Opinion
CV164069960S
01-24-2018
Philip FRIEND v. COMMISSIONER OF CORRECTION
UNPUBLISHED OPINION
The court’s citations to the criminal trial record will be referred to as " CTR" and to the habeas trial record, " HTR."
Wilson, J.
The petitioner, Philip Friend, initiated this petition for a writ of habeas corpus. The initial petition was filed on August 2, 2016, which sets forth numerous claims. On April 6, 2017, the petitioner filed an amended petition which narrowed the number of claims originally alleged in the initial petition to the following claims. Claim one alleges a violation of the petitioner’s right to effective assistance of counsel because trial counsel failed to adequately respond to the state’s improper closing arguments, and failed to adequately consult with, investigate, prepare, and present the testimony of a forensic accountant. Claim two alleges that trial counsel was operating under an actual conflict of interest; and claim three alleges that the petitioner’s due process rights were violated by prosecutorial impropriety when the state’s attorney allegedly argued during closing arguments that the jury should make inferences he knew to be false, and that went to the heart of what the petitioner characterizes as the state’s " weak" case. The respondent denies the claims. Based upon the evidence adduced at trial, the court finds the issues in favor of the respondent and denies the petition.
The petitioner withdrew the actual conflict of interest claim, however, the respondent, during oral argument requested the court to address the merits of this claim. Notwithstanding the petitioner’s withdrawal of claim two, actual conflict of interest, the court will address the merits.
I
Procedural History
The petitioner was originally charged in docket number CR-08-0087415-T in the New Haven Judicial District, with thirteen counts of larceny by embezzlement- in the first degree, in violation of General Statutes § 53a-122(a)(2) (counts one through four); in the second degree, in violation of General Statutes § 53a-123(a)(2) (counts five through seven); and in the third degree, in violation of General Statutes § 53a-124(a)(2) (counts eight through thirteen). On May 24, the jury found the petitioner guilty on counts one, three, four through six, eight through thirteen; and not guilty on count two as charged, but guilty of the lesser included offense of larceny in the third degree; and not guilty on count seven. The trial court, B. Fischer, J., imposed a total effective sentence of twelve years of incarceration, execution suspended after six, with five years of probation with conditions.
II
Direct Appeal
The petitioner filed a direct appeal wherein he claimed that: " (1) the evidence was insufficient to support his conviction of larceny on all counts; (2) he was deprived of a fair trial by the prosecutor’s statements made during the state’s closing argument; and (3) he was denied his constitutional right to a speedy trial when the state ‘failed to bring him to trial until four and a half years after his arrest ...’ " State v. Friend, 159 Conn.App. 285, 289, 122 A.3d 740 (2015). The Appellate Court affirmed the petitioner’s conviction and the Supreme Court denied certification to appeal, 319 Conn. 954, 125 A.3d 533 (2015). The petitioner filed a motion for reconsideration of the Supreme Court’s denial of the petition for certification which was denied.
On direct appeal, the Appellate Court stated that the jury reasonably could have found the following facts. " On August 2, 2007, the defendant signed an agreement to become a consultant to SBC [Standard Beef Company] in New Haven. SBC was owned solely by Henry Bawarsky and was in the business of purchasing meat products from wholesale suppliers and then reselling them to its customers. Under the terms of the agreement, the ‘specific services’ that were to be provided by the defendant to SBC would have to be mutually agreed on by the parties. The defendant would provide his services to SBC as an independent contractor and would be ineligible to receive ‘any additional compensation or employee benefits that would otherwise accrue to him if he were an employee ...’ The agreement further provided that the defendant would be reimbursed for his documented out-of-pocket expenses. In consideration for his services, the defendant would receive 25 percent of SBC’s net profits estimated weekly. In addition, the defendant was to ‘receive an option to purchase, together with Richard Greenfield, all of the outstanding shares’ of SBC to be exercised by December 31, 2007. The agreement specifically provided that ‘[a]ll moneys to be paid by [SBC] to third parties’ had to be approved in writing by Bawarsky and either the defendant or Greenfield, which could be evidenced by ‘a check signed by both such parties.’ Finally, the agreement provided that its terms ‘may not be altered, modified or extended except in writing signed by both parties.’
" Under the terms of the agreement, the defendant’s pay would be reconciled on September 30 and December 31, 2007." State v. Friend, supra, 159 Conn.App. 289, n.2.
" Richard Greenfield was, at the time, the defendant’s business partner in the planned acquisition of SBC. Greenfield signed an identical consultant agreement with SBC on August 3, 2007." Id., 290, n.3.
" On August 10, 2007, SBC also amended its bank signature policy to require two signatures on company checks. The defendant’s signature appears on the form." Id., n.4.
" Prior to the defendant’s becoming a consultant to SBC, the company employed approximately twenty people. It was managed primarily by Bawarsky, senior vice president William Dober, and senior accountant/comptroller Fred Auger. Paper documents were created to keep track of the inventory and finances. The blank company checks were stored in a safe. Only employees in a position of trust had the combination to access the safe. Prior to any checks being sent out, Auger would match the printed checks with the corresponding invoices and submit them to Dober for verification and signature. Likewise, Dober, who had a corporate credit card, provided Auger with itemized receipts to explain and justify the charges on the account. Although Auger could issue checks, he was not authorized to sign them. Overall, Bawarsky, Dober, and Auger actively were engaged in the running of SBC and remained informed of its day-to-day operations and financial situation.
" Even though some aspects of the company’s accounting were computerized, the software was described as ‘antiquated’ at trial." Id., n.5.
Testimony at trial established that the defendant, Auger, Marcy Gollinger, Dober’s sister, who was in charge of SBC payroll and accounts payable, and Ilka Cintron, an office worker at SBC, had the combination to access the safe." Id., n.6.
" In August 2007, SBC was in a poor financial situation; it did not have enough funds to pay its suppliers on time and frequently risked overdrafting its bank account. [Indeed, creditors were pushing to be paid]. Nevertheless, SBC remained an attractive acquisition target because it owned approximately a 15 percent stake in New Haven Food Terminal- a real estate asset worth ‘millions of dollars.’
" Once the defendant had assumed his role as a consultant to SBC in August 2007, he immediately began implementing changes in the way the company had been operating. The old computer software was enhanced by a modern one, providing more timely and accurate information to the sales personnel. The data from the new system, which became fully operational in October 2007, fed directly into Greenfield’s office in New York, so he could remotely monitor and access SBC accounts. In addition to the new software, Greenfield provided SBC with barcode scanners and label printers to improve efficiency. Greenfield also provided SBC with an $800,000 line of guaranteed trade credit to help ease the company’s financial burden. As a result of these changes, SBC’s finances significantly improved; the frequency and amounts of the bank account overdrafts diminished, profit margins improved, and the annual loss of $400,000 began to decrease.
" The new system used different SBC checks that were visually distinct from the checks used in the old system." Id., 291, n.7.
" The line of credit eventually was increased to $1.4 million. Greenfield was a personal guarantor of the trade credit." Id., n.8.
" At the time of these changes, Bawarsky was seen with the defendant and introduced him to the company’s personnel as someone who would help turn the business around and become the eventual owner of SBC. On August 6, 2007, Bawarsky, who was seventy-nine years old, suffered a broken leg, was hospitalized for more than a month and was unable to participate in the running of SBC. Even after he was able to return to work, Bawarsky would come in only for several hours three or four times a week.
" Following Bawarsky’s injury, the defendant increased his role in the day-to-day operations of SBC. On September 24, 2007, he fired Auger and assumed the company’s accountant/comptroller duties, becoming an employee in addition to his consultant position. Having assumed Auger’s position, the defendant gained control over the SBC checkbook, and Dober no longer had control over some checks that were being sent out.
" On November 27, 2007, the parties signed an amendment to the original agreement extending the option to purchase SBC to February 28, 2008. Despite the extension, the sale of SBC did not occur. In February 2008, David Bawarsky, Henry Bawarsky’s son, took control of the company and forced the defendant out, removing him from the property with the help of the New Haven police.
" A criminal investigation ensued, and the defendant was charged with thirteen counts of larceny. The jury found the defendant guilty on twelve counts, and the court sentenced him to twelve years incarceration, execution suspended after six years, with five years probation." State v. Friend, supra, 159 Conn.App. 289-92.
The defendant was also charged with thirty-three counts of forgery, but these charges were dropped by the state." Id., 292, n.9.
III
Habeas Proceedings
The habeas petition was tried to the court over the course of five days, August 3rd, 10th, 17th, 21st and 22nd, 2017. The court ordered that post-trial briefs be filed by no later than September 21, 2017. The petitioner requested a two-day extension to September 25, 2017, which was granted by the court. The petitioner’s post-trial brief was received on September 25, 2017, and the respondent’s was received on September 26, 2017. On September 25, 2017, the petitioner requested oral argument on the assertions made by the petitioner and respondent in their post-trial briefs and proposed findings of fact. The court granted the petitioner’s request and heard oral argument on October 12, 2017.
At the habeas trial, the court took judicial notice of the criminal trial proceedings, including the criminal trial transcripts, the bankruptcy file in the SBC bankruptcy case, the Appellate record, including the decision of the Appellate Court, the Supreme Court’s denial of petitioner’s petition for certification, and denial of petitioner’s motion for reconsideration of the denial of petition for certification. The petitioner presented testimony of Attorney Norman Pattis, Attorney Daniel Erwin, Matthew Flynn, Attorney Dylan Kletter, Senior Assistant State’s Attorney Maxine Wilensky, Attorney Timothy Miltenberger, Senior Assistant State’s Attorney Brian Sibley, Steve Pedneault and Attorney Michael Fitzpatrick. In addition, the petitioner entered into evidence thirty-six exhibits. The respondent did not call any witnesses and entered into evidence eight exhibits.
IV
DISCUSSION
A
Standard of Proof
The standard of proof in civil actions, a fair preponderance of the evidence, is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394 (1981).
B
Burden of Proof
" While the [petitioner] is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the [petitioner] must still sustain the burden of proof on the contested issues in the [petition] and the [respondent] need not present any evidence to contradict it." Lukas v. New Haven, 184 Conn. 205, 211 (1981). The general burden of proof in [habeas petitions which are] civil actions is on the [petitioner], who must prove all the essential elements of [his] cause of action by a fair preponderance of the evidence. Gulycz v. Stop & Shop, 29 Conn.App. 519, 523, cert. denied, 224 Conn. 923 (1982). Failure to do so results in judgment for the [respondent]. Id. It is the petitioner’s burden of proving each claim in the petition. To do so, the petitioner " cannot rely on mere conjecture or speculation ... but must instead offer some demonstrable evidence in support of his claim." See Petty v. Commissioner, 125 Conn.App. 185, 188, 7 A.3d 411 (2010).
C
Standard of Review
It is well established that " [i]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence ... Credibility must be assessed ... not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude ... An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] ... [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom." (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 155, 920 A.2d 236 (2007) (See also Dadio v. Dadio, 123 Conn. 88, 92-93, 192 A. 557 (1937) ). Such observation may include all genuine and spontaneous reactions of the witness in the courtroom, whether or not on the stand, but only to the extent that they bear on the witness’s credibility. State v. McLaughlin, 126 Conn. 257, 264-65, 10 A.2d 758 (1939). It is generally inappropriate for the trier [of fact] to assess the witness’s credibility without having watched the witness testify under oath. Shelton v. Statewide Grievance Committee, 277 Conn. 99, 111, 890 A.2d 104 (2006).
" The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous ... Historical facts constitute a recital of external events and the credibility, of their narrators ... Accordingly, [t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given their testimony ..." Mahon v. Commissioner of Correction, 157 Conn.App. 246, cert. denied, 317 Conn. 917 (2015). " It is well established that a reviewing court is not in the position to make credibility determinations ... This court does not retry the case or evaluate the credibility of witnesses ... Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude." (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 117 Conn.App. 120, 126, 117 Conn.App. 120, 126, cert. denied, 294 Conn. 904 (2009).
D
Habeas Corpus Matters- Generally
" The right to petition for a writ of habeas corpus is enshrined in both the United States constitution and the Connecticut constitution. See U.S. Const., art. I, § 9; Conn. Const., art. I, § 12. Indeed, it has been observed that the writ of habeas corpus holds an honored position in our jurisprudence ... The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness.
" The writ has been described as a unique and extraordinary legal remedy ... It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired." (Citations omitted; internal quotation marks omitted.) Fine v. Commissioner of Correction, 147 Conn.App. 136, 142-43, 81 A.3d 1209 (2013).
1.
Actual Conflict of Interest
In claim two of the amended petition, the petitioner alleges that the fees that trial counsel had charged the petitioner in their unwritten fee agreement years prior to the petitioner’s criminal trial were insufficient to pay for the attorney time, experts, and investigations necessary to conduct a competent and complete defense at trial. The petitioner further claims that trial counsel was experiencing financial issues that caused him to divert his attention to other clients. The petitioner claims that as a result of these circumstances, his right to conflict-free counsel was violated.
" ‘The sixth amendment to the United States Constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut Constitution, guarantee to a criminal defendant the right to effective assistance of counsel.’ ... Santiago v. Commissioner of Correction, 87 Conn.App. 568, 582, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005). ‘As an adjunct to this right, a criminal defendant is entitled to be represented by an attorney free from conflicts of interest.’ ... Adorno v. Commissioner of Correction, 66 Conn.App. 179, 194, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001). Thus, ‘[t]he underlying right to conflict-free representation is effective assistance of counsel.’ " State v. Rodriguez, [ 61 Conn.App. 700, 706, 767 A.2d 756 (2001) ].
" ‘In a case of a claimed conflict of interest ... in order to establish a violation of [his constitutional rights] the [petitioner] has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests, and (2) that an actual conflict of interest adversely affected his lawyer’s performance.’ ... Phillips v. Warden, [ 220 Conn. 112, 132-33, 595 A.2d 1356 (1991) ]; Anderson v. Commissioner of Correction, 127 Conn.App. 538, 549, 15 A.3d 658 (2011), [aff’d, 308 Conn. 456, 64 A.3d 325 (2013) ]. ‘Unlike other claims of ineffective assistance of counsel, where a petitioner claims that his counsel’s performance was deficient because of an actual conflict of interest, prejudice does not need to be established.’ Zollo v. Commissioner of Correction, 93 Conn.App. 755, 757, 890 A.2d 120, cert. denied, 278 Conn. 904, 896 A.2d 108 (2006); see also Phillips v. Warden, supra, 133-34. Instead, ‘[w]here there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel’s duties.’ ... Phillips v. Warden, supra, 133; Anderson v. Commissioner of Correction, supra, 549; see Strickland v. Washington, [ 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] (‘[p]rejudice is presumed ... if the [petitioner] demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance’ ...); State v. Vega, 259 Conn. 374, 387, 788 A.2d 1221 (same), cert. denied, 537 U.S. 836, 123 S.Ct. 152, 154 L.Ed.2d 56 (2002)." Hedge v. Commissioner of Correction, 152 Conn.App. 44, 50-51, 97 A.3d 45 (2014). " When only a potential conflict is established, however, the general test applies and resultant prejudice must be proven." (Emphasis in original.) Santiago v. Commissioner of Correction, 87 Conn.App. 568, 583 n.14, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005).
The petitioner agreed to pay a flat-fee of thirty thousand dollars for Pattis’ pretrial legal services and an additional flat-fee not to exceed $45,000 if the case went to trial. Any expenses incurred were to be paid by the petitioner and placed into a client trust account. The evidence demonstrates that there were retainer payments deposited into attorney Pattis’ firm’s general operating account. Pattis testified that he preferred flat-fee billing over hourly billing because he believed that hourly billing can discourage zealous advocacy for those clients who run out of money. According to Pattis, the cost of his representation of the petitioner would have been " a lot more" had he billed hourly. Trial counsel estimated that " hundreds of hours" were spent working on the case, which included twelve to fourteen hours per day from the start of evidence through verdict. Attorney Erwin, who was Pattis’ associate at the time, testified that working on the case " was a full-time job or nearly a full-time job in the month and a half prior to trial." HTR, 8/10/2017, p. 107.
The hourly value of trial counsel’s services was estimated between $350 and $400 dollars, for attorney Pattis, and for attorney Erwin’s services, between $150 and $200 dollars. The petitioner paid the pretrial fee of $30,000. A trial fee was negotiated when the case was first placed on the trial list. Attorney Pattis could not recall what the fee was at that time, except that it was less than the $45,000 maximum amount. The case did not go to trial as originally scheduled and by the second time the case was scheduled for trial, the full $45,000 fee was requested. Pattis testified that the increase was justified by having to prepare the case twice for trial. " It’s not as though you can pick up the file, put it down and remember it all. And we’ve [been] called to trial a couple of times which required panicking and getting up to speed each time ... we put a significant amount of time in the file." HTR, 8/3/2017, p. 85.
The petitioner ultimately paid a total of $61,000 for the representation. HTR, 8/3/2017, p. 45.
The petitioner contends in claim two that the additional fee request is evidence that Pattis was in financial distress around the time of trial, which caused him to divert his attention to other clients and not focus on the petitioner’s case. The evidence, however, does not support the petitioner’s claim. Although Pattis did acknowledge that cash flow was always an issue for meeting the firm’s operating expenses, he was not hurting financially as a result of the petitioner’s case, did not divert his attention to other clients, and zealously represented the petitioner. Indeed, in listening to and reviewing the entire criminal record in this case, it is evident that both Pattis and Erwin spent a number of hours preparing for the case, and in addition, zealously represented the petitioner. Pattis testified, he alone spent " hundreds of hours" on the case, and the criminal record clearly reflects this. Erwin as well, considered the case to be " nearly a full-time job." The petitioner presented no evidence to prove otherwise. Accordingly, the petitioner has failed to establish " that counsel actively represented conflicting interests" due to personal monetary concerns, or " that an actual conflict of interest adversely affected his lawyer’s performance." Anderson v. Commissioner of Correction, supra, 127 Conn.App. 549. For the foregoing reasons, the petitioner’s claim of actual conflict of interest is denied.
2.
Due Process-Prosecutorial Impropriety During Closing Argument
In paragraphs 67-69 of claim three of the amended petition, the petitioner alleges that his due process rights were violated when the State made arguments during closing arguments, that it knew or should have known were false. Specifically, the petitioner claims that: ¶ 67. " During its closing argument, the prosecuting authority improperly argued that the jury should infer facts- that Henry Bawarsky and David Bawarsky removed the petitioner from Standard Beef because they believed that the petitioner had been embezzling from Standard Beef- that the prosecuting authority knew or should have known to be false. ¶ 68. During its closing argument, the prosecuting authority misrepresented that the petitioner and others did not have the financial ability to purchase Standard Beef, an allegation unsupported by the evidence, and that the prosecuting authority knew or should have known to be false. ¶ 69. During its closing argument, the prosecuting authority misrepresented that Standard Beef- or its owners and agents- had a legal right to rescind the purchase offer made to the petitioner and his partners, an allegation that the prosecuting authority knew or should have known to be false." Amend. Pet., 4/6/2017, claim three, ¶¶ 67-69, p. 11. This court agrees with the respondent that the petitioner did not produce any evidence with respect to the claims set forth in ¶¶ 68 and 69 of claim three and therefore said claims are denied. The denial of these paragraphs therefore renders moot the respondent’s procedural default defense raised in the return as to these claims.
As to the remaining claim of impropriety raised in ¶ 69, as a threshold matter, the respondent argues that the claim is barred by the doctrine of res judicata, since the claim was raised, litigated and resolved against the petitioner on direct appeal. State v. Friend, supra, 159 Conn.App. 331-36. The court makes the following additional findings of facts which are necessary to resolve this issue.
On direct appeal the petitioner claimed that " he was deprived of a fair trial by the prosecutor’s statements made during the state’s closing argument. Specifically, the defendant argue[d] that the prosecutor, without any evidentiary basis, argued in his rebuttal that [Henry] Bawarsky realized the defendant had been stealing from SBC and asked for his son’s help to stop the theft." Id., 331. The petitioner pointed to three arguments in support of his claim: " During the rebuttal argument, the state addressed the defense’s theory, and the following colloquy ensued. ‘[The Prosecutor]: You heard argument about David Bawarsky coming in, he’s been thrown out in the 80s, now some twenty years later he comes back, well David Bawarsky was Henry’s son. [1.] And isn’t it okay for a father to ask his son for help? ... [The Prosecutor]: But David pulls up and outs [the defendant]. [2.] If you had an employee that was stealing from you would you keep him there? ... In addition, when arguing as to count four, the prosecutor stated the following: Does it make much sense for [SBC] to be paying a commission to a consultant and then to his company, and then to the third company that was involved which is West Conn. Does that really make sense? Does it make logical business sense? Not if you know about it, but if you don’t know because the only person who does know is the person writing the checks, you don’t find out about it until later, then when you do you shut it down." Id., 331-33.
In his appeal brief, the petitioner argued that " near the end of its rebuttal, the State improperly argued that Henry Bawarsky had asked his son David to remove Mr. Friend because he was ‘stealing from’ SBI. Tr. 5/23 at 53. The trial court sustained a defense objection to the State’s claim that Henry Bawarsky ‘ask[ed] his son for help,’ but denied the defense objection to the claim that Henry Bawarsky had David remove Mr. Friend because he was ‘stealing’ from SBI. Tr. 5/23 at 53. The State then reinforced this false claim, asserting that Mr. Bawarsky ‘shut it down’ when he learned that Mr. Friend was bilking the Company. Tr. 5/23 at 56-57 (emphasis added). These assertions are simply, and undeniably, false- there was no evidence whatsoever that Henry Bawarsky ever believed that Mr. Friend had stolen anything. In fact, the State told the court that the alleged embezzlement ‘came to light’ after Standard Beef’s bankruptcy filing- long after. Mr. Friend’s ouster- and that David Bawarsky’s actions had nothing to do with the charges against Mr. Friend. Tr. 5/13 at 5-6; 5/20 at 85," Pet. Ex. 1, Brief of Defendant Appellant, p. 28-29. The respondent argues that the petitioner makes the exact claim in paragraph 67 of the amended petition, that he made on direct appeal, and because the Appellate Court already determined that none of the comments made by the prosecutor in its closing arguments were improper, that question cannot be relitigated.
The petitioner argues that his claim before the habeas court is not the same as his claim raised on direct appeal. The petitioner argues that the doctrine of res judicata is applied in a relaxed manner in habeas corpus proceedings, which are equitable in nature. The petitioner further argues that res judicata only precludes the raising of a claim when there was previously a full and fair hearing on the matter and that he did not have a full and fair hearing on direct appeal because the facts that reveal the impropriety were not in the appellate record. The petitioner claims that his appellate counsel attempted to bring the issue to the attention of the courts but was limited to the trial testimony and exhibits, which did not reveal that the inferences the state’s attorney asked the jury to make were false and he knew them to be false. The petitioner claims that he has now finally had the opportunity to present that record and therefore, should not be barred from raising this claim. The court is not persuaded by the petitioner’s arguments and agrees with the respondent.
" The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made ... The doctrine ... applies to criminal as well as civil proceedings and to state habeas corpus proceedings ... However, [u]nique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner ... Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights ... the application of the doctrine of res judicata ... [is limited] to claims that actually have been raised and litigated in an earlier proceeding." (Internal quotation marks omitted.) Carter v. Commissioner of Correction, 133 Conn.App. 387, 393, 35 A.3d 1088, cert. denied, 307 Conn. 901, 53 A.3d 217 (2012); see also Johnson v. Commissioner of Correction, supra, 288 Conn. at 66-67, 951 A.2d 520 (holding that principles of res judicata prevent claim from being litigated where identical claim was raised, argued, and litigated in previous habeas trial).
" [T]he doctrine of res judicata in the habeas context must be read in conjunction with Practice Book § 23-29(3), which narrows its application." (Footnote omitted.) Kearney v. Commissioner of Correction, 113 Conn.App. 223, 235, 965 A.2d 608 (2009). Practice Book § 23-29 states in relevant part: ‘The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that ... (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition ..." Thus, a subsequent petition " alleging the same ground as a previously denied petition will elude dismissal if it alleges grounds not actually litigated in the earlier petition and if it alleges new facts or proffers new evidence not reasonably available at the time of the earlier petition." Kearney v. Commissioner of Correction, supra, at 235, 965 A.2d 608. " In this context, a ground has been defined as sufficient legal basis for granting the relief sought." (Internal quotation marks omitted.) Id. " Johnson v. Commissioner of Correction, 168 Conn.App. 294, 305-06, 145 A.3d 416 (2016).
" The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction ... If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made ... Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum ... More specifically, collateral estoppel, or issue preclusion ... prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim ... An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined." (Citations omitted; emphasis added; internal quotation marks omitted.) Powell v. Infinity Ins. Co., supra, 282 Conn. at 600-01, 922 A.2d 1073." Couture v. Commissioner of Correction, 160 Conn.App. 757, 597, 126 A.3d 585 (2015).
Having compared the claims raised on direct appeal and the claims raised in the amended petition relating to prosecutorial misconduct during closing argument, the court concludes that the claims are identical and were fully and fairly litigated and decided by the Appellate Court. More specifically, the claim raised on appeal relating to prosecutorial misconduct, and which is now raised in the habeas petition, boils down to the following, as succinctly testified to by petitioner’s appellate counsel, Dylan Metter: " And during that rebuttal closing argument, it was our contention that Mr. Sibley essentially filled the key gap of evidence in the case, namely, whether Henry Bawarsky believed Phil was stealing or not. And he made comments, which I’m- I’m sure you have, to the effect of wouldn’t you ask your son for help if you thought someone from- someone was stealing from you too? He used the word ‘stealing.’ And a few pages later in the rebuttal closing argument which is obviously the last thing that the jury heard before they went to their deliberations, Mr. Sibley sort of doubled down, from our perspective ... on that and said, you know, if you found out- when the Bawarskys found out about, they shut him down. And what they had essentially done was linked this notion of discovering Phil’s alleged embezzlement with his ouster in February- I believe it was like February 1st, 2008 and where- where the police had been called to the Standard Beef because there had been a dispute about access to the facility between Mr. Friend and- and David Bawarsky, the son. And so the state essentially threw an inference of a conversation between a witness who had died prior to trial, Henry, and a witness [who was a] no show at the trial, David, told the jury that they had allegedly had a conversation essentially or belief that Mr. Friend was stealing and so they kicked him out of the business. Um, we argued on direct appeal that the inference was unreasonable because as I said, neither of the witnesses had actually testified or even appeared at trial so any conversation or belief shared between the two of them and exclusively between the two could not be a reasonable inference ... [A]nd that it went to essentially the key issue in the case which was did they think. Did they- did the Bawarskys think Mr. Friend was stealing or not because it’s essentially a consent crime. If you had consent for the transactions, it’s not a crime; if you don’t have consent, then you’ve got an issue ... [A]nd so we believe that that was a very good, a very proper issue ... that the state had overreached the bounds of proper argument in their closing argument and we raised the issue on direct appeal." HTR, 8/17/2017, p. 40.
On the issue of prosecutorial impropriety raised in petitioner’s direct appeal, the Appellate Court concluded the following: " On appeal, the defendant argues that ‘[t]hese assertions [as this court has previously articulated] are simply, and undeniably, false- there was no evidence whatsoever that Henry Bawarsky ever believed that [the defendant] had stolen anything.’ (Emphasis in original.) Furthermore, he continues, these ‘false statements made by the [prosecutor] in closing here were severe and went to " the very heart of the case" - i.e., whether Henry Bawarsky consented to the expenditures at issue.’ We are not persuaded.
" Having reviewed the record, we conclude that none of the comments made by the state in its closing arguments was improper. The first comment made by the state- ‘[a]nd isn’t it okay for a father to ask his son for help?’- clearly had been made in response to defense counsel’s closing argument. See State v. Kendall, 123 Conn.App. 625, 643-44, 2 A.3d 990 (finding it proper for prosecutor, following defendant’s closing argument, to highlight difference between state’s version and defendant’s version of facts and inferences properly drawn from those facts), cert. denied, 299 Conn. 902, 10 A.3d 521 (2010).
" Similarly, the second comment- ‘[i]f you had an employee that was stealing from you would you keep him there?’- also had been made in response to the defense’s alternative theory that David Bawarsky was trying to protect his own interests in SBC. In addition, this comment can be fairly inferred from the facts in the record. David Bawarsky did take control of the company in 2008 and forced the defendant out with the help of the New Haven police. See State v. Prioleau, 235 Conn. 274, 320, 664 A.2d 743 (1995) (" [c]ounsel may comment upon facts properly in evidence and upon reasonable inferences to be drawn from them" [emphasis in original; internal quotation marks omitted] ).
" As to the final comment- " you don’t find out about it until later, then when you do you shut it down" - it too was not improper. At trial the state’s theory of the case had been that the defendant had the control of the company checkbook and used it to pay his personal debts. Thus it was proper for the prosecutor to comment that once the defendant’s dealings had been discovered, he was forced out or ‘shut down.’ See id.
" We conclude that the state’s comments were not improper and, accordingly, need not consider whether any claimed impropriety deprived the defendant of his right to a fair trial. See State v. Otto, 305 Conn. 51, 76 n.19, 43 A.3d 629 (2012)." State v. Friend, supra, 159 Conn.App. 335-36.
The petitioner argues that the claim is not precluded because it was not fully and fairly litigated nor did he have the opportunity to fully and fairly litigate the claim because David Barwarsky’s deposition transcript was not part of the record. The petitioner points to the deposition of David Bawarsky as additional evidence that the State knew its arguments to the jury were false. However, the fact that David Bawarsky’s deposition was not part of the record does not preclude the application of res judicata to this claim. As this court previously noted, the claim of prosecutorial misconduct raised in the amended petition is the same as the claim raised on direct appeal. The factual basis is the same. The petitioner claims that because the record did not contain David Bawarsky’s deposition transcript, confirming that the State knew its arguments were false, he was deprived of fully and fairly litigating this issue. However, Kletter’s testimony on cross examination undermines this argument. On cross, Kletter acknowledged that in support of his argument that the state knew their comment was false, he directed the Appellate Court to a portion of the trial record where Attorney " Wilensky, made a comment to the court that this whole, the issue of Mr. Friend’s ... alleged embezzlement ... did not come to light until the bankruptcy proceedings ... She referred to the bankruptcy as the collateral matter and to David Bawarsky as a collateral matter which I believe altered dramatically between day one of the trial and the closing argument ..." HTR, 8/17/2017, p. 50. Kletter further acknowledged that his interpretation of David Bawarsky’s deposition testimony was that nothing came to light regarding the embezzlement until the bankruptcy which was after February 2008, when the petitioner was ousted from SBC. In addition, Kletter acknowledged that in his petition for certification to the Supreme Court, on the issue of prosecutorial impropriety, he stated that the " [s]tate’s misconduct, here is clear from the record." (Emphasis added) Pet. Ex. 1, Petition for Certification, p. 7.
The testimony of David Bawarsky relating to the timing of when the embezzlement came to light, is the same as Wilensky’s comments which appellate counsel relied on in demonstrating to the Appellate Court that the State knew its comments to the jury during closing argument were false. See, Pet. Ex. 1, Motion for Reconsideration, pp. 6-7. By adding the fact that David Bawarsky’s deposition transcript was not part of the appellate record, does not change the factual basis underlying the claim of prosecutorial misconduct, which was fully and fairly litigated and decided adversely to the petitioner on direct appeal.
" ‘[A] petitioner may bring successive petitions on the same legal grounds if the petitions seek different relief ... But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition.’ (Citation omitted; internal quotation marks omitted.) McClendon v. Commissioner of Correction, 93 Conn.App. 228, 231, 888 A.2d 183, cert. denied, 277 Conn. 917, 895 A.2d 789 (2006).
" ‘Identical grounds may be proven by different factual allegations, supported by different legal arguments or articulated in different language ... They raise, however, the same generic legal basis for the same relief. Put differently, two grounds are not identical if they seek different relief.’ (Citations omitted.) James L. v. Commissioner of Correction, 245 Conn. 132, 141, 712 A.2d 947 (1998). Simply put, an applicant must ‘show that his application does, indeed, involve a different legal ground, not merely a verbal reformulation of the same ground.’ (Internal quotation marks omitted.) Myers v. Commissioner of Correction, 111 Conn.App. 405, 410, 959 A.2d 646 (2008)." Carter v. Commissioner of Correction, 133 Conn.App. 387, 393-94, 35 A.3d 1088 (2012).
In Moody v. Commissioner of Correction, 127 Conn.App. 293, 298, 14 A.3d 408 (2011), the Appellate Court upheld the habeas court’s dismissal of the petitioner’s ineffective assistance of counsel claim as barred by the doctrine of res judicata. The habeas court determined that the petitioner’s claim of ineffective assistance of counsel was the same as that which was previously litigated, " except for stating a few additional facts." The Appellate Court observed that: " [T]he habeas court noted in its oral decision that, except for stating a few additional facts, the petitioner’s claims in this regard were the same as those litigated in the first habeas proceeding, and, therefore, the petitioner was barred from relitigating them under the doctrine of res judicata. Indeed, the amended petition presented the same legal ground, namely, ineffective assistance of trial counsel, and sought the same relief that was denied in the first habeas proceeding." Id. " A petitioner does not present a new ground for relief by merely recasting and reformulating the same factual basis." Smith v. Commissioner of Correction, 122 Conn.App. 637, 641-43, 999 A.2d 840 (2010), cert. denied, 300 Conn. 901, 12 A.3d 574 (2011).
Here, the factual basis for the direct appeal was prosecutorial impropriety on grounds that the prosecuting authority argued to the jury an inference that was false and that it knew was false. The factual basis in the petition is the same. The addition of the deposition of David Bawarsky as additional evidence that the inference the State argued to the jury was false, and the State knew its arguments were false, does not change the factual basis which was already litigated on direct appeal. The petitioner has not demonstrated that what David Bawarsky testified to in his deposition, as to the timing of when the embezzlement came to light, is any different from Wilensky’s comments during the criminal trial. Indeed, appellate counsel in his motion for reconsideration argued that the record was clear on this issue and pointed to Wilensky’s comments to demonstrate that the State knew that the inference it was asking the jury to make was false.
Neither can the petitioner avoid application of res judicata on the ground that the deposition of David Bawarsky was unavailable to support the due process argument on direct appeal because it was not part of the trial record. In Henderson v. Commissioner of Correction, 129 Conn.App. 188, 19 A.3d 705 (2011), the petitioner claimed that the habeas court improperly concluded that the doctrine of res judicata barred his claim that there had been a Brady violation during his criminal trial. The petitioner argued that the state had a deal with Wright, its key witness, in exchange for his testimony against the petitioner and that it suppressed the existence of that deal throughout the petitioner’s criminal trial. He also argued that the issue was not fully litigated in the prior proceeding on his motion for a new trial because there were several additional letters that had surfaced that were not available in the prior proceeding. " The respondent argued that the habeas court properly ruled that this issue was barred by the doctrine of res judicata because [a]dditional letters to the same effect as the evidence that was already considered does not open the door to relitigating a claim that has already been decided adversely to the petitioner by a fact finder and [a] reviewing court.’ " Id., 199. The Appellate Court agreed with the respondent and affirmed the habeas court’s dismissal of the Brady claim, stating that " there [was] no substantive difference between the claim raised, litigated and decided on direct appeal and that alleged in the amended habeas petition. Accordingly, the habeas court properly concluded that this claim was barred by the doctrine of res judicata." Id., 202.
Likewise, the deposition transcript of David Bawarsky as to the timing of when the embezzlement came to light, is evidence to the same effect as that of Wilensky’s comments during the criminal trial, which was already considered, and to which appellate counsel pointed in support of the due process claim on direct appeal. Therefore, the fact that David Bawarsky’s deposition transcript was unavailable to support the due process claim on direct appeal does not open the door to relitigate a claim that has already been raised, litigated and decided adversely to the petitioner by " a reviewing court." Id., 199. For the foregoing reasons, claim three of the amended petition is dismissed.
3.
Ineffective Assistance of Trial Counsel
In claim one of the amended petition, the petitioner alleges that his constitutional right to the effective assistance of counsel was violated in two ways: " First, they failed to adequately respond to the state’s improper closing arguments. Second, they failed to adequately investigate a forensic accountant as well as SBC’s financial and business records." Pet. Post-Trial Brief, 9/25/2017, p. 21.
" The sixth and fourteenth amendments to the United States constitution guarantee criminal defendants the right to have counsel for their defense in state prosecutions. This guarantee is essential to ensuring a fair trial. See, e.g., Powell v. Alabama, 287 U.S. 45, 70, 53 S.Ct. 55, 77 L.Ed. 158 (1932). As the United States Supreme Court has explained, ‘[t]he right to counsel plays a crucial role in the adversarial system embodied in the [s]ixth [a]mendment, [because] access to counsel’s skill and knowledge is necessary to accord defendants the ample opportunity to meet the case of the prosecution to which they are entitled.’ (Internal quotation marks omitted.) Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Implicit in this guarantee is the right to have effective assistance of counsel. Id., at 686, 104 S.Ct. 2052.
" The right to the effective assistance of counsel is also guaranteed by article first, § 8, of the Connecticut constitution. This section provides the same protection as the federal constitution, and the federal standard for judging effective assistance claims applies to any such claims under the state constitution. See, e.g., State v. Arroyo, 284 Conn. 597, 643, 935 A.2d 975 (2007)." Skakel v. Commissioner of Correction, 325 Conn. 426, 441, n.8., 159 A.3d 109 (2016).
" In Strickland, the United States Supreme Court set forth a two part standard for deciding whether a defendant can prevail on a claim that defense counsel rendered constitutionally ineffective representation: ‘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.’ Id. ‘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 [a] showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the [s]ixth [a]mendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires [a] showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.’ Id., at 687, 104 S.Ct. 2052. Although the standard is composed of two components, a court need not address both if the defendant makes an insufficient showing as to either one. Id., at 697, 104 S.Ct. 2052. Moreover, ‘Strickland does not guarantee perfect representation, only a reasonably competent attorney ... Representation is constitutionally ineffective only if it so undermined the proper functioning of the. adversarial process that the defendant was denied a fair trial.’ (Citations omitted; internal quotation marks omitted.) Harrington v. Richter, 562 U.S. 86, 110, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), quoting Strickland v. Washington, supra, 466 U.S. at 686, 104 S.Ct. 2052." Skakel v. Commissioner of Correction, 325 Conn. 426, 441, 443, 159 A.3d 109 (2016).
A
Performance Component
" As to Strickland ’s first component, ‘the defendant must show that counsel’s representation fell below an objective standard of reasonableness.’ Strickland v. Washington, supra, 466 U.S. at 688, 104 S.Ct. 2052. ‘[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 ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.’ (Citation omitted.) Id., at 689, 104 S.Ct. 2052.
" Strickland directs courts assessing counsel’s performance to be deferential to counsel’s strategic decisions and to apply a strong presumption that such decisions are reasonable. ‘Because of the difficulties inherent in making [this] 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 ... There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.’ (Citation omitted; internal quotation marks omitted.) Id. ‘Thus, a court deciding an actual ineffectiveness claim 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 ... At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and [to have] made all significant decisions in the exercise of reasonable professional judgment.’ Id., at 690, 104 S.Ct. 2052.
" This deference applies equally to claims alleging that counsel unreasonably chose not to pursue possible defenses or to present certain evidence. [S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, [with application of] a heavy measure of deference to counsel’s judgments.’ Id., at 690-91, 104 S.Ct. 2052." Skakel v. Commissioner of Correction, supra, 325 Conn. 443-44.
B
Prejudice Component
" With respect to the second component, even if counsel performs deficiently, a defendant is entitled to relief from his conviction only if he can prove that his counsel’s unreasonable errors or omissions prejudiced his defense. ‘An 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 ... The purpose of the [s]ixth [a]mendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the [c]onstitution.’ " (Citation omitted.). Id., at 691-92, 104. S.Ct. 2052.
" In assessing a claim of prejudice, courts must consider the impact of counsel’s errors in light of all the evidence presented at the original trial. ‘[A] court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury ... Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.’ Id., at 695-96, 104 S.Ct. 2052.
" The defendant has the burden to ‘affirmatively prove prejudice.’ Id., at 693, 104 S.Ct. 2052. ‘It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test ... and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.’ (Citation omitted.) Id. ‘On the other hand ... a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.’ 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., at 694, 104 S.Ct. 2052. Put another way, ‘the question is whether there is a reasonable probability that, absent the errors, the [fact finder] would have had a reasonable doubt respecting guilt.’ Id., at 695, 104 S.Ct. 2052. ‘This does not require a showing that counsel’s actions " more likely than not altered the outcome," but the difference between Strickland ’ s prejudice standard and a more-probable-than-not standard is slight and matters " only in the rarest case." ... The likelihood of a different result must be substantial, not just conceivable.’ (Citation omitted.) Harrington v. Richter, supra, 562 U.S. at 111-12, 131 S.Ct. 770, quoting Strickland v. Washington, supra, 466 U.S. at 693, 697, 104 S.Ct. 2052." Id., 444-46.
(i)
Comments Made During the State’s Closing Argument
In paragraph 34.3 of the amended petition, the petitioner claims that trial counsel " failed to adequately respond, through an objection, a request for an evidentiary hearing, a request to reopen the evidence, or a request for a jury instruction, after the prosecuting authority asserted during closing arguments that the jury should infer the following facts that the prosecuting authority knew or should have known to be false: ¶ 34.3.1 Henry Bawarsky and David Bawarsky removed the petitioner from Standard Beef because they believed that the petitioner had been embezzling from Standard Beef; 134.3.2 the petitioner and others did not have the financial ability to purchase Standard Beef; ¶ 34.3.3 Standard Beef- or its owners and agents- had a legal right to rescind the purchase offer made to the petitioner and others." Amend. Pet., 4/6/2017, ¶¶ 34.3.1-34.3.3, p. 6.
The petitioner did not submit any evidence to support the claims raised in ¶¶ 34.3.2 and 34.3.3. The petitioner therefore has failed to show either that his trial counsel’s performance was deficient or that he was prejudiced by counsel’s performance with respect to these claims. " The petitioner cannot rely on mere conjecture or speculation to satisfy either the performance or prejudice prong but must instead offer some demonstrable evidence in support of his claim. See Ostolaza v. Warden, 26 Conn.App. 758, 765, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992)." Petty v. Commissioner of Correction, 125 Conn.App. 185, 188, 7 A.3d 411 (2010). As the petitioner has failed to offer any evidence on these claims the court therefore denies the petitioner’s claims in ¶¶ 34.3.2 and 34.3.3.
As this court previously discussed in part IVD2 of this decision relating to the due process claim, the petitioner claims that the following arguments improperly suggest that Henry Bawarsky, who did not testify at the trial, fired the petitioner upon learning of the theft: 1. " [J]ust because the employee increases sales doesn’t entitle that person to take a percentage of that without you knowing about it and claiming, oh, I saved the company." CTR, 5/23/13, p. 51. 2. " But David pulls up and ousts Mr. Friend. If you had an employee that was stealing from you would you keep him there?" Id., 53. 3. " Does it make much logical business sense? Not if you know about it, but if you don’t know because the only person who does know is the person writing the checks, you don’t find out about it until later, then when you do you shut it down." Id.
Central to the issue of whether transactions were authorized, the petitioner claims that these arguments were critical to the jury’s finding of guilt, that the State knew they were false, and that trial counsel did not take adequate steps to cure the harm. In support of petitioner’s claim that the state knew the arguments were false, the petitioner submitted the deposition testimony of David Bawarsky, taken on November 18, 2009, in an unrelated bankruptcy proceeding. According to the petitioner, the state had a copy of the deposition transcript prior to trial, and the testimony therein establishes that the petitioner’s termination from SBC had nothing to do with the theft. The petitioner contends that Pattis should have argued for a mistrial or for some curative action in reliance on the deposition transcript. The petitioner further argues that because Pattis failed to make the deposition a part of the record, and failed to use its’ contents to expose the state’s false arguments, the petitioner claims that he was denied effective assistance of counsel. The court is not persuaded by this argument and dismisses the claim.
Consistent with this court’s ruling on the petitioner’s prosecutorial misconduct/due process claim in part IVD2 of this decision, the issue of whether the state, during closing arguments improperly argued that the jury should infer facts which the prosecuting authority knew or should have known to be false, namely, that Henry Bawarsky and David Bawarsky removed the petitioner from SBC because they believed he had been stealing from the company, was specifically raised on direct appeal and decided against the petitioner. See, State v. Friend, supra, 159 Conn.App. 285, 331-36; Pet. Ex. 1, Petition for Certification; Motion for Reconsideration.
" ‘[C]ollateral estoppel, or issue preclusion, is that aspect of res judicata that prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim ... An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined.’ (Internal quotation marks omitted.) Dontigney v. Commissioner of Correction, 87 Conn.App. 681, 685, 867 A.2d 93 (2005). If there was no misconduct, attorney Schwartz cannot have been ineffective for failing to move for a mistrial on this basis." Larracuente v. Warden, Superior Court, judicial district of Tolland, Docket No. CV054000511S, (September 2, 2009, Nazarro, J.). Likewise, in the present case, since the Appellate Court already determined that there was no misconduct, trial counsel cannot be found ineffective for their actions in relation thereto. Accordingly, this claim as to ineffective assistance of trial counsel is denied.
(ii)
Expert Testimony
The petitioner claims that trial counsel was ineffective for failing to consult with and present the testimony of a forensic accountant. Amend. Pet. ¶ 34.11. The petitioner claims that Pattis should have consulted with an accounting expert in order to determine the material value of certain business records, and should have had the expert testify that the lack of complete records for SBC rendered it impossible to determine whether the petitioner committed embezzlement. More specifically, the petitioner argues that a forensic accountant would have revealed that the particular mechanism by which the checks drafted for the transactions at issue was of little value to determining whether the transactions were authorized. The petitioner further claims that consulting a forensic accountant would have revealed whether any payments provided an obvious benefit to SBC, or were made indirectly to cover expenses, and that, debts are not substantial indications that the transactions were unauthorized. The petitioner argues that examining the manner of payment, such as whether a check was handwritten, or what computer system printed it, elevates form over substance, and that by far the most probative evidence of whether the transactions were authorized would come from the documentation of what accounts they were tied to in the general ledgers, and their effect on the business. Therefore, trial counsel should have consulted with a forensic accountant, and should have had the expert testify that the lack of complete SBC records rendered it impossible to determine whether the petitioner committed embezzlement. The court is not persuaded by the petitioner’s arguments.
As noted by the trial court in the criminal trial, and as the evidence in the criminal trial record demonstrates, this was a simple embezzlement case. The state’s theory of the case was that the petitioner wrote checks that he was not authorized to write. Pattis had a clear theory of how to rebut the state’s evidence which was rooted in reasonable professional judgment. Attorney Pattis did not retain an accounting expert because as he explained, " [t]his wasn’t the case about carryovers, lost amounts, tax deductions or any complex accounting issues. It was a simple embezzlement case." HTR, 8/3/2017, pp. 152-53, 155.
According to Pattis, which is born out by the criminal record, the central issue in the case was whether the petitioner was authorized by either Henry Bawarsky directly, or in connection with the consulting agreement, to write the checks at issue. It was the state’s position that he did not have the authority to do so, and it was the petitioner’s position that he did. As the trial court succinctly stated during the criminal trial when granting Pattis’ motion in limine limiting the testimony and admission of a report of Mr. Finkle, a forensic accountant, called as a fact witness by the state: " THE COURT: Why do you need a forensic accounting report if there’s not- it’s not like there’s an objection to the checks coming in as I understand it, and the amounts of the checks. It’s my understanding he claims he had the authority to do it. You claim he did not have the authority, that it was a criminal act, that he wrongfully appropriated it. So I don’t understand why you need the forensic accounting report." (Emphasis added.) CTR, 5/13/2013, pp. 48-49.
According to Pattis the crux of the case was whether the petitioner was authorized to issue the checks that were the subject of the warrant, therefore, the records, from his perspective would shed no light on whether the petitioner was authorized to cut the checks: " Again, you keep referring to financial records. I’m talking about sales transactions reports. Mr. Friend never denied in any of our discussions that he had made these requests for payment ... and that he had authorized these checks. I believe what he told us- and, in fact, I know he told us that he ... would sign a check and sometimes he’d have as many as fifty on his desk and he would take them and put them on the desk of a woman named Marcy Gollinger or Ilka Cintron. And he didn’t know how the second signature got affixed to them; that there came a point when the banks would accept ... single-party endorsements with his signature on it. But as to the checks that were listed in the warrant he, never told us they were anything other than checks he authorized and that he had Henry’s consent to do so. So I had no reason to be- You know, I didn’t need financial records per say. These were the checks that ... were at issue. What was material was whether ... Phil was authorized to cut them or not ... Mr. Friend told us he had authorization to cut the checks. If he did, there was no embezzlement because the crime was that he had turned company use- company property to, in this case money, his own advantage ... without the consent of the owner. And his view was that he had consent and he was acting within the scope and role of recognized duties he had firs[t] as a ... consultant, potential buyer; second, as the comptroller ... The supporting documents wouldn’t answer or address the question of whether Phil was authorized based on conversations he had with Henry and their understanding of the agreement that he was to turn the company around, that he had authority to do that. They would shed no light on that whatsoever." HTR, 8/3/2017, pp. 150-51, 155.
Using the general ledger as an example, Pattis further explained: " all the general ledger would do would [be] to provide a record of them in another form. The question was did Henry Bawarsky authorize them. Did- based on the agreement that Phil had and the manner in which the company was ... operating, was he authorized to cut the checks? That was the issue in the case, not the paperwork supporting the checks." Id., 170. Attorney Erwin also testified that they did not believe a forensic accountant was necessary, because " [w]e had Mr. Friend. He knew the company from top to bottom." HTR, 8/10/2017, p. 139.
The petitioner’s own expert, Stephen Pedneault’s testimony supports Pattis’ testimony that the records of SBC were of little value in determining whether the transactions at issue were authorized: " [T]he transactions ... are just that, they are transactions. What it doesn’t tell is whether or not they were ... authorized transactions." HTR, 8/21/2017, p. 70. When asked on cross examination " to assume that all the transactions at issue were perfectly accounted for in Standard Beef’s records. That the transactions were noted in corresponding places that you would expect it to be if these were bona fide transactions. Does that still- does that fact answer the question of whether the transactions were authorized," Pedneault answered no. Id., 8/22/2017, p. 32. Thus, the petitioner’s own expert agreed that a complete set of SBC records would not reveal whether the transactions at issue were authorized. As such, the petitioner’s claim that Pattis was deficient for having failed to call a forensic accountant in defense of petitioner’s criminal case is unpersuasive.
The petitioner further argues that Pedneault’s testimony would have been material to the question of whether the Webster Bank payments at issue in count one of the information were in satisfaction of a debt owed by SBC to Ridgefield Farms, LLC, a company owned by the petitioner. According to the petitioner, the " missing" financial records, as testified to by Pedneault would have established the true amount of the debt that SBC owed to Ridgefield Farms. On this issue Pedneault testified that the existing records suggested " [t]here’s evidence ... that there was money owed to Ridgefield Farms. How much it was at the time of these transactions ... the records are not sufficient to be able to determine that ..." HTR, 8/21/2017, p. 75. Pedneault also testified that bank statements indicate that checks written to Ridgefield Farms were never cashed, but were ultimately removed from the outstanding check lists. The material import of Pedneault’s testimony was to establish that at the time the Webster Bank checks were written, SBC owed Ridgefield Farms money in an amount at or exceeding the amount paid to Webster Bank. The petitioner here is not making a deficiency of counsel argument, but instead is again essentially making a sufficiency of evidence argument, which was previously raised and previously litigated before the Appellate Court. Indeed, the criminal trial record reveals that Pattis did a herculean job at presenting this exact defense theory to the jury through, in addition to other evidence, the testimony of David Pite, who was a very difficult witness.
" At trial, the defendant argued that SBC owed Ridgefield Farms ‘[a] significant amount of money’ for past deliveries of beef to support his argument, the defendant introduced two internal SBC documents. The first document reflected that, as of May 2007, SBC owed Ridgefield Farms $26,830.32. Dober testified that he recalled the debt being at ‘$27,000 and change’ in the summer of 2007. The second document reflected an outstanding debt as $50,339.49 in July 2007. In addition, the defendant presented the testimony of Attorney David Pite, who represented the defendant in his negotiations with Webster Bank regarding the settlement of the outstanding loan. Pite testified that in the fall of 2007, SBC owed Ridgefield Farms ‘in excess of $100,000.’ Pite explained that he knew the extent of the debt because, at that time, he also was representing SBC in two legal matters concerning the company’s outstanding debts and, therefore, he ‘had to know who was owed what.’ " State v. Friend, supra, 159 Conn.App. 750.
Pite also testified that he remembered seeing invoices from Ridgefield Farms for the SBC checks the petitioner issued from SBC’s account to pay Webster Bank. " Q: Okay. And the amount in this was $28,900; correct? A: Yes. Q: There was a separate check, check C, $26,830.32; correct? A: Right. Q: And there was a third check for $38,428.34? A: Yes. Q: Do you know whether- Did at any point you see invoices to Standard Beef from Ridgefield Farm in that- or from- in that amount? A: Yes, I remember seeing some invoices matching those amounts." CTR, 5/21/2013, pp. 99-100. The sum and substance of it is that, despite Pattis’ herculean efforts to try to convince the jury that at the time the Webster Bank checks were written, SBC owed Ridgefield Farms money at or in excess of the amount owed to Webster Bank, the jury did not buy it. Thus, any additional evidence on this issue would have been cumulative and would not have changed the outcome of the trial. Indeed, there was sufficient evidence, other than any " missing" general ledgers and financial records, from which the jury reasonably could conclude that the petitioner did not have the authority to write checks on SBC’s account to pay for a personal debt.
As reflected in the criminal trial record and noted by the Appellate Court: " [T]he jury heard sufficient evidence reasonably to conclude that the defendant acted with a specific intent to deprive SBC of property. At trial, the jury heard evidence that the defendant’s initial role at SBC was that of ‘an advisor and consultant.’ In addition, having terminated Auger in September 2007, the defendant became the company’s accountant/comptroller, assuming oversight and control of SBC’s finances. On the basis of this evidence, the jury reasonably could have concluded that the defendant, as an executive officer of the company, must have known that SBC’s debt to Ridgefield Farms was distinct from a debt to him personally. Having reached that conclusion, the jury then reasonably could have inferred that the defendant was not acting under the good faith belief that SBC owed the funds to him personally.
" Additionally, the jury could have concluded that, at the time he wrote out the checks, the- defendant was not acting in good faith because he did not follow the required SBC procedure of having two signatures on the company’s checks, he handwrote the checks instead of issuing them on the company’s newly installed computer software, he simply named Webster Bank as the payee without any explanation of the underlying nature of the transaction, and he transferred funds directly to Webster Bank instead of paying Ridgefield Farms first and then paying off the debt. Moreover, the jury reasonably could have concluded that SBC’s debt to Ridgefield Farms was not large enough to explain the payment of $88,158.66. While it is true that Pite testified that SBC’s debt to Ridgefield Farms was in excess of $100,000, the jury also heard Dober testify that he remembered the debt being approximately $27,000. It is axiomatic that the jury, as the final arbiter of credibility of any witness, was free to disbelieve Pite and instead credit Dober’s recollection of the amount of the debt and, thus, conclude that SBC did not owe Ridgefield Fauns the amount claimed by the defendant. See State v. Robinson, 125 Conn.App. 484, 489, 8 A.3d 1120 (2010) (‘[o]n appeal, we cannot revisit the jury’s decision to believe the witnesses’), cert. denied, 300 Conn. 911, 12 A.3d 1006 (2011). Moreover, because no evidence at trial established that SBC owed Ridgefield Farms any funds at the time the payments had been made, the jury was free to conclude that SBC did not owe any money to Ridgefield Farms.
" Likewise, the jury reasonably could have concluded that the defendant had not been authorized to issue checks to Webster Bank by SBC or its owner Bawarsky, and that he was aware of that. The consulting agreement, which the defendant personally had signed, expressly provided that all funds paid to third parties required a prior written authorization by Bawarsky and either the defendant or Greenfield. In addition, the company’s check signing procedure was amended in August 2007, explicitly to require two signatures on all SBC checks. The defendant had signed that document too, acknowledging his familiarity with the new policy.
" Furthermore, the jury reasonably could have concluded that the checks themselves indicated lack of consent by SBC; two of the three checks bore only the defendant’s signature, and the jury could have credited Dober’s testimony that the third check, while bearing a second signature similar to his, in fact had not been signed by him. Significantly, the defendant did not issue the checks until after he had assumed control of the company’s checkbook having terminated Auger. Finally, the jury reasonably could have concluded that the defendant lacked authorization and was trying to avoid detection by handwriting the checks used in the old computer system instead of issuing checks on the new system, which could be accessed and monitored remotely by Greenfield- the man who personally had extended and guaranteed the $800,000 trade credit to SBC." State v. Friend, supra, 159 Conn.App. 298-301.
During the criminal trial, in an effort to rebut the specific intent element, in his zealous representation of the petitioner, trial counsel also introduced additional evidence through attorney Pite, to show that the petitioner acted on the advice of counsel when he wrote the checks to Webster Bank to pay off the debt, on which the trial court gave an advice of counsel instruction to the jury. Attorney Pattis elicited the following testimony from attorney Pite: " Q: Did you provide- Did you provide Mr. Friend with legal guidance about whether a check could be written on a Standard Beef account to retire a debt to Webster Bank that he had personally guaranteed for Ridgefield Farms? A: Yeah, my understanding was that he could do so ... Q: Was it your understanding that Mr. Friend had- you had condoned Mr. Friend’s using a check of Standard Beef’s in- to retire his personal debt to Webster because in fact Standard Beef owed Ridgefield Farms money? A: Well, certainly, because I viewed it as Ridgefield Farm, LLC’s debt." CTR, 5/21/2013, pp. 97, 99. This defense would obviously go to the petitioner’s state of mind to negate the requisite intent in that, he in good faith believed and relied on the legal advice of attorney Pite, that he could retire his personal debt to Webster Bank because SBC owed Ridgefield Farms money. Again, the jury did not buy it. While it is true that attorney Pite testified that he advised the petitioner in this regard, as noted above, " the jury [also] heard sufficient [other] evidence[,] reasonably to conclude that the defendant acted with a specific intent to deprive SBC of property." State v. Friend, supra, 159 Conn.App. 298. Thus, just as the jury could have reasonably discredited Pite’s testimony as to his recollection of the amount of the debt SBC owed to Ridgefield Farms, the jury could have reasonably discredited the testimony of Pite that he advised the petitioner regarding payment of the Webster Bank debt with checks from SBC, or, if they credited his testimony in that regard, that the petitioner’s reliance on such advice was not in good faith. See court’s instruction to jury on defense of advice of counsel, CTR, court’s Ex. 4; see also, Rieffel v. Johnston-Foote, 165 Conn.App. 391, 406-07, 139 A.3d 729 (2016) (" defense [of advice of counsel] has five essential elements. First, the defendant must actually have [honestly and in good faith] consulted with legal counsel [as to what he could lawfully do in the future] ... Second, the consultation with legal counsel must be based on a full and fair disclosure by the defendant of all facts he knew or was charged with knowing concerning the basis for his contemplated ... action ... Third, the lawyer to whom the defendant turns for advice must be one from whom the defendant can reasonably expect to receive an accurate, impartial opinion as to the viability of his claim ... The fourth element ... is, of course, that the defendant, having sought such advice, actually did rely upon it ... Fifth and finally, if all other elements of the defense are satisfactorily established, the defendant must show that his reliance on counsel’s advice was made in good faith" ). Again, " [i]t is axiomatic that the jury, as the final arbiter of credibility of any witness, was free to disbelieve [the testimony of] Pite" State v. Friend, supra, 159 Conn.App. 300; and credit other evidence.
The court finds that Pattis’ representation was not deficient, and even if the court were to conclude that it was, it would not have changed the outcome of the case. Accordingly, the petitioner’s claim under both prongs of Strickland fail.
Pedneault testified that there was an empty folder labeled " Phil’s Info" that he found during the course of his gathering of information to form his opinion regarding the materiality of the " missing records." A photograph of what he described as a folder labeled " Phil’s Info" was admitted into evidence. Pet. Ex. 18. He testified that there was nothing in the folder, however, and that " it appear[ed] to me there was stuff in it at one time otherwise it would be still flat and like new and just in where it belonged" and that it was in a box with other vendor folders. HTR, 8/21/2017, p. 52. Pedneault testified that the documents which were purportedly contained in " Phil’s Info" folder could contain expense reimbursement records to justify the credit card expenditures. He testified: " There were transactions ... in the criminal case where ... either Phil was reimbursed or- or used his personal credit card ... or otherwise had transactions that related to him. And anything there’d be a reimbursement to or there’d be something where he’d use, his credit card or whatever it was, it had to be filed somewhere, if it was maintained. And so I would expect that if it related to Phil, it would be in a folder called Phil or Phil Friend ... So that’s what I was looking for is any of the transactions that had been previously identified, was there any supporting documentation in any of these boxes ... to give me some insight as to what happened." HTR, 8/21/2017, pp. 52-53. The court finds this testimony speculative.
SBC went into bankruptcy. The accounting firm, Verdolino & Lowey was the custodian of all of SBC’s records. All of SBC’s existing documents were stored in Verdolino & Lowery’s document storage facility located in Foxborough, Massachusetts. HTR, 8/10/2017, p. 117. In preparation for his testimony and in formulating his opinion on the materiality of the " missing documents" Pedeneault traveled to Foxborough to review the documents. HTR, 8/21/2017, pp. 9-10.
The folder was not labeled as an expense reimbursement folder, was not located in a box with similar folders for other employees, and there is no indication in the criminal trial record that SBC had a practice of maintaining such folders. More specifically, the court reviewed the testimony of Fred Auger, Marcy Gollinger and Ilka Cintron, who worked in the financial office at SBC. Fred Augur was employed for SBC for thirty years as the head accountant, the comptroller, and office manager. CTR, 5/21/2017, p. 152. Auger performed " all the accounting functions; going to the bank, the bank deposit, preparing the checks, mak[ing] sure the accounts are kept up to date, just all the accounting procedures that were necessary to keep ... the business running, properly as it should ... be." Id.
Marcy Gollinger was employed by SBC from 2006 until 2009. From August 2007 to January 2008, her duties included assisting Auger and Cintron in performing payroll duties and accounts payable. With regard to accounts payable, Ms. Gollinger paid all of the invoices and expenses for the company. " [A]fter October then I started- I primarily did accounts payable and payroll, the whole function." CTR, 5/21/13, p. 15. She testified to a number if not all of the transactions in question relating to the petitioner. Ilka Cintron was employed by SBC beginning in April 2002, and worked in the office with Auger and Gollinger. Cintron worked in accounts payable, billing and accounts receivable. In accounts receivable, Cintron would " [c]ollect payments from different accounts that we had, count all the cash money, write it up for a bank deposit and deposit the money into the bank [and] [w]hen I did accounts payable I would have the invoice, match it with a bill of lading, make sure that the invoice price was what it was coded and then ... would enter it in the computer for payment." CTR, 5/16/2013, pp. 4-5. None of the testimony of Augur, Gollinger or Cintron, reflect the expense reimbursement practices as described by Pedneault and a " Phil Folder."
According to the criminal trial record, the petitioner’s expense reimbursement practices consisted of submitting a copy of his personal credit card statement and identifying the purchases that he delineated were for " business" purposes. The record does not indicate that it was the petitioner’s practice to submit receipts for cataloging into an expenses reimbursement folder or a " Phil Folder." The jury was provided copies of the statements and using their common sense, made their own determination of whether the petitioner was being truthful. Pedneault’s speculative testimony of the empty " Phil Folder" and what might have been contained in it probably would have been excluded as being too speculative, and if allowed, would not have changed the outcome of the case.
In addition to being speculative, Pedneault’s opinion that one could not determine whether the petitioner embezzled without first reviewing a complete set of SBC’s business records and speaking directly with the owner of SBC, embraces the ultimate issue in a criminal case, namely, the petitioner’s guilt, and therefore would have usurped the exclusive function of the jury, which was to determine the petitioner’s guilt. Pedneault testified to the following on cross examination: " Q: Okay. In your opinion, Mr. Pedneault, can you determine whether Mr. Friend embezzled funds from Standard Beef without speaking to Henry Bawarsky or David Bawarsky? A: No. Ah, ah, that would be a step or a measure I would have done that: I- that would have, ah- that would have been a primary thing I would have done. Once I’ve identified the transactions, I would have taken the list, like we always do, and go back to the victim to find out were these authorized, yes or no. Q: And- and without having that opportunity you wouldn’t be able to determine whether Mr. Friend embezzled funds from Standard Beef? A: That’s correct. I just have a list of identified transactions. Q: Okay. Um, can you determine whether Mr. Friend embezzled funds from Standard Beef without reviewing a complete set of Standard Beef’s records? A: No." HTR, 8/22/2017, pp. 5-6.
" [Section] 7-3(a) of the Connecticut Code of Evidence ... provides in relevant part that, ‘[t]estimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact ...’ As the commentary to § 7-3 indicates, the rule adopts the common-law bar against admission of a witness’ opinion on an ultimate issue in a case. The common-law rule protects the defendant’s right to have a jury determine his guilt or innocence. State v. Heinz, supra, 193 Conn. at 628, 480 A.2d 452 ...
Note on December 14, 2017, the justices of the Supreme Court adopted the revisions to the Connecticut Code of Evidence, including the Commentary, to become effective on February 1, 2018. See Revisions to Connecticut Code of Evidence. There have been no substantive changes to § 7-3. See 2018 Connecticut Court Order 0001 (C.O. 0001).
The court is mindful of the exception to the general rule in § 7-3 for expert witnesses in circumstances where the jury needs expert assistance in deciding the ultimate issue. That is not the case here. As is clearly evident in the habeas record, and in the criminal trial record, this was a simple embezzlement case. The issue was whether or not the petitioner was authorized to write the checks in question on SBC’s account. The jury did not need expert assistance to make this determination.
" ‘Testimony is objectionable if it embraces an opinion on the ultimate issue to be decided by the trier of fact.’ (Internal quotation marks omitted.) State v. Spigarolo, supra, 210 Conn. at 372, 556 A.2d 112. It is improper for a witness to offer testimony that essentially constitutes a legal opinion about the guilt of the defendant. State v. Heinz, supra, 193 Conn. at 627, 480 A.2d 452 ... [A]n ultimate issue [is] one that cannot ‘reasonably be separated from the essence of the matter to be decided [by the trier of fact]’ State v. Finan, supra, 82 Conn.App. at 232, 843 A.2d 630." State v. Finan, 275 Conn. 60, 66, 881 A.2d 187 (2005).
In the present case, the jury did not hear from either Henry Bawarsky or David Bawarsky and did not have a complete set of SBC records, yet it still convicted. Pedneault’s opinion that one could not determine whether the petitioner embezzled funds without first reviewing a complete set of SBC’s records and speaking directly with the owner of SBC clearly embraces the ultimate issue and probably would not have been allowed. Accordingly, trial counsel was not deficient, and the petitioner suffered no harm.
Pedneault’s opinion also presumes that the jury could not rely on circumstantial evidence to convict. Such an opinion is contrary to the law on circumstantial evidence. " ‘There is no distinction between direct and circumstantial evidence so far as probative force is concerned ... Indeed, [c]ircumstantial evidence ... may be more certain, satisfying and persuasive than direct evidence ... Therefore, the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence.’ (Citation omitted; internal quotation marks omitted.) State v. Balbuena, supra, 168 Conn.App. at 200, 144 A.3d 540; see, e.g., State v. Jackson, 257 Conn. 198, 206, 777 A.2d 591 (2001). ‘As we frequently have observed, [i]ntent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available ... Therefore, intent is often inferred from conduct ... and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.’ (Internal quotation marks omitted.) State v. Nash, 316 Conn. 651, 672, 114 A.3d 128 (2015)." State v. Seeley, 326 Conn. 65, 76, 161 A.3d 1278 (2017).
The petitioner’s criminal case was based largely on circumstantial evidence. The Appellate Court noted as such when ruling on the sufficiency claim of count five which pertained to the Washington Mutual Credit Card. The court noted: " On appeal, the defendant argues that, in order to find him guilty on this count, the jury had to ‘make two separate and necessary’ inferences: (1) the jury had to infer that SBC ‘did not authorize payment of charges that were not [SBC’s] business expenses’; and (2) the jury had ‘to infer, from the descriptions of the charges contained in the billing statements, that charges paid with [SBC] funds were, in fact, [the defendant’s] personal expenses, rather than [SBC’s] business expenses.’ Neither of these inferences, according to the defendant, is supported by the evidence. [The Appellate Court] disagree[d].
" To support his first argument, the defendant points to paragraph six of the consulting agreement, which provides that the [c]onsultant shall be reimbursed for out-of-pocket travel and room, board and entertainment expenses incurred during the term hereof; provided [c]onsultant submits documentation verifying said expenses.’
" Although it is true that the consulting agreement does not specifically limit the reimbursement to business expenses only, the jury reasonably could have inferred that, as a consultant who was hired to bring in new business and help turn around the company in the midst of a deep financial crisis, the defendant would be reimbursed for only verified legitimate business expenses. Furthermore, an additional indication that SBC intended to reimburse the defendant for legitimate business expenses is found in paragraph one of the consulting agreement, which provides, inter alia, that the ‘[c]onsultant shall serve as advisor and consultant to [SBC] in connection with [SBC’s] business activities.’ (Emphasis added.) Thus, the jury reasonably could have concluded that the defendant was hired to improve SBC’s business fortunes and that he would have been reimbursed only for expenses incurred in the pursuit of that goal.
" The defendant next argues that, ‘even if the jury could infer lack of authorization from the fact that a charge was not for a business expense of [SBC], the evidence was insufficient to permit the jury to infer that any charge paid with [the check] was not, in fact, a business expense of [SBC].’ Specifically, the defendant argues that the state ‘put on no [direct] evidence to show what was purchased in any credit card transaction, or even any [direct] evidence with regard to what was sold at any of the merchants involved.’
" The defendant next argues that, ‘even if the jury could infer lack of authorization from the fact that a charge was not for a business expense of [SBC], the evidence was insufficient to permit the jury to infer that any charge paid with [the check] was not, in fact, a business expense of [SBC].’ Specifically, the defendant argues that the state ‘put on no [direct] evidence to show what was purchased in any credit card transaction, or even any evidence with regard to what was sold at any of the merchants involved.’
" The problem with the defendant’s argument is that it presumes that the jury reasonably could have found that the expenses were personal only through direct evidence. His argument, however, ignores the substantial circumstantial evidence before the jury at trial. In particular, the jury reasonably could have inferred that the expenses were personal in nature because the defendant used the old system checks at the time when the new system was fully operational and all of the new accounts were to be processed through the new system, the check had been signed only by the defendant in clear violation of the SBC check signing policy and the consulting agreement, he issued the checks after he had assumed control of the corporate checkbook, and there were no invoices in SBC’s records explaining the nature of the charges. That inference in turn would have then allowed the jury reasonably to conclude that purchases made at Urban Outfitters, Ridgefield Pet, Inc., Galleria D Arte, Vista Wine & Spirits, and Studentcity.com, as well as the cash advance, cash advance fee, late fees, and other purchases were not business related, despite the fact that no witness had testified about the nature of the purchases made with the credit card. See State v. Crafts, 226 Conn. 237, 245, 627 A.2d 877 (1993) (‘[t]here is, in fact, no rule of law that forbids the resting of one inference upon facts whose determination is the result of other inferences’ [internal quotation marks omitted] )." (Emphasis added.) State v. Friend, supra, 159 Conn.App. 308-10.
The Appellate Court’s determination that there was sufficient circumstantial evidence for the jury to convict on count five without the need of direct evidence is directly on point with the respondent’s argument that Pedneault’s opinion regarding the necessity of the " missing" records and speaking with Henry Bawarsky and David Bawarsky to find embezzlement is incongruous with the law on circumstantial evidence. Again, the jury did not hear from Henry Bawarsky or David Bawarsky, nor did they review a complete set of SBC’s business records, as Pedneault testified would be necessary to determine whether embezzlement had occurred. Pedneault’s testimony likewise, presumes that the petitioner’s guilt could only be proven through direct evidence. Such testimony invites the jury to apply a standard incongruous with the law and is prejudicial. As such, Pedneault’s testimony would probably not have been admitted. Petitioner’s claim under Strickland, therefore fails. Accordingly, the claim is denied.
(iii)
Missing, Destroyed or Unavailable SBC Records
In paragraphs 37.7 through 37.10 the petitioner claims that trial counsel failed to adequately challenge the admissibility of documentary evidence presented by the prosecuting authority; failed to adequately challenge the scope of admissibility of documentary evidence presented by the prosecuting authority; failed to adequately challenge the chain of custody of documentary evidence presented by the prosecuting authority; failed to adequately investigate, discover, prepare and present evidence that records of SBC were missing, destroyed or otherwise unavailable due to the misconduct of David Bawarsky, Henry Bawarsky, or other agents of SBC; failed to adequately present evidence that the petitioner’s business records that were kept at SBC were missing, destroyed, or otherwise unavailable due to the misconduct of David Bawarsky, Henry Bawarsky, or other agents of Standard Beef; and failed to adequately investigate, prepare and present the testimony of witnesses relating to the missing records of SBC and the petitioner, including agents of Verdolino and Lowey, P.C. and agents of Blum Shapiro.
The court concludes that trial counsel performed more than adequately with respect to the above-stated claims made by the petitioner. First, the petitioner argues that trial counsel waited days before the trial to investigate the SBC records. Although counsel did not go to Foxborough to review the records until May 10, 2013, three days before the trial, they had been attempting to review them at least a couple of months before the trial. Second, trial counsel Erwin and the petitioner went to Foxborough to look for specific documents, which would show that the transactions were authorized, and to look for records that would rebut the State’s contention that Peaceable Sales, LLC, a company owned by the petitioner, and to whom the petitioner wrote checks, was not a " sham" as claimed by the State. The records were not found.
The petitioner, who knew SBC from top to bottom, was with attorney Erwin and could identify which particular documents would be relevant to his defense that the transactions were authorized. Attorney Erwin " was using [the petitioner] to guide [him] through [the boxes of documents] because he had managed the company and knew what [they] were looking for so ... half the reason for going up there with me was because we could use him to explain them to us and show what he thought was important and was not important ..." HTR, 8/10/2017, p. 130. In addition, both the petitioner and Erwin spent six hours going through all 59 boxes of SBC’s financial records. And at the end of reviewing the documents, " [b]oth Mr. Friend and Erwin ... went and celebrated afterwards ... because we felt like we had done a thorough review and found some things that were helpful to the case." (Emphasis added.) Id., 133.
As to the petitioner’s claim that trial counsel failed to adequately present evidence that the petitioner’s business records that were kept at SBC were missing, destroyed, or otherwise unavailable due to the misconduct of David Bawarsky, Henry Bawarsky, or other agents of Standard Beef, again trial counsel more than adequately performed in this regard. During the cross examination of William Dober, Senior Vice President of SBC, trial counsel sought to offer evidence to establish one of the defense theories of the case, namely, that David Bawarsky took the SBC records and framed the petitioner. Trial counsel sought to introduce, through the testimony of Dober, accounts payable run sheets, dated February 2008 (CTR, Def. Ex. 51), so that the jury would have an idea of what the missing documents looked like. The state objected on grounds of relevance because the documents were dated after the petitioner had been ousted from SBC by David Bawarsky.
The following argument took place outside the presence of the jury. Pattis: " [N]otwithstanding the negotiations to purchase Standard Beef that were engaged in by Henry Bawarsky, Mr. Friend, and Richard Greenfield, and various counsel representing each, these negotiations continued until late January, early February. David Bawarsky, Henry’s son, then appeared abruptly on the scene. The evidence- the documentary evidence is a little confusing about when he assumed the role of president of Standard Beef. Mr. Finkle ... reported that it was sometime in January, others say it’s in February. But, nonetheless, Mr. Friend was shown the door, not given an opportunity to take any of his papers or any- or to preserve any papers in the company’s possession involving his involvement with Standard Beef, Peaceable Sales, or other entities that Standard Beef was doing business with. He’s never been provided the ability to retrieve his papers. There has been bankruptcy court litigation and the file ended up in bankruptcy. We’ve asked- we’ve checked the boxes that are in the possession of the ... debtor in possession and we find missing from them a series of documents that Mr. Dober referred to in his testimony, and those documents would include accounts payable runs, accounts receivable runs, bills of lading, invoices, and other records pertaining to payments made for items that are, in fact, in dispute in this case ... I think I have ... circumstantial proof in that [David Bawarsky] was a stranger to the transactions between his father and Mr. Friend and appeared only at the very end to squash the negotiations entirely, dispossess Mr. Friend. He made various factual misrepresentations to the officer who arrived at the scene about his role in the company. And, as president, presumably, then became custodian of documents, in other words, the corporate history ... If permitted to question Mr. Dober about this, I would show him 51 and I’d try to qualify this as a business record. I’d ask him how often he viewed them. Then, I would proceed on with Mr. Dober saying, after Mr. Friend left were these documents kept somewhere, where were they kept, where did they go, when’s the last time you saw them." CTR, 5/14/2013, pp. 3-5, 9. The court ruled in Pattis’ favor, agreeing that " [t]he fact that ... there was some documents removed ... the jury [should] be able to hear that, [and] give it whatever weight [it wants]." Id., 12. Thus, Pattis was allowed to offer the document, and did pursue this line of questioning during his cross examination of Dober. Trial counsel therefore did introduce evidence to show that the SBC records were incomplete.
There was also evidence presented at the criminal trial through the testimony of Ilka Cintron to suggest that David Bawarsky asked her to help him set up the petitioner. " Q: David Bawarsky asked for your help in setting up Mr. Friend; didn’t he? A: Yes. Q: He said that he was out to get Mr. Friend for some personal things that had happened between Mr. Friend and his father; correct? A: Correct ... Q: In fact you saw David Bawarsky try to hide money to keep it off the books after Mr. Friend left; correct? A: No, I never saw try to hide money ... Q: Okay. Did you ever testify in an unemployment hearing that you saw Mr. Dober and Mr. [David] Bawarsky make you keep money from the cash on delivery accounts? A: Yes. Q: Did you ever offer that testimony? A: Yes. Q: Did David Bawarsky and William Dober make you keep money from the cash on delivery accounts? A: In the safe, yes. Q: They were trying to hide money; correct, that’s what you understood? A: Correct ... Q: And you told Mr. Bawarsky you wouldn’t help him set Phil up; correct? A: Correct." CTR, 5/16/2013, pp. 59-60. In closing arguments, trial counsel used the above evidentiary foundation from Dober and Cintron to advance the theory of the missing records and that David Bawarsky took them and tried to frame the petitioner:
1. " [W]e think the failure, the State’s failure [t]o produce a complete documentary record here, not just of what he was owed as compensation, what he was owed under the profit sharing, under the- under the consulting agreement or any other various documents that we requested here is reason enough to doubt the State’s case together with the suspicious circumstances of how Mr. Friend was thrown out of the company in violation of the consulting agreement. He had until the end of April by a person presumably with interest in the company, Henry’s son, Henry was old ... Who’s going to inherit all that? " CTR, 5/23/2013, pp. 41-42.
2. " [H]e finally did write three checks from (sic) Webster Bank and he wrote them in distinctive sums, $38,000 this, $36,000 that, 32,000 and it wasn’t one check and they were spread over a four- about a six day period. Why would you write one- Why wouldn’t you just write one check you were going to hide it? Why would you write three checks and increase by a couple hundred per cent the odds of being caught for fraud, they think you’re embezzling? Why would you make more evidence rather than less? The reason those checks are in those discreet sums is because those amounts reflected actual receivables, actual receivables for Ridgefield Farms. I anticipate in its closing argument the State will say, well, that’s all fine and dandy. Where are those documents? We’d like to know. Were they in the office the day Phil was thrown out? Did David Bawarsky eat them or his courier? We don’t have them. It’s not our burden to produce them. But when you hear the Court’s instruction about reasonable doubt whether there’s something about the evidence or the lack of evidence I think that’s the sort of thing that you can use to acquit Mr. Friend." Id., 36.
3. " What you learned is that after Mr. Friend was thrown off the premises David Bawarsky made a call to Mark Perlroth, the accountant, and said I want those documents back, and the document’s in evidence, I can’t locate it, I think it’s number 17, it might even be 18, and somebody came to pick up documents, but where are they? Where’s the beef?" Id., 29.
4. " These AMEX bills come in to the State. Take a look at E2 and of course the criticism is there were no receipts and we were also told by the way, with respect to Peaceable Sales, we had access to documents. Do you know whether those documents that we might have had access to were among those that were in the office when Phil Friend was thrown out in late January, early February? Ask that question." Id., 31.
Despite the evidence and trial counsel’s arguments, the jury convicted. The evidence before this court supports a finding of diligent preparation and zealous and knowledgeable representation of the petitioner by trial counsel. For this reason, the petitioner’s claims that trial counsel failed to adequately present evidence that the business records were missing and/or destroyed by David Bawarsky or Henry Bawarsky and/or their agents fail. The claim is therefore denied.
(iv)
Admissibility of SBC’s Records
In paragraphs 34.5 and 34.6 of the amended petition, the petitioner claims that trial counsel failed to adequately challenge the admissibility of documentary evidence presented by the prosecuting authority; and that trial counsel failed to adequately challenge the scope of the admissibility of documentary evidence presented by the prosecuting authority.
Trial counsel did consider ways to keep the records from coming into evidence. Analyzing whether he should object to the records, and using his professional judgment, trial counsel noted the following: " As I evaluated the case, the checks were coming in ... They could be authenticated any number of ways. People recognize Phil’s signature ... Some of the other documents would have been easily- foundations could easily have been laid as business records. The only person was lacking in the case that we really wanted was Henry and Henry I don’t think was necessary to authenticate any of them. So I thought there were multiple potential roots for authentication and I wanted to focus the case on what I thought was significant ... I’m saying- that my analyses was as I just described it. Those documents were coming in. There are some classes of lawyers who object because they like the sound of their own voice. And I’ve made that mistake over the years but sometimes you have to take the hit you are going to take and deal with it as best you can. In my view, there was no question that those documents were admissible ... I didn’t think that I had a chain of custody avenue to block them, much though I wish David ... Bawarsky had testified ... That they weren’t complete but this wasn’t a case ... where completeness mattered ... That wouldn’t have worked. Um, that they are not what they rep- that they are hearsay; um, that they are not business records; that they’d been altered by someone; um, you know, that they were fabrications ... But the problem with the altered and fabrication theory is Phil told us, yeah, I signed them. I had the right to that; it was within the scope of my authority." HTR, 8/3/2017, pp. 165-67. Attorney Erwin also considered ways to keep the records out; Id., 8/10/2017, pp. 149-51; but ultimately, after analyzing the issue, both trial counsel exercised reasonable professional judgment and decided not to object to the admissibility of the records.
" ‘Our cases have long held that, when one party to a litigation or prosecution seeks to introduce admissions that constitute only a portion of a conversation, the opposing party may introduce other relevant portions of the conversation, irrespective of whether they are self-serving or hearsay.’ (Internal quotation marks omitted.) State v. Jackson, supra, 257 Conn. at 213, 777 A.2d 591." State v. Norman P., 169 Conn.App. 616, 628, 151 A.3d 877 (2016). The " rule of completeness" is codified in § 1-5(a) and (b) of the Connecticut Code of Evidence, which provides: " (a) When a statement is introduced by a party, the court may, and upon request shall, require the proponent at that time to introduce any other part of the statement, whether or not otherwise admissible, that the court determines, considering the context of the first part of the statement, ought in fairness to be considered contemporaneously with it;
" (b) When a statement is introduced by a party, another party may introduce any other part of the statement, whether or not otherwise admissible, that the court determines, considering the context of the first part of the statement, ought in fairness to be considered with it."" ‘The purpose of [the rule of completeness] is to ensure that statements placed in evidence are not taken out of context ... This purpose also demarcates the rule’s boundaries; a party seeking to introduce selected statements under the rule must show that those statements are, in fact, relevant to, and within the context of, an opponent’s offer and, therefore, are part of a single conversation.’ (Citation omitted; internal quotation marks omitted.) State v. Jackson, supra, at 213, 777 A.2d 591.’ " Stale v. Norman P., supra, 169 Conn.App. 629. The commentary to subsection (a) defines " statement" as " written, recorded and oral statements ... [L]ike subsection (a), subsection (b)’s use of the word " statement" includes oral, written and recorded statements." Conn. Code Evid. (2009) § 1-5(a)(b) commentary. Trial counsels’ decision not to object on the basis of lack of completeness is supported by the rule itself, as the checks that were signed by the petitioner are not " statements" as defined in the code. In addition, even if the rule applied, the petitioner admitted that he signed the checks, thus the documents were the completed signed checks.See footnote 14, supra . Revisions to the Connecticut Code of Evidence were adopted on December 14, 2017, including the Commentary, to become effective on February 1, 2018. There have been no substantive changes to § 1-5(a) and (b). See 2018 Connecticut Court Order 0001 (C.O. 0001).
Trial counsel also exercised reasonable professional judgment when they determined that there was no basis to object to the authenticity of the records. Connecticut Code of Evidence § 9-1(a) provides that " [t]he requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the offered evidence is what its proponent claims it to be." The petitioner admitted that the records at issue were authentic. As there was no basis to argue that the documents at issue were not what they purported to be, the court cannot conclude that trial counsel was deficient for not objecting to the admissibility of the records.
See footnote 14, supra . There have been no substantive changes made to § 9-1 by the current revisions. The commentary adds " metadata" to the types of evidence included in electronically stored information.
The petitioner argues that counsel was ineffective for not objecting to the records on grounds that the probative value of the records was greatly outweighed by their prejudicial effect due to other missing business records. See Conn. Code Evid. (2009) § 4-3. " In determining whether the prejudicial effect of otherwise relevant evidence outweighs its probative value, we consider whether: (1) ... the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) ... the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) ... the evidence offered and the counterproof will consume an undue amount of time, and (4) ... the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it." (Citations omitted; internal quotation marks omitted.) State v. Collins, 299 Conn. 567, 587, 10 A.3d 1005 (2011).
Conn. Code Evid. (2009) § 4-3 provides in relevant part: " Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence."See footnote 14, supra . There have been no changes made to § 4-3 by the current revisions.
" All evidence adverse to an opposing party is inherently prejudicial because it is damaging to that party’s case. Berry v. Loiseau, 223 Conn. 786, 806, 614 A.2d 414 (1992); Chouinard v. Marjani, 21 Conn.App. 572, 576, 575 A.2d 238 (1990). For exclusion, however, the prejudice must be ‘unfair’ in the sense that it ‘unduly arouse[s] the jury’s emotions of prejudice, hostility or sympathy’; State v. Wilson, 180 Conn. 481, 490, 429 A.2d 931 (1980); or ‘tends to have some adverse effect upon [the party against whom the evidence is offered] beyond tending to prove the fact or issue that justified its admission into evidence.’ State v. Graham, 200 Conn. 9, 12, 509 A.2d 493 (1986), quoting United States v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980)." Conn. Code Evid. (2009) § 4-3 commentary.
Pattis was asked whether he considered " objecting to ... [SBC’s records] on the basis that there was no probative value or that the probative value was greatly outweighed by the prejudicial effect due to other missing business records." HTR, 8/3/2017, p. 167. Pattis responded that such an argument is " ridiculous" and akin to objecting to the picture of the corpse at a murder trial or objecting to the gun that was alleged to have been used. Id., 168-69. " Just because it’s harmful doesn’t mean it’s prejudicial." Id., 169. Likewise, attorney Erwin did not see the prejudicial value in the missing records, unlike " bloody crime scene photos," Id., 143. The petitioner’s own expert, attorney Michael Fitzpatrick acknowledged that the records did not implicate any of the factors in weighing whether the probative value of the records is greatly outweighed by their prejudicial effect. Furthermore, trial counsels’ decision not to object on the basis of prejudice is consistent with the code. Trial counsel exercised reasonable professional judgment, and the court therefore cannot conclude that trial counsel was deficient in not objecting to the admission of the records on the basis of prejudice.
The petitioner claims that Pattis should have raised a due process objection to the admission of the SBC records on the ground that he was prevented from adequately defending himself because there were missing potentially exculpatory business records. The court in its research could not locate any case law to support the petitioner’s claim.
The seminal case of State v. Morales, 232 Conn. 707, 657 A.2d 585 (1995) which involves the issue of preserving evidence, is instructive on the merits of the petitioner’s claim that trial counsel should have raised a due process argument as a ground for objecting to the admissibility of the SBC records. The issue in Morales was the police’s failure to preserve evidence. The Supreme Court held that under the due process provision of § 8 of the Connecticut constitution, " the good or bad faith of the police in failing to preserve potentially useful evidence is not whether the defendant has been deprived of due process of law" [as a result of such failure]. Rather, in determining whether a defendant has been afforded due process of law under the state constitution, the trial court must employ [a] balancing test weighing the reasons for the unavailability of evidence against the degree of prejudice to the defendant. More specifically, the 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 the witnesses or jury, the reason for its nonavailability to the defense, and the prejudice to the defendant caused by the unavailability of the missing evidence." State v. Morales, supra, 232 Conn. 726-27.
C.G.S.A. Const. Art. 1, § 8 provides in relevant part: " Sec. 8. [As amended] a. In. all Criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger."
First, the law requires, at a minimum, that the State play a role in the missing evidence. This is not the case here and therefore such an argument would not prevail. Both Pattis and Erwin recognized this. Pattis, in opposing the state’s motion in limine to prohibit him from introducing evidence that the records were missing, and that David Bawarsky took them, acknowledged that he " [did not] think that the State of Connecticut through- or its agents actually destroyed documents ... So ... I don’t think I can get the case dismissed on those grounds but I do think ... [the fact that the records are missing is] relevant." CTR, 5/14/2013, pp. 5-6. He further argued that while he could not get a dismissal under Morales, because the state did not play a role in the missing records, he certainly could pursue the line of questioning regarding the missing records and whether David Bawarsky took them to set up the petitioner, because that line of questioning was relevant. Erwin expressed the same sentiments: " Well, ... our main interest in sort of a Brady context or the State v. Morales claim because negligent loss of the records could be an issue in Connecticut, but we could never show state action or custody ... and for the reason were frustrated by it." (Emphasis added.) HTR, 8/10/2017, p. 150. The court cannot conclude that counsel was deficient for failing to make an argument that was meritless.
Even if Pattis could have somehow argued state involvement with respect to the missing records and moved for a dismissal, the court still may not have dismissed the case because under Morales " [t]he trial court is not faced with the Hobson’s choice of either dismissing all criminal charges or denying any relief whatsoever to a criminal defendant who possibly has been prejudiced as a result of the negligence of the state. See Dowd v. Cook, 340 U.S. 206, 209-10, 71 S.Ct. 262, 263-64, 95 L.Ed. 215 (1951)." Rather, the trial court may fashion another remedy that appropriately ameliorates or offsets the prejudice that the defendant has suffered as a result of the unavailability of the evidence. See Gaines v. Manson, supra, 194 Conn. at 517-18, 481 A.2d 1084 (‘[p]roof of unconstitutional impairment of the right to appeal empowers a court to fashion an order conditionally discharging the petitioner or otherwise fashioning the appropriate relief, short of immediate release, to which the petitioner may be entitled’). In some extreme cases, the trial court may have no choice but to dismiss the charges against the defendant. In another case, however, the appropriate remedy may differ, depending on the circumstances and the degree and type of prejudice to the accused." Put simply, a trial court must decide each case depending on its own facts, assess the materiality of the unpreserved evidence and the degree of prejudice to the accused, and formulate a remedy that vindicates his or her rights. State v. Vaster, 99 Wash.2d 44, 52, 659 P.2d 528 (1983). The ultimate question for the trial court in such a case is: What remedy best serves the interests of justice? State v. Fain, 116 Idaho 82, 96-97, 774 P.2d 252, cert. denied, 493 U.S. 917, 110 S.Ct. 277, 107 L.Ed.2d 258 (1989); Commonwealth v. Henderson, supra, 411 Mass. at 310, 582 N.E.2d 496." State v. Morales, supra, 232 Conn. 729-30.
Indeed, from this court’s review of the entire criminal trial record, Pattis had several theories on how to rebut the state’s case, that were well rooted in reasonable professional judgment. He was able to introduce evidence on these theories and make the argument that he could make based on the evidentiary foundation he laid for his theories of defense, which he did well: 1. That this was really a civil dispute as he argued to the jury: " I think you can assess the appropriate value of the State’s case and you can decide for yourself whether this ought better to be a civil suit where Mr. Friend at least has the opportunity to cross examine the person pursuing him." CTR, 5/23/2013, p. 2. The petitioner had the authority to write the checks he wrote, pursuant to the consulting agreement and his position as comptroller when he took over Fred Auger’s position; 3. That some of the checks were written on the advice of counsel; 2. That the records were missing, and; 3. That David Bawarsky took them to frame the petitioner. This court cannot conclude from the evidence in the record, that trial counsel’s representation of the petitioner was deficient. Accordingly, the court therefore denies this claim.
V
CONCLUSION
For all of the foregoing reasons, the court denies the petition for a writ of habeas corpus. Judgment shall enter for the respondent.