Ayuso v. Commissioner of Correction ( 2022 )

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JOSE AYUSO v. COMMISSIONER OF CORRECTION
(AC 43985)
Moll, Alexander and Suarez, Js.
Syllabus
Convicted of several crimes after a shooting incident in which he wounded
two police officers, J and O, the petitioner sought a writ of habeas
corpus. He claimed, inter alia, that his trial, appellate and habeas counsel
provided ineffective assistance and that the prosecutor at his criminal
trial knowingly presented false testimony. The petitioner had
approached an unmarked police vehicle in a parking lot and fired gun-
shots at three undercover officers in the vehicle. As J got out of the
driver’s side of the vehicle, one of two gunshots the petitioner fired
toward him struck the bulletproof vest J was wearing under his clothes.
The petitioner claimed, inter alia, that the prosecutor knowingly pre-
sented and failed to correct false testimony from the third officer, P,
that one of the bullets the petitioner fired had lodged in or damaged
J’s bulletproof vest and that P had witnessed damage to the vest shortly
after the shooting. The habeas court rejected the petitioner’s claim,
concluding that P had not intended to deceive the jury. In a subsequent
articulation, the court affirmed its decision, relying on the fact that the
petitioner’s counsel had had an opportunity to examine the vest prior
to trial. The court denied the habeas petition and thereafter denied the
petition for certification to appeal to this court. Held:
1. The habeas court did not abuse its discretion in denying the petitioner
certification to appeal from the judgment denying his petition for a writ
of habeas corpus; the petitioner failed to demonstrate that his claims
involved issues that were debatable among jurists of reason, that a court
could resolve those issues in a different manner or that the questions
they raised were adequate to deserve encouragement to proceed further.
2. The petitioner’s claim that he was deprived of his right to due process
when the prosecutor failed to correct P’s testimony concerning the
bulletproof vest was unavailing, as P’s testimony was neither false nor
substantially misleading: P’s reference to the impact on J’s bulletproof
vest of one of the bullets the petitioner fired was incidental to P’s
description of the injuries he observed when he examined J in the
immediate aftermath of the shooting, and P’s description of those injuries
did not convey to the jury that he had inspected or witnessed damage
to the vest; moreover, even if P’s testimony was false or substantially
misleading, the petitioner was unable to demonstrate that the prosecu-
tor’s failure to correct the testimony was fundamentally unfair, as there
was no reasonable likelihood that the testimony could have affected
the judgment of the jury, the condition of J’s vest was not relevant to
any of the crimes of which the petitioner was convicted or to any
material issue in the case, there was no evidence that something other
than a bullet could have caused J’s injury, and, in the context of the
petitioner’s defense of self-defense, it was inconsequential for the jury
to determine what the petitioner struck when he used deadly physical
force by discharging his handgun; furthermore, the petitioner’s assertion
that P’s testimony about the vest was relevant to assessing J’s credibility
was unavailing, as the existence of damage to the vest would not have
tended to undermine J’s trial testimony, the jury reasonably could have
found that one of the bullets that the petitioner fired caused J’s injury,
regardless of the existence of damage to the vest, and, although the
court, in its initial decision and in its articulation, incorrectly failed to
focus its analysis on the substance of the relevant evidence to determine
if it was false or substantially misleading, this court concluded that the
same result was required by law.
3. The petitioner’s claim that he was deprived of the effective assistance of
counsel at his criminal trial was unavailing:
a. Trial counsel’s decision not to challenge the state’s evidence that a
bullet caused J’s injury did not prejudice the petitioner, as counsel
believed that the pursuit of such a strategy would detract from the
petitioner’s self-defense claim, that it would not have been beneficial
with respect to the attempted murder or assault charges against the
petitioner concerning J and that the presence of physical damage to the
vest was not significant; moreover, the habeas court’s focus on whether
the petitioner was prejudiced by counsel’s performance was proper in
light of testimony from the physician who treated J that a gunshot was
the only way to explain J’s injuries, and, as it was undisputed that the
petitioner used a firearm during the shooting, whether J was struck by
a bullet or whether the petitioner had assaulted O or attempted to assault
P was unrelated to the petitioner’s claim of self-defense; furthermore,
even if the jury had found that the petitioner did not cause J’s injury,
the state would have been entitled to an instruction on the lesser included
offense of attempt to commit assault, which carried the same penalty
as a conviction of assault.
b. There was no reasonable probability that the outcome of the petition-
er’s criminal trial would have been different, as he contended, if his
counsel had investigated and presented certain evidence in support of
his self-defense claim: although the petitioner claimed that testimony
from a mental health professional would have been critical to the jury’s
understanding of his behavior, the petitioner’s reliance on the opinions
of a psychologist who testified at the habeas trial about his state of mind
at the time of the shooting incident was undermined by the fact that the
psychologist’s evaluations of him occurred more than fifteen years after
the shooting incident, and the petitioner’s assertion that certain other
testimony about a lethal threat that purportedly had been made to him
on the day of the shooting would have corroborated his claimed belief
that the police had come to carry out the threat would not have shed
light on whether he subjectively believed at the time of the shooting that
the threat was credible or that he actually feared for his life; moreover,
the petitioner’s attempt to demonstrate that he was prejudiced by his
counsel’s failure to present that evidence was hampered by the fact that,
even if the petitioner had been able to demonstrate that he subjectively
feared for his life at the time of the shooting, the evidence at trial did
not support a conclusion that his use of deadly physical force was
objectively reasonable; furthermore, even though the habeas court incor-
rectly determined that trial counsel’s failure to investigate and present
the testimony of those witnesses in support of the petitioner’s self-
defense claim was not prejudicial because such evidence was to some
extent cumulative of the petitioner’s trial testimony, the court neverthe-
less reached the correct result, as such evidence was unlikely to have
swayed the jury to find that the petitioner’s use of force was objectively
reasonable.
c. The petitioner’s defense at trial was not prejudiced as a result of his
counsel’s failure to object pursuant to State v. Morales (232 Conn. 707)
to the state’s failure to preserve and make available to counsel the
vehicle that the officers occupied at the time of the shooting incident:
the petitioner failed to satisfy the requirement under Morales that the
vehicle was material to his defense and that the result of his trial would
have been different had it been available to him, as the evidence sup-
ported the habeas court’s determination that the petitioner failed to show
what benefit further testing beyond that presented to the jury could have
provided or that anything material was lost by virtue of the manner in
which the police stored the vehicle; moreover, it was undisputed that
the petitioner’s trial counsel had observed the vehicle in a junkyard prior
to trial and did not pursue testing of it at that time or make any further
request of the court with respect to the vehicle, and, although the petition-
er’s forensic criminologist testified at the habeas trial that certain forensic
testing could have been performed had the vehicle been stored in a
different manner, the criminologist lacked any reliable data from which
to draw conclusions and essentially speculated about what such testing
might have entailed; furthermore, defense counsel’s arguments at trial
and cross-examination of the state’s witnesses reflected counsel’s belief
that the forensic analysis of the crime scene and the vehicle that had
been performed by the state provided the defense with ample fodder to
undermine the state’s theory of the shooting.
4. The petitioner could not prevail on his claim that he was deprived of the
effective assistance of his appellate counsel:
a. Despite his contention that his appellate counsel should have chal-
lenged the trial court’s failure to instruct the jury regarding a witness
who purportedly had threatened him on the day of the shooting and
should have raised claims concerning the court’s refusal to allow him
to call the witness so that any invocation of the witness’ fifth amendment
privilege would occur on a question-by-question basis before the jury,
the petitioner did not demonstrate that counsel’s representation was
deficient, as he failed to present any authority to support his assertions
that the trial court had acted improperly, his claim amounted to little
more than speculation that a reviewing court would have found error,
and he merely asserted in conclusory fashion that raising those claims
would have resulted in a reasonable probability that he would have
prevailed in his direct appeal from his conviction.
b. The petitioner’s claim that his appellate counsel rendered deficient
performance by failing to raise a Morales claim concerning the state’s
failure to preserve the police officers’ vehicle was unavailing; contrary
to the petitioner’s contention, even if counsel had performed deficiently
by not raising a Morales claim in the petitioner’s direct appeal from his
conviction, her performance did not prejudice the petitioner, as more
than a reasonable probability existed that a reviewing court would have
rejected a Morales claim under the first condition of State v. Golding
(213 Conn. 233), the record having been devoid of an adequate factual
record as to whether a Morales violation occurred.
c. The petitioner failed to demonstrate that his appellate counsel per-
formed deficiently by failing to raise an unpreserved claim that the
prosecutor improperly vouched for J’s credibility during closing argu-
ment to the jury: the prosecutor did not improperly express a personal
belief in J’s credibility but, rather, invited the jury to infer that any
inconsistencies in J’s recollection of the shooting were the result of the
emotional state he was in at that time; moreover, the petitioner’s trial
counsel did not object to the prosecutor’s argument, and the petitioner
failed to cite any authority to support a conclusion that his appellate
counsel rendered deficient performance by failing to raise the claim or
that a reasonable probability existed that, had the claim been raised, it
would have changed the outcome of the petitioner’s direct appeal.
5. The petitioner could not prevail on his claim that the habeas court improp-
erly precluded the petitioner’s counsel from questioning the trial prose-
cutor about whether he should have known at the time of trial that
certain of P’s testimony about J’s bulletproof vest was false: counsel’s
inquiry into what additional investigation the prosecutor could have
undertaken regarding whether the vest had been struck by a bullet that
the petitioner fired was not relevant to the allegation in the habeas
petition that the prosecutor knew at the time of trial that P had provided
false testimony; because the petitioner alleged in the habeas petition
only that the prosecutor had knowingly presented false testimony but
did not allege alternatively that the prosecutor should have known that
P’s testimony was false, what the prosecutor should have known about
the vest and, thus, the veracity of P’s testimony, was not material to
the issue framed in the habeas petition.
Argued November 9, 2021—officially released September 20, 2022
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland, where the petition was withdrawn in part;
thereafter, the case was tried to the court, Newson, J.;
judgment denying the petition; subsequently, the court
denied the petition for certification to appeal, and the
petitioner appealed to this court. Appeal dismissed.
Michael W. Brown, assigned counsel, for the appel-
lant (petitioner).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Sharmese L. Walcott, state’s
attorney, and Tamara A. Grosso, former assistant
state’s attorney, for the appellee (respondent).
Opinion
SUAREZ, J. The petitioner, Jose Ayuso, appeals fol-
lowing the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his petition for a writ of habeas corpus. The petitioner
claims that the court abused its discretion in denying
his petition for certification to appeal because (1) the
prosecutor’s presentation of false or misleading testi-
mony at his criminal trial violated his due process right
to a fair trial, (2) his trial counsel’s performance was
deficient and deprived him of his right to the effective
assistance of trial counsel, (3) his appellate counsel’s
performance was deficient and deprived him of his right
to the effective assistance of appellate counsel, and (4)
the habeas court committed an evidentiary error that
entitles him to a new habeas trial. We dismiss the
appeal.
The following facts and procedural history are rele-
vant to the claims raised on appeal. Following a jury
trial in 2004, the petitioner was convicted of two counts
of assault in the first degree in violation of General
Statutes § 53a-59 (a) (5), one count of attempt to commit
assault in the first degree in violation of General Stat-
utes §§ 53a-49 (a) (2) and 53a-59 (a) (5), one count of
carrying a pistol without a permit in violation of General
Statutes § 29-35, and one count of criminal possession
of a firearm in violation of General Statutes § 53a-217
(a) (1).1 This court previously has summarized the facts
the jury reasonably could have found: ‘‘On June 5, 2003,
at approximately 1 a.m., Officers Tishay Johnson and
Victor Otero and Sergeant Gerry Pleasant of the Hart-
ford [P]olice [D]epartment were working undercover
to target street crimes in Hartford and were patrolling
the city in an unmarked, two door Toyota Tercel. At that
time, the undercover officers received a radio dispatch,
directing them to investigate the 500 block of Zion Street
for loitering and narcotics sales. Johnson then drove
northbound on Zion Street, turning right onto Park
Street. Johnson entered a driveway located between
835 and 853 Park Street and parked the vehicle in the
rear parking lot. After Johnson parked the vehicle, the
[petitioner], who had been standing underneath a
nearby tree, approached the driver’s side of the vehicle.
Pleasant immediately recognized the [petitioner] from
previous encounters. Johnson rolled down the window,
and the [petitioner] asked Johnson what he needed. In
response, Johnson asked the [petitioner] what he had.
‘‘The [petitioner] then looked inside the vehicle at
Otero, who was sitting in the backseat, and at Pleasant,
who was sitting in the front passenger seat, and then
stepped away from the vehicle. Pleasant and Johnson,
who still were seated in the front seat, heard the [peti-
tioner] load his gun, which was a .40 caliber Glock
semiautomatic handgun. Johnson also observed the
[petitioner] point the gun at him. As Johnson was exiting
the vehicle, the [petitioner] fired two gunshots in John-
son’s direction, one of which struck the bulletproof vest
that Johnson was wearing underneath his clothes. The
[petitioner] continued to shoot as he moved away from
the vehicle, and the officers also fired their .45 caliber
semiautomatic handguns. During this time, the [peti-
tioner] shot Otero several times. Johnson briefly chased
the [petitioner] down Park Street; however, Johnson
returned to the parking lot after exhausting his supply
of ammunition. Pleasant then notified the police dis-
patcher of the situation, providing a description of the
[petitioner], and requested an ambulance. Johnson, who
was experiencing pain in his ribs, and Otero, who was
bleeding from his abdomen, lay on the ground and
waited to be taken to a hospital.
‘‘Although the [petitioner] had sought refuge in a
nearby apartment building on Mortson Street,
responding officers, having been informed of the [peti-
tioner’s] whereabouts by a resident of the apartment
building, eventually located and arrested him. The
police also located the [petitioner’s] .40 caliber Glock
handgun in an apartment on Mortson Street. The [peti-
tioner] later was brought to the hospital so that the
officers could identify him. Johnson made a positive
identification of the [petitioner].’’ State v. Ayuso, 105
Conn. App. 305, 307–308, 937 A.2d 1211, cert. denied,
286 Conn. 911, 944 A.2d 983 (2008). During his criminal
trial, the petitioner was represented by Attorneys Jef-
frey Kestenband and William Paetzold. In 2005, the trial
court, Mullarkey, J., imposed a total effective sentence
of forty-one years of imprisonment, with a two year
mandatory minimum to serve.
Following his conviction, the petitioner brought a
direct appeal to this court, which affirmed the judgment
of conviction. See id., 305. Later, our Supreme Court
denied the petitioner’s petition for certification to
appeal. See State v. Ayuso, 286 Conn. 911, 944 A.2d 983(2008). The petitioner’s appellate counsel was Steph-
anie L. Evans.
The petitioner had brought a prior action for a writ
of habeas corpus, which was dismissed for failure to
prosecute. This court dismissed the petitioner’s subse-
quent appeal from the judgment rendered by the habeas
court in the prior habeas action. See Ayuso v. Commis-
sioner of Correction, 146 Conn. App. 906, 77 A.3d 216,
cert. denied, 310 Conn. 961, 82 A.3d 628 (2013).
On July 8, 2014, the petitioner commenced the under-
lying action for a writ of habeas corpus. By way of
his amended petition dated November 14, 2018, the
petitioner, represented by counsel, alleged in count one
that the prosecutor at his criminal trial violated his due
process right to a fair trial by knowingly presenting
and failing to correct false testimony that affected the
outcome of the trial. Specifically, the petitioner alleged
that Pleasant ‘‘falsely testified that Johnson was shot
by the petitioner on June 5, 2003, with a bullet that was
lodged in or otherwise damaged Johnson’s bulletproof
vest and that Pleasant witnessed damage to the vest
shortly after the shooting.’’ In count two, the petitioner
alleged that the prosecutor violated his due process
right to a fair trial by failing to disclose favorable evi-
dence to the defense, namely, ‘‘that [Johnson’s] gun
holster, which he was wearing on his right side at the
time of the shooting, was damaged by a bullet.’’ The
petitioner alleged that, if this evidence had been dis-
closed to the defense in time for it to have been relied
on at the time of trial, ‘‘the result of the petitioner’s
criminal trial would have been different and more favor-
able to the petitioner.’’ In count three, the petitioner
alleged that he did not receive the effective assistance
of counsel in connection with his criminal trial and that,
but for counsel’s deficient performance, the outcome
of the trial would have been different and more favor-
able to him. In count four, the petitioner alleged that
he did not receive the effective assistance of counsel
in connection with his direct appeal and that, but for
appellate counsel’s deficient performance, the outcome
of the appeal would have been different and more favor-
able to him. In count five, the petitioner alleged that
he was deprived of the effective assistance of counsel
in connection with his prior habeas action and that, but
for habeas counsel’s deficient performance, the out-
come of the action would have been different and more
favorable to him.
The respondent, the Commissioner of Correction,
filed a return in which he denied the substantive allega-
tions in each count of the petition. With respect to the
first and second counts of the petition, the respondent
alleged the special defense of procedural default. With
respect to counts three and four, the respondent alleged
that the allegations therein ‘‘fail to state claims upon
which relief can be granted, present the same grounds
as a previously denied/dismissed petition and fail to
state facts or to proffer new evidence not available at
the time of the prior petition, are successive in nature,
and must be dismissed pursuant to Practice Book §§ 23-
29 [and] 23-30.’’ The petitioner filed a reply in which
he denied each and every special defense on which the
respondent relied.
On April 24 and 29, and June 11, 2019, the court,
Newson, J., conducted an evidentiary hearing on the
petition for a writ of habeas corpus. Prior to trial, the
petitioner withdrew the fifth count of his petition, in
which he alleged a deprivation of his right to the effec-
tive assistance of habeas counsel in his prior habeas
action.
In a thorough memorandum of decision dated Janu-
ary 10, 2020, the habeas court addressed the merits of
the claims raised and denied the petition for a writ of
habeas corpus. We will discuss the details of the court’s
decision as necessary in the context of the claims raised
on appeal.2 The habeas court subsequently denied the
petitioner’s petition for certification to appeal to this
court. This appeal followed.
I
We first address the petitioner’s claim that the habeas
court erred in denying his petition for certification to
appeal.3 We conclude that the court’s ruling did not
constitute an abuse of its discretion.
General Statutes § 52-470 (g) provides: ‘‘No appeal
from the judgment rendered in a habeas corpus pro-
ceeding brought by or on behalf of a person who has
been convicted of a crime in order to obtain such per-
son’s release may be taken unless the appellant, within
ten days after the case is decided, petitions the judge
before whom the case was tried or, if such judge is
unavailable, a judge of the Superior Court designated
by the Chief Court Administrator, to certify that a ques-
tion is involved in the decision which ought to be
reviewed by the court having jurisdiction and the judge
so certifies.’’
‘‘‘Faced with the habeas court’s denial of certification
to appeal, a petitioner’s first burden is to demonstrate
that the habeas court’s ruling constituted an abuse of
discretion. . . . A petitioner may establish an abuse of
discretion by demonstrating that the issues are debat-
able among jurists of reason . . . [the] court could
resolve the issues [in a different manner] . . . or . . .
the questions are adequate to deserve encouragement
to proceed further. . . . The required determination
may be made on the basis of the record before the
habeas court and applicable legal principles. . . . If
the petitioner succeeds in surmounting that hurdle, the
petitioner must then demonstrate that the judgment of
the habeas court should be reversed on its merits.’ . . .
Crespo v. Commissioner of Correction, 292 Conn. 804,
811, 975 A.2d 42 (2009); see also Simms v. Warden, 230
Conn. 608, 615–16, 646 A.2d 126 (1994) (adopting factors
identified by United States Supreme Court in Lozada
v. Deeds, 498 U.S. 430, 431–32, 111 S. Ct. 860, 112 L. Ed.
2d 956 (1991), as appropriate standard for determining
whether habeas court abused its discretion in denying
certification to appeal).
‘‘ ‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by [our Supreme
Court] for determining the propriety of the habeas
court’s denial of the petition for certification.’ . . . Vil-
lafane v. Commissioner of Correction, 190 Conn. App.
566, 573, 211 A.3d 72, cert. denied, 333 Conn. 902, 215
A.3d 160 (2019).’’ Antonio A. v. Commissioner of Cor-
rection, 205 Conn. App. 46, 78–79, 256 A.3d 684, cert.
denied, 339 Conn. 909, 261 A.3d 744 (2021).
For the reasons set forth in the remainder of this
opinion, we conclude, on the basis of our review of the
record and applicable legal principles, that the peti-
tioner has not demonstrated that the claims of error
related to the court’s denial of his petition for a writ
of habeas corpus are issues that are debatable among
jurists of reason, that a court could resolve the issues
in a different manner, or that the questions are adequate
to deserve encouragement to proceed further. Accord-
ingly, we conclude that the court did not abuse its
discretion in denying the petition for certification to
appeal and, therefore, dismiss the appeal.
II
The petitioner claims that the prosecutor’s presenta-
tion of false or misleading testimony at his criminal
trial violated his due process right to a fair trial. We
are not persuaded.
This claim arises from the habeas court’s rejection
of the claim set forth in count one of the petition for
a writ of habeas corpus, in which the petitioner alleged
that ‘‘Pleasant falsely testified [at the criminal trial] that
Johnson was shot by the petitioner on June 5, 2003,
with a bullet that was lodged in or otherwise damaged
Johnson’s bulletproof vest and that Pleasant witnessed
damage to the vest shortly after the shooting.’’ The
petitioner alleged that the prosecutor knew that this
testimony was false and failed to correct the testimony.
The petitioner alleged that ‘‘[t]here is a reasonable likeli-
hood that—but for the false testimony of Pleasant about
Johnson being shot by the petitioner in the area of the
bulletproof vest—the result of the petitioner’s criminal
trial would have been different and more favorable to
the petitioner.’’
Transcripts of the criminal trial proceedings were in
evidence at the habeas trial. These reveal that, prior to
the criminal trial, defense counsel filed a motion to test
Johnson’s bulletproof vest ‘‘to determine the bullet that
struck [Johnson] [and] which firearm that came from,
if possible.’’ The prosecutor represented to the court
that the state was in possession of the bulletproof vest
worn by Johnson at the time of the shooting. The prose-
cutor also represented that, after Johnson had
inspected his vest, Johnson did not believe that the vest
had been penetrated by a bullet. The prosecutor stated
that, although Johnson’s vest had ‘‘a mark’’ on it, ‘‘I
don’t have any evidence to show that there was any
bullet associated with [Johnson’s] vest.’’ Later that day,
after defense counsel had an opportunity to inspect
Johnson’s vest, defense counsel informed the court that
‘‘the vest that [Johnson] was wearing did not appear to
contain any type of marking or bullet hole.’’ Thereafter,
defense counsel stated, ‘‘[w]e are all set on that.’’
During the criminal trial, Johnson testified that, at
the time of the shooting, he was wearing a bulletproof
vest underneath his street clothing, specifically, a foot-
ball jersey. He testified that the first gunshot fired by
the petitioner shattered the window of the unmarked
police vehicle in which he and his fellow officers were
seated. He also testified that the first or second gunshot
fired by the petitioner struck him. Johnson testified that,
after the shooting, he experienced pain. He testified, ‘‘I
laid down on the ground because I didn’t know what
type of injuries I sustained in being shot.’’ After being
examined at Hartford Hospital, he learned that he had
sustained a bruised liver and a cracked rib. Ronald
Gross, Johnson’s treating physician at Hartford Hospi-
tal, testified at the criminal trial that Johnson had ‘‘what
appeared to be a superficial abrasion wound’’ across
his right hip and abrasions on his right arm that were
consistent with ‘‘what [he] thought [was] a bullet
wound.’’
Pleasant testified at the criminal trial about what he
observed during the shooting. Pleasant testified that he
was in the front passenger seat of the unmarked police
automobile, Otero was in the backseat, and Johnson
was in the driver’s seat. Pleasant testified that the peti-
tioner and Johnson began speaking with one another,
and the petitioner, who was standing near Johnson,
made a comment that suggested he knew that Pleasant,
Otero, and Johnson were police officers. Pleasant testi-
fied that ‘‘a rapid succession of gunshots’’ by the peti-
tioner followed. Pleasant exited the automobile and
began firing his police firearm in the direction of the
petitioner, who was fleeing on foot. Pleasant testified
that he attempted to assist Johnson, who had pursued
the petitioner briefly but then ‘‘staggered back’’ to Pleas-
ant and indicated that he was ‘‘hit.’’ Pleasant testified,
‘‘I lay him down and I tore his clothes off, and I was
able to observe a small wound, a burn, really, where
the bullet had impacted the bulletproof vest and burned
his skin from the twisting action of the bullet. And then
I inspected [Otero], and it was clear to me that he was
more grievously wounded because he had some blood
coming out of his side.’’ (Emphasis added.)
At the criminal trial, the petitioner admitted discharg-
ing his .40 caliber Glock semiautomatic handgun in
the direction of the unmarked police automobile. He
testified that he ‘‘was just firing’’ at the automobile
because the driver appeared to be reaching for a fire-
arm, and he was ‘‘scared for [his] life.’’
At the habeas trial, a forensic scientist and forensic
criminologist, Brent E. Turvey, testified that his exami-
nation of the bulletproof vest that Johnson was wearing
at the time of the shooting did not reveal any damage
to the vest. Turvey also testified that, if a bulletproof
vest was struck by a bullet fired from a large caliber
weapon, he ‘‘would expect that there would be damage
to the vest. And if it was in an area where there was
one of the metal plates, I would expect . . . some indi-
cation on that plate that it had been struck. But at least
. . . any . . . strike of a bullet to the vest in any loca-
tion I would expect to be damage to the exterior of
that vest at that location.’’ Turvey acknowledged, how-
ever, that it was possible that a bullet had struck John-
son but did not strike his bulletproof vest. At the habeas
trial, Gross opined that Johnson’s injury was consistent
with a bullet hitting his bulletproof vest directly.
At the habeas trial, Pleasant testified that, when he
examined Johnson following the shooting, his primary
concern was to ascertain the nature of Johnson’s injur-
ies, not the condition of his bulletproof vest. He recalled
neither examining the vest nor whether he noticed any
damage to the vest. Pleasant testified that ‘‘Johnson
made some statement to the effect that he had been
struck. I also noticed [Otero] was attempting to join us,
and I then examined both of them for any potential
injuries. I examined [Johnson] first. In the course of
my examination, I observed what I believed at the time
was something consistent with an abrasion wound
caused by what I assumed was the twerking of vest
fibers from a bullet. I’m not a ballistics expert, but
that was my impression, which was consistent with the
events that occurred.’’ Pleasant went on to explain that
‘‘a bullet twists due to the rifling in a barrel, and I
thought that the mark on the skin would have been
caused by . . . that twerk. Now, whether or not that
actually happens, I don’t know. . . . I am communicat-
ing to you what my thoughts were at that time.’’
The prosecutor at the petitioner’s criminal trial,
James Thomas, testified at the habeas trial that the
testimony at issue from Pleasant was not false testi-
mony because, ‘‘when [Pleasant] lifted the clothing,
there was a bulletproof vest up on top of the clothing,
and I think he just assumed that whatever wound was
underneath had impacted the outer clothing, which
would have been the bulletproof vest.’’ According to
Thomas, the testimony appeared to have been based
on inferences drawn by Pleasant on the basis of the
injuries he witnessed when he inspected Johnson, as
well as the clothing that Johnson was wearing at the
time of the shooting. Thomas testified that he would
have corrected Pleasant’s testimony if he believed that
it was false testimony, and he testified that he believed
the evidence demonstrated that ‘‘Johnson was struck
with a bullet over his bulletproof vest.’’ Thomas also
testified that he believed it was possible that a bullet
could strike a bulletproof vest without causing damage
to the vest.
In rejecting the petitioner’s due process claim, the
habeas court stated: ‘‘There is no need to engage in
substantive discussion of this claim because the asser-
tion that the state knowing[ly] submitted false testi-
mony or that [Pleasant] knowingly testified falsely is
wholly without merit.
‘‘[A] conviction obtained by the knowing use of per-
jured testimony is fundamentally unfair and must be
set aside if there is any reasonable likelihood that the
false testimony could have affected the judgment of the
jury. . . . This standard . . . applies whether the
state solicited the false testimony or allowed it to go
uncorrected . . . . False testimony means testimony
that is more than simply wrong or which can be chal-
lenged factually by some other evidence or testimony.
. . . In law, [false] means something more than untrue;
it means something designedly untrue and deceitful and
implies an intention to perpetrate some treachery or
fraud. The totality of [Pleasant’s] testimony on this issue
was as follows: ‘[The petitioner] ran north through an
alley, at which point [Johnson] broke off his pursuit
and staggered back and said to me, boss, I’m hit. And
I lay him down and tore his clothes off, and I was able
to observe a small wound, a burn, really, where the
bullet had impacted the bulletproof vest and burned
his skin from the twisting action of the bullet.’ . . .
‘‘Pleasant also testified before this court and was
found to be a credible witness who simply testified to
his honest belief about what he saw in the midst of a
chaotic and traumatic event. There is no dispute that
[Johnson] suffered a significant localized injury during
this incident.4 What the petitioner disputes is whether
the bulletproof vest shows visible evidence of damage
from the bullet strike. While his testimony may be sub-
ject to challenge, or even contradicted by other evi-
dence, the petitioner has failed to provide the slightest
shred of evidence that there was any design or intent
by [Pleasant] to testify to something he knew to be
untrue. . . . The petitioner has attempted to turn a
standard conflict between eyewitness recollection and
physical evidence into an intentional falsehood. His
claim is dubious and fails for a lack of credible evi-
dence.’’ (Citations omitted; footnote in original.)
In a motion for articulation, the petitioner made the
following request of the trial court: ‘‘On what basis
did the court decline to apply the legal standard and
reasoning set forth . . . [in] Henning v. Commis-
sioner of Correction, 334 Conn. 1, [219 A.3d 334] (2019),
including but not limited to the commentary found on
page 4 at footnote 3 that, ‘under Brady [v. Maryland,
373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)]
and its progeny, it makes no difference whether [the
testimony of a state’s witness] . . . was intentionally
false or merely mistaken’?’’5
The habeas court granted the motion for articulation
with respect to this request. The court stated: ‘‘Brady
. . . is [the] beginning of the line of cases standing for
the state’s obligation to disclose exculpatory evidence,
and the line of cases that [hold that] . . . materially
inaccurate testimony will be imputed to the state’s attor-
ney. In the present case, however, Brady was not vio-
lated as a matter of law. Defense counsel had the oppor-
tunity to examine the vest in question during a pretrial
conference . . . and, at least in the opinion by [Paet-
zold], did not believe the vest in question to have any
visible damage. ‘Brady cannot be violated if the [defen-
dant] had actual knowledge of the relevant information
or if the documents are part of public records and
defense counsel should know of them and fails to obtain
them because of lack of diligence in his own investiga-
tion.’ United States v. Zamari, 111 F.3d 307, 320 (2d
Cir.), cert. denied sub nom. Herzog v. United States,
522 U.S. 983, 118 S. Ct. 445, 139 L. Ed. 2d 381 (1997),
and cert. denied sub nom. Shay v. United States, 522
U.S. 988, 118 S. Ct. 455, 139 L. Ed. 2d 390 (1997). There-
fore, although the court’s reasoning under the memo-
randum of decision was different, the result is the
same.’’ (Footnote omitted.)
The petitioner claims that the court’s analysis of his
claim was legally flawed. The petitioner argues that,
‘‘[a]t the habeas trial, [he] proved that the prosecuting
authority had presented testimony that it knew or
should have known was false or misleading about the
vest that [Johnson] was wearing at the time of the
shooting. In rejecting the claim, the habeas court mis-
characterized the nature of the claim, calling it a dispute
about ‘whether the bulletproof vest shows visible evi-
dence of damage from the bullet strike.’ . . . In fact,
the claim was that the vest was not damaged, that the
vest would be damaged if it had been struck by a bullet,
that the prosecutor knew or should have known it was
not damaged, and that his failure to correct the testi-
mony suggesting that it was damaged misled the jury
on a key issue that drove to an essential element of
one of the serious charges the petitioner was facing at
trial. Put simply, the available evidence displays John-
son’s vest was not damaged because Johnson was not
shot. Pleasant’s testimony about observing damage to
the vest was false or misleading. There is a reasonable
likelihood that this altered the jury’s verdict because,
if the jury had not been misled, there is a reasonable
likelihood that they would conclude that Johnson was
not shot, and they would at least acquit the petitioner
on one count of assault in the first degree. There is also
a reasonable likelihood [that] it would have altered their
entire verdict at the criminal trial. Further, the habeas
court erred by focusing on the mental state of the wit-
nesses who suggested to the jury that the vest was
damaged, overlooking the well established case law
holding that a witness’ subjective understanding of the
truthfulness of their testimony is not the dispositive
question in a false testimony claim. The habeas court
also erred in assessing the harm from the violation . . .
because it relied [on] the subjective beliefs of a witness
in delivering testimony that would seemingly be physi-
cally impossible.’’ (Emphasis omitted; footnote omit-
ted.)
Having discussed the petitioner’s claim, we set forth
relevant legal principles. As a general proposition,
‘‘[d]ue process is . . . offended if the state, although
not soliciting false evidence, allows it to go uncorrected
when it appears.’’ (Internal quotation marks omitted.)
State v. Ouellette, 295 Conn. 173, 186, 989 A.2d 1048(2010). This constitutional safeguard prohibits not only
the solicitation of false evidence, which is objectively
untruthful, but the solicitation of evidence that substan-
tially mischaracterizes facts and, thus, has a tendency
to mislead the finder of fact. In the context of a due
process claim arising from the testimony of two state’s
witnesses concerning the existence of inducements in
exchange for their testimony, our Supreme Court
explained: ‘‘If a government witness falsely denies hav-
ing struck a bargain with the state, or substantially
mischaracterizes the nature of the inducement, the state
is obliged to correct the misconception. . . . Regard-
less of the lack of intent to lie on the part of the witness,
[controlling precedent] require[s] the prosecutor to
apprise the court when he or she knows that the witness
is giving testimony that is substantially misleading.’’
(Internal quotation marks omitted.) Gomez v. Commis-
sioner of Correction, 336 Conn. 168, 175, 243 A.3d
1163 (2020).
‘‘The rules governing our evaluation of a prosecutor’s
failure to correct false or misleading testimony are
derived from those first set forth by the United States
Supreme Court in Brady v. Maryland, [supra, 373 U.S.
86–87] . . . [in which] the court held that the suppres-
sion by the prosecution of evidence favorable to an
accused upon request violates due process [when] the
evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the [prose-
cutor]. . . . The United States Supreme Court also has
recognized that [t]he jury’s estimate of the truthfulness
and reliability of a . . . witness may well be determina-
tive of guilt or innocence, and it is upon such subtle
factors as the possible interest of the witness in testi-
fying falsely that a defendant’s life or liberty may
depend. . . . Accordingly, the Brady rule applies not
just to exculpatory evidence, but also to impeachment
evidence . . . which, broadly defined, is evidence hav-
ing the potential to alter the jury’s assessment of the
credibility of a significant prosecution witness. . . .
‘‘Not every failure by the state to disclose favorable
evidence rises to the level of a Brady violation. Indeed,
a prosecutor’s failure to disclose favorable evidence
will constitute a violation of Brady only if the evidence
is found to be material. . . . In a classic Brady case,
involving the state’s inadvertent failure to disclose
favorable evidence, the evidence will be deemed mate-
rial only if there would be a reasonable probability of
a different result if the evidence had been disclosed.
. . . A reasonable probability of a different result is
. . . shown when the government’s evidentiary sup-
pression undermines confidence in the outcome of the
trial. . . .
‘‘When, however, a prosecutor obtains a conviction
with evidence that he or she knows or should know to
be false, the materiality standard is significantly more
favorable to the defendant. [A] conviction obtained by
the knowing use of perjured testimony is fundamentally
unfair . . . and must be set aside if there is any reason-
able likelihood that the false testimony could have
affected the judgment of the jury. . . . This standard
. . . applies whether the state solicited the false testi-
mony or allowed it to go uncorrected . . . and is not
substantively different from the test that permits the
state to avoid having a conviction set aside, notwith-
standing a violation of constitutional magnitude, upon
a showing that the violation was harmless beyond a
reasonable doubt. . . .
‘‘Furthermore, it is well established that this stringent
materiality test applies when a prosecutor elicits testi-
mony that he or she knows or should know to be false,
[r]egardless of the lack of intent to lie on the part of
the witness . . . . This strict standard of materiality is
appropriate in such cases not just because they involve
prosecutorial [impropriety], but more importantly
because they involve a corruption of the [truth seeking]
function of the trial process. . . . In light of this cor-
rupting effect, and because the state’s use of false testi-
mony is fundamentally unfair, prejudice sufficient to
satisfy the materiality standard is readily shown . . .
such that reversal is virtually automatic . . . unless
the state’s case is so overwhelming that there is no
reasonable likelihood that the false testimony could
have affected the judgment of the jury. . . . In accor-
dance with these principles, our determination of
whether . . . false testimony was material under
Brady and its progeny requires a careful review of that
testimony and its probable effect on the jury, weighed
against the strength of the state’s case and the extent
to which the petitioner . . . [was] otherwise able to
impeach [the witness]. . . . Finally, because our role
in examining the state’s case against the petitioner is
to evaluate the strength of that evidence and not its
sufficiency, we do not consider the evidence in the light
most favorable to the state. . . . Rather, we are
required to undertake an objective review of the nature
and strength of the state’s case.’’ (Citations omitted;
emphasis altered; internal quotation marks omitted.)
Henning v. Commissioner of Correction, supra, 334
Conn. 23–26.
‘‘The habeas court is afforded broad discretion in
making its factual findings, and those findings will not
be disturbed unless they are clearly erroneous. . . .
Accordingly, [t]he habeas judge, as the trier of facts, is
the sole arbiter of the credibility of witnesses and the
weight to be given to their testimony. . . . The applica-
tion of the habeas court’s factual findings to the perti-
nent legal standard, however, presents a mixed question
of law and fact, which is subject to plenary review.’’
(Citations omitted; internal quotation marks omitted.)
Gaines v. Commissioner of Correction, 306 Conn. 664,
677, 51 A.3d 948 (2012). In the present case, the material
facts found by the habeas court are not in dispute, and
the issue may be distilled to whether the prosecutor’s
failure to correct Pleasant’s testimony concerning John-
son’s bulletproof vest deprived the petitioner of his
right to due process.
In its initial decision, the habeas court rejected the
petitioner’s due process claim after concluding that
Pleasant did not intend to deceive the jury. In contrast,
in its articulation, the habeas court relied on the fact
that defense counsel had the opportunity to examine
the vest prior to the start of the trial. We agree with
the petitioner and the respondent that the court’s analy-
sis was legally flawed in both respects. As we have
stated previously, the proper focus of the habeas court’s
analysis should have been on the substance of the rele-
vant evidence to determine if it was false or substan-
tially misleading. Notwithstanding the error in the
court’s analysis, we may affirm the result reached by
the court if, in our plenary review of the issue of whether
the petitioner’s due process rights were violated, we
conclude that the same result is required by law. ‘‘An
appellate court may affirm the judgment of the [habeas]
court although it may have been grounded on a wrong
reason . . . .’’ (Internal quotation marks omitted.)
Johnson v. Commissioner of Correction, 208 Conn.
App. 204, 214 n.9, 264 A.3d 121, cert. denied, 340 Conn.
911, 264 A.3d 1001 (2021).
Following our plenary review of the relevant facts
and Pleasant’s testimony, which are not in dispute, we
conclude that the testimony was neither false nor sub-
stantially misleading. Pleasant testified at the petition-
er’s criminal trial that he ‘‘was able to observe a small
wound, a burn, really, where the bullet had impacted
the bulletproof vest and burned [Johnson’s] skin from
the twisting action of the bullet.’’ This testimony con-
veys only that Pleasant observed Johnson wearing a
bulletproof vest and that he observed a small wound
or a burn on Johnson’s torso. Pleasant did not state
that he inspected the vest or that he observed damage
to the vest. Pleasant’s reference to the injury being
located ‘‘where the bullet had impacted the bulletproof
vest and burned [Johnson’s] skin from the twisting
action of the bullet’’ does not convey, as the petitioner
suggests, that Pleasant witnessed damage to the vest.
To the extent that Pleasant referred to a bullet
impacting the vest, that appears to be his attempt at
suggesting how the physical injury that he observed
may have been caused, which was not something that
the prosecutor invited Pleasant to do. Thus, we interpret
Pleasant’s reference to the vest as incidental to his
description of the injuries he observed when he exam-
ined Johnson in the immediate aftermath of the shoot-
ing. Moreover, as we previously have discussed, the
evidence fully supported Pleasant’s reference to the
fact that a shooting occurred, as the parties agree that
the evidence reflected that Johnson was wearing a bul-
letproof vest at the time that the petitioner discharged
his .40 caliber Glock semiautomatic handgun into the
automobile in which Johnson was an occupant.
Even if we were to conclude that Pleasant’s testimony
was false or substantially misleading, however, the peti-
tioner is unable to demonstrate that the prosecutor’s
failure to correct it was fundamentally unfair because
there is no reasonable likelihood that the false testi-
mony could have affected the judgment of the jury. The
petitioner has not demonstrated that the condition of
Johnson’s vest was relevant to any material issue in the
case, including the defense of self-defense. There also
was no evidence that something other than one of the
bullets discharged by the petitioner could have caused
Johnson’s injury. In evaluating whether the state dis-
proved the defense of self-defense, the jury was asked
to focus on the circumstances in which the petitioner
used deadly physical force and whether the petitioner
reasonably believed that his undisputed use of deadly
physical force was necessary to repel the alleged
attack.6 In the context of the defense of self-defense,
it was inconsequential for the jury to determine what the
petitioner struck when he used deadly physical force
by discharging his handgun. As we stated previously,
the petitioner testified that he fired on the officers and
explained the reasons for his actions. He testified that
he ‘‘was just firing’’ his handgun and that the bullets
‘‘landed where they landed. That’s what it was, but I
was firing, man. I was trying to get out of there. That’s
all I was trying to do . . . .’’
The condition of Johnson’s vest also was not relevant
to any of the offenses of which the petitioner was con-
victed. Following the petitioner’s trial testimony, the
evidence was not in dispute that the petitioner commit-
ted the offenses of carrying a pistol without a permit
and criminal possession of a firearm. The petitioner is
unable to demonstrate that the condition of the vest
was relevant to the charge of assault in the first degree
with respect to Otero, the charge of assault in the first
degree with respect to Johnson, or the charge of attempt
to commit assault in the first degree with respect to
Pleasant. The state presented overwhelming and undis-
puted evidence that the petitioner emptied his firearm
in the direction of the unmarked police automobile in
which Otero, Johnson, and Pleasant were occupants.
The petitioner admitted to using deadly physical force
because he believed that one or more occupants of
the automobile was about to harm him. His use of the
firearm in this manner, and not the possibility that John-
son’s vest may have sustained damage caused by a
bullet, was overwhelming evidence of his intent to
cause serious physical injury.
The petitioner argues that, ‘‘[i]f the state acknowl-
edged that the vest was not damaged, and that Pleasant
was mistaken in his testimony, the jury would logically
be left to wonder how Johnson’s injury was caused.
. . . If the jury was presented with [evidence of] minor
injuries [to Johnson] and the information that the vest
was not struck by a bullet, there would be a reasonable
doubt whether Johnson was shot.’’ The petitioner also
asserts that Pleasant’s testimony about Johnson’s bul-
letproof vest was relevant to an assessment of John-
son’s credibility because the officers’ version of events
was hotly contested and ‘‘whether Johnson was shot
was put into question at the habeas trial . . . .’’ These
arguments are flawed because they overlook the fact
that, regardless of the existence of damage to Johnson’s
vest, the jury reasonably could have found that one of
the bullets fired by the petitioner caused Johnson’s
injury, the injury could have resulted from a bullet
impact regardless of whether there was any damage to
the vest, and the injury sustained by Johnson was the
result of a bullet that did not strike his vest. Moreover,
the existence of damage to Johnson’s bulletproof vest
would not have tended to undermine his trial testimony.
Johnson testified that the petitioner approached the
police automobile and, from an arm’s distance, pointed
his gun at him. He testified that the laser sight of the
petitioner’s gun was aimed at his head. According to
Johnson, he got out of the automobile, striking the
petitioner with the door. The petitioner fired two gun-
shots. Johnson said that he felt pain in the area of his
ribs after either the first or second gunshot. Johnson
testified that he experienced a ‘‘burning sensation from
the inside’’ of his body near his ribs. Johnson did not
testify that his vest had been impacted or that it had
sustained damage of any type during the shooting.
In light of the foregoing, we conclude that the peti-
tioner has not demonstrated that the habeas court
abused its discretion in denying certification to appeal
with respect to the issue of whether his due process
rights were violated by the prosecutor’s purported fail-
ure to correct Pleasant’s testimony concerning the bul-
letproof vest worn by Johnson at the time of the shoot-
ing.
III
Next, we consider the petitioner’s claim that his trial
counsel’s performance was deficient and deprived him
of his right to the effective assistance of trial counsel.
We are not persuaded.
In his petition for a writ of habeas corpus, the peti-
tioner alleged that his trial counsel were deficient in
many respects. In this claim, the petitioner challenges
the habeas court’s ruling by focusing on three aspects
of his ineffective assistance of counsel claim. We will
address these subparts of the petitioners claim in turn.
Before doing so, however, we set forth relevant legal
principles.
‘‘Our standard of review of a habeas court’s judgment
on ineffective assistance of counsel claims is well set-
tled. In a habeas appeal, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous, but our review of whether the
facts as found by the habeas court constituted a viola-
tion of the petitioner’s constitutional right to effective
assistance of counsel is plenary. . . .
‘‘The sixth amendment to the United States constitu-
tion guarantees a criminal defendant the assistance of
counsel for his defense. . . . It is axiomatic that the
right to counsel is the right to the effective assistance
of counsel. . . . To succeed on a claim of ineffective
assistance of counsel, a habeas petitioner must satisfy
the two-pronged test articulated in Strickland v. Wash-
ington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). Strickland requires that a petitioner satisfy
both a performance and a prejudice prong. 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. . . . To satisfy the prejudice
prong, a claimant must demonstrate that there is a rea-
sonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different. . . . Although a petitioner can succeed
only if he satisfies both prongs, a reviewing court can
find against the petitioner on either ground. . . .
‘‘We . . . are mindful that [a] fair assessment of
attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to recon-
struct the circumstances of counsel’s challenged con-
duct, and to evaluate the conduct from counsel’s per-
spective at the time. Because of the difficulties inherent
in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that
is, the [petitioner] must overcome the presumption that,
under the circumstances, the challenged action might
be considered sound trial strategy. . . . [C]ounsel is
strongly presumed to have rendered adequate assis-
tance and made all significant decisions in the exercise
of reasonable professional judgment. . . . Similarly,
the United States Supreme Court has emphasized that
a reviewing court is required not simply to give [coun-
sel] the benefit of the doubt . . . but to affirmatively
entertain the range of possible reasons . . . counsel
may have had for proceeding as [he or she] did. . . .
‘‘In assessing prejudice under Strickland, the ques-
tion is not whether a court can be certain counsel’s
performance had no effect on the outcome or whether
it is possible a reasonable doubt might have been estab-
lished if counsel acted differently. . . . Instead, Strick-
land asks whether it is reasonably likely the result
would have been different. . . . The likelihood of a
different result must be substantial, not just conceiv-
able. . . . In a habeas proceeding, the petitioner’s bur-
den of proving that a fundamental unfairness had been
done is not met by speculation . . . but by demonstra-
ble realities.’’ (Citation omitted; internal quotation
marks omitted.) Harris v. Commissioner of Correc-
tion, 205 Conn. App. 837, 856–58, 257 A.3d 343, cert.
denied, 339 Conn. 905, 260 A.3d 484 (2021).
A
First, the petitioner argues that the habeas court
improperly rejected his claim that trial counsel failed
to take adequate steps to inspect the bulletproof vest
worn by Johnson at the time of the shooting and failed
to investigate the condition of the vest in an attempt
to demonstrate that it contradicted the officers’ version
of events.
In its decision, the court stated: ‘‘[T]he petitioner
asserts that counsel was ineffective for failing to have
[Johnson’s] bulletproof vest examined by an expert wit-
ness and to have presented that evidence to the jury.
This claim . . . fails. While [Pleasant] testified that he
witnessed damage to [Johnson’s] vest on the night of
the incident, when the attorneys examined it in the
course of a pretrial hearing several weeks before the
trial, there did not appear to be any dispute between
counsel that there was no visible damage. The petition-
er’s expert also testified [at the habeas trial] that it
would be normal to find some indication of damage on
a bulletproof vest that had been struck by a bullet, but
he could not find any such indication on [Johnson’s]
vest. Notwithstanding, [Gross], the trauma physician
who treated [Johnson], testified that it was his opinion
that the large circular bruising and internal injuries
suffered by [Johnson] were caused by a bullet strike into
the bulletproof vest. [Gross], who also had significant
experience as a military trauma surgeon in active com-
bat zones, testified that the shape and significance of
[Johnson’s] injuries could not have been explained by
banging into the door on his way out of the [police]
vehicle. The injury, in his opinion, was caused by a high
velocity object striking his vest.
‘‘In the end, the court finds that the petitioner has
failed to prove prejudice. While the petitioner could
well have presented his expert to testify that there was
no visible external sign of a bullet strike on [Johnson’s]
vest, the court found [Gross] credible that a high veloc-
ity projectile was the only way to explain the injuries
he suffered.7 Therefore, the petitioner has failed to show
that there is a reasonable probability that the inclusion
of this evidence would have resulted in a more favorable
outcome for the petitioner.’’8 (Footnotes omitted.)
At the habeas trial, Kestenband and Paetzold testified
that there were strategic reasons for not challenging
the evidence that a bullet had caused Johnson’s injury.
Essentially, defense counsel believed that pursuing
such a strategy tended to detract from the petitioner’s
self-defense claim. Also, defense counsel reasoned that,
even if the petitioner could have cast doubt on whether
a bullet caused the injuries, it would not have afforded
him any practical benefit with respect to either the
attempted murder charge concerning Johnson, which
did not require proof of injury, or the assault charge
concerning Johnson. With respect to the latter charge,
the state could have requested a lesser included offense
instruction for attempt to assault, which did not require
proof of injury. Moreover, there also was a belief that
the presence of visible damage to the vest was not
significant. Defense counsel Paetzold, a former crimi-
nologist employed by the state, testified at the habeas
trial that he believed that it was possible that a bullet
may have impacted the vest without causing visible
damage to the vest.
With respect to this claim, the court did not focus
on the performance prong of Strickland but focused
on whether the petitioner had satisfied his burden of
demonstrating prejudice. In our plenary review, we
agree with the court’s analysis. The court properly
focused on the importance of Gross’ testimony, which
was not effectively refuted at the habeas trial, that
regardless of whether the vest reflected visible damage,
a gunshot was the only way to explain Johnson’s injur-
ies. Moreover, in light of the undisputed evidence con-
cerning the petitioner’s use of a firearm at the time of
the shooting, the issue of whether Johnson actually was
struck by a bullet was unrelated to the overriding theory
advanced by the defense, namely, that the petitioner
had acted in self-defense. It also was not relevant to
the issues of whether he had assaulted Otero or
attempted to assault Pleasant, as charged. In light of
the evidence of the timing and nature of the injuries
sustained by Johnson, the petitioner failed to demon-
strate how the condition of the vest was likely to under-
mine a finding that he caused the injuries during the
shooting. And, as the court aptly explained, even if the
jury had found that the petitioner was not the cause of
Johnson’s injuries, the state would have been entitled
to an instruction on the lesser offense of attempt to
commit assault concerning Johnson, which offense
would have exposed the petitioner to the same penalty
as a conviction of assault, which is a class B felony.
See General Statutes § 53a-59b (b) (defining class of
offense); General Statutes § 53a-51 (attempt is crime of
same grade and degree as most serious offense that is
attempted, except that attempt to commit class A felony
is class B felony).
B
Next, the petitioner claims that the court improperly
rejected his claim that trial counsel rendered deficient
representation by failing to investigate and present cer-
tain evidence in support of his claim of self-defense.
Specifically, the petitioner claims that trial counsel
should have presented the testimony of a forensic psy-
chologist to explain relevant issues concerning his men-
tal health. In support of this aspect of the claim, he relies
on the opinions expressed by Wendy Levy, a clinical
psychologist who testified at the habeas trial on his
behalf. Levy testified that she reviewed materials
related to the events at issue and evaluated the peti-
tioner over the course of two days in December, 2018,
and February, 2019. Levy opined that events in the peti-
tioner’s childhood caused the petitioner to suffer from
a developmental trauma disorder that left him in a state
of exhibiting ‘‘hyperarousal’’ and ‘‘hypervigilance.’’ Levy
also testified that this disorder would have made the
petitioner more likely than a person without this disor-
der to believe that circumstances he encountered were
dangerous. The petitioner argues that ‘‘a mental health
professional would have been critical in this case to
educate the jury about [his] specific history of trauma
and how that actually had an objective impact on [his]
perception and response to the events on that night.’’
Evidence of this nature was not presented during the
petitioner’s criminal trial.
The petitioner also argues that counsel should have
presented the testimony of Josiah Pinault, who testified
at the habeas trial but was not contacted by defense
counsel at the time of the criminal trial. Pinault testified
at the habeas trial that, at or about 10 a.m. on the day
of the shooting, he overheard an individual named Angel
Rosa deliver a lethal threat to the petitioner. Pinault
testified that, at the time of the petitioner’s criminal
trial in 2004, he was living in Connecticut and would
have testified with respect to the threat. The petitioner
argues that Pinault would have corroborated his version
of events and that doing so was ‘‘critical to convincing
the jury that [he] was in fear for his life at the time of
the incident with the officers. The reality of the prior
threat was crucial to display to the jury that the peti-
tioner had reasons to be particularly fearful in the situa-
tion. The need to investigate and present other wit-
nesses [like Pinault] was especially crucial considering
Rosa’s invocation of his fifth amendment privilege [at
the time of the criminal trial].’’
With respect to this claim, the habeas court stated:
‘‘[The petitioner] makes numerous claims that defense
counsel failed to properly investigate and present wit-
nesses to support [his] claim that he was in legitimate
fear for his life on the night of the incident because
. . . [Rosa] had threatened his life earlier that day and
that he believed the plainclothes police had come to
carry out that threat. This claim fails because the peti-
tioner has failed to establish prejudice. . . . The peti-
tioner offered the testimony of [Pinault] at the habeas
trial. He was only able to offer that he heard the verbal
disagreement and the threat being made to the peti-
tioner on the morning of the incident. The petitioner
also presented [Levy], a clinical psychologist. She
offered that the petitioner has suffered a history of
trauma and was likely in a hypervigilant state on the
night of the incident. The sum of this testimony, how-
ever, was merely cumulative to the . . . [testimony of
the petitioner], who was allowed to testify to the threat
that had been made on his life and to his general state
of mind on the night of the incident. The addition of
the testimony provided by Pinault and [Levy] was hardly
significant or compelling enough to support the slight-
est probability of a more favorable outcome. The claim
fails because there was no prejudice.’’ (Citation omit-
ted.)
We agree with the habeas court that the petitioner
is unable to demonstrate that he was prejudiced by trial
counsel’s failure to present Pinault’s testimony and the
type of psychological opinion testimony reflected in
Levy’s testimony. The petitioner argues that this testi-
mony, in addition to his testimony at the criminal trial,
would have helped to corroborate his theory of self-
defense and would have made his subjective fear for
his life at the time of the shooting more reasonable.
We disagree with the court that the failure to present
this evidence was not prejudicial because the evidence
was, to some extent, cumulative of the petitioner’s trial
testimony. We are, however, persuaded that the court
reached the correct result because the evidence at issue
was unlikely to have affected the outcome of the crimi-
nal trial.
We note that, although Pinault would have corrobo-
rated the petitioner’s trial testimony that he had been
threatened earlier on the day of the shooting, his testi-
mony could not have shed light on whether the peti-
tioner subjectively believed that the threat was credible
or whether he actually feared for his life at the time of
the shooting. Also, we disagree with the petitioner’s
belief that the type of expert opinion presented in the
form of Levy’s testimony shed light on his mental state
at the time of the shooting. The value of Levy’s opinions
is undermined by the fact that they were based on her
evaluation of the petitioner in late 2018 and early 2019.
The shooting took place in 2003. Levy did not testify
that her diagnosis would have been the same at the time
of trial in 2004. In fact, she testified that her diagnosis
of ‘‘developmental trauma disorder’’ was not a disorder
listed in the Diagnostic and Statistical Manual of Mental
Disorders, which she described as the ‘‘bible’’ of her
profession. Levy testified, however, that the petitioner
‘‘probably’’ suffered from post-traumatic stress disorder
in 2003 but that she could not be ‘‘certain’’ about that
diagnosis.
Ultimately, however, the petitioner’s attempt to dem-
onstrate prejudice is hampered by the fact that, even
if he had been able to demonstrate that he subjectively
feared for his life at the time of the shooting, the evi-
dence presented at trial did not support a conclusion
that his use of deadly physical force was objectively
reasonable. ‘‘[General Statutes §] 53a-19 sets forth the
narrow circumstances in which a person is justified in
using deadly physical force on another person in self-
defense. Under § 53a-19 (a), a person may justifiably
use deadly physical force in self-defense only if he rea-
sonably believes both that (1) his attacker is using or
about to use deadly physical force against him, or is
inflicting or about to inflict great bodily harm, and (2)
that deadly physical force is necessary to repel such
attack. . . . [T]he test a jury must apply . . . is a sub-
jective-objective one. The jury must view the situation
from the perspective of the defendant . . . [but] . . .
the defendant’s belief ultimately must be found to be
reasonable. . . .
‘‘Thus, with regard to the first requirement of self-
defense, the jury must make two separate affirmative
determinations for the defendant’s claim of self-defense
to succeed. The jury must determine whether, on the
basis of all of the evidence presented, the defendant in
fact believed that the victim was about to use deadly
physical force. . . . This initial determination typically
requires the jury to assess the veracity of witnesses,
often including the defendant, and to determine
whether the defendant’s account of his belief is in fact
credible. . . . If the jury determines that the defendant
did not believe that the victim was about to use deadly
physical force when the defendant employed deadly
force, the defendant’s self-defense claim must fail. . . .
Even if the jury finds that the defendant may have
held such a belief, if that belief was not objectively
reasonable, the self-defense claim must fail.’’ (Citations
omitted; footnotes omitted; internal quotation marks
omitted.) State v. Hughes, 341 Conn. 387, 398–99, 267
A.3d 81 (2021). We already have discussed the facts
the jury reasonably could have found concerning the
petitioner’s use of deadly physical force against the
undercover police officers. We are persuaded that the
evidence at issue in this claim was unlikely to have
swayed the jury to find that his use of force was objec-
tively reasonable. Thus, we conclude that there is no
reasonable probability that if this evidence had been
presented at trial, it would have led to a different out-
come.
C
Next, the petitioner claims that the court improperly
rejected his claim that the representation he received
from trial counsel was ineffective because they failed
to ‘‘make an adequate and appropriate objection, pursu-
ant to State v. Morales, [232 Conn. 707, 657 A.2d 585(1995)], to the state’s failure to preserve and make avail-
able the vehicle that the officers occupied at the time
of the shooting . . . .’’ We are not persuaded.
With respect to this claim, the court stated: ‘‘The
vehicle the officers occupied appears to have been
stored in a police storage yard following the incident
but was ultimately released to a local junkyard about
a year after the incident, where it was left uncovered
and exposed to the elements. [Paetzold] and Kesten-
band did go to view the vehicle at the junkyard, once
hired, and found it to be in a general state of disrepair.
The petitioner . . . has failed to prove his claim.
‘‘Where a defendant claims a violation of his right to
a fair trial due to missing or destroyed evidence, ‘the
trial court must balance the totality of the circum-
stances surrounding the missing evidence, including
the following factors: the materiality of the missing
evidence, the likelihood of mistaken interpretation of
it by witnesses or the jury, the reason for its nonavail-
ability to the defense and the prejudice to the defendant
caused by the unavailability of the evidence.’ State v.
Johnson, 288 Conn. 236, 275–77, 951 A.2d 1257 (2008),
quoting State v. Morales, supra, 232 Conn. 726–27. In
the present case, the petitioner has failed to establish
that anything truly ‘material’ to his defense was actually
destroyed or lost by the failure of the police to store
the vehicle in a different fashion. He offered the possi-
bility that various tests or examinations could have
been run on the vehicle but failed to support those
claims with any substantive evidence that those tests
or examinations would have resulted in anything signifi-
cant to the defense. The petitioner’s own expert testi-
fied that he would be speculating when asked about
possible examinations that could have been conducted
on the vehicle. For those reasons, the claim fails.’’
In order to understand the type of objection that is
at the heart of this claim, we note that, in Morales, our
Supreme Court considered what degree of protection
the due process clause of our state constitution guaran-
tees to criminal defendants when the police fail to pre-
serve potentially useful evidence. Ultimately, the court
reasoned that ‘‘the good or bad faith of the police in
failing to preserve potentially useful evidence cannot
be dispositive of whether a criminal defendant has been
deprived of due process of law. . . . [W]e . . . reject
[the notion of using a] litmus test of bad faith on the part
of the police . . . . Rather, in determining whether a
defendant has been afforded due process of law under
the state constitution, the trial court must . . . [weigh]
the reasons for the unavailability of the evidence against
the degree of prejudice to the accused. More specifi-
cally, the trial court must balance the totality of the
circumstances surrounding the missing evidence,
including the following factors: the materiality of the
missing evidence, the likelihood of mistaken interpreta-
tion of it by witnesses or the jury, the reason for its
nonavailability to the defense and the prejudice to the
defendant caused by the unavailability of the evidence.’’
(Footnote omitted; internal quotation marks omitted.)
State v. Morales, supra, 232 Conn. 726–27. In Morales,
our Supreme Court did not mandate a universal remedy
that should be afforded a defendant to offset any preju-
dice suffered as a result of unavailable evidence, instead
noting that ‘‘a trial court must decide each case
depending on its own facts, assess the materiality of
the unpreserved evidence and the degree of prejudice
to the accused, and formulate a remedy that vindicates
his or her rights.’’ Id., 729.
In order to sustain his burden of proof with respect
to his claim that trial counsel rendered ineffective assis-
tance by failing to raise a claim pursuant to Morales at
trial, the petitioner had to demonstrate not only that
counsel performed deficiently but that there is a reason-
able probability that, but for counsel’s error, the result
of the proceeding would have been different. See Har-
ris v. Commissioner of Correction, supra, 205 Conn.
App. 858. Mindful of this burden, we briefly review the
evidence presented at the habeas trial that is relevant
to the present claim. This evidentiary record includes
evidence from the petitioner’s criminal trial, including
several photographs depicting the undercover police
automobile, bullet holes in the automobile, and trajec-
tory rods placed in the bullet holes for the purpose of
shooting incident reconstruction. At the criminal trial,
Timothy Shaw, a police detective, testified that the
police were able to ‘‘reconstruct the target lines or
trajectory lines on six out of the nine [bullet] holes in
the vehicle.’’ During cross-examination, defense coun-
sel elicited through Shaw that one ‘‘trajectory line’’ from
the bullet holes in the automobile pointed in the direc-
tion of a cluster of spent shell casings that were consis-
tent with the type of firearm used by the petitioner
during the shooting. Through questioning of Shaw,
defense counsel elicited testimony that the physical
position of these particular shell casings at the shooting
scene was consistent with the petitioner’s version of
how the shooting occurred, specifically, in terms of his
distance from the undercover police automobile when
he discharged his handgun.
Moreover, defense counsel devoted a significant por-
tion of closing argument to inviting the jury to review
the shooting scene evidence and to find that it was
consistent with the petitioner’s version of how the
shooting occurred. For example, defense counsel
argued that the location of the shell casings from the
petitioner’s handgun undermined the testimony of the
police officers that the petitioner was in close proximity
to the undercover police vehicle. Relying on photo-
graphic evidence of the shooting scene that depicted
the location of the undercover police vehicle and the
location of the shell casings from the petitioner’s gun,
defense counsel argued that it was not possible that
the petitioner could have been near the vehicle and fired
the gunshots where the casings were located. Defense
counsel stated, ‘‘[t]here is no way he was near that car.’’
Defense counsel argued that the shell casings, identified
in the photographs of the shooting scene, ‘‘show where
everybody was.’’ Defense counsel also argued that the
photographs reflect that the petitioner ‘‘was never near
that car . . . .’’ Relying on the location of the shell
casings, defense counsel argued, ‘‘[t]he physical evi-
dence and your common sense tells you he was not
near that car the way [Johnson] puts him there and the
officers put him there. It just didn’t happen that way.’’
Defense counsel also devoted a portion of his argu-
ment to discussing the evidence related to the bullet
trajectory analysis that had been performed by the state
using the undercover police vehicle. Referring to photo-
graphs of the shooting scene, defense counsel argued,
‘‘[h]ow about the trajectory of the bullets? . . . If you
take a look at that when you’re deliberating, you’ll see
that the angle of those bullets does not support the
notion [that the petitioner] was shooting from anywhere
near the front of the car. The angle was from the rear
of the car. It didn’t happen the way the state wants you
to believe it happened, and that’s their theory. . . .
‘‘The state’s theory here, that he walks up to that
car, identifies them as police officers, and starts firing
because of that [and] the physical evidence tells you
that it just did not happen that way.’’
At the habeas trial, Kestenband testified that, prior
to the criminal trial, he and Paetzold examined the
automobile in the junkyard where it was being stored
by the police, but that neither he nor Paetzold consulted
an expert to inspect the automobile or raised a claim
pursuant to Morales during trial. Kestenband recalled
that there was a lack of funds to hire an investigator.
Kestenband testified that, at the criminal trial, there
was a conflict between the version of events sur-
rounding the shooting as described by the police offi-
cers and the petitioner. He aptly described this differ-
ence: ‘‘[T]he officers said that [the petitioner]
approached the car in an effort to sell them drugs. That
he either got really close to the car, maybe even had,
like, stuck his head in. And, according to the officers,
they testified that he identified them as police officers.
And the way they reached that conclusion, as I recall,
was that they said he said that you all look like a bunch
of jakes. And jakes was slang for police officers. And
[the petitioner’s] version was that he was further back
from the car. That they had driven into a parking lot
where, I believe, he was the sole occupant. That . . .
it was raining, and he might have been under a tree at
one point. He was saying to avoid the rain. That they
either drove up to him or summoned him over to the
car. . . . And that, at one point, he believed he was
about to be robbed and that he used the word jukes,
not jakes, and that jukes was slang for a robbery. And
that, by virtue of the fact that he thought he was about
to be robbed, he started firing.’’ Kestenband testified
that determining where the petitioner discharged his
firearm, in terms of his distance from the automobile,
was relevant in an assessment of which version of
events was accurate. He testified, however, that he did
not believe that determining the trajectory of the gun-
shots was ‘‘that important’’ because it ‘‘focused more
on the angle of the shots . . . [and] that the distance at
which the shots were fired was more important . . . .’’
Kestenband testified that he presumed that, ‘‘if the car
had been preserved and gunshot residue could have
been obtained, that either would have supported or
undermined the idea that [the petitioner] was close to
the car.’’ Kestenband testified that if he had believed
evidence should have been preserved that was not pre-
served, he would have raised a claim at trial pursuant
to Morales.
Similarly, Paetzold acknowledged that, at the crimi-
nal trial, there was a dispute between the version of
events related by the officers and the version of events
related by the petitioner. Paetzold testified that,
although it could have been helpful to try to undermine
the version of events related by the police officers so
as to undermine their credibility, his goal was to focus
on the ‘‘big picture’’ in this case, meaning the defense of
self-defense. Paetzold testified that he vaguely recalled
observing the automobile prior to the trial. He said
that, ‘‘in a shooting case, physical evidence is always
important and should be accessible to both sides to
investigate and see if there’s anything of evidentiary
value, including . . . looking at the holes [in the auto-
mobile] and seeing the trajectory of . . . if it’s possible
to determine the angle of how the bullets entered into
the holes.’’ Paetzold testified that ‘‘it would have been
helpful to look at the car for determination of whether
there’s gunshot residue . . . if you can get it off the
car. . . . [I]f the car was . . . outside, gunshot residue
may not be available anymore because of weather con-
ditions, et cetera.’’
Paetzold testified that, although it was ‘‘possible’’ that
he could have brought a claim under Morales in this
case, he did not recall why he did not do so. Paetzold
testified that he ‘‘probably’’ relied on his own forensic
science background in an evaluation of whether the
state had created a situation in which helpful evidence
was unavailable to the defense.
Turvey, a forensic scientist and forensic criminologist
hired by the petitioner to testify at the habeas trial,
stated that, to his knowledge, the automobile was not
available for him to inspect prior to the habeas trial
because it had been ‘‘abandoned to a junkyard, and
the location of this vehicle is now unknown.’’ Turvey
testified that the automobile was a key piece of evidence
for purposes of reconstructing the shooting and that
he had examined photographs of the automobile that
reflected an attempt to reconstruct the shooting by
means of bullet trajectory analysis. Turvey testified, in
general terms, that trajectory analysis is a component
of shooting incident reconstruction and that it could
yield information concerning a shooter’s distance from
a target. He testified that ‘‘shooting incident reconstruc-
tion’’ involves such things as trajectory analysis, ballis-
tics analysis, and gunshot residue analysis. He testified
that ‘‘[t]here’s an actual whole series of things that can
be done inside of shooting incident reconstruction to
determine the position and angle of the shooter, what
weapon they were using, their intended target, their
skill level. All these things can be inferred . . . once
you have done that shooting incident reconstruction.’’
Turvey testified, however, that, although there was pho-
tographic evidence of trajectory analysis having been
performed using the automobile, he was unaware of
any report having been generated from that analysis in
the present case.
Turvey testified that he could ‘‘[n]ot reliably’’ draw
any conclusions about the shooting without being able
to examine the automobile itself to make necessary
measurements. Turvey also testified that outdoor stor-
age of an automobile was ‘‘a very bad idea’’ in terms
of preserving it for forensic analysis because such stor-
age not only causes chain of custody problems but
permits erosion by means of the elements, thus leading
to the physical destruction of the evidence itself. Turvey
testified that ‘‘the outside elements are really bad,
depending on the region. Like, it can be . . . in some
regions it could be in extreme heat. It can be extreme
cold. It can be extreme weather conditions like rain
and wind. These things can destroy items of evidence
very quickly in terms of erosion, rust, the changes of
the items given the heat, given the cold, and washing
away of evidence, given the rain.’’
The first factor under the Morales test is materiality
of the missing or destroyed evidence. As this court has
explained, ‘‘if the state has not tested an item of evi-
dence before its loss or destruction, and no other facts
indicate that test results might have proved unfavorable
to the defendant, little more is required than a showing
that the test could have been performed and results
obtained which, in the context of the defendant’s ver-
sion of the facts, would prove exculpatory. . . . Our
courts have . . . clarified that [missing] evidence is
material only if there is a reasonable probability that,
had the evidence been disclosed to the defense, the
result of the proceeding would have been different.’’
(Citation omitted; internal quotation marks omitted.)
State v. Gray, 212 Conn. App. 193, 207, 274 A.3d 870,
cert. denied, 343 Conn. 929, A.3d (2022). This
court also has stated that ‘‘[t]he defendant’s mere specu-
lation that the [lost evidence] could have been beneficial
or not does not meet the standard necessary to prove
materiality.’’ (Emphasis in original; internal quotation
marks omitted.) State v. Fox, 192 Conn. App. 221, 237–
38, 217 A.3d 41, cert. denied, 333 Conn. 946, 219 A.3d
375 (2019).
Our careful review of the evidence presented at the
habeas trial amply supports the court’s determination
that the petitioner failed to demonstrate that anything
material to the defense was lost by virtue of the manner
in which the police stored the automobile. It is undis-
puted, and the court found, that trial counsel observed
the automobile in a junkyard prior to the criminal trial.
Counsel did not pursue testing at that time and did not
make any further request with respect to the evidence.
Although the petitioner, by means of Turvey’s testi-
mony, raised the possibility that, had the police stored
the automobile in a different manner, certain forensic
testing of it, in addition to that which the state already
had been performed, could have taken place prior to
the petitioner’s criminal trial. Turvey, however, lacking
any reliable data from which to draw conclusions,
essentially speculated about what such testing might
have entailed, let alone what it might have revealed.
‘‘The petitioner cannot rely on mere conjecture or spec-
ulation to satisfy either the performance or prejudice
prong but must instead offer demonstrable evidence in
support of his claim.’’ (Internal quotation marks omit-
ted.) Cox v. Commissioner of Correction, 127 Conn.
App. 309, 314, 14 A.3d 421, cert. denied, 301 Conn. 902,
17 A.3d 1043 (2011). Moreover, the petitioner argues
that the materiality of the forensic testing that was not
performed would have been relevant to disproving the
version of the shooting that was described by the police.
Proving that the petitioner was farther away from the
undercover vehicle when he discharged his firearm, he
argues, would have undermined the state’s case and
supported his claim of self-defense.9
As we stated previously in our discussion of the pres-
ent claim, at the criminal trial, defense counsel utilized
the results of forensic analysis of the shooting scene,
including the results of trajectory analysis that had been
performed with the use of the automobile. Rather than
suggesting that the defense was left without the benefit
of trajectory analysis, defense counsel’s cross-examina-
tion and arguments at the time of trial reflect defense
counsel’s belief that the forensic analysis of the crime
scene and the automobile that had been performed by
the state provided the defense with ample fodder to
undermine the state’s theory of the shooting. Simply
put, the petitioner in the present claim has not demon-
strated what benefit further testing could have provided
the defense above and beyond what was already pre-
sented to the jury, let alone that such further testing
could have been conducted. Thus, the petitioner has
failed to demonstrate the materiality of the allegedly
destroyed evidence in the sense that the result of the
proceeding would have been different if it had been
available to the defense at the time of the criminal trial.
Accordingly, we agree with the habeas court that the
petitioner has failed to demonstrate that his defense
was prejudiced as a result of counsel’s failure to raise
a claim under Morales on the ground that the automo-
bile was unavailable for testing due to the manner in
which it had been stored. The petitioner has failed to
prove that, had defense counsel at trial raised a claim
under Morales with respect to the automobile, such
claim would have been successful.
For the foregoing reasons, we conclude that the peti-
tioner has not demonstrated that the habeas court
abused its discretion in denying certification to appeal
with respect to the issue of whether he had been
deprived of his right to a fair trial because of ineffective
representation afforded him by trial counsel.
IV
Next, the petitioner claims that his appellate coun-
sel’s performance was deficient and deprived him of
his right to the effective assistance of appellate counsel.
We are not persuaded.
In this claim, the petitioner challenges the court’s
rejection of three aspects of his claim of ineffective
assistance of prior appellate counsel. First, he argues
that appellate counsel should have ‘‘raised a more rea-
sonable challenge to the trial court’s actions related to
[Rosa].’’ Second, he argues that appellate counsel
should have raised a claim under State v. Morales,
supra, 232 Conn. 707, ‘‘related to the trial court’s refusal
to take action related to the lack of preservation of
the officers’ vehicle.’’ Third, he argues that, although
appellate counsel raised a claim of prosecutorial impro-
priety in the petitioner’s direct appeal, the claim did
not encompass the fact that, during closing argument,
the prosecutor vouched for Johnson’s credibility. Thus,
the petitioner argues that ‘‘[a]ppellate counsel failed to
raise a critical component of the prosecutorial impropri-
ety claim on appeal.’’
We note that, in its memorandum of decision, the
habeas court rejected all of the petitioner’s ineffective
assistance of appellate counsel claims by means of the
following analysis: ‘‘The petitioner . . . claims that
[Evans] was ineffective in representing him in his direct
appeal. The court decided this matter based on the
fact that it finds no deficiency in appellate counsel’s
performance. [Evans] testified credibly that she read
through the petitioner’s case, prepared those issues she
believed had a best chance on appeal, and winnowed
out weaker arguments. That is appellate counsel’s job.
. . . The petitioner failed to present any credible evi-
dence that appellate counsel’s decision on the issues
she raised was objectively unreasonable or that she
failed to raise some other issue that had an objectively
reasonable possibility of succeeding on appeal. For
those reasons, [the claim of ineffective representation
by appellate counsel] fails.’’ (Citation omitted.)
Before addressing the arguments raised by the peti-
tioner, we set forth the applicable standard of review.
‘‘The two-pronged test of Strickland v. Washington,
[supra, 466 U.S. 687], applies to claims of ineffective
assistance of appellate counsel. . . . Strickland
requires that a petitioner satisfy both a performance and
a prejudice prong. 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. . . . To
satisfy the prejudice prong, a claimant must demon-
strate that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. . . .
‘‘[A] court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reason-
able professional assistance; that is, the [petitioner]
must overcome the presumption that, under the circum-
stances, the challenged action might be considered
sound trial strategy. . . . [C]ounsel is strongly pre-
sumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable
professional judgment. . . . In a habeas proceeding,
the petitioner’s burden of proving that a fundamental
unfairness had been done is not met by speculation
. . . but by demonstrable realities. . . .
‘‘To establish that the petitioner was prejudiced by
appellate counsel’s ineffective assistance, the petitioner
must show that, but for the ineffective assistance, there
is a reasonable probability that, if the issue were
brought before us on direct appeal, the petitioner would
have prevailed.’’ (Citations omitted; internal quotation
marks omitted.) Lewis v. Commissioner of Correction,
211 Conn. App. 77, 98–99, 271 A.3d 1058, cert. denied,
343 Conn. 924, 275 A.3d 1213 (2022).
A
The first claim of ineffective assistance of appellate
counsel pertains to the claim raised in the petitioner’s
direct appeal with respect to Rosa’s invocation of his
fifth amendment privilege during the petitioner’s crimi-
nal trial. We previously have discussed the petitioner’s
trial testimony concerning Rosa in part III B of this
opinion. The record from the petitioner’s criminal trial
reflects that, outside of the presence of the jury, Rosa
invoked his fifth amendment privilege and that the state
declined the request of the petitioner’s trial counsel to
grant Rosa immunity.
In his petition for a writ of habeas corpus, the peti-
tioner alleged in relevant part that appellate counsel
rendered ineffective assistance because she ‘‘failed to
raise a challenge to the trial court’s refusal to allow the
petitioner to call [Rosa] as a defense witness and have
any invocation of Rosa’s fifth amendment privilege
occur before the jury,’’ and ‘‘failed to raise a challenge
to the trial court’s refusal to allow the petitioner to call
[Rosa] as a defense witness and have any invocation
of Rosa’s fifth amendment privilege occur on a question-
to-question basis . . . .’’ In his posttrial brief before
the habeas court, the petitioner, relying on the evidence
presented at the habeas trial, also argued that appellate
counsel was ineffective for failing to claim that the
court erred by not addressing Rosa’s invocation of his
right not to testify. Specifically, the petitioner argued
that appellate counsel should have claimed that the trial
court erred ‘‘by not giving an appropriate instruction
related to Rosa in the event he was not called to testify.’’
The petitioner presently argues that an appropriate
instruction would have been ‘‘to inform the jury that
Rosa did exist and that the jury should not take any
adverse inference from either party’s failure to call
him.’’
The petitioner argues that, although appellate coun-
sel raised a claim in the direct appeal related to Rosa’s
invocation of his right against self-incrimination, coun-
sel followed a deficient tactical path because she ‘‘pur-
sued a low probability Hail Mary [claim] where several
more viable paths to victory were available.’’10 The peti-
tioner argues that counsel should have raised the addi-
tional arguments concerning Rosa set forth herein. He
characterizes these additional claims as ‘‘complemen-
tary alternative claims.’’
It suffices to observe that, in the petitioner’s appellate
brief, he merely asserts that the aforementioned errors
were committed by the trial court. He has failed to
present this court with any authority in support of his
assertions that the court acted improperly with respect
to Rosa’s invocation of his fifth amendment privilege
or that it was obligated to instruct the jury concerning
Rosa’s unavailability. Although the petitioner disputes
the explanation provided by appellate counsel for not
challenging on appeal the lack of a jury instruction
concerning Rosa, he does not cite to any authority for
the proposition that the trial court was compelled to
deliver the instruction in the first place. Setting aside
these fundamental deficiencies, the petitioner merely
asserts in conclusory fashion that ‘‘[t]here is a reason-
able probability that a properly presented claim related
to the testimony of Rosa would have been successful
on appeal.’’
We agree with the court that the petitioner has failed
to demonstrate that his appellate counsel’s perfor-
mance was deficient for having failed to raise these
claims. We also agree with the respondent that the
petitioner’s claim amounts to little more than specula-
tion that, even if appellate counsel’s performance was
deficient and she had raised the claims at issue, the
result of the direct appeal would have been different.
As we have explained previously, it was not sufficient
for the petitioner to demonstrate that one or more trial
errors occurred that were left unchallenged on appeal
by appellate counsel. To prevail with respect to any
aspect of the present claim at the habeas trial, the peti-
tioner bore the burden of demonstrating not merely
that a reviewing court would have found error but that
raising the claims would have resulted in a reasonable
probability that he would have prevailed on direct
appeal. See, e.g., Lewis v. Commissioner of Correction,
supra, 211 Conn. App. 99. He has failed to do so.
B
The petitioner asserts that appellate counsel ren-
dered ineffective assistance by failing to raise a claim
under Morales ‘‘related to the trial court’s refusal to
take action related to the lack of preservation of the
officers’ vehicle.’’ In part III C of this opinion, we
rejected the petitioner’s claim that trial counsel ren-
dered ineffective assistance by virtue of their failure to
raise a claim under Morales; facts underlying the
Morales claim are adequately set forth therein. The peti-
tioner correctly acknowledges that, when the issue of
the police automobile was raised at his criminal trial,
defense counsel did not seek any type of remedy. At
the criminal trial, Paetzold represented to the court that
he had seen the automobile, that it was located in a
Wethersfield junkyard, and that ‘‘[i]t’s a question . . .
whether the defense has an opportunity to view the
[automobile] in the same condition as it was in at the
time that the incident took place.’’ Nonetheless, Paet-
zold stated, ‘‘[w]e are not making an issue at this point
about that.’’ In fact, to the extent that defense counsel
had made representations or arguments concerning the
automobile, Paetzold emphasized that ‘‘it would be
appropriate to have the car stored in a better situation
than where it is now. But as far as an issue about the
car, I agree with [the prosecutor], at this point there is
no issue about the car [being raised before the court].’’
The court responded, ‘‘Excellent. Now we have an
agreement by all three of us.’’
Presently, the petitioner argues that, despite the fore-
going representations by defense counsel and, in partic-
ular, the fact that the court was not asked to provide
the petitioner with any type of remedy vis-à-vis the
automobile, ‘‘[t]he record was . . . adequate for appel-
late counsel to raise a claim under [the bypass doctrine
in State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989), as modified by In re Yasiel R., 317 Conn.
773, 781, 120 A.3d 1188 (2015)] that the petitioner’s
right to have the state . . . preserve potentially helpful
evidence was violated by the state’s failure to preserve
the evidence.’’ The petitioner also observes that, when
appellate counsel was asked about this potential claim
during the habeas trial, she ‘‘offered no explanation for
her failure to raise this claim on appeal.’’
In Golding, our Supreme Court held that ‘‘a defendant
can prevail on a claim of constitutional error not pre-
served at trial only if all of the following conditions are
met: (1) the record is adequate to review the alleged
claim of error; (2) the claim is of constitutional magni-
tude alleging the violation of a fundamental right; (3)
the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial; and (4) if
subject to harmless error analysis, the state has failed to
demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of
any one of these conditions, the defendant’s claim will
fail. The appellate tribunal is free, therefore, to respond
to the defendant’s claim by focusing on whichever con-
dition is most relevant in the particular circumstances.’’
(Emphasis in original; footnote omitted.) State v. Gold-
ing, supra, 213 Conn. 239–40.
With respect to the reviewability prong of Golding,
our Supreme Court stated that ‘‘[t]he defendant bears
the responsibility for providing a record that is adequate
for review of his claim of constitutional error. If the
facts revealed by the record are insufficient, unclear or
ambiguous as to whether a constitutional violation has
occurred, we will not attempt to supplement or recon-
struct the record, or to make factual determinations,
in order to decide the defendant’s claim.’’ Id., 240. Sub-
sequently, this court stated that ‘‘[i]t is axiomatic that
this court will not resort to speculation and conjecture
in avoidance of an inadequate record.’’ State v. Durdek,
184 Conn. App. 492, 505, 195 A.3d 388, cert. denied, 330
Conn. 934, 194 A.3d 1197 (2018).
The petitioner bears the burden of demonstrating
that, had appellate counsel raised the claim at issue
under Morales, there was a reasonable probability that
he would have prevailed in his direct appeal. See, e.g.,
Lewis v. Commissioner of Correction, supra, 211 Conn.
App. 99. Thus, the petitioner bears the burden of demon-
strating that, even if appellate counsel’s performance
was deficient for having failed to raise the present
unpreserved claim under Golding, as he argues, such
deficient representation was prejudicial because there
was a reasonable probability that a reviewing court
would have found a Golding violation that entitled him
to relief.
The petitioner has not provided this court with an
analysis of the claim under all four prongs of Golding.
With respect to Golding’s first prong, he merely argues,
without citation to authority or the record, that the
record was adequate to raise a Golding claim. Even a
cursory review of the trial court record flatly contra-
dicts this assertion. The record is devoid of an adequate
factual record with respect to whether a Morales viola-
tion had occurred. That is, despite the assumptions
made by the petitioner in his arguments before this
court, at the time of trial, there was no record made of
whether the manner in which the automobile was being
stored had resulted in the loss of material evidence.
The petitioner did not attempt to satisfy that burden
until the time of the habeas trial. There is more than a
reasonable probability that a reviewing court would
have disposed of a Golding claim, if it had been raised
by appellate counsel, under Golding’s first prong. Con-
sequently, on this record, we agree with the habeas
court that the petitioner has failed to demonstrate that
counsel acted deficiently for failing to raise this claim.
Moreover, we are persuaded that, even if appellate
counsel had acted deficiently, counsel’s performance
was not prejudicial. As we already have explained, if
an unpreserved Morales claim had been raised in the
direct appeal, a reviewing court most likely would have
concluded that it failed under Golding’s first prong. For
these alternative reasons, we conclude that the habeas
court properly rejected this claim.
C
The petitioner next asserts that his appellate counsel
rendered ineffective representation by failing to claim
in his direct appeal that the prosecutor had improperly
vouched for Johnson’s credibility during closing argu-
ment to the jury. The petitioner argues that this claim
of prosecutorial impropriety should have been raised
in conjunction with other claims of prosecutorial impro-
priety that appellate counsel raised in the direct appeal.
The following additional facts are relevant to this
claim. During the prosecutor’s rebuttal closing argu-
ment, the prosecutor drew the jury’s attention to a por-
tion of defense counsel’s closing argument that
attempted to cast doubt on Johnson’s trial testimony.
The prosecutor stated: ‘‘Now, [Johnson’s] testimony has
been criticized by my learned . . . cocounsel on
defense, you know, if you listen back to [Johnson’s]
testimony, there is a point at which it’s very chilling—
at least I thought it was chilling in his description—
and he describes the laser coming [from the petitioner’s
gun] up the car onto his body, onto his face, and that’s
when he reacted and he gets out of the car and he
shoots, whether it was the first shot or second shot
that hit him.
‘‘Now, counsel makes much of the fact that this testi-
mony didn’t match up exactly with his police report
and what he told the other officers. Well, I would argue
to you that a reasonable inference could be drawn that,
I would say, [Johnson] was a little bit upset by what
had transpired. He said on the stand that he believes
he fired his weapon at his attacker when he got out of
the car. There is no evidence of that. In fact, there is
no evidence . . . that he fired his weapon at all until
he got down the alley and onto Park Street.
‘‘Now, that tells you something about [Johnson]. He’s
a trained police officer. Someone just tried to kill him.
He’s in pain. Adrenalin is going. He never fires his
weapon, never fires his weapon at the attacker until he
gets onto Park Street after the other officers have
already emptied their guns. What does that tell you
about what’s going through his mind? He’s not thinking
clearly. He’s thinking, I just about got killed. He’s got
that loaded .45 caliber gun in his hand, and he doesn’t
discharge it. Was he nervous? I would say that almost
being killed makes you kinda nervous. It shows that.
Any surprise that his testimony here is not necessarily
consistent with what actually happened that night or his
report, which is written days after, trying to reconstruct
this, this incident.’’
The petitioner’s trial counsel did not object to this
argument. The petitioner’s appellate counsel did not
raise a claim concerning this argument. Presently, the
petitioner argues that ‘‘[t]his argument constitutes a
harmful form of vouching: the prosecutor vouching that
the inaccuracy in Johnson’s testimony actually affirms
the reliability of that testimony. In other words, if a
trained police officer could not detail to the jury accu-
rately what had happened, it could only be because the
officer had been placed in extreme danger in the line
of duty. This was inappropriate argument, and appellate
counsel should have challenged it in the petitioner’s
direct appeal.’’ The petitioner asserts that, at the habeas
trial, the petitioner’s appellate counsel did not provide
a strategic reason for failing to raise this claim on direct
appeal but, rather, reflected an erroneous belief that
she had, in fact, raised this claim in the direct appeal.
The petitioner has failed to cite any authority to sup-
port a conclusion that appellate counsel was deficient in
failing to raise this claim or that there was a reasonable
probability that, if the claim had been raised, it would
have affected the outcome of the direct appeal. Our
assessment of the claim requires that we consider,
under the appropriate analytical framework that the
petitioner seemingly overlooks in the present appeal,
the merits of the claim that impropriety deprived the
petitioner of a fair trial.11
Our courts have recognized guiding principles that
govern a prosecutor’s leeway in commenting on the
truthfulness of a witness’ testimony. ‘‘We consistently
have held that it is improper for a prosecuting attorney
to express his or her own opinion, directly or indirectly,
as to the credibility of witnesses. . . . Such expres-
sions of personal opinion are a form of unsworn and
unchecked testimony, and are particularly difficult for
the jury to ignore because of the prosecutor’s special
position. . . . Put another way, the prosecutor’s opin-
ion carries with it the imprimatur of the [state] and may
induce the jury to trust the [state’s] judgment rather
than its own view of the evidence. . . . Moreover,
because the jury is aware that the prosecutor has pre-
pared and presented the case and consequently, may
have access to matters not in evidence . . . it is likely
to infer that such matters precipitated the personal
opinions. . . .
‘‘We have held, however, that [i]t is not improper for
the prosecutor to comment [on] the evidence presented
at trial and to argue the inferences that the jurors might
draw therefrom . . . . We must give the jury the credit
of being able to differentiate between argument on the
evidence and attempts to persuade them to draw infer-
ences in the state’s favor, on one hand, and improper
unsworn testimony, with the suggestion of secret
knowledge, on the other hand.’’ (Citations omitted;
internal quotation marks omitted.) State v. Fauci, 282
Conn. 23, 35–36, 917 A.2d 978 (2007). ‘‘In claims of
improper vouching, our Supreme Court has noted that
the degree to which a challenged statement is supported
by the evidence is an important factor in determining
the propriety of that statement. The Supreme Court
[has] stated that [a] prosecutor may properly comment
on the credibility of a witness where . . . the comment
reflects reasonable inferences from the evidence
adduced at trial.’’ (Internal quotation marks omitted.)
State v. Luther, 114 Conn. App. 799, 812, 971 A.2d 781,
cert. denied, 293 Conn. 907, 978 A.2d 1112 (2009).
The petitioner has not established that an impropriety
occurred because he has failed to demonstrate that the
prosecutor expressed a personal belief in Johnson’s
credibility. The prosecutor did not baldly state that
Johnson was an honest, credible, or truthful person.
Far from suggesting that the prosecutor’s statements
were the product of his familiarity with Johnson or
facts outside of the record, his assessment of Johnson’s
trial testimony was obviously based on his explicit and
repeated references to the evidence concerning the
shooting and the reasonable inferences to be drawn
therefrom. Here, the prosecutor, confining his com-
ments to the facts in evidence, invited the jury to infer
that any inconsistencies in Johnson’s recollection of
the shooting were the result of the emotional state he
was in following the life-threatening events in which
Johnson was involved.
Having concluded that no impropriety occurred, we
agree with the habeas court that the petitioner failed to
demonstrate that his appellate counsel’s representation
was deficient for having failed to raise this claim in the
direct appeal. We likewise conclude that, even if such
claim had been raised, it is not reasonably likely that
it would have changed the outcome of the direct appeal.
For the foregoing reasons, we conclude that the peti-
tioner has not demonstrated that the habeas court
abused its discretion in denying certification to appeal
with respect to the issue of whether he had been
deprived of his right to a fair trial because of ineffective
representation afforded him by appellate counsel.
V
Finally, the petitioner claims that the habeas court
committed an evidentiary error that entitles him to a
new trial.12 We are not persuaded.
The following additional facts are relevant to this
claim. In the habeas petition, the petitioner alleged in
count one that his right to due process and a fair trial
were violated by the prosecutor’s ‘‘knowing presenta-
tion of false testimony.’’ Specifically, the petitioner
alleged that ‘‘Pleasant falsely testified that Johnson was
shot by the petitioner on June 5, 2003, with a bullet
that was lodged in or otherwise damaged Johnson’s
bulletproof vest and that Pleasant witnessed damage
to the vest shortly after the shooting.’’ The petitioner
alleged that ‘‘[t]he prosecuting authority and judicial
authority were aware that this testimony was false.’’
(Emphasis added.)
The record reflects that, during examination of the
prosecutor by the petitioner’s habeas counsel, the peti-
tioner’s counsel asked whether the prosecutor had ‘‘a
belief about whether the vest could have been struck
by a bullet and not be damaged . . . .’’ The prosecutor
replied, ‘‘I think it’s possible.’’ The petitioner’s counsel
then asked the prosecutor if he undertook ‘‘any investi-
gation in this case to look at that . . . .’’ The prosecutor
replied that he did not recall. The petitioner’s counsel
then asked, ‘‘[a]nd if you had wanted to do that, did
you know someone you could call to explore that?’’
The respondent objected on the ground that the inquiry
was irrelevant to the petitioner’s claim that the prosecu-
tor knew that Pleasant had provided false testimony.
The court sustained the objection. The court stated
that any inquiry into what additional investigation could
have been undertaken by the prosecutor was irrelevant
to the petitioner’s claim, which was based on ‘‘what he
knew and what he did.’’ The petitioner’s counsel stated
that be believed the inquiry was proper because it was
relevant to proving that the prosecutor knew ‘‘or should
have known that it was false.’’
The petitioner, without citing to any legal authority,
argues that the court’s ruling was erroneous because
‘‘the legal standard is whether the prosecuting authority
knew or should have known that the testimony was
false. Exploring the availability of reliable forensic
information once the issue was raised with the prosecu-
tor was relevant to the question of whether he knew
or should have known that the jury was being misled.’’
‘‘We review the trial court’s decision to admit [or
exclude] evidence, if premised on a correct view of the
law . . . for an abuse of discretion. . . . We will make
every reasonable presumption in favor of upholding the
trial court’s ruling, and only upset it for a manifest
abuse of discretion. . . . The trial court has wide dis-
cretion to determine the relevancy [and admissibility]
of evidence . . . . In order to establish reversible error
on an evidentiary impropriety . . . the defendant must
prove both an abuse of discretion and a harm that
resulted from such abuse.’’ (Citations omitted; internal
quotation marks omitted.) State v. Cecil J., 291 Conn.
813, 818–19, 970 A.2d 710 (2009).
‘‘ ‘Relevant evidence’ means evidence having any ten-
dency to make the existence of any fact that is material
to the determination of the proceeding more probable
or less probable than it would be without the evidence.’’
Conn. Code Evid. § 4-1. ‘‘As it is used in our code,
relevance encompasses two distinct concepts, namely,
probative value and materiality. . . . Conceptually, rel-
evance addresses whether the evidence makes the exis-
tence of a fact material to the determination of the
proceeding more probable or less probable than it
would be without the evidence. . . . In contrast, mate-
riality turns upon what is at issue in the case, which
generally will be determined by the pleadings and the
applicable substantive law. . . . If evidence is relevant
and material, then it may be admissible.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) State v. Zillo, 124 Conn. App. 690, 696–97, 5
A.3d 996 (2010), cert. denied, 334 Conn. 923, 223 A.3d
380 (2020).
Generally, ‘‘[a] habeas corpus action, as a variant of
civil actions, is subject to the ordinary rules of civil
procedure, unless superseded by the more specific rules
pertaining to habeas actions . . . .’’ (Internal quotation
marks omitted.) Nelson v. Commissioner of Correction,
326 Conn. 772, 782, 167 A.3d 952 (2017). ‘‘It is well
settled that [t]he petition for a writ of habeas corpus
is essentially a pleading and, as such, it should conform
generally to a complaint in a civil action. . . . The prin-
ciple that a plaintiff may rely only upon what he has
alleged is basic. . . . It is fundamental in our law that
the right of a plaintiff to recover is limited to the allega-
tions of his complaint. . . . While the habeas court
has considerable discretion to frame a remedy that is
commensurate with the scope of the established consti-
tutional violations . . . it does not have the discretion
to look beyond the pleadings and trial evidence to
decide claims not raised.’’ (Internal quotation marks
omitted.) Abdullah v. Commissioner of Correction, 123
Conn. App. 197, 202, 1 A.3d 1102, cert. denied, 298 Conn.
930, 5 A.3d 488 (2010). ‘‘[A] habeas petitioner is limited
to the allegations in his petition, which are intended to
put the [respondent] on notice of the claims made, to
limit the issues to be decided, and to prevent surprise.’’
(Internal quotation marks omitted.) Moye v. Commis-
sioner of Correction, 316 Conn. 779, 789, 114 A.3d
925 (2015).
The petitioner does not dispute that the claim framed
in count one of his amended petition was based on the
prosecutor’s knowing presentation of false evidence;
he did not base his claim on the alternative ground
that the prosecutor should have known that Pleasant’s
testimony was false. Likewise, the petitioner does not
dispute that the inquiry prohibited by the court, into
what further investigation the prosecutor could have
undertaken concerning the bulletproof vest, was not
relevant to what the prosecutor actually knew at the
time of trial and what he did during the trial. To the
extent that the inquiry might have been probative with
respect to what the prosecutor should have known with
respect to the vest and, thus, the veracity of Pleasant’s
testimony, it was not material to an issue framed by
the petitioner’s amended petition. Accordingly, we con-
clude that the court, relying on the ground of relevance,
properly exercised its discretion by excluding the
inquiry.13
For the foregoing reasons, we conclude that the peti-
tioner has not demonstrated that the habeas court
abused its discretion in denying certification to appeal
with respect to the evidentiary issue addressed in
this claim.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The jury found the petitioner not guilty of three counts of attempt to
commit murder in violation of General Statutes §§ 53-49 (a) (2) and 53a-
54a and three counts of assault of public safety personnel in violation of
General Statutes § 53a-167c (a) (2).
2
The court later granted in part and denied in part the petitioner’s motion
for articulation of its decision.
3
Mindful that a petitioner is unable to demonstrate that a court abused
its discretion in denying a petition for certification to appeal with respect
to a ground that was not raised before the habeas court in support of the
petition; see, e.g., Tutson v. Commissioner of Correction, 144 Conn. App.
203, 216–17, 72 A.3d 1162, cert. denied, 310 Conn. 928, 78 A.3d 145 (2013);
we observe that the grounds set forth in the petition for certification to
appeal encompass the claims raised in this appeal.
4
The habeas court stated that Johnson ‘‘was ultimately diagnosed with
a bruised liver and [a] cracked rib on his right side.’’
5
‘‘The rules governing our evaluation of a prosecutor’s failure to correct
false or misleading testimony are derived from those first set forth by the
United States Supreme Court in Brady v. Maryland, [supra, 373 U.S. 86–87].’’
Adams v. Commissioner of Correction, 309 Conn. 359, 369, 71 A.3d 512(2013).
6
As the court instructed the jury in this case, ‘‘[t]he starting point of the
inquiry is whether the [petitioner] believed that the degree of force he used
was necessary. Next, you must focus on whether that belief was reasonable.
In doing so, you must view the [petitioner’s] belief from his standpoint at
. . . the time and under all of the existing circumstances. The test is not
what the complainants in this case intended—that would be [Johnson, Otero
and Pleasant]—but what the [petitioner], in fact, believed and whether that
belief was reasonable.’’
7
The court noted that the evidence at the petitioner’s criminal trial
reflected that Johnson had sustained a bruised liver and a cracked rib.
8
The court also stated: ‘‘While the petitioner was convicted of assault [in
the] first degree as to [Johnson], which necessarily required proof that he
caused injury with a deadly or dangerous weapon, he was also charged with
attempt to commit assault in the first degree, in the alternative. Therefore,
even if counsel had been successful in convincing a jury that the petitioner’s
bullet did not actually strike [Johnson], there is irrefutable evidence that
he pointed the gun directly at him and fired at least twice, and [a] conviction
for attempted assault in the first degree would have exposed him to the
same penalties.’’
We note that, although the court incorrectly stated that the petitioner had
been charged with assault in the first degree with respect to Johnson, its
rationale is still sound, as the state was entitled to seek a lesser included
offense instruction with respect to the charge of attempt to commit assault
in the first degree.
9
The petitioner argues that he satisfied Morales’ materiality requirement
because Turvey ‘‘testified [that] a preserved car would be critical to examine
questions of the position and distance of the petitioner at the time of the
shooting, a question that drove to the core of the disputed facts at the
petitioner’s criminal trial.’’
10
In the petitioner’s direct appeal, this court summarized the petitioner’s
claim as follows: ‘‘The [petitioner] raises multiple claims regarding the asser-
tion by a witness, Angel Rosa, of his fifth amendment privilege against self-
incrimination. On appeal, the [petitioner] claims that he was deprived of
his constitutional right to compulsory process to produce witnesses on his
behalf under the sixth amendment to the United States constitution and
that he was forced to waive his constitutional right to remain silent under
the fifth amendment. The [petitioner] argues that his constitutional rights
were violated by Rosa’s assertion of an invalid fifth amendment privilege
against self-incrimination and, in the alternative, by the court’s refusal to
compel the prosecution to grant the witness immunity.’’ (Footnote omitted.)
State v. Ayuso, supra, 105 Conn. App. 309–10. This court rejected the petition-
er’s claims in this regard. See id., 315, 319.
11
‘‘In analyzing claims of prosecutorial impropriety, we engage in a two
step analytical process. . . . We first examine whether prosecutorial impro-
priety occurred. . . . Second, if an impropriety exists, we then examine
whether it deprived the defendant of his due process right to a fair trial.
. . . [T]he defendant has the burden to show both that the prosecutor’s
conduct was improper and that it caused prejudice to his defense. . . .
‘‘In determining whether the defendant was deprived of his due process
right to a fair trial, we are guided by the factors enumerated by [our Supreme
Court] in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). These
factors include [1] the extent to which the [impropriety] was invited by
defense conduct or argument, [2] the severity of the [impropriety], [3] the
frequency of the [impropriety], [4] the centrality of the [impropriety] to the
critical issues in the case, [5] the strength of the curative measures adopted,
and [6] the strength of the state’s case. . . . [A] reviewing court must apply
the Williams factors to the entire trial, because there is no way to determine
whether the defendant was deprived of his right to a fair trial unless the
[impropriety] is viewed in light of the entire trial. . . . The question of
whether the defendant has been prejudiced by prosecutorial [impropriety]
. . . depends on whether there is a reasonable likelihood that the jury’s
verdict would have been different absent the sum total of the improprieties.’’
(Internal quotation marks omitted.) State v. Sinclair, 332 Conn. 204, 236–37,
210 A.3d 509 (2019).
12
We note that, in the petitioner’s statement of the claim in his brief, he
refers to the court’s having committed ‘‘several evidentiary errors . . . .’’
The petitioner, however, limits his analysis of this claim to the single eviden-
tiary ruling that we review herein.
13
The petitioner argues that, if the evidence did not demonstrate that the
prosecutor knew or should have known that the testimony about the vest
was false or misleading, ‘‘a remand is appropriate because the habeas court’s
limitation on this questioning was an abuse of discretion.’’ Having concluded
that the court properly limited the scope of the petitioner’s inquiry, we reject
this argument.