Taft v. Commissioner of Correction ( 2015 )

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OREMA TAFT v. COMMISSIONER
OF CORRECTION
(AC 36118)
Lavine, Prescott and Elgo, Js.
Argued May 12—officially released September 8, 2015
(Appeal from Superior Court, judicial district of
Tolland, Kwak, J.)
Mark M. Rembish, assigned counsel, for the appel-
lant (petitioner).
Linda Currie-Zeffiro, senior assistant state’s attor-
ney, with whom, on the brief, was John C. Smriga,
state’s attorney, for the appellee (respondent).
Opinion
PRESCOTT, J. The petitioner, Orema Taft, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the court abused its
discretion by denying his petition for certification to
appeal, and improperly rejected his claims that his trial
counsel provided ineffective assistance in three ways:
(1) failing to adequately investigate the state’s offer of
a reward and the prior testimony of witnesses at the
trial of his codefendant; (2) failing to cross-examine
witnesses about a witness’ recantation of a prior state-
ment inculpating the petitioner, and about the state’s
offer of a reward; and (3) allegedly conceding during
closing arguments that the petitioner was involved in
the crime.1 We agree with the petitioner that his claim
that his trial counsel rendered deficient performance
by failing to conduct an adequate investigation and by
relying solely on the opinion of an attorney representing
a codefendant regarding the significance, or lack of
significance, of evidence admitted at the trial of the
codefendant, raises an issue that is debatable amongst
jurists of reason. Nevertheless, on the basis of the
record, we conclude that the habeas court did not abuse
its discretion by denying the petition for certification to
appeal with respect to this claim because the petitioner
failed to demonstrate that a debatable issue concerning
prejudice exists. As to the remainder of the petitioner’s
claims, we also conclude that that habeas court did not
abuse its discretion by denying certification to appeal.
Accordingly, we dismiss the appeal.
The following procedural history and facts, as found
by the habeas court and as stated by our Supreme Court
in State v. Taft, 306 Conn. 749, 51 A.3d 988 (2012), are
relevant to this appeal. ‘‘On September 28, 2001, shortly
before 3 a.m., the victim, Zoltan Kiss, was shot and
killed in his car in the area of 1185 Pembroke Street in
Bridgeport. Just prior to the shooting, the victim parked
his car across from 1185 Pembroke Street, exited the
vehicle, approached some individuals on the street to
seek change for a $100 bill and, thereafter, approached
a gate leading to an alley next to 1185 Pembroke Street
(gate). Shortly thereafter, a group of people, including
the [petitioner], exited from behind the gate and fol-
lowed the victim as he returned to his car. When the
victim reached his car, at least one of the pursuers,
Miguel Zapata, began firing a handgun at the victim.
Additionally, before the gunfire, one witness heard
someone in the group say, ‘Let’s get this mother
fucker.’ ’’ (Footnote omitted.) Id., 751–52.
Both Zapata and the petitioner were eventually
arrested and charged with the victim’s murder. Zapata
and the petitioner were tried separately, with Zapata’s
trial occurring prior to the petitioner’s trial. Zapata was
represented by Attorney Frank O’Reilly during his crimi-
nal trial. The prosecutor for both criminal trials was C.
Robert Satti, Jr. During the petitioner’s trial, the state
offered the testimony of five witnesses,2 in addition
to that of the police officers and detectives. ‘‘[T]wo
witnesses, A and B, testified that they had seen the
[petitioner] in the area behind the gate with a number
of other individuals [prior to the shooting]. A and B
also testified that they had seen guns behind the gate
where the [petitioner] and his companions were
located. Both A and B recounted that they had seen
the victim park his car across the street from the gate
and approach the gate. A testified that she had seen
the victim interact with someone behind the gate and
then begin to return to his car. Shortly thereafter, A
saw the group behind the gate chase after the victim,
and A further recounted that she had seen both Zapata
and the [petitioner] carrying guns as they pursued the
victim to his car. B also testified that she had heard
someone say, ‘Let’s get this mother fucker’ before gun-
fire erupted. Both A and B then testified that they had
heard shouting and gunfire, and had seen the muzzle
flashes as the guns were fired at the victim.
‘‘The state then presented the testimony of another
witness, C, who, at the time of the shooting lived in a
third floor apartment of a nearby building. C stated
that, at approximately 2 or 3 a.m., on September 28,
2001, she had heard gunfire coming from the street
located in front of her apartment. When she went to
investigate the noise, C saw four people—the [peti-
tioner], Zapata, Luisa Bermudez and A—standing in
front of the door of a car on the street. C further
recounted that she had seen the muzzle flashes as the
guns were fired at the victim, and she had heard the
victim screaming. She also stated that, from her per-
spective, she could only see Zapata holding a gun and
that, after the shooting stopped, the group ran from the
scene.’’ (Footnotes omitted.) Id., 753–54.
In addition to the testimony of A, B, and C, ‘‘the state
presented testimony from several individuals who had
had contact with the [petitioner] while the charges in
the present case were pending. First, D testified that
he was incarcerated in the same prison as the [peti-
tioner], and that the [petitioner] had told him that he
and Zapata had shot a ‘dude’ in a Honda seven times
with a .45 caliber gun. D then recounted that the [peti-
tioner] had told him that he and Zapata had chased
after the victim because they wanted to take the victim’s
jewelry. Then, the state presented the testimony of [Ger-
maine O’Grinc],3 who testified that, during one of his
court appearances in connection with a felony charge,
he was in the ‘bullpen lockup’ of the courthouse with
the [petitioner] and Zapata. [O’Grinc] recounted that
Zapata had told him that he was in court because he and
the [petitioner] had shot a person in his car. [O’Grinc]
further testified that the [petitioner] had confirmed or
‘vouched for’ Zapata’s statements and had nodded in
agreement while Zapata was talking to [O’Grinc].’’
(Footnote added.) Id., 755.
On September 19, 2007, following a jury trial, the
petitioner was convicted of one count of murder in
violation of General Statutes § 53a-54a (a) and one
count of conspiracy to commit murder in violation of
General Statutes §§ 53a-48 (a) and 53a-54a (a). The trial
court sentenced him to a total effective term of forty-
five years incarceration. At all relevant times during
the criminal trial court proceedings, the petitioner was
represented by Attorney Erroll Skyers.
The petitioner filed a direct appeal from the judgment
of conviction, raising, among other things, a claim of
ineffective assistance of counsel resulting from his trial
counsel’s failure to cross-examine witnesses about the
reward and his failure to cross-examine a witness about
a prior recantation of a statement inculpating the peti-
tioner. Id., 767–69. Our Supreme Court declined, how-
ever, to address the merits of the petitioner’s ineffective
assistance of counsel claim. Id., 769.
On July 8, 2010, the petitioner filed a petition for a
writ of habeas corpus, asserting that he was denied his
right to effective assistance of counsel. He amended
his petition twice, with the second amended petition
being filed on December 10, 2012. Following a habeas
trial, the court issued its memorandum of decision on
August 27, 2013, denying the petition in its entirety, and
finding that the petitioner had failed to prove that he
was denied effective assistance of counsel under the
two-pronged test set forth in Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). On August 30, 2013, the petitioner filed a petition
for certification to appeal, which the habeas court
denied on September 6, 2013. This appeal followed.
Additional facts relevant to the petitioner’s appeal will
be set forth as necessary.
We begin by setting forth the standard of review
that guides our resolution of the petitioner’s appeal. ‘‘In
Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601
(1994), [our Supreme Court] concluded that . . . [Gen-
eral Statutes] § 52-470 (b) prevents a reviewing court
from hearing the merits of a habeas appeal following
the denial of certification to appeal unless the petitioner
establishes that the denial of certification constituted
an abuse of discretion by the habeas court. In Simms
v. Warden, 230 Conn. 608, 615–16, 646 A.2d 126 (1994),
[our Supreme Court] incorporated the factors adopted
by the 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 the appropriate standard for determining
whether the habeas court abused its discretion in deny-
ing certification to appeal. This standard requires the
petitioner to demonstrate that the issues 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.
. . . A petitioner who establishes an abuse of discretion
through one of the factors listed above must then dem-
onstrate that the judgment of the habeas court should
be reversed on its merits. . . . 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 reason-
ably determined that the petitioner’s appeal was frivo-
lous.’’ (Emphasis in original; internal quotation marks
omitted.) Tutson v. Commissioner of Correction, 144
Conn. App. 203, 214–15, 72 A.3d 1162, cert. denied, 310
Conn. 928, 78 A.3d 145 (2013).
I
To decide if the habeas court abused its discretion
by denying certification to appeal, we must look to the
merits of the underlying claim of ineffective assistance
of counsel. ‘‘[I]t is well established that [a] criminal
defendant is constitutionally entitled to adequate and
effective assistance of counsel at all critical stages of
criminal proceedings. Strickland v. Washington,
[supra, 466 U.S. 686]. This right arises under the sixth
and fourteenth amendments to the United States consti-
tution and article first, § 8, of the Connecticut constitu-
tion. . . . As enunciated in [Strickland], this court has
stated: It is axiomatic that the right to counsel is the
right to the effective assistance of counsel.’’ (Internal
quotation marks omitted.) Gaines v. Commissioner of
Correction, 306 Conn. 664, 677–78, 51 A.3d 948 (2012).
To establish ineffective assistance of counsel under
the Strickland standard, ‘‘the claim must be supported
by evidence establishing that (1) counsel’s representa-
tion fell below an objective standard of reasonableness,
and (2) counsel’s deficient performance prejudiced the
defense because there was a reasonable probability
that the outcome of the proceedings would have been
different had it not been for the deficient performance.
. . . Because both prongs of Strickland must be dem-
onstrated for the petitioner to prevail, failure to prove
either prong is fatal to an ineffective assistance claim.’’
(Citations omitted; internal quotation marks omitted.)
Hall v. Commissioner of Correction, 152 Conn. App.
601, 608, 99 A.3d 1200, cert. denied, 314 Conn. 950, 103
A.3d 979 (2014).
A
The petitioner first claims that the habeas court
improperly denied his claim of ineffective assistance of
counsel because Skyers failed to adequately investigate
the facts of his case. Specifically, the petitioner asserts
that Skyers failed to investigate or discover (1) the
state’s offer of a reward; (2) the testimony of witnesses
at Zapata’s trial concerning the reward offered by the
state; and (3) O’Grinc’s testimony at Zapata’s trial, dur-
ing which O’Grinc recanted a statement inculpating the
petitioner that he previously made to the police. Under-
lying all three assertions is the petitioner’s predicate
claim that it is deficient performance for an attorney
to rely solely on the representations of a codefendant’s
counsel to decide the scope of an appropriate investiga-
tion into his client’s case.
The following additional facts are relevant to this
claim. Prior to the petitioner’s arrest, due to the stalled
nature of the investigation of the victim’s murder, the
governor signed an offer of a $50,000 reward for infor-
mation leading to the ‘‘arrest and conviction’’ of the
guilty parties. A, B, and C knew about the reward and
each received a portion of the reward money after the
petitioner’s conviction. All three witnesses testified at
Zapata’s trial, which occurred prior to the petitioner’s
trial, and O’Reilly cross-examined all three witnesses
about the reward. O’Reilly also cross-examined O’Grinc
about a statement inculpating the petitioner and Zapata,
which O’Grinc had previously made to the police. On
cross-examination, at Zapata’s trial, O’Grinc recanted
his prior statement inculpating the petitioner. State v.
Zapata, 119 Conn. App. 660, 667–68, 989 A.2d 626, cert.
denied, 296 Conn. 906, 992 A.2d 1136 (2010).
In preparation for the petitioner’s trial, Skyers did not
attend Zapata’s trial. Instead, Skyers spoke to O’Reilly
about what had occurred at Zapata’s trial and discussed
with him who the important witnesses were. Relying
on O’Reilly’s representations, Skyers did not order all
of the transcripts from Zapata’s trial, including any por-
tion of O’Grinc’s testimony. Skyers did request and read
the trial transcripts of the testimony of A, B, and C.
At the petitioner’s criminal trial, Skyers did not cross-
examine any of the witnesses about the reward and did
not confront O’Grinc about his recantation. O’Grinc
testified against the petitioner in accordance with his
prior statement inculpating the petitioner by stating
that while in lockup with the petitioner and Zapata,
Zapata admitted to his and the petitioner’s involvement
in the murder, and the petitioner nodded in agreement.
The habeas court found that Skyers ‘‘was aware of
and investigated the reward. He spoke with [O’Reilly]
and reviewed relevant portions of the codefendant’s
criminal trial transcripts. After these efforts, [Skyers]
made an informed tactical decision to not pursue a line
of questioning that had already proved to be unfruitful
in [Zapata’s] trial.’’ The habeas court, however, did not
make a specific finding regarding precisely when Skyers
became aware of the reward.4
Inadequate pretrial investigation can amount to defi-
cient performance, satisfying prong one of Strickland,
as ‘‘[c]onstitutionally adequate assistance of counsel
includes competent pretrial investigation.’’ Siemon v.
Stoughton, 184 Conn. 547, 554, 440 A.2d 210 (1981).
Although we acknowledge that ‘‘counsel need not track
down each and every lead or personally investigate
every evidentiary possibility before choosing a defense
and developing it’’; (internal quotation marks omitted)
Gaines v. Commissioner of Correction, supra, 306
Conn. 683; ‘‘[e]ffective assistance of counsel imposes
an obligation [on] the attorney to investigate all sur-
rounding circumstances of the case and to explore all
avenues that may potentially lead to facts relevant to
the defense of the case.’’ (Internal quotation marks
omitted.) Id., 680. ‘‘In other words, counsel has a duty to
make reasonable investigations or to make a reasonable
decision that makes particular investigations unneces-
sary.’’ (Internal quotation marks omitted.) Id.
If counsel makes strategic decisions after thorough
investigation, those decisions ‘‘are virtually unchal-
lengeable . . . .’’ (Internal quotation marks omitted.)
Id.. In particular, ‘‘our habeas corpus jurisprudence
reveals several scenarios in which courts will not sec-
ond-guess defense counsel’s decision not to investigate
or call certain witnesses or to investigate potential
defenses, such as when: (1) counsel learns of the sub-
stance of the witness’ testimony and determines that
calling that witness is unnecessary or potentially harm-
ful to the case; (2) the defendant provides some infor-
mation, but omits any reference to a specific individual
who is later determined to have exculpatory evidence
such that counsel could not reasonably have been
expected to have discovered that witness without hav-
ing received further information from his client; or (3)
the petitioner fails to present, at the habeas hearing,
evidence or the testimony of witnesses that he argues
counsel reasonably should have discovered during the
pretrial investigation.’’ (Footnotes omitted.) Id., 681–82;
see e.g., Norton v. Commissioner of Correction, 132
Conn. App. 850, 859, 33 A.3d 819 (2012) (‘‘[T]he peti-
tioner has not presented us with any beneficial testi-
mony from these witnesses that would demonstrate
how they would have assisted in his case had trial
counsel interviewed them. He makes only the bare alle-
gation,’’ which is not sufficient to show prejudice.), cert.
denied, 303 Conn. 936, 36 A.3d 695 (2012).
Not every failure to investigate, however, can be dis-
missed as trial strategy. Here, the petitioner’s claim of
inadequate investigation is premised on the underlying
assertion that Skyers relied solely on the representa-
tions of O’Reilly when investigating what occurred at
Zapata’s trial and deciding what evidence from Zapata’s
trial was important to the petitioner’s case.
We agree for the following reasons that, under the
circumstances of this case, Skyer’s sole reliance on the
representations and opinions of O’Reilly regarding what
evidence from Zapata’s trial would be important for the
defense of the petitioner raises a meritorious claim of
deficient performance.5 First, O’Reilly would not have
been privy to privileged conversations between Skyers
and the petitioner. Knowledge of those communications
would be significant in order to analyze the relative
importance of the evidence and testimony presented at
Zapata’s trial. Moreover, O’Reilly had no duty of loyalty
to the petitioner to exercise care and appropriate pro-
fessional judgment in assessing the importance to the
petitioner of the evidence in Zapata’s trial. Indeed, in
these circumstances, it may well be that because Zapata
already had been convicted at his trial, Zapata might
have had personal interests that significantly diverged
from the interests of the petitioner. Simply put, the
petitioner is entitled to counsel who has not abdicated
to another his or her duty to make an informed and
independent assessment of the importance of evidence
to the client’s case.6
Our conclusion is supported by Rios v. Rocha, 299
F.3d 796 (9th Cir. 2002). In Rios, the United States
Court of Appeals for the Ninth Circuit held that the trial
attorney failed to adequately investigate the defendant’s
case because he relied solely on the investigation
reports and trial materials prepared by the attorney for
the codefendant.7 Id., 807. The trial attorney relied solely
on the investigative efforts of the codefendant’s attor-
ney in locating and interviewing the witnesses; he per-
sonally interviewed only one of the fifteen witnesses.
Id., 806. In reversing the District Court’s conclusion
that the investigation was constitutionally adequate, the
United States Court of Appeals for the Ninth Circuit
held that it is ‘‘unreasonable for [an attorney] to rely
solely on the investigation performed for a co-defen-
dant, because the co-defendant’s interests in the case
might well conflict with [the defendant’s] own. [The
codefendant’s attorney] testified, for example, that he
was looking for information to exculpate [the codefen-
dant], not [the defendant].’’ Id., 808. In other words,
reliance on the investigation of a codefendant’s attorney
is not a substitute for proper investigation. Thus, in
Rios, it was deficient performance for the trial attorney
not to conduct further investigation before deciding to
‘‘abandon a potentially meritorious defense . . . .’’ Id.
In a related context, federal appeals courts have also
concluded that it is deficient performance for a defen-
dant’s counsel to rely solely on a prosecutor’s investiga-
tion into the facts. For example, in Alcala v. Woodford,
334 F.3d 862, 891–92 (9th Cir. 2003), the United States
Court of Appeals for the Ninth Circuit held that there
is deficient performance if trial counsel relies solely on
the investigation of the prosecution, stating that ‘‘trial
counsel’s reliance on the prosecution’s investigation is
no more reasonable than the reliance on a co-defen-
dant’s investigation in Rios.’’ The United States Court
of Appeals for the Eleventh Circuit similarly has held
that it is deficient performance for trial counsel to rely
solely on the prosecutor’s investigations, as trial coun-
sel ‘‘could not have made an informed tactical decision’’
to refrain from calling a medical expert witness. Hol-
somback v. White, 133 F.3d 1382, 1387–88 (11th Cir.
1998) (‘‘[I]t appears from the record that counsel pre-
ferred simply to rely on the prosecutor’s references to
the lack of physical evidence as the sole source of
information on the subject. . . . Having conducted no
investigation into the significance of the lack of medical
evidence that [the victim] had been sexually abused,
however, [the defendant’s] counsel could not have
made an informed tactical decision . . . . In these cir-
cumstances, we cannot say that counsel’s decision not
even to contact the physicians as part of his pre-trial
investigation was professionally reasonable.’’ [Citation
omitted; internal quotation marks omitted.]).
Although there are no Connecticut cases on point,
the decisions of the Ninth and Eleventh Circuits are
instructive in defining what it means for an attorney to
conduct an investigation so as to be able to make an
informed strategic decision.8 Reliance solely on a code-
fendant’s attorney is not enough.9
For similar reasons, courts have held, or at least
intimated, that counsel also has a duty to request and
review the trial transcripts from a codefendant’s sepa-
rate trial that occurred prior to the defendant’s trial.10
Both the United States Courts of Appeal for the Fifth
and the Eighth Circuits have held that defense counsel’s
failure to review the codefendant’s trial transcripts con-
stitutes deficient performance. See Owens v. Dormire,
198 F.3d 679, 682 (8th Cir. 1999) (‘‘[w]e concede that
trial counsel’s failure to read a co-defendant’s trial tran-
scripts may constitute deficient performance under
Strickland’’), cert. denied, 530 U.S. 1265, 120 S. Ct. 2725,
147 L. Ed. 2d 988 (2000); Westley v. Johnson, 83 F.3d
714, 721 (5th Cir. 1996) (‘‘We are persuaded that counsel
was deficient in not at least reviewing the transcripts
of [the codefendant’s] trial. A reasonable counsel would
have reviewed the testimony of [a witness from the
codefendant’s trial] . . . who would eventually testify
against [counsel’s] client.’’), cert. denied, 519 U.S. 1094,
117 S. Ct. 773, 136 L. Ed. 2d 718 (1997). Specifically, the
Fifth Circuit has held that it is constitutionally deficient
performance not to order and review the testimony of
a witness from the codefendant’s trial if that witness
will later testify at the petitioner’s criminal trial. Westley
v. Johnson, supra, 721.
We do not mean to suggest that defense counsel’s
failure to read the entire transcript of the trial of a
codefendant will always constitute deficient perfor-
mance.11 In this case, however, Skyers’ decision as to
the need or importance of conducting that review or
additional investigation was based solely upon O’Reil-
ly’s representations and judgment, which, for the rea-
sons we have stated, should not have been relied upon
as the sole basis on which to make that decision. This
is particularly true considering the fact that Skyers did
not order or review any of O’Grinc’s testimony from
Zapata’s trial, even though Skyers knew that O’Grinc
would also testify against the petitioner at the petition-
er’s trial. Accordingly, we conclude that the petitioner’s
claim regarding Skyers’ deficient performance as it
relates to his allegedly inadequate investigation of the
petitioner’s case is debatable amongst jurists of reason.
B
Having concluded that the petitioner raised a merito-
rious claim that Skyers’ investigation of the petitioner’s
case was constitutionally inadequate, we turn to the
question of whether the petitioner was prejudiced by
this potentially deficient performance. We conclude
that the court properly found that the petitioner failed
to demonstrate any prejudice by any lack of a proper
investigation, and, thus, it did not abuse its discretion
by denying the petition for certification to appeal as to
this claim.
To prove prejudice, a petitioner ‘‘must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the
outcome.’’ Strickland v. Washington, supra, 466 U.S.
694. ‘‘In a habeas corpus proceeding, the petitioner’s
burden of proving that a fundamental unfairness had
been done is not met by speculation . . . but by
demonstrable realities.’’ (Internal quotation marks
omitted.) Crawford v. Commissioner of Correction,
285 Conn. 585, 599, 940 A.2d 789 (2008). To meet this
standard, the petitioner must offer evidence of what
benefit the additional investigation—reading the entire
transcript of the codefendant’s trial—would have pro-
vided and how that would have changed the jury’s ver-
dict. See Nguyen v. Archuleta, 369 Fed. Appx. 889, 894
(10th Cir. 2010) (‘‘[the petitioner] does not indicate that
there actually were inconsistent statements given or
that his counsel could have impeached the witnesses
who testified at his trial [if he had read the transcript]’’);
United States v. Dung Vu, 215 Fed. Appx. 9, 12 (1st
Cir.) (requiring petitioner to both identify beneficial
sections of transcript not reviewed and to show that
additional benefit provided by transcript is more than
minor), cert. denied, 552 U.S. 828, 128 S. Ct. 45, 169 L.
Ed. 2d 42 (2007); Westley v. Johnson, supra, 83 F.3d
721–22 (finding no prejudice because there was only
proof of minimal additional benefit from full use of
transcript). As discussed previously in this opinion, to
prove that the habeas court abused its discretion by
denying certification to appeal this claim, the burden is
on the petitioner to establish that it is at least debatable
among jurists of reason that prejudice exists.
The petitioner offered no evidence at the habeas trial
as to what Skyers would have discovered if he had read
the entire transcript of Zapata’s trial. The petitioner did
not provide the habeas court with those trial transcripts.
Furthermore, the petitioner also did not offer evidence
regarding how O’Grinc or A, B and C would have testi-
fied if they had been cross-examined about the recanta-
tion or reward, respectively. Accordingly, we agree with
the habeas court’s conclusion that the petitioner was
not prejudiced by the deficiencies in Skyer’s investi-
gation.
In addition, even if the petitioner had offered the
witnesses’ testimony or the Zapata transcripts as evi-
dence, he did not establish how this evidence would
tend to demonstrate that Skyers would have changed
his defense strategy and chosen to cross-examine the
witnesses about the reward and recantation. Indeed,
the habeas court found that if the witnesses had been
cross-examined about the reward, Satti would have
been able to rehabilitate them on redirect examination
with evidence damaging to the petitioner: ‘‘Further but-
tressing [Skyers’] tactical decision was the very reason-
able concern of opening the door to additional [and
harmful rehabilitation] questioning,’’ namely, that A, B,
and C would have testified to having other motives for
testifying at the criminal trial other than the reward—
C was motivated to testify by almost being killed in the
past for being thought as a snitch in the present case;
B was motivated to testify by fear as Zapata had tried
to murder her in the courtroom during Zapata’s trial;
and A was motivated to testify by being arrested and
forced to testify pursuant to a capias warrant. As for
O’Grinc, Satti would have shown that the petitioner,
Zapata, and O’Grinc had a prior history, including
alleged participation in the same drug operation and a
familial relationship between Zapata and O’Grinc. The
habeas court found Satti and Skyers’ testimony at the
habeas trial credible as to the rehabilitation evidence
being more harmful than the cross-examinations
being beneficial.
We agree with the habeas court’s conclusion that the
petitioner failed to established that he was prejudiced
by Skyers’ deficient performance, as he did not offered
any evidence of how the result of his trial would have
been different if Skyers had reviewed the Zapata trial
transcript in its entirety and had cross-examined the
witnesses about the reward and recantation. See Strick-
land v. Washington, supra, 466 U.S. 694. The petitioner
has failed to prove how any additional information, if
it did exist, about the reward or recantation would
have altered Skyers’ defense strategy or impeachment
strategy. The petitioner has provided no testimony from
the witnesses as to what they would have said on cross-
examination about the reward or the recantation. In
sum, the petitioner has offered no evidence proving
that a different cross-examination of O’Grinc or A, B,
and C would have altered the jury’s verdict.
Accordingly, the petitioner has failed to establish that
the issue of prejudice is debatable among jurists of
reason, that a court could resolve the issue in a different
manner, or that the issue is adequate to deserve encour-
agement to proceed further. We, therefore, conclude
that the habeas court did not abuse its discretion by
denying the petition for certification to appeal as to
this claim.
II
The petitioner next claims that the habeas court
improperly denied his claim that Skyers’ failure to ade-
quately cross-examine witnesses at the petitioner’s
criminal trial amounted to ineffective assistance of
counsel. In support of this claim, the petitioner makes
two arguments. First, the petitioner claims that Skyers
should have impeached O’Grinc about his prior recanta-
tion. Second, the petitioner claims that Skyers should
have impeached A, B, and C about their potential bias
stemming from the reward offer. The respondent, the
Commissioner of Correction, contends that Skyers
made informed tactical decisions, which deserve defer-
ence, that these lines of impeachment would not be
fertile. We agree with the respondent and, therefore,
conclude that the habeas court did not abuse its discre-
tion by denying the petition for certification to appeal
as to this claim.
A claim of deficient cross-examination is a claim
against an attorney’s strategic and tactical decisions,
and ‘‘[this] court will not, in hindsight, second-guess
counsel’s trial strategy.’’ (Internal quotation marks
omitted.) Velasco v. Commissioner of Correction, 119
Conn. App. 164, 172, 987 A.2d 1031, cert. denied, 297
Conn. 901, 994 A.2d 1289 (2010). Accordingly, when
challenging a trial attorney’s line of impeachment on
cross-examination of a witness, the petitioner must
‘‘overcome the presumption that trial counsel’s cross-
examination of [the witness] represented a sound trial
strategy.’’ Antonio A. v. Commissioner of Correction,
148 Conn. App. 825, 832, 87 A.3d 600, cert. denied, 312
Conn. 901, 91 A.3d 907 (2014). Once an attorney makes
an informed, strategic decision regarding how to cross-
examine a witness, that decision is ‘‘virtually unchal-
lengeable.’’ Strickland v. Washington, supra, 466 U.S.
690. ‘‘As a general rule, a habeas petitioner will be
able to demonstrate that trial counsel’s decisions were
objectively unreasonable only if there [was] no . . .
tactical justification for the course taken.’’ (Internal
quotation marks omitted.) Lynn v. Bliden, 443 F.3d 238,
247 (2d Cir. 2006), cert. denied, 549 U.S. 1257, 127 S.
Ct. 1383, 167 L. Ed. 2d 168 (2007).
As the habeas court made no findings as to if Skyers
knew about the recantation when O’Grinc testified at
the petitioner’s trial, and the petitioner did not seek an
articulation from the habeas court, we assume for the
purposes of this claim that Skyers knew about the
recantation at the time that O’Grinc testified at the
petitioner’s trial. Assuming that Skyers knew of the
recantation, Skyer offered a strategic, plausible reason
for not utilizing that line of impeachment. On the basis
of Skyers’ testimony and other evidence, the habeas
court found that it was a strategic decision not to cross-
examine O’Grinc about the recantation; had Skyers
cross-examined O’Grinc about the recantation, Satti
would have been able to introduce harmful rehabilita-
tion evidence, negating the benefit of the cross-exami-
nation. Thus, we must defer, as the habeas court did,
to Skyers’ informed, strategic decision.
We similarly must defer to Skyers’ strategic decision
not to cross-examine A, B, and C about the state’s offer
of a reward. The habeas court made no findings of fact
as to when Skyers became aware of the reward, and
the record is ambiguous. In light of this ambiguity, we
assume for the purposes of this claim that Skyers knew
of the reward at the petitioner’s probable cause hearing,
when he first could have cross-examined C about the
reward. The habeas court found that the testimony of
Satti and Skyers was credible that the rehabilitation
evidence was more harmful than the potential benefit
of the cross-examinations. Thus, Skyers made an
informed, strategic decision not to cross-examine the
witnesses about the reward.12
Accordingly, the petitioner has failed to demonstrate
that this claim involves 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. See
Simms v. Warden, supra, 230 Conn. 616. We, therefore,
conclude that the habeas court did not abuse its discre-
tion in denying the petition for certification to appeal
as to this claim.
III
Lastly, the petitioner claims that the habeas court
improperly denied his petition for certification to appeal
with respect to his claim of ineffective assistance of
counsel based on Skyers’ closing argument. We agree
with the respondent that the habeas court did not abuse
its discretion in denying certification to appeal this
claim.
The following additional facts are relevant to this
claim. At the petitioner’s criminal trial, in his closing,
Skyers stated that ‘‘[i]t is not unreasonable that if some-
thing drastic occurs where you’re not intimately
involved, but you know the persons who are involved,
and they run, you run, too.’’ The petitioner objects to
the use of the phrase ‘‘intimately involved,’’ arguing that
it concedes the petitioner’s involvement in the crime.
At the habeas trial, Skyers explained that by using the
phrase ‘‘intimately involved,’’ he did not intend to imply
that the petitioner was involved in criminal activity;
rather, he meant that ‘‘a person can be aware of people
around them that are doing something, and when he
sees those persons run, and he knows who they are,
then he runs as well. Without being involved in
anything.’’
We previously rejected a similar claim of ineffective
assistance of counsel in Haywood v. Commissioner of
Correction, 153 Conn. App. 651, 105 A.3d 238, cert.
denied, 315 Conn. 908, 105 A.3d 235 (2014). In Haywood,
the petitioner alleged that trial counsel’s closing argu-
ment amounted to deficient performance under a claim
of ineffective assistance of counsel because counsel
had conceded that an attempted armed robbery had
occurred. Id., 659. Although the petitioner claimed that
this statement conceded his guilt, we concluded that
it was consistent with counsel’s defense strategy of
showing that the petitioner, although present, was not
a participant in the attempted robbery. Id., 659–60.
The same reasoning applies in the present case. The
habeas court found Skyers’ testimony credible and that
Skyers’ statement in closing argument was in line with
his defense strategy, which included establishing that
the petitioner was present at the scene of the crime,
but that he did not participate in it. We agree with the
habeas court that Skyers’ closing argument did not fall
below an objective standard of reasonableness. Thus,
Skyers made an informed, strategic decision, and we
must defer to it.
Accordingly, the petitioner has failed to establish that
the issue of whether Skyers’ closing argument consti-
tuted deficient performance under prong one of Strick-
land is debatable amongst jurists of reason, that a court
could resolve the issue in a different manner, or that
the question raised is adequate to deserve encourage-
ment to proceed further. We, therefore, conclude that
the petitioner has failed to demonstrate that the habeas
court abused its discretion by denying the petition for
certification to appeal as to this claim.
The appeal is dismissed.
In this opinion the other judges concurred.
1
In appellate his brief, the petitioner set forth his claims in a different
order; however, for the sake of clarity and efficiency, we have reordered
the claims and arguments.
2
The criminal court sealed the names of the witnesses, and, thus, they
are referred to by initial in this opinion. State v. Taft, supra, 306 Conn. 753 n.7.
3
O’Grinc’s name is no longer sealed, but it was at the time of the
direct appeal.
4
At the habeas trial, Skyers could not recollect if he knew about the
reward at the probable cause hearing. The habeas court made no specific
finding regarding whether Skyers knew, at the time of the petitioner’s crimi-
nal trial, that O’Grinc had recanted his statement to the police.
5
Although Skyers testified regarding his usual practices in investigating
a criminal case involving one of his clients, he did not state whether his
investigation of this case was consistent with his general practices.
6
Our decision by no means should be interpreted to prohibit defense
counsel from speaking with a codefendant’s counsel about the codefendant’s
case and from relying, in part, on the information provided by the codefen-
dant’s counsel. Discussing how the codefendant’s case was tried, potential
issues with the defense strategy, and the strengths and weaknesses of the
state’s case are useful pieces of information that can inform and shape
defense counsel’s own defense strategy. Furthermore, there may be cases
in which defense counsel’s reliance on the assessments of a codefendant’s
counsel concerning the codefendant’s case is reasonable if that reliance is
confirmed by the well-informed, independent judgment of defense counsel.
Sole reliance, however, on the representations of the codefendant’s counsel,
where no independent judgment has been exercised, is unreasonable, and
may well be deficient performance.
7
The codefendant’s attorney gave the trial attorney ‘‘a list of his witnesses
shortly before trial along with a brief synopsis of each witness’s testimony.’’
Rios v. Rocha, supra, 299 F.3d 807.
8
Two Connecticut cases have discussed, but not decided, whether it is
deficient performance for defense counsel to rely solely on the investigative
efforts of a prosecutor. In Johnson v. Commissioner of Correction, 285
Conn. 556, 581, 941 A.2d 248, 265 (2008), our Supreme Court held that trial
counsel’s reliance on the results of DNA testing performed by the state did
not prejudice the petitioner because there was no evidence to establish that
additional, independent DNA testing would have provided exculpatory
evidence.
In Davis v. Commissioner of Correction, 147 Conn. App. 343, 351, 81
A.3d 1226 (2013), cert. granted on other grounds, 311 Conn. 921, 86 A.3d
467 (2014), the petitioner argued that ‘‘counsel’s failure to investigate his
case beyond a review of the documentation provided by the prosecution
constituted a complete denial of representation.’’ The court appears to have
rejected this claim solely on prejudice grounds, concluding that the lack of
an investigation did not constitute a structural violation of the petitioner’s
right to effective assistance of counsel that obviated the need for demonstra-
ting any particular prejudice. Id., 353.
9
Our conclusion in the present case does not conflict with the court’s
conclusion in Gaines v. Commissioner of Correction, supra, 306 Conn.
681–82, that an attorney’s investigation is not constitutionally deficient with
respect to a potential witness’ prior testimony, when the attorney knows
the substance of that testimony and decides that it is unhelpful or harmful.
To know the substance of potential testimony, an attorney must rely on a
reliable source of information, like the defendant, and must actually be
aware of the substance of the testimony. See Mozell v. Commissioner of
Correction, 291 Conn. 62, 79–80, 967 A.2d 41 (2009) (counsel’s decision not
to investigate further reasonable when defendant told him that witness
would not cooperate, witness’ attorney said that witness would not cooper-
ate, and after he read police report stating that witness was not eyewitness
to crime). ‘‘Counsel’s actions are usually based, quite properly, on informed
strategic choices made by the [petitioner] and on information supplied by
the [petitioner]. In particular, what investigat[ory] decisions are reasonable
depends critically on such information. For example, when the facts that
support a certain potential line of defense are generally known to counsel
because of what the defendant has said, the need for further investigation
may be considerably diminished or eliminated altogether. And when a defen-
dant has given counsel reason to believe that pursuing certain investigations
would be fruitless or even harmful, counsel’s failure to pursue those investi-
gations may not later be challenged as unreasonable.’’ Strickland v. Wash-
ington, supra, 466 U.S. 690–91.
10
Some federal courts of appeal have concluded that it is not necessary
to decide whether the failure to read the transcripts from a codefendant’s
trial is deficient performance, instead deciding those cases on the prejudice
prong of Strickland. See Nguyen v. Archuleta, 369 Fed. Appx. 889, 894 (10th
Cir. 2010); United States v. Dung Vu, 215 Fed. Appx. 9, 12 (1st Cir.) (deciding
ineffective assistance of counsel claim on basis of lack of prejudice when
trial attorney did not request transcripts of codefendant’s trial), cert. denied,
552 U.S. 828, 128 S. Ct. 45, 169 L. Ed. 2d 42 (2007).
11
There may be cases where it is not necessary to read the entire transcript
of the trial of the codefendant. For instance, codefendants’ alleged participa-
tion in a crime may be distinct enough from each other to obviate the
need to review the codefendant’s entire trial transcript. Therefore, defense
counsel’s failure to order and review the transcript of the codefendant’s
trial is not per se deficient performance. The scope of counsel’s obligation
to investigate must be addressed on a case-by-case basis, and we do not
intend to suggest a blanket rule for all occasions.
12
The petitioner argues that failure to cross-examine about a reward
can never be ‘‘sound trial strategy’’ pursuant to the holding in Reynoso v.
Giurbino, 462 F.3d 1099, 1110–14 (9th Cir. 2006). The petitioner misinterprets
Reynoso, which merely held that under no trial strategy offered by the
respondent in that case could the decision not to cross-examine about the
reward be ‘‘sound,’’ as the trial attorney did not make an informed decision
and cross-examining about the reward would not have been harmful to the
defense strategy or to the petitioner. Id. Those facts distinguish the present
case from Reynoso.