207130 v. Warden, State Prison (2010)

MEMORANDUM OF DECISION

On December 27, 2007, the petitioner, Russell Johnson, filed a writ of habeas corpus, in which he claims that he was denied the effective assistance of his trial counsel, Attorney Shawn Tiernan (count one) and Attorney Mary Haselkemp (count two), and of his habeas appellate counsel, Attorney Robert Byron (count three), in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut.   He claims that his convictions should be vacated.

Prior to the instant habeas petition, in September 2000, the petitioner filed a habeas petition in the judicial district of New Haven.   That petition was denied after a hearing on the merits.   See Johnson v. Warden, Superior Court, judicial district of New Haven, Docket No. CV 00 0443442 (December 19, 2002, DeMayo, J.T.R.).   The subsequent appeal therefrom was dismissed by the Appellate Court in a per curiam decision.   See Johnson v. Commissioner, 83 Conn.App. 714, 852 A.2d 761, cert. denied, 271 Conn. 907, 859 A.2d 561 (2004).   Thereafter, the petitioner filed two habeas corpus petitions, including the present one, in the judicial district of Tolland under docket numbers CV 05 4000633 and CV 08 4002194.   They were consolidated under docket number CV 08 4002194, the instant case.

The matter came to trial on June 30, 2009 and again on September 8, 2009.   On the first day of trial, after a hearing on the respondent's motion to dismiss counts one and two of the petition, the petitioner voluntarily withdrew count one, and the court dismissed count two pursuant to the doctrine of res judicata.   Only count three, the claim of ineffective assistance of habeas appellate counsel, remained to be tried.¹  The court heard testimony from the petitioner, Attorney Byron and Attorney Gary Mastronardi, an expert witness.   The petitioner submitted as exhibits the memorandum of decision from his previous habeas matter and the trial and sentencing transcripts from his criminal trial.   The respondent submitted, among other documents, the transcript of the petitioner's previous habeas trial, the appellate record and briefs and a copy of the Appellate Court decisions in the petitioner's direct appeal and appeal from the denial of his previous habeas petition.   The parties submitted posttrial briefs;  the petitioner filed his brief on March 11, 2010, and the respondent filed his brief on March 24, 2010.   The court has reviewed all of the testimony and evidence and makes the following findings of fact.

FINDINGS OF FACT

1. The petitioner was the defendant in a case in the judicial district of New Haven under docket number CR980474879.   He was charged with attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-59(a)(5), attempt to commit assault of a peace officer in violation of General Statutes § 53a-49(a)(2) and General Statutes(Rev. to 1997) § 53a-167c(a)(1), as amended by Public Acts 1998, No. 98-41, carrying a pistol without a permit in violation of General Statutes (Rev. to 1997) § 29-35(a) and possession of narcotics with intent to sell by a non-drug-dependent person in violation of General Statutes § 21a-278(b).

2. The petitioner pleaded not guilty to the charges and elected a jury trial.

3. At all times relevant to the instant petition, the petitioner was represented in the underlying criminal proceedings by Attorney Haselkamp.

4. After a jury trial, on September 17, 1999, the petitioner was found guilty of attempt to commit assault in the first degree, attempt to commit assault of a peace officer, carrying a pistol without a permit and the lesser included offense of possession of narcotics with intent to sell in violation of General Statutes § 21a-277(a).²

5. The jury reasonably could have found the following facts:  On November 28, 1998, “[t]wo New Haven police officers were responding to a Hamden police broadcast when they stopped the [petitioner] since he matched the description given by Hamden.   When the then suspect fled, one New Haven officer pursued him on foot while the other followed in the police cruiser, maintaining radio contact with the pursuing officer, Justin Kasperzyk.   At one point in the chase, the petitioner ran into a garage and then ran out.   Kasperzyk testified that he then shone his flashlight into [the petitioner's] face whereupon the petitioner pointed a gun at the officer's head, and according to Kasperzyk, pulled the trigger but the gun did not fire.   This encounter was witnessed by the other police officer.   When the petitioner attempted to escape, Kasperzyk tackled him and he was eventually subdued.   A search of the area turned up a gun later identified as the petitioner's.   In a search of his person, the petitioner was found in possession of a quantity of narcotics.”  Johnson v. Warden, supra, Superior Court, Docket No. CV 00 0443442.

6. On November 12, 1999, the trial court (Devlin, J.), sentenced the petitioner on the charge of attempt to commit assault in the first degree to twenty years, on the charge of attempt to commit assault on a peace officer to ten years concurrent, on the charge of possession of narcotics with intent to sell to five years concurrent and on the charge of carrying a pistol without a permit to five years consecutive, for a total effective sentence of twenty-five years.³

7. The petitioner appealed his convictions and was represented on the appeal by Attorney Lisa Steele.   His convictions were upheld by the Appellate Court.   See State v. Johnson, 67 Conn.App. 299, 786 A.2d 1269 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002).

8. Subsequent to the appeal, the petitioner filed a habeas corpus petition in the Judicial District of New Haven.   On December 19, 2002 the habeas court (DeMayo, J.T.R.), denied the petition.   See Johnson v. Warden, supra, Superior Court, Docket No. CV 00 0443442.   Attorney John Imhoff represented the petitioner in the habeas action.

9. The habeas court (DeMayo, J.T.R.), also denied the petitioner's petition for certification to appeal.

10. Thereafter, the petitioner appealed the denial of his habeas petition to the Appellate Court.   On July 6, 2004, the Appellate Court issued a per curiam decision dismissing the petitioner's appeal.   See Johnson v. Commissioner of Correction, supra, 83 Conn.App. 714.   Attorney Byron represented the petitioner on appeal.

11. Additional facts shall be discussed as necessary.

DISCUSSION

As noted by the petitioner on page five of his post-trial brief, “[t]he main thrust of [his] instant habeas corpus trial ․ centered around the issue of ineffective assistance of habeas appellate counsel for failure to brief the claim of prosecutorial [impropriety].” ⁴  Count three of his petition includes other allegations of ineffective assistance of habeas appellate counsel;  however, since the petitioner presented little evidence on them and did not brief them, this court finds that he has, if not abandoned these claims, failed to meet his burden of proof as to them.⁵  Accordingly, only the claim that Attorney Byron rendered ineffective assistance by failing to raise the issue of whether the habeas court erred in finding Attorneys Haselkemp and Steele not ineffective for failing to address the prosecutor's alleged impropriety is discussed below.⁶

“To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong.   To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ․ by the [s]ixth [a]mendment ․ To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different ․ The claim will succeed only if both prongs are satisfied ․ It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).   In the case of appellate counsel, the petitioner must establish that there is a reasonable probability that but for appellate counsel's error, the petitioner would have prevailed on appeal.   See Turner v. Commissioner of Correction, 118 Conn.App. 565, 568, 984 A.2d 793 (2009), cert. denied, 296 Conn. 901, 991 A.2d 1104 (2010).   Moreover, “a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of [appellate] counsel must essentially satisfy Strickland twice:  he must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his [appellate] counsel was ineffective.”  (Emphasis in original, internal quotation marks omitted.)   Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 394, 966 A.2d 780 (2009).

In his first habeas petition, the petitioner alleged “ineffective assistance of counsel on the part of the defense attorneys who represented him in the geographical area court, part ‘A,’ and on his appeal.”  Johnson v. Warden, supra, Superior Court, Docket No. CV 00 0443442.   Specifically, regarding prosecutorial impropriety, he alleged “that both trial counsel and appellate counsel were deficient, first in not objecting to and then in not appealing ‘prosecutorial [impropriety]’ occurring in final argument.”  Id. The habeas court, (DeMayo, J.T.R.), reviewed the instances of prosecutorial [impropriety] cited by the petitioner and found that “there [was] virtually nothing in this case to suggest an appellate court would order a new trial based on statements made in these closing arguments.”  Id. The court accordingly rejected this claim and ultimately denied the petitioner's petition, having found “no suggestion of ineffective assistance of counsel on trial or appeal.”  Id. It also denied the petitioner's petition for certification to appeal.   As noted supra, the petitioner unsuccessfully appealed the habeas court's decision.

It is that appeal which is the subject of the present habeas petition.   The petitioner contends that Attorney Byron, his habeas appellate counsel, should have raised the issue of prosecutorial impropriety on appeal.   Attorney Byron testified at the habeas trial that he started handling criminal appeals in 1998 and that he had handled between ten to twelve appeals prior to handling the petitioner's appeal.   He explained that he did not raise the issue of prosecutorial impropriety on appeal in the petitioner's case because he did not believe he could prevail on that issue and because he had identified a stronger issue to raise on appeal.   He further testified that he did not see anything in the record rising to the level of prosecutorial impropriety.   Even the petitioner's expert, Attorney Mastronardi, upon being asked whether there was an adequate basis for Attorney Byron to raise the issue of prosecutorial impropriety on appeal, prefaced his opinion by stating:  “It's a close call.” ⁷

“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 hind-sight, 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 Correction, 118 Conn.App. 670, 679, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010).   Attorney Byron made a tactical decision in choosing not to raise on appeal whether the habeas court erred in finding trial counsel and appellate counsel not ineffective for failing to raise the issue of prosecutorial impropriety at the petitioner's criminal trial and on his direct appeal.  “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”  (Internal quotation marks omitted.)  Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005).   The petitioner has not sufficiently rebutted this presumption.

Even if this court found that the petitioner had rebutted this presumption and that Attorney Byron's conduct constitutes deficient performance, the petitioner's claim of ineffective assistance of counsel against him would still fail because he has not proven that there is a reasonable probability that but for Attorney Byron's “error” he would have prevailed on appeal.   Where the habeas court denies a petitioner's petition for certification to appeal, the petitioner must demonstrate on appeal (1) that the denial constituted an abuse of discretion and upon showing an abuse of discretion, (2) that the decision of the court should be reversed on the merits.   See Mitchell v. Commissioner of Correction, 93 Conn.App. 719, 721-22, 891 A.2d 25, cert. denied, 278 Conn. 902, 896 A.2d 104 (2006).  “To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying 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.”  (Internal quotation marks omitted.)   Kearney v. Commissioner of Correction, 113 Conn.App. 223, 228, 965 A.2d 608 (2009).

There is no reasonable probability that the petitioner would be able to demonstrate either an abuse of discretion or that the decision of the habeas court should be reversed on the merits.   In the petitioner's first habeas petition, the habeas court, as is allowed, disposed of the petitioner's ineffective assistance of counsel claims against his trial and appellate attorney regarding their failure to address instances of prosecutorial impropriety by finding that the alleged errors by the attorneys did not result in any prejudice to the petitioner.   See Johnson v. Warden, supra, Superior Court, Docket No. CV 00 0443442.   Specifically, the habeas court did not find any of the complained of instances of prosecutorial impropriety “to warrant the result requested.”  Id.

“[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process.   The two steps are separate and distinct:  (1) whether [impropriety] occurred in the first instance;  and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial.   Put differently, [impropriety] is [impropriety], regardless of its ultimate effect on the fairness of the trial;  whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question that may only be resolved in the context of the entire trial.”  (Internal quotation marks omitted.)  State v. Angel T., 292 Conn. 262, 275, 973 A.2d 1207 (2009).  “This inquiry is guided by an examination of the following [State v.] Williams [204 Conn. 523, 529 A.2d 653 (1987) ] factors:  the extent to which the misconduct was invited by defense conduct or argument ․, the severity of the misconduct ․ the frequency of the misconduct ․ the centrality of the misconduct to the critical issues in the case ․ the strength of the curative measures adopted ․ and the strength of the state's case.”  (Internal quotation marks omitted.)  State v. King, 289 Conn. 496, 516, 958 A.2d 731 (2008).

The petitioner alleges that the habeas court erred by not finding in his favor on the issue of prosecutorial impropriety.   He argues that the prosecutor's impropriety occurred frequently during closing arguments and that it was severe.   Among the instances of impropriety cited by the petitioner are the prosecutor's remarks regarding the petitioner's credibility, allegedly inflammatory statements made by the prosecutor likely to appeal to the emotions of the jury and the prosecutor's reference to tapes not in evidence.

“[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments ․ In determining whether such [an impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument ․ Thus, as the state's advocate, a prosecutor may argue the state's case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.”  (Internal quotation marks omitted.)  State v. Ovechka, 118 Conn.App. 733, 744, 984 A.2d 796, cert. denied, 295 Conn. 905, 989 A.2d 120 (2010).  “[A] prosecutor may not appeal to the emotions, passions and prejudices of the jurors ․ [S]uch appeals should be avoided because they have the effect of diverting the [jurors'] attention from their duty to decide the case on the evidence ․ When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal.”  (Internal quotation marks omitted.)  Id., 745.  “It is not improper for a prosecutor to ask the jury to draw inferences and to exercise common sense ․ A prosecutor may urge the jury to find for stated reasons that a witness was truthful or untruthful ․ A prosecutor may also remark on the motives that a witness may have to lie, or not to lie, as the case may be.”  (Internal quotation marks omitted.)  State v. Jordan, 117 Conn.App. 160, 164, 978 A.2d 150, cert. denied, 294 Conn. 904, 982 A.2d 648 (2009).

In his closing arguments, the prosecutor commented extensively on the petitioner's credibility by questioning his motives for admitting on the stand to possessing the gun and the drugs recovered at the time of his arrest and by commenting on his “lifestyle.” ⁸  The petitioner argues that these comments shifted the burden from the state to prove the petitioner's guilt beyond a reasonable doubt to the petitioner to prove his innocence beyond a reasonable doubt and impermissibly asked the jury to convict the petitioner because of his lifestyle.   As noted supra, the prosecutor is allowed to comment on the credibility of a witness and ask the jury to draw reasonable inferences from the evidence.   He also repeatedly told the jury that it could not and was not being asked to convict the petitioner based upon his lifestyle or background.   He asked the jury to assess the petitioner's credibility in light of his background and his testimony.⁹  The case essentially came down to one of credibility;  the jury had to choose whether to believe the petitioner's account or the account of the two police officers.   Arguments relating to the petitioner's credibility were not only permissible but important in this case.   Both the prosecution and the defense remarked extensively on the credibility of the witnesses.¹⁰

During his closing argument, the prosecutor also mentioned the no longer existing tapes of the police radio broadcasts made on the night of the petitioner's arrest.   The petitioner argues that since the tapes were not in evidence it was improper for the prosecutor to refer to them.   While it is true that the actual tapes were not in evidence, testimony regarding the tapes was elicited during the trial.¹¹  Additionally, the defense commented on the tapes and what they may have contained during its closing argument.   Accordingly, it was not improper for the prosecutor to comment on them.

In contrast, the prosecutor's reference to the petitioner as a “gun-toting drug dealer” and his reference to the petitioner's test firing of the gun in a residential neighborhood were arguably inflammatory statements that could have appealed to the emotions of the jury.   However, as noted by the habeas court, the petitioner voluntarily disclosed that he had test fired the gun in his residential neighborhood, possibly endangering children.   See Johnson v. Warden, supra, Superior Court, Docket No. CV 00 0443442.   Moreover, the petitioner admitted to carrying a gun and being a drug dealer.   The prosecutor accordingly was referring to facts in evidence.

Even if the prosecutor's comments during his closing arguments are considered improper, they did not deprive the petitioner of a fair trial.   For the most part, they were just passing comments;  for example, the prosecutor only referred to the petitioner as a “gun-toting drug dealer” once.   Additionally, the trial court instructed the jury that it “must not be influenced by any personal likes or dislikes, opinions, prejudices or sympathy” and that “[c]ertain things are not evidence, and you may not consider them in deciding what the facts are and these include arguments and statements by lawyers.” ¹²  It also instructed the jury that “[t]he defendant does not have to prove his innocence” and that it “should discuss and judge the defendant's credibility in the same way [it] would judge any other witness.” ¹³  “[I]n the absence of evidence to the contrary, we presume that the jury properly followed those instructions.”  (Internal quotation marks omitted.)  State v. Cutler, 293 Conn. 303, 314, 977 A.2d 209 (2009).   Furthermore, the state had a strong case against the petitioner.   The petitioner admitted to possessing the gun and the drugs, Officer Kaspercyk testified that the petitioner held a gun to his head, and Officer Martin Chakirides, although he could not tell whether the petitioner had anything in his hands, testified that he saw the petitioner leaning towards his partner.   Neither officer's testimony was effectively impeached to show bias or any other motive for lying.   As stated by the habeas court:  “Stripped of all the veneer, the simple fact remains that the jury had two versions of an event from which to choose.   The state offered the more logical and reasonable one.”   See Johnson v. Warden, supra, Superior Court, Docket No. CV 00 0443442.   Based on the above, the petitioner has failed to prove that there is a reasonable probability that he would have prevailed on appeal if Attorney Byron had raised the issue of prosecutorial impropriety.   The prosecutor's remarks during closing argument did not deprive the petitioner of a fair trial.

CONCLUSION

Based on the foregoing, the petition for a writ of habeas corpus is denied.   Judgment may enter in favor of the respondent.   Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.

BY THE COURT,

T. Santos, J.

FOOTNOTES

FN1. Count three is labeled as count two in the amended petition..  FN1. Count three is labeled as count two in the amended petition.

FN2. Petitioner's Exhibits [Exhs.] 12-16..  FN2. Petitioner's Exhibits [Exhs.] 12-16.

FN3. Petitioner's Exh. 17, pp. 13-14..  FN3. Petitioner's Exh. 17, pp. 13-14.

FN4. The petitioner uses the term “prosecutorial misconduct” but our Supreme Court has stated that “[t]he use of the term ‘prosecutorial impropriety,’ when reviewing allegedly improper statements by a prosecutor at trial, is more appropriate than the traditional term of ‘prosecutorial misconduct’ ․” State v. Fauci, 282 Conn. 23, 26 n.2, 917 A.2d 978 (2007)..  FN4. The petitioner uses the term “prosecutorial misconduct” but our Supreme Court has stated that “[t]he use of the term ‘prosecutorial impropriety,’ when reviewing allegedly improper statements by a prosecutor at trial, is more appropriate than the traditional term of ‘prosecutorial misconduct’ ․” State v. Fauci, 282 Conn. 23, 26 n.2, 917 A.2d 978 (2007).

FN5. “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.”  (Internal quotation marks omitted.)  Solek v. Commissioner of Correction, 107 Conn.App. 473, 480, 946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008)..  FN5. “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.”  (Internal quotation marks omitted.)  Solek v. Commissioner of Correction, 107 Conn.App. 473, 480, 946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008).

FN6. In his petition, the petitioner appears to be claiming that Attorney Byron should have raised a freestanding claim of prosecutorial impropriety on appeal.   Since Attorney Byron was appealing the denial of the petitioner's first habeas petition, wherein the petitioner alleged that Attorneys Haselkemp and Steele rendered ineffective assistance by failing to address the prosecutor's impropriety during closing arguments, he could have only raised the issue of prosecutorial impropriety on appeal within this context.   Accordingly, the court will address the petitioner's claim within this context..  FN6. In his petition, the petitioner appears to be claiming that Attorney Byron should have raised a freestanding claim of prosecutorial impropriety on appeal.   Since Attorney Byron was appealing the denial of the petitioner's first habeas petition, wherein the petitioner alleged that Attorneys Haselkemp and Steele rendered ineffective assistance by failing to address the prosecutor's impropriety during closing arguments, he could have only raised the issue of prosecutorial impropriety on appeal within this context.   Accordingly, the court will address the petitioner's claim within this context.

FN7. At the habeas trial, the following colloquy occurred between Attorney Juniewic and Attorney Mastronardi:Q. Attorney Mastronardi, was there an adequate basis for Attorney Byron to raise the issue of prosecutorial misconduct in his appellate brief on appeal?A. It's a close call, but I would say yes, there was an adequate basis in my opinion.Habeas Trial Transcript, September 8, 2009, p. 28..  FN7. At the habeas trial, the following colloquy occurred between Attorney Juniewic and Attorney Mastronardi:Q. Attorney Mastronardi, was there an adequate basis for Attorney Byron to raise the issue of prosecutorial misconduct in his appellate brief on appeal?A. It's a close call, but I would say yes, there was an adequate basis in my opinion.Habeas Trial Transcript, September 8, 2009, p. 28.

FN8. Petitioner's Exh. 16, pp. 6, 34-39..  FN8. Petitioner's Exh. 16, pp. 6, 34-39.

FN9. Petitioner's Exh. 16, p. 30..  FN9. Petitioner's Exh. 16, p. 30.

FN10. Petitioner's Exh. 16, pp. 1-39..  FN10. Petitioner's Exh. 16, pp. 1-39.

FN11. Petitioner's Exh. 14, pp. 166-68;  Petitioner's Exh. 15, pp. 6-19..  FN11. Petitioner's Exh. 14, pp. 166-68;  Petitioner's Exh. 15, pp. 6-19.

FN12. Petitioner's Exh. 16, pp. 45, 48..  FN12. Petitioner's Exh. 16, pp. 45, 48.

FN13. Petitioner's Exh. 16, pp. 46, 56..  FN13. Petitioner's Exh. 16, pp. 46, 56.

Santos, Thelma A., J.