text:
    STATE OF CONNECTICUT v. TYREESE BOWENS
    (AC 19070)
    Spear, Zarella and Daly, Js.
    Argued October 30, 2000
    officially released March 6, 2001

      Robert G. Golger, special public defender, for the appellant (defendant).

      Joy K. Fausey, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, senior assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Tyreese Bowens, appeals from the judgment of conviction, rendered after a juiy trial, of murder in violation of General Statutes § 53a-54a (a). The defendant claims that the trial court improperly (1) dismissed an alternate juror who made allegations of racial prejudice against another juror and (2) denied his motion to suppress a witness’ out-of-court photographic array identification. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 18, 1996, Kevin Hood, the victim, and Tiara Phelmetta were riding around New Haven in Hood’s car. They stopped in front of a convenience store at the well lit intersection of Columbus Avenue, Arch Street and Washington Avenue. Hood made some purchases at the convenience store, and, upon his return to the car, Phelmetta noticed a man with a hooded jacket walking toward the car from Washington Avenue. The man came up to the front passenger seat window where she was seated and peered through from about three feet away. She was able to look closely at his facial features before he turned away and walked around the back of the car, appearing to head away from the car. Suddenly, the man changed course and again approached the car. As he walked up to the driver’s side, Phelmetta saw him withdraw a gun from underneath his shirt. The man leaned into Hood’s open window and shot Hood several times. Phelmetta jumped out of the car through her window and fled to safety.

Thereafter, officers from the New Haven police department patrolling on Columbus Avenue came upon the victim. A few minutes later, Phelmetta returned to the scene and told a police detective that she had witnessed the shooting and gave a description of the shooter. The following day, on August 19, 1996, Phelmetta went to the police station, viewed a photographic array and identified the defendant as the shooter. He was arrested and ultimately found guilty of murder in violation of § 53a-54a (a). This appeal followed.

I

The defendant claims that the court improperly dismissed an alternate juror, C, who had made allegations of racial prejudice against another juror, R. The defendant argues that when the court removed the alternate juror without cause it violated his right to a fair trial under article first, § 8, of the constitution of Connecticut and the sixth amendment to the United States constitution. We disagree.

We glean the following additional facts from the record and the transcript of the court’s ruling. A jury of twelve regular jurors and four alternates was selected to hear the case. On the third day of trial, the court received a note from an alternate juror indicating that one of the regular jurors had made some racially based remarks. The court privately questioned the alternate juror, C, about the remarks referred to in the note. C told the court about three separate incidents where she had heard racially based remarks from the same juror, R. After the court finished questioning C and consulted with counsel, the court questioned R, who adamantly denied making any racially based remarks. Thereafter, the court questioned all of the other jurors in the presence of counsel for both sides.

The first five jurors were asked general questions as to whether they had heard any other jurors make racist comments or comments with racial overtones. All five stated that they had not. One of the five, described as an African-American woman, commented that she did not “feel any tension there either.” The court implied that this was significant when it stated: “She certainly would be sensitive to anything.”

The remaining nine jurors were questioned more closely by both the court and counsel. Seven of the nine were asked the general question whether they had heard any other jurors make racist or racially motivated comments. All seven responded that they had not. All nine were asked whether they had heard a comment about Burger King, and eight agreed that they had, but none of them had interpreted it as a racially motivated remark. Only five of the nine recalled a comment by a juror about not letting her son shop in selected areas of New Haven, but none of them recalled anything racist in her comment. Six of the nine remembered a juror comment about living on the good side of the bridge, but, again, none of them inteipreted it as racist in nature. Six of the nine were asked if what they had heard would affect their ability to sit as a juror, and all six responded that it would not.

After all of the jurors were questioned, the defendant moved for a mistrial on the ground that the jury was compromised. The court denied the motion, concluding that “this jury was not in any way compromised, and that this defendant was not in any way prejudiced. [The jurors] said themselves that nothing affected their ability to be fair and impartial, and I have to believe them under the circumstances.” The defendant then requested that the court remove R, the juror who allegedly made the racist comments. The state argued that R should not be removed because there was nothing to support C’s allegations of racist comments, but that if the court removed R, C also should be removed.

The court granted both parties’ requests and removed both jurors because the couit did “not want a sideshow going on with the jury. I don’t want them knowing that someone is watching them or someone isn’t watching them. I want them watching the witnesses, and I’m not willing to set up a little trial within a trial.” Although the court did not believe that R had used the racial words that C had alleged, the court believed that the subject matter of R’s comments was inappropriate for the situation and, thus, removed her from the jury.

With regard to the removal of C, the court was troubled by her inaccurate account of the comments and her giving the court “false information without lying, and I don’t believe she lied, but that’s what she heard, and that’s not borne out by any of the other people who heard the same information and were in the same position to hear that information.” The next day the court explained further that “the court feels that it is not sensible to leave an alternate and a juror sitting when the alternate accused the juror of being a racist, in effect, and where the juror denied the charge and was basically supported by the other jurors, including the black juror, who as I indicate, said there simply [were] no racial epithets that she heard or any racial derogatory comments. . . . The safest course, in my judgment, is to dismiss the juror and the alternate. We, thus, eliminate anyone involved in the issue from service or potential service, in the case of the alternate, both of whom said things that we just simply do not have the time to deal with and ferret out. Justice demands that we go on with this trial, and I cannot spend anymore time trying to find out who said what to whom at what time.”

At sentencing, the court again commented regarding the removal of the alternate juror, C, stating that “I did feel that [the statements by C] were not true. And still feel that way. I still feel that she felt that they were true and that was one of the things that worried me because a juror who believes something which didn’t happen is not a good juror.”

General Statutes § 54-82h (c) provides in relevant part that “[i]f, at any time, any juror shall, for any reason, become unable to further perform his duty, the court may excuse him . . . .” Our Supreme Court has concluded that excusing a juror pursuant to this statute requires a “finding of cause. Thus, the trial court . . . could have excused the juror only upon a finding of cause.” State v. Allen, 216 Conn. 367, 378, 579 A.2d 1066 (1990). “A person shall be disqualified to serve as a juror if such person is found by the judicial authority to exhibit any quality which will impair that person’s capacity to serve as a juror . . . .” Practice Book § 42-5.

Our standard of review of a trial court’s decision to remove a juror is clear. “[T]he trial court is vested with wide discretion in determining the competency of jurors to serve, and that judgment will not be disturbed absent a showing of an abuse of discretion. ... A trial court may dismiss a juror who is unable to perform his or her duties upon a finding of cause.” (Citations omitted; internal quotation marks omitted.) State v. Mills, 57 Conn. App. 356, 363, 748 A.2d 891 (2000); see also State v. Cubano, 203 Conn. 81, 88-89, 523 A.2d 495 (1987).

The defendant argues that there is nothing in the record to support the finding that C had become unable to perform her duties as a juror. Therefore, the defendant claims that the court’s removal of C as an alternate juror was an abuse of discretion. We disagree.

The defendant relies on State v. Santiago, 245 Conn. 301, 339-40, 715 A.2d 1 (1998), a case that was decided approximately five weeks after the jury verdict in this case. Santiago provides guidelines for trial courts to follow when there are allegations of racial bias on the part of a juror.

In Santiago, the Supreme Court held that in future cases, trial courts should investigate fully allegations of racial bias of jurors. “Extending the preliminary inquiry we required in [State v. Brown, 235 Conn. 502, 528, 668 A.2d 1288 (1995)] in situations of alleged racial bias beyond an initial inquiry of the individual reporting the conduct to encompass the interview of key players will not . . . prove any more disruptive of the judicial process than Brown has proven to be. . . . We cannot permit the jury’s nor the public’s attention to be diverted from the ultimate question of guilt or innocence that should be the central concern in a criminal proceeding ... by the extraneous and irrelevant consideration of an immutable characteristic such as race or ethnicity, nor can we tolerate the suggestion that race or ethnicity played any role in the conviction of a criminal defendant.” (Citations omitted; internal quotation marks omitted.) State v. Santiago, supra, 245 Conn. 339-40. “Our decision to provide additional guidelines for conducting a preliminary inquiry in situations of racial allegations in no way undermines the discretion we accord to the trial courts in making credibility assessments and determining the scope and form of inquiries. We exercise our supervisory authority in the present case to expand the scope of the preliminary inquiry because allegations of racial slurs are so inherently prejudicial as to merit additional scrutiny.” Id., 336.

The defendant argues that although the court’s prescience in fashioning a procedure that comported with the later issued dictates of Santiago is commendable, the court, nonetheless, violated the spirit and essence of Santiago when it removed C. Specifically, the defendant claims that the removal of C will have a chilling effect on jurors and will make them less likely to report racial remarks for fear of their own removal. Because the court’s decision to remove C is supported by the record, we are not persuaded that the court in any way violated the spirit of Santiago.

C reported three separate incidents where she believed R had made racially motivated or racist comments. The court found that C was not credible, not because she was lying, but because her capacity to perceive was impaired. The trial court is the sole judge of the credibility of allegations by a juror and the capacity of a juror to serve. See id., 337; State v. Mills, supra, 57 Conn. App. 363. The court’s determination that C was not capable of perceiving situations accurately was within the court’s discretion and was sufficient cause for her removal as an alternate juror.

The defendant argues that the court improperly excused C to penalize her for forcing the court to conduct an investigation once she alleged that racial comments were made. This argument is completely baseless. The court conducted a thorough investigation of the alleged racial comments and decided it did “not want a sideshow going on with the jury.” Consistent with Santiago, the court eliminated any possibility of having an allegedly biased juror serve and kept the ultimate issue of the defendant’s guilt or innocence central to the proceeding. We conclude that the court did not abuse its discretion in dismissing C.

Furthermore, even if the court had abused its discretion, the defendant cannot show that the dismissal of C resulted in any harm to him. The defendant claims that the harm incurred by C’s dismissal was the lost opportunity to have C chosen to replace R. As one of the four alternates, C had a one in four chance of being chosen by lot to replace R. We can only speculate as to whether C would have been chosen if the court had not removed her at the same time as R. Such speculation certainly cannot establish harm sufficient to reverse the judgment.

II

The defendant also claims that the court improperly denied his motion to suppress Phelmetta’s out-of-court photographic array identification. Specifically, the defendant argues that the photographic array presented to Phelmetta was unnecessarily suggestive. We do not agree.

The following additional facts are relevant to this claim. During the trial, the defendant moved to suppress Phelmetta’s out-of-court photographic identification. Outside of the jury’s presence, the court held a hearing in which it heard testimony from Phelmetta and a police detective, Richard Foti, regarding the photographic array identification. Both witnesses testified that after Phelmetta told the police that she could identify the shooter, she gave the police a description, which included the fact that the shooter wore a hooded jacket. Using the description, eight similar photographs were chosen by computer. Two of the photographs chosen were of individuals with hoods, one of whom was the defendant. Prior to the photographs’ being laid out, detectives told Phelmetta to look carefully at the photographs. Then, the group of eight photographs were randomly placed in rows on a table.

One detective testified that within ten to fifteen seconds after the photographs had been placed on the table, Phelmetta identified the defendant’s photograph. He testified that she did not pick up a photograph until she had signed and dated the defendant’s photograph.

Phelmetta testified that it took her approximately five minutes before she made an identification of the shooter. She testified that she picked up two photographs, one of which was of the defendant, before identifying the defendant as the shooter. Before the detectives had her sign the photograph, they told her to look again at all of the photographs. After doing so, she signed the defendant’s photograph.

The defendant moved to suppress Phelmetta’s out-of-court identification of him. He claimed that the array of photographs presented to the witness was unnecessarily suggestive and in violation of his right to due process. Specifically, the defendant argued that only two of the eight photographs in the array contained individuals wearing hooded jackets, the same clothing that the witness had identified the shooter as wearing. The defendant asserts that presenting a witness with a photograph of a person wearing clothing that so closely matches the description of the clothing of the shooter “causes that particular photograph to jump off the page.” He also argued that the array was unnecessarily suggestive because there was a discrepancy in the testimony with regard to the amount of time it took for Phelmetta to identify the defendant, there was a discrepancy in the testimony as to whether Phelmetta picked up a photograph prior to the identification and the array had light-skinned males that did not have the same features as the defendant.

The court rejected the defendant’s arguments and denied the motion, stating: “Gentlemen, I looked at the photos in the photo array, and I looked at it from several different points of view, and I came to the same conclusion each time. It is not impermissibly suggestive in my view. I have seen photo arrays that have been upheld by the Supreme Court that were much more suggestive than that one. I don’t think it’s even close, and I cannot, therefore, grant the motion. I’m going to deny it.” The defendant took exception to the court’s ruling.

Our standard of review of a court’s denial of a motion to suppress is well established. “[W]e will reverse the trial court’s ruling [on evidence] only where there is abuse of discretion or where an injustice has occurred . . . and we will indulge in every reasonable presumption in favor of the trial court’s ruling. . . . Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of fact-bound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error. . . . Because the issue of the reliability of an identification involves the constitutional rights of an accused . . . we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable. . . .

“In determining whether identification procedures violate a defendant’s due process rights, [t]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. . . . An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification. . . . The defendant bears the burden of proving both that the identification procedures were unnecessarily suggestive and that the resulting identification was unreliable. . . . Generally, [t]he exclusion of evidence from the jury is ... a drastic sanction, one that is limited to identification testimony which is manifestly suspect.” (Citation omitted; internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 552-53, 747 A.2d 487 (2000).

Here, the record does not reveal that the photographic array was unnecessarily suggestive. It is clear from the record that the police in no way highlighted or emphasized the defendant’s photograph, nor did they in any manner verbally or demonstratively indicate anything to the witness that might be considered suggestive. Accordingly, the defendant failed to meet his burden, and the trial court properly denied the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       The note from C stated: “Dear Judge Freedman, as uncomfortable as I am with this, I feel it is my duty to inform you a juror has made racist comments on more than one occasion and in the presence of a number of fellow jurymen. I feel confident that you will know how to address this situation. Thank you. [C].”

       The first incident about which C informed the court occurred in the elevator after lunch on May 28,1998. In a conversation among several jurors, C heard R talk about eating lunch at Burger King. C said R had “used a lot of language — but basically said that she had been very uncomfortable because of all the niggers that were there, and they were crowding her and making her feel uncomfortable, and basically saying that she had lived in New Haven all her life, and you know, how terrible it was that it was coming to this.”
      The second incident that C related to the court, occurred the following day when “a group of people were just sitting together and talking about our families, and [R] mentioned that she wouldn’t let her son go down into the part of New Haven that he wanted to go to do some clothes shopping because all the people from the jungles were there, and she didn’t want him, you know, to be affected by this and just, you know, a lot of — I mean, I don’t remember all the comments, but it was an uncomfortable situation, and it was very obvious that she didn’t think that there was anything wrong with what she was saying.”
      On May 29, 1998, the final incident occurred in the jury waiting room when C heard the same juror “talking about the fact that she lived in New Haven, and you know, someone asked her if she knew, you know, if there was a reason for her not to be here, because maybe she knew something, and she said, no, that she lived on the good side of the bridge. . . . You know, thank God I don’t have to deal with the gangs.”

       In response to the comment made in the elevator after lunch, R stated that she had related only that she “was uncomfortable about the crowd around me, but it was young kids. It wasn’t — they were mixed. They weren’t just black. I was just a little nervous with all the younger generation. I mean, younger. They were fifteen, sixteen years old." After being informed by the court that “[s]omebody said they heard the word ‘nigger,’ ” she adamantly stated, “Never. Never. I don’t ever use that word in my vocabulary.” She also stated, “I never, I swear, I never said that word. I don’t even allow that said in my household.” In response to counsel’s comment about her being “very uncomfortable because of all the niggers there,” she replied, “Never. Never in a million years.”
      With regard to the second alleged remark, about jungle people, R responded that she did restrict her son from going into certain areas of New Haven by himself, “but I didn’t say anything about any color, any race. It doesn’t have to do with race and color. There’s good and bad in all people.” And when further questioned by counsel as to whether she had said anything about all the people from the jungle, she stated, “Never. Never. Never. No.”
      With respect to the third comment, about living on the good side of the bridge, she admitted that she lived in a good area and had said that, but that there were no references to gangs or not having to deal with gangs.

       In Santiago, our Supreme Court concluded “that an allegation of racial bias on the part of a juror differs so fundamentally from other types of juror misconduct that [State v. Brown, 235 Conn. 502, 528, 668 A.2d 1288 (1995)] is of limited guidance and does not go far enough. Because such allegations are a matter of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole ... we deem it appropriate in all future cases in which a defendant alleges that a juror has made racial epithets, such as in the present case, that the trial court should conduct a more extensive inquiry than that prescribed in Brown. Such inquiry should 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 remarks.” (Citation omitted; internal quotation marks omitted.) State v. Santiago, supra, 245 Conn. 340.

       General Statutes § 51-248 (d) provides in relevant part: “If . . . any juror shall . . . become unable to further perform his duty, the court may excuse him. If any juror is so excused . . . the court may order that an alternate juror who is designated by lot to be drawn by the clerk, shall become a part of the regular panel . . . .”


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. BRENT MCCALL
    (AC 18073)
    Foti, Landau and Pellegrino, Js.
    Argued December 8, 2000
    officially released March 6, 2001

      Michael T. Wade, special public defender, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Joan K. Alexander, former assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Brent McCall, appeals from the judgment of conviction, following a jury trial, of criminal attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a, assault in the first degree in violation of General Statutes § 53a-59 (a) (1), assault of a peace officer in violation of General Statutes (Rev. to 1995) § 53a-167c (a) (1), and two counts each of attempt to commit assault of a peace officer in violation of General Statutes § 53a-49 (a) (2) and General Statutes (Rev. to 1995) § 53a-167c (a) (1), and attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1). The defendant pleaded guilty to criminal possession of a firearm in violation of General Statutes § 53a-217 and carrying a pistol without a permit in violation of General Statutes § 29-35. The court imposed an effective sentence of forty-five years imprisonment.

On appeal, the defendant claims that the court improperly (1) permitted the state (a) to introduce evidence of the defendant’s prior misconduct and (b) to cross-examine the defendant about other misconduct, and (2) denied his motion for a new trial in which he claimed that the jury improperly interpreted the evidence and the instructions given by the court. We disagree.

The jury reasonably could have found the following facts. At approximately 7:30 p.m. on May 18,1996, John Reilly, a Bristol police officer, was sitting in his police vehicle on Addison Street in Bristol, conducting surveillance in an unrelated matter. When he saw the defendant drive a white Oldsmobile into the driveway at 11 Addison Street, Reilly drove his vehicle into the driveway behind the defendant’s vehicle.

The defendant remained in his vehicle for five to ten seconds, frequently looking into his rearview mirror. He then got out of the vehicle and walked through the yard, keeping his back to Reilly. The defendant walked quickly and with his hands exposed. Reilly thought that the defendant was trying to evade him but perceived no danger. Reilly lost sight of the defendant when he walked behind a garage on the premises. Reilly exited his vehicle and followed the defendant. As Reilly stepped around a comer of the garage, the defendant turned toward him with a gun in his hand and shot Reilly twice, once in the arm and once in the leg. Although he had fallen to the ground, Reilly drew his service weapon and shouted, “Police.” The defendant ran but stopped in front of Reilly, aimed his gun and fired six more shots at the officer. Reilly shot the defendant twice in the left leg before the defendant fled the scene on foot.

The defendant was identified as a suspect in the shooting. Kevin Mellon and Brian Suchinski, detectives with the Bristol police department, were assigned to observe 307-309 Main Street in Bristol, where the defendant’s mother lived. At about 11:30 p.m., Mellon walked through the backyard of the premises to a vacant lot on Summer Street and saw the defendant across the street, walking toward him. Mellon alerted Suchinski and observed the defendant walk away from him. Both detectives shouted, “Stop, police!” At first, the defendant did not respond to the detectives but continued walking away. Suddenly, the defendant turned and fired two shots at the detectives. Mellon returned fire, striking the defendant several times. The defendant fell to the ground with his gun still in his hand.

The defendant was taken to Bristol Hospital, where he received emergency treatment. While he was being treated, the defendant told Barry McNeil, a physician, that he was in trouble for shooting at several police officers. As he was being transported to Hartford for surgery, the defendant answered, in response to a medically related question from Jamie Young, an emergency medical technician, “Because I shot at three police officers.” At the Walker Reception Center, where he was incarcerated, the defendant told Brian Sherman, a paramedic, that he shot Reilly in the stomach and fired at Mellon and Suchinski. The defendant told Sherman that he shot Reilly because he, the defendant, was afraid of being arrested and because Reilly worked for the judicial system that had failed the defendant. The defendant also told Sherman that he wished that he had killed Reilly before the officer shot at him, and that he shot at Mellon and Suchinski to “take them out” before they “took me out.” At trial, the defendant admitted that he shot Reilly, but claimed that he did so because he was under the influence of hallucinogenic mushrooms. He denied shooting at Mellon and Suchinski.

The state introduced evidence from the Oldsmobile and the Addison Street shooting that confirmed that the defendant fired at Reilly. The defendant’s fingerprints were found in the Oldsmobile and on the shell casings found at the scene of the shooting. The police, however, found no shell casings from the defendant’s gun at the Summer Street shooting scene.

The jury returned a verdict of guilty on all counts. The court gave the defendant one week to file posttrial motions. The defendant filed a motion for a new trial, claiming that the jury improperly interpreted the facts in light of the court’s jury instructions. The court denied the motion. Following sentencing, the defendant appealed.

I

The defendant claims that the court abused its discretion by permitting the state to present evidence of the defendant’s prior misconduct. Specifically, the defendant claims that the court improperly permitted the state (1) to introduce evidence of the defendant’s prior misconduct during its case-in-chief and (2) to cross-examine the defendant about his prior misconduct. We disagree.

The following facts are relevant to this claim. Prior to trial, the defendant informed the state that he intended to rely on the special defense of impaired mental capacity because, at the time of the incidents, he claims to have been under the influence of hallucinogenic mushrooms and therefore was incapable of forming the intent to cause serious bodily injury. To prove the element of intent to cause serious bodily injury during its case-in-chief, the state proffered the testimony of Kevin Hayes, Amy Dandelski and Thomas Veiva to prove that the defendant had a motive to injure the police officers and to avoid arrest. The defendant objected to the testimony as being irrelevant and extremely prejudicial to his case. Outside the presence of the jury, the state made offers of proof with respect to each witness. The court ruled that the proffered testimony concerning the outstanding warrants and a particular bank robbery was relevant to the defendant’s intent but that the details with respect to the warrants were more prejudicial than probative. The court therefore limited the testimony that the state could elicit from Hayes and Dandelski. The state abided by the court’s ruling. At the conclusion of Hayes’ testimony, the court instructed the jury that his testimony was “not offered as evidence of any other crime or occurrence reflecting on the defendant’s character,” and could be used “only to show a reason for concern on the defendant’s part with respect to the presence of a police officer at 11 Addison Street.”

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) State v. McClendon, 45 Conn. App. 658, 671, 697 A.2d 1143 (1997), affd, 248 Conn. 572, 730 A.2d 1107 (1999).

A

The defendant’s first evidentiary claim is that the court abused its discretion by permitting the state to introduce evidence during its case-in-chief concerning the defendant’s prior misconduct. We disagree.

“Although evidence of other misconduct is not ordinarily admissible to prove the bad character or criminal tendencies of the accused, it may be allowed for numerous other purposes. . . . Proof of motive is a widely recognized exception to the prohibition against the admissions of such evidence. . . . Before evidence can be admitted under the motive exception, it must satisfy a two-pronged test: (1) it must be relevant and material, and (2) its probative value must outweigh its prejudicial effect.” (Citations omitted.) State v. Jenkins, 24 Conn. App. 330,335, 588 A.2d 648, cert, denied, 219 Conn. 903, 593 A.2d 132 (1991).

Here, the court listened to the state’s offer of proof and heard the arguments of both parties. It then weighed the relevance of the proffered evidence against the prejudice to the defendant. The defendant put his ability to formulate the intent to cause serious physical injury at issue by asserting an impaired mental capacity defense. The testimony from the three witnesses about the warrants outstanding against the defendant and his involvement in a bank robbery was therefore relevant to explain his wanting to avoid the police. The court minimized the prejudicial effect of the proffered evidence by limiting the scope of the testimony and by giving the jury a limiting instruction immediately after Hayes testified. It is well established that in the absence of evidence to the contrary, a jury is presumed to follow the instructions given by the court. State v. Gray, 221 Conn. 713, 730, 607 A.2d 391, cert, denied, 506 U.S. 872, 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992). We therefore conclude that the court did not abuse its discretion by permitting the state to put evidence of the defendant’s prior misconduct into evidence during its case-in-chief.

B

The defendant’s claim with respect to the state’s cross-examining him about prior misconduct is not reviewable. At the close of the state’s case-in-chief, the defendant filed a motion in limine seeking to prevent the state from cross-examining him about his prior misconduct. The parties stipulated to the court’s ruling. Appellate courts “do not review rulings that the defendant accepted or requested at trial . . . .” State v. Hall, 28 Conn. App. 771, 780, 612 A.2d 135, cert, denied, 224 Conn. 904, 615 A.2d 1045 (1992). We therefore will not review this aspect of the defendant’s claim.

II

The defendant’s second claim is that the court improperly denied his motion for a new trial because the jury improperly interpreted the facts in light of the court’s jury instructions. The defendant claims more specifically that the jury speculated about evidence not contained in the record. The defendant’s claim concerns his conviction related to his shooting at Mellon and Suchinski, i.e., the two charges of attempt to commit assault of a peace officer, §§ 53a-49 (a) (2) and 53a-167c (a) (l), and two charges of attempt to commit assault in the first degree, §§ 53a-49 (a) (2) and 53a-59 (a) (l) (counts four through seven of the information).

“[0]ur standard of review of the trial court’s denial of a motion for a new trial is limited to a determination of whether, by such denial, the court abused its discretion. State v. Rothenberg, 195 Conn. 253, 264, 487 A.2d 545 (1985). State v. Leavitt, 8 Conn. App. 517, 524, 513 A.2d 744, cert, denied, 201 Conn. 810, 516 A.2d 886 (1986). As a reviewing court considering the trial court’s decision granting or denying a motion for a new trial, we must be mindful of the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided.” (Internal quotation marks omitted.) Munson v. United Technologies Corp., 28 Conn. App. 184, 194-95, 609 A.2d 1066 (1992).

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The following procedural history is necessary for our review of the defendant’s claim. During its deliberations, the jury sent the court a note, asking: “We need to know if pointing at somebody constitutes attempted assault in the first degree even though the weapon was not fired.” The court responded, “I assume by pointing, you mean pointing at somebody with a gun. Is that what you’re referring to?” The jury responded in the affirmative. The court then reinstructed the jury on that portion of its charge concerning criminal attempt. Forty minutes later, the jury returned its guilty verdict, which encompassed counts four through seven of the information.

The defendant does not take exception to the court’s charge, but argues that the jury misapplied the evidence. At trial, the defendant admitted shooting Reilly, but denied pointing a gun at or shooting Mellon and Suchinski. The state presented testimony from several police officers and a bystander that the defendant had fired at the officers first. The police, however, found no physical evidence such as bullet casings from the defendant’s gun at the Summer Street scene. The defendant argues, speculatively, that, because the jury rendered its verdict forty minutes after the court reinstructed it on criminal attempt, the jury misapplied the evidence because there was no version of the evidence that the defendant merely pointed his gun at Mellon and Suchinski. The substance of the defendant’s argument is that the jury’s verdict was improper unless it conformed to either the state’s version of the evidence or the defendant’s version of the evidence. We disagree.

“We cannot speculate, as the [defendant] would have us do, as to how and why the jury arrived at its verdict.” Mack v. LaValley, 55 Conn. App. 150,160, 738 A.2d 718, cert, denied, 251 Conn. 928, 742 A.2d 363 (1999). “While the jury may not speculate to reach a conclusion of guilt, [it] may draw reasonable, logical inferences from the facts proven to reach a verdict.” State v. Williams, 16 Conn. App. 75, 79, 546 A.2d 943 (1988). We give deference to the trier of fact, who had the opportunity to observe the conduct, demeanor and attitude of the trial witnesses, and to assess their credibility. State v. Miranda, 41 Conn. App. 333, 338, 675 A.2d 925 (1996), rev’d on other grounds, 245 Conn. 209, 715 A.2d 680 (1998). The “jury can accept all, part or none of the testimony of a witness.” State v. Fullard, 5 Conn. App. 338, 342, 497 A.2d 1041 (1985). “Where there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide.” State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984).

We do not know, on the record before us, how or why the jury found the defendant guilty of both attempt to commit assault of a peace officer and attempt to commit assault in the first degree. The length of time between the jury’s having sent its note to the court and when it reached its verdict is of no consequence. The record contains sufficient evidence, when viewed in conjunction with the court’s instructions on criminal attempt, from which the jury reasonably could have found the defendant guilty on counts four through seven.

The defendant speculates, on the basis of the note to the court, that the jury concluded that the defendant only pointed his gun at Mellon and Suchinski. Although we do not accept the defendant’s speculation as fact, for the purposes of our analysis, we conclude that the jury reasonably could have come to the following result: The jury reasonably could have believed that part of the state’s evidence proving that the defendant pointed his gun at Mellon and Suchinski, and the defendant’s testimony that he did not fire at the officers, and could have concluded that pointing the gun at the officers was a substantial step in the defendant’s planned course of conduct. For those reasons, the court did not abuse its discretion by denying the defendant’s motion for a new trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state withdrew the charge against the defendant of criminal use of a firearm in violation of General Statutes § 53a-216.

       Reilly was watching 11 Addison Street, waiting for the return of a man suspected of having committed domestic violence there.

       Reilly suffered multiple injuries to his large and small intestines that required a bowel transection. The bones in his left forearm were shattered and required multiple surgeries. Reilly also lost the motor function in the muscles in the front of his left leg and suffers from a condition known as foot drop. He forever will have to wear a leg brace to walk properly.

       Hayes, a police officer, would testify that on the night of the shootings, he considered the defendant to be a suspect in the Reilly shooting on the basis of his knowledge of arrest warrants outstanding against the defendant. Dandelski, the defendant’s former companion and the mother of his child, would testify that the defendant showed her his gun, told her that he had participated in a bank robbery and was afraid that the police would be able to identify him because a dye pack exploded and that he did not want to go back to jail. Veiva, a special agent of the Federal Bureau of Investigation, would testify about a bank robbery in which a dye pack exploded and the robbers were seen in the defendant’s white motor vehicle.

       Hayes was permitted to testify only that there were warrants outstanding against the defendant but not about the nature of their related charges. Dandelski was permitted to testify only that the defendant had told her that he had participated in a bank robbery and was afraid that he would be identified because the dye pack exploded and that he did not want to return to jail.

       The transcript contains the following colloquy between the court and counsel:
      “[Defense Counsel]: The defense filed a motion this morning, Your Honor, with respect to the prior record.
      * ** %
      “[Defense Counsel]: This was discussed in chambers. I think essentially we probably agree with what the ruling is going to be.
      “The Court: All right. And with respect to — one of the convictions was for assault in the first degree. That state is agreeable to refer to that conviction as a felony conviction.
      “[Prosecutor]: Yes.
      “The Court: And with respect to the six counts of bank robbery, the state can refer to those by name. And with respect to the one count of possession of a destructive device, that will be referred to as a felony conviction. Is that the understanding between the parties?
      “[Defense Counsel]: Yes, Your Honor . . . .”

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes (Rev. to 1995) § 53a-167c (a) provides in relevant part: “A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonably identifiable peace officer . . . from performing his duty, and while such peace officer ... is acting in the performance of his duties, (1) he causes physical injury to such peace officer . . .

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such iqjury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       With respect to criminal attempt, the court instructed the jury as follows: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for the commission of the crime, in this case, assault in the first degree, he intentionally does anything which, under the circumstances as he believes them to be, is an act constituting a substantial step in a course of conduct planned to culminate in his commission of the assault in the first degree.
      “Under the circumstances, in other words . . . under the circumstances as he believes them to be, he must have engaged in conduct which was a substantial step in a course of conduct which he planned to end in the commission of assault in the first degree.
      “To be a substantial step in that planned course of conduct, his conduct must be strongly corroborative of his criminal purpose; in other words, strongly supportive of his criminal purpose, his criminal intent.
      “Now, preparation to commit a crime standing alone is not necessarily sufficient, but some preparations may be sufficient. Whether the preparation is sufficient to constitute an attempt is a matter of degree. If the preparation done with the intent to commit the crime, intent to commit assault in the first degree here, came very near the completed crime, that will be sufficient even though there still may be something left to be done to complete the crime. The conduct of the defendant, done with the intent to commit the underlying crime, is sufficient if it’s adapted to the commission of that crime even though it fails because of interruption or some other outside cause.
      “It is sufficient if the defendant’s acts are the start of a line of conduct which would lead naturally to the commission of the crime, and if that crime appears to the defendant to be possible of commission by the means which he has chosen."


author: ZARELLA, J.

text:
    JAMES HOLLEY v. COMMISSIONER OF CORRECTION
    (AC 19454)
    Foti, Zarella and O’Connell, Js.
    Argued October 25, 2000
    officially released March 6, 2001

      R. Bruce Lorenzen, assistant public defender, with whom, on the brief, was Temmy Ann Pieszak, chief of habeas corpus services, for the appellant (petitioner).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Jo Anne Sulik, assistant state’s attorney, for the appellee (respondent).
   Opinion

ZARELLA, J.

The petitioner, James Holley, appeals from the judgment of the habeas court dismissing his second amended petition for a writ of habeas corpus dated April 13, 1998. On January 27, 1999, the court granted the petitioner’s timely petition for certification to appeal. On appeal, the petitioner claims that the habeas court improperly (1) concluded that he failed to demonstrate that he received ineffective assistance of trial counsel and (2) rejected his claim of actual innocence of the charges brought against him. We affirm the judgment of the habeas court.

On three separate occasions in January, 1992, and on February 6, 1992, the petitioner sold narcotics to an undercover police officer. Thereafter, on June 1, 1992, he was arrested and charged with four counts of sale of a narcotic substance by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). At trial, the petitioner raised the defense of entrapment as to all four counts. The petitioner was convicted, after a jury trial, on three of the counts and acquitted on one count. On March 5, 1993, the court sentenced the petitioner to serve a twenty year sentence consecutive to the sentence he was then serving for an unrelated conviction. The petitioner presently is in the custody of the respondent commissioner of correction.

I

The petitioner first claims that the habeas court improperly determined that he did not receive ineffective assistance of trial counsel. This claim embodies four distinct claims of ineffectiveness, namely, that counsel (1) failed to investigate the nature of the substances and, thereafter, failed to advise the petitioner not to sign a stipulation regarding the substances, (2) had a conflict of interest that prejudiced the petitioner’s defense at trial, (3) offered prejudicial evidence of a prior narcotics investigation, a prior conviction for possession of marijuana and the petitioner’s ownership of an expensive sports vehicle and (4) failed to seek a dismissal of the charges after the court ordered a mistrial.

Our review of such claims is well established. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. ... A convicted defendant’s claim that counsel's assistance was so defective as to require a reversal of the conviction . . . has two components. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” (Citation omitted; internal quotation marks omitted.) Henry v. Commissioner of Correction, 60 Conn. App. 313, 316-17, 759 A.2d 118 (2000).

A

The petitioner first argues that his trial counsel’s failure to investigate the nature of the substances and to advise him not to sign the stipulation amounted to ineffective assistance of counsel. We disagree.

The following additional facts are necessary for our disposition of this claim. In an effort to expedite the trial on the underlying criminal charges, the petitioner signed a stipulation in which he admitted that the seized substances were, in fact, cocaine. Before accepting the stipulation, the court asked the petitioner whether he understood the consequences of the stipulation. The court explained that “one of the things the state would have to prove in your case is that whatever the substance was involved in this case is in fact cocaine. The normal way they do that is to bring down somebody from the state toxicology department to testify that that piece of evidence was in their office, that testing was done on it and it does in fact contain cocaine.” The petitioner responded that he understood. At a subsequent pretrial hearing on December 8, 1992, the court further explained that the stipulation “does away with the necessity of producing the toxicologist. The reason we did that was because we are trying to provide [the petitioner] with this trial in a speedier fashion.” The petitioner again acknowledged that he understood the consequences of the stipulation.

To succeed on his claim, the petitioner “must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment [to the United States constitution]. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000); Ghant v. Commissioner of Correction, 255 Conn. 1, 8, 761 A.2d 740 (2000).

“[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” (Internal quotation marks omitted.) Constantopoulos v. Commissioner of Correction, 47 Conn. App. 828, 833, 708 A.2d 588, cert, denied, 244 Conn. 927, 711 A.2d 726 (1998).

The petitioner cannot prevail on the prejudice prong of the Strickland test. As the habeas court appropriately noted, the petitioner failed to demonstrate that his counsel’s conduct resulted in any prejudice to the defense. The petitioner offered no evidence at the habeas hearing to suggest that if a laboratory test had been conducted, the substances would have been shown to be something other than cocaine. The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner. United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989) (petitioner could not succeed on claim of ineffective assistance of counsel because he failed to show what further investigation would have revealed and how it would have helped him); see also Nieves v. Commissioner of Correction, 51 Conn. App. 615, 624, 724 A.2d 508 (petitioner could not succeed on claim of ineffective assistance on basis of counsel’s failure to conduct proper investigation in absence of showing that he was prejudiced by counsel’s failure to interview witnesses), cert, denied, 248 Conn. 905, 731 A.2d 309 (1999). In fact, the only evidence offered was that the substance had field tested positive for the presence of cocaine. The petitioner thus has failed to demonstrate any prejudice.

B

The petitioner next argues that trial counsel rendered ineffective assistance as a result of an actual conflict of interest. The petitioner contends that trial counsel wrongfully assessed the strength of his case and viewed him as a “potential cash cow.” According to the petitioner, trial counsel “fed the petitioner’s expectations with grandiose claims and advice that had no grounding in either law or reality.” He also asserts that he refused counsel’s requests to loan him money. The petitioner further argues that his counsel made representations to him about counsel’s ability to get the charges dismissed to induce the petitioner to terminate his prior counsel.

“In a claim of ineffective assistance of trial counsel predicated on an alleged conflict of interest, the petitioner bears the burden of satisfying a two-pronged test .... The petitioner must first demonstrate that counsel actively represented conflicting interests and [sec-

ond] that an actual conflict of interest adversely affected his lawyer’s performance.” (Citation omitted; internal quotation marks omitted.) Walton v. Commissioner of Correction, 57 Conn. App. 511, 516, 749 A.2d 666, cert, denied, 254 Conn. 913, 759 A.2d 509 (2000).

In the present case, the habeas court made no factual findings to support the petitioner’s conclusions and speculations. We have held that it is the obligation of the petitioner to provide this court with an adequate record for review. “The burden of securing an adequate record for appellate review rests with the petitioner.” Gipson v. Commissioner of Correction, 54 Conn. App. 400, 438, 735 A.2d 847, cert, granted on other grounds, 251 Conn. 915, 740 A.2d 864 (1999). The petitioner cannot prevail on his claim of conflict of interest absent factual underpinnings.

C

The petitioner next argues that trial counsel rendered ineffective assistance by offering evidence of the petitioner’s 1985 conviction for possession of marijuana, a prior narcotics investigation and the petitioner’s ownership of an expensive sports vehicle. We disagree.

We reiterate that in deciding a claim of ineffective assistance of trial counsel, the reviewing court does not grade counsel’s conduct; Constantopoulos v. Commissioner of Correction, supra, 47 Conn. App. 833; nor does the court determine which of numerous strategies counsel should have used at trial. Rather, the court’s inquiry is limited to determining whether the challenged conduct from the perspective of counsel at that time was deficient. Sloan v. Commissioner of Correction, 57 Conn. App. 304, 307, 748 A.2d 355 (2000). “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.) Walton v. Commissioner of Correction, supra, 57 Conn. App. 522. The petitioner has failed to overcome this presumption.

At the habeas hearing, trial counsel testified that he could not recall whether he questioned the petitioner on the stand at his criminal trial about his prior conviction for possession of marijuana. Counsel did testify, however, that he elicited evidence regarding the petitioner’s ownership of a Porsche for the purpose of attacking the state’s theory that ownership of the vehicle suggested that the petitioner was a drug dealer. Trial counsel also testified that he elicited testimony from a prosecution witness regarding a narcotics investigation in which the petitioner’s stepson was a target. Counsel explained that, in eliciting such information, he was emphasizing that “whatever problems [the petitioner] had in the past with violence or whatever, that he had no history of being, other than the misdemeanor of the marijuana, had no history of being a drug dealer . . . .” On cross-examination, trial counsel testified that he brought out that information as a preemptive strike.

The habeas court found that “[w]hile questioning defense counsel’s tactics in permitting the jury to hear this evidence, the petitioner overlooks the fact that his entrapment defense entailed certain risks. Thus, his prior conviction for possession was admissible to show predisposition on his part.” The court further found that “[w]hile the petitioner assails defense counsel’s tactics in opening up the subject of the prior investigation by the police and his ownership of a Porsche, it is not unusual for criminal defense lawyers to muddy the waters a bit and even seek some sympathy from the jury by showing how unfairly a defendant was treated. In this case, counsel was illustrating the petitioner’s complaint that he was ‘set up.’ . . . While ownership of the Porsche may not have come in, counsel could well have decided to anticipate the state’s attempt to suggest the petitioner was a drug dealer because he lived in modest surroundings but owned an expensive car. Explaining the source of the funds for this purchase is not entirely illogical.”

The habeas court properly determined that trial counsel was not deficient, especially considering the context in which the evidence was introduced. The petitioner’s sole defense was entrapment pursuant to General Statutes § 53a-15. “Since its codification, § 53a-15 has consistently been interpreted to impose a subjective standard.” State v. Lee, 229 Conn. 60, 81, 640 A.2d 553 (1994). The focus, therefore, is on the disposition of the defendant: “[I]f the criminal intent or the willing disposition to commit the crime originates in the mind of the accused and the criminal offense is completed, the fact that the opportunity is furnished or the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him for it constitutes no defense.” (Internal quotation marks omitted.) Id.

The state has the burden of disproving the defense of entrapment, when raised by the evidence, beyond a reasonable doubt. See State v. Pierson, 201 Conn. 211, 217, 514 A.2d 724 (1986). Accordingly, in disproving entrapment, the state was required to prove that the petitioner had the intent or was predisposed to sell marijuana. It is not unreasonable to conclude that the state would have offered the same evidence that was offered by the petitioner’s trial counsel as evidence of such intent. Moreover, it is reasonable to conclude that the petitioner’s trial counsel preemptively offered the evidence as a way of thwarting any such attempt by the prosecution and was, therefore, “within the wide range of discretion of reasonable professional assistance . . . .” Sloan v. Commissioner of Correction, supra, 57 Conn. App. 306.

D

The last claim of ineffective assistance of counsel challenges the habeas court’s conclusion that trial counsel was not deficient for failing to seek a dismissal of the charges after the court ordered a mistrial in the case. We disagree.

The following additional facts and procedural history are necessary for our disposition of this claim. On December 10,1992, prior to commencement of the criminal trial, defense counsel filed a motion in limine to exclude at trial any reference to the petitioner’s prior murder conviction. The court granted the motion. The state called James Peterson, a police informant, as its first witness at trial. On cross-examination by the defense, the witness testified that the police had advised him of the petitioner’s previous conviction of murder. The court thereafter ordered a mistrial. On January 15, 1993, the petitioner was retried on the same charges and convicted.

The petitioner argues that the prosecution induced the mistrial by “failing to ensure its key witness, Peterson, would abide by the court order,” and, therefore, the double jeopardy clause bars the second trial. The petitioner’s claim is wholly lacking in factual support.

The habeas court stated that “there isn’t a suggestion that it was prosecutorial misfeasance or overreaching. The circumstances do not support a determination of prosecutorial misconduct.” We frequently have stated that it is not the function of this court to find facts. “[A]n appellate court cannot find facts or draw conclusions from primary facts found, but may only review such findings to see whether they might be legally, logically and reasonably found.” (Emphasis in original; internal quotation marks omitted.) Parker v. Shaker Real Estate, Inc., 47 Conn. App. 489, 498, 705 A.2d 210 (1998). Moreover, it is the responsibility of the petitioner to provide an adequate record for our review pursuant to Practice Book § 61-10. State v. Louise-Julie, 60 Conn. App. 837, 841, 762 A.2d913 (2000), cert, denied, 255 Conn. 929, 930, 767 A.2d 102, 103 (2001); State v. Torres, 57 Conn. App. 614, 626, 749 A.2d 1210, cert, denied, 253 Conn. 927, 754 A.2d 799 (2000). We conclude, therefore, that the petitioner has failed to show that his trial counsel’s performance was deficient.

II

The petitioner next claims that, as a matter of law, he is innocent of the charges against him, and, therefore, the habeas court improperly rejected his claim on the ground that he failed to present newly discovered evi-. dence at the habeas hearing. He further argues that the court failed to appreciate the distinction between a claim of actual or factual innocence, which would require the introduction of newly discovered evidence, and his claim of actual innocence based on a theory of defense not yet accepted in Connecticut that, as a strict question of law, need not be proven with newly discovered evidence.

The respondent argues, in part, that we should not review the petitioner’s innocence claim because the petitioner raised the claim for the first time in his post-trial brief following the habeas hearing and did not raise it as a ground for relief in the second amended petition or at the habeas hearing. We agree.

“In a writ of habeas corpus alleging illegal confinement the application must set forth specific grounds for the issuance of the writ including the basis for the claim of illegal confinement. Marci v. Hayes, 189 Conn. 566, 568, 456 A.2d 1186 (1983). The petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action. McPheters v. Pollard, 146 Conn. 509, 510, 152 A.2d 632 (1959) The principle that a plaintiff may rely only upon what he has alleged is basic. ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. . . . Wright v. Hult, 50 Conn. App. 439, 449, 718 A.2d 969, cert, denied, 247 Conn. 939, 723 A.2d 320 (1998). While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations; Gaines v. Manson, 194 Conn. 510, 528, 481 A.2d 1084 (1984); it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised. Giannotti v. Ward, 26 Conn. App. 125, 126 n.l, 599 A.2d 26 (1991) (where petitioner’s claim of ineffective assistance of counsel not alleged in habeas petition, appellate court will not review claim raised for first time on appeal), cert, denied, 221 Conn. 905, 600 A.2d 1359 (1992). The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise. Hasan v. Warden, 27 Conn. App. 794, 798, 609 A.2d 1031, cert, denied, 223 Conn. 917, 614 A.2d 821 (1992).” (Internal quotation marks omitted.) Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 406, 726 A.2d 657, cert, denied, 249 Conn. 920, 733 A.2d 233 (1999).

In the present case, the petitioner’s amended petition dated October 1,1997, and his second amended petition dated April 13,1998, solely present claims of ineffective assistance of trial counsel. Nowhere in those petitions does the petitioner allege that his trial counsel was ineffective for failing to advance a defense of agency or that he was innocent as a matter of law. Moreover, notwithstanding the petitioner’s statement that “[w]hat was discussed during the course of the hearing was the relative novelty of the defense in Connecticut,” a careful reading of the seventy-four page transcript of the hearing reveals that the defense was never mentioned, let alone discussed. We therefore decline to consider this claim on appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the second amended petition was filed in response to the request of the respondent commissioner of correction for a more specific statement of the petitioner’s factual and legal claims and, thus, supplemented specific paragraphs of the petitioner’s amended petition dated October 1, 1997. Therefore, although the second amended petition is the operative pleading in this case, we read the applicable portions of each petition in considering the petitioner’s claims on appeal.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. . . .”
      General Statutes § 21a-240 (50) defines “sale” as “any form of delivery which includes barter, exchange or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, agent, servant or employee . . . .”
      General Statutes § 21a-240 (3) defines “agent” as “an authorized person who acts on behalf of or at the direction of a manufacturer, distributor or dispenser. It does not include a common or contract carrier, public warehouseman, or employee of the carrier or warehouseman . . . .”

       The petitioner’s signed stipulation provided:
      “The defendant in the above-captioned criminal cases hereby stipulates and agrees as follows:
      “That I am stipulating to the fact that all alleged narcotic exhibits to be offered in the instant matters are in fact cocaine. I have conferred with Attorney Ernest J. Diette, Jr., and have been fully informed of the fact that a Toxicologist would normally be necessary to establish that fact, however, to expedite my cases I am knowingly entering into this agreement. I therefore waive the necessity of establishing a chain of custody and stipulate that the exhibits are cocaine.”

       General Statutes § 53a-15 provides: “In any prosecution for an offense, it shall be a defense that the defendant engaged in the proscribed conduct because he was induced to do so by a public servant, or by a person acting in cooperation with apublic servant, for the purpose of institution of criminal prosecution against the defendant, and that the defendant did not contemplate and would not otherwise have engaged in such conduct.”

       We note, in passing, that the petitioner appropriately cites State v. Colton, 234 Conn. 683, 692, 663 A.2d 339 (1995), cert, denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996), to support his assertion that “[w]hile normally a mistrial would not cause a bar to a retrial, particularly a mistrial had on a defense motion, if the prosecution creates circumstances that goad the defense to move for a mistrial, prejudice attaches.” Nevertheless, Colton is inapposite to the facts of the present case because there is no evidence in the record tending to show prosecutorial misconduct.