumption that under the circumstances, Lawrence rendered proper counsel by not moving to dismiss. The petitioner, by relying solely on his pretrial brief and the transcripts of the underlying proceedings in support of what he contends is a purely legal claim, failed to present the habeas court with any factual or evidentiary basis to determine whether Lawrence’s performance, in fact, was deficient. Although Lawrence testified at the habeas trial, he was not asked about nor did he testify as to his reasons for not moving to dismiss. The record is completely devoid of any evidence by which the habeas court could have concluded that Lawrence’s challenged action was a result of incompetence or sound strategic strategy. Indeed, to the contrary, the record suggests only possible strategic reasons why Lawrence could reasonably have decided not to move to dismiss on the ground of an untimely hearing in probable cause. For instance, it is not clear whether there was any legal basis upon which Lawrence could file a motion to dismiss; see footnote 5 of this opinion; and even if there was such a basis, Lawrence may have, in developing his trial strategy, decided that the petitioner would not have benefited from a dismissal.

Despite the petitioner’s bald, unsupported assertion that “there could be no possible strategic reasons to [forgo] a motion to dismiss,” the petitioner bore the burden of overcoming the contrary presumption, that “under the circumstances, the challenged action might be considered sound trial strategy.” (Internal quotation marks omitted.) Grant v. Commissioner of Correction, supra, 86 Conn. App. 398. As the habeas court stated, “[t]rial counsel may have made a mistake in not pursuing [this matter] further or he [may] have decided for tactical reasons not to pursue [this claim]. Without evidence on [this issue], the court cannot determine the appropriateness of counsel’s conduct and the petitioner cannot prevail on [this claim].” Recognizing that there is a strong presumption that the strategy employed by trial counsel is reasonable and the result of the exercise of professional judgment, we agree with the habeas court and conclude that the petitioner has not demonstrated that Lawrence’s failure to file a motion to dismiss constituted ineffective assistance of counsel.

II

The petitioner next claims that Lawrence rendered ineffective assistance of counsel by failing to request a special credibility instruction as to the testimony of three jailhouse informants. Again, at the habeas trial, the petitioner’s counsel stated that this claim only required legal argument and relied entirely on his pretrial brief and underlying transcripts. This claim merits little discussion without further factual evidence.

The following additional facts and procedural history are relevant to our resolution of this claim. At the petitioner’s second trial, the state called three jailhouse informants to testify: Juan Torres, Lenny Ramos, and Martel Arrington. Prior to charging the jury, the court held an off-the-record charging conference, the details of which are unknown. Following the charging conference, Lawrence indicated that the parties were in agreement with respect to the charges to be given. The court subsequently charged the jury.

Our Supreme Court has stated: “[A] habeas proceeding provides a superior forum for the review of a claim of ineffective assistance because it provides the opportunity for an evidentiary hearing in which the attorney whose conduct is challenged may testify regarding the reasons he did not contest the instruction at trial. . . . A habeas proceeding thus enables the court to determine whether counsel's failure to take exception or otherwise to participate in formulating the instructions was due to mere incompetence or to counsel’s trial strategy, which would not be possible in a direct appeal in which there is no possibility of an evidentiary hearing.” (Citation omitted.) State v. Kitchens, 299 Conn. 447, 496-97, 10 A.3d 942 (2011).

The petitioner did not present any evidence with respect to this claim at the habeas trial. The record before us is devoid of any explanation as to why the petitioner’s trial counsel agreed to the aforementioned jury instruction and did not file a request that the court give the jury a special credibility instruction as to the testimony of jailhouse informants. Again, the habeas court noted the dearth of evidence on the issue of the failure to request a jailhouse informant instruction. It stated: “Trial counsel may have made a mistake in not pursuing [this matter] further or he [may] have decided for tactical reasons not to pursue [this claim]. Without evidence on [this issue], the court cannot determine the appropriateness of counsel’s conduct and the petitioner cannot prevail on [this claim].” In reliance on the rationale set forth in part I of this opinion, we agree.

Ill

The petitioner’s final claim is that Lawrence’s representation was deficient because he failed to explain meaningfully to the petitioner the state’s final plea offer. The petitioner offers three compounding reasons to support his contention that Lawrence failed to explain meaningfully the final plea offer. First, the petitioner asserts that although Lawrence conveyed the final plea offer to the petitioner, he “provided no meaningful explanation of this plea offer beyond the number of years offered.” Second, the petitioner argues that Lawrence did not discuss the plea offer with the petitioner with respect to the effect of the state’s intention to call witnesses at the second trial who were not called at the first trial. Finally, the petitioner argues that any out-of-court explanations that Lawrence did proffer were in English, whereas the petitioner required the assistance of a Spanish language interpreter, which Lawrence failed to provide. We disagree.

The following additional facts, adduced at the petitioner’s habeas trial, are relevant to our resolution of this claim. At the habeas trial, the court heard testimony from the petitioner, Lawrence, and Suzanne Silengo, a teacher at the Cheshire Correctional Facility, where the petitioner was incarcerated at the time of the habeas trial. The petitioner testified that he was bom in Puerto Rico and moved to the United States when he was “about 10 years old.” Although the petitioner attended public school in New Haven, where he took English classes, through the ninth grade, he maintained that he could not converse in English and knew only a few words at the time of his criminal trials. Silengo testified in support of the petitioner’s version of events. She stated that the petitioner approached her in January, 2005, while he was incarcerated, and asked to be admitted to the National External Diploma Program in order to obtain his high school diploma. Silengo further testified that at that time, two years after the petitioner’s criminal trials and conviction, his proficiency in English was not sufficiently advanced for him to enter the program, as his literacy, she estimated, was at a third grade level. In opposition, Lawrence, who had represented the petitioner for more than, two years, testified that “[i]t was clear that [the petitioner] understood me,” and that when they conversed, “I was certain that [the petitioner] understood what I said, and we spoke slowly.” Also, Lawrence averred that the petitioner never asked for an interpreter to be present during their out-of-court meetings.

Prior to the petitioner’s first trial, the state’s only plea offer to the petitioner was for forty years incarceration, which the petitioner rejected. Following the mistrial, and prior to the second trial, the state made two subsequent plea offers, the first for twenty-five years, and the second for twenty years. The petitioner testified that Lawrence presented the twenty-five year and twenty year offers to him, but they did not have any substantive discussion about the pleas beyond the number of years offered. The petitioner further maintained that Lawrence represented to him that “[the petitioner] was going to be fine, that we were going to trial.” Lawrence, however, testified that he advised the petitioner to reject the twenty-five and twenty year offers, and explained his rationale, specifically, that on the basis of his experience, and because the first trial resulted in a mistrial, the terms of the plea deal would improve as trial drew nearer. The petitioner followed Lawrence’s advice and rejected the twenty-five and twenty year plea offers.

The state eventually made a final plea offer to the petitioner of fifteen years with the right to argue for less, but not less than ten years. The petitioner testified that Lawrence did not discuss the final plea offer with him and that “he only gave me the offer and told me not to worry.” He further testified that he relied on the advice of Lawrence, who “told [him] we were going to go to trial . . . .” Lawrence, in contrast, testified that he advised the petitioner that the final plea offer “was the offer to take,” and explained the significant risk of going to trial a second time—a possible forty-five year sentence—after the state had had a practice trial, i.e., the first trial resulting in a mistrial. Additionally, Lawrence testified that the petitioner expressed the belief that, because the first trial had resulted in a mistrial, he “would do at least as well” as in the first trial. Lawrence testified that the petitioner was adamant about going to trial despite Lawrence’s recommendation to accept the plea.

After Lawrence initially received and discussed the final plea offer with the petitioner, he learned that the state intended to call different witnesses at the second trial than it called at the first trial. Specifically, at the first trial, the state called three eyewitnesses—Margie Marquez, Mary Rea and Yamada Hernandez—and a jailhouse informant, Torres. At the second trial, the state intended to call only Hernandez and Torres, as well as two additional jailhouse informant witnesses, Ramos and Arrington. Additionally, Lawrence testified that the state planned to call an eyewitness, Nilda Santos, who claimed to have seen the underlying events and called 911 but could not be located at the time of the first trial. Lawrence maintains that upon learning of the new witnesses, he informed the petitioner of these new witnesses and entered into a renewed discussion with the petitioner, again advising him to accept the fifteen year plea offer. He testified that upon receipt of the state’s witness fist, he “went over with [the petitioner] who they were and what they were likely to say,” including new testimony introducing evidence that the motive behind the shooting was an argument related to the sale of drugs. He further testified that, upon showing the petitioner the witness list, the petitioner indicated that he knew the three jailhouse informant witnesses, as well as Hernandez, whom he knew “from the neighborhood.” Lawrence averred that he was “[m]ilitant” with respect to his renewed recommendation that the petitioner accept the fifteen year plea offer, and that he explained the risk of the additional eyewitness, Santos, testifying. In contrast, the petitioner testified that Lawrence did not inform him of the new witnesses and evidence the state planned to introduce, and that he “thought the same people who testified in the first trial would testify in the second trial.” Moreover, he maintained that if he had known the witnesses and evidence would be different in the second trial, he would have taken the final plea offer.

We find no fault in the court’s determination that Lawrence meaningfully explained the state’s final plea offer to the petitioner. “An attorney has an obligation to inform his client of any plea offers, and to meaningfully explain those offers. . . . Under certain circumstances, failing to advise a client to accept a plea offer, rather than to go forward with a trial, may amount to ineffective assistance. . . . However, the ultimate decision whether to plead guilty must be made by the defendant. . . . And a lawyer must take care not to coerce a client into either accepting or rejecting a plea offer. . . . Counsel's conclusion as to how best to advise a client in order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea enjoys a wide range of reasonableness because [representation is an art . . . and [t]here are countless ways to provide effective assistance in any given case . . . .” (Internal quotation marks omitted.) Smith v. Commissioner of Correction, supra, 121 Conn. App. 95. “Counsel rendering advice in this critical area may take into account, among other factors, the defendant’s chances of prevailing at trial, the likely disparity in sentencing after a full trial as compared to a guilty plea (whether or not accompanied by an agreement with the government), whether defendant has maintained his innocence, and the defendant’s comprehension of the various factors that will inform his plea decision.” (Internal quotation marks omitted.) Edwards v. Commissioner of Correction, 87 Conn. App. 517, 524-25, 865 A.2d 1231 (2005).

The petitioner’s claim on appeal that Lawrence did not explain meaningfully the final plea offer is premised on the notion that the court improperly credited Lawrence’s testimony and rejected the petitioner’s version of events. That is, the court’s finding that the petitioner had not proven his claim of ineffective assistance of counsel is based on a credibility determination. “[I]t is well established that a reviewing court is not in the position to make credibility determinations. . . . This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) Smith v. Commissioner of Correction, supra, 121 Conn. App. 92.

We conclude that the habeas court’s findings—that Lawrence meaningfully explained the state’s final plea offer, informed the petitioner of the new witnesses, explained the risks of going to trial, and did so in a manner that the petitioner could understand—were not clearly erroneous. Indeed, the factual findings and conclusions in the habeas court’s memorandum of decision were supported fully by the testimony at trial. The court specifically stated that it found the petitioner’s testimony that Lawrence, “an experienced criminal trial attorney,” did not discuss the offer with the petitioner, inform him of the new witnesses or advise him of the risks of going to trial to be “incredible.” Instead, the court credited Lawrence’s testimony to the contrary. On the basis of these credibility determinations, the court found that the petitioner had failed to prove that Lawrence rendered deficient performance by failing to explain meaningfully the state’s final plea offer. Confronted with conflicting testimony from the petitioner and Lawrence, the court credited the testimony of Lawrence. The habeas court is in the best position to assess the demeanor and credibility of the witnesses before it and, on appeal, we defer to the court’s assessment. Smiths. Commissioner of Correction, supra, 121 Conn. App. 94. In this instance, the record amply supports the court’s conclusions that Lawrence meaningfully explained the plea offer to the petitioner, and that the petitioner adequately understood Lawrence’s explanation. On the basis of the facts reasonably found, and because the petitioner’s claim is premised entirely on the habeas court’s credibility determinations, the petitioner is unable to demonstrate on appeal that the court improperly denied his amended petition for a writ of habeas corpus.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-133 (b) provides in relevant part: “Whenever a child is brought before a judge of the Superior Court, such judge shall immediately have the case proceeded upon as a juvenile matter. . . .”

       General Statutes (Rev. to 2001) § 46b-127 (a) provides in relevant part: “The court shall automatically transfer from the docket for juvenile matters to the regular criminal docket of the Superior Court the case of any child charged with the commission of a . . . class A or B felony . . . provided such offense was committed after such child attained the age of fourteen years and counsel has been appointed for such child if such child is indigent. . . .”

       In the second count of his amended petition, the petitioner alleged ineffective assistance of appellate counsel. In the third count, the petitioner alleged actual innocence. The petitioner’s actual innocence claim was withdrawn at trial. The petitioner has not appealed from the court’s judgment with respect to the efficacy of appellate counsel’s performance.

       General Statutes § 54-46a (b) provides in relevant part: “Unless waived by the accused person or extended by the court for good cause shown, such preliminary hearing [in probable cause] shall be conducted within sixty days of the filing of the complaint or information in Superior Court. . . .”

       This proposition itself is questionable. In In re Prudencio O., 229 Conn. 691, 698, 643 A.2d 266 (1994), our Supreme Court observed that “[i]n reviewing the statutes governing the transfer of juveniles to the regular criminal docket, we have recognized that the probable cause hearing mandated by § 54-46a is afforded a child after his case has been transferred to the regular criminal docket.” (Emphasis in original.) The court further concluded that the statutory requirement that a hearing in probable cause shall be held within sixty days of the filing did not become effective until the juvenile had been transferred to the regular criminal docket and the information was filed. Id., 702.

       Even if a motion to dismiss had been filed and granted on the ground that the hearing in probable cause was untimely, the petitioner would have remained incarcerated in connection with an unrelated federal charge. Further, even if the court dismissed the case against the petitioner, the state could have recharged the petitioner. See General Statutes § 54-46a (c) (“[a] determination by the court that there is not probable cause to require the accused person to be put to trial for the offense charged shall not operate to prevent a subsequent prosecution of such accused person for the same offense”).

       In relevant part, the court charged the jury as follows: “In weighing the credibility of a witness, you may consider the fact that the witness has previously been convicted of a felony and give such weight to that fact as you decide is reasonable in weighing the credibility of that witness. . . .
      “In this regard, the testimony of Juan Torres has been convicted of two felonies and that he has agreed with the federal authorities to testify in this trial. In this regard, you have heard testimony that Lenny Ramos has been convicted in the federal court of one felony. In this regard, you have also heard testimony that Martel Arrington has been convicted of two felonies in the state court, robbery in the first degree and larceny in the second, and three felonies in the federal court. Also, you have heard evidence that Martel Arrington has pleaded guilty to a felony in the federal court and is waiting to be sentenced for that crime, and he has agreed with the United States attorney to give substantial cooperation to the state in the prosecution of [the petitioner] in this trial. You may consider this evidence and give such weight to it as you decide is reasonable in weighing his credibility.”

       Moreover, controlling law at the time of the petitioner’s trial was State v. Santiago, 48 Conn. App. 19, 708 A.2d 969, cert. denied, 246 Conn. 901, 719 A.2d 1164 (1998). Under Santiago, a defendant was not entitled to a jury instruction on informant testimony where a witness might have a motive to falsify his or her testimony. Id., 31-32; see also State v. Ortiz, 252 Conn. 533, 561, 747 A.2d 487 (2000) (defendant not entitled to jury instruction that witness may have motive for testifying falsely unless witness is either victim or accomplice). State v. Patterson, 276 Conn. 452, 471, 886 A.2d 777 (2005), which overruled Santiago in part, was not decided until two years after the petitioner’s trial concluded. Id. (defendant entitled to special credibility instruction where jailhouse informant received benefits from state in exchange for cooperation). It is well settled that “counsel’s failure to advance novel legal theories or arguments does not constitute ineffective performance. . . . Nor is counsel required to change then-existing law to provide effective representation. . . . Counsel instead performs effectively when he elects to maneuver within the existing law, declining to present untested . . . legal theories.” (Citations omitted; internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 461-62, 880 A.2d 160 (2005), cert. denied sub norm Ledbetter v. Lantz, 546 U.S. 1187, 126 S. Ct. 1368, 164 L. Ed. 2d 77 (2006).

       The court found that “Lawrence advised the petitioner not to take the offer because it was only five years less than his total exposure on the charges of forty-five years, and Lawrence therefore believed, and advised the petitioner, that he had nothing to lose in going to trial.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MARCUS MOYE v. COMMISSIONER OF CORRECTION
    (AC 34827)
    Lavine, Beach and Keller, Js.

      Argued September 20
    officially released December 24, 2013

      JohnL. Cordani, Jr., assigned counsel, for the appellant (petitioner).

      Sarah Hanna, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Clifton, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Marcus Moye, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. He claims that (1) the court erred in rejecting his claim that his trial counsel was ineffective because of his failure to investigate the case properly and to present an alibi defense, and (2) he was denied effective assistance of counsel when his trial and appellate counsel did not raise a double jeopardy claim. We affirm the judgment of the habeas court.

The following facts, as set forth in this court’s opinion regarding the petitioner’s direct appeal, and procedural history are relevant. On August 3, 2003, at 8 p.m., the victim was found in New Haven fatally shot in the chest. State v. Moye, 112 Conn. App. 605, 606, 963 A.2d 690, cert. denied, 291 Conn. 906, 967 A.2d 1221 (2009). The victim belonged to a gang that had been feuding with another gang, of which the petitioner was a member. Id., 606-607. A police officer observed a man fleeing from the scene on a bicycle and reported his physical characteristics. Id., 606. Another police officer, Dean Reynolds, observed a man, later identified as the petitioner, who matched the physical description provided by the other officer, riding a bicycle in a different location. Id., 606-607. Reynolds is claimed to have mentioned his observation in a police report.

The police questioned a number of possible witnesses in connection with this incident, including Marvin Gore. Id., 607. Gore told police of another incident involving the petitioner: On August 3, 2003, between 7 and 8 p.m., four blocks from the scene of the murder, the petitioner pulled a gun from his pocket and ordered Gore to hand over everything in his pockets. Id. The petitioner struck Gore in the head when Gore responded that he had nothing. Id.

The petitioner ultimately was charged with murder in violation of General Statutes § 53a-54a and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35. He was found guilty on both counts and sentenced to fifty years incarceration. The petitioner’s conviction was affirmed on direct appeal.

In March, 2011, the petitioner filed an amended petition for a writ of habeas corpus in which he claimed that his trial counsel had rendered ineffective assistance by failing to investigate the case properly and failing to present an alibi defense. The habeas court found that the petitioner never told his trial counsel that he had an alibi defense, and accordingly, that trial counsel did not render deficient performance in failing to investigate and present an alibi defense of which he was unaware. The court further determined that even if the petitioner had informed his trial counsel of the alibi defense and trial counsel had acted deficiently, there was no prejudice because there was no reasonable probability that an alibi defense would have been successful. The court denied the petition and granted certification to appeal. This appeal followed.

“When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . The issue, however, of [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard. ... To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment [to the United States constitution], ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied.” (Citation omitted; internal quotation marks omitted.) Toles v. Commissioner of Correction, 113 Conn. App. 717, 721-22, 967 A.2d 576, cert. denied, 293 Conn. 906, 978 A.2d 1114 (2009).

I

The petitioner claims that the habeas court erred in concluding that his trial counsel did not render deficient performance. He argues that “[t]he fundamental question raised by this appeal is: If it is indeed true that [the petitioner] never told [his trial counsel] about his alibi defense, was [trial counsel’s] performance nonetheless deficient for failing to act on Reynolds’ police report?” We decline to review this claim—that trial counsel should have learned of the alibi through Reynolds’ report —because it was not raised in the habeas petition, the report itself was not in evidence, and the habeas court did not decide the issue. See Henderson v. Commissioner of Correction, 129 Conn. App. 188, 198, 19 A.3d 705 (we “will not consider claims not raised in the habeas petition or [not] decided by the habeas court”), cert. denied, 303 Conn. 901, 31 A.3d 1177 (2011).

Because the habeas court’s conclusion regarding deficient performance must stand, we need not address the petitioner’s claim, regarding the prejudice prong. See State v. Lameirao, 135 Conn. App. 302, 327, 42 A.3d 414 (reviewing court may look to performance prong or prejudice prong, and petitioner’s failure to prove either is fatal to claim of ineffective assistance of counsel), cert. denied, 305 Conn. 915, 46 A.3d 117 (2012); see also Leatherwood v. Commissioner of Correction, 105 Conn. App. 644, 647, 938 A.2d 1285, (reviewing court can find against petitioner under either prong of Strickland), cert. denied, 286 Conn. 908, 944 A.2d 979 (2008).

II

The petitioner also claims that he was denied effective assistance of counsel by the failure of his trial and appellate counsel to raise a double jeopardy claim. He argues that he previously had been charged with carrying a revolver without a permit in violation of § 29-35 (a) on August 3, 2003, in New Haven, in connection with the attempted robbery of Gore, and that the charge alleging a violation of § 29-35 (a) had been dismissed. He argues that he has been charged twice under § 29-35 (a) for the incidents occurring on August 3, 2003. The petitioner acknowledges that he raised this double jeopardy issue for the first time on this appeal and seeks review of his unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine.

“Our Supreme Court has held that Golding review is not available for unpreserved claims of error raised for the first time in a habeas appeal. . . . Golding does not grant . . . authority for collateral review and is . . . inapplicable to habeas proceedings .... Accordingly, this court is not bound to consider a claimed error unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” (Citations omitted; internal quotation marks omitted.) Hunnicuttv. Commissioner of Correction, 83 Conn. App. 199, 202-203, 848 A.2d 1229, cert, denied, 270 Conn. 914, 853 A.2d 527 (2004).

The petitioner did not raise the double jeopardy claim in the habeas court, nor did the court rule on it. Accordingly, we decline to review his claim under Golding. For similar reasons, we also decline to review the petitioner’s claim under the plain error doctrine.

The judgment is affirmed.

       The petitioner also claimed in his habeas petition that his trial counsel rendered ineffective assistance by failing to explain properly the likely outcome of the case if it went to trial and failing to present certain witnesses at the time of sentencing. The court dismissed the claim regarding the sentencing and deemed abandoned the claim regarding trial counsel’s failure to explain the likely outcome after a trial. On appeal, the petitioner does not challenge these aspects of the court’s decision.

       The petitioner claims on appeal that Reynolds’ report placed the petitioner a considerable distance from the scene of the homicide at a time reasonably close to that of the homicide.

       The court’s conclusion that trial counsel did not render deficient performance was based on its findings that trial counsel’s testimony that the petitioner did not inform him of his alibi defense was credible and that the petitioner’s testimony to the contrary was not credible. The petitioner notes in his appellate brief that he does not challenge the court’s finding that he did not inform trial counsel of his alibi defense.

       The specific charge apparently had been dismissed as part of a plea bargain.

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond areasonable doubt.” (Emphasis omitted; footnote omitted.) State v. Golding, supra, 213 Conn. 239-40.

       “[T]he plain error doctrine ... is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . [T]he plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 204-205, 982 A.2d 620 (2009).


author: DiPENTIMA, C. J.

text:
    RONNELL BANKS v. COMMISSIONER OF CORRECTION
    (AC 33940)
    DiPentima, C. J., and Beach and Alvord, Js.

      Argued September 26
    officially released December 24, 2013

      Erich H. Gaston, assigned counsel, for the appellant (petitioner).

      Rita M. Shair, senior assistant state’s attorney, with whom were Michael Dearington, state’s attorney, and, on the brief, David Clifton, assistant state’s attorney, for the appellee (respondent).
   Opinion

DiPENTIMA, C. J.

The petitioner, Ronnell Banks, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the denial of his petition was improper because his trial counsel provided ineffective assistance in failing (1) to introduce a police report into evidence and cross-examine witnesses therefrom, and (2) to request a continuance to prepare for the cross-examination of a witness. We affirm the judgment of the habeas court.

Following a jury trial, the petitioner was convicted of the crimes of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and interfering with an officer in violation of General Statutes § 53a-167a (a). In affirming the petitioner’s conviction, this court set forth the following facts. “On July 12, 2006, at approximately 8 p.m., David Eldridge, a police officer assigned to the statewide narcotics task force, was working undercover as a drug buyer in the parking lot of a Shell gasoline station in Meriden. Eldridge was accompanied by a paid ‘confidential witness,’ Anthony Clark, who was also posing as a drug buyer. Eldridge and Clark were sitting in an unmarked Subaru that was outfitted with a device that transmitted an audio feed from within the Subaru to police officers in unmarked vehicles located across the street.

“Clark made eye contact with the [petitioner], who asked him what he wanted. Clark responded that he was looking for a ‘$40 piece,’ indicating a certain quantity of drugs. The [petitioner] told Clark to follow him to the intersection of Hobart and Myrtle Streets. The [petitioner] then drove away from the gasoline station, with Eldridge and Clark following him, and drove toward the stated location. Eldridge and Clark parked the Subaru at the intersection of Hobart and Myrtle Streets, and the [petitioner] drove past them and parked on Hobart Street. The [petitioner] then left his car, and Eldridge and Clark lost sight of him. A few minutes later, the [petitioner] emerged back into view and walked toward the intersection of Hobart and Myrtle Streets. He walked past the parked Subaru, scanned the area and then approached the passenger side window, which was open. The [petitioner] asked Eldridge and Clark what they were looking for, to which Eldridge responded, ‘two twenties,’ which in street vernacular meant 4.4 grams of crack cocaine or, in other words, two $20 bags of crack cocaine. The [petitioner] pulled a plastic bag from his pocket and allowed Clark to select two packets. Each of the packets contained a white rock like substance that, in Eldridge’s training and experience, appeared to be crack cocaine. As the [petitioner] handed the selected bags to Clark, Eldridge handed the [petitioner] two $20 bills. The entire transaction lasted less than one minute.

“Eldridge notified officers who were monitoring the transaction in unmarked vehicles, including a ‘raid van’ and a minivan, that a drug sale had occurred and gave them a description of the [petitioner]. As Eldridge and Clark left the scene in the Subaru, the other officers arrived. The [petitioner] stepped in front of the minivan to cross the street and apparently noticed that the occupants seated inside the minivan were wearing clothing identifying them as state police officers. The [petitioner] began to run down Hobart Street, and the officers ordered him to stop. The [petitioner] disregarded this command and continued running. The officers chased the [petitioner] for approximately one and one-half blocks. The officers briefly lost sight of the [petitioner] but discovered him hiding by a bay window of a residence on Myrtle Street. The [petitioner] engaged in a scuffle with the officers, but eventually the officers were able to handcuff him.” State v. Banks, 117 Conn. App. 102, 104-105, 978 A.2d 519, cert. denied, 294 Conn. 905, 982 A.2d 1081 (2009).

After his unsuccessful appeal, the petitioner filed an amended petition for a writ of habeas corpus alleging that his trial counsel, Howard J. Wicker, provided ineffective assistance because he (1) did not properly cross-examine Clark as to bias or motive based on his pending criminal charges, (2) failed to seek a continuance to prepare for the cross-examination of Clark, (3) failed to make the jury aware of key discrepancies between a police report prepared by Officer Michael Siegler and the testimony of Eldridge and Clark, (4) failed to adequately cross-examine Eldridge and Clark, and (5) failed to hire an investigator.

At the habeas trial, the court was presented, inter alia, with testimony from Eldridge and Clark, a police report and affidavit from Siegler, and an oral stipulation. We note that two separate narratives emerge from the evidence presented in the proceedings. The first was set forth by this court in its decision affirming the judgment of conviction; it describes Eldridge and Clark purchasing drugs from a single seller. The second was set forth in the police report and describes only Eldridge purchasing drugs from two sellers.

The following relevant testimony was elicited at the habeas hearing. Consistent with the first narrative, Eldridge and Clark testified that they were involved jointly in the setup and the completion of the drug transaction. Specifically, they testified that Clark spoke with the petitioner at the gasoline station, who then told Clark to follow him to the intersection of Hobart and Myrtle Streets. After arriving at the intersection, Eldridge and Clark testified that the petitioner walked to the window of their vehicle and sold them drugs. They also testified that they left the area after the sale. Eldridge and Clark further testified that they did not participate in the drafting of the police report. Moreover, Eldridge testified that he met with Siegler after the petitioner’s arrest and recounted for him a sequence of events consistent with the first narrative.

The court admitted the police report into evidence. The report offers a second narrative that is partially inconsistent with the testimony of Eldridge and Clark. According to the report, Eldridge arrived at the gasoline station by himself, and, after a short period of time, was approached by an unknown Hispanic male. Thereafter, the Hispanic male told Eldridge to drive to the intersection of Hobart and Myrtle Streets, and to wait for an individual to deliver a quantity of drugs. That individual, identified as the petitioner, arrived at the intersection, walked directly to Eldridge’s vehicle, and exchanged two packets of crack cocaine for previously recorded funds from the statewide narcotics task force. Upon leaving the area, Eldridge informed officers that he had completed the transaction and that the petitioner was the seller. After the sale, other officers in the area observed the petitioner walk from Eldridge’s vehicle down Hobart Street, at which point they pulled alongside him in unmarked vehicles. Upon seeing the officers exit their vehicles, the petitioner ran down Hobart Street, through yards and over fences. The petitioner was found hiding behind a house on Myrtle Street. Following a physical struggle with officers, the petitioner was arrested. The report notes that no previously recorded funds or drugs were recovered from the petitioner or the area.

In addition to this evidence, an oral stipulation was presented at the start of trial, which the court summarized as follows: “(1) [T]he police report . . . was prepared by Officer Michael Siegler; (2) Officer Siegler signed an affidavit contemporaneously with the police report attesting to its accuracy; [3] Officer Siegler did not testify at the petitioner’s criminal trial; (4) Officer Siegler is presently ill; [and] (5) if called to testify in these proceedings, he would testify that he has no recollection of the events surrounding the petitioner’s arrest or his preparation of the report or affidavit.”

On the basis of this evidence, the court, Bright, J., found that the petitioner had failed to demonstrate prejudice and denied the petition for a writ of habeas corpus. Thereafter, the court granted the petition for certification to appeal. This appeal followed. Additional facts will be provided as necessary.

We begin with the applicable standard of review and relevant principles of law. “The habeas courtis afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. . . . Accordingly, [t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of •witnesses and the weight to be given to their testimony. . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review. . . .

“[I]t is well established that [a] criminal defendant is constitutionally entitled-to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ... As enunciated in Strickland v. Washington, supra, 687, this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel. ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied. ... A court can find against a petitioner, with respect to a claim of ineffective assistance of counsel, on either the performance prong or the prejudice prong, whichever is easier.” (Citation omitted; internal quotation marks omitted.) Thomas v. Commissioner of Correction, 141 Conn. App. 465, 470-71, 62 A.3d 534, cert. denied, 308 Conn. 939, 66 A.3d 881 (2013).

I

The petitioner first claims that the court erred in denying his petition because Wicker, his trial counsel, provided ineffective assistance in failing to introduce the police report into evidence and to cross-examine witnesses therefrom. He argues that had the report been admitted into evidence and used to cross-examine witnesses, it would have discredited the testimony of Eldridge and Clark, which in turn, would have raised a reasonable doubt in the minds of the jurors as to his guilt. We disagree.

In denying this claim, the court concluded that the petitioner failed to meet his burden of proving prejudice under Strickland. Specifically, the court found that the discrepancies between the report and the testimony of Eldridge and Clark were insufficient to prove prejudice. According to the report, Eldridge, acting alone, spoke with a Hispanic male at the gasoline station and then drove to the intersection of Hobart and Myrtle Streets where the petitioner sold him drugs. By contrast, Eldridge and Clark testified that they were together at the gasoline station, when the petitioner told Clark to follow him to the intersection of Hobart and Myrtle Streets, where the petitioner then sold the two of them drags. We agree with the court that the deviations in the report, even had they been presented to the jury, would nevertheless be insufficient to establish prejudice.

“In order to prevail on a claim of ineffectiveness of counsel, the 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. Strickland v. Washington, supra, 466 U.S. 694. [T]he question is whether there is a reasonable probability that, absent the [alleged] errors, the [fact finder] would have had a reasonable doubt respecting guilt. Id., 695.

“In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or the jury. . . . Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Id., 695-96. [T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. Id., 696. The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Id., 686.” (Internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 688-89, 51 A.3d 948 (2012).

The police report would not have had a pervasive effect on the inferences to be drawn from the evidence. At the criminal trial, the petitioner’s defense essentially was one of mistaken identity. The petitioner presented witnesses who testified that he was visiting his child’s babysitter on Hobart Street at the time of the drug sale. The report would not have bolstered the credibility of those witnesses and would not have corroborated their testimony. In fact, the report would have implicated the petitioner in the drug sale. The petitioner also highlighted the fact that previously recorded funds or drugs were not recovered from him or the surrounding area. The report only would have been cumulative of other evidence in the record establishing this fact. See Fisher v. Commissioner of Correction, 45 Conn. App. 362, 367-68, 696 A.2d 371 (insufficient showing of prejudice even though evidence not presented at criminal trial would have raised some doubts), cert. denied, 242 Conn. 911, 697 A.2d 364 (1997).

Furthermore, two additional members of the statewide narcotics task force testified for the state at the criminal trial. One of the witnesses, state police Trooper Sean Krauss, corroborated portions of the testimony from Eldridge and Clark. Krauss testified that he observed the petitioner standing by the passenger side window of the vehicle driven by Eldridge and Clark at the time of the drug sale. The collective voices of Krauss, Eldridge, and Clark likely would have overpowered the singular voice of the report. See Madagoski v. Commissioner of Correction, 104 Conn. App. 768, 776, 936 A.2d 247 (2007) (strength of state’s case is significant factor in determining whether alleged error caused prejudice), cert. denied, 286 Conn. 905, 944 A.2d 979 (2008).

Additionally, the verdict was supported by other unaffected evidence from which to infer guilt. The jury heard that the petitioner ran away from police officers who were shouting orders to stop. See State v. Banks, supra, 117 Conn. App. 105. It also heard that the petitioner was discovered hiding under a bay window. Id. Finally, it heard that the petitioner engaged in a scuffle with officers before his arrest. Id. This evidence of the petitioner’s conduct likely raised an inference of consciousness of guilt; see, e.g., State v. Figueroa, 257 Conn. 192, 196-97, 777 A.2d 587 (2001); and thus, could have provided additional support for the verdict.

After considering the totality of the evidence before the jury, the petitioner has failed to show that there is a reasonable probability that, but for Wicker’s alleged deficient performance, the result of the proceeding would have been different. Accordingly, the court properly determined that the petitioner failed to meet his burden of proving prejudice under Strickland.

II

The petitioner next claims that the court erred in denying his habeas petition because Wicker provided ineffective assistance in failing to request a continuance to prepare for the cross-examination of Clark. We are not persuaded.

The following additional facts found by the court are necessary for our resolution of the petitioner’s claim. “On the morning of the first day of evidence, November 7, 2006, the petitioner and Wicker learned for the first time that Clark was going to be called as a witness. . . . Based on the police report prepared by . . . Siegler, which made no mention of Clark or a confidential witness, Wicker had thought that the only person associated with law enforcement involved in the alleged drug transaction was . . . Eldridge. Wicker did not ask for a continuance to consider how to respond to this new disclosure. Nor did he request time to prepare to cross-examine Clark.”

In rejecting the petitioner’s claim, the court concluded as follows. “The petitioner offered no evidence as to what would have been gained by a continuance. There was no evidence presented of any additional information Wicker could have learned about Clark, had the defense had more time to prepare. Nor has the petitioner offered any evidence as to how the cross-examination of Clark might have been different had Wicker sought and been granted a continuance. Consequently, the petitioner has failed to prove any prejudice as a result of Wicker’s decision not to ask for a continuance.”

Upon an independent and careful review of the record, we agree with the court that the petitioner has failed to establish that he was prejudiced by Wicker’s failure to request a continuance. See Thomas v. Commissioner of Correction, supra, 141 Conn. App. 472 (failure to present evidence that testimony would have been helpful to defense is fatal to ineffectiveness claim).

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner filed a three count amended petition. In count one, the petitioner asserted a claim of actual innocence; in count two, he asserted the instant claim of ineffective assistance of counsel; and in count three, he asserted a claim of violation of due process. Only count two is at issue in this appeal.

       The court’s summation of the oral stipulation is based on the following exchange:
      “The Court: We ready to proceed?
      “[The Petitioner’s Habeas Counsel]: Yes. First thing is I had—well, we have a stipulation that I would like to read into the record.
      “The Court: Sure.
      “[The Petitioner’s Habeas Counsel]: It’s a stipulation. It’s a factual stipulation regarding Officer Michael Siegler. . . .
      “The Court: Okay.
      “[The Petitioner’s Habeas Counsel]: [Officer] Siegler wrote the sole police report generated in [Department of Public Safety] incident number [MPD] 06-18939, which is marked as an exhibit.
      “The Court: Is it a full exhibit?
      “[The Respondent’s Counsel]: [Exhibit] 2 by agreement, yes.
      “The Court: All right. So he’s the sole—he wrote the sole police report, and he is the sole author of that police report?
      “[The Petitioner’s Habeas Counsel]: Yes.
      “The Court: Which is full exhibit 2.
      “[The Petitioner’s Habeas Counsel]: Yes, dated July 12, 2006. [Officer] Siegler also signed the affidavit which is also marked as an exhibit, I believe, without objection.
      “[The Respondent’s Counsel]: That’s [exhibit] 3.
      “The Court: Okay. So the signed affidavit, which is exhibit 3, which is a full exhibit by agreement?
      “[The Respondent’s Counsel]: Correct. •
      “The Court: All right.
      “[The Petitioner’s Habeas Counsel]: That affidavit is also dated July 12, 2006, swearing that the report, the police report that I just mentioned relating to [the petitioner], ‘is an accurate statement of the information so received by me.’ [Officer] Siegler did not testify in the [petitioner’s criminal trial]. [Officer] Siegler is presently ill, and rather than forcing him to come up here to testify, the respondent and I are stipulating, as I am presently doing, and if Officer Siegler were called to testify here, he would have no recollection of the events, so ends the stipulation.

        “The Court: Attorney [David] Clifton [the respondent’s counsel], is that correct?
      “[The Respondent’s Counsel]: Yes, Your Honor.
      “The Court: All right.”

       Because we conclude that the petitioner failed to demonstrate prejudice, we do not address whether Wicker, in failing to subpoena and call Siegler, or in failing to prepare a theory under which to admit the report, provided deficient performance. See Hall v. Commissioner of Correction, 124 Conn. App. 778, 783, 6 A.3d 827 (2010) (reviewing court can find against petitioner on either prong), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).