author: BEACH, J.

text:
    STATE OF CONNECTICUT v. ANGEL LUIS SANCHEZ
    (AC 31735)
    Beach, Robinson and Borden, Js.

      Argued September 15, 2010 —
    officially released April 19, 2011

      Katherine C. Essington, special public defender, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and David L. Zagaja, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Angel Luis Sanchez, appeals from the judgment of conviction, rendered after a jury trial, of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (3) and 53a-49, and assault in the first degree in violation of General Statutes § 53a-59 (a) (1). On appeal, the defendant claims that the court erred in (1) denying his motion to suppress evidence of his pretrial identification by the victim, (2) failing to instruct the jury, sua sponte, concerning the risk of misidentification in accordance with State v. Ledbetter, 275 Conn. 534, 881 A.2d 290 (2005), cert, denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006), and (3) denying his motion for a judgment of acquittal with respect to attempted robbery and kidnapping because of insufficient evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 18, 2003, Nancy Tong was working alone at Will Mart, a convenience store in Manchester. At approximately 11 a.m., a man who was later identified as the defendant entered the store. The defendant removed some merchandise from the shelves, including paper towels, boxes of trash bags, cleaning products, duct tape and a pail, and placed the merchandise on the store counter. Although Tong placed the merchandise into bags, the defendant did not pay for the merchandise. The defendant instead left the store, stood for a while outside and then came back inside the store. After the defendant repeated this behavior a couple of times, Tong asked the defendant if he planned to pay for the items. The defendant responded that he worked for CJ Landscaping and was waiting for his boss to arrive and pay for the merchandise. Tong responded, “okay,” because she was familiar with the landscaping company and the owners of the company, who lived behind the Will Mart store. Tong was also familiar with the defendant because she had seen him three times inside the Will Mart store over the past few weeks.

Tong observed the defendant repeatedly exit the store, stand alone outside and reenter the store. At approximately 1 p.m., while Tong was positioned near the cash register and the bagged merchandise for which the defendant had not yet paid, he approached Tong and told her that he was armed with a gun and that he wanted her to go to the back of the store. As the defendant grabbed Tong and pushed her toward the back of the store, Tong told him that if he wanted money, she would give money to him. The defendant told Tong that he wanted to tie her up. While in the back of the store, the defendant began to stab Tong with a knife. Tong fought back, attempting to grab the knife. Two customers then entered the store and began screaming and asking what was happening. The defendant dropped the knife and fled.

Tong sought assistance at a nearby restaurant and was thereafter taken to a nearby hospital where she underwent surgery. Paul Lombardo and James Graham, detectives with the Manchester police department, arrived at the hospital at approximately 9:30 p.m. and interviewed Tong. Tong provided the detectives with a written statement, which included a physical description of the perpetrator. The state forensic laboratory found a single latent fingerprint on a roll of duct tape that the defendant had placed on the store counter. A photograph of the fingerprint was entered into a computer program, known as the automated fingerprint identification system, which is a national database that matches latent fingerprints found at crime scenes with fingerprint samples taken from individuals when they are arrested and supplies a list of “candidates” whose fingerprints are a possible match. The database system did not yield, at that time, any possible matches to the fingerprint found on the duct tape. In November, 2003, the police suspended the investigation.

In July, 2004, Lombardo revived the investigation. During that month, Tong worked with Lombardo to develop a sketch of the perpetrator. Lombardo concluded that Tong had “very good recall of what her assailant looked like.” In October, 2004, the state forensic laboratories contacted Lombardo and informed him that the computer database revealed possible matches to the fingerprint found on the duct tape. Michael J. Supple, a fingerprint examiner, matched the fingerprint to the defendant’s based on seven shared points of identification. Supple testified at trial that there were additional shared points of identification, but seven is all that is needed for an identification.

In November, 2004, Tong went to the Manchester police station, and Lombardo showed her a photographic array that he had compiled. The photographic array consisted of the most recent photograph that Lombardo had of the defendant as well as photographs of seven other individuals. All eight photographs depicted individuals with facial hair. Lombardo noticed that Tong was having difficulty and asked her if she was “having a problem” because the perpetrator was clean shaven and the individuals in the photographic array all had facial hair. Tong responded affirmatively and did not make an identification from the first array. Subsequently, Lombardo spent fifteen to twenty minutes compiling a second photographic array. In compiling the second photographic array, Lombardo gathered together photographs of individuals with facial features similar to those of the defendant. The second photographic array consisted of eight individuals, including one photograph of the defendant. All individuals in this photographic array appeared relatively clean shaven. The defendant was the only individual whose photograph was included in both photographic arrays. The photograph of the defendant that was used in the second photographic array was different from the photograph of him that was used in the first photographic array. Tong selected the defendant’s photograph from the second array then signed and dated the photograph.

Following a jury trial, the defendant was convicted of kidnapping in the first degree, attempted first degree robbery and assault in the first degree. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court erred in denying his motion to suppress evidence of Tong’s pretrial identification of him because it violated his right to due process under the state and federal constitutions. We disagree.

In August, 2008, prior to the start of trial, the defendant filed a motion to suppress “any pretrial or in court identification of the defendant which the [sjtate intends to use at . . . trial.” During trial, but outside the jury’s presence, the court held an evidentiary hearing on the motion. In denying the motion to suppress, the court determined that “the procedure may be suggestive in that [in] the second array some of the people do look younger” than the defendant. The court, however, determined that the identification was reliable because at the time of the incident Tong had the opportunity over the course of several hours to see the defendant during midday when there was plenty of light and was able to converse with him.

We set forth our standard of review. “[B]ecause the issue of the reliability of an identification involves the constitutional rights of an accused . . . we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable. . . . [T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... To prevail on his claim, the defendant has the burden of showing that the trial court’s determinations of suggestiveness and reliability both were incorrect. . . . Furthermore, [w]e will reverse the trial court’s ruling [on evidence] only where there is an abuse of discretion or where an injustice has occurred . . . and we will indulge in every reasonable presumption in favor of the trial court’s ruling. . . . Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of fact-bound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error.” (Citation omitted; internal quotation marks omitted.) State v. Ledbetter, supra, 275 Conn. 547-48.

“[Reliability is the linchpin in determining the admissibility of identification testimony .... Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). . . . [W]e examine the legal question of reliability with exceptionally close scrutiny and defer less than we normally do to the related fact finding of the trial court. ... To determine whether an identification that resulted from an unnecessarily suggestive procedure is reliable, the corruptive effect of the suggestive procedure is weighed against certain factors, such as the opportunity of the [witness] to view the criminal at the time of the crime, the [witness’] degree of attention, the accuracy of [the witness’] prior description of the criminal, the level of certainty demonstrated at the [identification] and the time between the crime and the [identification].” (Citations omitted; internal quotation marks omitted.) State v. Nieves, 106 Conn. App. 40, 46-47, 941 A.2d 358, cert. denied, 286 Conn. 922, 949 A.2d 482 (2008).

The defendant agrees with the court’s determination that the procedure used was suggestive but argues that the court erred in determining that the out-of-court identification was nevertheless reliable. The state argues that the court properly concluded that the identification was reliable, and, as an alternate ground for affirmance, argues that, to the extent that the court ruled that the identification procedure was unnecessarily suggestive, such a ruling was improper. We do not reach the state’s alternate ground for affirmance because we conclude that the court properly concluded that the identification was rehable for the purpose of admissibility.

The defendant contends that the identification was not reliable because: sixteen months had passed between the commission of the crimes and Tong’s identification of the defendant as the perpetrator; Tong’s initial description of the perpetrator as a young black male possibly with a tattoo on his arm is inconsistent with the defendant’s physical characteristics of being forty-two years old, having no tattoo on his arm and, at least as the defendant attempts to describe himself, Hispanic; Lombardo failed to caution Tong that the perpetrator’s photograph may not be in the array; and Tong observed the perpetrator on the day in question for less than one-half hour.

On the day in question, Tong had an opportunity to view the defendant during midday over the course of several hours. Tong had ample opportunity to view him when she conversed with the defendant about payment, when he approached her with a gun and when he assaulted her in the back room of the store. Further, Tong’s testimony indicates that she was paying a high degree of attention to the defendant during the commission of the crime. She testified that she remembered seeing the defendant in the store on three prior occasions and that she “could not forget [the defendant’s] face.” “A victim of a crime is apt to be a more reliable source of identification than is a mere spectator to the incident.” (Internal quotation marks omitted.) State v. Payne, 219 Conn. 93, 109, 591 A.2d 1246 (1991).

Tong’s description to the police of the perpetrator was fairly accurate. Tong’s initial description of the perpetrator was that of a young, thin black male possibly with a tattoo on his arm. The fact that the defendant was forty-two years old at the time of the incident was not necessarily inconsistent with Tong’s description of the perpetrator as appearing young. The defendant’s relatively youthful appearance is evident in the photographic array. Tong also described the perpetrator as possibly having a tattoo on his arm. During trial, the defendant displayed his arms to the jury, thereby apparently revealing the lack of a tattoo. During closing argument, the state noted that while the defendant did not have a tattoo on his arms, he did have marks, which could have appeared to Tong to be a tattoo.

Additionally, the defendant’s argument regarding the phraseology initially used by Tong in an attempt to describe the defendant’s complexion is unavailing because it does not necessarily undermine the reliability of the identification. The phrase “black male” can apply to a wide variety of people and is not necessarily inconsistent with “Hispanic,” which describes only language or culture.

The approximately sixteen month period between the commission of the crimes and Tong’s identification of the defendant was not so long, under the circumstances of this case, as to render the identification unreliable. See State v. McClendon, 45 Conn. App. 658, 666, 697A.2d 1143 (1997) (two year period between commission of crime and identification did not render identification unreliable where victim had ample opportunity to see defendant, had high degree of attention during encounter and provided detailed description at time of incident), affd, 248 Conn. 572, 730 A.2d 1107 (1999); State v. Copeland, 22 Conn. App. 98, 107, 576 A.2d 567 (1990) (fifteen months between incident and identification not enough under totality of circumstances to render identification unreliable). Approximately one year after the incident, Tong provided a detailed description of the perpetrator to a police detective who compiled a sketch. The facial features depicted in the sketch are reasonably similar to those of the defendant.

Taking all of these factors into account, and weighing them against the effect of the photographic identification procedure, which we assume, arguendo, was suggestive, we conclude that Tong’s identification testimony was reliable for the purpose of admissibility. Accordingly, we conclude that the court did not abuse its discretion in denying the defendant’s motion to suppress Tong’s identification of the defendant.

II

The defendant next claims that the court erred in failing to instruct the jury, sua sponte, concerning the

risk of misidentification in accordance with State v. Ledbetter, supra, 275 Conn. 534. The defendant seeks to prevail on his unpreserved claim, which is not of constitutional dimension; see id., 577; under the plain error doctrine. See Practice Book § 60-5. We are not persuaded.

The plain error doctrine “is not ... a rule of review-ability. It 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. ... In addition, the 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. . . . Plain error is a doctrine that should be invoked sparingly. . . .

“[W]e recently clarified the two step framework under which [an appellate court] review[s] claims of plain error. First, we must determine whether the trial court in fact committed an error and, if it did, whether that error was indeed plain in the sense that it is patent [or] readily discemable on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . We made clear . . . that this inquiry entails a relatively high standard, under which it is not enough for the defendant simply to demonstrate that his position is correct. Rather, the party seeking plain error review must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal. . . .

“In addition, although a clear and obvious mistake on the part of the trial court is a prerequisite for reversal under the plain error doctrine, such a finding is not, without more, sufficient to warrant the application of the doctrine. Because [a] party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice . . . under the second prong of the analysis we must determine whether the consequences of the error are so grievous as to be fundamentally unfair or manifestly unjust. . . . Only if both prongs of the analysis are satisfied can the appealing party obtain relief.” (Citation omitted; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 204-205, 982 A.2d 620 (2009).

In Ledbetter, our Supreme Court in exercise of its supervisory powers held that “unless there is no significant risk of misidentification, we direct the trial courts of this state to incorporate an instruction in the charge to the jury, warning the jury of the risk of misidentification, in those cases where: (1) the state has offered eyewitness identification evidence; (2) that evidence resulted from an identification procedure; and (3) the administrator of that procedure failed to instruct the witness that the perpetrator may or may not be present in the procedure.” State v. Ledbetter, supra, 275 Conn. 579. Regarding the risk of misidentification, although the court “decline[d] to delineate all of the potential factual variations that might result in the trial court finding no significant risk of misidentification, [it] note[d] that one example would be where the defendant was known by the witness before the incident occurred.” Id., 579 n.26. The court noted that “[t]he trial court should make its determination of whether a significant risk of misidentification exists on the basis of the totality of the circumstances.” Id.

The defendant argues that the court should have given a Ledbetter instruction sua sponte because there was identification evidence offered by the state during trial, the identification evidence resulted from an identification procedure, the detective who administered the identification procedure did not warn Tong that the perpetrator may not be depicted in the photographic array and there was a significant risk of misidentification.

Assuming, without deciding, that the trial court was required to give a Ledbetter instruction, we conclude that the failure of the court in this case sua sponte to give the instruction does not present the type of extraordinary situation that warrants reversal under the plain error doctrine. Even if we were to assume that it was error not to give a Ledbetter instruction, and that the error is not debatable, we cannot say that the trial was “fundamentally unfair or manifestly unjust.” (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, supra, 294 Conn. 205. Tong had an opportunity to view the defendant prior to the commission of the crimes, and there was testimony that Tong recognized him as a prior customer. Tong’s identification was corroborated by a fingerprint found on a roll of duct tape that the perpetrator had placed on the store counter that matched the defendant’s fingerprint. Supple matched the fingerprint with a fingerprint known to be the defendant’s based on seven shared points of identification. Furthermore, when Lombardo, while interviewing the defendant, confronted him with the fingerprint evidence and asked if he remembered not wearing gloves on the day in question, the defendant became visibility upset and ran out of the interview room. Thus, a jury could have found consciousness of guilt. See, e.g., State v. Reid, 193 Conn. 646, 655, 480 A.2d 463 (1984). There also was evidence that the perpetrator told Tong that his boss at CJ Landscaping was coming to pay for the goods and that the defendant previously had worked for CJ Landscaping. The failure to give the Ledbetter instruction did not result in manifest injustice.

Ill

The defendant next claims that the court erred in denying his motion for a judgment of acquittal with respect to his conviction of attempted first degree robbery in violation of §§ 53a-134 (a) (3) and 53a-49, and first degree kidnapping in violation of § 53a-92 (a) (2) (B) based on insufficient evidence. We disagree.

We first set forth our standard of review. “The standard of review [that] we [ordinarily] apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Cook, 287 Conn. 237, 254, 947 A.2d 307, cert. denied, 555 U.S. 970, 129 S. Ct. 464, 172 L. Ed. 2d 328 (2008).

“[T]he question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [W]hether such an inference should be drawn is properly a question for the jury to decide.” (Internal quotation marks omitted.) State v. Francis, 90 Conn. App. 676, 681, 879 A.2d 457, cert. denied, 275 Conn. 925, 883 A.2d 1248 (2005).

In count two of the information, the defendant was charged with kidnapping in the first degree. According to § 53a-92 (a), “[a] person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to . . . (B) accomplish or advance the commission of a felony . . . .” General Statutes § 53a-92 (a). The trial court instructed the jury that the underlying felony alleged by the prosecution in this case was robbery and that the parties had stipulated that robbery in the first degree is a felony.

In count three of the information, the defendant was charged with attempted robbery in the first degree. A person is guilty of first degree robbery under § 53a-134 (a) (3) “when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime . . . uses or threatens the use of a dangerous instrument . . . General Statutes § 53a-134 (a) (3). Pursuant to General Statutes § 53a-133, “[a] person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property ... or (2) compelling the owner of such property ... to deliver up the property or to engage in other conduct which aids in the commission of the larceny.” “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .” General Statutes § 53a-119.

Section 53a-49 (a), which defines criminal attempt, provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” Section 53a-49 (b) provides in relevant part that “[c]onduct shall not be held to constitute a substantial step . . . unless it is strongly corroborative of the actor’s criminal purpose. . . .”

The defendant’s claim concerns the element of intent. He argues that the state failed to prove beyond a reasonable doubt that he had the intent to commit a larceny at the Will Mart, a necessary element of attempted robbery and of the kidnapping count that required robbery as an element. The defendant maintains that the following actions are inconsistent with an intent to commit a robbery or larceny: staying at Will Mart before approaching Tong and informing her that he had a gun; not attempting to disguise his identity while speaking to Tong; never demanding money from Tong or attempting to remove any items from the store; not accepting Tong’s offer to give him money but instead responding that he wanted to tie her up; taking Tong to the back of the store away from the area that contained cash and merchandise, while in the back room choking and stabbing Tong as opposed to taking anything; and then fleeing the store empty handed. The defendant also argues that the state did not adduce sufficient evidence to establish that he took a substantial step toward the commission of a larceny. He contends that none of his actions were strongly corroborative of an intent to commit a larceny at Will Mart but rather were perhaps corroborative of an intent to assault Tong.

Our function on appeal is not to ask whether there is a reasonable view of the evidence that would support the defendant’s innocence of the crimes charged, but rather we are to ask whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. See State v. Butler, 296 Conn. 62, 76-77, 993 A.2d 970 (2010). When reviewing sufficiency claims, we are to construe the evidence in the light most favorable to sustaining the verdict. See State v. Cook, supra, 287 Conn. 254.

Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the state adduced sufficient evidence on which the jury could have found that the defendant had a larcenous intent and that his actions can be construed to corroborate an intent to commit a larceny. The evidence reveals the following. Upon arriving at the store, the defendant took several items of merchandise and placed them on the counter. Tong placed them in a bag. The defendant did not pay for the items and instead walked in and out of the store several times. After Tong questioned him regarding payment, the defendant still did not pay for the items but continued to walk in and out of the store. When Tong was near the cash register, which was located near the bags of merchandise on the counter, the defendant approached her with a gun. The jury could have inferred a larcenous intent from the defendant’s actions in placing store merchandise on the counter, continually walking in and out of the store, his promise to pay Tong when she questioned him, his subsequent failure to pay and his subsequent threat to use force against Tong while she was near the cash register and the merchandise for which he had not paid. The jury may reasonably have inferred that the defendant intended to use the items to secure Tong and to clean up the evidence, but the customers interrupted the intended crime.

Contrary to the defendant’s argument that his actions are inconsistent with a larcenous intent, his fleeing the store without the merchandise or the money only when interrupted by customers is not inconsistent with a larcenous intent. In support of his argument that he did not possess a larcenous intent, the defendant highlights the fact that when he approached Tong with a gun, he did not expressly demand the merchandise or respond to Tong’s offer to give him money; instead, he attempted to tie up Tong. The jury reasonably could have found, among other scenarios, that the defendant did not intend to pay for the merchandise and decided to tie Tong up in an effort to commit a robbery as well as an assault. Although the inference of intent was not necessarily compelled by the evidence, the evidence was reasonably susceptible of the inference, and the inference was not so unreasonable as to be unjustifiable. See State v. Copas, 252 Conn. 318, 340, 746 A.2d 761 (2000).

The judgment is affirmed.

In this opinion the other judges concurred.

       During the sentencing proceeding, the court merged the conviction on the two kidnapping charges.

       Our Supreme Court has held that article first, § 8, of the state constitution provides no greater protection than the federal constitution with respect to identification procedures. See State v. Ledbetter, supra, 275 Conn. 568.

       The state contends that the court characterized the procedure as “suggestive,” and the defendant failed to seek an articulation from the court as to whether it found the procedure to be unnecessarily suggestive.

       The defendant also claims that the court’s finding that Tong had the opportunity to view him over the course of several hours was clearly erroneous. He bases this argument on Tong’s testimony that he first came into the store approximately one-half hour before the incident and that he left the store several times during the encounter. The defendant argues that, as a result, Tong’s face-to-face time with the perpetrator on the day in question was likely less than one-half hour. The court’s finding is supported by Lombardo’s testimony that Tong had informed him that the perpetrator arrived at the store at 11 am. and exited and reentered the store until 1 p.m. “As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . Our review of factual determinations is limited to whether those findings are clearly erroneous. . . . We must defer to the [finder] of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Liborio A., 93 Conn. App. 279, 284, 889 A.2d 821 (2006). Therefore, we reject the defendant’s argument.

       We note that the validity of the certainty factor has been questioned by commentators. See State v. Marquez, 291 Conn. 122, 155-56, 967 A.2d 56, cert. denied, 558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009); State v. Ledbetter, supra, 275 Conn. 566-69. In light of Tong’s extended opportunity to view the perpetrator, including a significant amount of time under non-stressful circumstances, we believe that the level of certainty has some relevance at least in the circumstances presented. In this context, there also was testimony that Tong recognized the defendant as a prior customer.

       The defendant argues in this court that he did not have a tattoo on his arm. The defendant did not testily at trial but showed his arms to the jury in a nontestimonial display. The record does not specifically state whether there was any tattoo. In closing argument, the state argued that while there did not appear to be a tattoo, marks of some nature were present. Defense counsel argued that there was no tattoo.

       As a factor weighing against reliability, the defendant highlights the suggestiveness of the procedure, namely, the detective’s failure to inform Tong that there may not have been a photograph of the suspect in the array.

       The court noted that “[w]e ordinarily invoke our supervisory powers to enunciate a rule that is not constitutionally required but that we think is preferable as a matter of policy.” State v. Ledbetter, supra, 275 Conn. 578.

       The court adopted the following instruction: “In this case, the state has presented evidence that an eyewitness identified the defendant in connection with the crime charged. That identification was the result of an identification procedure in which the individual conducting the procedure either indicated to the witness that a suspect was present in the procedure or failed to warn the witness that the perpetrator’s photograph may or may not be in the procedure.
      “Indicating to a witness that a suspect is present in an identification procedure or failing to warn the witness that the perpetrator may or may not be in the procedure may increase the likelihood that the witness will select one of the individuals in the procedure even when the perpetrator is not present. Thus, such action on the part of the procedure administrator may increase the probability of a misidentification.
      “This information is not intended to direct you to give more or less weight to the eyewitness identification evidence offered by the state. It is your duty to determine what weight to give to that evidence. You may, however, take into account this information, as just explained to you, in making that determination.” State v. Ledbetter, supra, 275 Conn. 579-80.

       It is uncontested that the state offered eyewitness identification evidence that resulted from an identification procedure at which the detective failed to instruct Tong that the perpetrator may or may not be present. The parties contest whether there was a significant risk of misidentification. We make no determination whether a significant risk of misidentification existed in the present case.

       The defendant also was charged, and found guilty of, kidnapping in the first degree in violation of § 53a-92 (a) (2) (A). The conviction on the two kidnapping charges was merged in the sentencing proceeding. The defendant does not challenge the sufficiency of the evidence as to his conviction under § 53a-92 (a) (2) (A).

       “The mental state required to commit robbery in the first degree is the intent to commit larceny, which requires the specific intent to deprive or to misappropriate.” State v. Pascal, 109 Conn. App. 55, 62, 950 A.2d 566, cert. denied, 289 Conn. 917, 957 A.2d 880 (2008). In this case, one count of kidnapping required the same intent element because the state specified robbery as the underlying felony for one count of kidnapping.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. EDWIN D. VEGA
    (AC 31518)
    Lavine, Beach and Pellegrino, Js.

      Argued February 10 —
    officially released April 19, 2011

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

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and David L. Zagaja, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Edwin D. Vega, appeals from the judgment of conviction, rendered following a jury trial, of one count each of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2) and 53a-48, and assault in the first degree in violation of General Statutes § 53a-59 (a) (5). On appeal, the defendant claims that (1) the evidence was insufficient to prove, beyond a reasonable doubt, that he was the individual who committed the offenses, (2) the court abused its discretion when it permitted a police officer to offer his expert opinion concerning the defendant’s cellular telephone and (3) the court erroneously instructed the jury regarding consciousness of guilt. The judgment is affirmed.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In the autumn of 2007, Daryl Wells was enrolled as a freshman at Trinity College in Hartford. Immediately upon enrolling at Trinity College, Wells met a woman named Elysha Padilla, and the two became close friends. On April 26, 2008, Wells and Padilla had a “romantic encounter” while in Padilla’s dormitory room. After this encounter, Wells attempted to contact Padilla several times, but she ended all communication with him.

On May 5, 2008, Wells was in his dormitory room when an unknown woman (woman), whom he had never seen before, came to his door and gave him a letter that she claimed was from Padilla. The letter indicated that Padilla was distressed, prompting Wells to decide that he needed to go see her. The woman told Wells that Padilla was staying in her apartment and offered to take him there. Wells, however, elected to follow the woman in his own car. The two went outside, and the woman entered a charcoal colored Toyota Camry that was being driven by an unknown male. Wells followed the Camry to the Trinity Apartment Complex (apartment complex) on Sherbrooke Avenue, which was about one and one-half miles away from the Trinity College campus.

At approximately 9:40 p.m., Wells exited his car and followed the woman along the side of the apartment building. The woman told Wells that she forgot her key and would have to get it from her boyfriend. Wells followed the woman back to the parking lot and, as they were walking, Wells noticed two men coming toward them, one of whom was the defendant. As the defendant and his companion approached Wells, the woman kept walking past them. Wells greeted the two men, but they did not respond. The defendant then pulled a gun from under his shirt and told Wells to get on his knees, which he did. The second man then circled around Wells.

Wells pleaded with the two men to leave him alone and stated that there must be a misunderstanding and that he did not have any money. The two men did not respond to Wells’ comments and suddenly began attacking him. Wells fell on his back, covered his head to protect himself and began yelling for help. Despite his pleas for them to stop, the defendant and his companion continued attacking Wells. The defendant pistol-whipped Wells in the head several times and, at one point, Wells heard a loud bang and then felt blood gushing from his forehead. When the two men were done attacking Wells, the defendant reached into Wells’ back pant’s pocket and took his wallet.

Some residents of the apartment complex came to Wells’ assistance, and the police and paramedics who arrived were alerted to Wells’ condition. Wells was taken to Hartford Hospital where he was told that a bullet had grazed his temple and that he had a broken finger and bruises all over his body.

Detective Andrew Jacobson conducted the police investigation of the attack on Wells. Jacobson learned that the woman lured Wells to the apartment complex with a note allegedly from Padilla. Jacobson then obtained Padilla’s telephone and text message records, which revealed substantial communication between her and the defendant. Specifically, Jacobson noticed many telephone calls between Padilla and the defendant on May 5, 2008, the day of the attack, and that Padilla had received four text messages from the defendant and sent one to him at about the time of the attack. Jacobson also learned that the defendant drove a dark colored Toyota Camry.

On the basis of this information, Jacobson created an array of photographs that included a photograph of the defendant. Jacobson presented the array to Wells, and Wells identified the defendant as one of the individuals who attacked him, and, specifically, the individual who fired the gun at him. The police then arrested the defendant, who voluntarily surrendered his cellular telephone. The defendant also waived his Miranda rights, admitted to knowing Padilla and told the police that the two had become romantically involved in July, 2008. On May 18, 2009, the defendant was charged with robbery in the first degree, conspiracy to commit robbery in the first degree and assault in the first degree. The defendant pleaded not guilty to the charges and elected to be tried by a jury.

At trial, Wells positively identified the defendant as the man who had pistol-whipped and shot him. The prosecution also presented testimony from several witnesses concerning the operation of the cellular telephones possessed by the defendant and Padilla. Dan Jensen, a Sprint/Nextel records custodian, testified that on the night and at the approximate time of the attack, the defendant’s telephone was used to place and receive calls and text messages from Padilla’s telephone and that the cell site that received the transmissions made at the time of the attack was located at 2731 South Main Street in West Hartford. State inspector Stephen Kumnick testified that the cell tower accessed by the defendant’s telephone at the time of the attack was only 1.02 miles from the apartment complex. Finally, New Britain police Sergeant Christopher Chute testified concerning the results of his forensic analysis of the defendant’s telephone. Chute testified that the defendant’s telephone contained text messages dated from September to October, 2007, and two messages from January, 2008. He noted, however, that there were no text messages found on the telephone that were dated between January and June, 2008. Chute also testified, over the defendant’s objection, that there were only two reasons why there would not be text messages dated between January and July, 2008, on the defendant’s telephone. One reason was that they deliberately were deleted; the other reason was that no messages were received or sent. When asked on cross-examination whether text messages can be deleted because too many were sent or received by the telephone, Chute responded that he was not aware that that could happen but that “ [anything is possible . . . .”

The defendant was convicted on all charges and sentenced to an effective term of fourteen years incarceration, execution suspended after seven years, and three years of probation. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to prove beyond a reasonable doubt that he was the individual who committed the offenses. Specifically, the defendant claims that he could not be identified as the individual who committed the offenses because there was considerable discrepancy between Wells’ descriptions of the individual who pistol-whipped him and the defendant’s actual height. The defendant also argues that he could not be identified because Wells did not have a clear view of his assailants’ faces at the time of the attack. We disagree.

The following additional facts are relevant to the defendant’s claim. When the police arrived at the apartment complex after the attack, Wells told Hartford police Officer Jonathan Youens that he was attacked by two Hispanic males, each between five feet, seven inches and five feet, nine inches tall. Also, after investigating Wells’ claims, Jacobson prepared an initial report concerning the attack and listed the two assailants as five feet, eight inches. Jacobson later learned that the defendant’s height is five feet, two inches.

Concerning Wells’ ability to identify the faces of his attackers, Wells testified that it was dark when the attack occurred and that he could not see either of his assailants’ faces clearly but that he saw most of the face of the individual with the gun from the eyes downward. As noted, however, Wells positively identified the defendant at trial as the individual who pistol-whipped him and, at trial, described his height as five feet, five inches to five feet, seven inches.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. McGee, 124 Conn. App. 261, 272, 4 A.3d 837, cert. denied, 299 Conn. 911, 10 A.3d 529 (2010).

We first note that the defendant’s claims concerning the varying descriptions given by Wells of his assailants’ heights are a challenge to Wells’ credibility as a witness rather than a challenge based on the sufficiency of the evidence. “[E]vidence is not insufficient . . . because it is conflicting or inconsistent. ... It is the [jury’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [jury] can . . . decide what — all, none, or some — of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) State v. Testa, 123 Conn. App. 764, 770, 3 A.3d 142, cert. denied, 298 Conn. 934, 10 A.3d 518 (2010). Although Wells initially told the police that his assailants were between five feet, seven inches and five feet, nine inches tall, he positively identified the defendant at trial as the individual who pistol-whipped him. It is not uncommon for victims laboring under the stress of an assault to provide varying descriptions of a perpetrator’s height, weight, hairstyle or other identifying characteristics. It was within the discretion of the jury to believe this testimony based on all of the evidence concerning Wells’ prior statements about his assailants’ heights.

We further conclude that, in addition to the in-court identification by Wells, there was other sufficient evidence presented at trial to sustain the defendant’s conviction. As noted, the prosecution presented testimony from several expert witnesses concerning the cellular telephones operated by the defendant and Padilla. There was evidence that on the night and approximate time of the attack, the defendant’s telephone was used to place and receive calls and text messages from Padilla’s telephone and that the cell site that received the transmissions made at the time of the attack was located only 1.02 miles from the apartment complex. The prosecution also presented evidence that the defendant knew Padilla, that the two had become romantically involved in July, 2008, and that the defendant drove a car that was similar in make and color to the one Wells followed to the apartment complex on the night of the attack. In light of this evidence, the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. Accordingly, we reject the defendant’s claim that the evidence was insufficient.

II

The defendant also claims that the court abused its discretion when it permitted Chute to offer his expert opinion concerning the calls and text messages received by and sent from the defendant’s cellular telephone. Specifically, the defendant claims that Chute’s testimony should not have been permitted because it was prejudicial, irrelevant and purely speculative.

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) Desrosiers v. Henne, 283 Conn. 361, 365-66, 926 A.2d 1024 (2007).

A

The defendant first claims that Chute’s testimony concerning the absence of text messages dated between January and June, 2008, on the defendant’s telephone was irrelevant because it did not reflect an open and visible connection to the defendant’s guilt and, even assuming that it had some remote relevance, it was highly prejudicial. We disagree and conclude that the court did not abuse its discretion in allowing Chute to testify.

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. . . . Relevant evidence is excluded, however, when its probative value is outweighed by the danger of unfair prejudice. . . . [T]he determination of whether the prejudicial impact of evidence outweighs its probative value is left to the sound discretion of the trial court . . . and is subject to reversal only [when] an abuse of discretion is manifest or injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) State v. Allen, 289 Conn. 550, 562-63, 958 A.2d 1214 (2008). Our Supreme Court has also concluded that “[t]he test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury.” (Internal quotation marks omitted.) State v. Smith, 275 Conn. 205, 218, 881 A.2d 160 (2005).

The defendant claims that any evidence regarding the large block of missing text messages dated from January through June, 2008, is irrelevant because it does not make it more probable that the text messages sent from and received by the defendant’s telephone on the night of the attack intentionally were deleted by the defendant. The defendant also argues that, even assuming that the evidence had some relevance, Chute’s testimony created a side issue that confused and unduly distracted the jury from the ultimate issue.

We conclude that Chute’s testimony concerning the absence of text messages dated from January to June, 2008, on the defendant’s telephone had the logical tendency to aid the jury in determining the issue of guilt. See State v. Allen, supra, 289 Conn. 562. “The state of mind which is characterized as guilty consciousness or consciousness of guilt is strong evidence that the person is indeed guilty . . . .” (Internal quotation marks omitted.) State v. Edwin M., 124 Conn. App. 707, 726, 6 A.3d 124 (2010), cert. denied, 299 Conn. 922, 11 A.3d 151(2011). Although Chute’s testimony encompassed a larger time frame than the days surrounding the attack on Wells, it still aided the jury in determining whether the defendant displayed a consciousness of guilt. If the incriminating text messages were deliberately erased from the defendant’s telephone, then evidence supporting such a determination renders it more probable that the defendant was the individual who attacked Wells.

We further conclude that the probative value of Chute’s testimony is not outweighed by the danger of unfair prejudice. Chute’s testimony contained nothing that would unduly arouse the jury’s emotions, nor did it create a side issue or consume an undue amount of time. As noted, the evidence pertained to the defendant’s consciousness of guilt and did not distract the jury from the ultimate issue of determining the defendant’s guilt. See State v. Oliveras, 210 Conn. 751, 759, 557 A.2d 534 (1989) (“[ejvidence that an accused has taken some kind of evasive action to avoid detection for a crime, such as flight, concealment of evidence, or a false statement, is ordinarily the basis for a charge on the inference of consciousness of guilt”).

B

The defendant also argues that the Chute’s testimony was improper because he gave opinions that were purely speculative and, therefore, created a specious inference of a consciousness of guilt. Again, we disagree.

“Concerning expert testimony specifically, we note that the trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed.” (Internal quotation marks omitted.) State v. Perkins, 271 Conn. 218, 264, 856 A.2d 917 (2004). “Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. ... In other words, [i]n order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion.” (Citations omitted; internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 158, 971 A.2d 676 (2009).

The defendant claims that two of Chute’s opinions were impermissible because they were speculative. Specifically, the defendant challenges Chute’s opinions that the text messages from January through June, 2008, were missing on the defendant’s telephone due to inactivity or because they were deliberately deleted and that text messages could only be deleted by the user deliberately erasing them. In support of his challenge to Chute’s testimony, the defendant asserts that Chute’s assumption that it was not reasonably possible that the defendant’s telephone would automatically delete older text messages when it reached its storage capacity was patently false. He also claims that Chute either lacked a sufficient understanding of cellular telephone functions or neglected to take them into consideration when stating his opinions as to why there were no text messages on the telephone between January and June, 2008.

On the basis of our review of Chute’s testimony, we are persuaded that his opinion was based on his analysis of the defendant’s telephone in addition to his education, training and experience gained from conducting forensic investigations. Furthermore, the defendant’s claims that Chute’s opinions were incorrect and that he lacked an understanding of cellular telephones goes to the weight of his testimony rather than its admissibility. See DiPietro v. Farmington Sports Arena, LLC, 123 Conn. App. 583, 613, 2 A.3d 963 (“[t]he underlying principle is that if any reasonable qualifications can be established, the objection goes to the weight rather than the admissibility of the [expert’s opinion] evidence” [internal quotation marks omitted]), cert. granted on other grounds, 299 Conn. 920, 10 A.3d 1053 (2010). The defendant had the opportunity to challenge Chute’s opinions on cross-examination, and it was the duty of the jury to determine the credibility of Chute’s testimony in light of any conflicting evidence presented by the defendant. Accordingly, we conclude that the court did not abuse its discretion in admitting Chute’s testimony.

in

Finally, the defendant claims that the court’s instructions to the jury on consciousness of guilt were improper because, while technically correct, the jury was improperly guided to draw a speculative inference from Chute’s irrelevant and prejudicial opinions, which were only conjecture. We disagree.

“It has been stated numerous times that consciousness of guilt issues are evidentiary and not constitutional in nature. . . . When a challenge to a jury instruction is not of constitutional magnitude, the charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Weed, 118 Conn. App. 654, 663, 984 A.2d 1116 (2009).

The defendant does not challenge the substance of the court’s instructions to the jury on consciousness of guilt. Instead, he claims that they “unfairly presented . . . Chute’s opinions to the jury in such a way that caused injustice to the defendant because his opinions were not relevant, [were] prejudicial and based on speculation.” We already have concluded that Chute’s testimony was not irrelevant, prejudicial or improper opinion. We conclude, therefore, that the court’s instructions to the jury concerning consciousness of guilt were not improper because they were correct in law, adapted to the issues and sufficient for the guidance of the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       The defendant also claims that the testimony of Awilda Esquilin, a resident of the apartment complex, who stated that she was 110 percent sure that the defendant was not one of the attackers, should have been credited over the testimony of Wells, who had stated after viewing the photographic array prepared by Jacobson that he was 95 percent sure that the defendant was the individual who had pistol-whipped him. Again, this is an attack on the credibility of Wells’ testimony rather than a challenge to the sufficiency of the evidence. The jury was free to believe Wells’ testimony and discredit the testimony of Esquilin, and we will not disturb that finding.

       The defendant also claims that Chute’s testimony was an impermissible expression of an opinion as to an ultimate fact. The defendant concedes that this issue was not preserved at trial; however, he seeks review under the plain error doctrine.
      “The plain error doctrine is based on Practice Book § 60-5, which provides in relevant part: The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . . The plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A party cannot prevail under [the] plain error [doctrine] unless [he] has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. Guzman, 125 Conn. App. 307, 317-18, 7 A.3d 435 (2010), cert. denied, 300 Conn. 902, 12 A.3d 573 (2011). We conclude that this is not such a truly extraordinary situation that warrants review of the defendant’s claim.

       In addressing the defendant’s objection to Chute’s testimony, the court concluded that Chute’s testimony was admissible for establishing consciousness of guilt because the act of deleting text messages was similar to ripping pages out of a journal. Specifically, the court stated: “If a person . . . had a journal that they kept their whole life and ... it was their practice to pretty much write down their daily activities and they were accused of criminal activities during a certain period of time, the fact that — that those pages of the journal were missing could — if the state had access to them, could be shown. . . . This is — this is just like — this is like a journal.”

       Prior to offering his opinions concerning the defendant’s cellular telephone, Chute testified that he was employed by the New Britain police department as the supervisor of the digital forensic unit. In this position, he examines digital evidence found within cellular telephones, computers and digital cameras and retrieves data that is both present on the media or has been deleted.

       The court provided the following instructions to the jury concerning consciousness of guilt: “Now . . . consciousness of guilt. This is the instruction that deals with the claim that — by the state, that the erasing or deleting the cell phone texts showed consciousness of guilt; that’s the testimony that we’re talking about.
      “And in any criminal trial it is permissible for the state to show . . . conduct by a defendant after the time of the alleged offense which may have been influenced by the criminal acts; that is, the conduct shows a consciousness of guilt.

        “Such conduct does not, however, raise a presumption of guilt. If you find the evidence proved, and also find that the conduct was influenced by the criminal act and not by any other reason, you may, but are not required to, infer from this evidence that the defendant was acting from consciousness of guilt.
      “It is up to you, as judges of the facts, to decide whether the defendant’s conduct, if proved, reflects a consciousness of guilt and to consider such in your deliberations in conformity with these instructions.”


author: BEAR, J.

text:
    AMIR BROOKS v. COMMISSIONER OF CORRECTION
    (AC 30809)
    Gruendel, Alvord and Bear, Js.

      Argued January 13 —
    officially released April 19, 2011

      Temmy Ann Pieszak, chief of habeas corpus services, for the appellant (petitioner).

      James M. Ralls, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Kelly A. Masi, assistant state’s attorney, for the appellee (respondent).
   Opinion

BEAR, J.

The petitioner, Amir Brooks, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion when it denied his petition for certification to appeal and improperly rejected his claim that his trial counsel had rendered ineffective assistance. He also claims that the habeas court erred in its analysis of justification and motive and that it failed to apply the proper legal standard in determining whether the petitioner had proven prejudice. We dismiss the appeal.

The following facts, as set forth by this court in the petitioner’s direct appeal, are relevant to the present appeal. “The [petitioner’s] arrest and subsequent conviction arise out of a rather bizarre set of circumstances. From the evidence, the jury reasonably could have found that while the [petitioner] was sitting on some steps in front of a multitenant building in an incoherent state, he was robbed by two young boys who went through his pockets, stealing his money, beeper and cell phone. Jennifer Allen, a female tenant in that building who witnessed the incident, and Fletcher Moore, the ultimate victim in this criminal matter, went to the [petitioner’s] aid and attempted to help him as he was falling, stumbling and bleeding from a cut on his face.” State v. Brooks, 88 Conn. App. 204, 205-206, 868 A.2d 778, cert. denied, 273 Conn. 933, 873 A.2d 1001 (2005).

“On July 15, 2002, at about 10 a.m., the [petitioner] informed his girlfriend, Natalie Benjamin, with whom he shared an apartment, that he was leaving to go to a comer store. Instead, he proceeded downstairs to Allen’s apartment, knocked on her door and angrily demanded to see Moore. When Moore appeared, the [petitioner] demanded that Moore return the items stolen from the [petitioner] two weeks earlier. Allen explained to the [petitioner] that he had been robbed by two young boys, and that she and Moore simply had tried to help him, but the [petitioner] was adamant that Moore return the stolen items. The [petitioner] eventually left the apartment, as did Allen. Moore asked Allen to lock the apartment door on her way out, as he did not ‘want [the petitioner] coming up in here.’ To be sure that she did so, Moore checked the door after she left. Shortly afterward, while on the telephone, Moore realized that the [petitioner] had gained entry into the apartment and was standing a short distance away, glaring at him. Without delay, the [petitioner] charged Moore, but was thrown into a window. Moore testified that at that moment, he thought he saw a weapon in the [petitioner’s] pocket, so he grabbed a four foot long steel pipe to use to defend himself. The [petitioner] wrestled the pipe from Moore and started swinging it at him, eventually striking Moore’s hand, causing a laceration and other injuries. Moore then obtained a second pipe, and the altercation continued. At one point, the [petitioner] attempted to bite Moore’s right hand. Allen later returned and observed the [petitioner] chasing Moore with the pipe.” Id., 207-208. The police were called, and the petitioner was arrested. Id., 206.

The petitioner ultimately was charged with and, after a jury trial, convicted of burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1), and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). Id., 205. We affirmed the petitioner’s conviction on direct appeal. Id., 217. On May 10,2007, the petitioner filed, pro se, an amended petition for a writ of habeas corpus, alleging ineffective assistance of counsel. After a hearing, which took place over the course of two days, the habeas court in an oral decision denied the petition for a writ of habeas corpus and denied the petition for certification to appeal. This appeal followed.

Initially, we set forth the applicable standard of review and legal principles that guide us in our analysis. “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. Simms v. Warden, 230 Conn. 608, 612, 646 A. 2d 126 (1994). To prove an abuse of discretion, the petitioner must demonstrate that the issues 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. . . . Id., 616, quoting Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). 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. Id., 612. We examine the petitioner’s underlying claim[s] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal.” (Internal quotation marks omitted.) Atkinson v. Commissioner of Correction, 125 Conn. App. 632, 637, 9 A.3d 407 (2010).

To prove a constitutional claim of ineffective assistance of counsel, a habeas petitioner must establish both deficient performance on the part of counsel and actual prejudice as a result of counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “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 [petitioner] 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] reviewing court can find against a petitioner on either ground, whichever is easier.” (Citation omitted; internal quotation marks omitted.) Fernandez v. Commissioner of Correction, 291 Conn. 830, 834-35, 970 A.2d 721 (2009).

I

The petitioner claims that the court abused its discretion in denying his petition for certification to appeal and improperly rejected his claim of ineffective assistance of counsel. He argues that in considering his claim of ineffective assistance, “the habeas court failed to employ the correct analysis regarding the adequacy of the investigation and the relationship between the scope of the investigation and tactical decisions.” He also argues that “the court relied on the assumption that counsel's actions were tactical [when it considered the petitioner’s] claims concerning investigation, cross-examination of [a] prosecution witness, failure to impeach, and closing argument.” The petitioner’s analysis focuses on his claim that his trial counsel conducted an inadequate investigation because she failed to ask Benjamin whether she had witnessed the start of the fight and had seen who threw the first punch. The state argues that the habeas court properly found that counsel performed with due diligence in conducting her investigation. We agree with the state.

Our Supreme Court has stated that “[constitutionally adequate assistance of counsel includes competent pretrial investigation. . . . Hindsight is irrelevant. . . . [T]he issue, therefore, is not what counsel should have done to constitute the proper representation of the [petitioner] considering the case in retrospect, but rather, whether in the circumstances, as viewed at the time, the [petitioner] received effective assistance of counsel.” (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 89 Conn. App. 850, 861-62, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005).

In its oral memorandum of decision, the habeas court found the petitioner’s trial counsel to be credible and the petitioner not to be credible. It also found that if Benjamin presented herself to the jury in the same manner that she had presented herself before the habeas court, the jury “could very well” consider her not to be credible because much of what she said was inconsistent and could be deemed unreliable and that her in-court testimony and her prior statement differed in substance. The court stated: “In terms of the investigation, the evidence is clear . . . the attorney . . . employed the services of at least one investigator . . . visited the location of the alleged crimes [and] interviewed a number of witnesses in the presence of an investigator either in person or over the telephone.” It found that “counsel analyzed the information in [the investigative] reports, and evaluated the information, discussed the information with [the petitioner] and made certain tactical decisions based upon a review of evidence.” The court further found that counsel kept the petitioner informed by writing to him and discussing with him his options, including the state’s plea offers. Specifically as it related to the petitioner’s claim that his counsel had conducted an inadequate investigation, the court concluded that “counsel at trial and pretrial certainly performed with due diligence and in no way a deficient manner.” The court then specifically found that the petitioner had failed to establish either deficient performance or prejudice as it related to this claim. Our own review of the record does not persuade us otherwise.

Although the petitioner argues that his counsel failed to ask Benjamin whether she had witnessed the start of the fight or who had thrown the first punch, the court found that Benjamin’s testimony was inconsistent and that her in-court testimony substantially was different from her earlier statement. The court found that her testimony could be deemed unreliable. The petitioner argues that the court incorrectly attributed this lack of questioning on the part of his trial counsel to a tactical decision. The court, however, did not find that trial counsel had failed to ask appropriate questions or that there was a lack of questioning during the investigation. Rather, the court concluded, on the basis of the evidence presented during the habeas trial, that the petitioner’s counsel acted appropriately and performed with due diligence in conducting the pretrial investigation. The record supports this conclusion. Accordingly, we conclude that the petitioner has failed to demonstrate that his counsel was deficient in the manner in which she conducted her investigation.

II

The petitioner also claims that the habeas court erred in its analysis of justification and motive. He explains: “The court confused the state’s claimed motive (the earlier robbery) for the theory of self-defense. Paragraph 12 (F) [of the petitioner’s amended petition for a writ of habeas corpus] alleged that trial counsel failed to adequately rebut the state’s claimed motive. Rather than analyzing the evidence of motive and counsel’s actions with respect to that evidence, the court ruled that the motive evidence was insufficient to support a self-defense claim.” The petitioner argues that the habeas court improperly concluded that “there was no prejudice arising from trial counsel’s alleged failures respecting the introduction of evidence of a claimed motive, and the defense[’s] failure to rebut the motive.” The petitioner claims that the court was unable to apply the law to the facts because it misunderstood the petitioner’s claim and that because of this error, he is entitled to a new habeas trial. We are not persuaded.

Paragraph 12 (F) of the petitioner’s amended habeas petition alleged that the petitioner had been denied the effective assistance of trial counsel because “[t]rial counsel failed to introduce evidence which rebutted the state’s theory regarding [the] petitioner’s motivation for the crimes for which he was convicted.” In relation to this claim, the court stated: “This court finds that there was no basis to conclude [that the] petitioner’s claim has merit. Assuming arguendo that [the] petitioner’s claim is premised on this theory that the petitioner had some right to address [the victim] because he believed [the victim] was in possession or was involved in the prior robbery, does not amount to a justification defense. Nor does it serve in any way to address the issue of motive, in as much as the court recognizes that motive is not an essential element of any of the offenses for which the [petitioner] stands guilty before the jury. And there’s no shortcoming in defense counsel’s claimed failure in that regard.”

The petitioner argues that the court “conflated the justification defense and the prosecution’s claimed motive. By failing to focus on the actual claim . . . the court failed to apply the Strickland standard. Instead, the court simply found that the state’s evidence of motive did not support a self-defense claim.” We disagree.

The court clearly found that the petitioner’s trial counsel had no shortcomings when it came to the issue of motive. The court also stated that even if it assumed, arguendo, that this claimed deficiency was premised on the petitioner’s self-defense theory, it would have no merit. Rather than conflating the issue of motive and the defense of justification, which was not an issue raised in the habeas trial, we conclude that the court was explaining that the issue of motive did not have bearing on the petitioner’s justification defense. Accordingly, we conclude that this claim is without merit.

Ill

Finally, we address the petitioner’s claim that “[t]he habeas court explicitly applied an incorrect legal standard in determining whether prejudice had been proven” on his ineffective assistance of counsel claim. He argues that the court “employed an improperly high standard for proving prejudice, stating that the standard was that the petitioner had to prove that the result necessarily would have been different. ... As a result of applying the incorrect standard, the habeas court could not and did not reach a proper decision on the prejudice arising from trial counsel’s performance.” (Emphasis in original.) The petitioner contends that if we agree with his claim, he is entitled to a new habeas trial. We are not persuaded.

A habeas petitioner will succeed on a constitutional claim of ineffective assistance of counsel, only if he can establish both deficient performance and actual prejudice. See Strickland v. Washington, supra, 466 U.S. 687; Fernandez v. Commissioner of Correction, supra, 291 Conn. 834-35. When we review on appeal the propriety of the habeas court’s ruling on a petitioner’s claim of ineffective assistance, we can find against a petitioner if he fails to establish either ground. Fernandez v. Commissioner of Correction, supra, 835.

In this claim, the petitioner attacks the habeas court’s purported misstatement of the law regarding the prejudice prong of his ineffective assistance of counsel claim. He does not discuss, howpver, the court’s finding that he failed to prove that counsel provided deficient performance. In its decision, the court specifically found that trial counsel was “quite diligent and, contrary to being deficient, met all the applicable standards of care in rendering a professional and sincere and dedicated defense for [the petitioner] .... In as much as the petitioner has failed to establish either prejudice or deficient performance . . . the petition for a writ of habeas court is denied.”

Even if we were to assume, without deciding, that the court used the incorrect legal standard for determining prejudice, the petitioner has failed to prove that counsel’s performance in any way was deficient. Having failed to meet his burden of proof under the first prong of Strickland, we conclude the petitioner has failed to prove the merit of his claim.

Having reviewed the record, and for the reasons set forth previously, we conclude that the petitioner failed to establish that the issues he has raised are debatable among jurists of reason, that a court could have resolved them in a different manner or that the questions he has raised are adequate to deserve encouragement to proceed further. Accordingly, we conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus.

The appeal is dismissed.

In this opinion the other judges concurred.

       We note that there was an error made in the clerk’s office of the Superior Court wherein the order denying the petition for certification to appeal improperly was recorded as having been granted by the court. Because of this error, the parties, in their appellate briefs, both stated that the petition seeking certification had been granted, and, therefore, they failed to brief the threshold issue of whether the court abused its discretion in denying the petition for certification to appeal. Once the error was recognized by Appellate Court staff, the trial court was notified of the error, and it notified the parties. We then ordered supplemental briefs addressed to whether the court had abused its discretion in denying the petition for certification to appeal.

       See footnote 1 of this opinion.

       We note that the petitioner does not challenge any of the factual findings made by the habeas court.

       Furthermore, the petitioner has failed to set forth any shortcoming in his counsel’s handling of the issue of motive. He points to no evidence that would rebut the state’s theory, nor does he argue what counsel should have done differently. Quite to the contrary, in the habeas trial, both Allen and Benjamin offered uncontradicted testimony regarding the facts related to the petitioner’s motivation. They testified that the petitioner believed that the victim had robbed him and that the petitioner was upset about this.

       The state conceded during oral argument before this court that the habeas court had made a misstatement of law but argued that the court also correctly referenced the correct Strickland test. Accordingly, the state argues, the record does not demonstrate that the court used the higher burden when considering the petitioner’s claim.