Robinson v. Commissioner of Correction , 167 Conn. App. 809 ( 2016 )

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TYRONE ROBINSON v. COMMISSIONER
OF CORRECTION
(AC 37385)
Beach, Keller and Harper, Js.
Argued May 24—officially released August 30, 2016
(Appeal from Superior Court, judicial district of
Tolland, Kwak, J.)
David B. Bachman, assigned counsel, for the appel-
lant (petitioner).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Richard Keenan Greenalch, Jr., deputy assis-
tant state’s attorney, for the appellee (respondent).
Opinion
HARPER, J. The petitioner, Tyrone Robinson, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his petition for a writ of habeas corpus. On appeal, the
petitioner claims that the habeas court (1) abused its
discretion when it denied his petition for certification
to appeal and (2) improperly concluded that his criminal
defense counsel (defense counsel), George Flores and
William O’Connor,1 did not provide ineffective assis-
tance by failing to immediately object or move for a
mistrial after a state’s witness testified that the peti-
tioner had refused to speak to police. We conclude that
the court did not abuse its discretion in denying the
petition for certification to appeal, and, accordingly,
dismiss the appeal.
The following facts and procedural history are rele-
vant to our resolution of the petitioner’s claims.2 In
2008, the petitioner was convicted of the murder of
Leonard Lindsay in violation of General Statutes § 53a-
54a and criminal possession of a firearm in violation
of General States § 53a-217 (a) (1). The petitioner
elected to have the first count tried by a jury and the
second count tried by the court. State v. Robinson, 125
Conn. App. 484, 486, 8 A.3d 1120 (2010), cert. denied,
300 Conn. 911, 12 A.3d 1006 (2011). The core of the
state’s case consisted of testimony that the petitioner
had confessed to killing the victim to four individuals on
separate occasions between October, 2002, and April,
2008. Id., 487. The state also presented evidence that
the petitioner had exhibited jealousy and anger toward
the victim. Id., 486. The state did not produce a murder
weapon, any eyewitnesses to the killing, or any physical
forensic evidence connecting the petitioner to the
killing.
The petitioner’s criminal trial included testimony
from the lead investigating officer, Detective Jerry Bilbo
of the Hartford Police Department, which forms the
basis of this appeal. Bilbo testified that the petitioner
chose not to speak to police officers following his
arrest:
‘‘[The Prosecutor]: When [the petitioner] was
arrested, were you called in to speak to him?
‘‘[Bilbo]: Yes, I was.
‘‘[The Prosecutor]: Alright. And did you go see him?
‘‘[Bilbo]: Yes, I did.
‘‘[The Prosecutor]: And did you speak to him?
‘‘[Bilbo]: Yes, I did.
‘‘[The Prosecutor]: Alright. And did he speak to you?
‘‘[Bilbo]: He refused to speak to me.’’
Defense counsel did not move for a mistrial or other-
wise object immediately to this testimony. Rather,
defense counsel chose to cross-examine Bilbo regard-
ing the petitioner’s silence and right to remain silent:
‘‘[Defense Counsel]: You said that, when [the peti-
tioner] was arrested, you went to speak to him.
‘‘[Bilbo]: Yes, I did.
‘‘[Defense Counsel]: And you’re aware that he does
not have to speak to you if he doesn’t want to. Isn’t
that right?
‘‘[Bilbo]: Yes.
***
‘‘[Defense Counsel]: Okay. And you didn’t write in
any report or any documentation anywhere that you
ever attempted to speak to [the petitioner], did you?
‘‘[Bilbo]: He refused to speak to me.
***
‘‘[Defense Counsel]: Okay. Now, you said . . . when
[the petitioner] was arrested, you spoke to him.
Correct?
‘‘[Bilbo]: Yes, I did.
‘‘[Defense Counsel]: Where did that occur?
‘‘[Bilbo]: That occurred right here, at the courthouse.
‘‘[Defense Counsel]. Okay. But you didn’t document
that anywhere.
‘‘[Bilbo]: No, sir.
‘‘[Defense Counsel]. And, at any rate, he has every
right not to speak to you. Correct?
‘‘[Bilbo]: Yes.’’
This line of cross-examination in turn prompted the
prosecutor to have the following exchange with Bilbo
on redirect:
‘‘[The Prosecutor]: [Defense] Counsel also asked you
about speaking to [the petitioner] after he was
arrested. Correct?
‘‘[Bilbo]: Yes, he did.
‘‘[The Prosecutor]: And he said that you did not docu-
ment anywhere that [the petitioner] chose not to talk
to you. Correct?
‘‘[Bilbo]: Correct.
‘‘[The Prosecutor]: Alright. And, as [Defense Counsel]
pointed out, that was his constitutional right to do
so. Correct?
‘‘[Bilbo]: Yes, it was.
‘‘[The Prosecutor]: And is that unusual for you not
to document that someone chooses not to speak to you?
‘‘[Bilbo]: No, it is not.’’
Finally, defense counsel closed this topic on recross-
examination of Bilbo as follows:
‘‘[Defense Counsel]: Okay. And [if a witness stated
an important detail to you during an interview] that
would be documented, but speaking to a defendant
would not be documented. Right? That’s your tes-
timony?
‘‘[Bilbo]: Yes, sir.’’
Two days later, defense counsel made a motion for
a mistrial on the ground that Bilbo’s testimony regarding
the petitioner’s silence violated his due process rights
under Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L.
Ed. 2d 91 (1976), and State v. Plourde, 208 Conn. 455,
545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109
S. Ct. 847, 102 L. Ed. 2d 979 (1989), and caused him
substantial and irreparable prejudice. The court denied
the motion on the basis that, rather than immediately
make that motion when the testimony was offered,
defense counsel chose to cross-examine Bilbo on the
topic. The court described this decision by defense
counsel as ‘‘a very sound and excellent tactical deci-
sion’’ and ‘‘very intelligent.’’ Instead of granting a mis-
trial, the court gave a curative instruction to the jury and
prohibited the prosecutor from making any arguments
regarding the petitioner’s silence.
The court provided the following curative instruction
to the jury: ‘‘The [petitioner] also has a constitutional
right not to speak to police. And if you find that the
[petitioner] chose not to speak to Detective Bilbo, you
may not hold that against him in any way.’’ The peti-
tioner was found guilty on both counts. State v. Rob-
inson, supra, 125 Conn. App. 486. Following conviction,
defense counsel filed a motion for a new trial arguing,
in part, that Bilbo’s testimony was a prejudicial violation
of the petitioner’s right against self-incrimination under
the fifth amendment to the United States constitution.
The court denied this motion from the bench on Septem-
ber 2, 2008, without any oral argument from the parties.
The petitioner subsequently was sentenced to a total
effective sentence of fifty years incarceration. Id. On
direct appeal, this court affirmed the judgment of con-
viction.3 Id., 489.
On May 18, 2012, the petitioner filed his operative
petition for a writ of habeas corpus, in which he alleged
that his defense counsel rendered ineffective assistance
on several grounds,4 including by failing to object or
move for a mistrial immediately after Bilbo testified
that the petitioner had refused to speak to police, and
then further compounding the error by raising the issue
on cross-examination. He contended this deficiency fell
below the range of competence displayed by lawyers
with ordinary training and skill, violated his due process
rights, and caused him prejudice because, if not for this
failure, the outcome of his trial would have been dif-
ferent.
Following a trial, the habeas court denied the petition
for a writ of habeas corpus by a memorandum of deci-
sion dated October 9, 2014. The habeas court made
the following relevant findings. When Bilbo testified
regarding the petitioner’s silence, the defense team dis-
cussed how to respond. They determined that it was
unlikely the court would grant a mistrial and that, even
if such a ruling could be obtained, it would not serve
their client’s strong desire to proceed with trial. They
concluded that the best response would be to cross-
examine Bilbo on this issue and seek a curative jury
instruction. This strategy also had the benefit, in their
view, of undermining Bilbo’s credibility and revealing
his biases. The habeas court found this strategy to be
‘‘eminently reasonable and not indicative of deficient
performance,’’ and that it ‘‘effectively highlight[ed]
[Bilbo’s] bias.’’ The court concluded that defense coun-
sel did not provide ineffective assistance and that the
petitioner did not show that this strategy caused him
prejudice.
The petitioner then filed a petition for certification
to appeal, which alleged several grounds for appeal,
including whether the habeas court improperly deter-
mined that defense counsel’s strategy regarding Bilbo’s
testimony did not constitute deficient performance. The
court denied the petition for certification to appeal on
October 16, 2014. This appeal followed.
In this appeal, the petitioner contends that the habeas
court abused its discretion in denying his petition for
certification to appeal and in determining that defense
counsel did not provide ineffective assistance by failing
to move for a mistrial immediately or otherwise object
when Bilbo testified regarding the petitioner’s silence.
We disagree.
We begin by setting forth the applicable standard of
review. ‘‘In Simms v. Warden, 229 Conn. 178, 187, 640
A.2d 601 (1994), [our Supreme Court] concluded that
. . . [General 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 certi-
fication 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 denying certification to appeal. This stan-
dard 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 encourage-
ment to proceed further. . . . A petitioner who estab-
lishes an abuse of discretion through one of the factors
listed above must then demonstrate 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 reasonably determined that the peti-
tioner’s appeal was frivolous.’’ (Emphasis in original;
internal quotation marks omitted.) Atkins v. Commis-
sioner of Correction, 158 Conn. App. 669, 674–75, 120
A.3d 513, cert. denied, 319 Conn. 932, 125 A.3d 206(2015).
Consideration of the merits of the petitioner’s under-
lying claims requires us to set forth the standard of
review for claims of ineffective assistance of counsel.
‘‘In order to establish an ineffective assistance of coun-
sel claim a petitioner must meet the two-pronged test
enunciated in Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Specifically,
the claim must be supported by evidence establishing
that (1) counsel’s representation 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 pro-
ceedings would have been different had it not been for
the deficient performance. . . . Because both prongs
of Strickland must be demonstrated for the petitioner
to prevail, failure to prove either prong is fatal to an
ineffective assistance claim.’’ (Emphasis in original;
internal quotation marks omitted.) Jones v. Commis-
sioner of Correction, 152 Conn. App. 110, 115, 96 A.3d
1271, cert. denied, 314 Conn. 931, 102 A.3d 83 (2014).
‘‘[T]his court cannot disturb the underlying facts found
by the habeas court unless they are clearly erroneous,
but our review of whether the facts as found by the
habeas court constituted a violation of the petitioner’s
constitutional right to effective assistance of counsel
is plenary.’’ (Internal quotation marks omitted.) Atkins
v. Commissioner of Correction, supra, 158 Conn.
App. 675.
The petitioner first claims that the habeas court incor-
rectly determined that defense counsel did not provide
ineffective assistance. Specifically, he contends that he
was denied his constitutional right to the effective assis-
tance of counsel when his defense counsel did not prop-
erly respond to a violation of his due process rights. He
argues that Bilbo’s testimony regarding the petitioner’s
silence violated his constitutional rights as delineated in
Doyle v. Ohio, supra, 426 U.S. 610, and State v. Plourde,
supra, 208 Conn. 455, and as such, required a specific
response from defense counsel: immediately either
move for a mistrial or object.5 The respondent, the Com-
missioner of Correction, argues that the habeas court
correctly determined that defense counsel’s perfor-
mance was not deficient. He contends that Bilbo’s testi-
mony does not constitute a violation under Doyle and
Plourde because there is no evidence in the record that
the petitioner received a Miranda6 warning prior to
invoking his right to remain silent, and that defense
counsel therefore cannot have performed deficiently in
failing to respond a particular way. The petitioner has
conceded in his reply brief that ‘‘the case at bar involves
postarrest, pre-Miranda silence . . . .’’ For the rea-
sons that follow, we find this concession to be disposi-
tive of the petitioner’s claim that a Doyle violation
occurred and required a specific response from his
defense counsel. Therefore, we conclude that the
habeas court correctly determined that defense coun-
sel’s performance was not deficient in regard to the
alleged Doyle violation.
‘‘In Doyle v. Ohio, supra, [426 U.S. 617–19],the United
States Supreme Court held that the impeachment of a
defendant through evidence of his silence following his
arrest and receipt of Miranda warnings violates due
process. The court based its holding in two considera-
tions: First, it noted that silence in the wake of Miranda
warnings is insolubly ambiguous and consequently of
little probative value. Second and more important, it
observed that while it is true that the Miranda warnings
contain no express assurances that silence will carry
no penalty, such assurance is implicit to any person
who receives the warnings. In such circumstances, it
would be fundamentally unfair and a deprivation of due
process to allow the arrested person’s silence to be
used to impeach an explanation subsequently offered
at trial. . . . The point of the Doyle holding is that it
is fundamentally unfair to promise an arrested person
that his silence will not be used against him and there-
after to breach that promise by using the silence to
impeach his trial testimony. . . . Consistent with this
rationale, the court has concluded that use at trial of
silence prior to the receipt of Miranda warnings does
not violate due process. . . . Doyle applies whenever
Miranda warnings have been given regardless of an
arrest or custody.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Plourde, supra, 208 Conn.
465–66. Our Supreme Court’s decision in Plourde fur-
ther expanded the Doyle rule to prohibit the state’s use
of evidence of a defendant’s post-Miranda silence as
affirmative proof of guilt at trial. Id., 468.
A claim of ineffective assistance of counsel based on
an alleged Doyle violation is a claim that defense coun-
sel should have done more to protect the defendant
from a violation of the implicit promise of the Miranda
warning not to use his silence against him. Therefore,
evidence that a Miranda warning was given is a neces-
sary prerequisite to the petitioner’s claim. State v.
Berube, 256 Conn. 742, 753, 775 A.2d 966 (2001).
Because there is no dispute that the silence at issue
here occurred prior to the issuance of a Miranda warn-
ing, there can be no Doyle violation. Id. We therefore
conclude that the habeas court correctly determined
that defense counsel did not render ineffective assis-
tance in responding to a Doyle violation because none
had occurred.
Despite the lack of a Doyle violation, it is possible that
testimony regarding the petitioner’s postarrest silence
could be particularly prejudicial to his case, and the
question therefore remains whether the performance
of defense counsel fell below an objective standard of
reasonableness in responding to Bilbo’s testimony. The
petitioner has argued that his defense counsel’s
response was deficient because counsel did not object
or move for a mistrial immediately. Even assuming,
arguendo, that Bilbo’s testimony was so damaging as
to have prompted some kind of mitigating response
from a reasonably competent defense attorney, it
remains unclear that the response advocated by the
petitioner is the only correct response or that the
response of defense counsel was in any way deficient.7
‘‘The Constitution guarantees a fair trial through the
Due Process Clauses, but it defines the basic elements
of a fair trial largely through the several provisions of
the Sixth Amendment, including the Counsel Clause:
In all criminal prosecutions, the accused shall enjoy
the right . . . to have the Assistance of Counsel for
his defense. . . . The right to counsel plays a crucial
role in the adversarial system embodied in the Sixth
Amendment, since access to counsel’s skill and knowl-
edge is necessary to accord defendants the ample
opportunity to meet the case of the prosecution to
which they are entitled. . . . That a person who hap-
pens to be a lawyer is present at trial alongside the
accused, however, is not enough to satisfy the constitu-
tional command. The Sixth Amendment recognizes the
right to the assistance of counsel because it envisions
counsel’s playing a role that is critical to the ability of
the adversarial system to produce just results.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Strickland v. Washington, 466 U.S. 668, 684–85, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). Counsel’s role is ‘‘to
ensure that the adversarial testing process works to
produce a just result under the standards governing
decision.’’ Id., 687.
Moreover, ‘‘[t]he court must be mindful that [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. Because of the diffi-
culties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance; that is, the [petitioner] must overcome the
presumption that, under the circumstances, the chal-
lenged action might be considered sound trial strategy.’’
(Internal quotation marks omitted.) Lewis v. Commis-
sioner of Correction, 89 Conn. App. 850, 855–56, 877
A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005).
This court’s decision in Lewis v. Commissioner of
Correction, supra, 89 Conn. App. 850, is instructive. In
that case, this court considered a nearly identical set
of factual circumstances and legal questions. The peti-
tioner in Lewis argued that his attorney provided defi-
cient performance in failing to move for a mistrial after
a police officer testified that, during the investigation,
he attempted to speak to the petitioner and he refused.8
Id., 863. The police officer’s testimony was that the
petitioner initially had cooperated with police and con-
fessed to a murder. Id. After the confession, police
proceeded to discuss other matters with the petitioner
during which time he provided a recorded statement
regarding those other matters. Id. After making that
unrelated recording, the police officer requested that
the petitioner repeat his murder confession so that offi-
cers could also record that statement. At that point,
the petitioner refused to speak to officers further and
consequently the interrogation ceased. Id.
Rather than immediately move for a mistrial or
object, defense counsel in Lewis chose to cross-exam-
ine the police officer on this issue and use it to help
undermine the officer’s credibility. Id., 865–68. In doing
so, counsel necessarily brought the petitioner’s silence
to the attention of the jury again. Id. Neither this court’s
decision in Lewis nor the underlying habeas court’s
decision in Lewis9 show that counsel moved for a mis-
trial, nor do these decisions reflect that defense counsel
sought a curative instruction. Nevertheless, this court
concluded that counsel’s strategy constituted a reason-
able tactical decision, guided by sound professional
judgment. Id., 866.
We conclude that the habeas court correctly deter-
mined that the performance of defense counsel did not
fall below an objective standard of reasonableness. As
in Lewis, defense counsel in the present case did not
immediately move for a mistrial or object to testimony
regarding postarrest silence. A mistrial is considered
an extreme remedy and is disfavored where the harm
can be mitigated through other means. State v. Gary,
273 Conn. 393, 413, 869 A.2d 1236 (2005). In both cases,
the attorneys elected to use the issue of postarrest
silence on cross-examination of the witness to under-
mine that witness’ credibility and stress that the peti-
tioner has a constitutional right not to speak to the
police. This court previously has held that ‘‘[a]n attor-
ney’s line of questioning on examination of a witness
clearly is tactical in nature’’; (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); and ‘‘a court must
indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance; that is, the [petitioner] must overcome the
presumption that, under the circumstances, the chal-
lenged action might be considered sound trial strategy.’’
(Internal quotation marks omitted.) Lewis v. Commis-
sioner of Correction, supra, 89 Conn. App. 855–56. In
both Lewis and the present case, the witness that raised
the petitioner’s postarrest silence was the lead police
investigator. A trial strategy that undermines the credi-
bility of the lead investigator by implication takes aim
at the value of the investigation itself. This strategy
tests the state’s case and helps ‘‘to ensure that the
adversarial testing process works to produce a just
result under the standards governing decision.’’ Strick-
land v. Washington, supra, 466 U.S. 687. The strategy
adopted by the defense counsel in the present case was
substantially similar to the strategy we determined to
be reasonable in Lewis under similar circumstances.
We see no reason to reject it now.
Our conclusion is further buttressed by other facts
that distinguish the petitioner’s case from Lewis. Unlike
in Lewis, here defense counsel did more than simply
cross-examine the witness. Defense counsel sought a
mistrial, albeit with some delay, and moved for a new
trial after conviction. Both motions cited Bilbo’s refer-
ences to the petitioner’s postarrest silence. Although
the court did not provide its rationale for denying the
motion for a new trial, it did explain that it was denying
the motion for a mistrial, in part, because the cross-
examination by defense counsel had adequately miti-
gated any potential prejudice. These motions led the
court to prohibit the prosecutor from making any fur-
ther comment or arguments based on the petitioner’s
silence.10 Finally, defense counsel sought and obtained
a curative jury instruction directing the jury to draw no
adverse inferences from the petitioner’s silence because
he was merely exercising his constitutional right not
to speak to the police.11
The petitioner has not met his burden of demonstra-
ting that this issue is debatable among jurists of reason
or that a court could resolve this issue in a different
manner. We agree with the habeas court’s determina-
tion that this performance did not fall below an objec-
tive level of reasonableness. We need not reach the
question of whether the petitioner suffered prejudice
because the failure to prove either prong of the Strick-
land standard is determinative of the petitioner’s inef-
fective assistance of counsel claim. Jones v.
Commissioner of Correction, supra, 152 Conn. App.
115. We conclude that the petitioner failed to satisfy his
burden of proof with respect to his claim of ineffective
assistance of counsel. Accordingly, we conclude that
the court did not abuse its discretion in denying the
petition for certification to appeal.
The appeal is dismissed.
In this opinion the other judge concurred.
1
The petitioner’s defense team consisted of two attorneys. Attorney Flores
was the lead attorney and he was responsible for the witness examination
at issue in this matter. Attorney O’Connor was assistant counsel and helped
formulate the defense strategy. Most of the defense activities discussed
herein were the actions of Attorney Flores; however, Attorney O’Connor
also participated in some motions relevant to this matter. For the purposes
of this appeal, it is not relevant which attorney posed a particular question
or made a motion, therefore we will refer to the petitioner’s criminal defense
team as defense counsel and will not differentiate between his attorneys.
2
This court’s opinion in the petitioner’s direct appeal provides a full
exposition of the facts that the jury reasonably could have found at the
criminal trial. See State v. Robinson, 125 Conn. App. 484, 486–87, 8 A.3d
1120 (2010), cert. denied, 300 Conn. 911, 12 A.3d 1006 (2011). Much of this
information is not relevant to the narrow issues before the court here.
3
The claims on direct appeal were unrelated to those currently before us.
4
The other grounds raised by the petitioner in his operative petition for
a writ of habeas corpus are not relevant to this appeal.
5
The petitioner has shifted his argument before this court. The shift is
most apparent in his reply brief, in which he reframes the issue as a violation
of his right against self-incrimination under the fifth amendment to the
United States constitution, with citations to Griffin v. California, 380 U.S.
609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). The petitioner’s arguments to
the habeas court were exclusively based on an alleged Doyle violation with
citations to Doyle, Plourde, and their progeny. ‘‘[T]he Doyle analysis rests
on the Due Process Clause [of the fourteenth amendment], not the Fifth
Amendment.’’ Wainwright v. Greenfield, 474 U.S. 284, 293 n.10, 106 S. Ct.
634, 88 L. Ed. 2d 623 (1986). The court in Doyle held that the state violates the
fundamental fairness guaranteed by the due process clause of the fourteenth
amendment when it uses a defendant’s post-Miranda silence as evidence
against him in a criminal trial after having implicitly promised, through the
Miranda warning, not to use that silence against him. State v. Plourde,
supra, 208 Conn. 465–66. This is the argument the petitioner presented to
the habeas court in his ineffective assistance claim. He claimed that his
defense counsel had performed deficiently because they had failed to prevent
the state from violating the petitioner’s due process rights by breaching this
implied promise of the Miranda warning. Because the task before this court
is to determine whether the habeas court abused its discretion in denying
certification to appeal, we will consider only the grounds the petitioner
actually presented to the habeas court. See Tutson v. Commissioner of
Correction, 144 Conn. App. 203, 217, 72 A.3d 1162, cert. denied, 310 Conn. 928,
78 A.3d 145 (2013) (‘‘[u]nder such circumstances, a review of the petitioner’s
claims would amount to an ambuscade of the [habeas] judge’’ [internal
quotation marks omitted]).
6
Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
7
We must also note that the case law is not clear that a Doyle violation
categorically requires a mistrial. Even had a Doyle violation occurred, that
finding would not necessitate the response that the petitioner advocates.
See, e.g., State v. Montgomery, 254 Conn. 694, 718, 759 A.2d 995 (2000)
(explaining that some Doyle violations are so insignificant as to be deemed
harmless error while others are more significant). In particular, the petitioner
argues the appropriate response to a Doyle violation is a mistrial, but the
case law is clear that a mistrial is considered to be an extreme remedy that
can be granted only if there is no other way to mitigate some improper
harm caused to the defendant. See State v. Gary, 273 Conn. 393, 413, 869
A.2d 1236 (2005) (mistrial is drastic and disfavored remedy that should not
be granted if other curative action can obviate any prejudice suffered).
Given that not all Doyle violations are significant, it is incorrect to assume
that all Doyle violations require a mistrial.
8
The testimony regarding silence in Lewis is distinguishable from that in
the present case in one particularly noteworthy aspect. In Lewis, there was
no dispute that the police officer was testifying about the petitioner’s post-
Miranda silence rather than merely postarrest silence, which means that
Doyle squarely applied to those claims. Lewis v. Commissioner of Correc-
tion, supra, 89 Conn. App. 863.
9
Lewis v. Warden, Superior Court, judicial district of Tolland, Docket
No. CV-93-0001767-S (November 15, 1999).
10
This instruction by the criminal trial court is particularly noteworthy
as our Supreme Court previously has held that reference to a defendant’s
silence is most damaging when it is repetitively emphasized with extensive,
strongly worded arguments suggesting a connection between silence and
guilt. State v. Montgomery, supra, 254 Conn. 718.
11
We note that the petitioner also contends that Attorney O’Connor dis-
agreed with the trial strategy and that this disagreement indicates a defi-
ciency in the performance of his defense counsel. We reject this contention.
To begin with, our review of the record indicates that Attorney O’Connor’s
testimony may be more accurately characterized as stating that, with the
benefit of hindsight, he now sees the situation differently and views the
relative benefits of alternative trial strategies differently than he did at the
time of trial. This does not indicate that Attorney O’Connor disagreed with
the trial strategy at the time, and, even if he did, disagreement among
defense counsel does not in itself render the strategy ultimately chosen to
be unreasonable. Additionally, the import of Attorney O’Connor’s testimony
must be tempered by the Supreme Court’s instruction that ‘‘[a] fair assess-
ment of attorney performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the circumstances of coun-
sel’s challenged conduct, and to evaluate the conduct from counsel’s per-
spective at the time.’’ Strickland v. Washington, supra, 466 U.S. 689.