Opinion
CV154007200S
07-24-2019
Kevin Nash v. Commissioner of Correction
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Bhatt, Tejas, J.
MEMORANDUM OF DECISION
Bhatt, J.
The petitioner was convicted, after jury trial, of several offenses and sentenced to sixteen years’ incarceration. He challenges the legality of his convictions, alleging that trial counsel rendered ineffective assistance of counsel during the plea bargaining and trial stages. This ineffective assistance is premised on several allegations of deficient performance, namely that counsel improperly withdrew, or allowed the trial court to withdraw, his guilty plea; introduced harmful evidence at trial despite the trial court granting a motion in limine in the petitioner’s favor; failed to call an alibi witness; and failed to move to suppress evidence.
For the reasons set forth below, the petition is DENIED.
I. FACTUAL BACKGROUND
Kevin Nash was arrested and charged with assault in the first degree in violation of General Statutes § 53a-59(a)(1), assault in the first degree in violation of General Statutes § 53a-59(a)(3), four counts of reckless endangerment in the first degree in violation of General Statutes § 53a-63(a), conspiracy to commit assault in the first degree in violation of General Statutes § § 53a-59(a)(5) and 53a-48, risk of injury to a child in violation of General Statutes § 53-21(a)(1) and carrying a pistol without a permit in violation of General Statutes § 29-35(a). A jury found him guilty of all these offenses except the conspiracy offense. The defendant was also subjected to an enhanced penalty for a violation of General Statutes § 53-202k and elected to be tried by the jury on that Part B information. The jury subsequently found him guilty and the trial court thereafter sentenced him to a total effective sentence of sixteen years’ incarceration. He appealed to our Appellate Court and our Supreme Court transferred the appeal. On appeal, he claimed "that (1) his convictions of intentional and reckless assault in the first degree, which were based on the same conduct, are legally inconsistent and therefore cannot stand, and (2) the evidence was insufficient to support his conviction of intentional assault in the first degree." State v. Nash, 316 Conn. 651, 654, 114 A.3d 128 (2015). Our Supreme Court affirmed his convictions. In its decision, it summarized the salient facts underlying his convictions as follows:
In or around 2005, Tyrell met Duane Brown while they were in high school together, and the two young men, both of whom are of Jamaican descent, became close friends. Brown spent a considerable amount of time at Tyrell’s home, where Tyrell resided with his mother, stepfather and three sisters. At some point in the spring of 2008, Brown moved in with the defendant and the defendant’s wife, and Brown and the defendant, who is also of Jamaican descent, began spending a lot of time together. Because Tyrell and the defendant did not get along well, Brown and Tyrell saw less of each other. At some point, Brown and the defendant learned that Tyrell was spreading a rumor that Brown and the defendant were in a homosexual relationship. On July 6, 2008, Brown called Tyrell and left him an angry voice mail message in which he berated Tyrell for spreading this rumor.
On the evening of July 10, 2008, the defendant asked Brown to show him where Tyrell lived. The defendant, who also was angry about the rumor, told Brown that they needed to "teach [Tyrell] a lesson." Brown obliged, and the two men drove to the Knotts’ house. Once there, they walked into the backyard to survey the premises. After returning home, the defendant retrieved a handgun from his bedroom and told Brown that they had to go back to the house and "shoot it up" to "give [Tyrell] a warning." Brown agreed and drove the defendant back to the house. When they arrived, Brown waited in the car while the defendant walked to the backyard and, from there, fired four or five shots into the second story of the Knotts’ three-story house.
At the time of the shooting, two of Tyrell’s sisters, Tyrikah and S, were in S’s second floor bedroom. One of the bullets penetrated through the bedroom wall and struck Tyrikah in the left buttock. Tyrikah was transported by ambulance to the hospital, where she was treated for the gunshot wound and released. After leaving the hospital, Tyrikah and her family provided the East Hartford police with information about the shooting. At that time, Tyrell told the police about the angry voice mail message that he had received from Brown a few days before the shooting.
That same day, several East Hartford police officers visited Brown at his apartment for the purpose of questioning him about his possible involvement in the shooting. After being permitted to enter the apartment, the police interviewed Brown and the defendant, who also was present at the time. Both men denied any knowledge of the shooting. Brown later accompanied the police to the station to give a written statement, in which he again denied knowledge of the shooting. A few days later, however, Brown gave the police a second written statement admitting his involvement in the crime and implicating the defendant as the shooter.(Footnotes omitted.) State v. Nash, supra, 316 Conn. 654-56.
In his amended petition filed on September 7, 2017, the petitioner alleged that his trial attorneys- Ryan Barry and Kevin O’Brien- were ineffective in their representation during the pretrial and trial stages. Specifically, the petitioner claimed that trial counsel: (1) withdrew the petitioner’s guilty plea on October 27, 2010, without the petitioner’s knowledge or consent; (2) advised the petitioner to withdraw his guilty plea on that date; (3) opened the door and elicited testimony about uncharged misconduct, which evidence had been the subject of a motion in limine; (4) failed to object to a Detective Turley’s testimony that the petitioner refused to speak to police; (5) improperly elicited the testimony in (4) above; (6) failed to move for a mistrial as a result of this improper testimony being in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); (7) failed to move for a mistrial as a result of this improper testimony being a violation of the court’s ruling on the petitioner’s motion in limine; (8) failed to call the petitioner’s ex-wife as an alibi witness; (9) failed to object to and move to strike the testimony of an Officer Nielson regarding a prior shooting which petitioner’s counsel has moved to preclude via a motion in limine; (10) failed to object to the introduction of shell casings from a prior incident, testimony about which was the subject of the petitioner’s motion in limine; (11) failed to object to testimony from Duane Brown which constituted uncharged misconduct which was the subject of the motion in limine; (12) elicited from Brown testimony that constituted uncharged misconduct which was the subject of the motion in limine; (13) entered into evidence Brown’s various statements to police which contained uncharged misconduct that was the subject of the motion in limine; and (14) failed to move to suppress gloves that were seized from the petitioner, which later tested positive for a particle of gunshot residue (GSR).
The respondent filed a return, leaving the petitioner to his burden of proof. The matter was tried before this court on November 7, 2018, when the court heard from both trial counsel, the petitioner and his wife Sheba Prescott-Nash. The parties submitted posttrial briefs addressing the claims raised in the petition.
II. FINDINGS OF FACT
The petitioner was tried before a jury over the course of several days in January and February 2011. The state’s theory of guilt was that the petitioner and his codefendant Duane Brown believed that the victim’s brother Tyrell Knott was spreading rumors that the petitioner and Brown were in a relationship. The petitioner decided to teach Knott a lesson and, along with Brown, drove to the Knotts’ residence where the petitioner fired four shots into the home. Tyrell’s sister Tyrikah was hit by the shots and injured as a result. In support of their burden of proof, the state presented evidence from the Knotts, several police officers and Brown. Brown gave several statements implicating himself and the petitioner. Gloves seized from the petitioner the morning after the shooting tested positive for GSR. The petitioner denied involvement and did not testify. The state introduced uncharged misconduct evidence through Brown that the petitioner possessed a gun prior to the shooting and it was the same gun used in the shooting.
The defense theory was that the petitioner was not involved and that it was Brown who had done the shooting. The defense challenged the police’s investigation into the case. The defense extensively cross examined Brown with his inconsistent statements, attempted to impeach him regarding the timeline he described, and spent a considerable amount of time questioning him about his motivation to testify falsely and the benefits he was receiving in exchange for his testimony. The defense also challenged the chain of custody of the gloves, the time lapse between the alleged incident and the swabbing of the gloves and the possibility of transfer of GSR from other sources, notably other officers at the scene and Brown himself. They attempted to introduce evidence at trial that gloves of the type seized from the petitioner were used by video game players, but the trial court sustained the state’s objection to that evidence and it was not admitted. The jury deliberated over two days before returning guilty verdicts on all but one count. Specific to the claims raised in the amended petition, the court finds the following facts.
A. WITHDRAWAL OF THE PETITIONER’S GUILTY PLEA
The petitioner’s family contacted Attorney Barry to take over as counsel from the Office of the Public Defender sometime in August 2009. Subsequently, Attorney Barry engaged in plea negotiations with the state. The petitioner indicated that he would plead guilty only if he were able to walk out of the courthouse but also conveyed to Attorney Barry that he would accept a sentence of up to five years. As a result of the plea negotiations, there was an offer indicated by the pretrial judge, Randolph, J., of thirty-five months to serve in exchange for a plea to conspiracy to commit assault in the first degree. There was no period of probation included because Attorney Barry had represented to the court and the state that a conviction for conspiracy to commit assault in the first degree would lead to the petitioner being deported. On January 28, 2010, the court withdrew that offer and set the matter down for another judicial pretrial. On April 13, 2010, the court indicated that based on the information made available to it during pretrial discussions, it would not be making an offer in this case and the matter was scheduled for trial on September 14, 2010. However, the court stated that if the parties were to come up with an agreement among themselves, the court would consider accepting any such agreement. On October 4, 2010, the petitioner appeared before Judge Randolph for a change in plea. The petitioner pled guilty to one count of conspiracy to commit assault in the first degree, in violation of General Statutes § 53a-59(a)(3), in exchange for a sentence of ten years, execution suspended after twenty-seven months and five years’ probation. The court appropriately canvassed the petitioner and accepted this plea contingent on two things: first, that this plea would result in the petitioner’s deportation and second, input from the victim of the shooting. The matter was continued to October 27, 2010, for sentencing, but a presentence investigation report was not ordered. The court stated that if it decided not to accept the plea after hearing from the victim, it would permit the petitioner the opportunity to withdraw his plea.
The parties agreed that the transcript for October 4, 2010, is incorrectly dated October 14, 2010.
On October 27, 2010, the court heard from Attorney Barry and the state regarding immigration consequences. The state informed the court that its research had revealed that this offense would result in deportation but the petitioner was entitled to a hearing prior to that. Attorney Barry stated that his consultation with an immigration attorney revealed that the petitioner would be removed from the United States. The court deemed that information "not helpful." The court also heard from Tyrikah Knott, the victim who suffered the gunshot wounds in the petitioner’s case. She urged the court to reject the sentence of twenty-seven months as too lenient and instead asked the court to consider a sentence in the range of five to ten years. Noting that the victim’s view would carry greater weight than the deportation issue, the court stated that it was going to allow the petitioner to withdraw his plea. Attorney Barry was made aware of the court’s decision to order the petitioner’s plea withdrawn and place the matter on the trial list for the first time on the record as it was occurring.
The petitioner did not speak during the entirety of the sentencing hearing. The petitioner was not asked by the court if he wished to withdraw his plea or whether he wanted to proceed to sentencing without an agreement. There was no discussion among the parties, at that time or any time thereafter, of an alternate resolution via plea agreement that would be acceptable to the court. Attorney Barry did not indicate to the court that the petitioner did not wish to withdraw his plea, nor did he object to withdrawal of the petitioner’s plea by the court. Conversely, there was no affirmative statement by either the petitioner or Attorney Barry that the petitioner did wish to withdraw his plea and proceed to trial.
Trial commenced in the petitioner’s case on January 14, 2011.
B. MOTION IN LIMINE
Attorney Kevin O’Brien started his representation of the petitioner after the withdrawal of the petitioner’s plea when it became clear that the case was headed for trial. He filed an appearance in this matter in addition to that of Attorney Barry on November 16, 2010. He and Attorney Barry jointly represented the petitioner and they discussed strategy together and spoke to the petitioner about the direction of the case and the decisions they were making.
On January 20, 2011, counsel filed a motion in limine seeking to preclude testimony about three things: 1) that the petitioner was arrested on July 11, 2008, on an outstanding warrant for a violation of protective order; 2) uncharged misconduct about shots fired near the petitioner’s residence on June 16, 2008, almost one month prior to the present incident and shell casings retrieved on that date which were compared to the shell casings retrieved in the present case; and 3) the petitioner’s refusal to speak with police officers. The trial court, Taylor, C.J., conducted a hearing on the motion in limine on January 21, 2011, and granted the first and third requests. The court indicated that the second request was premature and reserved ruling on that until the evidentiary portion of the trial. The first request in the motion in limine is not being challenged in the instant petition, so the court will only address the second and third.
I. June 16, 2008 Shooting
On January 25, 2011, Attorney O’Brien sought to introduce a fourteen-page police report authored by the lead detective, Detective Turley. By agreement of the parties, this report was redacted to remove information related to the June 16, 2008 shooting, which was the subject of the motion in limine filed. Counsel stated that the court had not yet ruled on the motion, but did not ask for a ruling at that time. The document was then entered into evidence.
On January 26, 2011, in response to a question by Attorney O’Brien, Detective Turley responded by beginning to reference the June 16, 2008 incident. This was immediately objected to by Attorney O’Brien and the jury was excused. Counsel explained that he was objecting on the basis that the response covered an area that was the subject of the motion in limine. There was no ruling on the matter, however, because counsel requested a recess for the petitioner and upon returning on the record, moved on to another area of questioning.
On January 28, 2011, Lieutenant Joseph Rainone of the Waterbury Police Department testified. He had previously worked at the state forensic laboratory in the ballistics section until October 2009, during which time he had conducted examinations of evidence in the petitioner’s case. In relation to the petitioner’s case, he received three shell casings and two spent bullets to examine for comparison. He identified the two bullets as having been fired from a .380 caliber weapon. He further identified the three shell casings as having been fired from a .380 caliber weapon. Subsequent to that examination, the East Hartford Police Department submitted two more pieces of evidence for him to examine. They were two cartridge casings. A comparison of the subsequently submitted casings to each other and to the evidence in the petitioner’s case was inconclusive, which he defined as "not enough to make an identification." There was no objection to the introduction of this evidence, but he was cross examined by Attorney O’Brien and further clarified that it was just as possible that the subsequent casings came from the same firearm as it was that they did not.
On January 28, 2011, the jury also heard from Duane Brown, the petitioner’s codefendant. Brown’s testimony identified the petitioner as the shooter. He also testified, without objection, that he had seen the petitioner with a gun prior to the incident in question when he and the petitioner both fired a gun into the air on a street near their house. He further testified that it was the same gun used by the petitioner during the shooting. He clarified on cross examination that the June shooting incident took place two to three weeks prior to the incident in question and did not occur on Columbus Street, where they lived, but on another street, the name of which he could not remember. He further testified on cross examination that he did not know where the petitioner obtained the gun or from whom, only that the petitioner told him that it was borrowed and that the petitioner had it for a while.
On February 3, 2011, Officer Nielsen was called to testify about an incident that occurred on June 16, 2008, in the area of the petitioner’s residence. Attorney O’Brien objected to this testimony on the ground that it was irrelevant and inconsistent with the testimony of Duane Brown. The trial court overruled the objection because the shell casings that Officer Nielsen retrieved were already in evidence. On cross examination, Officer Nielsen stated that police did not develop any suspects in the June 16, 2008 incident.
At the habeas trial, Attorney O’Brien testified that he sought to keep out this testimony because it was prejudicial to the defense but could not identify a reason why he did not object. He also could not recall whether the decision not to object to the testimony and introduction of the shell casings from the June 16, 2008 incident was strategic.
2. Petitioner’s Refusal to Cooperate with Police
Petitioner’s counsel also sought to preclude any testimony about or any comment on the petitioner’s refusal to cooperate with police prior to his arrest. This request was granted by the trial court. During examination of Detective Turley, Attorney O’Brien sought to establish that while the detective was interviewing Duane Brown, he had no information connecting the petitioner to the crime. He further explored the investigation conducted by Detective Turley. During cross examination, the following colloquy occurred:
Q: And other than getting the lab reports back, you did no further investigation?
A: I attempted to talk to Mr. Nash and he would not speak with us. He would not give us any information.
Counsel did not object to this testimony, nor did counsel seek a mistrial as a result of this testimony. Attorney O’Brien decided not to object to this because he did not want to highlight this testimony to the jury. There was no other testimony during the course of the trial commenting on the petitioner’s refusal to cooperate with the police. Neither counsel mentioned the petitioner’s refusal to cooperate with the police during their closing arguments to the jury.
C. ALIBI
On July 10, 2008, the petitioner’s wife, Sheba Prescott-Nash was living with the petitioner. She arrived home from work around 10:30 p.m. Both the petitioner and Duane Brown were present at the residence playing video games. She took a shower and went to bed. She and the petitioner slept in the same bed and she would wake up if the petitioner left the bed. She was awoken by the police entering her home, looking into various rooms. She did not give police consent to enter the house nor consent to search the house. She did not speak frequently to trial counsel but was available to testify during the trial and would have done so if asked. The petitioner testified that during the night of July 10, 2008, he was at home with Duane Brown, playing video games. When his wife came home, they watched a movie and some dance videos before going to bed. He was awoken by the police entering the home.
Attorney Barry testified that he had frequent communication with Ms. Prescott-Nash, from when he got hired, to the trial and after it. He did consider calling her as a witness but ultimately decided not to because she had provided conflicting information to him and he was concerned she would perjure herself.
D. DUANE BROWN’S TESTIMONY
Duane Brown testified at the underlying criminal trial over the course of two days. His testimony implicated the petitioner as the shooter in the case and placed himself at the scene in a car. He testified that the petitioner, dressed in blue jeans, a black hoodie and wearing black gloves, fired four shots into the Knotts’ residence. Shooting up the house was the petitioner’s idea as a way to teach Tyrell Knott a lesson for spreading rumors that the petitioner and Brown were in a relationship. He testified that he told the truth about his and the petitioner’s involvement in the shooting because he personally knew the innocent victim, Tyrikah Knott. He testified that the petitioner told him the only thing to worry about were the gloves that were seized by police when they arrested the petitioner. He further testified that when they were housed at the Hartford Correctional Center (HCC), the petitioner asked him to take the blame for the shooting, since Brown was a citizen and the petitioner was not. He also testified that he and the petitioner had fired a gun two to three weeks prior to the shooting on a street near their house and that he believed it was the same gun the petitioner used in the shooting.
Brown had been repeatedly interviewed by the police and gave a series of statements that were admitted as full exhibits by petitioner’s counsel. The first statement was given on July 11, 2008, in which Brown denied being involved, denied knowledge of who committed the crime and stated that he was at home the entire night. He further stated that he had not been at the Knotts’ residence for a few months. His second statement was given on July 14, 2018. In that statement, he implicated the petitioner as being the shooter and stated that the gun the petitioner used had been borrowed from someone. His third statement was given to police on August 4, 2008. This last statement was far more detailed than the previous statement. In this statement Brown relayed that the petitioner had anger issues and expressed a desire to kill someone. In this version, Brown did not participate in the incident and placed himself at home while the petitioner allegedly committed the shooting on his own, using Brown’s car to get to the Knotts’ residence. The next day, Brown picked the petitioner up from Manchester Superior Court and when they got home, the petitioner confessed to shooting four times into the Knotts’ residence. The petitioner also told Brown that he wore gloves during the shooting and that the police had seized the gun. Brown further told police that subsequent to both their arrests, they were both housed together at HCC where the petitioner approached him and asked him to take responsibility for the shooting because the petitioner was not a citizen. Brown also provided details about where the petitioner may have obtained the weapon and identified another individual known as "Gogs." He provided an address for Gogs’ residence and told police that he had seen Gogs and the petitioner with firearms and bullets at that residence.
All three statements were made full exhibits. The motion in limine filed by trial counsel did not cover Brown’s statements nor did counsel seek to have those statements redacted in any fashion. Attorney O’Brien extensively cross examined Brown about his motivation to testify on behalf of the state and his expectation of receiving favorable consideration if he were to cooperate with the prosecution. He was further impeached about the timeline of events that he provided, specifically how long it would take them to drive to and from their residence to the Knotts’ and whether that would fit within the timeframes provided by Brown. Attorney O’Brien questioned Brown in depth about the various statements he gave to police and the inconsistencies therein.
E. SEIZURE AND TESTING OF THE GLOVES
Upon interviewing the victim and her brother Tyrell Knott at the hospital the night of the shooting, police went to the residence of the petitioner and Duane Brown in order to interview them. By the time the officers arrived at the residence, approximately five hours had passed since the police were first notified of the shooting. Officers arrived at the location with their guns at the ready because they were concerned for officer safety. Upon gaining entry into the residence, they conducted a protective sweep of the apartment and then separated Brown and the petitioner. Detective Turley interviewed Brown, who consented to a swabbing of his hands for GSR. Detective Turley then went to the room where the petitioner was being detained and interviewed him. An Officer Castagna was present, who asked the petitioner if a pair of pants on the floor belonged to him. The petitioner affirmed that it did and also confirmed that it was the same pair he was wearing that night. At this time the petitioner was wearing boxer shorts so Officer Castagna intended to hand the pair of pants to the petitioner so that he may get dressed before leaving the residence. Prior to handing him the pants, Officer Castagna checked the pockets of the pants for weapons or contraband and found a pair of black cotton gloves. The gloves belonged to the petitioner who stated that he used them for playing video games. The gloves were seized for testing, which ultimately revealed one particle of GSR. Detective Turley could not recall whether Officer Castagna placed the gloves in a bag or put them into his own pocket to transport to the East Hartford Police Department. Officer Johnston, an evidence officer with the East Hartford Police Department, testified that the gloves were dropped off at the police department on July 15th, four days after they were seized from the petitioner.
Attorney O’Brien testified that he had identified a motion to suppress as one of the potential motions to be filed in this case, but did not ultimately file one. Neither he nor Attorney Barry could recall why they did not file the motion to suppress. Attorney Barry believed that the gloves were seized incident to the arrest warrant and was not concerned about the gloves being seized as part of a protective sweep. Attorney O’Brien was concerned about the chain of custody in this case and extensively cross examined the state’s witnesses about potential contamination and the time lapse between when the incident occurred and when the gloves were seized.
Additional facts will be discussed as necessary to address the petitioner’s specific claims.
III. LEGAL ANALYSIS
A. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
It is well established that a criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This right arises under the sixth and fourteenth amendments to the United States Constitution and article first, § 8, of the Connecticut Constitution. Horn v. Commissioner of Correction, 321 Conn. 767, 775, 138 A.3d 908 (2016). Thus, because "[a]n accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair" (internal quotation marks omitted); Kimmelman v. Morrison, 477 U.S. 365, 377, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 686.
I. Two-Part Test
To determine whether a defendant is entitled to a new trial due to a breakdown in the adversarial process caused by counsel’s inadequate representation at trial, courts apply the familiar two-part test adopted by the United States Supreme Court in Strickland . Skakel v. Commissioner of Correction, 329 Conn. 1, 30, 188 A.3d 1 (2018). A petitioner’s claim that trial 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 sixth amendment. 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." (Citations omitted; internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 30. Without a showing as to both components, it cannot be said that the conviction resulted from a breakdown in the adversary process, rendering the result unreliable. Strickland v. Washington, supra, 466 U.S. 687. However, "a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." Strickland v. Washington, supra, 697; see also State v. Brown, 279 Conn. 493, 525-26, 903 A.2d 169 (2006); Aillon v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989).
2. Performance Prong
The sixth amendment "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." (Internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 30-31, quoting Harrington v. Richter, 562 U.S. 86, 110, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). With respect to the first part of the Strickland test, "the proper standard for attorney performance is that of reasonably effective assistance." Strickland v. Washington, supra, 466 U.S. 687. "Consequently, to establish deficient performance, the petitioner must show that, considering all of the circumstances, counsel’s representation fell below an objective standard of reasonableness as measured by prevailing professional norms." Skakel v. Commissioner of Correction, supra, 31. "Moreover, strategic decisions of counsel, although not entirely immune from review, are entitled to substantial deference by the court." Id.
3. Prejudice Prong
When defense counsel’s performance is found to not be reasonable, a new trial is required only if there exists "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, supra, 466 U.S. 694. "The question, therefore, is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 38, quoting Strickland v. Washington, supra, 694-95.
However, "a [petitioner] need not show that counsel’s deficient conduct more likely than not altered the outcome of the case ... because the result of a criminal proceeding can be rendered unreliable, and thus the proceeding itself unfair, even if errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." (Citation omitted; internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 38, quoting Strickland v. Washington, supra, 466 U.S. 693-94. The petitioner must establish, instead, that the deficient performance gives rise to a loss of confidence in the verdict. Id. The habeas court’s inquiry must focus on the fundamental fairness of the proceeding and the court must be "concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Strickland v. Washington, supra, 696.
4. Discussion
The court will now consider each of the claims raised against the backdrop of the applicable law.
a. Counsel’s Failures with Regard to the Withdrawal of the Petitioner’s Plea
The petitioner first claims that Attorney Barry was ineffective in that he himself withdrew the petitioner’s plea without the petitioner’s consent or that he permitted the trial court to withdraw the petitioner’s plea without objection.
In Connecticut, the withdrawal of a guilty plea is governed by Practice Book § § 39-9, 39-26 through 39-28. Practice Book § 39-9 provides that the court "shall inform the defendant that a different sentence from that embodied in the plea agreement may be imposed on the receipt of new information or on sentencing by another judicial authority, but that if such a sentence is imposed, the defendant will be allowed to withdraw his or her plea in accordance with Sections 39-26 through 39-28." Further, in Connecticut, jeopardy does not attach upon the acceptance of a conditional guilty plea by the trial court. Pleas in cases where a presentence investigation has been ordered or the court is awaiting victim input are conditional pleas. State v. Thomas, 296 Conn. 375, 995 A.2d 65 (2010). This is because victims have a right to be heard before the court imposes sentence in a case. State v. Thomas, supra, 390-91. Here, the petitioner’s plea was explicitly conditional. It was conditioned not only on a determination of deportation consequences, but also on victim input. Judge Randolph explicitly stated that he would permit the petitioner to withdraw his plea if he determined, after listening to the victim, that the sentence was inappropriate.
The crux of the petitioner’s claim, of course, is that the court did not permit him the opportunity to decide whether he wished to withdraw his plea, or accept a sentence that was agreeable to the court. Further, it is clear that the court did not wish to engage in any further pretrial negotiations regarding a disposition of the case via a plea agreement. The petitioner is correct that our rules of practice require the court to give the petitioner the opportunity to withdraw the plea if he so chooses and that was not done here. Compare State v. Gregorio, 137 Conn.App. 104, 46 A.3d 1033, cert. denied, 307 Conn. 912, 53 A.3d 997 (2012), where the trial court withdrew the plea offer on the basis of new information and gave the defendant the option of accepting a new plea agreement or withdrawing his plea. Even in State v. Thomas, supra, 296 Conn. 375, the defendant was given the opportunity to have the trial judge articulate on the record what sentence she would impose after rejecting the plea agreement, but declined to take that opportunity. Here, the evidence establishes that the petitioner was not given any such opportunity and his plea was withdrawn by the court without comment from him or his lawyer on that subject.
However, the petitioner has not challenged the constitutionality of the actions of the trial court, thus this court has no occasion to decide the constitutionality of the withdrawal of the plea by that court. Instead, the petitioner claims that trial counsel was ineffective for withdrawing his plea or advising the petitioner to withdraw his plea. These allegations are easily dealt with: Attorney Barry did not withdraw the petitioner’s plea nor is there any evidence that Attorney Barry advised the petitioner to withdraw his plea. Indeed, the testimony establishes that the first time Attorney Barry became aware that the court would withdraw the petitioner’s plea was on the record as it was occurring. Thus, there was no time in which he could have advised the petitioner. In his posttrial brief, the petitioner modifies this claim to allege that Attorney Barry "was ineffective for failing to object to the trial court’s withdrawal of the guilty plea and failure to insist that the condition were met." While this is not raised in the amended petition, the court will address it nonetheless.
In Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), the United States Supreme Court held that, to satisfy the prejudice prong of the Strickland test when the ineffective advice of counsel has led a defendant to reject a plea offer, a habeas petitioner "must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed." Id., 164; Ebron v. Commissioner of Correction, 307 Conn. 342, 352, 53 A.3d 983 (2012), cert. denied sub nom., Arnone v. Ebron, 569 U.S. 913, 133 S.Ct. 1726, 185 L.Ed.2d 802 (2013). "To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time." Missouri v. Frye, 566 U.S. 134, 147, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Mahon v. Commissioner of Correction, 157 Conn.App. 246, 254, 116 A.3d 331, cert. denied, 317 Conn. 917, 117 A.3d 855 (2015).
In Connecticut, in order to prove prejudice, a petitioner "need establish only that (1) it is reasonably probable that, if not for counsel’s deficient performance, the petitioner would have accepted the plea offer, and (2) the trial judge would have conditionally accepted the plea agreement if it had been presented to the court." Ebron v. Commissioner of Correction, supra, 307 Conn. 357.
While the petitioner here did not reject a plea offer, the petitioner’s allegation presumes that, but for the deficient performance of trial counsel, he would have had an offer available to him to accept, which would have resulted in a sentence far less than the one he received after sentencing. Thus, the court will apply the prejudice requirements outlined above. This claim must fail, however, because even assuming that Attorney Barry’s performance was deficient, the petitioner cannot establish prejudice. There is no evidence that there was another offer made, or that the trial court would have accepted another agreement. In fact, the evidence demonstrates that the trial court was unwilling to engage in any further discussions regarding the petitioner’s case. Even assuming Attorney Barry objected to the withdrawal of the plea, the evidence establishes that Judge Randolph would not have imposed the agreed-upon sentence. The trial court is not required to engage in plea bargaining and the petitioner does not have a constitutional right to plea bargain; Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977); thus, if the court and the state were unwilling to negotiate, the only course available to the petitioner was to either enter a guilty plea without an agreement, leaving himself to the mercy of the trial court, or go to trial. Thus, he cannot establish that he was prejudiced in any way by any presumed failure by Attorney Barry.
b. Counsel’s Failures Relating to Uncharged Misconduct
Generally speaking, "evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused." (Citation omitted; internal quotation marks omitted.) State v. Campbell, 328 Conn. 444, 517, 180 A.3d 882 (2018). Prior misconduct evidence "cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior." (Citations omitted; internal quotation marks omitted.) State v. Collins, 299 Conn. 567, 582, 10 A.3d 1005 (2011); see Connecticut Code of Evidence § 4-5(b). However, such evidence is admissible "for some purposes that are distinct from the purpose of proving that a defendant has a bad character or criminal tendencies." State v. Campbell, supra, 328 Conn. 517. Specifically, it is admissible "to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony." (Internal quotation marks omitted.) Id.; Conn. Code Evid. § 4-5(b).
Here, the prior misconduct sought to be excluded was evidence that the petitioner fired a gun in the vicinity of his residence on June 16, 2008, and the introduction of shell casings from that shooting. At the time the motion was heard, all parties agreed that there was not yet any information tying the defendant to that shooting and thus, a ruling would be premature. As outlined above, petitioner’s counsel successfully excluded mention of that shooting from exhibits submitted to the jury and objected to testimony by officers that ventured into this area. There was no objection, however, to Brown’s testimony that he and the petitioner fired a weapon into the air on June 16, 2008, and that it was the same gun the petitioner used in the shooting of the Knotts’ home. There was also no objection to the introduction of the shell casings found at the scene through Lieutenant Rainone and his testimony about his examination comparing them to the shell casings from the Knott shooting. Counsel objected to an officer testifying about the June 16, 2008 shooting, but that objection was overruled because the shell casings were already in evidence. The jury also heard testimony from Brown that he observed the petitioner purchase a weapon from an individual named "Gogs." Although not covered by the motion in limine, the petitioner now claims that trial counsel were ineffective for not seeking to exclude that testimony.
Thus, the petitioner claims that trial counsel performed deficiently by not timely renewing their motion in limine or objecting to the introduction of the uncharged misconduct testimony from Brown or Lieutenant Rainone and this deficient performance prejudiced him. This court does not agree. Putting aside the well-established principle that "[a]n attorney’s line of questioning on examination of a witness clearly is tactical in nature" (internal quotation marks omitted); Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010); State v. Drakeford, 63 Conn.App. 419, 427, 777 A.2d 202 (2001), aff’d, 261 Conn. 420, 802 A.2d 844 (2002); it is not clear that the challenged testimony would be inadmissible. In fact, a review of our case law reveals that the testimony most likely would have been admissible as relevant uncharged misconduct. Thus, while the testimony may have been harmful to the petitioner, counsel’s failure to object to harmful but admissible evidence does not undermine the court’s confidence in the outcome of the case.
In State v. Campbell, supra, 328 Conn. 444, our Supreme Court was asked to conclude that the trial court improperly admitted testimony of a prior shooting alleged to have been committed by the defendant. The Court instead concluded that "[t]he prior misconduct evidence ... was relevant to establish means." Id., 519. Although means is not explicitly listed as an exception to the prohibition against prior misconduct evidence, our Supreme Court concluded that establishing that the defendant had the means to commit the crime is "one such alternative, appropriate purpose for which prior misconduct evidence may be admissible." Id. In Campbell, several witnesses testified that the defendant had used a silver gun with a white or pearl handle on the day of the shooting at issue and previously. Other witnesses testified that they had seen the defendant with the gun one month before the charged shooting. This evidence was deemed admissible. Our courts have repeatedly held that "[e]vidence indicating that an accused possessed an article with which the particular crime charged may have been accomplished is generally relevant to show that the accused had the means to commit the crime." (Citation omitted; internal quotation marks omitted.) State v. Pena, 301 Conn. 669, 675, 22 A.3d 611 (2011). In Pena, prior misconduct evidence that established that Pena possessed a black pistol approximately three months prior to the shooting. This was deemed relevant where the victim of the case at issue had died from a gunshot wound, and eyewitness testimony established that the defendant had displayed a black pistol during the incident. Our Supreme Court held that the prior misconduct evidence "supported the inference that the defendant had access to the type of weapon that was used to kill the victim." Id. See also State v. Rosario, 99 Conn.App. 92, 912 A.2d 1064 (holding that evidence that the defendant had the same gun, which was used to commit the charged crimes, in his possession on prior occasions was relevant to demonstrate that the defendant had the means to commit the crimes charged), cert. denied, 281 Conn. 925, 918 A.2d 276 (2007); State v. Stevenson, 53 Conn.App. 551, 733 A.2d 253 (witness’ testimony about her observations of defendant in possession of same type of handgun used to kill victim was relevant), cert. denied, 250 Conn. 917, 734 A.2d 990 (1999); State v. Sivri, 46 Conn.App. 578, 700 A.2d 96 (testimony about defendant’s possession of weapons that could have been used to commit the charged crime relevant to show that defendant had the means to commit the crime), cert. denied, 243 Conn. 938, 702 A.2d 644 (1997).
The next step for the trial court would have been to determine whether the testimony was unduly prejudicial. Relevant evidence "may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value." (Citation omitted; internal quotation marks omitted.) State v. Pena, supra, 301 Conn. 676. "The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury." (Internal quotation marks omitted.) State v. Rosario, supra, 99 Conn.App. 104. "The prejudicial impact of uncharged misconduct evidence is assessed in light of its relative viciousness in comparison with the charged conduct." (Internal quotation marks omitted.) State v. Campbell, supra, 328 Conn. 522-23. In Campbell, the Court upheld the admission of the uncharged misconduct because the uncharged misconduct of shooting into a home where the defendant believed the victim lived was less vicious than the charged conduct of shooting three victims in the head at close range. See State v. Collins, supra, 299 Conn. 588 ("uncharged misconduct evidence has been held not unduly prejudicial when the evidentiary substantiation of the vicious conduct, with which the defendant was charged, far outweighed, in severity, the character of his prior misconduct" [internal quotation marks omitted]). Given the two acts in question here, the petitioner cannot demonstrate a reasonable probability that, had counsel timely objected to the evidence, it would have been excluded. The uncharged misconduct is far less serious than the charged conduct. Thus, the petitioner cannot demonstrate a reasonable probability that the outcome of the trial would be different.
This analysis holds true for the testimony relating to the gun purchase from the individual "Gogs." It is irrelevant whether that testimony is characterized as "a simple improper admission of evidence or as an improper admission of prior misconduct, which is a specific type of evidence, [because] the analysis is the same." State v. Rosario, supra, 99 Conn.App. 100. Brown told the police and testified on the stand that he had seen the petitioner and "Gogs" at "Gogs" residence with firearms and believed the petitioner purchased a weapon from "Gogs."
The petitioner has not proven that this testimony would have been excluded by the trial court, had a timely objection been made. Applying the analysis discussed above, it would be well within the trial court’s discretion to permit the introduction of this evidence as it is evidence relevant to the petitioner’s means of committing the charged crime. This court cannot also conclude that assuming the trial court precluded this evidence, there is a reasonable probability that the outcome of the trial would have been different.
c. Counsel’s Failure with Regard to a Doyle Violation
The petitioner claims that trial counsel were ineffective for eliciting testimony that was in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and the trial court’s ruling on the petitioner’s motion in limine in that regard. The petitioner sought to exclude any testimony from witnesses and any comment by the state on the petitioner’s refusal to cooperate with police. The trial court granted this request and in accordance with that ruling, evidence relating to the petitioner’s failure to cooperate was appropriately redacted from Detective Turley’s report that was made a full exhibit. However, as indicated above, Detective Turley did state on cross examination that he attempted to speak to the petitioner, who refused to do so. The petitioner now claims that by eliciting this statement in violation of Doyle v. Ohio and the trial court’s ruling, and further by not moving for a mistrial, trial counsel were ineffective.
In Doyle v. Ohio, "the United States Supreme Court held that the impeachment of a defendant through evidence of his silence following his arrest and receipt of Miranda warnings violates due process." (Internal quotation marks omitted.) State v. Lockhart, 298 Conn. 537, 580, 4 A.3d 1176 (2010). "The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony." Wainwright v. Greenfield, 474 U.S. 284, 292, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986). Our Supreme Court has applied this principle to prevent the state from using a defendant’s "post-Miranda silence as affirmative proof of guilt ..." Id., 581. "Doyle applies whenever Miranda warnings have been given regardless of an arrest or custody." State v. Plourde, 208 Conn. 455, 466, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S.Ct. 847, 102 L.Ed.2d 979 (1989).
Here, the silence commented on was pre-Miranda . Trial counsel acknowledged as much and cited to State v. Angel T., 292 Conn. 262, 286 n.19, 973 A.2d 1207 (2009) in their motion in limine. In that case, our Supreme Court noted that "there is a division of authority as to whether the use of a defendant’s prearrest silence as substantive evidence of his guilt is constitutionally permissible under the fifth amendment"; id.; but did not decide that issue.
The United States Supreme Court granted certiorari to decide "whether the prosecution may use a defendant’s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief" in Salinas v. Texas, 570 U.S. 178, 183, 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013). In that case, "police officers investigating a shooting asked Salinas during the course of a voluntary interview whether shells recovered at the crime scene would match shells used by a gun to which he had access. Salinas, who until that moment had freely answered the officers’ questions, looked down, became tense, and stayed silent. After a few moments, the officers resumed the interview, asking different questions, which Salinas answered ... Salinas was tried for the shooting. At trial, he did not testify, and the government relied on his silence during the interview as evidence of his guilt." (Citation omitted.) United States v. Okatan, 728 F.3d 111, 118 (2d Cir. 2013). The Court framed the question as having two parts: first, whether the defendant’s silence constituted an assertion of the privilege against self-incrimination, and second, if it did, whether the state may use that assertion as part of its case in chief. Id.
The Court ultimately did not decide the issue because it found that Salinas "did not invoke the privilege during his interview ..." Salinas v. Texas, supra, 570 U.S. 183. An individual cannot invoke the fifth amendment privilege "by simply standing mute." Id., 181. Subsequently, in United States v. Okatan, supra, 728 F.3d 111, the Second Circuit was squarely confronted with the question of whether the state may rely on a defendant’s pre-Miranda silence as substantive evidence of guilt. Under the facts of that case, the court concluded that Okatan successfully asserted the privilege when he told the officer that he wanted a lawyer. The court then concluded that this assertion of the privilege may not be relied on by the state as part of its case in chief.
The facts of this case do not involve any sort of interrogation of the petitioner typically found in our caselaw. Thus, there is no question of selective silence in the course of an interview, nor is there an invocation of the right to counsel. The evidence establishes that Detective Turley attempted to speak to the petitioner and the petitioner refused to do so. "To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Hoffman v. United States, 341 U.S. 479, 486-87, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).
The Second Circuit’s decision, while not binding, carries "particularly persuasive weight in the resolution of issues of federal law." (Citation omitted; internal quotation marks omitted.) St. Juste v. Commissioner of Correction, 328 Conn. 198, 210, 177 A.3d 1144 (2018). It does appear, however, that there is some conflict in our cases on this subject. Compare State v. Angel T., supra, 292 Conn. 262, with State v. Lee-Riveras, 130 Conn.App. 607, 23 A.3d 1269, cert. denied, 302 Conn. 937, 28 A.3d 992 (2011). In State v. Lee-Riveras, which predated the decision in United States v. Okatan, our Appellate Court concluded that an officer’s testimony during trial that the defendant failed to provide an alibi when interviewed prior to his arrest was not a violation of the fifth amendment privilege where there was no evidence that the defendant was given Miranda warnings. Id., 614-15. The court acknowledged our Supreme Court’s statement in State v. Angel T., supra, but nonetheless concluded as it did, noting that neither the United States Supreme Court nor the Second Circuit had ruled on the issue. Id., 614 n.9. Further, our Appellate Court observed that the record was not clear whether the defendant had, in fact, invoked his fifth amendment privilege because the defendant did not express a desire at any point to not answer questions put to him, instead stating that he did not have any knowledge of the crime. Id.
Whether Lee-Riveras conflicts with State v. Angel T. or is no longer a correct statement of the law in light of United States v. Okatan is a question this court need not answer. That is because the petitioner cannot prove prejudice in this case. The comment he complains of was made in response to a question asked by defense counsel and the testimony is clear that defense counsel was not attempting to elicit this response. There is no further mention of, or comment on, the petitioner’s refusal to cooperate with police either during the evidentiary portion of the trial or during closing argument. It is entirely appropriate trial strategy for counsel to choose not to highlight one isolated harmful comment, and not seek a curative instruction. Objecting to the comment or seeking a curative instruction may only serve to alert the jury that the testimony holds some special significance and thus, should be focused on.
There is also no reasonable probability that the trial court would have granted a motion for mistrial, if made. "Although the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial ... and the whole proceedings are vitiated ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided." (Citation omitted; internal quotation marks omitted.) State v. Guilbert, 306 Conn. 218, 270, 49 A.3d 705 (2012).
Similarly, the petitioner cannot prove that this statement affected the jury’s verdict. Our Supreme Court has held that Doyle violations are subject to harmless error analysis. State v. Montgomery, 255 Conn. 694, 717-18, 759 A.2d 995 (2000). "A Doyle violation may, in a particular case, be so insignificant that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible question or comment upon a defendant’s silence following a Miranda warning. Under such circumstances, the state’s use of a defendant’s [post-Miranda ] silence does not constitute reversible error ... The [error] has similarly been [found to be harmless] where a prosecutor does not focus upon or highlight the defendant’s silence in his cross examination and closing remarks and where the prosecutor’s comments do not strike at the jugular of the defendant’s story ... The cases wherein the error has been found to be prejudicial disclose repetitive references to the defendant’s silence, reemphasis of the fact on closing argument, and extensive, strongly-worded argument suggesting a connection between the defendant’s silence and his guilt." (Citations omitted; internal quotation marks omitted.) State v. Daugaard, 231 Conn. 195, 211-13, 647 A.2d 342 (1994), cert. denied, 513 U.S. 1099, 115 S.Ct. 770, 130 L.Ed.2d 666 (1995). The single isolated comment in this case is not of the kind to lead to a reasonable probability that the outcome of the trial would have been different had it been excluded.
d. Counsel’s Failure to Call an Alibi Witness
The petitioner next claims that trial counsel were ineffective for not calling his wife, Sheba Prescott-Nash, as an alibi witness. The petitioner cannot prevail on this claim because Attorney Barry testified credibly that he considered calling her as a witness, but ultimately did not do so because she gave inconsistent statements to him and he was concerned that she would perjure herself on the stand. This is a reasonable tactical decision that is well within the purview of trial counsel. Consequently, there is no deficient performance in this regard.
e. Counsel’s Failure to Move to Suppress the Gloves
The petitioner next claims that trial counsel should have moved to suppress the gloves seized from the petitioner when police entered his home the morning after the shooting. Trial counsel considered filing a motion to suppress the gloves, but ultimately did not do so because they did not want to file motions that they did not deem to have merit. The petitioner has not provided this court with a theory of suppression in relation to the gloves and has not demonstrated that any such motion to suppress would have been granted by the trial court. Thus, this claim fails.
f. Counsel’s Offering of "Evidence Against Client Interest"
In his posttrial brief, the petitioner also claims that trial counsel were ineffective for "offering evidence against client interest." Although this claim is not specifically raised in the amended petition, the court will address it briefly. The crux of this claim appears to be that defense counsel admitted into evidence Brown’s three statements to police, which contained statements inculpating the petitioner and some uncharged misconduct. Since this court has already addressed the uncharged misconduct, it will now focus on the inculpatory statements.
There is no deficient performance. Most of the inculpatory statements were duplicative of Brown’s in-court testimony. Counsel’s strategy in cross examining Brown was to point out the various inconsistencies between the statements and his motivation for testifying against the petitioner. The statements were tools used by defense counsel to accomplish that goal. That is a reasonable strategy to employ in this case. This claim is also denied.
CONCLUSION
Thus, the court concludes that the petitioner has failed in his burden of proving ineffective assistance of counsel. Judgment shall enter denying the petition for a writ of habeas corpus.