Camacho v. Commissioner of Correction. , 148 Conn. App. 488 ( 2014 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
MARCO CAMACHO v. COMMISSIONER
OF CORRECTION
(AC 34678)
Robinson, Sheldon and Bishop, Js.*
Argued December 6, 2013—officially released March 4, 2014
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
Joseph Visone, assigned counsel, for the appellant
(petitioner).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Brian Preleski, state’s
attorney, and Angela R. Macchiarulo, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
BISHOP, J. The petitioner, Marco Camacho, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus. The petitioner
claims that the court erred in finding that his appellate
counsel did not render ineffective assistance by failing
to challenge the propriety of: (1) the admission, at trial,
of a 911 tape recording from the victim; and (2) refer-
ence made by the prosecutor at trial to the petitioner’s
nickname, ‘‘Killer.’’ We affirm the judgment of the
habeas court.
The petitioner was charged with and, following a jury
trial, convicted of four counts of murder in violation
of General Statutes § 53a-54a, four counts of felony
murder in violation of General Statutes § 53a-54c, one
count of tampering with evidence in violation of General
Statutes § 53a-155, one count of larceny in the first
degree in violation of General Statutes § 53a-122 (a)
(3), one count of robbery in the first degree in violation
of General Statutes § 53a-134 (a) (1), one count of pos-
session of narcotics with intent to sell in violation of
General Statutes § 21a-277 (a), one count of possession
of a stolen firearm in violation of General Statutes § 53a-
212, and one count of conspiracy to commit the crimes
of murder, possession of narcotics with intent to sell,
robbery in the first degree, larceny in the first degree,
and tampering with evidence in violation of General
Statutes §§ 53a-48, 53a-54a (b), 21a-277 (a), 53a-134 (a)
(1), 53a-122 (a) (3), and 53a-155, respectively. Following
the conviction, the trial court sentenced the petitioner
to a total effective term of 260 years imprisonment. The
petitioner unsuccessfully appealed from his conviction.
State v. Camacho, 282 Conn. 328, 924 A.2d 99, cert.
denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273(2007).
The facts set out by the court in Camacho provide
the evidentiary backdrop for the issues before us. ‘‘At
approximately 8:30 p.m., on September 25, 1996, a
Southington police department emergency dispatcher
received a 911 call from 932 Shuttle Meadow Road, the
residence of Nick Votino. Responding to the call, the
police discovered four persons dead from gunshot
wounds in the master bedroom: Nick Votino,1 his daugh-
ter, Joanne Votino, Lynn Suszynski and Wayne Barrows.
‘‘Police found evidence of recent cocaine use at the
crime scene, and Votino, Suszynski and Barrows all
tested positive for cocaine in toxicology tests per-
formed in conjunction with their autopsies. Police also
found crack cocaine, drug paraphernalia and a large
quantity of a cutting agent used in the process of making
crack cocaine.
‘‘Weeks before the murders, in the beginning of Sep-
tember, 1996, the [petitioner] and Eric Henry, with
whom the [petitioner] sold drugs, were living in the
Southington home of Henry’s girlfriend, Raquel Martin.
. . . The [petitioner] and Henry had been using Martin’s
residence as the base of operations to sell crack
cocaine. Previously, the [petitioner] had been supplying
Henry with drugs to sell, and had moved into Martin’s
house in order to facilitate his drug dealing business.
The [petitioner] and Henry became partners, with the
[petitioner] supplying the drugs and Henry supplying
protection as well as expanding the [petitioner’s] mar-
ket with his own group of acquaintances. Additionally,
Votino had been selling drugs for the [petitioner]. As a
result of his own drug habit, Votino had become
indebted to the [petitioner] in the amount of $400. The
[petitioner] had taken a necklace belonging to Votino
as collateral on the debt. . . .
‘‘[On September 25, 1996, at] approximately 4:30 p.m.,
Martin drove the [petitioner] and Henry to Votino’s
house because the [petitioner] wanted to discuss the
debt that Votino owed him. Martin, who waited in the
living room while the [petitioner], Henry and Votino
spoke in the kitchen, overheard Votino say that he had
$200 worth of crack cocaine left to sell, but would
need more to sell in order to pay off his debt to the
[petitioner]. . . . The [petitioner] told Votino that he
would come back later that night with more drugs for
Votino to sell, and warned that Votino had better be
home and have sold some of the drugs he already had
before the [petitioner] returned.
‘‘Thereafter, Martin drove the [petitioner] and Henry
to the [petitioner’s] mother’s house in New Britain
where the [petitioner] picked up some clothing in a
black backpack. When they returned to Martin’s house,
the [petitioner] paged his drug supplier, Pedro Ramirez,
and he and Henry went to meet him. The [petitioner]
purchased crack cocaine from Ramirez and told Rami-
rez he was about to ‘stick somebody up,’ which Ramirez
took to mean that the [petitioner] intended to rob
someone.
‘‘After the [petitioner] and Henry had returned to
Martin’s house, the [petitioner] entered Martin’s bed-
room with a gun in a small black pouch, gloves and
bullets. The [petitioner] then put the bullets in the gun,
wiped down the gun and put it back into the pouch.
Henry took the gun from the [petitioner] and put it in
the waistband of his pants. The [petitioner] and Henry
then left in Martin’s car for Votino’s house.
‘‘Approximately one-half hour after they had left Mar-
tin’s house, Henry telephoned Martin from Votino’s bed-
room and told her that he and the [petitioner] would
be returning to her house shortly. Martin heard sounds
of a party-like atmosphere and Votino’s voice in the
background. At the same time, unbeknownst to the
[petitioner] and Henry, Joanne Votino was in her bed-
room speaking on the telephone to her boyfriend,
Demond Johnson. Johnson heard four or five loud
noises that he thought sounded like gunshots, followed
by Joanne Votino yelling, ‘[w]hat’s going on,’ and bang-
ing on the door to the master bedroom. Johnson then
heard Joanne Votino scream, ‘[o]h my God,’ followed
by a loud thump as she fell to the ground, as a result
of being shot. Joanne Votino screamed Johnson’s name
and told him to call 911, which he did. . . .
‘‘Although he had fled the state, the [petitioner]
stayed in contact with a number of people in Connecti-
cut, trying to determine how much the police knew and
how to cover his tracks. . . . On Tuesday, October 1,
1996, the [petitioner] surrendered to police at his aunt’s
house in Beaufort, South Carolina, where he had fled
. . . .’’ (Footnote omitted.) Id., 333–41.
The petitioner filed a petition for a writ of habeas
corpus on July 10, 2007. In the amended petition dated
August 16, 2011, the petitioner alleged: (1) in count one,
that his constitutional right to a public trial was violated;
(2) in count two, that his constitutional right to be
present during the trial was violated; (3) in count three,
that his constitutional right to an impartial jury was
violated; (4) in count four, that his constitutional right
to confrontation was violated; (5) in count five, that his
constitutional rights to due process and a fair trial were
violated; (6) in count six, that his constitutional right
to the effective assistance of trial counsel was violated;
and (7) in count seven, that his constitutional right
to the effective assistance of appellate counsel was
violated. The respondent, the Commissioner of Correc-
tion, filed a return on August 17, 2011, generally denying
the allegations in the petition and raising the special
defenses of procedural default and res judicata as to
counts one through five. On September 9, 2011, the
respondent filed a motion to dismiss counts one, two,
and three on the ground of procedural default, and
counts four and five on the ground of res judicata or,
alternatively, procedural default. In response, the court
dismissed counts one through three on the ground of
procedural default, and count four on the ground of res
judicata. The court did not, however, dismiss count five,
as it found neither res judicata nor procedural default
to apply given the allegations in the petition. Camacho
v. Warden, Superior Court, judicial district of Tolland,
Docket No. CV-07-4001839 (October 24, 2011). The mat-
ter was tried to the court, Newson, J., on the remaining
three counts on September 12, 14, and 23, 2011, and
January 5, 2012. On April 30, 2012, the court denied the
petition for a writ of habeas corpus. The petitioner filed
a petition for certification to appeal on May 7, 2012,
which was granted by the court. Because the petitioner
appeals only from the court’s denial of his claims as
they relate to appellate counsel, we confine our review
to the claims set forth in the seventh count. Additional
facts will be set forth as necessary.
As noted, the petitioner contends that the court erred
in finding that appellate counsel did not render ineffec-
tive assistance by failing to argue that the petitioner’s
due process rights were violated by: (1) the admission
at trial of a 911 tape recording of the victim’s call for
assistance; and (2) reference by the prosecutor at trial
to the petitioner as ‘‘Killer.’’
We first address decisional law that is applicable to
the issues presented for review and the standard that
sets the contours of our assessment on review. ‘‘In
Strickland v. Washington, 466 U.S. 668, 671, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), the United States Supreme
Court articulated a two part analysis for evaluating con-
stitutional claims of ineffective assistance of counsel.
First, the defendant must show that counsel’s perfor-
mance was deficient. This requires showing that coun-
sel made errors so serious that counsel was not
functioning as the counsel guaranteed the defendant
by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable. . . . Our Supreme
Court has adopted that two part analysis in reviewing
claims of ineffective assistance of appellate counsel.
. . .
‘‘The first part of the Strickland analysis requires the
petitioner to establish that appellate counsel’s represen-
tation fell below an objective standard of reasonable-
ness considering all of the circumstances. . . . [A]
court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable pro-
fessional assistance; that is, the defendant must over-
come the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy. . . . The right to counsel is not the right to
perfect representation. . . . While an appellate advo-
cate must provide effective assistance, he is not under
an obligation to raise every conceivable issue. A brief
that raises every colorable issue runs the risk of burying
good arguments . . . in a verbal mound made up of
strong and weak contentions. . . . Indeed, [e]xperi-
enced advocates since time beyond memory have
emphasized the importance of winnowing out weaker
arguments on appeal and focusing on one central issue
if possible, or at most on a few key issues. . . . Most
cases present only one, two, or three significant ques-
tions. . . . The effect of adding weak arguments will
be to dilute the force of the stronger ones. . . . Our
Supreme Court has stated that [i]t is possible to leave
out a dispositive issue on appeal and nevertheless, to
have furnished a petitioner with adequate counsel under
the sixth amendment. . . . Finally, [i]f the issues not
raised by his appellate counsel lack merit, [the peti-
tioner] cannot sustain even the first part of this dual
burden since the failure to pursue unmeritorious claims
cannot be considered conduct falling below the level
of reasonably competent representation.’’ (Citations
omitted; internal quotation marks omitted.) Mozell v.
Commissioner of Correction, 87 Conn. App. 560, 562–
64, 867 A.2d 51, cert. denied, 273 Conn. 934, 875 A.2d
543 (2005).
‘‘For claims of ineffective assistance of appellate
counsel, we must assess whether there is a reasonable
probability that, but for appellate counsel’s failure to
raise the issue on appeal, the petitioner would have
prevailed in his direct appeal, i.e., reversal of his convic-
tion or granting of a new trial. . . . [T]o determine
whether a habeas petitioner had a reasonable probabil-
ity of prevailing on appeal, a reviewing court necessarily
analyzes the merits of the underlying claimed error in
accordance with the appropriate appellate standard for
measuring harm.’’ (Internal quotation marks omitted.)
Moody v. Commissioner of Correction, 127 Conn. App.
293, 301, 14 A.3d 408, cert. denied, 300 Conn. 943, 17
A.3d 478 (2011).
Our review of the judgment of the habeas court is
carefully circumscribed. ‘‘The habeas court is afforded
broad discretion in making its factual findings, and
those findings will not be disturbed unless they are
clearly erroneous. . . . Historical facts constitute a
recital of external events and the credibility of their
narrators. . . . 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 application of the habeas court’s factual find-
ings to the pertinent 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 Correc-
tion, 306 Conn. 664, 677, 51 A.3d 948 (2012).
The law governing a petitioner’s claim of ineffective
assistance of counsel for failure to raise claims on
appeal is well established. ‘‘The determination of which
issues to present, and which issues not to present, on
an appeal is by its nature a determination committed
to the expertise of appellate counsel, and not to his
client. . . . By that determination, appellate counsel
seeks to focus the concern of the appellate court on
those issues which he deems to be most persuasive, and
thus does appellate counsel most effectively present
his client’s appeal.’’ (Citation omitted.) Valeriano v.
Bronson, 12 Conn. App. 385, 390, 530 A.2d 1100 (1987),
aff’d, 209 Conn. 75, 546 A.2d 1380 (1988). ‘‘[A] habeas
court will not, with the benefit of hindsight, second-
guess the tactical decisions of appellate counsel. Legal
contentions, like the currency, depreciate through over-
issue. . . . [M]ultiplying assignments will dilute and
weaken a good case and will not save a bad one. . . .
The effect of adding weak arguments will be to dilute
the force of the stronger ones.’’ (Internal quotation
marks omitted.) Farnum v. Commissioner of Correc-
tion, 118 Conn. App. 670, 679, 984 A.2d 1126 (2009),
cert. denied, 295 Conn. 905, 989 A.2d 119 (2010). We
also note that ‘‘[i]t is all too tempting for a defendant
to second-guess counsel’s assistance after conviction
or adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved unsuc-
cessful, to conclude that a particular act or omission
of counsel was unreasonable. . . . A fair assessment
of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time.’’ (Citation omitted.) Strickland
v. Washington, supra, 466 U.S. 689. With the general
principles that guide our review in mind, we turn, now,
to an assessment of the particular claims.
I
The petitioner first contends that the habeas court
erred by finding that appellate counsel did not render
ineffective assistance for failing to argue that the peti-
tioner’s right to due process was violated by the admis-
sion of a 911 tape recording into evidence. Specifically,
the petitioner contends that ‘‘[w]hen the cumulative
effects of the improperly admitted [911 tape], coupled
with the prosecutor’s remarks, are viewed as a whole,
the habeas court’s reliance on the adequacy of curative
instructions fails . . . because the cumulative effect of
errors committed at trial may be so severe that they
cannot be erased from the jurors’ minds with nothing
more than a limiting instruction.’’ We are unpersuaded.
During the petitioner’s criminal trial, the state intro-
duced a 911 tape recording of Joanne Votino’s call to
police that she made after she had been shot and during
which she can be heard gasping for breath, unable to
talk. The habeas court noted that the petitioner’s trial
counsel objected to the admission of the tape on rele-
vancy grounds and on the ground that its prejudicial
effect outweighed its probative value but, after argu-
ment, the court admitted the tape as a full exhibit.2 The
tape was played during trial and was replayed by the
prosecutor during the rebuttal portion of the state’s
closing argument. On direct appeal, the petitioner did
not assert that the admission of the 911 tape was error;
rather, counsel argued only that playing the tape during
closing argument by the prosecutor constituted miscon-
duct. This claim failed on review. State v. Camacho,
supra, 282 Conn. 377–78.
During the habeas trial, appellate counsel testified
that while she considered raising a distinct issue con-
cerning the admission of the tape at trial, she decided,
instead, to limit the scope of the appeal to the issues
she perceived to be her strongest. As a consequence,
she decided to focus exclusively on the following issues:
(1) a claim that it was error for the court to have admit-
ted hearsay statements made by Henry to Martin and
Fusco; and (2) a claim of prosecutorial misconduct.
With regard to the admission of the 911 tape recording,
counsel testified that, while ‘‘I could have robed [such
a claim] in constitutional garb, I think the best I could
do with it was to bring it through the [prosecutorial]
misconduct claim.’’
On the basis of our review, we find no fault with
the habeas court’s decision that the petitioner was not
deprived of the effective assistance of appellate counsel
by failing to challenge the admission of the 911 tape
recording on review. As noted by the habeas court, the
determination of which issues to raise on appeal is a
matter of tactics and strategy best left to the discretion
of appellate counsel, and such determinations will not
be overturned on review unless a reviewing court is
convinced that there was not a reasonable basis for
them. See United States ex rel. Roche v. Scully, 739 F.2d
739, 742 (2d Cir. 1984) (‘‘A fair assessment of attorney
performance requires that every effort be made to elimi-
nate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and
to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making
the evaluation, a court must indulge a strong presump-
tion that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defen-
dant must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy.’’ [Internal quotation marks
omitted.]); Alterisi v. Commissioner of Correction, 145
Conn. App. 218, 232, 77 A.3d 748 (stating there is strong
presumption of reasonableness that attaches to appel-
late counsel’s tactical decisions), cert. denied, 310
Conn. 933, 78 A.3d 859 (2013). The petitioner has failed
to prove that counsel’s strategy on appeal ‘‘fell below
an objective standard of reasonableness . . . .’’ Mozell
v. Commissioner of Correction, supra, 87 Conn. App.
563. In sum, on the record before us, we conclude that
the habeas court did not abuse its discretion in
determining that appellate counsel’s decision to forgo
raising this issue on appeal was reasonable.
II
The petitioner next claims that the habeas court erred
in finding that appellate counsel did not render ineffec-
tive assistance for failing to argue that the petitioner’s
right to due process was violated by the repeated refer-
ence to the petitioner’s nickname, ‘‘Killer,’’ at trial. Spe-
cifically, the petitioner argues that the court ‘‘failed to
consider the cumulative effects on [his] right to a fair
trial when the reference to the nickname ‘Killer’ was
evaluated in light of the prejudicial effects the 911 tape
had on the jury . . . as well as the effects on the jury
that resulted from the prosecutor’s over-reach during
closing argument . . . .’’ See State v. Camacho, supra,282 Conn. 382. We disagree.
The following additional facts are relevant to our
resolution of this claim. Prior to the beginning of the
criminal trial, the court granted the petitioner’s motion
to exclude any reference at trial to his nickname,
‘‘Killer.’’ At trial, the state called Martin as a witness.
During direct examination, the prosecutor questioned
Martin as to whether she knew the petitioner by name.
Martin replied that the petitioner was known by Marco,
Camacho, and ‘‘Killer.’’ Defense counsel immediately
moved for a mistrial and the jury was excused. Out of
the jury’s presence, a discussion arose between the
court and the parties during which Martin confirmed
that the prosecutor had told her not to mention the
nickname ‘‘Killer’’ during her testimony. Martin claimed,
instead, that she had simply been confused by the ques-
tion regarding the petitioner’s name. The court denied
the petitioner’s motion for a mistrial while instructing
Martin not to refer to the petitioner as ‘‘Killer’’ again.
When the jury returned, the court gave a curative
instruction that the jury should disregard the nickname
completely, that the use of the nickname should be
stricken from the record, and that the jury should not
take the nickname into consideration in its delibera-
tions. Thereafter, Martin testified for two more days
without again referring to the petitioner as ‘‘Killer.’’
Approximately six weeks later, the state recalled Mar-
tin as a witness. During direct examination, the prosecu-
tor asked Martin about discussions she had had with
Henry after the murders, and, in responding, Martin
once again referred to the petitioner as ‘‘Killer.’’ When
defense counsel objected, the jury was excused, and
counsel moved for a mistrial for the second time. In
the jury’s absence, Martin apologized to the court and
explained that her use of the nickname had been unin-
tended. The court found that Martin’s use of the nick-
name was accidental and ‘‘not so prejudicial to warrant
a mistrial.’’ Accordingly, the court denied the petition-
er’s motion and, when the jury returned, gave a second
curative instruction concerning the reference to the
petitioner by his nickname, ‘‘Killer.’’ On appeal, appel-
late counsel did not challenge the court’s denial of either
motion for a mistrial.
In addition to Martin’s references to the petitioner
as ‘‘Killer,’’ the court chastised the prosecutor for telling
the jury that he was submitting a document ‘‘with the
exception of the nickname.’’ Defense counsel immedi-
ately moved for a mistrial, but the court denied the
motion. The court told the prosecutor that ‘‘[i]t was not
good judgment to mention that in front of the jury.’’
At the habeas trial, appellate counsel testified that
she recalled considering the multiple references to the
petitioner as ‘‘Killer’’ throughout trial as a potential
claim on appeal. Ultimately, however, she stated that
she determined that a claim concerning the use of the
nickname by Martin and the prosecutor at trial would
be a ‘‘difficult claim to make.’’
As noted, each time Martin used the term ‘‘Killer,’’
the court gave a curative instruction to the jury. ‘‘We
are mindful that curative instructions are not a cure-
all for every improper event that may transpire during
a trial. . . . The likely effectiveness of such a remedy
is dependent on the magnitude of the impropriety to
which it is directed.’’ (Citation omitted.) State v. Nance,
119 Conn. App. 392, 406, 987 A.2d 376, cert. denied, 295
Conn. 924, 991 A.2d 569 (2010). Importantly, ‘‘absent
clear evidence to the contrary, we presume that the
jury followed the court’s instructions.’’ Id., 405. ‘‘While
the remedy of a mistrial is permitted under the rules
of practice, it is not favored. . . . If curative action can
obviate the prejudice, the drastic remedy of a mistrial
should be avoided. . . . The general rule in Connecti-
cut is that a mistrial is granted only where it is apparent
to the court that as a result of some occurrence during
trial a party has been denied the opportunity for a fair
trial. . . . The trial court enjoys wide discretion in
deciding whether a mistrial is warranted . . . and its
evaluation as to events occurring before the jury is to be
accorded the highest deference. . . . Every reasonable
presumption will be given in favor of the trial court’s
ruling . . . because the trial court, which has a first-
hand impression of the jury, is in the best position to
evaluate the critical question of whether the juror’s or
jurors’ exposure has prejudiced a defendant. . . . It is
only when an abuse of discretion is manifest or where
an injustice appears to have been done that a reversal
will result from the trial court’s exercise of discretion.
. . . A reviewing court gives great weight to curative
instructions in assessing error.’’ (Internal quotation
marks omitted.) State v. Boykin, 74 Conn. App. 679,
685–86, 813 A.2d 143, cert. denied, 263 Conn. 901, 819
A.2d 837 (2003).
In support of his claim, the petitioner relies on our
decision in State v. Williams, 41 Conn. App. 180, 190,
674 A.2d 1372, cert. denied, 237 Conn. 925, 677 A.2d 950(1996), for the proposition that the cumulative effect of
errors committed at trial may be so serious that no
curative instruction reasonably could be expected to
remove their prejudicial impact. Here, the record
reflects that the trial took approximately six weeks
during which Martin made reference to the petitioner
as ‘‘Killer’’ twice and the prosecutor made oblique refer-
ence to the term once. Although the use of this term
by the witness and the reference to it by the prosecutor
at trial was inappropriate, we do not fault the habeas
court in concluding, on the basis of this record, that
the petitioner had failed to demonstrate that these mis-
steps by the witness and the prosecutor so prejudiced
the jury that a mistrial was warranted.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
As our Supreme Court did on direct appeal, we refer to Nick Votino by
his last name and to Joanne Votino by her full name. State v. Camacho,
supra, 282 Conn. 333 n.9.
2
There is some confusion concerning whether the petitioner’s second
issue was properly preserved at trial as, in our Supreme Court’s opinion on
direct appeal, the court stated that the 911 tape was admitted without
objection. State v. Camacho, supra, 282 Conn. 377. In this habeas matter,
both counsel and the court reflected their belief that the petitioner’s trial
counsel had, in fact, objected to the admission of the 911 tape on the grounds
of relevance and on the ground that its probative value was outweighed by
its likely prejudicial impact. We need not resolve that confusion in the
record, however, in order to resolve the question of whether appellate
counsel was ineffective for her failure to assert that the admission violated
the petitioner’s constitutional right to due process and a fair trial, as, under
State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), counsel could have
at least asserted that the issue, whether or not preserved, could be reviewed
on appeal if it did, indeed, implicate a constitutional right. From the record
of the habeas hearing, we infer that appellate counsel was not convinced
that she could successfully elevate this evidentiary claim to a constitutional
one, and, therefore, she decided instead to focus on the issues that she
thought had greater viability.