text:
    STATE OF CONNECTICUT v. MICHAEL CASTILLO
    (AC 31086)
    DiPentima, Gruendel and Lavine, Js.

      Argued January 11
    officially released June 15, 2010

      Robert E. Byron, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, Dennis J. O’Connor, supervisory assistant state’s attorney, and Robin D. Krawczyk, senior assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

LAVINE, J.

The defendant, Michael Castillo, appeals from the judgment of conviction, rendered after a jury trial, of one count of capital felony in violation of General Statutes §§ 53a-54b (7) and 53a-8, one count of capital felony in violation of General Statutes §§ 53a-54b (2) and 53a-8, three counts of murder in violation of General Statutes §§ 53a-54a (a) and 53a-8, and one count of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a). On appeal, the defendant claims that the trial court (1) denied him his sixth amendment right to a trial by an impartial and informed jury by directing the jury to find him guilty and (2) abused its discretion with respect to the alleged misconduct of a juror. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Shortly after 5 p.m. on July 30,2003, Robert Stears, Barry Rossi and Lome Stevens (victims) were found dead or dying at B & B Automotive, located at 436 Spring Street in Windsor Locks. In an information filed August 7, 2007, the state charged that the defendant, acting with intent to cause the death of the victims, intentionally aided Jose Guzman, Erik Martinez and Benedetto Cipriani to murder the victims and that he did so for pecuniary gain. The state also charged the defendant in separate counts with the murder of each of the victims and in one count with conspiring with Guzman, Martinez and Cipriani to cause the murders of the victims.

In 2003, Martinez lived with members of his family in an apartment at 12 Flatbush Avenue in Hartford. The residents of the apartment included Martinez’ mother, Rose Emily Mendez; his girlfriend, Jennifer Cruz; and Guzman. Mendez made the acquaintance of Cipriani, who lived in Meriden, in an Internet chat room and occasionally went out with him. Martinez met Cipriani, who drove a maroon Mitsubishi, in May, 2003. Cipriani spoke with an accent and said that he worked in New York as a business executive.

In May, 2003, Cipriani took Mendez, Martinez and Cruz out for dinner. During the evening, Cipriani approached Martinez about doing something illegal in return for money. Cipriani told Martinez that he wanted Stears hurt and his business robbed. Cipriani also told Martinez that Stears had raped the daughter of a friend and that he was racist against Puerto Ricans. Cipriani knew Martinez, a Puerto Rican, had been conceived by rape. Cipriani gave Martinez a piece of paper that contained the personal identification number for a telephone calling card.

Later Cipriani offered Martinez $7000 to murder Stears. Initially, Martinez agreed to commit the murder. Guzman was to participate by driving Martinez to B & B Automotive. Cipriani twice drove Martinez to B & B Automotive to orient him to the area. Cipriani telephoned Martinez approximately five times a week to discuss the murder. According to Martinez, Cipriani was holding money for his friend whose daughter was raped, and there was a deadline for committing the murder. Cipriani was not happy with the delay and told Martinez that he would have him “in Staten Island with the garbage.”

Martinez discussed the murder plan with Cruz and Guzman and decided he did not want to commit the murder. Guzman, however, was interested in committing the murder and met with Cipriani. Guzman informed Martinez that Cipriani had told him that if Martinez had to kill anyone else, to go ahead and do it; he would pay more. Cipriani thought that the murder should be committed at 5 p.m. because only Stears would be at B & B Automotive at that time. Martinez discussed the murder plan with the defendant, a cousin by marriage, explaining that Guzman had to “take somebody out” and needed a driver. Martinez, Guzman and the defendant discussed money. The defendant wanted $2000 to participate in the murder, a sum Guzman agreed to pay him.

Prior to July 30, 2003, Martinez purchased a nine millimeter handgun with $900 supplied by Cipriani. He bought the gun on Benton Street in Hartford from a man named Charlie. Martinez and Guzman test fired the gun late at night in Hyland and Goodwin Parks in Hartford.

Guzman told Martinez on July 30, 2003, that that day was the day he was going to carry out the murder. At approximately 4:30 p.m., Martinez saw Guzman leave the apartment and get into a Nissan Pathfinder vehicle being driven by the defendant. Cruz also was present when the defendant and Guzman met at the Flatbush Avenue apartment and saw the two men leave in the defendant’s Pathfinder.

Shortly after 5 p.m. on July 30, 2003, Raymond LeClair, an employee of Town Fair Tire, arrived at B & B Automotive to deliver a tire. As he drove into the premises, he encountered a red pickup truck that had been abandoned as it was exiting the driveway. The driver’s door of the pickup was open. In order to get around the pickup truck, LeClair had to close the door. When he did, the keys to the vehicle fell to the ground. LeClair drove to the building to make his delivery. Inside the building he saw a body on the floor and a “red glaze” near it. He got back in his truck to drive to the front of the building, where the office was located, with the intent of calling the police. At approximately the same time, Douglas Law and his wife, Patricia Law, drove their vehicles to the front of B & B Automotive where they intended to leave Patricia Law’s vehicle for repair. When Douglas Law entered the building, he sensed that something was wrong. He heard moaning and saw two bodies on the floor. He ran from the building and called 911. An ambulance and six police cruisers arrived quickly. After the police officers secured the premises, the emergency medical personnel found the three victims. They all had been shot in the head at least once. Rossi and Stevens were dead. Stears was taken to Hartford Hospital where he died shortly thereafter.

After the defendant and Guzman left the Flatbush Avenue apartment, Martinez fell asleep watching television. When he awoke, Guzman and the defendant were present. According to Cruz, the defendant and Guzman returned to the apartment approximately one horn after they had left in the Pathfinder. She thought that the defendant was “amped up.” The defendant excitedly told Martinez, “[y]o, we did it.” The defendant then explained how he drove to B & B Automotive, “scoped the place out,” left and returned and “stopped the car in the driveway.” Guzman picked up the story at that point and described how he went to the driver’s side of the truck, pulled out the gun, ordered the man to get out of the truck and walked him at gunpoint into B & B Automotive. Two other men were inside. Guzman ordered the victims to get on the floor. Guzman explained to Cruz and Martinez how he shot the victims. Guzman then took the cordless land line telephone (land line) in the apartment and went out on the porch to call Cipriani.

The defendant invited Cruz and Martinez to watch the television news if they did not believe him and Guzman that three people had been murdered. Cruz and the others were watching the 10 p.m. television news, which reported a story about the murders at B & B Automotive. The broadcast included a video of the red pickup truck in the driveway, which prompted Guzman to say, “[t]his is where we stopped ‘em, right there.”

Three days after the victims were killed, Martinez telephoned his uncle, Jose Velazquez, whom he asked to drive him and Guzman from the Flatbush Avenue apartment to a Stop and Shop supermarket in Wall-ingford. When they arrived at the Stop and Shop, Cipri-ani was standing outside. Guzman and Cipriani went into the Stop and Shop. When Guzman returned to the car, he had a wad of money. He gave Martinez $1000, which Martinez believed was payment for purchasing the gun used to kill the victims and introducing Guzman to Cipriani. Guzman also gave Velazquez $200 for driving him to the Stop and Shop and for drugs. Guzman also gave Martinez $2000 to give to the defendant for being Guzman’s driver.

The police made progress in their investigation in late 2003 when Velazquez was arrested on a unrelated matter. Velazquez asked to speak to the state police about the triple homicide in Windsor Locks. The information Velazquez provided led the police to Guzman and Martinez.

Christopher Sinsigalli and Stears’ widow, Shelley Stears, led police to Cipriani. See footnotes 1, 3 and 5 of this opinion. Police interviewed Cipriani at his home on July 31, 2007. On the basis of what they perceived to be falsehoods in Cipriani’s statement, police executed warrants for telephone records. The telephone records they obtained produced evidence of communication between the conspirators. On July 30, 2003, the defendant had received calls from Martinez’ land line at 11:06 a.m. and 11:54 a.m. At 1:29 p.m., the land line was used to place a call to one of Cipriani’s cellular telephones. At 4:57 p.m., shortly before the murders, the defendant’s cellular telephone received an incoming call that was relayed by a cellular tower located less than one mile from B & B Automotive. At 5:38 p.m., a call was made on one of the defendant’s cellular telephones to one of Cipriani’s cellular telephones. Another such call was placed at 6:57 p.m. On August 1, 2003, at 6:31 p.m., 6:44 p.m. and 7:06 p.m., three outgoing calls were made on the land line to Velazquez’ cellular telephone. Later that day, at 9:18 p.m., the land line was used to place an outgoing call to the defendant’s subscribed cellular telephone.

The jury found the defendant guilty of all charges. Following sentencing, the defendant filed this appeal.

I

The defendant claims that the court denied him the constitutional right to an impartial and informed jury by directing the jury to find him guilty. Specifically, the defendant claims that the court (1) intruded on the jury’s authority by instructing that (a) “[i]f there is no reasonable doubt, then the accused must be found guilty” and (b) “our law provides that no conviction can be had without testimony from two witnesses or the equivalent thereof. And, in this case, where the state has called approximately twenty-five witnesses, you may well find that that burden has been met,” and (2) erred by instructing that “[w]e call it capital felony, but the death penalty, as you know, I’m sure, is not in play— at issue in this case.” We disagree, because the court’s charge in its entirety was correct in law, adapted to the issues and adequate to guide the jury.

“The standard of review for claims of instructional impropriety is well established. [Individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, 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. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. ... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 360-61, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005).

A

The defendant has raised two claims that the court intruded on the jury’s fact-finding province. We disagree.

1

The defendant claims that by instructing, “[i]f there is no reasonable doubt, then the accused must be found guilty,” it directed the jury to find him guilty. The defendant takes particular exception to the court’s use of the word must. The defendant did not preserve his claim at trial and asks us to reverse his conviction under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). A defendant can prevail under the Golding doctrine “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 a reasonable doubt.” (Emphasis in original.) Id. The defendant’s claim is reviewable because the record is adequate for our review and the claim is of constitutional magnitude. See State v. Schiappa, 248 Conn. 132, 165-66, 728 A.2d 466 (discussing instructional claims amenable to Golding review), cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). The defendant cannot prevail, however, because the alleged constitutional violation clearly did not exist and the defendant clearly was not deprived of a fair trial.

The language with which the defendant takes issue was taken from that portion of the court’s charge concerning reasonable doubt. The court charged the jury in part as follows: “Now, of course, absolute certainty in the affairs of life is almost never attainable, and the law does not require absolute certainty on the part of the jury before you return a verdict of guilty. The state does not have to prove guilt beyond all doubt or to a mathematical or absolute certainty. What the law does require, however, is that, after hearing all the evidence, if there is something in that evidence or lack of evidence which leaves in the minds of the jury, as reasonable men and women, a reasonable doubt about the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. If there is no reasonable doubt, then the accused must be found guilty.

“Proof beyond a reasonable doubt is proof which precludes every reasonable hypothesis except guilt, is consistent with guilt, and is inconsistent with any other reasonable conclusion. If you can, in reason, reconcile all of the facts proved with any reasonable theory consistent with the innocence of the accused, then you cannot find him guilty.”

The instruction challenged by the defendant has been challenged previously in both this court and our Supreme Court and has been found to pass constitutional muster. In State v. Santiago, 17 Conn. App. 273, 276, 552 A.2d 438 (1989), the defendant was charged with the crime of possession of narcotics with intent to sell. The court there charged the jury in part: “If you find the state has proven, beyond a reasonable doubt, each one and all the elements of this offense . . . you must find the defendant guilty.” (Internal quotation marks omitted.) Id., 279. The defendant in that case claimed that the trial court’s use of the word must was “the equivalent of a directed verdict of guilty.” Id. In rejecting that defendant’s claim, this court explained: “A directed verdict results when a court instructs the jury to find the defendant guilty of a particular charge. The use of the word must is not tantamount to a directed verdict. It is not even a functional equivalent. . . .

“The use of the word must in such an instruction has passed scrutiny in our Supreme Court. See State v. Storlazzi, 191 Conn. 453, 466 n.9, 464 A.2d 829 (1983); Crawford v. Warden, 189 Conn. 374, 382 n.2, 456 A.2d 312 (1983). While the court did not consider this exact issue, it did hold that [t]he instructions, read in their entirety, did not direct or advise the jury how to decide the matter . . . .” (Citation omitted; internal quotation marks omitted.) State v. Santiago, supra, 17 Conn. App. 279-80; see also State v. Colon, 272 Conn. 106, 232 n.83, 234, 864 A.2d 666 (2004) (reasonable doubt charge in entirety not improper), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005); State v. Montgomery, 254 Conn. 694, 729 n.39, 730, 759 A.2d 995 (2000) (same); State v. McCarthy, 105 Conn. App. 596, 626-28,939 A.2d 1195 (same), cert. denied, 286 Conn. 913, 944 A.2d 983 (2008). The defendant has failed to address any of those authorities in his appellate brief or to consider that the instruction is included in D. Borden & L. Orland, 5 Connecticut Practice Series: Criminal Jury Instructions (4th Ed. 2007) § 2.10, pp. 110-11 (“[i]f, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty”).

The challenged reasonable doubt instruction was but one sentence in the court’s lengthy charge that included general instructions on the function of the jury, burden of proof, the elements of the crime, the requirement that the state prove each and every element of the crimes charged beyond a reasonable doubt and the requirement that the jury is the sole finder of facts, among other things. We conclude that the court’s instruction did not invade the fact-finding province of the jury and direct the jury to find the defendant guilty.

2

The defendant also claims that the court directed the jury to a verdict of guilty by charging in part that “ [w]ith respect to the crime of capital felony, our law provides that no conviction can be had without testimony from two witnesses or the equivalent thereof. And, in this case, where the state has called approximately twenty-five witnesses, you may well find that that burden has been met. But that, like all factual decisions, is for you to determine.” We do not agree.

Again, in reviewing the defendant’s claim, we consider it in the context of the court’s charge. The court instructed the jury in part: “Let me talk [to] you about credibility, believability. You’ve observed the witnesses. The credibility, the believability, of those witnesses and the weight to be given to their testimony are matters entirely within your hands. It’s for you alone to determine their credibility. Whether or not you find a fact proven is not to be determined by the number of witnesses testifying for or against it. It’s the quality, not the quantity, of the testimony which should be controlling. Nor is it necessarily so that, because a witness testifies to a fact and no one contradicts it, you’re bound to accept that fact as true. The credibility of the witness and the truth of the fact is for you to determine. Bear in mind that, except for the charges of capital felony, one witness’ testimony is sufficient to convict, if it establishes all of the elements of a crime beyond a reasonable doubt.

“With respect to the crime of capital felony, our law provides that no conviction can be had without testimony from two witnesses or the equivalent thereof. And, in this case, where the state has called approximately twenty-five witnesses, you may well find that that burden has been met. But that, like all factual decisions, is for you to determine.” The defendant’s claim concerns the two witness rule of General Statutes § 54-83.

The defendant failed to take an exception to the court’s charge with regard to the two witness rule and seeks to reverse his conviction pursuant to Golding. The defendant’s claim is not of constitutional magnitude and therefore is not entitled to review. Section 54-83 provides that “[n]o person may be convicted of any crime punishable by death without the testimony of at least two Witnesses, or that which is equivalent thereto.” In State v. Ross, 230 Conn. 183, 219, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995), our Supreme Court recognized that “§ 54-83 is a statutory enactment that prescribes the nature of the evidence that the state must adduce to prove its case. Unlike the reasonable doubt rule; In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) (due process requires proof beyond reasonable doubt in criminal cases); Summerville v. Warden, 229 Conn. 397, 422-23, 641 A.2d 1356 (1994) (same); the evidentiary burden imposed by § 54-83 is not constitutionally compelled. See State v. Ross, supra, 219 (two witness rule is a statutory mandate).” (Internal quotation marks omitted.) State v. Day, 233 Conn. 813, 848, 661 A.2d 539 (1995), overruled in part on other grounds by State v. Connor, 292 Conn. 483, 528 n.29, 973 A.2d 627 (2009).

B

The defendant’s third instructional claim is that the court improperly informed the jury that the death penalty was not an issue in the case. We do not agree.

Again we set forth the context in which the challenged instruction was presented to the jury. Initially, in its general instructions, the court stated in part: “Do not be concerned in any way with punishment to be imposed in this case in the event of conviction. That is a matter exclusively within the province of the court, under the limitations and restrictions imposed by statute. You are to find the fact of guilt or innocence of [the defendant] uninfluenced by the probable punishment or consequences which would follow a conviction.”

Later, when the court was instructing the jury on the elements of the various crimes with which the defendant was charged, the court stated in part: “Now, that brings us to the two counts of capital felony. And since we’re talking about vicarious liability . . . because if the—we have a capital felony statute that provides that anyone who commits the crime of murder—murders two or more people at the same time or in the course of the same transaction, is guilty of capital felony. We call it capital felony, but the death penalty, as you know, I’m sure, is not in play—at issue in this case.”

The defendant bases his argument on the rule that “when a jury has no sentencing function, it should be admonished to reach its verdict without regard to what sentence may be imposed.” (Internal quotation marks omitted.) Shannon v. United States, 512 U.S. 573, 579, 114 S. Ct. 2419, 129 L. Ed. 2d 459 (1994). We understand the defendant’s claim to be that although the court told the jury that the defendant was not subject to the death penalty if he was found guilty, the court improperly failed to tell the jury that if it found the twenty-two year old defendant guilty, he faced life in prison. As such, the defendant argues the instruction underplayed the gravity of their deliberations and was not balanced.

In its appellate brief, the state properly points out that the mere name of the crime, capital felony, implies the death penalty. Rather than present the jury with an unbalanced view of the consequences of its verdict, the court’s instruction served to make clear that the death penalty was not a possible consequence of conviction of capital felony, without violating the rule that the jury is to return its verdict without concern for the sentence that may be imposed.

In the case of State v. Rizzo, 266 Conn. 171, 833 A.2d 363 (2003) (en banc), our Supreme Court considered the appropriate burden of persuasion on the weighing process in our capital sentencing scheme. Id., 224. In its analysis, our Supreme Court reasoned that “[d]eath is different. The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability.” (Internal quotation marks omitted.) Id., 226. “[B]ecause of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” (Internal quotation marks omitted.) Id., 226-27.

The issue of the death penalty is debated by society. See State v. Sostre, 261 Conn. 111, 130-38, 802 A.2d 754 (2002). The court’s instruction served to make the issue a nullity in this case. In doing so, the court did not violate the defendant’s constitutional rights or his right to a fair trial. The instruction had the benefit of permitting the jury to consider the evidence related to the capital offense alone, without the shadow of the greater societal concern regarding the death penalty. Compare State v. Griffin, 251 Conn. 671, 683, 741 A.2d 913 (1999) (“questioning venirepersons, prior to the guilt phase of the trial, about their beliefs regarding the death penalty, and excusing for cause those venirepersons whose opposition to the death penalty would interfere with the performance of their duties as jurors at the sentencing phase of the trial” does not infringe on right to impartial jury); see id., 683-709. The court should not be faulted for anticipating an issue likely to be in the minds of the jury and for clarifying the law relating to that issue. For these reasons, the defendant’s claim that the court’s instruction deprived him of an informed and impartial jury fails.

II

The defendant’s second claim is that the court abused its discretion by failing to conduct an adequate investigation into allegations of juror misconduct. More specifically, the defendant claims that the court’s inquiry was inadequate because the claim of juror misconduct concerned racial bias and communication between a juror and a member of a victim’s family. We conclude, given the factual circumstances of this case, that the court’s investigation was adequate pursuant to State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995) (en banc), and State v. Santiago, 245 Conn. 301, 323-40, 715 A.2d 1 (1998).

The foUowing facts are relevant to the defendant’s claim. On October 9, 2007, the jurors heard the closing arguments of counsel followed by the court’s instructions. At midday, the court interrupted its charge for the luncheon recess. When court reconvened, the following exchange took place between the court and counsel.

“The Court: Before we bring the jury in, there was a report from the victim advocate that one of our jurors apparently had a dead . . . battery .... And approached one of the victims’ widows to ask if she had a jumper cable. And the widow just froze and said nothing. Presumably, the juror walked away. I believe she’s in the courtroom.

“[Victims’ Advocate]: Yes, Your Honor.

“The Court: And . . . she is able to point out the juror. So, if anybody wants to do that, we can. But it sounds like no contact. No harm, no foul. And no knowledge of the identity of the person. So, the state request anything further?

“[The Prosecutor]: No, sir.

“The Court: Defense request anything further?

“[Defense Counsel]: No, Your Honor.

“The Court: Very well. Jury, please.” (Emphasis added.)

At sentencing on January 11, 2008, however, when the defendant addressed the court, he stated in part: “Today, I bring to the court’s attention something I brought to my lawyer’s attention before the verdict, which was a violation of trial procedure. It is easy to play the blame game and attack people. This solves nothing, only shows you can belittle someone. No, I don’t think this mishap occurred on purpose. A juror, who I later found out was the foreman of the jury, had contact with a family member of one of the victims .... She was not only a family member, she was the widow of the victim. They had contact outside the respective presence of court officials, as well as outside the compounds of the court.

“7 don’t feel at this time attacking the juror or family member will—and putting them through any questioning will make a difference. I would like to spare them of this ordeal as it would be animosity and embarrassment, which would be unnecessary. However, may I remind the court that any conversation held by a person of direct interest to this case with a juror could very well sway the entire jury, therefore hindering the fundamental backbone of a trial by jury system?

* * *

“Again, 7 stress the encounter seemed innocent enough, but because we cannot with 100 percent assurity detail the contents of this conversation in question, comments, questions or suggestions could have been made which may have swayed the view of this one juror. One must keep in mind, this was the foreman of the jury, from which, I was informed, the leader of the group who guides the rest of the jurors in a nonbiased matter so that they can weigh and judge the person sitting in the defendant’s box. And, yet this juror, after the incident was brought to light, was allowed to continue his duty, and the juror had thoughts in the head that were planted in [this] head of the jury by an outside source.

* * *

“It is a result of this event, I am respectively approaching the court to declare a mistrial. I will assume the court did not become aware of the full scope of this issue until today.” (Emphasis added.)

The court did not recall the events underlying the defendant’s request for a mistrial and addressed both counsel: “I have an unsupported allegation of juror misconduct. I have no motion. I have an obligation, as I understand the case law, to now conduct an inquiry to see if I need to go further. You wish to be heard?”

While counsel were conferring with one another, the court addressed the defendant, informing him that it was too late to move for a mistrial. The defendant then stated that he had brought the matter of juror misconduct to the attention of his counsel during trial. Thereafter, defense counsel addressed the court, stating, “I believe that this is not anew allegation,” and described the events that transpired during the luncheon recess, which refreshed the court’s memory. The court then noted that the inquiry at the time was on the record. Defense counsel offered nothing further but noted that the defendant again wanted to address the court. The court permitted the defendant to address it.

The defendant failed to raise his claims at trial and seeks to prevail under State v. Golding, supra, 213 Conn. 239-40. We will review the defendant’s claims because they are of constitutional magnitude. “Our jurisprudence on the issue of the right to an impartial jury is well settled. Jury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution. . . . [T]he right to jury trial guarantees to the criminally accused a fair trial by apanel of impartial, indifferent jurors.” (Internal quotation marks omitted.) State v. Roman, 262 Conn. 718, 725, 817 A.2d 100 (2003). The defendant cannot prevail, however, because he was not clearly deprived of a constitutional right and he clearly was not deprived of a fair trial.

“We have limited our role, on appeal, to a consideration of whether the trial court’s review of alleged jury misconduct can fairly be characterized as an abuse of its discretion. . . . Even with this circumscribed role, we have reserved the right to find an abuse of discretion in the highly unusual case in which such an abuse has occurred. . . . The trial judge’s discretion, which is a legal discretion, should be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Internal quotation marks omitted.) State v. Phillips, 102 Conn. App. 716, 722, 927 A.2d 931, cert. denied, 284 Conn. 923, 933 A.2d 727 (2007).

Our Supreme Court has held that “a trial court must conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case, regardless of whether an inquiry is requested by counsel. Although the form and scope of such an inquiry lie within a trial court’s discretion, the court must conduct some type of inquiry in response to allegations of jury misconduct. That form and scope may vary from a preliminary inquiry of counsel, at one end of the spectrum, to a full evidentiary hearing at the other end of the spectrum, and, of course, all points in between. Whether a preliminary inquiry of counsel, or some other limited form of proceeding, will lead to further, more extensive, proceedings will depend on what is disclosed dining the initial limited proceedings and on the exercise of the trial court’s sound discretion with respect thereto.” State v. Brown, supra, 235 Conn. 526.

A

The defendant first claims that the court’s inquiry was inadequate because the alleged juror misconduct concerned racial bias, and, therefore, the court was required to conduct an inquiry pursuant to State v. Santiago, supra, 245 Conn. 323-40. We disagree, as there was no suggestion of racial bias when the matter was presented to the trial court, and the defendant has failed to provide a factual predicate for his claim in this court that would require a remand for further inquiry.

In raising the claim on appeal, the defendant relies heavily on the cases of State v. Phillips, supra, 102 Conn. App. 716, and State v. Santiago, supra, 245 Conn. 301. Indeed, Santiago instructed that “[a]negations of racial bias on the part of a juror are fundamentally different from other types of juror misconduct because such conduct is, ipso facto, prejudicial . . . .” State v. Santiago, supra, 336. The defendant’s argument here is that in the face of racial bias, the court had no discretion with respect to the type of inquiry it must conduct. As the defendant states in his appellate brief, the inquiry by the court must include, “at a minimum, an extensive inquiry of the person reporting the conduct, to include the context of the remarks, an interview with any persons likely to have been a witness to the alleged conduct, and the juror alleged to have made the [biased] remarks.” (Internal quotation marks omitted.) State v. Phillips, supra, 724. Although we are bound by the legal principles on which Phillips and Santiago were decided, those cases are factually distinguishable from the case at hand, and the court was not required to conduct a more in-depth inquiry mandated by allegations of racial bias. “[A]ny assessment of the form and scope of the inquiry that a trial court must undertake when it is presented with allegations of jury misconduct will necessarily be fact specific.” (Internal quotation marks omitted.) State v. Santiago, supra, 331.

In Santiago and in Phillips, the defendants claimed racial bias by word or deed on the part of a juror. In Santiago, a member of the jury postverdict communicated to defense counsel and the clerk of the court that one of the other jurors had used the term “spic” in reference to the defendant, who was Hispanic. Id., 323-26. The court later examined that juror and the jury foreperson. In Phillips, the defendant filed an amended motion for an evidentiary hearing in which he alleged racial bias on the part of one of the jurors. State v. Phillips, supra, 102 Conn. App. 720. The court there “conducted an extensive inquiry of the juror reporting the conduct, of the juror alleged to have made racist remarks and also of the four other jury members who would have witnessed the alleged conduct.” Id.

In the present case, the information brought to the court’s attention concerned a parking lot encounter between a member of the jury and the widow of one of the victims. The victim advocate reported the incident and that the widow “froze and said nothing.” When the court learned of this encounter, it informed counsel and put the matter on the record. The court determined that the widow was in the courtroom and able to identify the juror. The court used a sports analogy, no harm, no foul, which we construe to mean that the juror and the widow did not discuss the case, and, therefore, there was no prejudice to the defendant. The court, however, asked the prosecutor and defense counsel if it should conduct a further inquiry. Defense counsel replied, “[n]o, Your Honor.”

In addressing the court prior to sentencing, the defendant, who identifies himself as being of Puerto Rican heritage, sought a mistrial. He did not suggest that the encounter between the juror and one of the widows was tainted by racial bias. He stated that he did not want the court to embarrass the juror or the victim’s widow by conducting a hearing and asked the court to declare a mistrial. He presented no factual basis to suggest racial bias. He merely insinuated that an improper conversation had taken place between the juror and the widow, which planted an improper motive in the mind of the juror. Even in his brief on appeal, the defendant has not presented any factual basis that racial bias tainted the jury in this case. We note that a defendant need not demonstrate that he was prejudiced by racial bias on the part of the jury; State v. Phillips, supra, 102 Conn. App. 718; but there must be some factual allegation to inform the court that racial bias is, in fact, at issue.

The alleged juror misconduct in this case does not contain a racial or ethnic basis, which sets it apart from Santiago and Phillips. The juror asked the widow of one of the victims in a parking lot whether she had jumper cables to deal with a dead battery. The irksome problem of a dead battery and the need for jumper cables are encountered by the driving public in general, without regard to race or ethnicity. We therefore conclude that there is no factual basis to suggest that the scope of the court’s inquiry was inadequate because it did not comport with the type of inquiry required in the face of an allegation of racial bias on the part of a juror. Compare State v. Johnson, 288 Conn. 236, 269, 951 A.2d 1257 (2008) (nothing in record suggests racial bias on part of any juror).

B

The defendant’s second claim is that the court abused its discretion by failing to make a meaningful inquiry into the juror misconduct that allegedly occurred when a member of the jury asked the widow of one of the victims if she had jumper cables. We disagree.

With respect to this claim, the defendant relies on State v. Roman, supra, 262 Conn. 718. In that case, “the trial court failed to make any meaningful inquiry into a specific and facially credible claim of juror misconduct, namely, that a juror had spoken to a member of the victim’s family.” Id., 727. Our Supreme Court remanded the case for the trial court to conduct an inquiry. Id., 729.

“To ensure that the jury will decide the case free from external influences that might interfere with the exercise of deliberate and unbiased judgment ... a trial court is required to conduct a preliminary inquiry, on the record, whenever it is presented with information tending to indicate the possibility of juror misconduct or partiality.” (Emphasis in original; internal quotation marks omitted.) Id., 726. Our Supreme Court has determined that “ [although the form and scope of such an inquiry lie within a trial court’s discretion, the court must conduct some type of inquiry in response to allegations of jur[or] misconduct. That form and scope may vary from a preliminary inquiry of counsel, at one end of the spectrum, to a full evidentiary hearing at the other end of the spectrum, and, of course, all points in between. Whether a preliminary inquiry of counsel, or some other limited form of proceeding, will lead to further, more extensive . . . proceedings will depend on what is disclosed during the initial limited proceedings and on the exercise of the trial court’s sound discretion with respect thereto.” (Emphasis in original; internal quotation marks omitted.) Id., 726-27.

The facts before us and those in Roman are distinguishable in that the court here conducted a preliminary inquiry on the record, which is in keeping with the directives of our Supreme Court. The representation of the victims’ advocate was that a victim’s widow was approached by a juror who asked if she had jumper cables. The widow “froze and said nothing.” There was no indication that a further conversation took place. The court concluded that no harm had occurred but determined that the widow was available for further inquiry and asked counsel if further inquiry were necessary. The defendant’s counsel declined a further inquiry. The court concluded that no further inquiry was needed, and we cannot conclude that the court abused its discretion by failing to pursue this matter further.

The judgment is affirmed.

In this opinion the other judges concurred.

       Stears and Rossi owned B & B Automotive, a vehicle repair business. Sinsigalli Signs was located next to B & B Automotive. On July 17, 2003, Christopher Sinsigalli, the owner of Sinsigalli Signs, noticed a red Mitsubishi automobile bearing New York license plates parked in the parking lot of his business. The car was moved from one parking space in the lot to another several times. He recorded the license plate number of the vehicle. When he saw him, Sinsigalli spoke briefly with the operator of the vehicle, who said that he was interested in buying a sign. When Sinsigalli returned to his business, the operator drove off. Sinsigalli identified Benedetto Cipriani as the operator of the vehicle from a photographic array prepared by the Windsor Locks police.

       In its appellate brief, the state summarized the facts, stating that “[t]he defendant, with foreknowledge of what was to occur, drove . . . Guzman from Hartford to B & B Automotive in Windsor Locks, where Guzman executed [the victims] by shooting each one in the head. The defendant thereafter drove Guzman back to Hartford and later collected a $2000 fee for his assistance.”

       Evidence was adduced at Cipriani’s trial that he was having an affair with Stears’ wife at the time of the murders.

       Martinez asked Cipriani what that meant; Cipriani told Martinez that he would be “dead, in a dump.”

       The red pickup truck was later identified as belonging to Stears.

       Later, Guzman put the gun he used to kill the victims on Martinez’ bed. Martinez told him to “get it out of there,” and Guzman put the gun under the back steps of the apartment. Two weeks later Martinez took the gun and sold it to someone for $250.

       Velazquez was busy at the time, and Martinez telephoned him three times before he arrived at the Flatbush Avenue apartment.

       When Guzman returned to Velazquez’ vehicle in the parking lot at the Stop and Shop, Velazquez asked Guzman why he had so much money. Guzman told him what he, Martinez and the defendant had done.

       The court sentenced the defendant to an effective term of life in prison plus twenty years.

       The defendant also sought review under the plain error doctrine. See Practice Book § 60-5. We decline to afford the claim plain error review because the issue presented is not one of those truly extraordinary situations the doctrine is intended to remedy. See State v. Gamble, 119 Conn. App. 287, 292 n.2, 987 A.2d 1049, cert. denied, 295 Conn. 915, 990 A.2d 867 (2010).

       The challenges to the jury instructions on reasonable doubt in each of those authorities used the language at issue in this appeal, but the language challenged here was not at issue in those prior cases.

       The court immediately thereafter instructed the juiy onpolice testimony.

       General Statutes § 53a-35a provides in relevant part: “[T]he sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows: (1) For a capital felony, a term of life imprisonment without the possibility of release unless a sentence of death is imposed in accordance with section 53a-46a . . . .”

       The reviewability of the defendant’s claim notwithstanding, we note that a similar charge was given by the trial court in State v. Ortiz, 252 Conn. 533, 578, 747 A.2d 487 (2000) (state called approximately forty witnesses). Although the claim raised here was not at issue in Ortiz, our Supreme Court in Ortiz quoted similar instructional language without negative comment.

       The defendant did not preserve this claim at trial and seeks reversal of his conviction pursuant to State v. Golding, supra, 213 Conn. 239-40. We review the claim because the record is adequate for review and the claim is of constitutional magnitude.

       In his appellate brief, the defendant asked this court to reverse his conviction on the basis of the alleged juror misconduct. During oral argument, the defendant agreed with the state’s position that the defendant’s remedy is a remand to the trial court to conduct a further inquiry. We agree with the state that should a defendant prevail on such a claim of juror misconduct on appeal, the remedy is to remand the case to the trial court for further proceedings according to law. See, e.g., State v. Roman, 262 Conn. 718, 729, 817 A.2d 100 (2003).

       The state argues that the claim is not reviewable because the defendant waived any right to raise the claim on appeal when his counsel informed the court that no investigation beyond that which occurred on the record was necessary. Although the record indicates that defense counsel told the court that no additional inquiry was necessary, we decide the matter on the merits of the defendant’s claim to make clear the scope of the inquiry that falls within a court’s discretion in the face of alleged juror misconduct. See State v. Waz, 240 Conn. 365, 371 n.11, 692 A.2d 1217 (1997) (in interest of justice, appellate court may exercise supervisory power to review unpreserved claim).
      We agree with the state, however, that ordinarily appellate review is not available to a party who follows one strategic path at trial and another on appeal, when the original strategy does not produce the desired result. See States. Beaulieu, 118 Conn. App. 1, 9, 982 A.2d 245, cert. denied, 294 Conn. 921, 984 A.2d 68 (2009). “To allow the [defendant] to seek reversal now that his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state [and the court] with that claim on appeal.” (Internal quotation marks omitted.) State v. Foster, 293 Conn. 327, 339, 977 A.2d 199 (2009).

       Defense counsel John T. Walkley stated: “And that was addressed. And it’s—to my knowledge, that it’s the same event. So, obviously, I did talk to [the defendant], we both did at that time, and we obviously addressed that issue. And whether it was a problem, you know, we explored it, and a record was made of that.”

       Defense counsel stated: “I think [the defendant] wants to put more on the record, Your Honor. That I’d rather have him put it on the record than through me.”

       Our Supreme Court concluded that the court’s inquiry was inadequate. State v. Santiago, supra, 245 Conn. 332. It instructed that “the trial court should consider the following factors in exercising its discretion as to the form and scope of a preliminary inquiry into allegations of jury misconduct: (1) the criminal defendant’s substantial interest in his constitutional right to a trial before an impartial jury; (2) the risk of deprivation of the defendant’s constitutional right to a trial before an impartial jury, which will vary with the seriousness and the credibility of the allegations of jury misconduct; and (3) the state’s interests of, inter alia, jury impartiality, protecting jurors’ privacy and maintaining public confidence in the jury system.” Id., 331.

       This court determined that the trial court interviewed the entire jury but that it “should have restricted its inquiry of the jury to a solicitation of objective facts relating to the allegations, including statements heard and conduct observed, and should not have inquired into the effect of those facts on each juror’s deliberations. The court should then have made an independent determination as to whether the evidence before it revealed racial bias on the part of a juror.” State v. Phillips, supra, 102 Conn. App. 729.

       This claim is not based on an allegation of racial bias.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    THEO SARGENT v. COMMISSIONER OF CORRECTION
    (AC 30385)
    Bishop, DiPentima and Peters, Js.

      Argued March 10
    officially released June 15, 2010

      Kalisha R. Raphael, assistant public defender, for the appellant (petitioner).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, former senior assistant state’s attorney, for the appellee (respondent).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

BISHOP, J.

The petitioner, Theo Sargent, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) denied his claim of actual innocence, (2) denied his claim of ineffective assistance of counsel and (3) failed to admit relevant evidence. We affirm the judgment of the habeas court.

This court previously set forth the underlying facts of this case in State v. Sargent, 87 Conn. App. 24, 864 A.2d 20, cert. denied, 273 Conn. 912, 870 A.2d 1082 (2005), and they were recited by the habeas court. “In November, 2000, several members of the narcotics enforcement unit of the New Haven police department were assigned to conduct a narcotics sting operation. In connection with the investigation, Officer Rachel Inconiglios was sent to purchase drugs in the area of 87 Kensington Street in New Haven. Inconiglios was working undercover in plain clothes and wearing a body microphone that allowed her to communicate to Detective Burnell A. Burrell and Detective Brian Mauro, backup officers who were monitoring her from a safe distance in unmarked vehicles. Also present was Sergeant Michael Canning, who supervised the operation. Inconiglios drove to 87 Kensington Street in an unmarked vehicle and stopped at an alleyway where a small group of men were gathered. After she got out of her vehicle, one of the men asked ‘how much’ she wanted. She responded ‘one’ and handed the man $20 in bills issued by the police department. She received a small ziplock bag containing a white rock substance that appeared to be crack cocaine. After the purchase, Inconiglios got back into her vehicle and relayed into the body microphone a brief description of the suspect.

“Inconiglios then drove to meet the backup officers at a prearranged location a few blocks away. She repeated to the officers a description of the suspect as a black male, about six feet tall, weighing 200 pounds, wearing a black knit cap, a black jacket, a blue polo shirt and tan moccasins. She testified that she took particular note of the suspect’s footwear because in her years of participating in undercover narcotics purchases, she had never seen a suspect wearing moccasins. Canning then relayed that description by cellular telephone to Officer Vincent Anastasio, a uniformed officer who was patrolling the area. Canning instructed Anastasio to drive to 87 Kensington Street and look for someone matching the description provided by Inconig-lios. After reaching the location, Anastasio observed four men gathered, three of whom were approximately five feet, seven inches to five feet, eight inches tall and a fourth man who was about six feet, one inch to six feet, two inches tall. From Anastasio’s experience patrolling the area and from having had direct contact with the [petitioner] on about six prior occasions, Anas-tasio was able to recognize the taller man in the group as the [petitioner]. Anastasio also was able to identify by name one of the other men in the group, but did not know the names of the other two men, although he did recognize them. From his vantage point about twenty-five feet away from the group, Anastasio observed that the [petitioner] was the only person wearing moccasins. He testified that in his several years working in the area, he had never seen a suspect wearing moccasins. Anastasio telephoned the backup officers and provided the name of the [petitioner] as the man fitting the description provided by Inconighos. In the meantime, a field test of the substance purchased from the [petitioner] revealed that it was cocaine. A full test of the suspected narcotics was later conducted and confirmed that the substance was freebase cocaine.

“Burrell compiled a photographic array that included the [petitioner’s] photograph and those of seven other men similar in appearance. On December 20, 2000, twenty days after the narcotics transaction at issue, Inconiglios viewed the array and identified the [petitioner] as the person who sold her the drugs. She later made an in-court identification of the [petitioner]. Bur-rell also compiled a police report of the narcotics transaction. The report, purportedly prepared on December 11, 2000, did not mention Anastasio or his identification of the [petitioner] immediately following the transaction but described Inconiglios’ identification of the [petitioner] from the photographic array, which did not occur until December 20, 2000, nine days after the report was prepared.

“At trial, the [petitioner] raised alibi and mistaken identity defenses, claiming that on the day in question, he had been at the Roger Everson House (Everson House), a residential facility that houses men on probation or parole. Records introduced at trial showed that the [petitioner] was staying at the Everson House on the day in question and that he did not sign out to leave the facility at any time that day. According to the testimony of one witness, it was possible to exit the facility through windows on the second floor, where the [petitioner’s] bedroom was located. A staff member testified that when doing his rounds on the day in question, he thought he saw the [petitioner] in his bed, but did not enter the [petitioner’s] room or pull back the bedsheets to confirm the [petitioner’s] presence. There was evidence that the Everson House is approximately a six minute drive or fifteen minute walk from 87 Ken-sington Street.” Id., 26-29.

Following a criminal trial, the jury found the petitioner guilty of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and sale of narcotics -within 1500 feet of a public elementary school in violation of General Statutes § 21a-278a (b). The court sentenced the petitioner to nine years incarceration for the sale of narcotics and three years incarceration for the sale of narcotics within 1500 feet of a public elementary school, to run consecutively, for a total effective sentence of twelve years incarceration. The petitioner appealed from his conviction to this court, and we affirmed the judgment of the trial court. Id., 26. Our Supreme Court denied certification to appeal. The petitioner next brought a petition for a writ of habeas corpus, claiming that he was deprived of his right to the effective assistance of trial counsel and that he was actually innocent. The habeas court denied the petition, and this appeal followed. Additional facts will be set forth as necessary.

I

The petitioner first claims that the habeas court improperly found that he had failed to prove that he was actually innocent of the charges of which he was convicted. Specifically, the petitioner argues that the court incorrectly applied the legal test for claims of actual innocence by failing to consider (1) whether he established by clear and convincing evidence, taking into account both the evidence at the habeas trial and the criminal trial, that he was actually innocent, and (2) whether a reasonable fact finder would find the petitioner guilty after considering all of the evidence from the habeas trial and the criminal trial and the reasonable inferences to be drawn from such evidence. We disagree.

The following factual and procedural history is relevant to our resolution of the petitioner’s claim. At the habeas trial, the petitioner alleged that his brother, Ernest Sargent, actually committed the sale of narcotics to Inconiglios on November 30, 2000, in the area of 87 Kensington Street in New Haven. The petitioner claimed that he did not know that his brother was on Kensington Street on that date and that it had never crossed his mind that he would have been there. The petitioner testified that he did not find out that his brother had been selling drugs on Kensington Street on that specific date until 2008. The petitioner claimed that he knew his brother would sometimes hang around in the area of Kensington and Garden Streets (Garden is located one street away from Kensington, and was the street where the petitioner lived with his mother and father). The petitioner also testified that the police had confused him with his brother on a prior occasion, but it never crossed his mind following his arrest, or when preparing for trial, that the police might have mistaken him for his brother in this instance. He testified that none of the multiple family members who lived in the area ever mentioned that it might have been his brother who the police had observed, even though they were aware that his brother had prior convictions for the sale of narcotics. The petitioner further stated that in the eight years following his conviction, he never considered that it might have been his brother. And the petitioner claimed that he had never seen his brother wearing tan or beige loafers or moccasins.

Ernest Sargent testified at the habeas hearing that he sold drugs, that he had four prior convictions for drug offenses, all of which originated in the area of Kensington Street, and that on the date in question, he was selling drugs in front of 87 Kensington Street. He testified that there were three or four other people present with him on that date, but the petitioner was not one of them. He further testified that 87 Kensington Street was the address where his grandmother lived and that he would sell drugs from that location every morning after returning from his job as a laborer in a warehouse, where he worked an 11:30 p.m. to 7 a.m. shift. He stated that he could not remember what he was wearing on that date but claimed to have owned a pair of tan and beige “Clarks” brand loafers that he often wore during that time period. He also testified that he looked like the petitioner, wore facial hair in a manner similar to the petitioner and had been mistaken for the petitioner in the past. He stated that he was aware that the petitioner had been arrested but did not come forward because he feared being prosecuted himself. It was not until eight years later, after being informed by the public defender’s office that the statute of limitations had expired on his prior drug sales, that he believed he could safely come forward.

On cross-examination, Ernest Sargent testified that he had a clean-shaven head on the date of the narcotics sale, that he lived on Fowler Street, which was fifteen minutes from Kensington Street, and that although he was often hot and tired after working the 11:30 p.m. to 7 a.m. shift in a warehouse, he would still sell drugs every morning in front of his grandmother’s residence after he had finished working. He conceded that his three convictions for the sale of narcotics came in the early 1990s and, except for a 1999 conviction for possession of marijuana, he had not been in trouble in recent years. He testified that he no longer had the tan loafers because he had thrown them out, but he said that the petitioner had seen him wearing those shoes in the past. He claimed that from 2002, when the petitioner was convicted, until 2008, when he came forward, he had felt badly that his brother was in jail but never said anything in his defense because he was afraid of going to jail. In response to questions from the court, Ernest Sargent stated that he knew the petitioner had been charged with selling narcotics on November 30, 2000, at the same location where Ernest Sargent claimed to sell drugs each morning. He acknowledged that he attended the petitioner’s trial, but it never crossed his mind that he might have been the one whom the police observed conducting this particular drug transaction.

In its memorandum of decision, the court stated its conclusion that Ernest Sargent’s testimony could not be termed “ ‘newly discovered evidence’ ” because it was information that could have been available to the petitioner at the time of trial with even a minimal amount of effort. The court noted that it could not accept the petitioner’s testimony that it never crossed his mind that his brother might have committed the crime, despite the fact that people had confused the two brothers in the past and that Ernest Sargent had sold drugs on a daily basis at the time and place where the undercover buy took place. Although the court found that Ernest Sargent bore a strong resemblance to the petitioner and credited his testimony that he was, in fact, a drug dealer in the Kensington Street area at the relevant time, the court found Ernest Sargent’s testimony to be contrived. Accordingly, the court did not credit his testimony that it was he, and not the petitioner, who had committed the sale of narcotics to Inconiglios. The court specifically discussed the difficulty it found in believing that Ernest Sargent sat by and said nothing while his brother was convicted and sentenced to a twelve year prison term for a crime he allegedly did not commit. The court further noted that it credited Inconiglios’ testimony regarding her identification of the petitioner in 2000 that she would not have made an identification from the photographic array if she were not 100 percent certain. The court also credited the testimony of Anastasio, who was familiar with the petitioner from the neighborhood and recognized him at the location of the sale of narcotics, rejecting the possibility that Ernest Sargent was the person that he had seen at the crime scene. Last, the court found that although the petitioner had a plausible alibi, which was that he was confined to Everson House at the time of the crime, the jury had rejected it. Quoting Johnson v. Commissioner of Correction, 101 Conn. App. 465, 470, 922 A.2d 221 (2007), the court concluded that the petitioner had “failed to establish by clear and convincing evidence that, taking into account all of the evidence—both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial—he [was] actually innocent of the crime of which he stands convicted.” (Internal quotation marks omitted.)

The petitioner’s two arguments relating to his claim of actual innocence correspond with the two prongs of the standard for actual innocence claims, as was set forth in Miller v. Commissioner of Correction, 242 Conn. 745, 747, 700 A.2d 1108 (1997). “In Miller . . . this court held that the proper standard for evaluating a freestanding claim of actual innocence ... is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence—both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial—he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom ... no reasonable fact finder would find the petitioner guilty of the crime.” (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 80-81, 967 A.2d 41 (2009).

Additionally, our Supreme Court has deemed the issue of whether a habeas petitioner must support his claim of actual innocence with newly discovered evidence an open question in our habeas jurisprudence. Clarke v. Commissioner of Correction, 249 Conn. 350, 358, 732 A.2d 754 (1999). This court, nevertheless, has held that a claim of actual innocence must be based on newly discovered evidence. In Weinberg v. Commissioner of Correction, 112 Conn. App. 100, 119, 962 A.2d 155, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009), we stated: “[A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered. . . . This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner’s criminal trial by the exercise of due diligence.” (Internal quotation marks omitted.) Because the habeas court in this instance found, based on both the trial and habeas court evidence, that the petitioner had not proven his actual innocence claim by clear and convincing evidence, we need not revisit the answer this court gave in Weinstein to the Supreme Court’s unanswered question regarding the need to present newly discovered evidence in support of an actual innocence claim in a habeas proceeding.

“With respect to the first component of the petitioner’s burden, namely, the factual finding of actual innocence by clear and convincing evidence . . . [t]he appropriate scope of review is whether, after an independent and scrupulous examination of the entire record, we are convinced that the finding of the habeas court that the petitioner is [not] actually innocent is supported by substantial evidence.” Miller v. Commissioner of Correction, supra, 242 Conn. 803.

The record belies the petitioner’s allegation that the court failed to consider whether the petitioner established by clear and convincing evidence, taking into account both the evidence at the habeas trial and the criminal trial, that he was actually innocent. The court’s memorandum of decision states plainly that it did in fact consider such evidence when it concluded that “the petitioner has failed to establish by clear and convincing evidence that, taking into account all of the evidence— both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial— he [was] actually innocent of the crime of which he stands convicted.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 101 Conn. App. 470. The factual findings set forth in the court’s memorandum of decision demonstrate that in assessing the petitioner’s actual innocence claim, the court considered evidence, both from the criminal trial and from the habeas trial.

Allied to the petitioner’s claim that the court did not consider the allegedly new evidence adduced at the habeas hearing, is his assertion that it was clearly erroneous for the court to accept the testimony of the police officers and to reject his brother’s testimony as contrived. As an appellate court, we do not reevaluate the credibility of testimony, nor will we do so in this case. “The 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.” (Internal quotation marks omitted.) Joseph v. Commissioner of Correction, 117 Conn. App. 431, 433, 979 A.2d 568, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009). Upon an independent and scrupulous review of the record, we find that there is substantial evidence to support the court’s conclusion that the petitioner failed to establish by clear and convincing evidence that he was actually innocent of the crimes of which he was convicted.

The petitioner also faults the court for not explicitly making a determination regarding the second prong of Miller, which requires that he must prove that “after considering all of [the] evidence and the inferences drawn therefrom ... no reasonable fact finder would find the petitioner guilty of the crime.” Miller v. Commissioner of Correction, supra, 242 Conn. 747. The petitioner appears to suggest that the court should have taken at face value all of the habeas testimony and the criminal trial testimony, especially his brother’s testimony and the alibi evidence from the criminal trial, and determined, on the basis of that evidence, whether a jury would have found the petitioner guilty. This misreading of Miller neglects the significance of the two part test. In order to get to the second prong, the court must first determine that there is clear and convincing evidence that the petitioner is actually innocent. Here, the court reached the contrary conclusion that the petitioner did not prove his actual innocence by clear and convincing evidence. Accordingly, there was no occasion for the court to consider Miller's second prong regarding the likely reaction of a jury to such evidence. Because the petitioner must satisfy each prong of the test in order to prove actual innocence, we conclude that it was not necessary for the court to reach the second prong in this instance. See Wilson v. Commissioner of Correction, 104 Conn. App. 224, 247, 932 A.2d 481 (2007). Accordingly, the petitioner’s claims regarding his assertion of actual innocence fail.

II

The petitioner next claims that the habeas court improperly concluded that he was not deprived of his right to the effective assistance of counsel. Specifically, the petitioner claims that he was prejudiced because his trial counsel failed to pursue a motion to suppress Inconiglios’ in-court and out-of-court identifications of him. We are not persuaded.

Initially, we set forth the well established standard of review for claims of ineffective assistance of counsel. “Whether 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 [an appellate] court unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) McCown v. Commissioner of Correction, 113 Conn. App. 117, 119, 966 A.2d 271, cert. denied, 292 Conn. 902, 971 A.2d 689 (2009).

“To determine whether the petitioner has demonstrated that counsel’s performance was ineffective, we apply the two part test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).” McCown v. Commissioner of Correction, supra, 113 Conn. App. 119. According to Strickland, “[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.” (Internal quotation marks omitted.) Turner v. Commissioner of Correction, 118 Conn. App. 565, 568, 984 A.2d 793 (2009), cert. denied, 296 Conn. 901, 991 A.2d 1104 (2010). “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 defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Internal quotation marks omitted.) Davey B. v. Commissioner of Correction, 114 Conn. App. 871, 876, 971 A.2d 735 (2009).

In accordance with the test set forth in Strickland, we first address whether the habeas court correctly determined that the petitioner’s trial counsel, Tara Knight, provided reasonably competent assistance, such that it was within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. “In order to show ineffective assistance for the failure to make [or proceed with] a suppression motion, the underlying motion must be shown to be meritorious, and there must be a reasonable probability that the verdict would have been different if the evidence had been suppressed.” (Internal quotation marks omitted.) Williams v. Commissioner of Correction, 120 Conn. App. 412, 428, 991 A.2d 705 (2010). After a careful review of the record, we conclude that the court correctly determined that counsel’s performance was reasonably competent.

The following facts are relevant to our resolution of the petitioner’s claim. Five days before the start of the petitioner’s criminal trial, Knight filed a motion to suppress the police identifications of the petitioner. Two days later, however, Knight asked to withdraw the motion and informed the trial court that “I discussed it with [the petitioner], and for tactical reasons we are not pursuing it.” (Internal quotation marks omitted.) Instead, Knight attempted to discredit the identification procedures through cross-examination of the police witnesses at trial. Knight confronted Burrell with certain discrepancies in his police report, most significantly, the fact that his report, dated December 11, 2000, noted that Inconiglios had selected the petitioner out of a photographic array as being the individual from whom she purchased crack cocaine, despite the fact that Inconiglios’ identification did not occur until December 20, 2000. Knight also established that Bur-rell’s report stated that members of the police narcotics team stopped a man matching the description provided by Inconiglios and identified the man as the petitioner, when in fact no one stopped the petitioner or anyone else for that matter. Knight also raised as an issue the fact that Inconiglios had been involved in two other undercover roles during the relevant time period and suggested that she may have been confused.

At the habeas trial, the petitioner alleged that any reasonably competent attorney would have pursued the motion to suppress and that if the motion had been pursued, Inconiglios would not have been able to testify regarding her identification and the result of the proceedings would have been different. The habeas court rejected this claim. The court specifically credited Knight’s testimony that she did not believe that the petitioner had a good chance of succeeding on the motion to suppress and that by litigating the motion, she would have given the police witnesses a dry run through the questions that she was planning to pose at trial. The court agreed with Knight’s assessment regarding the merits of the motion to suppress and had no quarrel with Knight’s strategic choice not to pursue the motion.

In its assessment of this issue, the habeas court accurately discussed and correctly applied the two-pronged test used when determining whether an identification should be suppressed. First, the court determines whether the identification was unnecessarily suggestive and, second, if so, the court makes an assessment whether the identification was rehable, despite its suggestiveness. See State v. Randolph, 284 Conn. 328, 384, 933 A.2d 1158 (2007). In assessing the likelihood that the petitioner’s motion to suppress would have been successful had it been pursued, the court found that there was nothing particularly suggestive about the photographic array that was presented to Inconiglios. The court observed that the eight individuals included in the array all had reasonably similar appearances and that there was no evidence that any police officer told Inconiglios anything about the petitioner or who would be in the array prior to her identification. Additionally, the court credited Burrell’s testimony that although his report was dated on December 11, 2000, he completed it over two days, starting it on December 11 and completing it on December 20, after Inconiglios had made the identification.

The habeas court found that the motion to suppress could have been denied solely on the ground that it was not unnecessarily suggestive. The court noted, as well, that even if a motion had been filed and the trial court had reached the second prong, the petitioner did not demonstrate that the identification was unreliable. The habeas court found that Inconiglios had viewed the suspect face to face in the daylight for approximately thirty seconds and that because Inconiglios knew she would have to provide her fellow officers with a description of the suspect and make a subsequent identification, she made a conscious effort to focus on the suspect’s appearance. The court noted that Inconig-lios testified that she would not have made the identification if she had not been 100 percent certain.

The habeas court credited Knight’s testimony that she weighed the likelihood of success on the motion to suppress against the tactical advantage that she would gain by being able to cross-examine the police officers at trial without having provided them a preview of the questions she intended to ask. The court found that Knight used this tactical advantage effectively by surprising the state with the discrepancies in Burrell’s report and then arguing during closing argument that this was evidence of a “ .‘sloppy investigation’ ” that was “ ‘fraught with problems.’ ” The court noted, as well, that this tactic contributed to a prosecutorial impropriety during rebuttal argument to the jury and prompted a question from the jury during its deliberation, which led to a motion for a mistrial. The court found that, although these events ultimately did not save the petitioner from conviction, it was clear that Knight’s tactical choice had the “potential to derail the state’s case.” The court, citing Williams v. Bronson, 21 Conn. App. 260, 266, 573 A.2d 330 (1990), noted that “[a] decision of counsel to try to discredit an identification through cross-examination rather than through a motion to suppress may be a sound decision. . . . Whether to afford a witness an opportunity to rehearse his testimony at a suppression hearing, especially when the prospects of suppression are negligible, is very much a tactical decision, not easily characterized as ineffective assistance of counsel.” (Citations omitted; internal quotation marks omitted.) Likewise, the court concluded that Knight’s decision to forgo a motion to suppress was a valid trial strategy, and, therefore, rejected the petitioner’s claim of ineffective assistance of counsel.

On appeal, the petitioner claims that the motion to suppress was likely to have been successful, as the identification by Inconiglios was unnecessarily suggestive and unreliable. In support of his claim, the petitioner asserts a fusillade of alleged defects in the identification procedures. These claims can generally be divided between those that center on Anastasio and those that involve Inconiglios. As to Anastasio, the petitioner claims that the identification was unreliable because Anastasio did not get a good look at the individual who matched Inconiglios’ description because he was twenty-five feet away, the suspect was standing behind three other men and was only visible from straight on because he was standing near the opening of an alley way. He also alleges that while Anastasio claimed to have been familiar with the petitioner from the neighborhood, Anastasio did not know that the petitioner had gold caps on his front six teeth. He also did not complete a police report. The petitioner also asserted the fact that Anastasio did not have much contact with Ernest Sargent, even though he did testify to sometimes seeing him in the neighborhood.

As to Inconiglios, the petitioner further claims that when Anastasio radioed Canning to provide the name of the individual who matched Inconiglios’ description, Inconiglios was still with Canning at the arranged meeting place. The petitioner also suggests that there was some impropriety on the part of the police because Burrell’s report, dated December 11, 2000, indicated that Inconiglios had selected the petitioner’s photograph out of an array, when Inconiglios did not select the photograph from the array until December 20,2000. Based on Anastasio’s identification of the petitioner as the individual who sold the cocaine to Inconiglios, Burrell placed the petitioner’s photograph in the array that he showed to Inconiglios. The petitioner also questions the reliability of the Inconiglios identification based on Inconiglios’ testimony that she had assumed that a photograph of the suspect would be in the array.

Upon a review of the record, we conclude that the court properly rejected the petitioner’s claim of ineffective assistance of counsel. Although, the petitioner raises a number of issues relating to the police identification procedures, none provides us with a ground for concluding that a motion to suppress would have been successful. At the outset in this part of our review, we note that the petitioner argued before the habeas court only that Inconiglios’ identification should have been suppressed. Thus, the issues raised regarding Anastas-io’s role in the identification only relate to how the petitioner’s photograph was made part of the array that was shown to Inconiglios, and it does not bear on the suggestiveness or reliability of Inconiglios’ identification of the petitioner. In terms of Inconiglios’ identification, there is no evidence to suggest she was coached, that she was provided information prior to making the identification or that there was anything suggestive about the photographs used in the array. In sum, the court properly concluded that the petitioner had a low likelihood of success had Knight chosen to pursue the motion to suppress. Because the petitioner failed to prove that the motion was meritorious, he also failed to show that Knight’s performance was not reasonably competent. Further, because the petitioner failed to establish the first prong of the Strickland test, we need not address the second prong. Accordingly, the petitioner’s claim of ineffective assistance of counsel must fail.

Ill

The petitioner finally claims that the habeas court improperly failed to consider relevant evidence. The petitioner attempted to introduce evidence that certain New Haven police officers, who were not involved in the petitioner’s case, falsely accused another New Haven resident of a drug offense due to a mistaken identification. The court excluded this evidence of the basis of relevance. The petitioner claims that this evidence should have been admitted to show that “there have been intentionally flawed police reports and misidentifi-cations of suspects in connection with narcotics investigations in the Kensington [Street] area.” We are not persuaded.

The following additional procedural facts are relevant to the petitioner’s claim. At the habeas trial, the petitioner attempted to introduce testimony from Marvin Conner, who was expected to testify that while being held at Roger Sherman House, a halfway house in New Haven, he was accused of numerous drug offenses, including possession of narcotics with intent to sell, which the police alleged to have occurred at 88 Kensing-ton Street in October, 2006. The police report related to Conner’s arrest indicated that an officer saw Conner engaged in the sale of narcotics and that the officer claimed that he was familiar with Conner from the neighborhood. Conner claimed that this was impossible because during the entire two years that the officer had been a police officer, Conner had been incarcerated. The case against Conner was eventually dismissed. The officer who authored the proffered police report was not involved in this case, but he was under the supervision of Canning, who was the supervisor in this case. The petitioner alleged that Conner’s testimony was relevant to this case due to the similarities between Conner’s case and this case.

The habeas court did not allow the police report or Conner’s testimony into evidence. The court explained that “[t]he fact that the New Haven police may have made a mistake in identification in [another] case does not bear heavily on whether there was mistaken identification in this case, at least absent more similarities between the two identifications. . . . [I]n these cases, different officers made the identifications. There’s no evidence ... of any influence that Sergeant Canning, who may have been in common in both cases, had on the officer who made the identification. . . . [I]t doesn’t seem to me that the possibility that there might have been [a] mistake by the New Haven police department in an identification . . . justifies, essentially, a minitrial on that identification procedure. . . . I’m interested in all of the evidence that’s relevant to this identification. But I’m not going to allow the trial of another identification.”

We first set forth our well established standard of review regarding evidentiary claims. “[E]videntiary 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.” (Internal quotation marks omitted.) McClean v. Commissioner of Correction, 103 Conn. App. 254, 260, 930 A.2d 693 (2007), cert. denied, 285 Conn. 913, 943 A.2d 473 (2008).

“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 irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . 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.” (Citations omitted; internal quotation marks omitted.) State v. Allen, 289 Conn. 550, 562, 958 A.2d 1214 (2008).

Here, the evidence proffered by the petitioner was that a New Haven police officer allegedly made a mistaken identification in a drug case, regarding a suspect named Conner. This police officer stated in his report that he knew Conner from the neighborhood, when he allegedly did not in fact know him. The petitioner claims that the information in the police report was similar to this case in that Anastasio testified to being familiar with the petitioner from the neighborhood, insinuating that the members of the New Haven police department routinely only claim familiarity in order to bolster their identifications of suspects. The petitioner also argues that Conner’s testimony was relevant because, just as in this case, the crime for which Conner was arrested took place on Kensington Street, and Canning was the supervisor of the officers in both cases.

Upon review of the record, we conclude that the court did not abuse its discretion in determining that the connection between the proffered evidence and this case was too tenuous to be probative. The fact that a New Haven police officer, who played no role in this case, may have made a mistaken identification in another case or may have included inaccurate information in his police report, has no bearing on the reliability of the eyewitness identification attested to by Anastasio or the identification from the photographic array made by Inconiglios. Neither Anastasio nor Inconiglios participated in the investigation or arrest of Conner, and any mistakes that may have occurred in that case are not probative of the claims in the case at hand regarding the officers’ respective identifications. The facts that the cases both arose from events on Kensington Street and that Canning was the supervisor of the officers in both cases, without more, are not more than, coincidental.

The judgment is affirmed.

In this opinion the other judges concurred.

       Inconiglios’ name and rank have changed since the relevant events in November, 2000, and she is now Sergeant Rachel Ross. For clarity, and intending no disrespect to Sergeant Ross, we will refer to her as her name and rank were in 2000.

       “There was evidence, however, that the facility’s alarm system was not functioning properly at the time and that during the facility’s fourteen years in operation, there were about a dozen known instances of residents missing.” State v. Sargent, supra, 87 Conn. App. 28 n.1.

       The petitioner claims that the habeas court’s finding that Burrell’s testimony was credible was clearly erroneous due to the fact that Burrell and Canning both testified that Burrell’s police report was inaccurate. The petitioner conflates accuracy with honesty. The fact that Burrell may have made mistakes on his report does not mean that he was untruthful when he testified before the court. Moreover, “[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.” (Internal quotation marks omitted.) Joseph v. Commissioner of Correction, supra, 117 Conn. App. 433.

       The petitioner disputes the habeas court’s factual finding that Inconiglios viewed the suspect for thirty seconds, noting that the entire transaction only took thirty seconds. While the petitioner may be correct that Inconiglios did not have her eyes trained on the suspect’s face for the entire transaction, she testified that based on her training and the fact that she knew she would need to make an identification after the transaction had been completed, she had made special note to get a good look at the suspect’s face. Thus, any small difference between the actual number of seconds that Inconiglios viewed the suspect’s face and the thirty seconds found by the court is of no significance.

       Even if we assume that the petitioner proved that Inconiglios was still present when the call was relayed to Canning, which the habeas court did not find, he does not explain how this would bear on the suggestiveness or the reliability of Inconiglios’ subsequent identification of the petitioner from a photographic array.