Opinion
CV154007369S
01-27-2020
Clarence Patterson v. Warden
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Bhatt, Tejas, J.
MEMORANDUM OF DECISION
Bhatt, J.
The petitioner, Clarence Patterson, asks this court to reverse his convictions because the jury prematurely deliberated during evidence, his trial attorney performed deficiently in regards the premature deliberation and introduced into evidence information that the attorney previously successfully excluded from admission and his appellate attorney did not raise the jury misconduct issue on appeal. The court finds that the petitioner has not proven any prejudice. Therefore, the petition is dismissed in part and denied in part.
I. FACTUAL BACKGROUND
In docket number CR13-0180321-S, in the Judicial District of Stamford/Norwalk, the petitioner was charged with and convicted by a jury of one count of burglary in the second degree in violation of General Statutes § 53a-102 and one count of attempted larceny in the fifth degree in violation of General Statutes § § 53a-49 and 53a-125a. The trial court, Colin, J., sentenced the petitioner to a total effective sentence of ten years and six months’ incarceration. The petitioner was represented at trial by Attorney Michael Skiber. The petitioner appealed his convictions to our Appellate Court and was represented by Attorney Heather Clark. On appeal, he claimed "that (1) the trial court erroneously denied his motion to suppress two photographic lineup identifications and one private actor identification, (2) the state improperly cross examined his expert witness when it questioned him about the opinions of other experts and about a hypothetical question that included facts not in evidence, and (3) the prosecutor engaged in multiple acts of prosecutorial impropriety." State v. Patterson, 170 Conn.App. 768, 770-71, 156 A.3d 66, cert. denied, 325 Conn. 910, 158 A.3d 320 (2017). Our Appellate Court affirmed his convictions. Id. He initiated the instant petition for writ of habeas corpus on July 16, 2015. Counsel filed an amended petition on October 8, 2018, raising three claims: (1) a due process violation stemming from premature juror deliberation; (2) ineffective assistance of trial counsel and (3) ineffective assistance of appellate counsel. The respondent filed a return on November 6, 2018, denying the allegations and raising the defense of procedural default as to claim one. In his reply filed on November 9, 2018, the petitioner asserted the ineffective assistance of trial and appellate counsel as cause and prejudice for failing to raise the claim in count one in the trial court or on direct appeal. On October 9, 2019, the court heard evidence from several witnesses and the parties submitted exhibits. After trial, both parties submitted posttrial briefs.
II. FINDINGS OF FACT
According to our Appellate Court, the following evidence was presented to the jury:
At approximately noon on May 2, 2013, Lester Segura was in his bedroom with his girlfriend, Angie Espitia, when he heard someone enter his residence. Segura hid behind his bedroom door and peered around it to see the defendant standing in his residence. From his room, Segura asked the defendant why he was there and asked him several times to leave. The defendant responded that he knocked on the front door and noticed that it was open, so he "just came in." During this exchange, Segura looked around the door three times. He observed the defendant for a total of fifteen to twenty seconds but saw the defendant’s "full face" for approximately three to four seconds.
When the defendant exited the residence through the front door, Segura went outside and observed the defendant "walking fast" down the street toward a liquor and dress store. Gabriel Duarte, an employee of the store, was sweeping the sidewalk when he observed the defendant exit Segura’s residence. Duarte was "face-to-face" with the defendant for approximately five seconds.
Segura went back inside his residence and noticed that his computer, iPad, and tools were on the couch where he had not left them. He then went into his brother’s room and saw that somebody had moved his brother’s coin jar. Espitia called 911, but before the police arrived, Segura realized that he recognized the defendant from "[i]n the store, [and] out on the street." He also thought that he had seen the defendant previously on the local news. He quickly checked News Channel 12 from his cell phone and found the defendant’s photograph, which was displayed in relation to another burglary that took place approximately two weeks prior.
On May 8, 2013, Segura identified the defendant in a double-blind, sequential photographic lineup as the man he saw in his residence. One and one-half weeks before trial, Duarte identified the defendant in a different double-blind, sequential photographic lineup as the man he saw leaving Segura’s residence. Duarte told police that he had seen the defendant prior to May 2, 2013, walking around the neighborhood. He also stated that the defendant previously had shopped at Duarte’s store and that Duarte had once purchased a toy bubble gun from the defendant. The defendant was charged with burglary in the second degree and attempted larceny in the fifth degree. On July 14, 2014, the defendant filed a motion to suppress any identifications of him by Segura and Duarte. On August 18, 2014, the court conducted an evidentiary hearing, and on August 19, 2014, the court denied the defendant’s motion.
During the defendant’s case-in-chief, he called Samuel R. Sommers, an associate professor at Tufts University, to testify about the unreliability of eyewitness identifications. The state cross-examined Sommers about other experts’ opinions pertaining to the reliability of these studies. The state also posed a hypothetical question to Sommers. Defense counsel did not object to either line of questioning.(Footnotes omitted.) State v. Patterson, supra, 170 Conn.App. 771-73. Prior to the commencement of the criminal trial, the trial court conducted a hearing on several pretrial motions, including a motion to suppress the out of court identifications of the petitioner by Segura and Duarte, a motion to preclude mention of a prior incident which resulted in the petitioner’s photograph being part of news coverage and a motion to suppress a statement made by the petitioner to police. Both Segura and Duarte were questioned by the parties at that hearing, as were several officers. The trial court permitted both identifications to be admitted at trial but precluded the defendant’s statement to police. The screenshot of the News 12 story was cropped to remove any mention of the story itself and also to remove any reference to News 12 and this version of the photograph of the petitioner was allowed to be introduced at trial.
Evidence began on August 19, 2014. Prior to the first witness being sworn in, the trial court gave preliminary instructions to the jury, which contained the admonition that the jurors were not to discuss the case with anyone, including each other, until all the evidence was completed, the parties had given closing arguments and the court had completed its final instructions. The jurors were further instructed to not make up their minds until after they had heard all the evidence, closing arguments and the court’s instructions on the law. The court then provided a lengthy instruction on the pitfalls of discussing the case amongst the jurors before the close of evidence, reinforcing that they must not do so. Segura and Duarte both testified on the first day of trial and, consistent with their out-of-court identification of the petitioner, identified him in court as well. Segura was cross examined about responses inconsistent with testimony he gave at the suppression hearing.
At the close of evidence on day one, the trial court once again reminded the jury that they were not to discuss the case with anyone including each other. At the beginning of evidence the next day, a typewritten note was sent to the court from the jury room. The note, marked at Court Exhibit II, was dated August 20, 2014 and stated:
Judge Collins [sic], could you kindly explain what proceedings were held prior to the start of the jury trial, specifically related to the witness testimony that each attorney referenced in order that a given witness could "refresh" their memory.
It was signed by one juror. The court gave both parties an opportunity to be heard. Both parties left the response up to the discretion of the judge, although Attorney Skiber did suggest that the court not "highlight too much about essentially what the ... proceeding was all about." When the jury was brought into the courtroom, the trial court instructed the jury that there may be times when the jury is excused for the court to hear argument which may include matters of evidence that the court may exclude. Thus, the jury was instructed not to speculate about matters that happen outside their presence. Neither party asked the court to conduct a hearing to determine whether the jurors had prematurely deliberated at that point, nor did the trial court raise that as a potential problem. Attorney Skiber did not seek a mistrial. The court’s instructions at that point did not include a reminder that the jury was not to discuss the evidence or deliberate in the midst of trial. Two more witnesses testified and then the court took the morning recess. At that point the court did remind the jurors not to discuss the case among themselves. This admonition was repeated prior to the luncheon recess and at the close of business. Attorney Skiber was not too concerned about the jury’s note mid-trial. He sought to impeach the witness with prior testimony and in order to do so, would need to mention a prior proceeding. He agreed with the trial court’s handling of the jury note by directing the jury to focus on the evidence before them and not speculate on what the other proceeding might have been.
On that second day, Sergeant Peter Dispagna testified. He had compiled the photo array consisting of eight photographs that was shown to Segura. During cross examination, he was asked to read from the arrest warrant affidavit that he had drafted. Attorney Skiber asked Sergeant Dispagna if he had included in the arrest warrant affidavit a statement that Segura’s girlfriend, Angie Espitia, was also 100 percent certain that the petitioner was the individual in the residence. In response to Attorney Skiber’s question, Sergeant Dispagna began to read a paragraph from the affidavit that stated that Segura and Espitia had stated to another officer that they recognized the black male who entered their residence from a recent News Channel 12 story on April 24, 2013 about a burglary in Darien. The paragraph further stated that the picture of the subject was broadcast and that it was the petitioner. Attorney Skiber did not move to strike this testimony. He explained that he felt it helped their defense of misidentification and shoddy police investigation because he did not think it was credible that Segura was so quickly able to pull up the petitioner’s picture on his phone.
Also on that second day, the jury heard from Dr. Sommers, who testified about the science behind eyewitness identification. He was cross examined at length by the state’s attorney who questioned him about the alleged statements of other experts in his field. There was no objection to this examination because Attorney Skiber did not think the cross examination was particularly effective and did not play well in front of the jury. Attorney Skiber believed that the expert "did a fantastic job in ... refuting" the state’s questions. He did not wish to run the risk of giving credibility to the state’s questions by objecting when, in his opinion, the cross examination was not proving to be effective in front of the jury.
Attorney Clark did not raise the issue of the jury note on appeal because she believed that Attorney Skiber requested a specific instruction on that subject and the court acquiesced in that request. This, according to her, precluded her from challenging the actions of the jury on appeal because counsel received the curative instruction he asked for.
III. LEGAL ANALYSIS
A. PROCEDURAL DEFAULT
The "procedural default doctrine holds that a claimant may not raise, in a collateral proceeding, claims that he could have made at trial or on direct appeal in the original proceeding." (Citations omitted; internal quotation marks omitted.) McCarthy v. Commissioner of Correction, 192 Conn.App. 797, 808, 218 A.3d 638 (2019). If the respondent alleges that a petitioner should be procedurally defaulted from now making the claim, the petitioner "bears the burden of demonstrating good cause for having failed to raise the claim directly, and he must show that he suffered actual prejudice as a result of this excusable failure." Hinds v. Commissioner of Correction, 151 Conn.App. 837, 852, 97 A.3d 986 (2014), aff’d, 321 Conn. 56, 136 A.3d 596 (2016). "The cause and prejudice standard is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, [inadvertence] or ignorance ... [T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel’s efforts to comply with the [s]tate’s procedural rule ... Cause and prejudice must be established conjunctively ... If the petitioner fails to demonstrate either one, a trial court will not review the merits of his habeas claim." (Internal quotation marks omitted.) Sinchak v. Commissioner of Correction, 173 Conn.App. 352, 366, 163 A.3d 1208, cert. denied, 327 Conn. 901, 169 A.3d 796 (2017).
Ineffective assistance of counsel can constitute cause and prejudice. Thus, "[i]f a petitioner can prove that his attorney’s performance fell below acceptable standards, and that, as a result, he was deprived of a fair trial or appeal, he will necessarily have established a basis for cause and will invariably have demonstrated prejudice." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 570, 941 A.2d 248 (2008).
B. INEFFECTIVE ASSISTANCE OF 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.
1. 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, 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. Ineffective Assistance of Appellate Counsel
"A criminal defendant’s right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution. See, e.g., Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); In re Christina M., 280 Conn. 474, 489, 908 A.2d 1073 (2006)." Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
"Just as with a claim of ineffective assistance of trial counsel, success on a claim of ineffective assistance of appellate counsel requires the petitioner to establish that appellate counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances ... Although an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue ... Moreover, a habeas court will not, with the benefit of hindsight, second guess the tactical decisions of appellate counsel ...
"After demonstrating deficient performance, the petitioner must then show prejudice by establishing that, because of the failure of his appellate counsel to raise a particular claim, there is a reasonable probability that he remains burdened by an unreliable determination of his guilt ... In order to prevail on a claim of ineffective assistance of appellate counsel, therefore, a habeas petitioner must show not only that his appeal would have been sustained but for counsel’s deficient performance, but also that there is a reasonable probability that the trial verdict would have been different ..." (Internal citations omitted; quotation marks omitted.) Saucier v. Commissioner of Correction, 139 Conn.App. 644, 651-52, 57 A.3d 399 (2012) (appellate counsel’s performance not deficient where counsel had "made his tactical decision to focus on the strongest of the petitioner’s claims on appeal ... after considering the relevant case law and whether the claim was properly preserved, and after consulting with other experienced counsel"), cert. denied, 308 Conn. 907, 61 A.3d 530 (2013).
C. PREMATURE JURY DELIBERATION
It is "improper for jurors to discuss a case among themselves until all the evidence has been presented, counsel have made final arguments, and the case has been submitted to them after final instructions by the trial court." State v. Washington, 182 Conn. 419, 425, 438 A.2d 1144 (1980). "It is undisputed that presubmission discussion of the evidence by jurors in any degree is not an acceptable practice and constitutes misconduct." State v. Newsome, 238 Conn. 588, 630, 682 A.2d 972 (1996). "Deliberation in this sense, however, means articulating and exchanging views, albeit preliminary, with one’s fellow jurors ... It does not mean the absence of thought, however preliminary. We cannot expect jurors to be totally passive receptors of information who are not permitted even to think about what they have heard. A rule that rests on such a futile requirement ... would be a rule without foundation in reality. The trial court is expected to prevent premature deliberation, not harness the human mind." (Citation omitted; internal quotation marks omitted.) Spitzer v. Haims & Co., 217 Conn. 532, 545, 587 A.2d 105 (1991).
However, a finding of premature jury deliberation "does not automatically mean that the defendant is entitled to a new trial." (Citation omitted.) Bova v. Commissioner of Correction, 95 Conn.App. 129, 136, 894 A.2d 1067 (2006). The question is "whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial." (Citation omitted; internal quotation marks omitted.) State v. Newsome, supra, 238 Conn. 628. The proper remedy in such cases is an evidentiary hearing to determine whether the defendant has been prejudiced by the juror misconduct. State v. Castonguay, 194 Conn. 416, 436, 481 A.2d 56 (1984). If "the trial court is directly implicated in juror misconduct, the state bears the burden of proving that misconduct was harmless error." (Citations omitted; internal quotation marks omitted.) State v. Newsome, supra, 238 Conn. 628. Where the juror misconduct comes about through no action or fault of the trial court, a defendant "bears the burden of proving that actual prejudice resulted from that misconduct." (Citations omitted; internal quotation marks omitted.) Id.
In the habeas corpus context, courts have held that it is a valid trial strategy on the part of trial counsel to not object to potential juror misconduct or to not seek an evidentiary hearing when it is an informed and calculated decision. Bova v. Commissioner of Correction, supra, 95 Conn.App. 138 (counsel "reasonably may have made the tactical decision that it was better not to embarrass or to distract the jury during his examination of the witness by forcing an evidentiary hearing"); Bond v. Commissioner of Correction, 87 Conn.App. 50, 56, 863 A.2d 757 (reasonable trial strategy not to object to jury taking map into jury room before summation where court instructed jury it could look casually at map and previously had instructed jury not to discuss evidence), cert. denied, 273 Conn. 912, 870 A.2d 1079 (2005).
D. DISCUSSION
The court will address the merits of the petition, grouping the allegations by the specific error claimed.
In paragraph 75(d) of the amended petition, petitioner raises a claim for failing to object to testimony by an Officer Musso. There was no evidence presented as to this claim and it is not addressed in the posttrial brief. Thus, the court deems this claim abandoned.
1. Juror Misconduct
The evidence establishes that a juror submitted a typewritten question to the court about testimony the jury heard the previous day. The evidence further establishes that Attorney Skiber was not concerned that the jury was deliberating prematurely- indeed, he did not even identify that as a potential concern years later at the habeas trial- and did not seek an evidentiary hearing to determine whether the jury had prematurely deliberated and to what extent that had prejudiced the petitioner. Further, Attorney Skiber did not seek a mistrial. However, the evidence before this court does not establish that the jury did, in fact, deliberate or discuss the evidence by "articulating and exchanging views." It is entirely possible that the juror typed the note by herself and presented it to the court without further discussing it with any of the other members of the jury. Of course, the petitioner’s ability to present evidence of the extent of the communications between jurors is hampered by the lack of a record in the trial court stemming from counsel’s failure to recognize the implications of the note and seek an evidentiary hearing.
Thus, for the purposes of the court’s analysis here, it assumes that there was premature jury deliberation and that Attorneys Skiber and Clark performed deficiently. The petitioner cannot prevail, however, because he has not proven any prejudice stemming from this note. The question was about prior testimony referenced during the previous day’s questioning of witnesses and the trial court appropriately admonished the jury to concern itself with only the evidence that was presented to it. The jurors instructed before the start of evidence, at the close of business on the previous evening and throughout the rest of the trial that they were not to discuss the matter among themselves. The thrust of the juror’s question was not central to the case by any means; it merely sought clarification of what a prior court proceeding was.
The petitioner has also not demonstrated prejudice with regard to the failure to seek a mistrial. Based on this record, there is 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). The court did give curative instructions to the jury and although it did not conduct an inquiry into the juror misconduct, it did repeatedly advise the jury after the note that the jurors were not to discuss the matter with anyone, including among themselves.
Furthermore, the case against the petitioner was not weak. Our Appellate Court concluded that prosecutorial improprieties during closing argument did not deprive the petitioner of a fair trial, "because there was no reasonable likelihood that the jury’s verdict would have been different absent the sum of the improprieties." State v. Patterson, supra, 170 Conn.App. 800. The court noted that the state "presented a solid case against the defendant for both the burglary in the second degree charge and attempted larceny in the fifth degree charge. For the burglary charge, Segura testified that he clearly saw the defendant’s face while the defendant was in his residence. He also quickly identified the defendant in a double-blind, sequential photographic lineup and from the news article as the man who was in his residence. Duarte testified that he saw the defendant’s face as he exited Segura’s residence, and he identified the defendant in a double-blind, sequential photographic lineup more than one year later as the man he saw exiting the residence. A jury reasonably could have inferred that the defendant was in Segura’s residence with the intent to commit a crime. For the attempted larceny charge, Segura testified he found his property on his couch after the defendant left his residence. He also testified that his brother’s coin jar had been moved. A jury reasonably could have inferred that the defendant moved all of the items in an attempt to take them out of the residence without Segura’s permission." Id., 799-800.
The petitioner has not demonstrated prejudice. Since he cannot demonstrate prejudice, the petitioner cannot overcome his procedural default as to count one. Therefore, count one is dismissed. The allegations against Attorney Skiber, as they relate to the juror misconduct, are denied. Count three, which alleges ineffective assistance of appellate counsel, is also denied.
2. Eliciting Harmful Testimony
Once again the court assumes that Attorney Skiber performed deficiently by eliciting testimony that he had previously successfully excluded from the trial. The petitioner cannot succeed, however, because he has not proven that he was prejudiced by the error. The jury was well aware that Segura claimed he had seen the petitioner’s picture prior to the incident and had that picture ready to show the police upon their arrival. The picture itself was entered into evidence at trial, albeit with redactions to remove references to a news story about another incident in Darien. The exhibit, however, has the word ‘Darien’ clearly visible just below the picture of the petitioner. Sergeant Dispagna’s isolated reference to another burglary in Darien, while undoubtedly prejudicial to the petitioner, does not undermine this court’s confidence in the outcome of the trial. The Darien incident was never referenced again by either party and does not appear to have been mentioned in closing arguments either. Given the state’s case against the petitioner, the court cannot conclude that he has proven prejudice.
3. Cross Examination of the Expert
Finally, the petitioner alleges that Attorney Skiber was ineffective for failing to object to the state’s cross examination of Dr. Sommers. Our law is clear that "[t]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency." (Internal quotation marks omitted.) Levine v. Manson, 195 Conn. 636, 648, 490 A.2d 82 (1985). "[T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment ..." (Citation omitted; internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 801, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004). An "[e]xperienced [litigator may] utilize the trial technique of not objecting to inadmissible evidence to avoid highlighting it in the minds of the jury." (Citation omitted; internal quotation marks omitted.) State v. Davis, 76 Conn.App. 653, 665, 820 A.2d 1122 (2003). The court finds that Attorney Skiber did not perform deficiently and, even if he did, there is no prejudice. Attorney Skiber was of the opinion that the state’s cross examination of the expert witness was not being well received by the jury and seemed to be without any tether to the facts of the case at hand. Attorney Skiber further believed that his expert competently and thoroughly handled the state’s questions and that there was no negative impact from the state’s "bizarre" cross examination tactic of "throwing haymakers." He was concerned that by objecting to the state’s questions, he would lend them credibility in the eyes of the jury. The court finds Attorney Skiber made sound tactical decisions in this regard and, therefore, there is no deficient performance.
Assuming, arguendo, there is deficient performance, the petitioner cannot prevail because he has not shown how objecting to the state’s questions would have created a reasonable likelihood of a different outcome. He merely asserts that this would be the case. That is not sufficient to obtain relief. There is no prejudice.
CONCLUSION
The petitioner has not met his burden of proof in regards to all of the claims raised in the amended petition. Judgment shall enter denying the petition for a writ of habeas corpus.