Holbrook v. Commissioner of Correction , 189 Conn. App. 108 ( 2019 )

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MICHAEL HOLBROOK v. COMMISSIONER
OF CORRECTION
(AC 41165)
DiPentima, C. J., and Alvord and Flynn, Js.
Syllabus
The petitioner, who had been convicted of manslaughter in the first degree
with a firearm in connection with the shooting death of the victim,
sought a writ of habeas corpus, claiming, inter alia, that his prior habeas
counsel, D, had rendered ineffective assistance by declining to pursue
a claim that the petitioner’s criminal trial counsel, R, had rendered
ineffective assistance when R chose not to call a witness, T, in the
petitioner’s second criminal trial after his first trial had ended in a
mistrial. The habeas court concluded that D had exercised professional
judgment in winnowing down a list of twenty-seven possibly viable
claims he had included in his habeas petition and had made a reasonable
strategic decision not to pursue the ineffective assistance claim as to
R. The habeas court further concluded that R’s decision not to call
T to testify at the second criminal trial did not constitute deficient
performance but, rather, was a strategic decision. The court reasoned
that T was impeachable by virtue of her prior personal connection with
the petitioner and two inconsistent written statements that she had
given to the police concerning the shooting. In her first statement, T
stated that there had been a fight and that the petitioner indicated that
he had been hit, but in her second statement she denied that a fight
occurred and did not remember the petitioner stating that he had been
hit. The habeas court rendered judgment denying the habeas petition,
from which the petitioner, on the granting certification, appealed to this
court. Held:
1. The habeas court properly determined that the petitioner failed to prove
that D rendered ineffective assistance by failing to pursue a claim that
R had been ineffective for failing to call T as a witness; R’s strategic
decision not to call T did not constitute deficient performance, as R
inferentially made a presumptively prudential decision on whether to
use T’s second statement to the police, which could have led to further
impeachment evidence as to T, R’s trial strategy in not calling T to the
witness stand was influenced by the fact that the state’s witnesses had
considerable baggage in terms of prior criminal histories, inconsistent
statements, and losses of memory and recantations, which resulted in
their prior written signed statements being admitted into evidence for
substantive purposes, and the admission into evidence of T’s statements
would have rendered less persuasive a defense argument that the state’s
witnesses were all over the place, could not remember and were incon-
sistent.
2. There was no merit to the petitioner’s claim that the prosecution sup-
pressed evidence that was favorable to him when it allegedly failed to
disclose that it had delayed making a plea offer to an eyewitness until
after the eyewitness testified in the petitioner’s second criminal trial;
the petitioner failed to present any credible evidence that there was an
agreement between the state and the witness that the state failed to
disclose, the petitioner’s claim was not distinctly raised in his habeas
petition, and his counsel conceded at oral argument before this court
that there is no authority for the proposition that the state is obligated
to make a plea offer to a witness who is himself facing criminal charges
before giving testimony in a case.
Argued January 10—officially released April 2, 2019
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Hon. John F. Mulcahy,
Jr., judge trial referee; judgment denying the petition,
from which the petitioner, on the granting of certifica-
tion, appealed to this court. Affirmed.
Vishal K. Garg, assigned counsel, for the appellant
(petitioner).
C. Robert Satti, Jr., supervisory assistant state’s attor-
ney, with whom, on the brief, were John C. Smriga,
state’s attorney, and Emily D. Trudeau, assistant state’s
attorney, for the appellee (respondent).
Opinion
FLYNN, J. The petitioner, Michael Holbrook, appeals
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 improperly
concluded that he failed to prove (1) ineffective assis-
tance of his prior habeas counsel, and (2) that the state
suppressed exculpatory evidence at his criminal trial
in violation of Brady v. Maryland, 373 U.S. 83, 87, 83
S. Ct. 1194, 10 L. Ed. 2d 215 (1963).1 We affirm the
judgment of the habeas court.
The following facts and procedural history sur-
rounding the petitioner’s conviction were set forth by
this court in our decision on direct appeal affirming the
petitioner’s conviction: ‘‘John Fred Dean was shot and
killed inside a Bridgeport nightclub known as the Fac-
tory. The state charged the [petitioner] . . . with
Dean’s murder. In 2003, the [petitioner’s] first jury trial
ended in a mistrial. After a second trial, in 2004, the
jury found the [petitioner] not guilty of murder but
found him guilty of the lesser included offense of man-
slaughter in the first degree with a firearm in violation
of General Statutes § 53a-55a (a). The jury also made
a finding that the [petitioner] had committed a class A,
B or C felony with a firearm in violation of General
Statutes § 53-202k. The trial court rendered judgment
in accordance with the verdict and sentenced the [peti-
tioner] to a total effective term of thirty-five years incar-
ceration.’’ State v. Holbrook, 97 Conn. App. 490, 492, 906
A.2d 4, cert. denied, 280 Conn. 935, 909 A.2d 962 (2006).
In June, 2007, the petitioner filed a petition for a writ
of habeas corpus, which was denied by the court, T.
Santos, J., following a trial. On appeal, this court
affirmed the denial of the petition. Holbrook v. Commis-
sioner of Correction, 149 Conn. App. 901, 87 A.3d 631,
cert. denied, 311 Conn. 952, 91 A.3d 464 (2014).
In June, 2014, the petitioner, who was then self-repre-
sented, filed a petition for a writ of habeas corpus.
Thereafter, represented by counsel, the petitioner filed
an amended petition alleging ineffective assistance of
his trial counsel, Attorney Frank J. Riccio, for declining
to call Cherise Thomas as a witness; ineffective assis-
tance of prior habeas counsel, Attorney Michael Day,
for failing to pursue a claim that trial counsel was inef-
fective for failing to call Thomas as a witness; and the
failure of the state to produce exculpatory information
to the petitioner. The court, Hon. John F. Mulcahy,
Jr., judge trial referee, denied the petition. The court
thereafter granted the petition for certification to
appeal. This appeal followed.
I
The petitioner claims that the court erred in conclud-
ing that Day did not render ineffective assistance for
claim that Riccio was ineffective for failing to call
Thomas as a witness in the underlying criminal trial.
We do not agree.
‘‘It is well established that [a] criminal defendant is
constitutionally entitled to adequate and effective assis-
tance of counsel at all critical stages of criminal pro-
ceedings . . . . This right arises under the sixth and
fourteenth amendments to the United States constitu-
tion and article first, § 8, of the Connecticut constitu-
tion. . . . As enunciated in Strickland v. Washington,
[466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984)] . . . [a] claim of ineffective assistance of coun-
sel consists of two components: a performance prong
and a prejudice prong. To satisfy the performance prong
. . . the petitioner must demonstrate that his attorney’s
representation was not reasonably competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. . . . An
ineffective assistance of counsel claim will succeed only
if both prongs [of Strickland] are satisfied.’’ (Citations
omitted; internal quotation marks omitted.) Sanders v.
Commissioner of Correction, 169 Conn. App. 813, 823,
153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d
536 (2017).
‘‘[When] applied to a claim of ineffective assistance
of prior habeas counsel, the Strickland standard
requires the petitioner to demonstrate that his prior
habeas counsel’s performance was ineffective and that
this ineffectiveness prejudiced the petitioner’s prior
habeas proceeding. . . . Therefore, as explained by
our Supreme Court in Lozada v. Warden, 223 Conn. 834,
613 A.2d 818 (1992), a petitioner claiming ineffective
assistance of habeas counsel on the basis of ineffective
assistance of [trial] counsel must essentially satisfy
Strickland twice: he must prove both (1) that his
appointed habeas counsel was ineffective, and (2) that
his [trial] counsel was ineffective. . . . We have char-
acterized this burden as presenting a herculean task
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Mukhtaar v. Commissioner of Correction,
158 Conn. App. 431, 438–39, 119 A.3d 607 (2015).
The habeas court noted that Day, ‘‘in an abundance
of caution,’’ included twenty-seven claims in his habeas
petition, but upon further analysis pursued only six of
the listed claims, which did not include the claim of
ineffective assistance of trial counsel for failure to call
Thomas as a witness. The habeas court concluded that
Day’s procedure of ‘‘exercising professional judgment
. . . in winnowing down from the long list of claims
initially thought to be possibly viable’’ did not constitute
deficient performance. We will not disturb the court’s
finding that Day’s decision not to pursue the claim at
issue was a reasonable strategic decision. ‘‘[A]
reviewing court is required not simply to give [the trial
attorney] the benefit of the doubt . . . but to affirma-
tively entertain the range of possible reasons . . .
counsel may have had for proceeding as [he] did . . . .
[S]trategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually
unchallengeable . . . .’’ (Citation omitted; internal
quotation marks omitted.) Michael T. v. Commissioner
of Correction, 319 Conn. 623, 632–33, 126 A.3d 558(2015). Additionally, ‘‘the failure to pursue unmeritori-
ous claims cannot be considered conduct falling below
the level of reasonably competent representation.’’
(Internal quotation marks omitted.) Tillman v. Com-
missioner of Correction, 54 Conn. App. 749, 756–57,
738 A.2d 208, cert. denied, 251 Conn. 913, 739 A.2d
1250 (1999).
The court further found that Strickland’s prejudice
prong was not satisfied because, ‘‘based on the previous
analysis of trial counsel’s tactical decision regarding
the Thomas statements,’’ a reasonable probability did
not exist that the result of the first habeas trial would
have been different had Day pursued the claim that
Riccio was ineffective for failing to call Thomas as a
witness. In analyzing the merits of the underlying claim
of ineffective assistance of trial counsel, the court con-
cluded that Riccio, who had represented the petitioner
in both criminal trials and who had died before the
petitioner brought his second petition for a writ of
habeas corpus, was ‘‘seasoned,’’ and was an ‘‘exceed-
ingly experienced, skilled and proficient criminal
defense attorney.’’2
The court concluded that Riccio’s strategic decision
not to call Thomas to testify at the second criminal trial
did not constitute deficient performance. Thomas was
impeachable by virtue of her prior personal connection
with the petitioner, whom she had known for years.
Thomas gave two statements on different dates to the
police, recounting the events that occurred at the Fac-
tory nightclub on the night of the shooting. Both state-
ments were admitted as full exhibits at the second
habeas trial. The second habeas court found that the
two statements that Thomas had given to the police on
separate dates were inconsistent. In the first statement,
Thomas said there had been a fight and that the peti-
tioner indicated that he had been ‘‘hit,’’ but in her second
statement she denied that a fight occurred and did not
remember the petitioner stating that he had been hit.
The court concluded that Thomas’ first statement to
the police that the petitioner had told her that he had
been hit might ‘‘lend support’’ to the state’s position
that the petitioner had been involved in a physical fight
with the victim, Dean, which precipitated the shooting
that caused Dean’s death. The court concluded that
Riccio, who had been present during both of Thomas’
statements to the police, inferentially made a ‘‘presump-
tively prudential decision’’ on whether to use Thomas’
second statement that could have led to further
impeachment evidence as to Thomas.
The court noted that Riccio’s trial strategy in not
calling Thomas to the witness stand was influenced by
the fact that the state’s witnesses brought considerable
‘‘ ‘baggage’ ’’ in terms of prior criminal histories, incon-
sistent statements, losses of memory and recantations,
and that where those witnesses recanted or professed
some loss of memory their prior written signed state-
ments were admitted for substantive purposes under
authority of State v. Whelan, 200 Conn. 743, 753, 513
A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L.
Ed. 2d 598 (1986). In his summation to the jury, Riccio
pointed out the inconsistencies in the testimony of the
state’s witnesses. Riccio testified in the first habeas
trial that ‘‘I’ve never seen it [Whelan] used as much as
it was in this particular case.’’ The second habeas court
stated in its decision: ‘‘An offer and admission of the
Thomas statements by the defense would introduce yet
another (in the court’s view, material) inconsistency,
resulting quite likely in another Whelan admission, this
time involving a defense witness. Such would render
less persuasive a defense argument in summation that
the state’s witnesses were all over the place, could not
remember, and were inconsistent.’’
The court concluded that Riccio, who had heard and
observed Thomas at the time of her statements, made
a strategic decision not to have Thomas testify that
‘‘should not now be second-guessed.’’ Michael T. v.
Commissioner of Correction, supra, 319 Conn. 632–33.
As we have noted previously, reasonable strategic
choices made after a thorough investigation are virtu-
ally unchallengeable. Id. After a careful review of the
record, we conclude that the habeas court properly
determined that the petitioner had failed to prove his
claim of ineffective assistance of habeas counsel.
II
We next turn to the petitioner’s claim that the court
improperly rejected his claim that the prosecution sup-
pressed evidence favorable to him in violation of Brady
v. Maryland, supra, 373 U.S. 83. Specifically, the peti-
tioner claims that the prosecution failed to disclose
that it had declined to make any plea offers to Gary
Browning, an eyewitness who testified for the state,
regarding his charges of robbery until he testified in
the petitioner’s 2004 criminal trial. We disagree.
‘‘Due process principles require the prosecution to
disclose to the defense evidence that is favorable to
the defendant and material to his guilt or punishment.
. . . In order to obtain a new trial for improper suppres-
sion of evidence, the petitioner must establish three
essential components: (1) that the evidence was favor-
able to the accused; (2) that the evidence was sup-
pressed by the state—either inadvertently or wilfully;
and (3) that the evidence was material to the case,
i.e., that the accused was prejudiced by the lack of
disclosure. . . .
‘‘The state’s failure to disclose an agreement with a
cooperating witness may be deemed to be the withhold-
ing of exculpatory evidence. Impeachment evidence
falls within Brady’s definition of evidence favorable to
an accused. . . . Impeachment evidence is broadly
defined in this context as evidence that could poten-
tially alter the jury’s assessment of a witness’ credibility.
. . . Specifically, we have noted that [a] plea agreement
between the state and a key witness is impeachment
evidence falling within the . . . Brady doctrine.’’ (Cita-
tions omitted; internal quotation marks omitted.) Mar-
quez v. Commissioner of Correction, 330 Conn. 575,
592, 198 A.3d 562 (2019). ‘‘Any . . . understanding or
agreement between any state’s witness and the state
police or the state’s attorney clearly falls within the
ambit of Brady principles.’’ (Internal quotation marks
omitted.) Elsey v. Commissioner of Correction, 126
Conn. App. 144, 152–53, 10 A.3d 578, cert. denied, 300
Conn. 922, 14 A.3d 1007 (2011). ‘‘[A]n unexpressed
intention of the state not to prosecute a witness does not
fall within the ambit of the Brady principles concerning
disclosure by the prosecution of evidence favorable to
an accused.’’ (Internal quotation marks omitted.) State
v. Rucker, 177 Conn. 370, 376, 418 A.2d 55 (1979).
‘‘The question of whether there existed an agreement
between [a witness] and the state is a question of fact
. . . . When reviewing the decision of a habeas court,
the facts found by the habeas court may not be dis-
turbed unless the findings were clearly erroneous.’’
(Internal quotation marks omitted.) Lewis v. Commis-
sioner of Correction, 116 Conn. App. 400, 407, 975 A.2d
740, cert. denied, 294 Conn. 908, 982 A.2d 1082 (2009).
‘‘Furthermore, the burden is on the defendant to prove
the existence of undisclosed exculpatory evidence.’’
State v. Floyd, 253 Conn. 700, 737, 756 A.2d 799 (2000).
‘‘Whether the petitioner was deprived of his due process
rights due to a Brady violation is a question of law, to
which we grant plenary review.’’ (Internal quotation
marks omitted.) Peeler v. Commissioner of Correction,
170 Conn. App. 654, 689, 155 A.3d 772, cert. denied, 325
Conn. 901, 157 A.3d 1146 (2017).
The petitioner contends that the prosecution delayed
making a plea offer to Browning until after Browning
testified in the petitioner’s 2004 criminal trial. This claim
rests on a very slender reed. The first habeas court
found Browning not to be a credible witness, and he
did not testify before the second habeas court. The only
evidence of the allegation of a delayed plea offer is in
a statement by Browning made in the first habeas trial
in which he stated: ‘‘No, they wouldn’t give me an offer
until after I testified.’’ The habeas court made no finding
that the prosecution had made any statement to that
effect, and the petitioner’s claim is not distinctly raised
in his habeas petition. At oral argument before this
court, the Brady claim morphed into a claim that the
state had waited to make a plea offer to Browning,
the cooperating witness, until after he gave testimony.
However, not only is there nothing in the petition that
raises this claim distinctly, there is no finding by the
habeas court that the prosecution ever told Browning
that an offer of a sentence would be made in return
for his guilty plea, but not until after his testimony. The
petitioner’s counsel conceded at oral argument that
there is no authority for the proposition urged by the
petitioner that the state is under an obligation to make
a plea offer to a witness who is himself facing criminal
charges before he gives testimony in a case. Here, the
court made a finding that ‘‘the petitioner has failed to
present any credible evidence that there was an actual
or implied agreement between the state and Gary Brow-
ning that the state failed to disclose.’’ The petitioner’s
claim of a Brady violation is without merit.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The petitioner also claims that the court improperly concluded that he
had failed to prove that his trial counsel was ineffective for declining to
call a certain witness to testify at the underlying criminal trial. In its memo-
randum of decision, the habeas court dismissed the claim of ineffective
assistance of trial counsel on the grounds that it was barred by res judicata
and that it was successive. The court also determined that the claim was
barred by laches and, alternatively, that the petitioner could not prevail on
the merits. At oral argument before this court, the petitioner’s counsel
conceded that the claim of ineffective assistance of trial counsel, by itself,
was successive. In light of this concession, we do not examine the merits
of the petitioner’s claim of ineffective assistance of trial counsel separately
but only to the extent that his claim of ineffective assistance of prior habeas
counsel is premised on such a claim. See Mukhtaar v. Commissioner of
Correction, 158 Conn. App. 431, 438–39, 119 A.3d 607 (2015).
2
The court in the petitioner’s second habeas trial had ample evidence of
the seasoned nature of Riccio’s representation, including a transcript of
Riccio’s testimony in the petitioner’s first habeas case that was admitted
as a full exhibit in the second habeas proceeding. In the petitioner’s first
criminal trial, Riccio raised enough doubt that the jury was ‘‘hung,’’ unable
to agree on a verdict. In the petitioner’s second criminal trial, Riccio suc-
ceeded in convincing the jury to return a not guilty verdict as to murder,
and the petitioner was found guilty of the lesser included and less serious
offense of manslaughter in the first degree in violation of § 53a-55a. Riccio
testified at the first habeas trial that he had had thirty-five to forty murder
trials in Connecticut state courts, had tried twelve federal criminal cases
to conclusion and had been involved in approximately 100 other federal
criminal cases. The record shows that Riccio had wide experience and had
twice obtained results in two successive criminal trials in which the peti-
tioner was not convicted of the most serious crime with which he was
charged, namely, murder.