Opinion
CV144006329
01-10-2020
Jose Ayuso (Inmate #156239) v. Commissioner of Corrections
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Newson, John M., J.
MEMORANDUM OF DECISION
Hon. John M. Newson Judge
I. Procedural History
The petitioner was the defendant in a matter in the Judicial District of Hartford under Docket No. CR03-571202. At all times relevant to the claims in this petition, he was represented by Attorneys William Paetzold and Jeffrey Kestenband. He was originally charged with three counts of attempt to commit murder in violation of General Statutes § § 53a-49(a)(2) and 53a-54a, two counts of assault in the first degree in violation of § 53a-59(a)(5), three counts of assault of a peace officer in violation of General Statutes § 53a-167c(a)(1) and one count each of attempt to commit assault in the first degree in violation of § § 53a-49(a)(2) and 53a-59(a)(5), carrying a pistol without a permit in violation of § 29-35, and criminal possession of a firearm in violation of § 53a-217(a)(1). The petitioner elected to have a jury trial. From the evidence presented, the jury could reasonably have found the following facts proven beyond a reasonable doubt:
On June 5, 2003, at approximately 1 a.m., Officers Tishay Johnson and Victor Otero and Sergeant Gerry Pleasant of the Hartford police department were working undercover to target street crimes in Hartford and were patrolling the city in an unmarked, two door Toyota Tercel. At that time, the undercover officers received a radio dispatch, directing them to investigate the 500 block of Zion Street for loitering and narcotics sales. Johnson then drove northbound on Zion Street, turning right onto Park Street. Johnson entered a driveway located between 835 and 853 Park Street and parked the vehicle in the rear parking lot. After Johnson parked the vehicle, the defendant, who had been standing underneath a nearby tree, approached the driver’s side of the vehicle. Pleasant immediately recognized the defendant from previous encounters. Johnson rolled down the window, and the defendant asked Johnson what he needed. In response, Johnson asked the defendant what he had.
The defendant then looked inside the vehicle at Otero, who was sitting in the backseat, and at Pleasant, who was sitting in the front passenger seat, and then stepped away from the vehicle. Pleasant and Johnson, who still were seated in the front seat, heard the defendant load his gun, which was a .40 caliber Glock semiautomatic handgun. Johnson also observed the defendant point the gun at him. As Johnson was exiting the vehicle, the defendant fired two gunshots in Johnson’s direction, one of which struck the bulletproof vest that Johnson was wearing underneath his clothes. The defendant continued to shoot as he moved away from the vehicle, and the officers also fired their .45 caliber semiautomatic handguns. During this time, the defendant shot Otero several times. Johnson briefly chased the defendant down Park Street; however, Johnson returned to the parking lot after exhausting his supply of ammunition. Pleasant then notified the police dispatcher of the situation, providing a description of the defendant, and requested an ambulance. Johnson, who was experiencing pain in his ribs, and Otero, who was bleeding from his abdomen, lay on the ground and waited to be taken to a hospital.
Although the defendant had sought refuge in a nearby apartment building on Mortson Street, responding officers, having been informed of the defendant’s whereabouts by a resident of the apartment building, eventually located and arrested him. The police also located the defendant’s .40 caliber Glock handgun in an apartment on Mortson Street. The defendant later was brought to the hospital so that the officers could identify him. Johnson made a positive identification of the defendant.State v. Ayuso, 105 Conn.App. 305, 307-08, 937 A.2d 1211, cert. denied, 286 Conn. 911, 944 A.2d 983 (2008). The jury found the defendant guilty of two counts of assault in the first degree and one count each of attempt to commit assault in the first degree, carrying a pistol without a permit, and criminal possession of a firearm. The jury found the defendant not guilty of the other charges. Subsequently, the court imposed a total effective sentence of forty-one years incarceration, with a two-year mandatory minimum sentence to serve. Id., 309. The petitioner, represented by Attorney Stephanie Evans, took an appeal, and his convictions were affirmed. Id. The petitioner did commence a prior habeas petition, which was pending under TSR-CV07-4001923, however, that matter was dismissed on procedural grounds prior to a hearing on the merits.
The matter was scheduled to be tried on October 25, 2011. On the morning of trial, however, the petitioner got into a dispute with his counsel about trial tactics and refused to proceed or cooperate with counsel in going forward with evidence. After some discussion on the record, and warnings to the petitioner, the Court dismissed the matter for failure to prosecute. Ayuso v. Commissioner of Correction, Superior Court judicial district of Tolland, CV07-4001923 (Newson, J., Oct. 25, 2011), appeal dismissed, 146 Conn.App . 906, 77 A.3d 216, cert. denied, 310 Conn . 961, 82 A.3d 628 (2013). Because the basis for the dismissal was procedural, res judicata considerations do not attach. E.g., Cayer Enterprises, Inc. v. DiMasi, 84 Conn.App. 190, 194, 852 A.2d 758, 761 (2004) ("In considering a defense of res judicata, our Supreme Court has stated that "[t]he appropriate inquiry ... is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding ... If not, res judicata is inappropriate ... [A] pretrial dismissal ... is not the logical or practical equivalent of a full and fair opportunity to litigate.") (Citations omitted; emphasis in original.)
The petitioner commenced the present action on July 8, 2014. The Amended Petition for Writ of Habeas Corpus dated November 14, 2018, alleges a due process violation in Count One, because of the State’s presentation of false testimony at trial, a due process violation in Count Two, because of the State’s failure to disclose exculpatory evidence, ineffective assistance of criminal trial counsel in Count Three, and ineffective assistance of criminal appellate counsel in Count Four. The respondent filed a timely Return, generally denying the allegations in the petition, and also raising the special defense of procedural default to both of the petitioner’s due process claims. The petitioner filed a timely reply denying the special defenses. The matter was tried on April 24 and 29, and June 11, 2019. The parties were also given the opportunity to file post-trial briefs.
There was a fifth count asserting a claim of ineffective assistance against the petitioner’s prior habeas counsel, however, that claim was withdrawn prior to trial, as well as the defenses raised by the respondent. The respondent also withdrew a special defense asserting res judicata as to the petitioner’s claim of ineffective assistance against appellate counsel prior to trial. (See, Footnote 1.)
II. Law and Discussion
"The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant 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. 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. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id., 688. "[T]he performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances." Id. "Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id., 689. "Thus, a court ... must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. [The petitioner] must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance ... [T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id., 690.
Under the second prong of the test, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id., 691. "[A]ctual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." Id., 693. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. "The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., 694. "An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification, ’ and the like." Id., 695. The court "must consider the totality of the evidence before the judge or jury." Id. "In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner’s failure to prove either is fatal to a habeas petition." (Internal quotation marks omitted.) Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).
The petitioner’s first claim is that his due process rights were violated when the State allegedly presented false testimony. The petitioner claims that the "false" testimony was provided when Officer Gerald Pleasant testified that he witnessed damage to Officer Johnson’s bulletproof vest caused by a bullet fired from the petitioner. There is no need to engage in substantive discussion of this claim, because the assertion that the State knowingly submitted false testimony, or that Officer Pleasant knowingly testified falsely is wholly without merit.
"[A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury ... This standard ... applies whether the state solicited the false testimony or allowed it to go uncorrected ..." State v. Jordan, 314 Conn. 354, 370-71, 102 A.3d 1 (2014). False means testimony that is more than simply wrong, or which can be challenged factually by some other evidence or testimony. Black’s Law defines false as follows: "In law, [false] means something more than untrue; it means something designedly untrue and deceitful, and implies an intention to perpetrate some treachery or fraud." The totality of Officer Pleasant’s testimony on this issue was as follows:
Mr. Ayuso ran north through an alley, at which point, Officer Johnson broke off his pursuit and staggered back and said to me, boss, I’m hit, boss, I’m hit. And I lay him down and I tore his clothes off and I was able to observe a small wound, a burn really, where the bullet had impacted the bulletproof vest and burned his skin from the twisting action of the bullet.
Exhibit A, Excerpt of Testimony of Officer Gerald Pleasant, December 1, 2004, p. 30, ln. 9-15. Officer Pleasant also testified before this Court, and was found to be a credible witness who simply testified to his honest belief about what he saw in the midst of a chaotic and traumatic event. There is no dispute that Officer Johnson suffered a significant localized injury during this incident. What the petitioner disputes is whether the bulletproof vest shows visible evidence of damage from the bullet strike. While his testimony may be subject to challenge, or even contradicted by other evidence, the petitioner has failed to provide the slightest shred of evidence that there was any design or intent by Officer Pleasant to testify to something he knew to be untrue. See, State v. Jordan, supra, 314 Conn. at 370 ("When, however, a prosecutor obtains a conviction with evidence that he or she knows or should know to be false ..."; discussing where the State allowed two witnesses’ false testimony that no promises had been made to them in exchange for their testimony to go uncorrected). The petitioner has attempted to turn a standard conflict between eyewitness recollection and physical evidence into an intentional falsehood. His claim is dubious, and fails for a lack of credible evidence.
He was ultimately diagnosed with a bruised liver and cracked rib on his right side.
The petitioner’s next claim is that the State violated his due process rights by failing to disclose that Officer Johnson’s gun holster, which he was wearing on his right side, was damaged by a bullet. The petitioner’s theory is that this evidence would have been exculpatory. It is not exactly clear how the petitioner claims that damage to the vest would have been exculpatory. Possibly because he claims that a bullet impact on his right side would had to have come from one of his fellow officers. This claim, too, fails.
While it is possible that the phrasing of the petitioner’s claim is the result of a scrivener’s error, and he meant to allege that Officer Johnson’s holster "was not damaged" by a bullet, in line with his similar claim regarding Officer Johnson’s bulletproof vest, the petitioner has failed to clarify whether this was an error through any oral or written motion to amend the petition, or through analysis in his post-trial brief. As such, the Court must presume the allegation was intended as written.
The Court considers this claim to have been abandoned, because the petitioner failed to address or analyze it at all in his post-trial brief. "Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned ... These same principles apply to claims raised in the trial court." Walker v. Commissioner of Correction, 176 Conn.App. 843, 856, 171 A.3d 525 (2017). Even if the claim were not abandoned, it would fail for lack of evidence. The only evidence on the subject came from the petitioner’s own expert, Dr. Brent Turvey, who testified that he did not find any damage to Officer Johnson’s vest that, in his opinion, was caused by a bullet strike. As such, the petitioner’s claim fails.
In Count Three, the petitioner makes numerous claims that Attorneys Paetzold and Kestenband provided ineffective assistance. The petitioner first claims that counsel failed to engage in meaningful plea negotiations. Attorneys Paetzold and Kestenband were the petitioner’s second or third attorney, and it was their understanding that the petitioner had hired them specifically for purposes of going to trial. The petitioner did not testify in this case, so there is no evidence from which this Court could find that the petitioner was prepared to accept a plea agreement, but for his attorneys’ allegedly inadequate advice. E.g., Mahon v. Commissioner of Correction, 157 Conn.App. 246, 253-54, 116 A.3d 331 (2015), cert. denied, 317 Conn. 917, 117 A.3d 855 (2015) ("To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer ..."). Therefore, the claim fails, as a matter of law. See Adorno v. Commissioner of Correction, 66 Conn.App. 179, 186, 783 A.2d 1202, 1208, cert. denied, 258 Conn. 943, 786 Conn. 428 (2001) (for the proposition that it is the petitioner’s burden to submit affirmative evidence in support of his claims).
While the Court ordered the parties to address whether this allegation set forth a claim upon which habeas relief can be granted, after reviewing the totality of the file, the Court has decided to rule on the merits of the claim.
The petitioner next claims that trial counsel failed to engage in adequate pretrial investigation. First, he makes numerous claims that defense counsel failed to properly investigate and present witnesses to support the petitioner’s claim that he was in legitimate fear for his life on the night of the incident, because another neighborhood individual had threatened his life earlier that day, and that he believed the plain-clothes police had come to carry out that threat. This claim fails, because the petitioner has failed to establish prejudice. Hall v. Commissioner of Correction, supra, 124 Conn.App. at 783. The petitioner offered the testimony of Josiah Pinault at the habeas trial. He was only able to offer that he heard the verbal disagreement and the threat being made to the petitioner on the morning of the incident. The petitioner also presented Dr. Wendy Levy, a clinical psychologist. She offered that the petitioner has suffered a history of trauma and was likely in a hyper vigilant state on the night of the incident. The sum of this testimony, however, was merely cumulative to the petitioner’s, who was allowed to testify to the threat that had been made on his life, and to his general state of mind on the night of the incident. The addition of the testimony provided by Pinault and Dr. Levy was hardly significant or compelling enough to support the slightest probability of a more favorable outcome. The claim fails, because there was no prejudice. Id.
The petitioner’s next two claims are that trial counsel failed to adequately investigate "the activities" of the officers on the night of the shooting. In short, the petitioner alleges that the police may have been operating in violation of some specific Hartford Police policies relating to undercover police units. The petitioner sought to explore theories such as whether the paperwork for assigning the officers participating in the undercover unit that evening was properly processed, or whether it was a violation of department policy for the undercover unit to accepted the assignment from dispatch to check out the possible drug activity in the area where they encountered the petitioner. While possibly relevant for general background information, none of the petitioner’s claims about the "activities" of the officers was remotely relevant to, nor would have had any impact upon, whether the petitioner committed the crimes for which he was charged, or his defense of self-defense. Said another way, the petitioner has failed to show prejudice, so this claim fails. Id.
The petitioner next makes a generalized claim that defense counsel failed to accurately and adequately investigate and show the conditions of the crime scene at the time of the incident. In short, the petitioner was large on pointing out minutia on how trial counsel supposedly failed to fully investigate aspects of the crime scene, but entirely lacking on proof of new evidence or new results from review of old evidence that would have had any likelihood of impacting the outcome of the trial. Since the petitioner has failed to prove prejudice, the Court need not examine counsel’s performance. Id.
In a somewhat related claim, the petitioner asserts that defense counsel failed to adequately investigate and to present expert testimony that would have supported his version of events. Summarily, the petitioner disputed the fact that he ever approached the officer’s vehicle and claimed that he did not fire his weapon towards the vehicle until he was retreating and some distance away. The petitioner sought to support this claim with examination of the trajectory of the bullets that struck the undercover vehicle and the location of the spent shell casings. The petitioner’s own expert, Dr. Brent Turvey, however, admitted that he could not make any reasonable inferences about where bullets were fired from in relation to the vehicle, or even whether certain bullet holes came from outside or inside of the vehicle, based on the evidence he reviewed. The claim fails, once again, because petitioner cannot provide evidence to support a finding of prejudice. Id.
In a similar claim, the petitioner asserts that counsel was ineffective for failing to have Detective Johnson’s bulletproof vest examined by an expert witness and to have presented that evidence to the jury. This claim also fails. While Officer Pleasant testified that he witnessed damage to Officer Johnson’s vest on the night of the incident, when the attorneys examined it in the course of a pretrial hearing several weeks before the trial, there did not appear to be any dispute between counsel that there was no visible damage. The petitioner’s expert also testified that it would be normal to find some indication of damage on a bulletproof vest that had been struck by a bullet, but he could not find any such indication on Officer Johnson’s vest. Notwithstanding, Dr. Ronald Gross, the trauma physician who treated Officer Johnson, testified that it was his opinion that the large circular bruising and internal injuries suffered by Officer Johnson were caused by a bullet strike into the bulletproof vest. Dr. Gross, who also had significant experience as a military trauma surgeon in active combat zones, testified that the shape and significance of Officer Johnson’s injuries could not have been explained by banging into the door on his way out of the vehicle. The injury, in his opinion, was caused by a high velocity object striking his vest.
"ATTORNEY PAETZOLD: Early this afternoon I met with Mr. Thomas who provided me with two bulletproof vests and the vest that Officer Johnson was wearing did not appear to contain any type of marking or bullet hole." Exhibit A, Transcript of State v. Ayuso, November 19, 2004, p. 95, ln. 21-25.
According to testimony provided at the criminal trial, Officer Johnson suffered a bruised liver and cracked rib. Exhibit A, Transcript of State v. Ayuso, November 30, 2004, p. 80, ln. 24-25.
In the end, the Court finds that the petitioner has failed to prove prejudice. While the petitioner could well have presented his expert to testify that there was no visible external sign of a bullet strike on Officer Johnson’s vest, the Court found Dr. Gross credible that a high velocity projectile was the only way to explain the injuries he suffered. Therefore, the petitioner has failed to show that there is a reasonable probability that inclusion of this evidence would have resulted in a more favorable outcome for the petitioner. Id.
Officer Johnson was diagnosed with a bruised liver and a fractured rib.
While the petitioner was convicted of Assault First Degree as to Officer Johnson, which necessarily required proof that he caused injury with a deadly or dangerous weapon, he was also charged with Attempt to Commit Assault in the First Degree, in the alternative. Therefore, even if counsel had been successful in convincing a jury that the petitioner’s bullet did not actually strike Officer Johnson, there is irrefutable evidence that he pointed the gun directly at him and fired at least twice, and conviction for Attempted Assault in the First Degree would have exposed him to the same penalties.
The petitioner next claims that trial counsel were ineffective for failing to make several claims pursuant to State v. Morales, 323 Conn. 707 (1995), based on the State’s failure to properly preserve the vehicle that the officers occupied at the time of the shooting. The vehicle the officers occupied appears to have been stored in a police storage yard following the incident, but was ultimately released to a local junk yard about a year after the incident, where it was left uncovered and exposed to the elements. Attorneys Paetzold and Kestenband did go to view the vehicle at the junk yard, once hired, and found it to be in a general state of disrepair. The petitioner, again, has failed to prove his claim.
Where a defendant claims a violation of his right to a fair trial due to missing or destroyed evidence, "the trial court must balance the totality of the circumstances surrounding the missing evidence, including the following factors: the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its non-availability to the defense and the prejudice to the defendant caused by the unavailability of the evidence." State v. Johnson, 288 Conn. 236, 275-77, 951 A.2d 1257, 1283-84 (2008) (citing, State v. Morales, supra, 232 Conn. at 726-27, 657 A.2d 585). In the present case, the petitioner has failed to establish that anything truly "material" to his defense was actually destroyed or lost by the failure of the police to store the vehicle in a different fashion. He offered the possibility that various tests or examinations could have been run on the vehicle, but failed to support those claims with any substantive evidence that those tests or examinations would have resulted in anything significant to the defense. The petitioner’s own expert testified that he would be speculating when asked about possible examinations that could have been conducted on the vehicle. For those reasons, the claim fails. Id.
The petitioner also makes a slightly different claim that defense counsel failed to ask for a jury instruction based on the unavailability of the vehicle. Given the finding above that the petitioner has failed to provide proof that disposal of the vehicle denied him of anything "material" to his defense, he has necessarily also failed to prove that there was any basis for such an instruction. Id. Therefore, this claim also fails.
The petitioner’s next claim reformulates many of the same claims above, but simply modifies the preceding language from "failed to conduct an adequate pretrial investigation" to "failed to properly prepare and present the petitioner’s defense." Where sufficiently discussed above, therefore, the Court will not re-discuss duplicate allegations here. By way of reference, the petitioner’s claim, which he testified to at the criminal trial, was that he believed he was about to be attacked by an individual who issued a direct threat to his life earlier in the day, so he "started shooting."
The petitioner’s first claim is that defense counsel failed to engage the services of a crime scene expert. As already discussed above, however, the expert presented by the petitioner at the habeas trial offered no new or compelling evidence about the make-up of the crime scene that would have materially impacted the outcome or enhanced the defense at trial. As also discussed above, the petitioner’s expert witness admitted that any opinion he offered on where the petitioner was standing in relation to the officer’s vehicle when he began firing would be pure speculation. No further discussion is required of this claim.
In a similar vein to claims already discussed, the petitioner claims that defense counsel failed to present sufficient evidence that Officer Johnson was not actually struck by a bullet fired by the petitioner. As aspects of this issue have already been discussed in detail above, the Court will not review this again. As found earlier in this opinion, the petitioner has failed to establish that he suffered prejudice regarding evidence about whether Officer Johnson’s bulletproof vest was struck by a bullet fired by the petitioner.
The petitioner also alleges that trial counsel was deficient for failing to produce their own videos, photographs, or other visual representations of the status of the crime scene at the time of the incident. The petitioner failed to present any of these supposed photo, video or visual exhibits he claims defense counsel should have prepared before the habeas Court. Therefore, the claim fails for lack of evidence. Adorno v. Commissioner of Correction, 66 Conn.App. 179, 186, 783 A.2d 1202, 1208, cert. denied, 258 Conn. 943, 786 Conn. 428 (2001) (for the proposition that it is the petitioner’s burden to submit affirmative evidence in support of his claims).
The petitioner next claims that trial counsel failed to present evidence related to police policy and procedures and whether the officers involved in this incident were in violation of them on the evening of the incident. As discussed briefly above, the petitioner has failed to establish how the policy issues he raised bore any material relevance to whether he committed the crimes with which he was charged or, as the petitioner claimed at trial, he legitimately acted in self-defense. So, this claim also fails.
The petitioner, again, reiterates the generalized claim that defense counsel failed to present "witnesses" in support of a claim that he was hyper vigilant at the time of the incident. The substance of this claim, and the witnesses presented by the petitioner- Dr. Wendy Levy and Josiah Pinault- have already been discussed in detail above. It is enough to reiterate that the petitioner failed to establish prejudice with what these witnesses had to offer. The claim, therefore, fails.
Finally, the petitioner asserts that defense counsel failed to present an expert witness to testify as to the "reasonableness of the petitioner’s actions" under the circumstances. The Court has already assessed the impact of the testimony the petitioner offered from Dr. Wendy Levy’s testimony above, and found that there was no reasonable probability that it would have had an impact on the outcome of the trial. Since the defendant’s testimony about the threat issued to him and his general state of mind went effectively unchallenged at trial, this cumulative testimony was not likely to have had any significant impact on the ultimate outcome.
The petitioner next claims that trial counsel failed to adequately prepare him to testify in his own defense. Again, the petitioner did not testify in this habeas trial. The defense strategy, which would include the selection and preparation of witnesses, is presumed to have been reasonable and based on the exercise of professional judgment. Boyd v. Commissioner of Correction, 130 Conn.App. 291, 297-98, 21 A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011). Therefore, this claim must fail, because the petitioner has not presented any affirmative evidence to overcome the presumption. Adorno v. Commissioner of Correction, supra, 66 Conn.App. at 186.
The petitioner next claims that defense counsel failed to adequately cross examine and impeach Officers Johnson and Pleasant. As already discussed in relation to other claims, Officers Johnson and Pleasant both testified before the habeas Court. It is enough to say that, to the extent either of them was able to remember specifics from sixteen years prior, the petitioner failed to elicit anything new or markedly different likely to have had any impact on the ultimate outcome. The petitioner makes the same claims with regard to Officers Timothy Shaw and Victor Otero. Neither testified at the habeas trial, however, so those claims fail as a matter of law. Id.
The petitioner next claims that defense counsel was deficient for "inviting Dr. Ronald Gross to present prejudicial and inflammatory testimony." Specifically, the petitioner complains that Attorney Kestenband invited Dr. Gross to opine that whoever shot the officers intended to kill them, based on the location of the bullets. Again, the petitioner’s claim does not warrant significant discussion. Given the jury acquitted the petitioner on the Attempted Murder charges, it appears obvious that this testimony did not significantly impact their decision. The claim fails, because the petitioner cannot show that he was prejudiced. Hall v. Commissioner of Correction, supra, 124 Conn.App. at 783.
The petitioner next claims that defense counsel was ineffective for "failing to make an adequate record in regards to Angel Rosa’s invocation of the Fifth Amendment privilege." It is not exactly clear what the petitioner means by an "adequate" record. First, the petitioner also failed to present Rosa before the habeas Court in support of his claim that additional information could have been elicited for the record before the trial court. That, alone, is sufficient for the petitioner’s claim to fail. Adorno v. Commissioner of Correction, supra, 66 Conn.App. at 186. Additionally, Rosa’s invocation of his Fifth Amendment privilege was found to have been valid by the Appellate Court. State v. Ayuso, supra, 105 Conn.App. at 309-515. The Appellate Court also specifically found that Rosa’s invocation of the privilege did not violate the petitioner’s constitutional rights to present witnesses, and that the trial court’s refusal to order the State to provide him immunity so that he could testify was also valid. Id., 316. Given the Appellate Court engaged in a full review of two separate claims regarding Rosa’s invocation of his privilege, the record appears to have been adequate.
He also makes related claims that defense counsel failed to request that Rosa’s invocation of the Fifth Amendment take place before the jury. This claim is frivolous and contrary to well-settled law. State v. Bryant, 202 Conn. 676, 681-86 (1987) ("It is error to allow a party to call a witness to the stand simply to have him or her invoke the fifth amendment in the presence of the jurors, who might have drawn inferences from the exercise of the privilege").
The petitioner next claims that defense counsel failed to ensure that Rosa’s invocation of the privilege was reviewed on a question-by-question basis, and that they failed to seek a jury instruction regarding Rosa’s unavailability. Another claim by the petitioner that fails for lack of any evidence. First, defense counsel was allowed to question Mr. Rosa outside of the presence of the jury, and he answered several questions before fully invoking his privilege against self-incrimination. See, State v. Ayuso, 105 Conn.App. at 311-12. More importantly, the petitioner has failed to present Mr. Rosa or evidence of the specific additional questions that should have been asked. The petitioner has also failed to present any evidence on how those additional questions would have changed the trial court’s ruling or the outcome of the trial. The claim fails for lack of evidence. Adorno v. Commissioner of Correction, supra, 66 Conn.App. at 186.
The petitioner also claims that defense counsel was ineffective for failing to seek a jury instruction related to Rosa’s existence or his unavailability. As with many other claims in this petition, however, this one also fails because of the plaintiff’s failure to present any affirmative evidence to support the basis for such an instruction or on the purported effect it would supposedly have had on the outcome of the case. Id.
The petitioner’s next claims alleged that defense counsel were deficient for failing to challenge the trial court’s questioning of Michael Callendar, which he claims caused Callendar to not be available to testify, for failing to present Michael Callendar’s testimony at trial, and for failing to present the testimony of someone who goes by "McBoo." All of these claims fail, as matter of law, because the petitioner has failed to present either of these witnesses before the habeas court to provide the allegedly helpful testimony he claims they could have offered. Id.
The petitioner’s last claim against trial counsel is that they failed to object when the State vouched for Officer Johnson during closing arguments. The same claim was raised by the petitioner on appeal and resolved against him. Specifically, the Appellate Court determined that the State’s Attorney had not made any improper comments regarding Officer Johnson. State v. Ayuso, 105 Conn.App. 328. The petitioner’s attempt to re-litigate claim here is prohibited by res judicata. E.g., McGee v. Commissioner of Correction, 157 Conn.App. 863, 872-73, 118 A.3d 140 (2015), cert. denied, 318 Conn. 903, 122 A.3d 633 (2015).
"Accordingly, we conclude that the prosecutor’s comments were not improper."
The petitioner next claims that Attorney Stephanie Evans was ineffective in representing him in his direct appeal. The Court decides this matter based on the fact that it finds no deficiency in appellate counsel’s performance. Attorney Evans testified credibly that she read through the petitioner’s case, prepared those issues she believed had a best chance on appeal, and winnowed out weaker arguments. That is appellate counsel’s job. Johnson v. Commissioner of Correction, 131 Conn.App. 805, 808-09, 29 A.3d 166 (2011). The petitioner failed to present any credible evidence that appellate counsel’s decision on the issues she raised was objectively unreasonable or that she failed to raise some other issue that had an objectively reasonable possibility of succeeding on appeal. For those reasons, this claim fails. Id.
III. Conclusion
Based on the foregoing, the petition for writ of habeas corpus is DENIED.