author: BORDEN, J.

text:
    STATE OF CONNECTICUT v. CHRISTOPHER THERRIEN
    (AC 29505)
    Flynn, C. J., and Beach and Borden, Js.

      Argued April 14
    officially released September 22, 2009

      Jeffrey C. Kestenband, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Anthony Boehicchio, senior assistant state’s attorney, for the appellee (state).
   Opinion

BORDEN, J.

The defendant, Christopher Therrien, appeals from the judgment of conviction, rendered after a jury trial, of harassment in the second degree in violation of General Statutes § 53a-183 (a) (3) and threatening in the second degree in violation of General Statutes § 53a-62 (a) (2). The defendant claims that (1) the trial court improperly denied his motion to dismiss filed pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), (2) the court improperly admitted evidence from the sentencing proceedings of his codefendants and (3) the prosecutor committed improprieties that deprived him of his due process right to a fair trial. We agree with the defendant’s claim of prosecutorial impropriety and, therefore, reverse the conviction on both counts and remand the case for a new trial. We also address the merits of the defendant’s first two claims because they are likely to arise on retrial.

The defendant was charged with witness intimidation in violation of General Statutes § 53a-151a (a) (2), harassment in the second degree in violation of § 53a-183 (a) (3) and threatening in the second degree in violation of § 53a-62 (a) (2). Prior to the trial, the defendant moved to dismiss all of the charges on the ground that the arrest warrant affidavit lacked probable cause. After a hearing, the court denied the defendant’s motion. The jury thereafter found the defendant guilty of harassment in the second degree and threatening in the second degree, and the court rendered judgment accordingly. This appeal followed.

The jury reasonably could have found the following facts. In July, 2006, Daniel Candella, the victim, was assaulted and robbed by several individuals in Lafayette Park in the Thompsonville section of Enfield. Three persons, the defendant, Joseph O’Hagen and a youthful offender, subsequently were arrested and convicted for their participation in the crime. O’Hagen was sentenced on February 2, 2007, and the youthful offender was sentenced on July 19, 2007, on criminal charges relating to their involvement in the Lafayette Park incident. The defendant was scheduled to be sentenced on August 9, 2007, on criminal charges pertaining to his involvement in the same incident.

At the sentencing proceedings for O’Hagen and for the youthful offender, Candella and his mother each appeared and spoke against the defendants. On at least one of these occasions, Candella cried and visibly was upset.

On July 27, 2007, eight days after the youthful offender’s sentencing and twelve days before the defendant’s scheduled sentencing proceedings, Candella received a telephone call, at approximately 7:45 p.m., on his cellular telephone while working at his place of employment. Candella’s cellular telephone did not display the caller’s telephone number and only indicated that it was a “private caller.” Although he did not know who was calling him, Candella answered the telephone call. The caller was Andrew Polowitzer. Candella previously had worked with Polowitzer at a Panera Bread store and, in 2006, lived in Polowitzer’s apartment for one day. Polowitzer threatened Candella, stating that he and his brother were in trouble and were “going to die.” The telephone, from which Polowitzer was speaking, was then given to Shane Connors, who identified himself and threatened to kill Candella and his family. At the time of the telephone call, Connors was a roommate of Polowitzer and had worked with Candella at the Panera Bread store.

The telephone was then “passed” to a third caller, whose voice Candella did not recognize. This individual said that Candella had been “a little bitch” during a court proceeding at which Candella had cried, and he threatened to “slit [Candella’s mother’s] stomach, take a piss on her . . . while [Candella’s] father was watching and kill [Candella’s] dog . . . .” When Candella challenged the third caller to reveal himself, the third caller identified himself as “Chris, who kicked [your] ass at the park.”

Joann Malone was working with Candella when he received the telephone call. Candella left the room to take the call. Although the door was shut, Malone could hear Candella talking loudly outside the door. About one minute later, Candella returned to the room, screaming. He put his cellular telephone to Malone’s ear, and she heard an unknown voice threaten to kill Candella and his family. Candella ended the telephone call and immediately dialed 911. He was instructed to go to the East Windsor police department.

Sergeant Michael R. Poliquin was dispatched from the road to meet Candella at the police station. When Poliquin arrived at the police station, he saw Candella, who was hysterical, crying and agitated, in the lobby area speaking on his cellular telephone. Poliquin took Candella’s cellular telephone and introduced himself to the individual on the line. After a brief pause, the individual identified himself as Polowitzer. Poliquin spoke with Polowitzer briefly before ending the telephone call. Connors then called the police station and spoke with Poliquin. Thereafter, both Polowitzer and Connors voluntarily came to the police station and were interviewed by Officer Darren Seligman. Polowitzer and Connors told the police that the call pertained to a $200 rent debt that Candella owed to Polowitzer, which had been discussed during the initial telephone call to Candella.

On August 10, 2007, the defendant was arraigned in the Superior Court in Enfield. Supervisory judicial marshal John Maloney was on duty in the courthouse that day. After seeing the defendant in court, Maloney saw him again and heard the defendant say, “I make one phone call and it gets all crazy.”

I

The defendant first claims that the court improperly denied his motion to dismiss pursuant to Franks v. Delaware, supra, 438 U.S. 154. The defendant claims that his conviction should be reversed because the “court should have granted his Franks motion and dismissed the charges” against him. This claim requires little discussion.

Prior to the commencement of the trial, the defendant moved for an evidentiary hearing in accordance with Franks v. Delaware, supra, 438 U.S. 154. The motion contained twelve challenges to the arrest warrant affidavit, three allegedly material falsehoods and nine allegedly material omissions. The court gave the defendant the opportunity to make an offer of proof, which he did through the testimony of Poliquin, Seligman and the defendant’s father. The defendant then argued five of his twelve challenges. Neither in the trial court nor in this court has the defendant challenged the admissibility of any evidence gathered as a result of the warrant; indeed, he could not do so because there was no such evidence. The state rebutted the defendant’s arguments on their merits, and the court thereafter denied the defendant’s motion for a Franks hearing and declined to dismiss the charges.

“In Franks v. Delaware, supra, [438 U.S.] 155-56, the United States Supreme Court held that where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the [f]ourth [a]mendment requires that a hearing be held at the defendant’s request. . . . The court in Franks mentioned only a false statement . . . included . . . in the warrant affidavit; subsequent cases, however, have extended Franks to include material omissions from such an affidavit.” (Internal quotation marks omitted.) State v. Grant, 286 Conn. 499, 519-20, 944 A.2d 947, cert. denied, 555 U.S. 916, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008). If the ensuing Franks hearing discloses either an intentional or reckless falsehood, the court must excise that material from the affidavit and judge the probable cause of the affidavit shorn of that material. Franks v. Delaware, supra, 171-72.

Our Supreme Court has long held that an illegal arrest does not deprive the court of personal jurisdiction over the defendant and, therefore, that it does not provide a valid basis for a motion to dismiss. See, e.g., State v. Fleming, 198 Conn. 255, 259-63, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986). The same principle applies in the context of a claimed Franks violation; the remedy for an arrest on the basis of an insufficient warrant is the suppression of any evidence obtained thereby. “A Franks violation in an affidavit supporting an arrest warrant does not entitle a defendant to the dismissal of the charges for which he was arrested. Such a violation may require the suppression of evidence or statements obtained as a result of the execution of the warrant but it does not deprive the court of jurisdiction nor does it bar a subsequent prosecution or void a resulting conviction.” State v. Patterson, 213 Conn. 708, 715-16, 570 A.2d 174 (1990). Because the defendant did not seek to suppress any evidence gathered as a result of the arrest warrant and limited his claim to dismissal of the charges, the court, by even entertaining his motion to dismiss on the basis of an alleged Franks violation, afforded him more process than he was due.

We reject the defendant’s contention that the Fleming principle does not apply when, as in the present case, the defendant seeks to invalidate the arrest warrant on what he terms as the substantive ground of lack of probable cause. State v. Patterson, supra, 213 Conn. 714-16, answers that contention, because, in that case, the defendant sought dismissal of the prosecution on the ground that the warrant, when tested under Franks, lacked probable cause.

II

The defendant next claims that the court improperly admitted evidence of Candella’s involvement in the sentencing proceedings of O’Hagen and the youthful offender to prove that the defendant had a motive to threaten Candella. The defendant claims that the court abused its discretion in admitting such evidence because the state failed to lay a foundation that he had knowledge of Candella’s involvement in those proceedings. We disagree.

“A trial court’s ruling on the admissibility of evidence is afforded great deference. . . . The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Eveiy reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Morgan, 70 Conn. App. 255, 263, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002).

“It is well settled that [t]he proffering party bears the burden of establishing the relevance of the offered [evidence]. Unless such a proper foundation is established, the evidence ... is irrelevant. . . . We have often stated that [e]vidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. . . . One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable.” (Citation omitted; internal quotation marks omitted.) Id. “Evidence is irrelevant 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.” (Internal quotation marks omitted.) State v. Liborio A., 93 Conn. App. 279, 288, 889 A.2d 821 (2006).

Prior to the commencement of evidence in the defendant’s trial, a hearing was held regarding the state’s notice of intent to offer evidence of prior misconduct relating to the defendant’s involvement in the Lafayette Park incident as relevant to show the defendant’s intent, identity and motive. Although it is unclear from the record whether the state’s proffer at this point included evidence relating to the sentencing hearings of O’Hagen and the youthful offender, the defendant argued that the prior misconduct evidence would be inadmissible absent specific proof that the defendant knew what happened at the sentencing hearings. The court characterized the state’s offer as encompassing “evidence related to [the defendant’s] involvement in a robbery of [Candella] and evidence related to the legal proceedings, to wit, the conviction and sentencing hearing of [the defendant] for the crime involving [Candella],” and admitted the evidence for the limited purposes of showing the defendant’s intent, identity and motive and as proof of an element of the crime of intimidating a witness.

Candella testified that the defendant told him, during the telephone call, that Candella “was a little bitch in court when [he] went to someone’s court trial and that [he] was crying there.” Candella testified that the defendant then said that he was “going to slit [Candella’s mother’s] stomach, take a piss on her . . . while [Can-della’s] father was watching and kill [Candella’s] dog . . . .” The prosecutor asked in a follow-up question whether Candella recently had been to any court hearings at about the time he received the threatening telephone call. The defendant objected on the ground of relevance, and the prosecutor argued that the question was relevant to “what was said on the phone in relationship to when it was said.” The court overruled the defendant’s objection, and Candella testified that he recently had been to a court proceeding. He also testified that during both court appearances, he had been emotional and that he was “crying” and “upset.” Moreover, Candella testified that, at the time he received the threatening telephone call, the defendant had an upcoming sentencing hearing relating to the defendant’s involvement in the Lafayette Park incident.

Candella’s mother also testified that she had spoken at the sentencing hearings of O’Hagen and the youthful offender and that the last proceeding had occurred in July, 2007. As the state was about to ask its next question, the defendant asserted the “same relevance objection that [he] had before” and argued that a “crucial link” was missing. The prosecutor argued that it “goes once again to motive and intent, an element of the crime . . . The court overruled the defendant’s objection, and Candella’s mother testified that the defendant’s sentencing in the Lafayette Park incident was scheduled to occur about one week after her son had received the threatening telephone call.

We conclude that the court did not abuse its discretion in admitting the evidence relating to Candella’s involvement in the sentencing proceedings of O’Hagen and the youthful offender. The requisite connection between Candella’s involvement in the two prior sentencing proceedings and the present crimes was established through his testimony that the defendant accused him of being “a little bitch in court” and crying at “someone’s court trial,” before he threatened to cut the stomach of Candella’s mother and to kill his dog. This testimony supports the inferences that the defendant was aware of Candella’s involvement in the prior sentencing proceedings of O’Hagan and the youthful offender and that the threats made by the defendant over the telephone were related to such involvement. Moreover, this testimony supports the further inference that the defendant was motivated to make the call to persuade Candella not to appear and to speak at the defendant’s sentencing hearing, which was scheduled to occur two weeks after Candella received the threatening telephone call.

Ill

In his final claim, the defendant asserts that the prosecutor committed improprieties that deprived him of a fair trial. Specifically, the defendant argues that it was improper for the prosecutor, during closing argument, (1) to reference a “total access phone” because in doing so the prosecutor referred to a fact that was not in evidence and (2) to suggest that the defendant did not need to be physically present to be a party to the threatening telephone call because such a suggestion was unsupported by the evidence and, therefore, speculative. We agree.

We note that the defendant did not object to the improprieties he now claims on appeal. The defendant’s failure to object, however, does not preclude review of his claim. As our Supreme Court has recognized, “a claim of prosecutorial impropriety, even in the absence of an objection, has constitutional implications and requires a due process analysis under State v. Williams, 204 Conn. 523, 535-40, 529 A.2d 653 (1987).” State v. Gould, 290 Conn. 70, 77, 961 A.2d 975 (2009). “This does not mean, however, that the absence of an objection at trial does not play a significant role in the application of the Williams factors. To the contrary, the determination of whether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any [incident] of the prosecutor’s improper [conduct].” (Internal quotation marks omitted.) State v. Warholic, 278 Conn. 354, 361, 897 A.2d 569 (2006).

“In analyzing claims of prosecutorial impropriety, we engage in a two step process. . . . First, we must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial. ... To determine whether the defendant was deprived of his due process right to a fair trial, we must determine whether the sum total of [the prosecutor’s] improprieties rendered the defendant’s [trial] fundamentally unfair, in violation of his right to due process. . . . The question of whether the defendant has been prejudiced by prosecutorial [impropriety], therefore, depends on whether there is a reasonable likelihood that the jury’s verdict would have been different absent the sum total of the improprieties.” (Internal quotation marks omitted.) State v. Gould, supra, 290 Conn. 77-78.

The defense theories at trial were, namely, a denial of participation in the call and an alibi. To support these theories, the defendant called several witnesses, including his father, Paul Therrien; several family friends; and Connors. Paul Therrien testified that on July 27, 2007, he arrived home from work at 4:30 p.m. and that the defendant arrived home at about 5:30 p.m. Paul Therrien testified that the defendant did not leave the family residence that night and that if the defendant had left he would have informed Paul Therrien, as the defendant typically let Paul Therrien know when “he [was] coming and going.” Paul Therrien also testified that family friends Linda Hebert, Russell Hebert and Tina Nadeau came to the house that evening.

Linda Hebert testified that on the evening of July 27, 2007, she and her husband, Russell Hebert, went to the defendant’s house to visit Paul Therrien and his wife. She further testified that when she and her husband arrived at the defendant’s house at about 6:30 p.m., she went to the back of the house to use the bathroom, and, on her way, she saw the defendant sitting in the living room at a desk with a computer. She testified that she stayed at the defendant’s house until 11:30 p.m. and did not see the defendant leave the house while she was there.

Russell Hebert testified that he arrived at the defendant’s home on the night of the incident sometime after 6 p.m. and that he saw the defendant there. He testified that he first saw the defendant outside near the front door and then saw him inside the house in the living room. He further testified that he left the defendant’s house sometime after 11 p.m. and that he never saw the defendant leave or return to the house while he was there.

Nadeau testified that, on July 27, 2007, she stopped by the defendant’s house sometime between 7:30 p.m. and 8 p.m. to drop off some clothes for the defendant’s sisters. She testified that when she arrived, she went into the house and saw the defendant sitting in a chair in the living room.

Corinne Langley testified that on the evening of July 27, 2007, she called the defendant’s residence several times. One of the calls Langley made occurred at about 9 p.m. and was made to the cellular telephone of the defendant’s mother. Langley testified that the defendant answered his mother’s cellular telephone and that they had a brief conversation.

Connors testified that on the night of the incident, he and Polowitzer were at the apartment that they shared, that Polowitzer used his cellular telephone to call Candella and that Connors did not immediately participate in the telephone call, but after hearing Can-della say some things regarding the defendant, who is Connors’ friend, Connors took the telephone from Polowtizer to speak to Candella. Connors further testified that after speaking to Candella, Connors ended the telephone call and that the defendant was not at Connors’ apartment the night of the incident and did not participate in the telephone call.

The defendant also introduced into evidence his home telephone records to support his alibi. The defendant’s home telephone records, which were marked as a full exhibit, did not show any calls to or from the cellular telephones of Connors or Polowitzer at approximately 7:45 p.m. Connors testified that he and Polowit-zer each have a cellular telephone but that they do not have a home telephone. Moreover, no evidence was presented that the defendant had access to any other telephones, other than his home telephone or his mother’s cellular telephone.

In addition, the defendant introduced, as full exhibits, a statement and affidavit and amendment made by Connors as well as a statement and affidavit and amendment made by Polowitzer. Connors and Polowitzer indicated in these documents that Polowitzer called Candella on July 27, 2007, the telephone call was made from the apartment that Connors and Polowitzer shared, that both Connors and Polowitzer participated in the telephone call, that the telephone call pertained to the $200 rent allegedly owed by Candella and that the defendant “was not present during [the telephone call].”

During closing argument, the prosecutor argued with respect to the defendant’s alibi evidence the following: “Now, we never allege where [the defendant] was when the phone call was made. Our allegation is that there was a call received by [Candella] .... I never alleged where [the defendant] was, whether [the defendant, Polowitzer and Connors] were all together when the call was made, simply that a call was made and the party who got on the phone.” After pointing out the inconsistencies in the testimony of the alibi witnesses, the prosecutor then stated: “Once again, I’d argue [that] the claim isn’t where [the defendant] was, the claim is [that] a phone call was made . . . .” The prosecutor later stated: “The defense focus that I remember is on alibi, but once again we never alleged nor are we required to prove where [the defendant] was when the phone call was made or [where anybody was] when the phone call was made. What we’re looking to prove is that a phone call was made, who it was received by and who made it.” In referring to the testimony of the witnesses and how such testimony fits together to show that the defendant participated in the threatening telephone call, the prosecutor noted that the defendant asserted an alibi defense but that “we never challenged where [the defendant was].” Finally, near the end of his argument, the prosecutor reiterated: “Once again, we don’t allege where the call was made. We don’t allege how the call was made. We allege that there was a call.”

The prosecutor began his rebuttal closing argument by stating: “I never said and we never alleged that [the defendant was] with [Connors] and [Polowitzer] when the phone call was made .... [I] [n]ever said they were in the same building, it could have been a total access phone, [I] just said they were on the same line.” He then went on to state: “Again, I would argue again the point of an alibi, when we’re not alleging [that the defendant] was home or not home, just that [the defendant] was on the other end of that phone. With today’s modem technology we all know that it’s very easy to be on phones and not be standing right next to somebody.” Finally, near the end of his rebuttal, the prosecutor reiterated: “I didn’t say where [the defendant] was. I didn’t allege where [the defendant] was. I allege [the defendant] [was] on the phone. I allege a call was made. I allege a threat was made.”

A

First, we determine whether prosecutorial improprieties occurred. “[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Moreover, [i]t does not follow . . . that every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument. . . . Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s attention from the facts of the case. . . . This heightened duty derives from . . . the special role played by the state’s attorney in a criminal trial. He is not only an officer of the court . . . but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent. In discharging his most important duties, he deserves and receives in peculiar degree the support of the court and the respect of the citizens of the county. By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment.” (Internal quotation marks omitted.) State v. Camacho, 282 Conn. 328, 367-68, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007).

It is well established that “a prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. . . . Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument. ... A prosecutor may invite the jury to draw reasonable inferences from the evidence; however, he or she may not invite sheer speculation unconnected to evidence. . . . Moreover, when a prosecutor suggests a fact not in evidence, there is a risk that the jury may conclude that he or she has independent knowledge of facts that could not be presented to the jury.” (Citation omitted; internal quotation marks omitted.) State v. Ceballos, 266 Conn. 364, 400, 832 A.2d 14 (2003).

The state concedes, and we agree, that it was improper for the prosecutor to mention the “total access phone” during closing arguments because “no evidence was adduced relating to this particular device, and its specific nature is not commonly known.” The state, however, contends that the reference to the defendant not having to be physically present to be a party to the telephone call was not improper. We conclude that it was improper for the prosecutor to have suggested that the defendant did not have to be physically present to be a party to the call.

Until the state’s final argument, a significant portion of which was aimed at discrediting the defendant’s alibi evidence, it was apparent that the state’s theory of prosecution was that all three persons—Polowitzer, Connors and the defendant—participated in the telephone call together at Connors’ apartment and that the defendant was the third person to whom the telephone was “passed” for him to make his offending remarks to Candella. We reject the state’s attempt on appeal to bifurcate its argument in the trial court into two parts: the concededly improper reference to a “total access phone” and a proper reference to some other method by which the defendant could have participated in the call without being present at the apartment. Indeed, the state apparently had some difficulty in this court in describing such a method, resorting to the scenario that the defendant, at some other location, called in on another telephone and that Connors or Polowitzer then placed two telephones together so that the defendant’s voice was somehow transmitted from his telephone, located elsewhere, to the telephone from which the call was made and thereby to Candella’s ear.

We can only describe such a scenario as equally devoid of evidence in the record as a reference to a total access telephone. Indeed, we conclude that the most likely understanding by the jury of the state’s argument was that both the reference to the total access telephone and the other scenario were fair game for an inference by the jurors that they should discredit the defendant’s alibi because there was evidence the defendant could have participated in the telephone call from somewhere else. This was not, however, fair game for an inference; it was speculation, to say the least.

B

Having determined that prosecutorial improprieties occurred, we now must determine whether such improprieties deprived the defendant of his due process right to a fair trial. In determining whether the defendant was deprived of a fair trial, we apply the factors enumerated by our Supreme Court in State v. Williams, supra, 204 Conn. 540, which include “the extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted.) Id.

We first determine whether the improprieties were invited by defense counsel. After a review of the record, we conclude that defense counsel did not invite the improprieties.

We next consider whether the improprieties were frequent or severe. Although the prosecutor referenced the “total access phone” only once in his rebuttal argument, the prosecutor did stress, on eight occasions during his closing argument and rebuttal, that he was not claiming that the defendant was with Connors or Polow-itzer, only that a call was made. Taking them together, as we must, we determine that the improprieties occurred frequently.

In determining whether the prosecutorial impropriety was severe, our Supreme Court “consider[s] it highly significant that defense counsel failed to object to . . . the improper [remark], [to] request curative instructions, or [to] move for a mistrial.... A failure to object demonstrates that defense counsel presumably [did] not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant’s right to a fair trial.” (Citation omitted; internal quotation marks omitted.) State v. Fauci, 282 Conn. 23, 51, 917 A.2d 978 (2007). In the present case, defense counsel did not object to the improper comments at trial, request a curative instruction or move for a mistrial in relation to the improprieties he now claims on appeal.

“Beyond defense counsel’s failure to object, in determining the severity of prosecutorial impropriety, we look to whether the impropriety was blatantly egregious or inexcusable.” Id. In Fauci, our Supreme Court determined that the improper comment, regarding facts that were not in evidence, made by the prosecutor during closing arguments was not severe because defense counsel did not object and because the comment was mitigated by other comments made by the prosecutor that “tended to vouch for the alibi of the defendant.” Id., 52.

Although defense counsel did not object to the comments made by the prosecutor in the present case, the prosecutor did not mitigate the harmfulness of his comments by lending support to the defendant’s defense as in Fauci) rather, the prosecutor’s comments were aimed at rendering the defendant’s alibi evidence irrelevant. During trial, the prosecutor did not present any evidence that the defendant could have participated in the telephone call without physically being present. The defendant presented strong alibi evidence: five individuals testified that he was home at the time the telephone call was made. Additionally, the defendant’s home telephone records did not show that the defendant made or received any calls from Connors or Polowitzer at about the time of the telephone call. Moreover, Connors testified that the defendant did not participate in the telephone call, and the defendant’s involvement in the telephone call was denied by both Connors and Polowi-tzer in the amendments to their affidavits to police. Therefore, the only way that the defendant could have participated in the call, on the basis of the evidence presented, was if the defendant was with Connors and Polowitzer when they made the call. The prosecutor, however, during closing and rebuttal arguments, gave the jury the means to find the defendant guilty without being in the presence of Connors or Polowitzer. This line of argument was contrary to the evidence presented at trial and misled the jury. We therefore conclude that although the defendant did not object, in the context of this case, the comments made by the prosecutor were severe.

Turning to the next factor, we determine that the improprieties made by the prosecutor were critical to the central issue in the case, that is, whether the defendant participated in the threatening telephone call. Can-della testified that he received a call in which he and his family were threatened on July 27, 2007. He testified that there were three callers involved in the telephone call and that the third caller identified himself as “Chris, who kicked [your] ass at the park.” Candella, however, also testified that the telephone was “passed” to the third caller, thereby strongly suggesting that the third caller physically was at the same location as the first two callers. The defendant did not dispute that approximately one year before the telephone call was made, he had been involved in a confrontation with Candella in Lafayette Park, in which the defendant physically hurt Candella. Connors, however, testified that the telephone call was made from the apartment that he shared with Polowitzer and that the defendant was not present in the apartment, nor had he participated in any way. In addition, the amendments to the affidavits of both Connors and Polowitzer specifically stated that the defendant “was not present during [the telephone call].” Furthermore, the defendant had strong alibi evidence, backed up by telephone records, placing him at his home at the time of the telephone call. Thus, whether the defendant physically was located in the same place as Connors and Polowitzer was critical to determining whether the defendant participated in the call.

Finally, the state’s case was not strong: there was no physical evidence tying the defendant to the telephone call, and the only evidence connecting him to the crime was the testimony of Candella and Maloney, the supervisory judicial marshal, which was undermined on cross-examination and through the testimony of other witnesses. See State v. Montoya, 110 Conn. App. 97, 109, 954 A.2d 193 (“cases that lack conclusive physical evidence and are merely credibility contests are not particularly strong cases”), cert. denied, 289 Conn. 941, 959 A.2d 1008 (2008).

Candella’s testimony was impeached on several occasions. For example, he denied that he compared the telephone call he received to the terrorist attacks of September 11, 2001, and to the Iraq war. Poliquin, however, confirmed that Candella did in fact make that comparison when Poliquin spoke to Candella on the night of the call. Candella also testified that he never used illegal drugs and that he did not tell Poliquin that he previously had smoked marijuana, whereas Poliquin testified that Candella admitted that he smoked “weed. ” With regard to the alleged $200 debt Candella owed to Polowitzer, Candella testified that there was no discussion of the alleged debt during the telephone call and that he never told Poliquin that the subject came up during the telephone call. Poliquin testified, however, that, when he confronted Candella about the $200 debt at the police station on the evening of the incident, Candella admitted that it came up during the telephone call.

Candella’s testimony also was inconsistent with the recollection of his mother concerning the events following the telephone call. Candella testified that he called his parents’ house telephone and cellular telephones after he received the call to make sure they were safe. He testified that he called his parents “at least twenty times” before he finally reached them approximately one hour after he first called them. Candella’s mother, to the contrary, testified that she answered his call at 7:45 p.m., which was immediately after he received the threatening telephone call.

Candella’s testimony was also inconsistent with the testimony of probation officer Cynthia Cole. The defendant attempted to demonstrate Candella’s bias toward the defendant with evidence that Candella had told Cole that he wanted the defendant to receive the maximum sentence in the Lafayette Park case. Candella denied that he was contacted by Cole and that he had told her that he wanted the defendant to get the maximum sentence. Cole contradicted him, stating that she did speak with him and that he told her that the defendant should receive the maximum sentence for his role in the Lafayette Park incident. Candella’s mother even contradicted her son’s testimony when she testified that he had told her that he wanted the individuals involved in the Lafayette Park incident to receive the maximum sentence.

Maloney’s credibility also was called into question. During his testimony, Maloney claimed to have remembered the defendant’s exact words eleven days after he heard them even though he stated that he “put it out of his head” as soon as the statement was made and did not think about the defendant in the intervening period. Maloney also admitted that he was mistaken about the defendant’s exact words despite his initial certainty.

In light of the foregoing, we conclude that the defendant has demonstrated that he was deprived of his due process right to a fair trial. The state’s case was not very strong. The prosecutorial improprieties were not invited by the defense counsel and, although not objected to, occurred with significant frequency and were severe. Finally, they went to the heart of the case, namely, whether the defendant participated in the telephone call, and they gave the jury a reason to disregard the defendant’s strong alibi evidence.

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

In this opinion the other judges concurred.

       The jury was unable to reach a unanimous verdict regarding the witness intimidation charge. The court thereafter ordered a mistrial on that count, and the state entered a nolle prosequi as to that charge.

       See part III B.

       Connors testified that initially Polowitzer was in his room alone talking with Candella but that Polowitzer came out of his room, while still on the telephone with Candella, with the speaker phone function of his cellular telephone activated so that Connors could hear what Candella was saying.

       The state does not claim that the telephone call was a prearranged conference call, and there was no evidence to support such a contention.


source: Caselaw Access Project

license: Public Domain

text:
    STEFON MORANT v. COMMISSIONER OF CORRECTION
    (AC 28990)
    Lavine, Beach and Borden, Js.

      Argued February 3
    officially released September 22, 2009

      Lisa A. Vanderhoof special public defender, for the appellant (petitioner).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher T. Godialis, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

BORDEN, J.

The petitioner, Stefon Morant, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner contends that the court improperly concluded that at his criminal trial (1) there was no violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and (2) he received effective assistance of counsel. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to the petitioner’s claims. In 1994, the petitioner was convicted, following a jury trial, of two counts of felony murder in violation of General Statutes (Rev. to 1989) § 53a-54c. In State v. Morant, 242 Conn. 666, 667, 701 A.2d 1 (1997), our Supreme Court affirmed the judgment of conviction and determined that the jury reasonably could have found the following facts.

“In 1990, the [petitioner] and Scott Lewis were partners engaged in the sale of drugs from a Clay Street house ... in New Haven. As part of this drug operation, Ricardo Turner stored drugs and cash in his second floor apartment at 634 Howard Avenue, New Haven. During the night of October 10 and the early morning hours of October 11, 1990, the [petitioner] and Lewis were at the Clay Street house and discussed the possibility that Turner might take the money and leave. Ovil Ruiz and several other individuals who sold drugs for the [petitioner] and Lewis were also present at the Clay Street house during this discussion.

“Two handguns, a .357 caliber and a .38 caliber, were stored in the house. In the early morning hours of October 11, 1990, either the [petitioner] or Lewis told Ruiz to get the guns, and Ruiz gave the guns to Lewis. The [petitioner], Lewis and Ruiz then proceeded to travel in Lewis’ automobile to Turner’s apartment on Howard Avenue. On the way, the [petitioner] stated, ‘whatever happens, you know, keep it between us.’ At the apartment, the [petitioner] and Lewis exited the automobile and Ruiz got into the driver’s seat. Ruiz then waited in the car while the [petitioner] and Lewis went inside. When the two of them entered the apartment house, the [petitioner] was carrying the .38 caliber handgun and Lewis was carrying the .357 caliber handgun.

“The [petitioner] and Lewis forced their way into Turner’s apartment. They were in the apartment for thirty minutes when, shortly after 4 a.m., they fatally shot Turner and his roommate, Lamont Fields. . . . One bullet passed through the floor and punctured a waterbed in the apartment below. All of the bullet fragments later recovered by police had been fired from a .357 caliber handgun.

“The [petitioner] and Lewis then ran out of the apartment, down the stairs, and into the waiting car. The [petitioner] took from the apartment a bag that contained money, and Lewis took another bag that contained several ounces of cocaine. As they drove away from the scene, Lewis asked the [petitioner] whether the [petitioner] thought he, Lewis, had killed Turner and Fields. The [petitioner] responded, ‘whatever happened, happened.’

“[On January 16, 1991], the [petitioner] gave a statement to police in which he admitted that he was with Lewis during the early morning hours of October 11, 1990. He stated that Lewis was taking him home when Lewis stopped on Howard Avenue near the victims’ apartment. The [petitioner] stated that Lewis said ‘he had to take care of some business’ and would be right back, and that Lewis then entered the apartment building while the [petitioner] waited in the car. The [petitioner] further stated that Lewis was perspiring when he came running from the apartment building to the car five or ten minutes later.

“The [petitioner] also told police that Lewis sold narcotics and that, when he and Lewis stopped on Howard Avenue, he thought Lewis was going to take care of some drug-related business. The [petitioner] stated that the next day he learned that there had been a murder on Howard Avenue, and that a few days later, Lewis told the [petitioner] that Lewis ‘did what [he] had to do’ because one of the victims had owed Lewis ‘a couple dollars.’ The [petitioner] further stated that at some later time he observed Lewis throw the gun that Lewis had used to commit the murders into the Mill River under the Chapel Street Bridge in New Haven.” Id., 668-70.

Following his unsuccessful direct appeal, the petitioner filed a petition for a new trial on the basis of newly discovered evidence. The petition was denied by the trial court, and this court affirmed the denial. Morant v. State, 68 Conn. App. 137, 802 A.2d 93, cert. denied, 260 Conn. 914, 796 A.2d 558 (2002). Thereafter, in October, 2006, the petitioner filed this amended petition for a writ of habeas corpus, claiming that he is entitled to a new trial because, at his criminal trial, the state had withheld material evidence in violation of Brady v. Maryland, supra, 373 U.S. 83, and that his trial counsel was ineffective for failing to present certain evidence. After a trial, the habeas court denied the petition for a writ of habeas corpus. The petitioner then requested certification to appeal, which the court granted. This appeal followed.

I

BRADY VIOLATION

The petitioner first claims that the court improperly concluded that there was no Brady violation at his criminal trial. Specifically, he contends that the testimony of two detectives, Detective Sergeant Michael Sweeney and Detective Joseph Pettola, who were allegedly unknown to the petitioner at the time of his trial, undermines the outcome of his criminal trial because such testimony puts into question the reliability and truthfulness of the testimony of Ruiz and Detective Vincent Raucci of the New Haven police department, two of the state’s key witnesses. The respondent, the commissioner of correction, argues that the petitioner’s Brady claim is barred by the doctrine of collateral estoppel and, in the alternative, that such evidence is not material. We agree with the respondent that the evidence is not material; therefore, we need not address the respondent’s first argument.

“Whether the petitioner was deprived of his due process rights due to a Brady violation is a question of law, to which we grant plenary review. . . . The conclusions reached by the [habeas] court in its decision to dismiss the habeas petition are matters of law, subject to plenary review. . . . Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.” (Internal quotation marks omitted.) Hoskie v. Commissioner of Correction, 110 Conn. App. 845, 847-48, 956 A.2d 611, cert. denied, 289 Conn. 950, 960 A.2d 1037 (2008).

“In Brady v. Maryland, supra, 373 U.S. 87, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. To establish a Brady violation, the defendant must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the defendant, and (3) it was material [either to guilt or to punishment].” (Internal quotation marks omitted.) State v. Wilcox, 254 Conn. 441, 452, 758 A.2d 824 (2000).

Evidence that is not disclosed is suppressed for Brady purposes even when it is “known only to police investigators and not to the prosecutor.” Kyles v. Whitley, 514 U.S. 419, 438, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). In addition, evidence is favorable if it is either exculpatory or impeaching. See, e.g., Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999). Finally, evidence is material if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985).

“A reasonable probability is a probability sufficient to undermine confidence in the outcome. The United States Supreme Court [has] discussed several aspects of materiality under Bagley that bear emphasis. See Kyles v. Whitley, [supra, 514 U.S. 434]. The court explained that a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal. . . . The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. . . . The United States Supreme Court also emphasized that the Bagley test is not a sufficiency of evidence test. ... A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict. . . . One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” (Citations omitted; internal quotation marks omitted.) State v. Wilcox, supra, 254 Conn. 454.

A

The Petitioner’s Criminal Trial

In his underlying criminal trial, the petitioner asserted an alibi defense. The success of this defense, however, depended on the jury’s believing that Raucci coerced the petitioner’s January 16, 1991 statement, which placed the petitioner at the crime scene. The petitioner’s position at trial was that his statement was coerced and not based on his personal knowledge but, rather, on information that was “fed” to him by Raucci. The state discredited the petitioner’s alibi defense through the testimony of two witnesses, Ruiz and Raucci.

At the petitioner’s criminal trial, Ruiz testified that the petitioner and Lewis were business partners involved in the sale of drugs out of a Clay Street apartment in New Haven and that the petitioner and Lewis paid Turner to hold their drugs and cash for them. On the night of the homicides, Ruiz was at the Clay Street apartment and observed Lewis talking to the petitioner. Ruiz, the petitioner and Lewis then got into a rental car and drove slowly past Turner’s apartment building, which was located on Howard Avenue.

After returning to the Clay Street apartment, some friends came over to watch television and to gamble. Jose Roque also came over with some girls, and Lewis gave him the keys to Lewis’ car, a BMW, at which point Roque left with the girls. Soon after Roque returned with the BMW, most of the people at the Clay Street apartment left. Either Lewis or the petitioner asked Ruiz to retrieve two guns, a .357 caliber and a .38 caliber, and Ruiz complied. Ruiz, the petitioner and Lewis then got into the BMW and drove to Turner’s apartment building. On the way to Turner’s apartment building, the petitioner said that “whatever happens, keep it between the three of us.” When they reached Howard Avenue, they stopped at the comer of Turner’s apartment building, at which point Lewis and the petitioner exited the car with the guns, and Ruiz moved into the driver’s seat and kept the motor mnning.

Shortly thereafter, Ruiz heard three gunshots. The petitioner and Lewis suddenly appeared. They threw an athletic bag full of dmgs and a Community Chest bag containing money into the car and then got in. They ordered Ruiz to drive. As they were driving away, Lewis said: “Do you think I killed them? Do you think they’re dead?” The petitioner responded: “Fuck it. . . . Whatever happened, happened.” Ruiz asked the petitioner and Lewis what happened, but they did not answer him. Ruiz, the petitioner and Lewis eventually returned to Clay Street, and Ruiz was dropped off at his home.

A few weeks after the incident, Ruiz was playing basketball in a park on Chapel Street in New Haven with the petitioner and some other individuals. Lewis arrived at the park in his BMW. He opened up the tmnk and removed a plastic bag, which Ruiz believed contained the .357 caliber gun “because you could tell by the long nose on the .357 . . . [and] by the way he was holding it . . . .” Lewis then threw the plastic bag into the river located next to the park.

Sometime after the park incident, Ruiz was arrested by Raucci pertaining to an unrelated matter. While being questioned about that matter, Ruiz told Raucci about the Howard Avenue homicides, which were unsolved homicides at that point. Ruiz gave a statement on January 14, 1991, in which he provided Raucci and Pettola, who was also present, with some information relating to the crime. In his January 14 statement, Ruiz stated that the petitioner and Lewis were involved in the sale of drugs and that Turner had held their money and drugs. He also stated that while at the Clay Street apartment one night, he overheard the petitioner and Lewis talking to Roque about the homicides, stating that they had shot Turner and another guy over some money. Lewis stated: “I shot [Turner] because he tried [to] run away with my money and my drugs.” Then the petitioner said: “Well, you had to do what you had to do.” Ruiz further provided in his statement that while he was playing basketball some time after the murders, he saw Lewis go to Lewis’ gray BMW and take out a plastic bag, which appeared to have a gun in it, and throw the bag into the river. When Ruiz asked Lewis what was in the bag, Lewis responded that “it was just an old gun.”

Ruiz testified at the petitioner’s criminal trial that he intentionally left out his involvement in the homicides because he was “scared” and did not want to be charged with conspiracy. He also testified that Raucci did not force him to say anything that he included in the January 14, 1991 statement.

On May 28, 1991, Ruiz, accompanied by his attorney, gave a second statement to Raucci. In his statement, Ruiz provided additional information, including his involvement in the Howard Avenue homicides and a detailed chronology of the crime.

During the petitioner’s criminal trial, Roque was called to testify by the state regarding a conversation he overheard between the petitioner and Lewis in which they allegedly discussed the Howard Avenue homicides. Roque previously had provided details pertaining to that conversation in a statement given to Raucci on January 15, 1991, one day after Ruiz gave his statement and one day before the petitioner gave his statement. During his testimony, Roque stated that his January 15 statement was the product of Raucci’s coercion. He testified that during the recording of his statement, Raucci manipulated the tape recorder and told him what to say in response to various questions. Roque stated several times that Raucci “kept stopping the tape” and would “tell [him] what to say and [then] . . . play the tape again.” Moreover, Roque testified that Raucci threatened to “put [him] on a million dollars bond and charge [him] with [murder].”

Raucci also was called by the state to testify during the petitioner’s criminal trial. During his testimony, Raucci rebutted Roque’s testimony, claiming that he never threatened Roque or supplied him with any of the details of the crime. He also testified that he was not the investigator assigned to the case, that he did not know any of the particulars of the Howard Avenue homicides, beyond the few details Ruiz provided on January 14, 1991, until after he interviewed the petitioner on January 16,1991, and that he, therefore, could not have given the detailed information of the crime to Roque or anyone else, including the petitioner.

B

The Hearing on the Petition for a New Trial

In May, 1995, Lewis received a letter from Ruiz stating that he falsely had implicated Lewis in the Howard Avenue homicides. Following receipt of the letter, Lewis contacted the Federal Bureau of Investigation (FBI), which conducted an investigation into the matter. As a result of the FBI investigation, the petitioner filed a petition for a new trial that was based on a claim of newly discovered evidence.

The court, Blue, J., presided over the proceedings relating to count one of the petitioner’s fifth amended petition for a new trial; see footnote 1; in which the petitioner asserted that his January 16, 1991 statement was coerced and that two material witnesses, Ruiz and Raucci, gave false testimony at his criminal trial. As to the petitioner’s claim that his January 16 statement was false and coerced, testimonial evidence, including that of the petitioner, was presented as well as a tape containing a recording of the defendant’s January 16 statement, which was played for the court and admitted as a full exhibit. In its memorandum of decision following the proceedings, the court determined that, on the basis of the testimony presented and the court’s observation of the tone and substance of the petitioner’s tape-recorded statement, the petitioner’s testimony that his January 16 statement was coerced and false was “not credible.”

As to the petitioner’s second claim that Ruiz and Raucci gave false testimony during the petitioner’s criminal trial, the petitioner introduced testimonial evidence as well as information obtained during the FBI’s investigation. After evaluating the evidence presented, the court, in its memorandum of decision, applied the standard articulated in Pradlik v. State, 131 Conn. 682, 41 A.2d 906 (1945), in accordance with Johnson v. State, 36 Conn. App. 59, 63, 647 A.2d 373, cert. denied, 231 Conn. 946, 653 A.2d 827 (1994), and determined that the petitioner had not met his burden of proof. Therefore, the court denied the petitioner’s petition for a new trial.

C

The Habeas Trial

The petitioner asserted in his petition for a writ of habeas corpus that a Brady violation occurred because the state suppressed favorable evidence possessed by Detectives Sweeney and Pettola. Specifically, the petitioner claimed that Sweeney and Pettola had evidence that Raucci had supplied critical details of the homicides, implicating the petitioner, to Ruiz and that Pettola had evidence regarding an unrelated incident that would have further impeached Raucci’s credibility. The petitioner claimed that this evidence would have supported his contention at his criminal trial that his January 16, 1991 statement, which severely undermined his alibi defense at the trial, was coerced and false.

To support his contention, the petitioner called Pet-tola to testily. Pettola testified that on January 14,1991, he was asked by Sweeney to sit in on the recording of Ruiz’ statement. Sweeney explained that Raucci was interviewing a witness in the Howard Avenue homicides but gave him very little information beyond that. Pettola also briefly spoke to Raucci before the statement was recorded. Pettola recalled Raucci saying something to the effect that the witness, Ruiz, was prepared to admit that he was the “wheel man” in the Howard Avenue homicides. Pettola also stated that, while he was in the interview room with Ruiz and Raucci, Raucci conducted the interview professionally. Although he admitted that Raucci started and stopped the tape recorder, Pettola testified that he did not witness anything improper and that Raucci did not suggest answers to Ruiz. Pettola was not present prior to the recording of Ruiz’ statement.

Pettola further testified that in September, 1996, he was interviewed by the FBI. An FBI report containing the substance of the interview was submitted as a full exhibit. The FBI report states: “Pettola also related an incident involving improprieties by Raucci that occurred in the late 1980s, when Pettola was assigned to the [s]treet [c]rime [u]nit [of the New Haven police department]. The specific incident involved himself, retired Detective Melvin Daniels and Raucci (when he was a uniformed officer), during a motor vehicle stop of a known drug dealer in the [Fair Haven] section of New Haven, who they had confidential informant information was carrying a weapon. A search of the vehicle following the stop failed to reveal the expected weapon. After being advised that the weapon was not in the car, Raucci asked Pettola and Daniels if they wanted him to ‘plant’ a small amount of cocaine in the suspect’s vehicle so they could arrest him. Raucci produced a bag of what appeared to be cocaine which he apparently had available for such purposes. [Daniels and Pettola] advised Raucci in no uncertain terms that they were not interested in ‘planting’ cocaine on this suspect. They then released the suspect but made no official report concerning Raucci’s behavior.”

The petitioner also moved, with the respondent’s consent, to admit as a full exhibit, the testimony of Sweeney, which had been given at the petitioner’s hearing on a petition for a new trial, in lieu of his live testimony. The habeas court granted the petitioner’s request. The memorandum of decision pertaining to the hearing on the petition for a new trial issued by the trial court, Blue, J., summarized Sweeney’s testimony as follows: “Ruiz was arrested [pursuant to a warrant and brought to the detective division of the New Haven police department for questioning] on January 13,1991. . . . Sweeney interviewed Ruiz alone for more than half an hour. . . . The questioning concerned the Turner-Fields homicides. Ruiz indicated that he knew nothing about the murders. At that point, Raucci arrived at the detective division. Sweeney and Raucci then jointly interviewed Ruiz. Ruiz once again stated that he knew nothing about the homicides. . . . Raucci then began giving Ruiz facts about the case. Sweeney thought that this was inappropriate and asked Raucci to step out of the room. Sweeney told Raucci not to tell Ruiz anything, about the case, and Raucci agreed. The two of them again confronted Ruiz. Raucci told Ruiz that he would let him go, although he was arrested on an arrest warrant, that he wanted Ruiz to tell him about the case, that he was driving the car that night and that it was in Ruiz’ best interest to give a detailed statement. . . .

“At this point, Ruiz started changing his statement. At the same time, however, Raucci began to give Ruiz additional details. Raucci told Ruiz about the Clay Street house . . . and described the building. Raucci also described a scenario about guns in a gym bag. Sweeney took Raucci out in the hall a second time and told him to knock it off. . . .

“Sweeney became preoccupied with other matters. Raucci went back to confront Ruiz alone. After a period of time, Raucci emerged and reported that Ruiz wanted to give the whole case up. Sweeney then went in with Raucci to listen to Ruiz. Ruiz said that he had been driving the car that night. He further said that he had driven to Clay Street where they obtained two guns in a gym bag and then drove to Howard Avenue where [the petitioner] and his partner took the bag and went [into] the apartment. He heard [gun]shots. [The petitioner] and his partner came back to the car, and they drove off. . . .

“Sweeney told Raucci to step out of the room. . . . Sweeney then confronted Ruiz and asked him if he was telling the truth. Ruiz responded that he was not telling the truth and that the information that he had given had come from Raucci. After Sweeney reported this to Raucci, Raucci requested another interview with Ruiz. Raucci came out a short period of time later reporting that Ruiz [now just wanted to say that he had] ‘overheard these two people talking about the case.’ . . . [Thinking that this could in fact be true, Sweeney sent Raucci back to record the statement.]

“Sweeney’s shift had now ended, and he was replaced by . . . Pettola. . . . Ruiz’ tape-recorded statement was taken between 12:50 a.m. and 1:20 a.m. on January 14, 1991. . . . Sweeney did not witness that statement.” (Citations omitted.)

On cross-examination, the state had Sweeney go through Ruiz’ January 14 and May 28, 1991 statements line by line and point out those parts that consisted of information that Sweeney heard Raucci give to Ruiz. Morant v. State, supra, 68 Conn. App. 155. Sweeney identified several details that Raucci had suggested to Ruiz. Id. He agreed, however, that he did not hear Raucci suggest much of the information contained in Ruiz’ statement. Id. Most significantly, Sweeney did not remember hearing Raucci tell Ruiz the names of the petitioner and Lewis. Id. Sweeney testified that no physical force was used and admitted that it was a standard police technique to give an interviewee some information with the expectation of receiving additional information in return, although he believed that Raucci was going “overboard” with the technique. Id. Moreover, Sweeney testified that there was nothing that occurred in January, 1991, that would indicate that Ruiz’ statement was necessarily untruthful.

Finally, Ruiz was called to testify at the habeas proceedings. Ruiz, however, invoked his fifth amendment right against self-incrimination because the prosecutor would not agree to grant him immunity with respect to his role in the murders of Turner and Fields.

Upon the conclusion of the habeas trial, the court issued a memorandum of decision. With respect to the Brady claim, the court determined that “there was no suppression of material to establish a Brady violation. The material referred to, even if accepted as true, is such that it can hardly be described as favorable to the petitioner. This is a requirement for a Brady violation. . . . This claim was raised by the petitioner in his earlier bids for a new trial. It was found wanting at both the trial and appellate levels. Like those courts, this court does not find it likely to have produced a different result on a retrial.” (Citation omitted.)

D

Analysis

The petitioner claims that a Brady violation occurred because the evidence he presented through the testimony of Sweeney and Pettola challenges the reliability and truthfulness of the testimony of Ruiz and Raucci, which was used to discredit the petitioner’s claim at trial that his January 16, 1991 statement was coerced, thereby severely crippling the petitioner’s alibi defense. Again, more specifically, the petitioner claims that the testimony of Sweeney and Pettola shows that Raucci, contrary to his testimony at the criminal trial, supplied critical details of the homicides to Ruiz for Ruiz’ January 14,1991 statement and to the petitioner for his January 16, 1991 statement, which implicated the petitioner in the homicides, and that Ruiz then repeated those details in his trial testimony. In addition, the petitioner claims that the information contained in the FBI report provides further impeachment evidence as to Raucci. Thus, the petitioner claims that if he had had the testimony of Sweeney and Pettola and the information contained in the September, 1996 FBI report available at the criminal trial, it would have bolstered his claim that his January 16 statement was false and coerced, and eliminated any negative effect the statement had on his alibi defense.

As stated previously, “ [t]o establish a Brady violation, the defendant must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the defendant, and (3) it was material [either to guilt or to punishment].” (Internal quotation marks omitted.) State v. Wilcox, supra, 254 Conn. 452. The habeas court rejected the petitioner’s claim that a Brady violation occurred, concluding that the petitioner failed to meet the requirements of all three prongs of the Brady test. If, however, the petitioner has failed to meet his burden as to one of the three prongs of the Brady test, then we must conclude that a Brady violation has not occurred. See State v. Esposito, 235 Conn. 802, 815, 670 A.2d 301 (1996).

After reviewing the testimony of Pettola and Sweeney in light of the petitioner’s entire criminal trial, we determine that such evidence is not material in the Brady sense. In determining whether evidence is material for Brady purposes, “the focus is not whether, based upon a threshold standard, the result of the trial would have been different if the evidence had been admitted. We instead concentrate on the overall fairness of the trial and whether nondisclosure of the evidence was so unfair as to undermine our confidence in the jury’s verdict. United States v. Bagley, supra, [473 U.S. 682].” State v. Wilcox, supra, 254 Conn. 454.

“It is well established that impeachment evidence may be crucial to a defense, especially when the state’s case hinges entirely upon the credibility of certain key witnesses. . . . The rule laid out in Brady requiring disclosure of exculpatory evidence applies to materials that might well alter . . . the credibility of a crucial prosecution witness. . . . However, [e]vidence that may first appear to be quite compelling when considered alone can lose its potency when weighed and measured with all the other evidence, both inculpatory and exculpatory. Implicit in the standard of materiality is the notion that the significance of any particular bit of evidence can only be determined by comparison to the rest.” (Citation omitted; internal quotation marks omitted.) Id., 455. In this connection, it is important to the Brady calculus whether the effect of any impeachment evidence would have been cured by the rehabilitative effect of other testimony. State v. Quintana, 209 Conn. 34, 39, 547 A.2d 534 (1988).

The first difficulty with the petitioner’s claim is that the evidence provided through the testimony of Sweeney and Pettola and the information contained in the FBI report does not pertain to the petitioner’s January 16, 1991 statement and that any effect the evidence would have had on the statement would have been neutralized by the testimony of Detective Vaughn Maher. Although Maher did not testify at the petitioner’s criminal trial, he did testify at a hearing regarding the suppression of the petitioner’s January 16 statement, which was held before the petitioner’s criminal trial. At the suppression hearing, Maher testified that the petitioner was brought to the police station to be interviewed. Initially, Sweeney was in the interrogation room along with the petitioner, Maher and Raucci but left before the taped portion of the statement commenced, thereby leaving only the petitioner, Maher and Raucci in the interrogation room. Maher testified that he did not observe any irregularities during the interview; the petitioner was only given the location and names of the victims; Raucci did not summarize any of the facts provided by Ruiz to the petitioner; the petitioner was not told what to say in his statement; and the petitioner was not threatened with arrest if he did not cooperate. On the basis of the foregoing, it is clear that the state would have been able to rehabilitate the evidence that the petitioner claims would have called into question the circumstances surrounding the taking of his January 16 statement; therefore, such evidence is not material. See id.

Next, the evidence, specifically the testimony of Sweeney and Pettola, does not materially impeach that of Ruiz. Sweeney’s testimony had no exculpatory value because it did not call into question Ruiz’ identification of the petitioner as one of the perpetrators of the homicides. In fact, Sweeney testified that Raucci did not provide Ruiz with the names of the petitioner and Lewis during Ruiz’ interview. Ruiz revealed those critical facts himself. In addition, Sweeney’s testimony does not directly contradict Ruiz. At the petitioner’s criminal trial, Ruiz testified that Raucci did not tell him what to say, and, although Sweeney claimed that Raucci provided Ruiz with a lot of information that he believed was improper, he never testified that Raucci told Ruiz that he had to make a statement and that he had to include specific facts stated in a particular way. Significantly, Ruiz’ January 14,1991 statement did not contain any of the critical facts, such as Ruiz’ involvement in the crime, that Raucci allegedly supplied to him during the interview. Those facts were not provided until Ruiz gave his May 28, 1991 statement in the company of his attorney. Furthermore, Sweeney admitted that it was a standard police technique to give an interviewee some information with the expectation of receiving additional information in return. He also admitted that nothing occurred in January, 1991, that would indicate that Ruiz’ statement was untruthful or that Ruiz was lying.

Pettola’s testimony also does not contradict Ruiz’ testimony at the petitioner’s criminal trial that Raucci did not tell Ruiz what to say in the January 14, 1991 statement. Pettola admitted that he was not in the interview room prior to Ruiz’ giving his statement. Pettola, however, was present during the recordation of Ruiz’ January 14 statement and testified that he did not witness Raucci do anything improper. He further testified that, although Raucci started and stopped the tape recorder, Raucci did not suggest answers to Ruiz.

Finally, the evidence provided through the testimony of Sweeney and Pettola and the information contained in the FBI report does not provide any meaningful impeachment evidence of Raucci. The petitioner asserts that the testimony of Sweeney and Pettola reveals that Raucci knew several details of the crimes before he interviewed Ruiz, contrary to Raucci’s testimony at the petitioner’s criminal trial that he was not investigating the double homicides and knew none of the facts surrounding the crime, and that Raucci was supplying details of the crime to Ruiz for Ruiz to provide in his January 14, 1991 statement. Moreover, the petitioner asserts that the FBI report shows that Raucci was “not above manufacturing evidence,” having previously offered to plant cocaine in a suspect’s car. This evidence, however, taken in context is merely cumulative impeachment evidence and, therefore, not material under Brady. See State v. Wilcox, supra, 254 Conn. 455 (“[w]e conclude that the impeachment value of the evidence was cumulative and, therefore, insufficient to render the [evidence] material according to the Brady and Bagley standards”).

During the petitioner’s criminal trial, Roque was called by the state to testify about a statement he gave to Raucci on January 15, 1991, in which he provided details about a conversation he overheard between the petitioner and Lewis regarding the Howard Avenue homicides. During his testimony, Roque stated that the statement he provided was the product of Raucci’s coercion. Roque testified that Raucci manipulated the tape recorder and told him what to say in response to various questions. Specifically, Roque repeatedly testified that Raucci “kept stopping the tape” and would “tell [him] what to say and [then] . . . play the tape again.” Roque further testified that Raucci threatened to “put [him] on a million dollars bond and charge [him] with [murder].”

Roque’s testimony provided the jurors with direct evidence from which they could infer that Raucci knew many facts about the Howard Avenue homicides when he interviewed Ruiz and the petitioner, was providing information to elicit the statement he wanted regardless of whether the statement was true, used improper tactics to elicit the statement and may have been untruthful when he testified that he knew none of the details of the crime prior to his interview with the petitioner. The evidence pertaining to the testimony of Sweeney and Pettola and the information contained in the FBI report, therefore, does not shed any additional light on Raucci’s character or the circumstances surrounding Ruiz’ statement. The petitioner was equipped with the necessary evidence to attack Raucci’s credibility and the interview tactics that Raucci used in obtaining statements from Ruiz and the petitioner. Thus, the evidence provided through the testimony of Sweeney and Pettola and the information contained in the FBI report is merely cumulative and consequently not material under Brady.

On the basis of the foregoing, we conclude that the evidence provided through the testimony of Sweeney and Pettola and the information contained in the FBI report is not material. Accordingly, the petitioner’s Brady claim fails.

II

INEFFECTIVENESS OF COUNSEL

The petitioner next claims that the habeas court improperly determined that he received effective assistance of counsel because his trial counsel failed to call as witnesses the petitioner and Christine Sorbin, the petitioner’s former girlfriend, during the petitioner’s underlying criminal trial. The petitioner asserts that his testimony was necessary to support his claim that he was coerced into making a statement to police and that Sorbin’s testimony would have corroborated his alibi. We disagree.

“When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . The issue, however, of [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) Dwyer v. Commissioner of Correction, 69 Conn. App. 551, 561, 796 A.2d 1212, cert. denied, 261 Conn. 906, 804 A.2d 212 (2002). To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “Because the petitioner must satisfy both prongs of the Strickland test to prevail on a habeas corpus petition, this court may dispose of the petitioner’s claim if he fails to meet either prong.” (Internal quotation marks omitted.) Dwyer v. Commissioner of Correction, supra, 560.

A

The Petitioner’s Testimony

The petitioner first contends that the assistance of his trial counsel was ineffective because counsel failed to call the petitioner to testify in support of the claim that the January 16, 1991 statement was coerced. As to this claim, the court concluded that the petitioner was not a credible witness: “The petitioner’s claim here is that he wanted to testify in support of his coercion claim but counsel delayed a decision on this point and argued against such action until it was too late. [Trial] counsel testified that he and the petitioner discussed this question at length and [that] it was the petitioner’s decision not to testify. Having heard the petitioner testify in this case and witnessing his censure of the assistant state’s attorney representing the respondent at one point, it is highly unlikely that he would sit quietly while his turn to testify came and went.” The court further determined that “a tactical decision was made with the petitioner’s participation that he not testify.” The court noted that the petitioner’s courtroom behavior supported trial counsel’s concern over the petitioner’s testifying at trial and that cross-examination of the petitioner could have been a “total disaster,” pointing out that the courts in three prior proceedings, including the hearing on the petitioner’s petition for new trial, rejected the petitioner’s assertion that the statement was coerced.

“This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . 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.” (Citation omitted; internal quotation marks omitted.) Dwyer v. Commissioner of Correction, supra, 69 Conn. App. 561-62. Accordingly, we will not disturb the court’s determination that the petitioner was not a credible witness. The petitioner’s first claim of ineffectiveness of counsel, therefore, must fail.

B

Sorbin’s Testimony

Next, the petitioner asserts that he did not receive effective assistance of counsel because his trial counsel did not call Sorbin to testify in support of his alibi defense. During the petitioner’s underlying criminal trial, counsel had subpoenaed Sorbin to testify that she was with the petitioner in the Carolinas at the time of the crime. By the time the criminal trial began, however, Sorbin’s and the petitioner’s relationship had ended. Sorbin arrived at the courthouse, during the petitioner’s criminal trial, accompanied by her attorney. The petitioner’s trial counsel spoke with Sorbin’s attorney and decided not to call Sorbin, although he could not remember the details of the conversation.

After hearing testimony from the petitioner’s trial counsel and Sorbin, the court concluded that trial counsel’s decision not to call Sorbin was a tactical decision. As the court pointed out, “when a subpoenaed witness appears with counsel, the moving party probably does not have a friendly willing witness.” In addition, the court determined that Sorbin was not a strong witness, noting that when she testified at the habeas trial, “she was somewhat hesitant” and she “could not vouch for the statement she gave in 1994 to an investigator for the petitioner.” Moreover, the court determined that Sorbin’s testimony would have been cumulative, as other alibi witnesses were available.

“[O]ne cannot successfully attack, with the advantage of hindsight, atrial counsel’s trial choices and strategies that otherwise constitutionally comport with the standards of competence.” (Internal quotation marks omitted.) Mitchell v. Commissioner of Correction, 109 Conn. App. 758, 771, 953 A.2d 685, cert. denied, 289 Conn. 950, 961 A.2d 417 (2008). “The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.” (Internal quotation marks omitted.) Tatum v. Commissioner of Correction, 66 Conn. App. 61, 66, 783 A.2d 1151, cert. denied, 258 Conn. 937, 785 A.2d 232 (2001). After reviewing the testimony presented at the habeas trial, we agree with the court that trial counsel’s decision not to call Sorbin was within the scope of reasonable trial strategy. Moreover, the petitioner has not shown how Sorbin’s testimony would have been helpful to his defense. As the court noted, she was not a strong witness and other alibi witnesses were available. Thus, the petitioner’s claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner’s petition for a new trial was amended several times, and separate counts of the petition were heard and denied by two different judges, Blue, J., and Hon. William L. Hadden, Jr., judge trial referee.

       In his petition for a writ of habeas corpus, the petitioner also asserted a claim of actual innocence and a claim that Detective Vincent Raucci of the New Haven police department and Ruiz gave perjured testimony at the petitioner’s criminal trial, both of which were rejected by the habeas court. Because these claims are not raised or briefed on appeal, they are deemed abandoned. See State v. Ouellette, 110 Conn. App. 401, 407 n.1, 955 A.2d 582, cert. granted on other grounds, 289 Conn. 951, 961 A.2d 417 (2008).

       The petitioner did not testify at his criminal trial. The jury, however, through the testimony of his mother, Linda Morant, was made aware of his assertion that his January 16, 1991 statement was coerced. Linda Morant testified that “the policeman got [the petitioner] to say some things that [weren’t] true.”

       Christine Sorbin is now known as Christine Malta; however, because both parties refer to her as Christine Sorbin, we will as well.

       The petitioner also claimed in his habeas petition that trial counsel was ineffective for failing to ask the petitioner’s mother about a telephone bill; to cross-examine Maher and Raucci effectively; to investigate witness Millie Martinez; and to call Jeffrey Rochler, Lewis’ employer, as a witness. Because these claims are not raised or briefed on appeal, they are deemed abandoned. See State v. Ouellette, 110 Conn. App. 401,407 n. 1,955 A.2d 582, cert. granted on other grounds, 289 Conn. 951, 961 A.2d 417 (2008).