Opinion
CV104003816S
11-20-2017
J'Veil Outing (Inmate #324279) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Vernon D. Oliver, J.
The petitioner, J'Veil Outing, initiated this petition for a writ of habeas corpus, claiming that his trial counsel and appellate counsel provided him ineffective legal representation. He also claims a due process violation and actual innocence. He seeks an order of this court vacating his conviction. The respondent denies the petitioner's claims and asserts the defense of procedural default. The court finds the issues for the respondent and denies the petition.
I
PROCEDURAL HISTORY
The petitioner stands convicted, after a jury trial, of one count of murder in violation of General Statutes § 53a-54a. The petitioner was represented at trial by then-attorney, now Judge Auden Grogins and Attorney Gregory Cerritelli. On May 26, 2006, the trial court, Licari, J., sentenced the petitioner to fifty years of imprisonment. The petitioner's convictions were affirmed on direct appeal. State v. Outing, 298 Conn. 34, 3 A.3d 1 (2010). The Supreme Court held that the jury could have reasonably found the following facts:
At approximately 6:50 p.m. on June 23, 2005, Nadine Crimley was walking in a northerly direction on Canal Street in New Haven, pushing her infant son in a stroller. To her left, she saw her brother, Ray Caple, standing on the porch of her residence at 150 Canal Street. As Crimley walked up the street, she saw the defendant, whom she previously had seen in the neighborhood, pass her on his bicycle. Another unidentified man rode a bicycle in front of the defendant. Crimley then turned her attention back to her son. When she heard a series of popping noises, she looked. up and saw the defendant, who was about ten feet away from her, firing a gun at the victim, Kevin Wright. The victim fell to the ground, and the defendant ran from the scene.
Caple, who had gone to high school with the defendant and had known him for three and one-half years, also watched the defendant as he rode his bicycle up Canal Street. As Caple watched, the defendant moved his right hand toward his waist. Caple believed that the defendant was reaching for a gun and was going to shoot him, but decided against doing so because Caple was holding his two year old daughter. Caple's mother and the victim were inside the residence at 150 Canal Street. Just after the defendant passed the residence on his bicycle, the victim exited through the back door of the residence, retrieved his bicycle from the backyard and walked with it in an easterly direction on Gregory Street toward its intersection with Canal Street. As Caple stood on the porch, he heard a gunshot and the sound of a bicycle falling to the ground. When he looked around the corner of the porch, he observed Crimley and her son standing very close to the defendant, and he also saw the defendant, who had dismounted from his bicycle, fire three more shots at the victim. The defendant then ran away, leaving his bicycle in the street. Caple ran to the victim, who was unresponsive. The victim died from a single gunshot wound to the chest.
Shortly, after 10 p.m. on the day of the shooting, Crimley gave a statement to the New Haven police in which she indicated that she had been able to get a good look at the shooter and would be able to identify him. On June 27, 2005, four days after the shooting, Stephen Coppola, a New Haven police detective, interviewed Crimley and presented her with an array of eight photographs, including one of the defendant. Crimley identified the defendant as the shooter and signed and dated the photographic array. Coppola tape-recorded his interview of Crimley. On the same day, Coppola also tape-recorded a statement from Caple and presented him with a second photographic array. Caple also identified the defendant as the shooter and signed and dated the photographic array.
Prior to trial, both Caple and Crimley recanted their statements to the police and their identifications of the defendant, claiming that they had been pressured by the police into giving the statements and making the identifications. Thereafter, the defendant filed motions to suppress the identification evidence, claiming that the evidence was unreliable and the product of an unnecessarily suggestive police identification procedure. At a hearing on the defendant's motions, both Crimley and Caple testified that they did not know who had killed the victim, that they had been pressured by the police to give false statements about the events surrounding the shooting, and that the police had pressured them to falsely identify the defendant as the shooter. Crimley and Caple acknowledged that they were extremely frightened about being called as witnesses for the state and identifying the defendant as the shooter. Coppola and Alfonso Vasquez, a New Haven police detective who had been present during Coppola's interviews of Crimley and Caple, testified that each of the witnesses had identified the defendant as the shooter by selecting the defendant's photograph from the photographic array spontaneously and without hesitation. The two detectives unequivocally denied that they had pressured or influenced either Crimley or Caple in any way.
At the conclusion of the detectives' testimony, the state maintained that the tape-recorded statements that Crimley and Caple had given to the police met the requirements for admissibility set forth in State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986). The trial court found that the testimony of Crimley and Caple that they had been pressured to give false statements and to falsely identify the defendant as the shooter was not credible. The court further concluded that the statements that they had given to the police met the Whelan admissibility requirements for purposes of the suppression hearing.
Thereafter, at a continuation of the suppression hearing, the defendant made an offer of proof regarding the testimony of his expert witness, Jennifer Dysart, concerning the reliability of eyewitness identifications. The state objected to the testimony, and the court sustained in part and overruled in part the state's objection to Dysart's proffered testimony. Dysart thereafter offered her opinion that the identification procedures used generally were not reliable. The trial court thereafter denied the defendant's motions to suppress the photographic identifications that had been made of the defendant by Crimley and Caple.
At trial, Crimley and Caple testified that the police had pressured them to give false statements and to falsely identify the defendant as the shooter. They further testified that the defendant definitely was not the shooter and that they did not know who had shot the victim. Upon the state's motion pursuant to Whelan, the trial court admitted redacted tape recordings of the statements Crimley and Caple had given to the police as prior inconsistent statements. The trial court also admitted as exhibits copies of the photographic arrays that Crimley and Caple had signed and dated. The defendant did not call Dysart as a witness at trial.(Footnotes omitted.) Id., 38-41.
The petitioner initiated the present habeas petition on October 5, 2010. In his fifth amended petition, filed on February 26, 2015, the petitioner set forth ineffective assistance of counsel claims as to trial counsel for the following alleged deficiencies: (1) failure to adequately prepare for and examine Nadine Crimley's testimony at the motion to suppress hearing; (2) failure to adequately prepare for and examine Ray Caple's testimony at the motion to suppress hearing; (3) failure to adequately prepare for and present the testimony of expert eyewitness identification witness, Jennifer Dysart, at the motion to suppress hearing; (4) failure to present Dysart's expert testimony during trial concerning the simultaneous presentation of photographs, police instructions to the eyewitnesses, double-blind administration of the identification procedure and the theory of unconscious transference despite the court's ruling that such testimony was permitted; (5) failure to seek a ruling as to whether Dysart would be permitted to testify as to five additional factors: the perpetrator's use of a disguise; witness' focus on perpetrator's use of a weapon; lack of correlation between the reliability of an identification and the witness' confidence in the identification; the effect of a witness' stress on his ability to make an accurate identification; and witness collaboration; (6) failure to present Dysart's expert testimony at trial to challenge the accuracy of the eyewitness thereby failing to preserve the issue for appeal; (7) failure to adequately prepare for and cross examine Crimley at trial; (8) failure to adequately prepare for and cross examine Caple at trial; (9) failure to adequately cross examine or impeach testimony by state witnesses at the motion to suppress hearing; (10) failure to adequately cross examine or impeach testimony by state witnesses at the trial; (11) failure to adequately investigate and present a third-party culpability defense supported by witness testimony; (12) failure to adequately investigate and present an alibi defense supported by witness testimony; (13) failure to properly investigate Caple's claim that he was drinking at St. Martin's at the time of the shooting and that he was unable to observe the shooting from his location; (14) failure to consult with and present testimony of a fingerprint forensic expert; (15) failure to properly investigate and present evidence in support of a third-party culpability defense based upon Antwan Baldwin's commission of the crime; (16) failure to follow up leads developed by their private investigator, Donald Light, concerning alibi and third-party culpability defense witnesses; (17) failure to properly investigate and present evidence in support of a third-party culpability defense based upon Darrell Mayes' commission of the crime; (18) failure to properly investigate the case and discover exculpatory evidence; (19) failure to adequately meet with or interview the petitioner to develop investigative leads to identify material exculpatory witnesses or develop a theory of defense; (20) failure to adequately locate, contact, interview or subpoena material witnesses; (21) failure to adequately locate, contact, interview or subpoena alibi witnesses; (22) failure to adequately locate, contact, interview or subpoena third-party culpability witnesses; (23) failure to present material witnesses whose relevant testimony could have established reasonable doubt in the petitioner's case; (24) failure to present available witnesses who could have impeached the eyewitness testimony, photo identifications and/or statements of Caple and Crimley that the petitioner shot the victim; (25) failure to adequately develop and present the petitioner's defense of third-party culpability; (26) failure to adequately develop and present the petitioner's alibi defense; (27) failure to adequately inform and advise the petitioner as to his right to testify in his defense; and (28) failure to prepare the petitioner to testify in his defense.
Additionally, the petitioner claims in his amended petition that his due process rights were violated by the trial court's denial of the petitioner's request to present surrebuttal evidence at trial, and that his appellate counsel was ineffective for failing to raise this claim on appeal. The petitioner further claims that he is actually innocent of the victim's murder. The petitioner also claims that the cumulative impact of trial counsel's errors deprived the petitioner of both his right to the effective assistance of counsel at trial and his due process rights, and the cumulative impact of appellate counsel's errors and omissions deprived the petitioner of his right to effective assistance of counsel in his appeal. The respondent filed a return on February 26, 2015, asserting the special defense of procedural default.
A trial was held on March 21, 2016 through March 24, 2016, May 9, 2016, May 10, 2016, July 27, 2016, and November 22, 2016. The petitioner called Judge Grogins, Attorney Cerritelli, Nakia Black-Geter, Nadine Crimley, Lyntina Cook, Antjuan Martin, Dijon Wiggins, Natasha Outing, Angelina Cook, Donald Light, Darrell Mayes, Shequana Giles, Eric Williams, Michael Udvardy, Attorney Richard Reeve, Dr. Steven Penrod, Attorney James Streeto and Patricia Helliger as witnesses. Both parties presented exhibits to the court.
II
DISCUSSION
A
Ineffective Assistance of Counsel
" A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States Constitution and by article first, § 8, of the Connecticut Constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
The petitioner has the burden to establish that " (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, at 466 U.S. 694.
" To satisfy the performance prong, a claimant must demonstrate that 'counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed . . . by the [s]ixth [a]mendment.'" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, at 466 U.S. 687. " It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a. certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the 'counsel' guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial." Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008). When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, at 466 U.S. 689.
Under the second prong of the test, the prejudice prong, the petitioner must show that " counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012). Ultimately, " [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, 466 U.S. 686.
1
Trial Counsel
a
Alibi Defense
The petitioner first alleges that his trial attorneys were ineffective because they failed to adequately prepare and present the petitioner's alibi defense. The petitioner failed to sustain his burden of establishing either deficient performance or prejudice with respect to this claim.
" [A]s a general rule, a habeas petitioner will be able to demonstrate that trial counsel's decisions were objectively unreasonable only if there [was] no . . . tactical justification for the course taken." (Internal quotation marks omitted.) Spearman v. Commissioner of Correction, 164 Conn.App. 530, 540-41, 138 A.3d 378, cert. denied, 321 Conn. 923, 138 A.3d 284 (2016). " [T]he presentation of testimonial evidence is a matter of trial strategy . . . Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of a witness and that the attorney . . . without adequate explanation . . . failed to call the witness at trial . . . Furthermore, [t]he failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense." (Citation omitted; internal quotation marks omitted.) Id., 541.
" In reviewing counsel's performance, we are required to be highly deferential to counsel's strategies and to indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Internal quotation marks omitted.) Spearman v. Commissioner of Correction, supra, 164 Conn.App. 564.
The parties stipulated to the following facts. On June 23, 2005, the night of the shooting, the New Haven Police Department received a call at 6:26 p.m. that Marcus Pouncy was shot on Newhall Street. Pouncy survived the shooting. At 6:55 p.m., the department received a call that the victim, Kevin Wright, was shot and killed near Canal and Gregory Streets. The department subsequently received additional calls concerning a fight near Dixwell Avenue and Harding Place at 7:10 p.m. and 7:23 p.m. At approximately 7:57 p.m. that night, New Haven police officers commenced a pursuit of Evret Alexander and another male on a scooter.
The evidence submitted indicates that the petitioner was arrested and charged with the victim's murder on June 27, 2005. The following day, the petitioner gave an alibi note to the police indicating that the petitioner was in the area on the day the incident took place and that he witnessed a fight between a few girls from the area and a scooter chase during the time the shooting occurred. The petitioner also listed several potential alibi witnesses who could verify his presence at the fight.
At the habeas trial, Judge Grogins testified that she investigated a potential alibi defense for the petitioner with her investigator, Donald Light. Pursuant to the information she received, Judge Grogins informed the petitioner that she would not put forth an alibi defense because she believed " it would do . . . more harm than good." Judge Grogins testified as to several reasons she believed the alibi defense was problematic, including the fact that, when he was arrested, the petitioner told the police that he could not remember who he was with on that day, and subsequently produced an alibi note the following morning. Additionally, in the alibi note, the petitioner discussed a bicycle purchase he had made that evening and Judge Grogins was concerned with this information because the shooter left his bicycle at the scene of the crime. Moreover, the alibi placed the petitioner near the shooting when it occurred, and the timing of the alibi incidents provided by the petitioner--the fights and the scooter chase--did not exclude the petitioner as the perpetrator in light of his close proximity. Judge Grogins further testified that alibi defenses have not been successful in her prior cases due to cross examination and credibility issues, and she believed that a weak alibi defense could detract from the stronger third-party culpability defenses in the petitioner's case.
Pursuant to the foregoing, it is clear that trial counsel investigated and analyzed the petitioner's potential alibi defense and made a reasonable tactical decision to not present the defense in light of the circumstances of the case. " [S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . ." (Internal quotation marks omitted.) Brian S. v. Commissioner of Correction, 172 Conn.App. 535, 540, 160 A.3d 1110, cert. denied, 326 Conn. 904, 163 A.3d 1204 (2017); see also Johnson v. Commissioner of Correction, 166 Conn.App. 95, 140, 140 A.3d 1087 (2016), cert. granted, 324 Conn. 904, 152 A.3d 545 (2017) (finding no deficient performance where counsel described strategic reasons underlying decision not to present alibi evidence). As a result, the court finds that trial counsel's performance relating to the alibi defense was not deficient.
Moreover, even if trial counsel's performance had been deficient, the petitioner failed to establish that he was prejudiced by trial counsel's failure to present the alibi defense. Pursuant to the stipulated facts, the shooting occurred at 6:55 p.m., the fight was reported at 7:10 p.m. and 7:23 p.m., and the scooter chase occurred at 7:57 p.m. Thus the evidence in support of the petitioner's alibi defense places the petitioner near the scene of the crime and does not pinpoint the petitioner's location when the shooting occurred. Consequently, the petitioner failed to undermine this court's confidence in the outcome of the criminal jury trial by demonstrating that there exists a reasonable probability that the outcome of the proceedings would have been different had trial counsel presented the alibi defense. As a result, this claim must be denied.
b
Neighborhood Evidence
The petitioner also alleges that his trial attorneys were ineffective for failing to introduce evidence explaining the neighborhood demarcations and rivalries at the petitioner's criminal trial. The petitioner also failed to meet his burden as to this claim.
The evidence presented indicates that the petitioner informed trial counsel that the police theorized that the victim's death in the Tre section of New Haven was in retaliation for the shooting of Marcus Pouncy earlier that day in the R2 neighborhood. At the habeas trial, Antjuan Martin testified that Harding Place, where the petitioner resided, and R2, where Pouncy resided, are rival neighborhoods. The petitioner claims that had this evidence been presented at his criminal trial, it would have demonstrated that the petitioner had no reason to exact revenge on behalf of Pouncy.
Although the record reveals that the petitioner informed trial counsel of the Pouncy retaliation theory, there is no evidence that he supplied either attorney with the neighborhood rivalry information. " The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information." Strickland v. Washington, supra, 466 U.S. 691. Judge Grogins' testimony at the habeas trial indicated that she had some general awareness of the different neighborhoods, but there was no testimony or evidence that the petitioner informed either attorney of the neighborhood rivalries. Furthermore, even if the petitioner had presented this information to counsel, the omission of this evidence at trial does not constitute an error so serious that counsel was not functioning as the counsel guaranteed by the sixth amendment. The court finds that trial counsel's failure to present evidence regarding the neighborhood demarcations and rivalries did not constitute deficient performance.
Moreover, even if trial counsel's performance had been deficient, the petitioner was not prejudiced by this omission. Although counsel did not present evidence regarding the neighborhood rivalries, they presented evidence supporting third-party culpability defenses which indicated that Antwan Baldwin and/or Darrell Mayes committed the murder. The petitioner failed to demonstrate that there exists a reasonable probability that the outcome of the proceedings would have been different had trial counsel presented the neighborhood rivalry evidence. Therefore, this claim must fail.
c
Eyewitness Identifications
The petitioner also alleges that his trial attorneys were ineffective because they failed to adequately and properly investigate and rebut the eyewitness identifications of the petitioner as the shooter. These claims must also fail.
The following additional facts are relevant to the resolution of these claims. Crimley was initially interviewed by the police after the shooting on June 23, 2005, and indicated that she got a good look at the shooter and would be able to identify him. Four days later, on June 27, 2005, both Crimley and Caple were interviewed by the police and both parties identified the petitioner as the perpetrator from a photo array.
Prior to trial, Caple and Crimley recanted their statements to the police and their identifications of the defendant, claiming that they had been pressured by the police into giving the statements and making the identifications. Thereafter, Judge Grogins filed a motion to suppress the eyewitness identifications. At the hearing, Caple testified that he had been threatened and coerced by the police to identify the petitioner, and that he did not know who shot the victim. Crimley testified at the suppression hearing that she did not get a good look at the shooter's face and that she was pressured by the police to make an identification.
Judge Grogins then filed an offer of proof seeking the admissibility of expert testimony on the eyewitness identification process. Jennifer Dysart testified at a proffer hearing in support of Judge Grogins' offer of proof, identifying nine factors which reduce the accuracy of eyewitness identification: instructional bias, double blind presentation, disguise effect or change of appearance, unconscious transference, weapon focus effect, lack of correlation between an eyewitness' confidence in picking out the perpetrator from a photograph and the accuracy of the identification, stress of heightened arousal, witness collusion and the difference in accuracy between a sequential lineup versus a photo array. The trial court ruled that Dysart could testify as an expert witness at the suppression hearing as to the following four factors: instructional bias, simultaneous presentation, double blind presentation and unconscious transference. The court further ruled that Dysart could not testify concerning the remaining five factors, citing State v. Kemp, 199 Conn. 473, 507 A.2d 1387 (1986) for the proposition that the excluded factors were within the common knowledge of the average juror. The trial court indicated that its ruling concerning Dysart's testimony only applied to the suppression hearing.
Dysart testified at the suppression hearing regarding the four factors as they relate to false identifications. The trial court subsequently denied counsel's motion to suppress. On March 8, 2006, during a break from jury selection, Judge Grogins made an oral motion seeking an order from the court allowing Dysart to testify as an expert at the criminal trial as to the four factors she was permitted to testify to at the suppression hearing. The court granted the oral motion absent objection. Judge Grogins did not make a motion as to the five factors that the court had deemed inadmissible at the suppression hearing.
i
Crimley's Testimony and Caple's Testimony
The petitioner first alleges that his trial attorneys were ineffective for failing to interview Caple and Crimley prior to trial, and for failing to adequately undermine the reliability of their respective identifications. The petitioner failed to sustain his burden of establishing either deficient performance or prejudice with respect to these claims.
" [T]he presentation of testimonial evidence is a matter of trial strategy . . ." (Citation omitted; internal quotation marks omitted.) Bowens v. Commissioner of Correction, 104 Conn.App. 738, 744, 936 A.2d 653 (2007), cert. denied, 286 Conn. 905, 944 A.2d 978 (2008). " The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducted it . . . The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." Norton v. Commissioner of Correction, 132 Conn.App. 850, 858-59, 33 A.3d 819, cert. denied, 303 Conn. 936, 36 A.3d 695 (2012).
" [C]ross examination is a sharp two-edged sword and more criminal cases are won by not cross examining adverse witnesses, or by a very selective and limited cross examination of such witnesses, than are ever won by demolishing a witness on cross examination . . . The decision whether to cross examine a witness is peculiarly one for defense counsel and his judgment should be entitled to great respect by the court." (Internal quotation marks omitted.) State v. Clark, 170 Conn. 273, 287-88, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976).
In other words, " '[a]n attorney's line of questioning of a witness is a tactical decision. [As such, this] court will not, in hindsight, second-guess counsel's trial strategy.' . . . Antonio A. v. Commissioner of Correction, [148 Conn.App. 825, 832, 87 A.3d 600 (2014)]; see also Mitchell v. Commissioner of Correction, 109 Conn.App. 758, 769-70, 953 A.2d 685 (after reviewing record from both criminal and habeas proceedings, Appellate Court agreed that examination of witnesses was exercise of sound trial strategy that would not be second-guessed), cert. denied, 289 Conn. 950, 961 A.2d 417 (2008)." Hilton v. Commissioner of Correction, 161 Conn.App. 58, 71, 127 A.3d 1011 (2015). " The fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance." (Citation omitted; 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).
At the habeas trial, Judge Grogins testified that when she learned that Crimley and Caple had identified the petitioner as the shooter, she instructed her investigator, Donald Light, to speak with them. Light testified that he made efforts to locate Crimley and Caple, but was unable to speak with them. Judge Grogins testified that she first spoke with Crimley and Caple at the suppression hearing. She further testified that her defense strategy at the petitioner's criminal trial focused on the fact that the identifications were coerced, not that they were mistaken.
Through testimony by his attorney expert, Attorney Richard Reeve, the petitioner pointed to several discrepancies in Crimley's statements and Caple's statement, including whether the assailant was wearing a hat, how close Crimley was to the victim when he was shot, whether a second party on a bicycle was present when the shooting occurred and whether the assailant was wearing a sleeveless top or a shirt with sleeves. Attorney Reeve testified that pointing out these inconsistencies on cross examination would not have been incompatible with counsel's claim that the identifications were the product of coercion. The transcript shows that Judge Grogins' cross examinations of Crimley and Caple at the criminal trial focused on bolstering the coerced confession claim, rather than attacking the reliability of the initial identifications.
Pursuant to the foregoing, the court finds that trial counsel's performance was not deficient. Trial counsel articulated at length the tactical reasoning behind her method of investigation and examination of the two eyewitnesses in the petitioner's criminal case, and this court will not, in hindsight, second-guess counsel's trial strategy. The court finds that trial counsel's performance fell within the wide range of reasonable professional assistance.
Moreover, the petitioner failed to prove that he was prejudiced by trial counsel's performance. The petitioner has not proven that there is a reasonable probability that the outcome of the proceedings would have been different had trial counsel further investigated or set forth the inconsistencies in the eyewitness statements. There is no evidence that offering proof that the identifications were honestly mistaken in addition to being coerced and deliberately false would have changed the outcome of the proceedings. See State v. Shabazz, 246 Conn. 746, 764, 719 A.2d 440 (1998) (noting " [a]lthough it is true that a defendant is legally permitted to raise inconsistent defenses, when he does so, a jury, applying its common sense, is entitled to view with skepticism the pervasiveness of all of the defenses"), cert. denied, 525 U.S. 1179, 119 S.Ct. 1116, 143 L.Ed.2d 111 (1999). As a result, these claims must fail.
ii
Eyewitness Identification Expert
The petitioner also claims that his trial attorneys were ineffective for failing to offer testimony at the trial by an eyewitness identification expert. The petitioner failed to sustain his burden of establishing either deficient performance or prejudice with respect to this claim.
" [T]here is no per se rule that requires a trial attorney to seek out an expert witness. Where trial counsel has consulted with such experts, however, but made the tactical decision not to produce them at trial, such decisions properly may be considered strategic choices. Furthermore, trial counsel is entitled to make strategic choices in preparation for trial." (Internal quotation marks omitted.) Brian S. v. Commissioner of Correction, supra, 172 Conn.App. 542. The decision to call any witness, including an expert witness, " does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense." (Internal quotation marks omitted.) Eastwood v. Commissioner of Correction, 114 Conn.App. 471, 481, 969 A.2d 860, cert. denied, 292 Conn. 918, 973 A.2d 1275 (2009); see also State v. Padua, 273 Conn. 138, 149, 869 A.2d 192 (2005) (expert testimony required only when question goes beyond field of ordinary knowledge and experience of trier of fact).
At the habeas trial, Judge Grogins testified that she ultimately did not call Dysart at the petitioner's criminal trial because the factors that she would testify to apply to mistaken identifications and counsel's theory of defense involved coerced identifications. Judge Grogins further explained that her theory at trial was that the eyewitnesses identified the wrong person due to pressure by the police officers, not because they were mistaken as to the perpetrator's identity. Judge Grogins indicated that Dysart's testimony would have been incompatible with her entire theory and argument at trial. Dr. Steven Penrod testified at the habeas trial as the petitioner's eyewitness identification expert and he explained how various factors can impair an eyewitness' ability to observe an event or person and store that information in memory.
The court finds that the petitioner failed to establish that trial counsel's performance was deficient. Judge Grogin's testimony indicated that she made the tactical decision not to produce an eyewitness identification expert at trial, and her decision to not pursue a theory of mistaken identity was reasonable and strategic under the circumstances. Therefore, trial counsel's decision not to call an eyewitness identification expert falls within the wide range of reasonable professional assistance.
Furthermore, even if the court had found that trial counsel's performance was deficient, the petitioner failed to prove that he was prejudiced by counsel's failure to call an eyewitness identification expert. The eyewitnesses recanted their initial identifications of the petitioner prior to trial and attributed the false identifications to police coercion. At the criminal trial, both Crimley and Caple testified that they did not know who shot the victim. The petitioner has not proven that there is a reasonable probability that testimony by an eyewitness identification expert explaining the various factors that affect how eyewitnesses observe and remember information would have changed the outcome of the proceedings in light of these circumstances. Therefore, this claim must also fail.
c
Failure to Preserve Dysart's Testimony
The petitioner further alleges that his trial attorneys were ineffective for failing to adequately and properly preserve the record concerning Dysart's trial testimony. Specifically, the petitioner claims that counsel was ineffective for failing to obtain a ruling at trial as to the admissibility of the five eyewitness identification factors that the judge precluded during the suppression hearing. The petitioner failed to sustain his burden of establishing either deficient performance or prejudice with respect to this claim.
The following additional facts are relevant to the resolution to this claim. Trial counsel made an oral motion during jury selection in the petitioner's criminal trial, requesting the court to rule on whether Dysart could testify at trial as to the four factors that she was permitted to testify to at the suppression hearing. Counsel did not renew the request that Dysart be permitted to testify at trial to the remaining five factors. On appeal, the petitioner claimed that the trial court improperly precluded him from introducing Dysart's testimony regarding the additional five factors, and the Supreme Court held that this issue was not preserved for appellate review. State v. Outing, supra, 298 Conn. 42.
Judge Grogins testified at the habeas trial that she did not renew her request that Dysart be permitted to testify at the criminal trial as to the other five factors because Dysart's testimony was irrelevant to her coerced identification theory. Judge Grogins also testified that she was very familiar with eyewitness identification case law at that time because she had been counsel on one of the first cases in New Haven where an eyewitness expert had been allowed to testify. Judge Grogins further testified that several informal conversations in chambers with the trial judge, Judge Licari, impacted how she presented witness testimony because he indicated that much of the proffered expert testimony regarding eyewitness identification was within the common knowledge of the jury, and therefore inadmissible under State v. Kemp, supra, 199 Conn. 473.
At the time of the petitioner's trial in 2006, experts on eyewitness identifications were not generally admissible at trial and were in fact disfavored by our courts. See State v. McClendon, 248 Conn. 572, 730 A.2d 1107 (1999); State v. Kemp, supra, 199 Conn, 473. Pursuant to the case law at that time, the reliability of eyewitness identifications was generally within the knowledge of jurors and expert testimony would not generally assist jurors in determining the issue of identification. Subsequently, in 2012, the Supreme Court, in State v. Guilbert, 306 Conn. 218, 49 A.3d 705 (2012), reassessed the science of eyewitness identifications and reversed its holdings in Kemp and McClendon, concluding that the decisions " were out of step with the widespread judicial recognition that eyewitness identifications are potentially unreliable in a variety of ways unknown to the average juror." Id., 234.
Despite the change in the law since 2006, when the petitioner's case was tried, the reasonableness of counsel's conduct for purposes of determining if counsel's performance was deficient must be evaluated based on the state of the law at the time the trial was conducted as indicated by our Supreme Court in Strickland v. Washington, supra, 466 U.S. 668. " 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." Id., 689. The Supreme Court has stated that attorneys are not required to anticipate changes in the law or seek to change existing law in order to provide effective assistance in a criminal trial. See Ledbetter v. Commissioner of Correction, supra, 275 Conn. 462 (noting " reasonably effective representation cannot and does not include a requirement to make arguments based on predictions of how the law may develop." [internal quotation marks omitted]).
Accordingly, the petitioner has not proven that trial counsel's failure to preserve the record as to Dysart's testimony on the additional five factors that the trial court had deemed inadmissible at the motion to suppress was deficient in light of trial counsel's defense strategy and the view of the law on the admissibility of expert testimony in 2006. In addition, given the status of the science of expert testimony and that the law disfavored expert testimony at the time of the petitioner's trial, the petitioner has not proven that had trial counsel preserved the record as to the issue of the five additional factors, the outcome of the proceedings would have been different. As a result, this claim must also fail.
2
Appellate Counsel
The petitioner alleges that his appellate counsel, Attorney Streeto, was ineffective because he failed to raise the trial court's denial of the petitioner's request to present surrebuttal evidence on appeal. The petitioner failed to sustain his burden of establishing either deficient performance or prejudice with respect to this claim.
To succeed on a claim of ineffective assistance of appellate counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, supra, 466 U.S. 687. " The first part of the Strickland analysis requires the petitioner to establish that appellate counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . [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 . . . The right to counsel is not the right to perfect representation . . . While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions . . . Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues . . . Most cases present only one, two, or three significant questions . . . The effect of adding weak arguments will be to dilute the force of the stronger ones . . . Our Supreme Court has stated that [i]t is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment . . . Finally, [if the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation." (Internal quotation marks omitted.) Bailey v. Commissioner of Correction, 107 Conn.App. 362, 366-67, 947 A.2d 2, cert. denied, 287 Conn. 922, 951 A.2d 568 (2008).
" In order to satisfy the prejudice prong, the petitioner must demonstrate that there is a reasonable probability that, but for appellate counsel's failure to raise the issue on appeal, the petitioner would have prevailed in his direct appeal, i.e., reversal of his conviction or granting of a new trial . . . [T]o determine whether a habeas petitioner had a reasonable probability of prevailing on appeal, a reviewing court necessarily analyzes the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm . . ." Santaniello v. Commissioner of Correction, 152 Conn.App. 583, 588, 99 A.3d 1195, cert. denied, 314 Conn. 937, 102 A.3d 1115 (2014).
The following additional facts are relevant to the resolution of this claim. At the petitioner's criminal trial, Shaniah Outlaw testified that she overheard Darrell Mayes confess to the shooting. The state subsequently called Detective Alfonso Vasquez as a rebuttal witness, and he testified that when he interviewed Outlaw, she denied ever telling anyone that she overheard Mayes confess. In light of Detective Vasquez's testimony, trial counsel requested an opportunity to present surrebuttal evidence through the testimony of Allison Carter, Outlaw's mother, who trial counsel indicated would testify that she was present when her daughter told Detective Vasquez that she overheard Mayes confess.
In denying trial counsel's request, the trial court indicated that surrebuttal is a matter within the discretion of the court, and cited the following language from State v. Boykin, 74 Conn.App. 679, 691-92, 813 A.2d 143, cert. denied, 263 Conn. 901, 819 A.2d 837 (2003): " Rebuttal evidence is that which is offered to meet new matters raised in [a defendant's case], to contradict prior testimony and to impeach or rehabilitate witnesses . . . Surrebuttal evidence is that which is offered to meet evidence raised in rebuttal. [O]nly evidence to explain away new facts brought forward by the proponent in rebuttal . . . is properly admissible [in surrebuttal] . . . [Our Supreme Court has] previously stated that there is no constitutional right to present surrebuttal evidence . . . The presentation of surrebuttal evidence is a matter resting squarely within the discretion of the trial court . . . The defendant must demonstrate some compelling circumstance and the proffered evidence must be of such importance that its omission puts in doubt the achievement of a just result."
At the habeas trial, Attorney Streeto testified that he was limited to a forty-five page brief in the petitioner's appeal, and he concluded that he did not have the space to raise all seven issues that he initially identified. He further testified that he analyzed the strength of the arguments and made the tactical decision to exclude the surrebuttal evidence issue because it was one of the weaker issues and to brief it would have adversely impacted the analysis he required for the stronger claims. Attorney Streeto further testified that he was aware that the eyewitness identification issue was not properly preserved, but he believed that the court would address the matter because it was a novel and cutting-edge issue in the law at the time.
The court finds that the petitioner failed to prove that Attorney Streeto's performance was deficient. Pursuant to the foregoing, Attorney Streeto made a strategic decision to not raise the surrebuttal issue on appeal, and this decision constituted sound trial strategy that falls within the wide range of reasonable professional assistance. Furthermore, the petitioner failed to establish prejudice by demonstrating that had appellate counsel raised this issue on appeal, the petitioner would have prevailed in his direct appeal. As a result, this claim must also fail.
B
Actual Innocence
The petitioner also claims that there is clear and convincing evidence that he is actually innocent of the criminal charges. The petitioner failed to meet his burden as to this claim.
To prove actual innocence the petitioner must be able " to show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could [find] proof of guilt beyond a reasonable doubt." (Internal quotation marks omitted.) Williams v. Commissioner of Correction, 240 Conn. 547, 548, 692 A.2d 1231 (1997). " Actual innocence, also referred to as factual innocence . . . is different than legal innocence. Actual innocence is not demonstrated merely by showing that there was insufficient evidence to prove guilt beyond a reasonable doubt . . . Rather, actual innocence is demonstrated by affirmative proof that the petitioner did not commit the crime . . .
" [T]he proper standard for evaluating a freestanding claim of actual innocence is twofold. First, the petitioner must establish by clear and convincing evidence that taking into account all of the evidence both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial he is actually innocent of the crime of which he stands convicted, Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable factfinder would find the petitioner guilty of the crime . . .
" Our Supreme Court recently clarified the actual innocence standard in Gould [ v. Commissioner of Correction, 301 Conn. 544, 22 A.3d 1196 (2011)] . . . In Gould, the habeas court found that the petitioner was entitled to relief on his actual innocence claim after the recantations of testimony that was the sole evidence of [the petitioner's] guilt . . . On appeal, our Supreme Court held that the clear and convincing burden . . . requires more than casting doubt on evidence presented at trial and the burden requires the petitioner to demonstrate actual innocence through affirmative evidence that the petitioner did not commit the crime . . . Recantations of inculpatory criminal, trial testimony undoubtedly are relevant to a determination of actual innocence. But evidence of that nature must be accompanied by affirmative evidence of innocence to meet [the] standard of clear and convincing evidence of actual innocence . . .
" Affirmative proof of actual innocence is that which might tend to establish that the petitioner could not have committed the crime even though it is unknown who committed the crime, that a third-party committed the crime or that no crime actually occurred . . . Clear and convincing proof of actual innocence does not, however, require the petitioner to establish that his or her guilt is a factual impossibility . . .
" With respect to the first component of the petitioner's burden, namely, the factual finding of actual innocence by clear and convincing evidence . . . appropriate scope of review is whether, after an independent and scrupulous examination of the entire record, we are convinced that the finding of the habeas court that the petitioner is actually innocent is supported by substantial evidence. This is the same scope of review that we apply to the ultimate finding by a trial court regarding whether a confession in a criminal case is voluntary . . . The weight of the interests at stake in the factual determination by the habeas court in the present case compels the same heightened level of scrutiny . . .
" [O]ur Supreme Court has deemed the issue of whether a habeas petitioner must support his claim of actual innocence with newly discovered evidence an open question in our habeas jurisprudence . . . This court, nevertheless, has held that a claim of actual innocence must be based on newly discovered evidence . . . [A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered . . . This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence." (Citations omitted; internal quotation marks omitted; emphasis added.) Jackson v. Commissioner of Correction, 149 Conn.App. 681, 706-08, 89 A.3d 426 (2014), appeal dismissed, 321 Conn. 765, 138 A.3d 278 (2016).
In his post-trial brief, petitioner's counsel argues that because the Connecticut Supreme Court has not yet determined whether affirmative evidence of innocence in an actual innocence claim must be newly discovered, clear and convicting evidence that the petitioner is actually innocent, although not newly discovered, is sufficient. Petitioner's counsel acknowledges, however, that the Appellate Court has consistently required that affirmative proof of actual innocence be newly discovered. This court is bound by the decisions of the Appellate Court. The petitioner has not presented newly discovered evidence in support of his actual innocence claim. Even assuming arguendo that the evidence in support of an actual innocence claim was not required to be newly discovered, the court finds that the " mosaic of evidence" presented by the petitioner does not constitute affirmative proof of factual innocence as it does not tend to establish that the petitioner could not have committed the crime as it relates to the other evidence in the case. Therefore, this claim must also fail.
C
Additional Claims
In his petition, the petitioner also asserted a number of additional ineffective assistance claims relating to alleged failures in trial counsel's representation at the petitioner's criminal trial, a claim for a due process violation, and claims regarding the cumulative impact of the errors in the representation by both trial counsel and appellate counsel. These claims were not addressed in the petitioner's lengthy post-trial brief. The respondent's post-trial brief does not address those additional claims as the respondent deems them to be abandoned by the petitioner. The petitioner's reply brief does not dispute the respondent's assertion.
The courts of this state have held that " [i]t is not the responsibility of the trial judge, without some specific request from a petitioner, to search a record, often, in a habeas case, involving hundreds of pages of transcript, in order to find some basis for relief for a petitioner . . . The responsibility of a habeas court, in confronting an often voluminous trial court record, is to respond to those claims fairly advanced by the petitioner. The mere recital of those claims in a petition, without supporting oral or written argument, does not adequately place those claims before the court for its consideration." (Citation omitted.) Solek v. Commissioner of Correction, 107 Conn.App. 473, 480-81, 946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008).
Therefore, the court finds that the abovementioned claims that were set out in the petitioner's amended petition without analysis are abandoned. To the extent they are not deemed abandoned, they are without factual foundation and support in the record.
III
CONCLUSION
Accordingly, the petitioner's habeas petition is denied.