Ronnell Banks v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

The petitioner, Ronnell Banks, alleges in Count Two of his Amended Petition for a writ of habeas corpus, filed on July 22, 2010, that he was denied the effective assistance of counsel at the trial of his criminal case, docket number CR–06–235469, in violation of both the United States and Connecticut Constitutions.¹  He asks that the judgment of conviction be vacated and the matter be remanded to the trial court for a new trial.

The petitioner makes five allegations of ineffective assistance.   First, the petitioner claims that trial counsel did not properly cross-examine one of the state's witnesses as to bias or motive based on pending criminal charges.   Second, the petitioner claims that trial counsel failed to seek a continuance when the identity of this same witness was disclosed for the first time on the very day the witness was called to testify.   Third, the petitioner claims that trial counsel failed to bring to the jury's attention key discrepancies between the police report and the testimony of the state's key eyewitnesses.   Fourth, the petitioner claims that his trial counsel “failed otherwise” to adequately cross-examine these two witnesses.   Finally, the petitioner claims that trial counsel was ineffective for failing to hire an investigator.

The matter came to trial before the court on May 3, 2011.   The petitioner presented three witnesses:  Howard Wicker, his trial counsel;  officer David Eldridge, one of the two eyewitnesses whose testimony is the subject of the petition;  Anthony Clark, the second eyewitness and late disclosed witness;  and the petitioner.   The respondent presented no additional witnesses.   The court also received the parties' stipulation that:  1) the police report (Pet.Ex. 2) that relates to the petition was prepared by officer Michael Siegler;  2) officer Siegler signed an affidavit contemporaneously with the police report attesting to its accuracy (Pet.Ex. 3);  officer Siegler did not testify at the petitioner's criminal trial;  4) officer Siegler is presently ill;  5) if called to testify in these proceedings, he would testify that he has no recollection of the events surrounding the petitioner's arrest or his preparation of the report or affidavit.   In addition to the police report and affidavit, the court also received as exhibits:  the transcripts of the trial in the underlying criminal case (Pet.Ex. 1);  and the transcript from the petitioner's sentencing (Resp.Ex. A).

BACKGROUND

The petitioner was the defendant in a criminal case, docket number CR06–235469, in Meriden Superior Court, G.A. 7, in which he was charged with and convicted of sale of narcotics by a person who is not drug-dependent in violation of Conn. Gen.Stat. § 21a–278(b) and interfering with an officer in violation of Conn. Gen.Stat. § 53a–167a(a).   The trial court sentenced the petitioner to a total effective sentence of ten years, execution suspended after seven years of incarceration, followed by eighteen months of probation.   The petitioner was represented at the trial court level by attorney Howard Wicker.

As set forth by our Appellate Court, the jury could have reasonably found the following facts.  “On July 12, 2006, at approximately 8 p.m., David Eldridge, a police officer assigned to the statewide narcotics task force, was working undercover as a drug buyer in the parking lot of a Shell gasoline station in Meriden.   Eldridge was accompanied by a paid “confidential witness,” Anthony Clark, who was also posing as a drug buyer.   Eldridge and Clark were sitting in an unmarked Subaru that was outfitted with a device that transmitted an audio feed from within the Subaru to police officers in unmarked vehicles located across the street.

“Clark made eye contact with the defendant, who asked him what he wanted.   Clark responded that he was looking for a “$40 piece,” indicating a certain quantity of drugs.   The defendant told Clark to follow him to the intersection of Hobart and Myrtle Streets.   The defendant then drove away from the gasoline station, with Eldridge and Clark following him, and drove toward the stated location.   Eldridge and Clark parked the Subaru at the intersection of Hobart and Myrtle Streets, and the defendant drove past them and parked on Hobart Street.   The defendant then left his car, and Eldridge and Clark lost sight of him.   A few minutes later, the defendant emerged back into view and walked toward the intersection of Hobart and Myrtle Streets.   He walked past the parked Subaru, scanned the area and then approached the passenger side window, which was open.   The defendant asked Eldridge and Clark what they were looking for, to which Eldridge responded “two twenties,” which in street vernacular meant 4.4 grams of crack cocaine, or in other words, two $20 bags of crack cocaine.   The defendant pulled a plastic bag from his pocket and allowed Clark to select two packets.   Each of the packets contained a white rock like substance that, in Eldridge's training and experience, appeared to be crack cocaine.   As the defendant handed the selected bags to Clark, Eldridge handed the defendant two $20 bills.   The entire transaction lasted less than one minute.

“Eldridge notified officers who were monitoring the transaction in unmarked vehicles, including a “raid van” and a minivan, that a drug sale had occurred and gave them a description of the defendant.   As Eldridge and Clark left the scene in the Subaru, the other officers arrived.   The defendant stepped in front of the minivan to cross the street and apparently noticed that the occupants seated in the minivan were wearing clothing identifying them as police officers.   The defendant began to run down Hobart Street, and the officers ordered him to stop.   The defendant disregarded this command and continued running.   The officers chased the defendant for approximately one and one-half blocks.   The officers briefly lost sight of the defendant but discovered him hiding by a bay window of a residence on Myrtle Street.   The defendant engaged in a scuffle with the officers, but eventually the officers were able to handcuff him.”  State v. Banks, 117 Conn.App. 102, 104–05, 978 A.2d 519, cert. denied, 294 Conn. 905, 982 A.2d 1081 (2009).

Additional facts will be discussed as necessary.

LEGAL STANDARD

“The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness ․ To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal ․ In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction.”  (Citations omitted;  internal quotation marks omitted.)  Summerville v. Warden, 229 Conn. 397, 419, 641 A.2d 1356 (1994).   Here, the petitioner claims that the ineffective assistance of his trial counsel has led to such a result.  “A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ․ has two components.   First, the defendant must show that counsel's performance was deficient ․ Second, the defendant must show that the deficient performance prejudiced the defense ․ Unless a defendant makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversary process that renders the result unreliable.”   Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984).

“The first component, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness ․ In Strickland, the United States Supreme Court held that judicial scrutiny of counsel's performance must be highly deferential.   It is all too tempting for a petitioner 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 unsuccessful, 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.   Because of the difficulties 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 challenged action might be considered sound trial strategy ․ Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment ․” Henderson v. Commissioner of Correction, 80 Conn.App. 499, 504–05, 835 A.2d 1036 (2003), cert. denied, 267 Conn. 918, 841 A.2d 1190 (2004).

As to the prejudice prong, “an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment ․ The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding.   Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.”  Strickland v. Washington, supra, 691–92.   Consequently, the petitioner must affirmatively show that his counsel's performance had an adverse impact on the defense.  Id., 693.   Put another way, in order to meet the prejudice prong the petitioner must prove that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Id., 694.

DISCUSSION

Because the petitioner must meet both Strickland prongs, the failure to meet either is fatal to the petition.   Thus, the court may consider the prejudice prong without addressing the performance prong if it finds in the particular case that the failure to show prejudice is dispositive.   This is such a case.   As more fully set forth below, the court finds that the petitioner has failed to prove that there is a reasonable probability that the result of his trial would have been different had trial counsel performed as the petitioner claims he should have.

First, the petitioner claims that Attorney Wicker should have requested a continuance when he learned that Clark was going to be called as a witness.   The following additional facts are relevant to this claim.   On the morning of the first day of evidence, November 7, 2006, the petitioner and Wicker learned for the first time that Clark was going to be called as a witness.   In fact, that was the first that Wicker learned there was a confidential witness.   Based on the police report prepared by officer Siegler, which made no mention of Clark or a confidential witness, Wicker had thought that the only person associated with law enforcement involved in the alleged drug transaction was officer Eldridge.   Wicker did not ask for a continuance to consider how to respond to this new disclosure.   Nor did he request time to prepare to cross-examine Clark.   Instead, he chose to proceed with the trial, with the hope of getting Clark on the witness stand as soon as possible.²  The petitioner claims that it was not reasonable to go forward without a continuance under these circumstances.

The petitioner offered no evidence as to what would have been gained by a continuance.   There was no evidence presented of any additional information Wicker could have learned about Clark, had the defense had more time to prepare.   Nor has the petitioner offered any evidence as to how the cross-examination of Clark might have been different had Wicker sought and been granted a continuance.   Consequently, the petitioner has failed to prove any prejudice as a result of Wicker's decision not to ask for a continuance.³

Second, the petitioner claims that Wicker ineffectively cross-examined Clark regarding criminal charges Clark had pending against him at the time of trial.   The following additional facts are relevant to this claim.   Eldridge testified on direct examination during the petitioner's criminal trial that, on the night of the petitioner's arrest, he was working with Clark, who Eldridge described as a “confidential witness or “concerned citizen.”   On cross-examination, Wicker asked Eldridge if Clark had any charges pending against him.   The prosecutor objected.   After the jury was excused, argument took place regarding the admissibility of certain pending charges that Clark was facing.   The basis of the state's objection was that the defense was using those charges to impeach Clark's credibility.   While not explicitly discussed, it appears that the state and the trial court believed that Wicker intended to use the pending charges as a general attack on Clark's ability to tell the truth.   Wicker did not suggest otherwise or offer a different theory for admissibility of the pending charges.   The trial court sustained the objection to the question Wicker posed to officer Eldridge.   It further held that the pending charges could not be used to cross-examine Clark when he testified.

On his direct appeal, the petitioner argued that the trial court erred by not allowing the petitioner to use the pending charges to challenge Clark's motive, bias, or interest in testifying.   The argument on appeal was essentially that the pending charges gave Clark a motive (favorable treatment on those charges) to lie for the state.   The Appellate Court rejected the claim because the petitioner failed to satisfy the third prong of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989) in that “the alleged constitutional violation did not clearly exist.   The transcript does not clearly show that the court restricted the defendant's ability to cross-examine Clark regarding any pending criminal charges for the purpose of exploring any motive, interest or bias Clark may have had in testifying.”  (Emphasis in original.)  Banks, supra, 117 Conn.App. 110.

The petitioner claims that Wicker was ineffective for failing to properly cross-examine Clark as to motive, interest or bias, and further ineffective for failing to preserve the issue for appellate review.   The petitioner's claim fails because he has not proven that there is a reasonable probability that the outcome of the trial would have been different had Wicker undertaken this approach to cross-examining Clark.   Clark testified credibly before this court that the charges pending against him at the time of the petitioner's trial had no effect on his testimony.   There was no evidence that Clark had any discussions with anyone associated with the state about the resolution of those charges being linked to his testimony in the petitioner's case.   In fact, Clark testified that he ended up with felony convictions as a result of those charges, his first such convictions in more than ten years.   There simply was no evidence of leniency given to Clark in exchange for his testimony.   There was not even any evidence that Clark expected or hoped for leniency in exchange for his testimony.

To the contrary, Clark testified, both at the criminal trial and before this court, that his motivation for working with the police on undercover drug buys and then testifying about those buys was then and is today money.   His essentially full-time job is working as a “confidential witness” for the state.   Furthermore, Wicker established during his cross-examination of Clark that:  1) Clark was getting paid that day to testify;  and 2) Clark got paid “by the arrest.” ⁴  Thus, Wicker gave the jury a significant, undisputed reason to question Clark's credibility.   Unsubstantiated reference to unrelated pending charges as to which there was no evidence of promise or expectation would have added little, if anything, to the petitioner's defense.⁵  Wicker's failure to raise the pending charges as giving rise to a possible motive to lie simply does not undermine confidence in the outcome of the trial, particularly in light of the other evidence of motive, interest, and bias presented to the jury.

Third, the petitioner claims that Wicker was ineffective for failing to point out significant inconsistencies between the police report prepared by officer Siegler and the testimony of Eldridge and Clark.   The following additional facts are relevant to this claim.   Eldridge and Clark both testified at the petitioner's criminal trial and before this court that they both were involved in the drug buy from the petitioner, and that the petitioner approached Clark at the Shell station and drove the vehicle Eldridge and Clark followed from the Shell station to the location of the drug transaction.   The petitioner is African–American.

By contrast, the police report prepared by Siegler does not mention Clark or a “confidential witness” at all.   Instead, it says that the undercover officer, Eldridge, made contact with a Hispanic male at the Shell station and then completed the purchase from a black male at the corner of Hobart and Myrtle Streets.   The report implies that the Hispanic male and the black male are different individuals.   Thus, a fair reading of Siegler's report is that two sellers were involved in the sale, but only one buyer.   According to Clark and Eldridge, it was one seller and two buyers.

Wicker testified that he was aware of these inconsistencies, which he believed were major discrepancies.   He intended to bring them out through cross-examination of Siegler, who was on the state's witness list.   He did not ask Clark or Eldridge about them, because neither prepared the report and would not be in a position to explain why Siegler wrote what he did.   Wicker's plans were derailed when the state decided not to call Siegler.   Wicker did not have Siegler under subpoena and did not believe he had enough time to serve him without disrupting the trial.   Wicker believed he had done a good job cross-examining the state's witnesses, was pleased with the defense witnesses he offered, and was worried about the trial getting too long.   Thus, he did not request a continuance for the purpose of subpoenaing Siegler.   Nor did he offer the police report into evidence under any other theory.⁶  He was unable to say whether the decision to go forward without Siegler was a tactical decision.

It is certainly a fair argument that reasonably competent counsel would make sure that he had available a witness necessary to explain to the jury what counsel believed to be “major discrepancies” in the police's recitation of the facts.   Wicker's decision to simply rely upon the state's witness list and not put Siegler under subpoena is difficult to understand.   Nevertheless, this claim, like the others raised by the petitioner, fails because the petitioner has not presented sufficient evidence to meet the prejudice prong of Strickland.

There are two discrepancies between the police report and the testimony of Eldridge and Clark.   The first was the report's description of the person who made contact at the Shell station, and then drove to the location where the drug buy took place, as a Hispanic male, and the fact that the petitioner is African–American.   This discrepancy was actually brought out before the jury.   On direct examination, Eldridge testified that when he first saw the driver of the car he and Clark followed to the corner of Hobart and Myrtle Streets he thought the driver was Hispanic.   Immediately after providing this testimony, he testified that the driver he saw exit the same vehicle was the petitioner.   Wicker reinforced this apparent inconsistency during cross-examination of Eldridge.   Thus, the jury heard Eldridge describe the man he saw driving the vehicle as Hispanic, and had an opportunity to see the petitioner and decide whether to believe Eldridge's testimony in light of any inconsistencies.   As to the description of the driver of the vehicle followed by Eldridge and Clark, the police report had no information beyond that to which Eldridge testified.   Thus, the failure to have it admitted did not prejudice the petitioner.

The second discrepancy relates to who was involved in the drug buy.   The report clearly suggests that Eldridge, by himself, had direct contact with a Hispanic male at the Shell station and followed the Hispanic male to the corners of Hobart and Myrtle Streets where Eldridge, still alone, purchased drugs from a second male who was black.   There is no question that this report is at odds with the testimony of Clark and Eldridge.   There is also no question that the jury was never made aware of this discrepancy.   Nevertheless, the evidence submitted in this matter is insufficient for the court to conclude that the failure to bring this discrepancy to the attention of the jury prejudiced the petitioner.

The parties stipulated that Siegler, if called to testify, would testify that he had no recollection of the events surrounding the petitioner's arrest.   Consequently, the court is without his testimony as to the variance between the report he drafted and the testimony of Eldridge and Clark.   The court does not even know if Siegler witnessed the interaction at the Shell station or the drug buy at Hobart and Myrtle Streets.   Eldridge testified credibly that he told Siegler the same version of events to which he testified at the petitioner's trial.   He also testified credibly that he did not participate in the drafting of the report.   There was also no evidence that he saw the report at or around the time it was prepared.   Clark had no communications with Siegler about the report, had no role in its drafting, and there was no evidence as to when Clark first saw it.   No evidence was presented as to any other sources of information Siegler relied upon in preparing the report.   Thus, the court is left to speculate as to whether Siegler misunderstood the information reported to him by Eldridge, saw something different himself, was told a different story by Eldridge, and/or had additional information from other sources.

The petitioner would argue that the discrepancy itself is enough from which a reasonable fact-finder could infer that Eldridge and Clark are not credible witnesses, thus raising a reasonable doubt.   Given the lack of evidence described above, the court disagrees.   Without some evidence as to:  1) how Siegler prepared the report;  and 2) the information on which it was based, a reasonable fact-finder can draw no inferences about Eldridge's and Clark's testimony.   This is particularly true given Eldridge's and Clark's lack of involvement in the drafting of the report.   The petitioner has the burden of demonstrating prejudice, and the evidence he has presented simply does not meet that burden.

The petitioner's last two claims are that Wicker failed to otherwise properly cross-examine Eldridge and Clark, and failed to hire an investigator.   The petitioner offered no evidence on either claim.   Even though both Clark and Eldridge were called to testify in this proceeding by the petitioner, the petitioner brought out no information that was not adduced through cross-examination of the same witnesses at the petitioner's criminal trial.   Similarly, the petitioner offered no evidence as to what additional information he or Wicker could have learned had Wicker hired an investigator.   Consequently, the petitioner has failed to meet either prong of Strickland on these claims.

CONCLUSION

For all the foregoing reasons, the petition is DENIED.

BRIGHT, Judge

FOOTNOTES

FN1. In Count One of the Amended Petition, the petitioner asserted a claim of actual innocence.   The respondent moved to dismiss the claim because the petitioner failed to allege that his claim was based on any newly discovered evidence that was not available to him at the time of his trial.   The petitioner did not file a memorandum in opposition to the motion.   The petitioner's counsel conceded during oral argument on the motion that the petitioner had not alleged that his claim was based on newly discovered evidence.   He further conceded that he was unaware of any such evidence.   As a result, the motion to dismiss Count One was granted.   In addition, the petitioner asserted in Count Three of his petition that his due process rights were violated because his trial counsel directly forbade him to testify.   At the close of evidence, the petitioner conceded this claim and agreed that the claim should be dismissed with prejudice, which the court did..  FN1. In Count One of the Amended Petition, the petitioner asserted a claim of actual innocence.   The respondent moved to dismiss the claim because the petitioner failed to allege that his claim was based on any newly discovered evidence that was not available to him at the time of his trial.   The petitioner did not file a memorandum in opposition to the motion.   The petitioner's counsel conceded during oral argument on the motion that the petitioner had not alleged that his claim was based on newly discovered evidence.   He further conceded that he was unaware of any such evidence.   As a result, the motion to dismiss Count One was granted.   In addition, the petitioner asserted in Count Three of his petition that his due process rights were violated because his trial counsel directly forbade him to testify.   At the close of evidence, the petitioner conceded this claim and agreed that the claim should be dismissed with prejudice, which the court did.

FN2. Wicker testified credibly that his decision to press forward was a tactical one.   He believed that the officers involved in the drug sale and the arrest of the petitioner would be more polished witnesses than a confidential witness.   Consequently, he thought that he could make inroads in the state's case by cross-examining Clark early on.   He also did not believe that a continuance would result in any additional helpful information regarding Clark.   Finally, Wicker testified that he had a number of defense witnesses lined up, felt good about his own case, and did not want to delay its presentation.   And while he testified that he was in an “aggressive mood,” there was no evidence submitted that his mood clouded his judgment..  FN2. Wicker testified credibly that his decision to press forward was a tactical one.   He believed that the officers involved in the drug sale and the arrest of the petitioner would be more polished witnesses than a confidential witness.   Consequently, he thought that he could make inroads in the state's case by cross-examining Clark early on.   He also did not believe that a continuance would result in any additional helpful information regarding Clark.   Finally, Wicker testified that he had a number of defense witnesses lined up, felt good about his own case, and did not want to delay its presentation.   And while he testified that he was in an “aggressive mood,” there was no evidence submitted that his mood clouded his judgment.

FN3. The petitioner's reliance on U.S. v. Washington, 263 F.Sup.2d 413 (D.Conn.2003) is misplaced.   The petitioner argues that because the court in Washington granted a motion for new trial where the government failed to disclose a key witness's prior conviction until during the defendant's trial, this court should reach a similar conclusion as to the state's late disclosure of Clark.   Actually, the decision in Washington further demonstrates the importance of proving prejudice, and highlights the petitioner's failure to do so here.   In Washington, the court made specific findings, based on evidence presented by the defendant, regarding how the late disclosure of the witness's conviction prejudiced the defendant's presentation of his case.  Id., 422–24.   By contrast, here, the petitioner has offered no evidence regarding how he was prejudiced by the late disclosure of Clark.   Unlike the defendant in Washington, he has offered no evidence regarding how his trial would have been different if Wicker had known of Clark earlier and had more time to prepare..  FN3. The petitioner's reliance on U.S. v. Washington, 263 F.Sup.2d 413 (D.Conn.2003) is misplaced.   The petitioner argues that because the court in Washington granted a motion for new trial where the government failed to disclose a key witness's prior conviction until during the defendant's trial, this court should reach a similar conclusion as to the state's late disclosure of Clark.   Actually, the decision in Washington further demonstrates the importance of proving prejudice, and highlights the petitioner's failure to do so here.   In Washington, the court made specific findings, based on evidence presented by the defendant, regarding how the late disclosure of the witness's conviction prejudiced the defendant's presentation of his case.  Id., 422–24.   By contrast, here, the petitioner has offered no evidence regarding how he was prejudiced by the late disclosure of Clark.   Unlike the defendant in Washington, he has offered no evidence regarding how his trial would have been different if Wicker had known of Clark earlier and had more time to prepare.

FN4. Clark also testified that he had worked with the police on numerous other undercover buys between when the petitioner was arrested and when he went to trial.   This fact further undermines any notion that the petitioner's case, as opposed to one of the other cases on which Clark worked, would be the basis for a request or offer of leniency, if in fact either was ever made..  FN4. Clark also testified that he had worked with the police on numerous other undercover buys between when the petitioner was arrested and when he went to trial.   This fact further undermines any notion that the petitioner's case, as opposed to one of the other cases on which Clark worked, would be the basis for a request or offer of leniency, if in fact either was ever made.

FN5. The court rejects the petitioner's alternate claim that Wicker did not preserve the evidentiary issue for appeal because the court would have to assume that the trial judge would have precluded the petitioner from introducing evidence that he claims was clearly admissible as to motive, interest or bias.   There is no basis for the court to make such an assumption, and the court will not do so..  FN5. The court rejects the petitioner's alternate claim that Wicker did not preserve the evidentiary issue for appeal because the court would have to assume that the trial judge would have precluded the petitioner from introducing evidence that he claims was clearly admissible as to motive, interest or bias.   There is no basis for the court to make such an assumption, and the court will not do so.

FN6. The petitioner has offered no basis for the admissibility of the police report other than through Siegler.   And while the petitioner claims that Wicker should have used the police report to cross-examine Eldridge and Clark, because neither wrote the report, and there was no evidence that either of them reviewed it at or around the time it was prepared, it is unclear how Wicker was supposed to use the report with those witnesses.   The petitioner has not offered the court a theory of what Wicker should have done with the report and those witnesses..  FN6. The petitioner has offered no basis for the admissibility of the police report other than through Siegler.   And while the petitioner claims that Wicker should have used the police report to cross-examine Eldridge and Clark, because neither wrote the report, and there was no evidence that either of them reviewed it at or around the time it was prepared, it is unclear how Wicker was supposed to use the report with those witnesses.   The petitioner has not offered the court a theory of what Wicker should have done with the report and those witnesses.

Bright, William H., J.