Opinion
CV164008135S
11-06-2019
Brian Smith 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UNPUBLISHED OPINION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, Brian Smith, alleges that his convictions are illegal because he received ineffective assistance of trial and appellate counsel and because he is actually innocent. This court does not agree and, therefore, denies the petition.
I. FACTUAL BACKGROUND
In docket numbers CR14-0104814-S and MV14-0372091-S, the petitioner was charged with operating a motor vehicle while under the influence of intoxicating liquor or any drug in violation of General Statutes § 14-227a(a)(1), operating a motor vehicle while having an elevated blood alcohol content in violation of General Statutes § 14-227a(a)(2), possession of a small amount of a cannabis-type substance in violation of General Statutes § 21a-279a(a), improperly parking a motor vehicle in violation of General Statutes § 14-251, operating a motor vehicle without carrying an operator’s license in violation of General Statutes § 14-213, and making a false statement in the second degree in violation of General Statutes § 53a-157b(a).
Additionally, under docket numbers CR14-0104814-S and MV14-0372091-S, the petitioner was charged via a part B information as being a third-time offender in violation of § 14-227a(g)(3). Finally, under docket number CR15-016544-S, the petitioner was charged with two counts of tampering with a witness in violation of General Statutes § 53a-151(a).
The petitioner elected a jury trial with respect to the charges of operating a motor vehicle while under the influence of intoxicating liquor or any drug, operating a motor vehicle while having an elevated blood alcohol content, making a false statement, and tampering with a witness. He elected a court trial with respect to the infractions of improperly parking a motor vehicle and operating a motor vehicle without carrying an operator’s license, and the charge of violation of possession of a small amount of a cannabis-type substance. The matters were consolidated for trial.
The jury found the petitioner guilty of all charges, as did the court, Oliver, J. The petitioner then entered a plea of nolo contendere to the charge of being a third time offender as alleged in the part B information, which was accepted by the court. The verdict of guilty of operating a motor vehicle while having an elevated blood content was vacated by the court prior to sentencing pursuant to State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013). The court sentenced the petitioner to a total effective sentence of fifteen years’ incarceration, execution suspended after seven years, followed by five years’ probation.
The petitioner appealed his convictions. On appeal, he challenged his conviction for operating while under the influence and only one of his tampering with a witness convictions. He claimed that "(1) the evidence was insufficient to convict him of operating a motor vehicle while under the influence of intoxicating liquor or any drug and (2) the court erroneously admitted certain evidence relating to the witness tampering count." Our Appellate Court affirmed his convictions. State v. Smith, 179 Conn.App. 734, 738, 181 A.3d 118, cert. denied, 328 Conn. 927, 182 A.3d 637 (2018).
The petitioner filed the instant petition for writ of habeas corpus on or about June 8, 2016. Counsel filed an amended petition on his behalf, raising claims in three categories. First, the petitioner claims that trial counsel was ineffective for failing to: a) "sufficiently investigate the circumstances involved in the State’s case, specifically as to the background of the State’s witnesses, the physical condition of the petitioner at the time of the arrest and the background of the petitioner prior to the arrest"; b) "retain an expert medical witness to review the effects of intoxication on the person of the petitioner, if any"; c) "interview witnesses of the State, although trial counsel knew the names and addresses of all witnesses prior to trial"; d) "adequately investigate the history of malfunctions and servicing in regard to the mechanical condition of the petitioner’s motor vehicle prior to and at the time of petitioner’s arrest"[; ] e) file a motion to suppress, motion in limine or otherwise challenge the evidence and/or testimony of the arresting Officer in regard to the Officer’s recording that the petitioner ‘refused’ to submit to a breath test without the petitioner actually stating his intention of a ‘refusal’ to submit to same [sic], as provided within C.G.S. section 14-227a and 14-227b"; and f) "object to improper comments made by the prosecutor during closing arguments."
Counsel alleged that appellate counsel was ineffective for various reasons related to the grounds alleged against trial counsel. In count three, counsel asserted that the petitioner is actually innocent. The court heard testimony from several witnesses. The parties submitted exhibits and the petitioner submitted a posttrial brief.
II. FINDINGS OF FACT
According to our Appellate Court, the petitioner’s jury could reasonably have found the following facts:
At approximately 1:50 a.m. on March 7, 2014, James Grimes, a state police trooper, was patrolling near the intersection of Route 44 and Route 195 in Mansfield when he observed a stationary motor vehicle in the eastbound travel lane of Route 320, which intersects with Route 195 a short distance from the intersection of Route 44 and Route 195. The motor vehicle, a tan colored Volvo, was impeding travel. Grimes observed the vehicle for a few minutes and saw that the vehicle’s brake lights were on and that the vehicle remained stationary.
Grimes positioned his police cruiser behind the stationary vehicle and activated his vehicle’s emergency lights. At that time, he observed that "the brake lights [on the stationary vehicle] went off because you could see the parking lights go on as the vehicle was shifted into park." Grimes exited his cruiser and knocked on the passenger window. The sole occupant and operator of the vehicle, the defendant, rolled down the passenger window. Immediately, Grimes smelled burnt marijuana. Grimes asked the defendant "what was going on," to which the defendant replied, "I’m just stopped," and that he was trying to use his cell phone. Grimes, after concluding that the defendant was not experiencing a medical issue and that there were not any mechanical issues with the vehicle, told him that he could have chosen a more suitable location. Grimes then asked the defendant for his driver’s license and his vehicle’s registration. The defendant, however, did not have his driver’s license with him.
While the defendant was searching for his license and registration, Grimes asked him several questions to gauge whether he was impaired. Grimes observed that the defendant’s speech was slurred and that his eyes were bloodshot and "glazed over ..." The defendant’s responses were "kind of slow and kind of spacy," and the defendant was "struggling" to understand or was not fully engaged in the conversation. For example, the defendant first told Grimes that he was traveling from Willimantic, but then told Grimes that he was coming from his place of employment at a restaurant in Waterford.
Grimes walked to the driver’s side of the defendant’s vehicle and the defendant complied with his request to roll down the window. Grimes smelled not just burnt marijuana, but also alcohol. Grimes asked the defendant if he had been drinking or smoking marijuana, and the defendant denied that he had used either substance.
Grimes then asked the defendant, who was still in the vehicle, to complete two tests to gauge his sobriety and coordination. The defendant was asked to recite specified portions of the alphabet and to complete a "finger dexterity test" that required him to count aloud while touching each of his fingertips with his thumb. The defendant failed these tests.
Grimes returned to his cruiser to inform his dispatcher that he was going to administer standardized field sobriety tests to the defendant. When he walked in the direction of the defendant’s vehicle, he observed the defendant quickly "shoving" candy into his mouth. In Grimes’ experience, "this was a way for people that are driving under the influence to try and mask their breath or try to get something in their system that’s going to dilute the alcohol concentration in their system." Grimes instructed him to stop.
At Grimes’ direction, the defendant exited the vehicle. He moved slowly and kept his right hand closed. Grimes ordered him to open his hands and to keep them raised, but the defendant did not comply fully as he continued to keep his right hand closed. Grimes opened the defendant’s hand to reveal a small brown pipe. The pipe, like the defendant’s vehicle, smelled like burnt marijuana. The pipe contained marijuana residue.
Grimes then administered three standard field sobriety tests, including the horizontal gaze nystagmus test, the walk and turn test, and the one leg stand test. The defendant failed all of these tests.
At 2:10 a.m., Grimes arrested the defendant after which the defendant was handcuffed, seated in the police cruiser, and transported to the state police barracks for Troop C in Tolland. After Grimes advised the defendant of his Miranda rights, the defendant pleaded with Grimes to let him go because "he didn’t need this," and that he was worried about losing his job. He stated that "he just was going to see this girl and just wanted to ... sleep it off ..."
At the state police barracks, Grimes searched the defendant’s clothing. In a pocket of the defendant’s jacket, he discovered a cigar holder containing marijuana. Grimes requested that the defendant submit to a breath test. He advised the defendant of his rights in this regard, as well as the significance of a refusal to submit to the test. The defendant then spoke with his attorney by telephone.
Grimes asked the defendant for his decision with respect to the breath test. The defendant stated that he wanted to talk to his attorney again. Grimes informed the defendant that his indecision constituted a refusal to submit to the test. Grimes summoned another state police trooper, Jonathan Neihengen, to the processing room. At that time, Neihengen witnessed the defendant’s failure to cooperate with respect to the test, which constituted his refusal. Grimes again permitted the defendant an opportunity to use the telephone to inform his attorney that he had refused to submit to the test.
As the defendant turned to use the telephone, he inserted a candy or a breath mint into his mouth. Earlier, while Grimes was transporting the defendant to the state police barracks, one of the things he discussed with the defendant was that he could not have anything to eat or drink until after he had completed the test. When Grimes informed the defendant that his conduct, which included eating candy, amounted to a refusal to submit to a breath test, the defendant replied that he had sustained injuries to his wrists as a result of the handcuffs and that he wanted medical treatment at a hospital. Emergency medical personnel arrived on the scene, but they declined to transport him to the hospital to treat what they considered to be an "extremely minor" abrasion. When Grimes told the defendant that he would not be going to the hospital, he then complained for the first time that he wanted to go to the hospital because he was experiencing heart problems and trouble breathing. The defendant’s outward appearance was normal, yet, on the basis of the defendant’s new complaints, the emergency medical personnel at the scene made the decision to transport the defendant to Rockville General Hospital for examination.
Despite the fact that Grimes already had recorded the defendant’s refusal to submit to a breath test, a state police sergeant, Craig Jones, afforded the defendant yet another opportunity to submit to a breath test. The defendant declined this request, but stated that he would provide a blood sample once he was at the hospital. Grimes accompanied the defendant to the hospital. Upon his arrival, the defendant informed hospital staff that he was experiencing chest pains and palpitations. Hospital staff detected an alcohol-like odor being emitted from the defendant. When hospital staff asked to perform an electrocardiogram and lab work, the defendant immediately replied that he needed to speak with his attorney, his pain had subsided, and he was feeling better since his arrival at the hospital. After speaking with his attorney, the defendant told hospital staff that he would submit to an electrocardiogram test and provide a urine sample, but he stated that he would not submit to a blood test because he was afraid of needles.
Ultimately, at 5:08 a.m., more than three hours after Grimes first encountered the defendant, the defendant provided a blood sample to hospital staff. The defendant’s urine sample tested positive for marijuana use, his blood sample reflected a blood alcohol content of 0.10 percent, and the result of his electrocardiogram test was normal. By 6 a.m., the defendant had been discharged from the hospital because he was not suffering from any health issues, and he was returned to the state police barracks. The defendant then gave the police a written statement in which he admitted that when Grimes came upon him earlier that morning, he had pulled his automobile "over for safety" and was attempting to complete a telephone call. After the police completed processing the defendant, he was issued a summons to appear in court and was released from police custody.
The defendant called his girlfriend at that time, Lena Knowles, from the police barracks because he needed to be picked up. Later that day, he stated to her that he was arrested for driving under the influence of alcohol and that he had, in fact, consumed a couple glasses of wine. The defendant stated to her, however, that he had a plan to deal with his arrest because, if he was convicted, he would be separated from his son. Specifically, he planned on claiming that he had not driven his automobile. He asked Knowles to relate the following facts to law enforcement: she had been driving the defendant’s automobile on March 6, 2014, while she was out with friends. Meanwhile, the defendant was at home with Knowles’ children. A friend of Knowles, Kelly Aston, was following Knowles home when the defendant’s automobile began "acting funny ..." Knowles pulled over the disabled automobile, and Aston drove her home. Later that night, Knowles drove the defendant to the disabled automobile and left him with the automobile so that he could call for roadside assistance. After Knowles departed, the police encountered the defendant in the automobile.
Despite the fact that no aspect of this story was accurate, Knowles indicated to the defendant that she would relate these facts to the authorities on his behalf because she felt sorry for him. The defendant told Knowles that he had spoken with Aston, who had agreed to corroborate this version of events, and asked Knowles to persuade another friend of hers, Danielle Petsa, to corroborate this version of events.
Later that day, at Knowles’ residence, the defendant spoke with Aston. He told her about the circumstances of his arrest, specifically, that he had consumed wine at his place of employment, began driving to Knowles’ residence, and "was pulled over" on the road when the police found him in his automobile. The defendant told Aston the version of events that he had fabricated and, initially, Aston agreed to "go along" with the defendant’s story. Subsequently, she spoke with an investigator working for the defendant’s attorney and made statements that were consistent with the defendant’s false version of events. After speaking with family members about the matter, however, Aston decided that she would not make any further false statements concerning the incident because she was not comfortable doing something that could get her into trouble with law enforcement.
Soon after the incident, Knowles called Petsa on the telephone and invited her to her residence to discuss the defendant’s plan. Petsa met with the defendant and Knowles at Knowles’ residence. The defendant and Knowles discussed the details of her providing information to law enforcement on the defendant’s behalf in accordance with his plan. When Petsa was contacted by an inspector working for the defendant’s attorney, however, she had difficulty providing facts that were consistent with the defendant’s version of events. She had second thoughts about participating in the defendant’s plan, experienced panic attacks, and ultimately decided that she would not provide a false statement. In a second conversation with the investigator, she told him that she would not be involved with this any longer and would not "cover" for the defendant.
When the defendant learned that Petsa was apprehensive about providing false statements to the investigator and had difficulty doing so, he communicated with her on Facebook in an attempt to calm her and assure her that she could do what he had asked of her. Later, when the defendant learned from Knowles that Petsa would not provide the information that he wanted her to provide, he sent her one or more messages on Facebook in which he stated, among other things, that if she did not testify on his behalf, he would tell the police that she drives with her children in an unregistered automobile and that he would tell the wife of a married man with whom she was having an affair about the affair.(Footnotes omitted.) State v. Smith, supra, 179 Conn.App. 739-46. At the habeas corpus trial, the court heard from Attorney Cunningham, Lena Knowles and the petitioner.
Attorney Cunningham met with the petitioner over the course of her representation of him and went over the various police reports, hospital records and statements with him. She investigated the case and spoke to several witnesses either herself or directed her investigator to do so. These witnesses included Lena Knowles, Kelly Cark, Danielle Petsa, Dr. Joel Milzoff, Dr. Haney, the petitioner’s ex-wife Lisa Smith and employees of Manny’s Automotive. She received and reviewed a video of the petitioner’s booking at the police station. In preparation for the defense of the petitioner, Attorney Cunningham went to the scene of the arrest.
She was aware of the petitioner’s position that the vehicle he was driving when stopped had mechanical problems and had been improperly repaired. She had been provided a receipt showing repairs had been made to the vehicle by the petitioner and she contacted Manny’s Automotive— the automotive garage to secure the testimony of a witness from that garage on the subject. The garage was unable to find their paperwork for the date shown on the copy of the receipt the petitioner provided to Attorney Cunningham, which was March 8th. The garage ultimately located an identical receipt dated March 5th and Attorney Cunningham determined that the receipt she had been given had been altered to reflect a date after the petitioner’s arrest. Thus, she decided not to introduce that document or present the testimony of a witness from the garage. The receipt reflecting that work was done at Manny’s Automotive on March 5th, however, was entered into evidence in the defense case through the testimony of Lisa Smith, who also testified as to the car troubles and repairs performed on March 5th. Ms. Smith further testified that the battery of the vehicle was still an issue and had to be replaced after the petitioner’s arrest.
In addition to the defense that the mechanical problems with the vehicle rendered it inoperable at the time of the arrest, Attorney Cunningham and the petitioner were also proceeding on the theory that it was not the petitioner who was operating the vehicle and instead he had just been dropped off at that location by Kelly Clark just before Trooper Grimes arrived and initiated the traffic stop. In order to present this defense, Attorney Cunningham had spoken to three witnesses: Lena Knowles, Kelly Clark and Danielle Petsa. Prior to trial, all three indicated that the version of events that they provided to the defense was untrue. They were independently contacted by the state’s attorney’s office, to whom they gave sworn statements indicating that they were not involved in the manner represented to by the petitioner. They all testified that the version of events they provided to Attorney Cunningham and her investigator was false.
Finally, the defense also disputed that the petitioner was under the influence at the time of the traffic stop. This was put before the jury through the cross examination of the state’s toxicologist and the testimony of the defense toxicologist Dr. Milzoff.
Based on the petitioner’s behavior at the police station and subsequently at the hospital and the observations of the troopers and the medical staff, the defense was not going to be able to pursue a theory that the petitioner was medically unable to perform the tasks required of him during the administration of the field sobriety tests. Attorney Cunningham did not consult with an expert on the field sobriety tests but relied on her cross examination of Trooper Grimes to demonstrate their unreliability. Further, Attorney Cunningham did seek to challenge the admissibility of the hospital records. She filed a motion in limine on January 8, 2015, and a hearing was conducted on the third day of trial, March 19, 2015. The trial court denied the motion after listening to argument from both parties. Attorney Cunningham did not file a motion to suppress the results of the blood test on the grounds that it was obtained without a warrant based on probable cause.
Ms. Knowles testified at the habeas trial and reiterated that the initial version of events she provided to Attorney Cunningham’s office, which sought to shield the petitioner from criminal liability, was false.
The petitioner testified at the habeas trial that the vehicle in question belonged to his ex-wife Lisa Smith, but he was driving it that night. According to him, he spent the majority of that night with Ms. Clark, from 7:00 p.m., just until Trooper Grimes effectuated the traffic stop. He testified that Ms. Clark had dropped him off at the location of the vehicle and at that moment, he saw the trooper at a nearby intersection, causing him to "shoo off" Ms. Clark. He testified that he did so because Ms. Clark was drunk and he did not want her to get into legal trouble for driving while drinking. He testified that he was on his way to Ms. Knowles’ house when the car stopped working. He further testified that Manny’s Automotive did not do any battery repairs on the vehicle; rather it was he who, on March 5th, had mistakenly placed an old battery in the vehicle which eventually caused it to stop working. He testified that when the trooper came up to the car, he put the key in the ignition, hoping that there was enough power in the battery to allow the window to be rolled down and was relieved when there was.
Ms. Clark testified at the underlying criminal trial that she had not seen the petitioner nor had she given him a ride or helped him with any car trouble at any time during the day or night that the petitioner was stopped and eventually arrested for the offenses in question.
The petitioner admitted having consumed a few alcoholic beverages over the course of the evening and possessing a marijuana pipe. During the booking process, the petitioner made statements that could reasonably be interpreted as admissions that he was driving under the influence. This video, and the statements, were admitted as full exhibits, played for the jury and relied upon by the prosecution in support of its burden of proof.
The petitioner denied ever stating that he refused the breath test and testified that his blood was ultimately drawn while at the hospital.
According to the petitioner, he did not ask Ms. Knowles, Ms. Clark or Ms. Petsa to fabricate a story to exonerate him and that the versions that they initially provided to Attorney Cunningham were the truth. He further testified that their recantation of the truth was caused by a breakdown in their relationship with him. He testified that he directed Attorney Cunningham not to call them as witnesses.
Attorney Jennifer Smith, who represented the petitioner on appeal, did not testify at the habeas trial. Additional facts will be set forth as necessary.
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.
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.
B. 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. 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, experienced 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 ... 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. ACTUAL INNOCENCE
Petitioners seeking habeas corpus relief "in the form of a new trial on the basis of a claim of actual innocence requires that the petitioner satisfy the two criteria set forth in [ Miller v. Commissioner of Correction, 242 Conn. 745, 700 A.2d 1108 (1997)]." Bowens v. Commissioner of Correction, 333 Conn. 502, 518-19 (2019). Pursuant to Miller, "the petitioner [first] 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 fact finder would find the petitioner guilty of the crime." Miller v. Commissioner of Correction, supra, 242 Conn. 745, 748.
In regards to the first prong, "the clear and convincing standard ... is a very demanding standard and should be understood as such, particularly when applied to a habeas claim of actual innocence, where the stakes are so important for both the petitioner and the state ... [That standard] should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory ... [The standard requires] extraordinarily high and truly persuasive demonstration[s] of actual innocence." (Citations omitted; internal quotation marks omitted.) Bowens v. Commissioner of Correction, supra, 333 Conn. 518-19.
Moreover, "actual innocence [must be] demonstrated by affirmative proof that the petitioner did not commit the crime." Gould v. Commissioner of Correction, 301 Conn. 544, 561, 22 A.3d 1196 (2011). "Affirmative proof of actual innocence is that which might tend to establish that the petitioner could not have committed the crime ... that a third party committed the crime, or that no crime actually occurred." (Emphasis omitted.). Id., 563. "Clear and convincing proof of actual innocence does not, however, require the petitioner to establish that his or her guilt is a factual impossibility." Id., 564.
D. DISCUSSION
It is well established that counsel is presumed to have rendered effective counsel unless deficient performance is affirmatively proven. See, e.g., Sanders v. Commissioner of Correction, 83 Conn.App. 543, 551, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004) ("It is well established that when analyzing a claim of ineffective assistance, counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment"). "The petitioner bears the burden of showing that [counsel’s] actions fell below an objective standard of reasonableness. See Williams v. Commissioner of Correction, 142 Conn.App. 744, 752, 68 A.3d 111 (2013). Furthermore, ... ‘[t]here are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way ... Likewise, there is no expectation that competent counsel will be a flawless strategist or tactician.’ ... Id., at 753, 68 A.3d 111; see also Mozell v. Commissioner of Correction, 291 Conn. 62, 79, 967 A.2d 41 (2009) (’[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’ ...)." Smith v. Commissioner of Correction, 148 Conn.App. 517, 527, 85 A.3d 1199, cert. denied, 312 Conn. 901, 91 A.3d 908 (2014). In order to meet his burden of proof, the petitioner must present evidence to this court that supports his allegations. See Henderson v. Commissioner, 129 Conn.App. 188, 195, 19 A.3d 705, cert. denied, 303 Conn. 901, 31 A.3d 1177 (2011); Townsend v. Commissioner of Correction, 116 Conn.App. 663, 668, 975 A.2d 1282, cert. denied, 293 Conn. 930, 980 A.2d 916 (2009); Andrews v. Commissioner of Correction, 45 Conn.App. 242, 247-48, 695 A.2d 20, cert. denied, 242 Conn. 910, 697 A.2d 364 (1997). Against the backdrop of the facts and the applicable law, the court will now consider the individual allegations in the petition.
1. Trial Counsel
a) Failed to sufficiently investigate the circumstances involved in the State’s case, specifically as to the background of the State’s witnesses, the physical condition of the petitioner at the time of the arrest and the background of the petitioner prior to the arrest
There is ample evidence that Attorney Cunningham investigated the circumstances involved in the state’s case and conferred with the petitioner on numerous occasions as to the evidence and the defense theory. She asked the petitioner to provide any pertinent medical information that might have a bearing on his case, but the petitioner failed to do so. She attempted to speak to a doctor identified by the petitioner— Dr. Haney— but learned that he had not seen the petitioner since 2010 and thus would be unable to provide useful information. Furthermore, the petitioner has not articulated what specific evidence, if any, Attorney Cunningham should have investigated and has not demonstrated how any such evidence would have resulted in a different outcome. Thus, this claim must be denied.
b) Failed to retain an expert medical witness to review the effects of intoxication on the person of the petitioner, if any
The petitioner has not clarified what medical expert he is referring to in this claim. Attorney Cunningham did retain Dr. Milzoff, a toxicologist, who testified on the subject of whether the petitioner was intoxicated at the time of the stop. The petitioner did not present the testimony of any medical expert at the habeas trial, or any evidence demonstrating the effect of intoxication on the petitioner. Thus there is no evidence before this court from which it can conclude that Attorney Cunningham’s performance was deficient in this regard or that any assumed deficient performance prejudiced the petitioner.
c) Failed to interview witnesses of the State, although trial counsel knew the names and addresses of all witnesses prior to trial
The petitioner again does not clarify which witnesses he refers to. The evidence is uncontroverted that Attorney Cunningham did interview several of the witnesses that eventually testified at the underlying criminal trial, including Ms. Clark, Ms. Petsa, Ms. Knowles, Ms. Smith, Dr. Haney and individuals from Manny’s Automotive. Further, the petitioner has put forward no evidence or argument in support of his burden of proving that any deficiency in interviewing witnesses resulted in prejudice to him. This claim is also denied.
d) Failed to adequately investigate the history of malfunctions and servicing in regard to the mechanical condition of the petitioner’s motor vehicle prior to and at the time of petitioner’s arrest[; ]
This claim must also be denied because the credible evidence presented to this court makes clear that Attorney Cunningham did investigate the history of malfunctions and servicing of the vehicle in question. Attorney Cunningham attempted to secure testimony from individuals at Manny’s Automotive regarding the work performed on the vehicle. Employees of Manny’s Automotive became uncooperative when they realized that they had been given an incorrect date and the receipt provided to Attorney Cunningham had been altered to reflect a different date. Thus, she made the strategic choice to not call someone from Manny’s Automotive to testify. However, she was still successful in admitting the receipt into evidence and eliciting testimony from Ms. Smith about the mechanical problems with the car and the fact that it had to be repaired subsequent to the petitioner’s arrest. The petitioner also testified about the mechanical issues with the car. There is no deficient performance in this regard.
e) Failed to file a motion to suppress, motion in limine or otherwise challenge the evidence and/or testimony of the arrest [sic] Officer in regard to the Officer’s recording that the petitioner "refused" to submit to a breath test without the petitioner actually stating his intention of a "refusal" to submit to same [sic], as provided within C.G.S. section 14-227a and 14-227b
These allegations center around the petitioner’s alleged failure to submit to a breath test. The petitioner has provided no credible evidence that the petitioner in fact did not refuse to submit to the breath test. The evidence at the underlying criminal trial makes clear that the petitioner was given several opportunities to submit to the breath test but he repeatedly sought to delay that decision in various ways. After giving him ample opportunity to make a decision, officers deemed his noncompliance to be a refusal.
The petitioner has not provided any authority to this court that stands for the proposition that the petitioner must utter the word "refuse" in order for a refusal to be valid. Of course, the law of our state is plainly contrary to this assertion. "[A] refusal to take a breath test need not be explicit but may occur through conduct"; State v. Weed, 118 Conn.App. 654, 660, 984 A.2d 1116 (2009); and "may be established by one’s actions or by verbally expressing one’s unwillingness." Pizzo v. Commissioner of Motor Vehicles, 62 Conn.App. 571, 581, 771 A.2d 273 (2001). "[D]ifficulties [are] inherent in ascertaining when a person is ‘refusing’ to submit to the breath test. ‘Refusal’ is difficult to measure objectively because it is broadly defined as occurring whenever a person ‘remains silent or does not otherwise communicate his assent after being requested to take a blood, breath or urine test under circumstances where a response may reasonably be expected.’ Regs., Conn. State Agencies § 14-227b-5." Winsor v. Commissioner of Motor Vehicles, 101 Conn.App. 674, 684, 922 A.2d 330 (2007). For the foregoing reasons, this claim must be denied.
f) Failed to object to improper comments made by the prosecutor during closing arguments
The petitioner has not pointed to any comments that, according to him, Attorney Cunningham should have objected to. It is the petitioner’s responsibility to prove his allegations and it is not this court’s function to comb through the voluminous record in search of these alleged improper comments. This claim is denied.
2. Appellate Counsel
The petitioner makes several allegations against appellate counsel. Appellate counsel, however, was not called as a witness to testify. Since Attorney Smith did not testify at the habeas trial, it is entirely unknown from the evidence presented during the habeas trial what Attorney Smith’s process was for selecting claims on the direct appeal. This court must presume, unless it is proven otherwise, that appellate counsel’s choices were in furtherance of a reasonable strategy, and premised on a review and selection process that comported with a standard of reasonably effective assistance. This court cannot conclude, in the absence of evidence proving otherwise, that appellate counsel’s strategy was unreasonable given all the circumstances.
Further, petitioner presented no evidence in support of his allegation that appellate counsel’s performance was deficient or that any deficiencies prejudiced him. The petitioner did not brief the claim of ineffective assistance of appellate counsel. Our courts have repeatedly and consistently held that reviewing courts are:
not required to review issues that have been improperly presented to th[e] court through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.
(Citation omitted; internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003); Lewis v. Commissioner of Correction, 89 Conn.App. 850, 869, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005). These principles also apply to the trial court. Connecticut Light & Power Co. v. Dept. of Public Utility Control, supra, 120. Therefore, this claim is deemed abandoned.
3. Actual Innocence
The petitioner’s final claim is that of actual innocence. The petitioner has failed to meet his burden of proof in this regard. There was no affirmative proof presented to the court from which it could conclude that the petitioner did not commit the crime. Based on the evidence presented to the jury at the underlying criminal trial and the evidence presented to this court, the court cannot conclude that "no reasonable factfinder would find the petitioner guilty of the crime." Miller v. Commissioner of Correction, supra, 242 Conn. 748. The petitioner, in his posttrial brief, does not mention his claim of actual innocence, nor does he present any argument in support of it and does not point to any evidence in either the criminal trial record or in the habeas trial that would support his high burden of proof. The jury, having considered all of the evidence presented to it, found the petitioner guilty of various crimes. The petitioner has presented no other evidence to this court that would require a finding that the petitioner is actually innocent. Thus, this claim is denied.
CONCLUSION
The petitioner has not met his burden of proof in regards to his claims of ineffective assistance of trial and appellate counsel and has not proven that he is actually innocent. Judgment shall enter denying the petition for a writ of habeas corpus.