Marco Camacho v. Warden, State Prison (2012)

MEMORANDUM OF DECISION

The petitioner was the defendant in a case in the judicial district of New Britain under docket number CR96–0096553.   After a jury trial, at which he was represented by Attorney Richard Cramer, the petitioner was found guilty of four counts of murder in violation of General Statutes § 53a–54a, four counts of felony murder in violation of General Statutes § 53a–54c, one count of tampering with evidence in violation of General Statutes § 53a–155, one count of larceny in the first degree in violation of General Statutes § 53a–122(a)(3), one count of robbery in the first degree in violation of General Statutes § 53a–134(a)(1), one count of possession of narcotics with intent to sell in violation of General Statutes § 21a–277(a), one count of possession of a stolen firearm in violation of General Statutes § 53a–212 and one count of conspiracy to commit the crimes of murder, possession of narcotics with intent to sell, robbery in the first degree, larceny in the first degree and tampering with evidence in violation of General Statutes §§ 53a–48 and 53a–54a, 21a–277(a), 53a–134(a)(1), 53a–122(a)(3) and 53a–155, respectively.

The following facts, taken from the Supreme Court decision, could reasonably have been found by the jury:  “At approximately 8:30 p.m., on September 25, 1996, a Southington police department emergency dispatcher received a 911 call from 932 Shuttle Meadow Road, the residence of Nick Votino.   Responding to the call, the police discovered four persons dead from gun-shot wounds in the master bedroom:  Nick Votino, his daughter, Joanne Votino, Lynn Suszynski and Wayne Barrows.

“Police found evidence of recent cocaine use at the crime scene, and Votino, Suszynski and Barrows all tested positive for cocaine in toxicology tests performed in conjunction with their autopsies.   Police also found crack cocaine, drug paraphernalia and a large quantity of a cutting agent used in the process of making crack cocaine.

“Weeks before the murders, in the beginning of September 1996, the [petitioner] and Eric Henry, with whom the [petitioner] sold drugs, were living in the Southington home of Henry's girlfriend, Raquel Martin.   The three were close:  Martin and Henry, who were in their late twenties, called the [petitioner] ‘Son,’ and the [petitioner], who was seventeen, referred to them as ‘Ma’ and ‘Pop.’ The [petitioner] and Henry had been using Martin's residence as the base of operations to sell crack cocaine.   Previously, the [petitioner] had been supplying Henry with drugs to sell, and had moved into Martin's house in order to facilitate his drug dealing business.   The [petitioner] and Henry became partners, with the [petitioner] supplying the drugs and Henry supplying protection as well as expanding the [petitioner's] market with his own group of acquaintances.   Additionally, Votino had been selling drugs for the [petitioner].   As a result of his own drug habit, Votino had become indebted to the [petitioner] in the amount of $400.   The [petitioner] had taken a necklace belonging to Votino as collateral on the debt.

“Around the same time, Frank Brown, another drug dealer who had been supplying the [petitioner] and Votino with drugs before Brown fled the state to escape criminal charges, was robbed of $5,000.   In order to recoup his loss, Brown concocted a plan regarding a 1996 Jeep Grand Cherokee, which Brown had paid for but was registered to Votino, and in Votino's possession, so that it would not be traceable to Brown.   According to Brown's plan, Votino would report the Jeep stolen and the [petitioner] would bring it to a cousin in New York who could get the Jeep ‘chopped’ and sold.   The defendant told Brown he thought he could get $10,000 to $15,000 for the Jeep, and Brown responded that the [petitioner] could keep anything over $5,000 to use for his drug business.   Votino, however, did not want to cooperate with the plan.

“Early in the afternoon of September 25, 1996, the day of the murders, Martin, Henry and Kathy Fusco, a neighbor with whom Henry and Martin smoked crack cocaine, went to Votino's house to try to get drugs from him.   Votino gave them a small amount of drugs but explained that he could not give them any significant quantity for free because he had to sell the drugs that he had in order to pay off his debt to the [petitioner].   Votino appeared frustrated and disappointed in being in debt to the [petitioner], who was significantly younger.   Martin, Henry and Fusco left Votino's house around 3:30 p.m. and returned to Martin's house.

“At approximately 4:30 p.m., Martin drove the [petitioner] and Henry to Votino's house because the [petitioner] wanted to discuss the debt that Votino owed him.   Martin, who waited in the living room while the [petitioner], Henry and Votino spoke in the kitchen, overheard Votino say that he had $200 worth of crack cocaine left to sell, but would need more to sell in order to pay off his debt to the [petitioner].   The [petitioner] asked Votino to let him borrow the Jeep so that the [petitioner] could get more drugs from a supplier, but Votino did not want the [petitioner] to take the Jeep that night and expressed concern about getting his necklace back from the [petitioner].   The [petitioner] and Votino went into Votino's bedroom, and when they came out, the [petitioner] had the Jeep keys in hand.   The [petitioner] told Votino that he would come back later that night with more drugs for Votino to sell, and warned that Votino had better be home and have sold some of the drugs he already had before the [petitioner] returned.

‘Thereafter, Martin drove the [petitioner] and Henry to the [petitioner's] mother's house in New Britain where the [petitioner] picked up some clothing in a black backpack.   When they returned to Martin's house, the [petitioner] paged his drug supplier, Pedro Ramirez, and he and Henry went to meet him.   The [petitioner] purchased crack cocaine from Ramirez and told Ramirez he was about to ‘stick somebody up,’ which Ramirez took to mean that the [petitioner] intended to rob someone.

“After the [petitioner] and Henry had returned to Martin's house, the [petitioner] entered Martin's bedroom with a gun in a small black pouch, gloves and bullets.   The [petitioner] then put the bullets in the gun, wiped down the gun and put it back into the pouch.   Henry took the gun from the [petitioner] and put it in the waistband of his pants.   The [petitioner] and Henry then left in Martin's car for Votino's house.

“Approximately one-half hour after they had left Martin's house, Henry telephoned Martin from Votino's bedroom and told her that he and the [petitioner] would be returning to her house shortly.   Martin heard sounds of a party-like atmosphere and Votino's voice in the background.   At the same time, unbeknownst to the [petitioner] and Henry, Joanne Votino was in her bedroom speaking on the telephone to her boyfriend, Demond Johnson.   Johnson heard four or five loud noises that he thought sounded like gunshots, followed by Joanne Votino yelling, ‘[w]hat's going on,’ and banging on the door to the master bedroom.   Johnson then heard Joanne Votino scream, ‘[o]h my God,’ followed by a loud thump as she fell to the ground, as a result of being shot.   Joanne Votino screamed Johnson's name and told him to call 911, which he did.

“Approximately five minutes after Henry had telephoned Martin, the [petitioner] telephoned her from what sounded like a car, asking that she bring his black back-pack to the Shell service station near her house.   Martin walked to the service station, and the [petitioner] drove up shortly thereafter in Votino's Jeep. Martin got into the Jeep and asked the [petitioner] where Henry and her car were.   The [petitioner] told her not to ask him or Henry any questions and drove to a house nearby where he met Ernesto Soto, an acquaintance.   The [petitioner] handed Martin his gloves and told her to hold or dispose of them, but Martin refused and handed them back to him.   The [petitioner] then tapped Martin on the right side of her back above her waist and said, ‘I just shot a girl right here, do you think I killed her?’   Martin did not think that the [petitioner] was serious.

“The [petitioner] asked Soto to keep the Jeep at his house and Soto used his own car to drive the [petitioner] and Martin back to Martin's house.   On the way back, the [petitioner] and Soto discussed plans to ‘chop’ Votino's Jeep in New York. When they arrived at Martin's house, Henry was sitting on the stairs outside her house looking ‘very nervous' and ‘[p]anick[ed].’   The [petitioner], who appeared less nervous, passed the gun to Henry, who said that he would ‘take care of the burner.’   The [petitioner] asked Soto to wait to drive the [petitioner] back to the Jeep parked at Soto's house.

“While Soto waited, the [petitioner] entered Martin's bedroom holding empty bullet casings, which he put in a plastic baggie.   The [petitioner] then told Henry that he needed to dispose of the gloves and lifted his shirt up, asking Henry to check him for evidence of the murders.   The [petitioner] then looked down, cursed and ran into the bathroom where he grabbed Martin's toothbrush and used it to scrub his pants and boots, on which Martin had noticed a dark red molasses-like substance.   The [petitioner] continued to implore Henry to check him, and Henry obliged, walking around the [petitioner] and lifting his shirt.

“Martin and Henry decided to go to a hotel to sell crack cocaine, and the [petitioner] gave them drugs to sell.   Henry embraced the [petitioner] and said, ‘I love you bro, I love you bro,’ and the two discussed a code they would use to communicate through paging each other.   Martin and Henry then left in Martin's car, and the [petitioner] left with Soto.

“After arriving at Soto's house, the [petitioner] asked if he could come in to wash something off of his pants, and told Soto that he had gotten blood on them.   Soto told the [petitioner] he had to leave, and the [petitioner] asked Soto to call his contact in New York about the Jeep. As the [petitioner] left, Soto saw him take from his jacket pocket a pair of green and brown gloves.   Before leaving, the [petitioner] threw the gloves in the storm sewer.   The [petitioner] subsequently took the Jeep and fled to his sister's house in the Bronx, New York, where he remained until September 27, 1996, and where the Jeep later was found by the New York state police.

“In the meantime, after parting ways with the [petitioner], Henry and Martin went to New Britain to the house of an acquaintance named Chris, who had purchased drugs from Henry in the past.   As they arrived, Martin realized that Henry had the gun in the waistband of his pants.   When she asked Henry what he was doing with it, he told her that he was going to get rid of it.   They then checked into a motel room, where Henry told Martin that he had hidden the gun in the backyard of Chris' house behind a large metal plow covered in shrubs.

“Martin then went outside to use a pay telephone to call her cousin, who asked if she had heard what had happened at Votino's house.   When Martin told her cousin that she had not heard anything, he told her that Votino's house had gotten ‘shot up.’   Martin then telephoned Henry's brother, who told her that people had been found dead at Votino's house.   Martin became frightened, thinking about the previous events that had transpired that day, and went back into the motel room to look for the news on the television and to ask Henry what was going on.   Henry appeared angry, and told her not to worry about anything.   Shortly thereafter, Henry began washing his boots in the sink.   Henry then made statements to Martin regarding the events at Votino's house ․

“The next day, September 26, 1996, Martin and Henry spent the day at the motel, where Martin began drinking alcohol.   When Martin began changing the television channels and crying, Henry told her to stop because she was ‘[giving] him a conscience.’   Henry also told her to stop drinking because he did not want her to ‘get brave and say something to someone ․’ At approximately 11 p.m., after Martin and Henry had fallen asleep, the police raided the motel room and questioned them about the murders.

“That night, unbeknownst to Henry, Martin led police to the gun, a Charter Arms .357 five shot revolver hidden in a pouch in the backyard of Henry's acquaintance Chris' house in New Britain, where she and Henry had gone to sell drugs after the murders.   The .38 special bullets recovered from the victims and the crime scene either were matched to or were consistent with the revolver.

“Although he had fled the state, the [petitioner] stayed in contact with a number of people in Connecticut, trying to determine how much the police knew and how to cover his tracks.   He telephoned Soto several times to question him about the progress of the police investigation and told him not to say anything more to the police.   The [petitioner] telephoned his girlfriend, Jackie Rivera, on September 26, 1996, and told her that he had ‘got[ten] into a little trouble,’ stating that he had not committed the crimes, but that a ‘black guy’ did.   The [petitioner] telephoned Ramirez, his drug supplier, to ask if the police had found the murder weapon and if so, whether they had found any fingerprints on the weapon.   He told Ramirez that he had had to get rid of the Jeep and wanted to know what people were saying about the crime.

“On September 27, 1996, the [petitioner] made numerous telephone calls to Henry at Martin's residence, where Martin and Henry had returned after they had been interrogated by the police.   The [petitioner] telephoned several times, and inquired whether Henry, Martin or Martin's cousin had been talking to the police.   When the [petitioner] telephoned again later that day, he and Henry discussed disposing of the gun in the reservoir in Southington.   The [petitioner] told Henry to ‘stay ghost,’ meaning stay away, and told him to ‘get rid of [the gun] in [the] water.’   Unaware that Martin already had led police to the gun, Henry told the [petitioner] that he would get the gun and throw it in the reservoir.   Henry demanded his portion of the proceeds from ‘chopping’ the Jeep, which he insisted were owed to him as an accomplice, and the [petitioner] agreed to wire money to Henry.

“Shortly after these conversations, Henry told Martin that he was not sure that he could trust her and that he was ‘looking at someone [who could] put him in the electric chair.’   Martin became frightened and later was taken by police into protective custody.   On Tuesday, October 1, 1996, the [petitioner] surrendered to police at his aunt's house in Beaufort, South Carolina, where he had fled to from New York. His fingerprints were found on the driver's side window of the Jeep and on the door to the gas tank.   Traces of lead and barium, as well as other trace materials consistent with gunshot residue were on the center console of the Jeep.” State v. Camacho, 282 Conn. 328, 333–41, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S.Ct. 388, 169 L.Ed.2d 273, cert. denied, 552 U.S. 956, 128 S.Ct. 388, 169 L.Ed.2d 273 (2007).

Following his conviction, the trial court sentenced the petitioner to a total effective sentence of 260 years imprisonment.   The petitioner unsuccessfully appealed his conviction.   See State v. Camacho, supra, 282 Conn. 328.   Attorney Lisa Steele represented him on appeal.

The petitioner commenced the present action by filing a petition for a writ of habeas corpus on July 10, 2007.   Following the appointment of counsel, the petition was amended on July 28, 2011, August 12 and 16, 2011.   In the operative petition, the third amended petition, the petitioner alleges that his constitutional right to a public trial was violated (count one), his constitutional right to be present during the trial was violated (count two), his constitutional right to an impartial jury was violated (count three), his constitutional right to confrontation was violated (count four), his constitutional right to due process and a fair trial was violated (count five), his constitutional right to the effective assistance of trial counsel was violated (count six) and his constitutional right to the effective assistance of appellate counsel was violated (count seven).   The respondent filed a return on August 17, 2011, generally denying the allegations in the petition and raising the special defenses of procedural default and res judicata as to claims one through five.   The matter was tried to the court on September 12, 14, and 23, 2011 and January 5, 2012.

On September 9, 2011, the respondent filed a motion to dismiss claims one through three on grounds of procedural default and claims four and five on grounds of res judicata or, alternatively, procedural default.   This court dismissed counts one through three on grounds of procedural default and count four on grounds of res judicata.   It did not dismiss count five, finding neither res judicata nor procedural default to apply given the allegations in the petition.   See Camacho v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 07 4001839 (October 24, 2011, Newson, J.).

COUNT FIVE—RIGHT TO DUE PROCESS AND A FAIR TRIAL

In count five of his amended petition, the petitioner claims that his right to due process and a fair trial was violated by the admission of the 911 tape, on which one of the victims, Joanne Votino, can be heard dying, and by references to the petitioner's nickname, “Killer,” during the criminal trial.   As mentioned above, the respondent moved to dismiss this count on grounds of procedural default prior to trial.   In his petition, however, the petitioner alleged that he had previously raised this claim on appeal.   Accordingly, since a motion to dismiss must accept the pleadings as they are, this Court denied the respondent's motion to dismiss on the asserted grounds of procedural default grounds.   A review of the record, however, reveals that the petitioner did not raise this specific claim on appeal.   On appeal, he raised the claim that the prosecutor committed prosecutorial misconduct by referring to the 911 tape in closing argument, but did not raise any claim that the trial court erred in admitting it into evidence in the first place.   The petitioner also mentioned the references to his nickname “Killer” in his appeal, but the Supreme Court did not review this issue, because it was not adequately briefed.   See State v. Camacho, supra, 282 Conn. 366 n.32 (“[i]n his factual summary of the case, the [petitioner] asserts that there were various instances during the trial when the trial court rebuked the prosecutor for:  (1) evoking a nickname of the [petitioner], “Killer,” which had been excluded by a prior order ․ Because the [petitioner] has not included any of these matters in his prosecutorial impropriety briefing, we limit our inquiry to those instances in the prosecutor's closing argument that are the subjects of the [petitioner's] analysis”).   In other words, the petitioner failed to raise these claims on appeal, and they are subject to procedural default.

“Once the respondent has raised the defense of procedural default in the return, the burden is on the petitioner to prove cause and prejudice.”   Zabian v. Commissioner of Correction, 115 Conn.App. 144, 152, 971 A.2d 822 (2009).  “[T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance.”  (Internal quotation marks omitted.)  Chaparro v. Commissioner of Correction, 120 Conn.App. 41, 48, 990 A.2d 1261, cert. denied, 297 Conn. 903, 994 A.2d 1287 (2010).   “[A]ttorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of ․ procedure.”  (Internal quotation marks omitted.)  Crawford v. Commissioner of Correction, 294 Conn. 165, 194, 982 A.2d 620 (2009).   In his reply to the respondent's return, the petitioner alleged ineffective assistance of trial and appellate counsel as cause and prejudice for the procedural default.   As will be discussed in more detail below, this court finds that neither trial nor appellate counsel rendered ineffective assistance by failing to raise these claims at trial and on appeal.   Accordingly, they are procedurally defaulted and will not be directly reviewed by this Court.  Id.

COUNT SIX—INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

In count six of his amended petition, the petitioner makes thirty-two claims of ineffective assistance against his criminal trial counsel, Attorney Cramer.¹

“A criminal defendant's right to the effective assistance of counsel ․ is guaranteed by the sixth and fourteenth amendments to the United States Constitution and by article first, § 8, of the Connecticut Constitution ․ 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 first group of claims,² the petitioner makes allegations regarding Attorney Cramer's representation of him during the trial court's investigation into possible juror misconduct.   The following additional facts are necessary to the resolution of these claims.   Midway through the trial, a person simply identifying herself as a “family member” of Shirley Dickau, one of the jurors on the petitioner's case, called the courthouse several times and stated that Dickau had been talking to family members about the case.   In response to the calls, the trial court questioned Dickau in-chambers in the presence of Attorney Cramer, the prosecutor and a court reporter.   The court reporter recorded the in-chambers discussion.   Following the in-chambers discussion, the trial court questioned Dickau on the record in open court.   Dickau denied having talked to her family members about the case and indicated that “[she has] difficulty with a sister, who can be mean at times.” ³

After a short recess, the trial court held that Dickau did not have to be excused, having found her explanation credible and the information from the anonymous caller not credible.   Attorney Cramer objected to the court's refusal to excuse Dickau and stated that Lisa Groody, a clerk at the courthouse, could testify (1) that the caller called three times, stating that Dickau had been discussing the case and had invited her family members to attend the trial, and (2) that members of Dickau's family had in fact been in the courtroom.   He argued that the fact that Dickau's family members had been in the courtroom indicated that Dickau had been talking to them about the case.   The trial court held that a juror can tell his or her family that he or she is a juror on a particular case and that Dickau provided a credible explanation for the presence of her family members in the courtroom.⁴  Accordingly, it reaffirmed its decision not to dismiss her as a juror.

The petitioner claims that Attorney Cramer should have (1) objected to the trial court holding a non-public, in-chambers hearing to investigate the possible juror misconduct, (2) objected to the petitioner not being present during the non-public, in-chambers hearing, and (3) more adequately objected to the trial court's allegedly inadequate hearing regarding the possible juror misconduct.

“Jury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States Constitution ․ In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.”  (Citations omitted;  internal quotation marks omitted.)  State v. Brown, 235 Conn. 502, 522–23, 668 A.2d 1288 (1995).  “[A] trial court must conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case, regardless of whether an inquiry is requested by counsel.   Although the form and scope of such an inquiry lie within a trial court's discretion, the court must conduct some type of inquiry in response to allegations of jury misconduct.   That form and scope may vary from a preliminary inquiry of counsel, at one end of the spectrum, to a full evidentiary hearing at the other end of the spectrum, and, of course, all points in between.   Whether a preliminary inquiry of counsel, or some other limited form of proceeding, will lead to further, more extensive, proceedings will depend on what is disclosed during the initial limited proceedings and on the exercise of the trial court's sound discretion with respect thereto.”  Id., 526.  “The more obviously serious and credible the allegations, the more extensive an inquiry is required;  frivolous or incredible allegations may be disposed of summarily.   A proper assessment of the seriousness of allegations will require the trial court to take into account the prejudicial nature of the alleged misconduct as well as the nature and degree of the jury's alleged involvement in the misconduct ․ A proper assessment of the credibility of the allegations will require the trial court to weigh the source of the allegations.   Allegations made by identifiable and reliable sources, such as court personnel and jurors, are presumably entitled to more credit than are similar allegations made by an anonymous source.   At the same time, however, corroboration and other indicia of reliability may enhance the credibility of even anonymous allegations.”   Id., 531.

In the petitioner's case, the trial court appropriately responded to the allegation made by an anonymous source that a juror, Dickau, had been talking to her family members about the case.   That is, it did not abuse its discretion by only interviewing Dickau.   As noted supra, the trial court found Dickau's explanation for the allegation and the presence of her family members in the courtroom to be credible.   Accordingly, it did not find it necessary to investigate the matter any further.⁵  In light of the above, Attorney Cramer cannot be faulted for failing to adequately object to the scope of the trial court's inquiry.   Specifically, the petitioner claims that Attorney Cramer should have argued that the allegation necessitated the holding of a full blown evidentiary hearing, at which Dickau's family members should have been called to testify.   Given Dickau's explanations and the anonymous nature of the allegation, a full blown evidentiary hearing was not necessary.  “Family members have a natural interest and concern in the day-to-day whereabouts and activities of other family members, and that concern does not dissipate when someone is called to jury duty ․ [I]ndicating the name of a case falls far short of creating concern about the juror's ability to be fair and reach a verdict on the evidence.”  State v. Zapata, 119 Conn.App. 660, 698–99, 989 A.2d 626, cert. denied, 296 Conn. 906, 992 A.2d 1136 (2010).   Accordingly, Attorney Cramer did not render ineffective assistance by failing to more adequately object to the scope of the trial court's inquiry into possible juror misconduct.

Similarly, the petitioner has not met his burden in demonstrating Attorney Cramer rendered ineffective assistance by failing to object to the trial court holding a non-public, in-chambers hearing concerning possible juror misconduct.  “[A] defendant's right to a public trial is guaranteed in all criminal proceedings by the sixth amendment to the United States Constitution ․ This right is made applicable to the states through the fourteenth amendment ․ and also is encompassed in article first, § 8, of the Connecticut Constitution ․ Public trials vindicate an important public interest in the judicial system and help ensure testimonial trustworthiness ․ Openness of a criminal trial enhances both its basic fairness and the appearance of fairness, which is essential to public confidence in the system ․ The right to a public trial, however, is not absolute ․ An accommodation must sometimes be made between the individual's right to a public trial and other societal interests that might justify closing the courtroom to the public.”  (Internal quotation marks omitted.)  State v. Holbrook, 97 Conn.App. 490, 493–94, 906 A.2d 4, cert. denied, 280 Conn. 935, 909 A.2d 962 (2006).  “[T]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.   The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered ․ Further, the closure must be no broader than necessary, and the trial court must first consider reasonable alternatives to closure ․ When a court fails to make findings adequate to support the closure, a closure order is improper.”   (Citations omitted;  internal quotation marks omitted.)  Ostolaza v. Warden, 26 Conn.App. 758, 770, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992).

Additionally, “a criminal defendant has a constitutional right to be present at all critical stages of his or her prosecution ․ Indeed, [a] defendant's right to be present ․ is scarcely less important to the accused than the right of trial itself ․ Although the constitutional right to be present is rooted to a large extent in the confrontation clause of the sixth amendment, courts have recognized that this right is protected by the due process clause in situations when the defendant is not actually confronting witnesses or evidence against him ․ In judging whether a particular segment of a criminal proceeding constitutes a ‘critical stage’ of a defendant's prosecution, courts have evaluated the extent to which a fair and just hearing would be thwarted by [the defendant's] absence or whether his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.”  (Citations omitted;  internal quotation marks omitted.)  State v. Lopez, 271 Conn. 724, 732, 859 A.2d 898 (2004).   The Appellate Court has held that excluding a defendant from an in-chambers hearing on possible juror partiality violates the defendant's right to be present but is subject to the harmless error doctrine.   See State v. Zapata, supra, 119 Conn.App. 660, 683–91.

The trial court interviewed Dickau in-chambers in the presence of both counsel and a court reporter to avoid embarrassing Dickau and to facilitate her openness.⁶  By doing so, it effectively excluded the public.   Attorney Cramer did not object to the proceeding or request that the petitioner be present during the in-chambers hearing.   The petitioner has not proven that his failure to do so constitutes ineffective assistance of counsel.   This court knows of no case, and the petitioner has not pointed to any case, precedential or otherwise, that extends the sixth amendment public trial right to the in-chambers questioning of a juror.   To the contrary, “[t]he mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right.”  (Emphasis in original.)  United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985).   Even if the sixth amendment did extend to such a situation, the failure of Attorney Cramer to recognize the claim does not constitute deficient performance.  “[T]he constitution does not guarantee that an attorney will recognize and raise every conceivable constitutional claim ․ Defendants are entitled to reasonably professional assistance, not perfect representation.”   (Citations omitted.)  Ostolaza v. Warden, supra, 26 Conn.App. 775.   The same rationale applies to Attorney Cramer's failure to recognize that the petitioner had a constitutional right to be present during the in-chambers hearing regarding possible juror misconduct.

Furthermore, the petitioner has not proven any resulting prejudice from Attorney Cramer's failure to recognize and raise these constitutional claims.   State v. Zapata, supra, 119 Conn.App. 683–91.   Attorney Cramer was present during the in-chambers hearing to safeguard the petitioner's rights;  a court reporter recorded the in-chambers hearing and prepared a transcript of it;  Attorney Cramer advised the petitioner regarding the in-chambers hearing; ⁷  following the in-chambers discussion, the trial court questioned Dickau in open court.   Additionally, the petitioner has not proven, let alone even suggested, what he would have gained by attending the in-chambers hearing.   Accordingly, these claims fail.  Small v. Commissioner of Correction, supra, 286 Conn. 712–13.

The petitioner next claims that Attorney Cramer did not adequately object (1) to the admission of evidence that was irrelevant, likely to appeal to the emotions of the jury, and whose prejudicial effect outweighed its probative value and (2) to instances of prosecutorial misconduct throughout the trial.   During the course of the habeas trial, the petitioner refined these allegations by specifying that Attorney Cramer did not adequately object to the admission of the 911 tape, on which one of the victims, Joanne Votino, can be heard dying, and to references to the petitioner's nickname, “Killer,” during the criminal trial.   These claims also have no merit.

A review of the record demonstrates that Attorney Cramer adequately objected to the admission of the 911 tape.   He objected on hearsay grounds and argued that its prejudicial effect outweighed any probative value it may have had.   He also challenged the admission of the tape on grounds that it had not been properly authenticated.   In response, the state argued that the 911 tape was being admitted and was relevant to show the intent of the perpetrators to cause the death of Joanne Votino.   Following argument by counsel, the trial court admitted the 911 tape, on which Joanne Votino can be heard taking her last breaths, as a full exhibit, finding that its probative value outweighed any prejudicial effect it may have had.⁸  “A trial court has broad discretion in determining whether the probative value of proffered evidence is outweighed by the prejudice that is likely to result from its admission.”  State v. McGraw, 204 Conn. 441, 449–50, 528 A.2d 821 (1987).   The petitioner has not presented any evidence demonstrating how Attorney Cramer could have more effectively objected to the admission of the 911 tape.   Consequently, this claim fails.

Likewise, the petitioner has not presented any evidence demonstrating how Attorney Cramer could have more effectively objected to the references made during the trial to the petitioner's nickname, “Killer.”   The record reveals that Attorney Cramer moved for a mistrial after a witness, Martin, referred to the petitioner by his nickname, “Killer.” ⁹  The prosecutor had instructed Martin not to refer to the petitioner as “Killer,” but in attempting to elicit the other name by which she knew him, “Son,” Martin misunderstood and stated she knew him by the name, “Killer.” ¹⁰  The trial court denied the motion for a mistrial, admonished Martin not to say “Killer” again and gave the jury a curative instruction, instructing them to disregard the statement that the petitioner was known as “Killer.” ¹¹  Approximately two weeks later, in moving to have the petitioner's fingerprint card admitted into evidence as a full exhibit, the state offered it “with the exception of the nickname or the additional names.” ¹²  Attorney Cramer immediately moved for a mistrial, arguing there was no need for the prosecutor to refer to the petitioner's nickname in front of the jury.   Again, the trial court denied his motion.¹³

While references to the petitioner's nickname, “Killer,” could have had a prejudicial effect on his case, the actual references to it during his trial were infrequent, and the trial court gave curative instructions.   In the first instance, Martin, not the prosecutor, mistakenly mentioned the petitioner's nickname, “Killer,” in front of the jury, and the trial court instructed the jury to disregard it.  “[A]bsent clear evidence to the contrary, we presume that the jury followed the court's instructions.”  State v. Nance, 119 Conn.App. 392, 405, 987 A.2d 376, cert. denied, 295 Conn. 924, 991 A.2d 569 (2010).   In the second instance, the prosecutor referred to the petitioner's nickname without actually mentioning it.  “While the remedy of a mistrial is permitted under the rules of practice, it is not favored ․ If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided ․ The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been denied the opportunity for a fair trial ․ The trial court enjoys wide discretion in deciding whether a mistrial is warranted ․ and its evaluation as to events occurring before the jury is to be accorded the highest deference.”  (Internal quotation marks omitted.)  State v. Boykin, 74 Conn.App. 679, 685–86, 813 A.2d 143, cert. denied, 263 Conn. 901, 819 A.2d 837 (2003).   In light of the above, there was no deficiency in Attorney Cramer's performance with regards to the objections he raised to references made during trial to the petitioner's nickname.  Small v. Commissioner of Correction, supra, 286 Conn. 712–13.

The petitioner also claims that Attorney Cramer did not adequately object to the admission of the hearsay statements that Henry made to Martin and Fusco and that he failed to impeach and otherwise discredit the statements.   Specifically, he alleges that Attorney Cramer should have used the inconsistencies in the stories told by Henry and should have also presented the testimony of Bryce Shaw and Gordon Jones to object to and discredit the statements Henry made to Martin and Fusco.

A review of the record demonstrates that Attorney Cramer more than adequately objected to the admission of the hearsay statements that Henry made to Martin and Fusco.¹⁴  In fact, he did argue that they were unreliable because they were inconsistent with each other and because “Henry [was] saying things all over the board.” ¹⁵  On direct appeal, the Supreme Court reviewed the trial court's admission of the hearsay statements and held that the trial court had properly admitted them and that their admission did not violate the petitioner's rights under the sixth amendment.  State v. Camacho, supra, 282 Conn. 342–65.   In doing so, it found the statements to be sufficiently trustworthy and noted that “[Henry] told both women essentially the same story.”  Id., 361.   To determine if a hearsay statement is sufficiently trustworthy to satisfy the confrontation clause, the relevant inquiry is into the circumstances surrounding the making of the statement.   See State v. Merriam, 264 Conn. 617, 638, 835 A.2d 895 (2003) (“ ‘the particularized guarantees of trustworthiness required for admission under the Confrontation Clause must ․ be drawn from the totality of circumstances that surround the making of the statement and that render the declarant particularly worthy of belief’ ”).   Accordingly, the fact that the various statements made by Henry may have been somewhat inconsistent with each other is not particularly relevant to their admission into evidence.   In short, the petitioner has not demonstrated how Attorney Cramer could have more effectively objected to the admission of the hearsay statements made by Henry to Martin and Fusco nor has he demonstrated what effect, if any, doing so would have had on his trial.   As such, the petitioner's claims fail.  Small v. Commissioner of Correction, supra, 286 Conn. 707.

As for calling Shaw and Gordon as witnesses, the petitioner has likewise failed to demonstrate that Attorney Cramer rendered ineffective assistance by failing to do so.   Both Shaw and Gordon were the petitioner's cellmates at one time prior to or during the petitioner's trial.   Both also knew Henry and apparently had contact with him during the same timeframe.   At the habeas trial, Shaw and Gordon testified credibly that they spoke to law enforcement about the petitioner's case in the hopes of helping themselves out in their own criminal matters.   Shaw testified that he could not remember whether Henry put him up to it.   In a statement that he gave to police, dated February 2, 2000, Shaw states, however, that Henry told him to say certain things and that he looked at the petitioner's paperwork to get information about the petitioner's case.¹⁶  Jones testified at the habeas trial that Henry told him to talk to law enforcement and even offered him money to do so.   In both instances, Henry allegedly shifted blame for the murders totally onto the petitioner.¹⁷  While Henry's statements and actions in trying to get Shaw and Jones to testify against the petitioner have some impeachment value, calling into question his veracity and character, they have little to no impeachment value with respect to Henry's statements to Martin and Fusco.   Henry made the statements to Martin and Fusco close to the time of the crime and prior to his arrest whereas he made the statements to Shaw and Jones years later while he was incarcerated in connection with the underlying crimes.   Additionally, Henry inculpates himself in his statements to Martin and Fusco, as opposed to attempting to exculpate himself, as he does in his statements to Shaw and Jones.   As such, the petitioner has failed to establish how the testimony of Shaw and Jones would have changed the outcome of his trial by preventing the admission of the statements Henry made to Martin and Fusco or otherwise.   Accordingly, this claim fails.  Small v. Commissioner of Correction, supra, 286 Conn. 712–13.

The petitioner next claims that Attorney Cramer rendered ineffective assistance by failing to present the testimony of Renee Paradise, Kelley Kirk, Julie Bailey and Bernadette Prytko.¹⁸  “Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial.   The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.”  (Internal quotation marks omitted.)  Conde v. Commissioner of Correction, 112 Conn.App. 451, 458, 963 A.2d 1007 (2009).   Moreover, “[t]he failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.”   (Internal quotation marks omitted.)  Morant v. Commissioner of Correction, 117 Conn.App. 279, 303, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009).

At the habeas trial, while Attorney Cramer could not specifically remember why he did not call certain people as witnesses, he testified that all potential witnesses had to be “sized up,” as they could end up doing more harm than good.   For example, he did remember that although he knew Paradis had told a detective that Votino was afraid of Henry, he did not think that she would make a good witness because she was a crack addict and may have offered other damaging testimony.   A review of her September 28, 1996 statement to the police reveals that her testimony would have been more damaging than anything else.   In her statement, she indicates that Votino owed the petitioner money for drugs and that he was afraid of the petitioner.   Her statement basically corroborates a lot of Martin's testimony.¹⁹  While Paradis testified at the habeas trial that Votino did not like Henry and that he got along well with the petitioner, any benefit to calling her as a witness was outweighed by the potential harm.   Moreover, this Court did not find her to be a very credible witness.

Similarly, this Court did not find Prytko or Bailey to be very credible witnesses either.   Prytko testified at the habeas trial that she was at Martin's home the night of the murders and that she did not remember seeing the petitioner there that night.   Her testimony would not have been particularly helpful to the petitioner.   Although Prytko's testimony does contradict Martin's testimony that the petitioner was at her place trying to wipe his pants and boots clean the night of the shooting, Martin was not the only witness to testify that the petitioner was at her house that evening and that he tried to clean his clothes.   For instance, Soto testified that he drove Martin and the petitioner to Martin's house and that he saw the petitioner go into the house.   He also testified that after he and the petitioner returned to his (Soto's) house, the petitioner used a rag to wipe red spots from his pants and boots.²⁰  It is also worth noting that Attorney Cramer presented the testimony of Annette Dionizio, who testified that she was at Martin's house that night and did not see the petitioner there.²¹

Bailey's testimony also would not have been helpful to the petitioner.   She testified at the habeas trial less than credibly that she heard Henry say that he shot the daughter (Joanne Votino).   In statements to detectives around the time of the crime, she never said that she heard Henry say that he shot the daughter.   Instead, she told them that Martin told her that Henry said the petitioner killed everyone.   She also informed detectives that the petitioner had made comments about getting Votino back for having been ripped off by him for a large amount of cocaine.²²  In short, Bailey's testimony, overall, would not have been helpful for the defense.

As for Kirk, she testified at the habeas trial that Henry told her two different stories regarding the murders.   In her October 11, 1996 statement to police, she stated that Henry first told her that he was in the car when he heard gunshots and left.   Henry later told her that he was actually present when the petitioner pulled out a gun and began shooting everyone for no reason.²³  While Kirk's testimony may have impeached Henry to an extent, there is no reasonable probability that her testimony would have changed the outcome of the petitioner's trial, because both stories still have the petitioner as the actual shooter.   Also, there was substantially more evidence of the petitioner's guilt than just Henry's statements to Martin and Fusco.   Martin testified that she saw the petitioner wipe down the gun and put bullets into it prior to going to Votino's.   She also testified that when she met up with him later that night he asked her to get rid of a pair of green gloves, touched her back and said, “I just shot a girl right here, do you think I killed her?” ²⁴  Soto testified that after driving Martin and the petitioner to Martin's house on the night of the murders, he saw the petitioner give Henry the gun and heard Henry say he would take care of the “burner” (gun).   He also testified that the petitioner returned to his house and wiped his pants and boots.   He stated that the petitioner said “he had got into something that night” and “got some blood stain in [his] pants.”   He further testified that he saw the petitioner with a pair of green gloves and believed he disposed of them in a storm sewer near his driveway.   The police recovered a pair of green gloves from the storm sewer.   Additionally, the petitioner called Soto several times in the days following the murders and asked about what was being reported in the news.   During one of these calls, Soto testified that he asked the petitioner if he was involved in the murders, and the petitioner replied that he had something to do with it.²⁵

Based on the above, the petitioner has failed to prove that Attorney Cramer rendered ineffective assistance by failing to present the testimony of the above mentioned people.   Most notably, the petitioner has not proven that their testimony would have been helpful to his case.   As such, the petitioner's claims fail.  Small v. Commissioner of Correction, supra, 286 Conn. 712–13.

Lastly, the petitioner claims that Attorney Cramer should have requested a jury instruction on accomplice testimony related to the testimony of Martin and the statements made by Henry that were testified to by Martin and Fusco.   “Generally, a defendant is not entitled to an instruction singling out any of the state's witnesses and highlighting his or her possible motive for testifying falsely ․ An exception to this rule, however, involves the credibility of accomplice witnesses ․ [When] it is warranted by the evidence, it is the court's duty to caution the jury to scrutinize carefully the testimony if the jury finds that the witness intentionally assisted in the commission, or if [he or she] assisted or aided or abetted in the commission, of the offense with which the defendant is charged ․ [I]n order for one to be an accomplice there must be mutuality of intent and community of unlawful purpose.”  (Emphasis in original;  internal quotation marks omitted.)  State v. Moore, 293 Conn. 781, 823–24, 981 A.2d 1030 (2009), cert. denied, 130 S.Ct. 3386, 177 L.Ed.2d. 306 (2010).  “In determining whether that failure to instruct was harmful, we consider the factors set forth in State v. Patterson, 276 Conn. 452, 886 A.2d 777 (2005).   Those factors include:  (1) the extent to which [the witness'] apparent motive for falsifying his testimony was brought to the attention of the jury, by crossexamination or otherwise;  (2) the nature of the court's instructions on witness credibility;  (3) whether [the witness'] testimony was corroborated by substantial independent evidence;  and (4) the relative importance of [the witness'] testimony to the state's case.”  (Internal quotation marks omitted.)  State v. Santiago, 103 Conn.App. 406, 412, 931 A.2d 298, cert. denied, 284 Conn. 937, 937 A.2d 695 (2007).

Henry, who clearly was an accomplice to the crimes, did not testify at the petitioner's criminal trial.   The trial court properly admitted his out-of-court statements to Martin and Fusco under two recognized hearsay exceptions, i.e., the co-conspirator exception and the dual inculpatory statement exception.   This Court knows of no authority, and the petitioner has not pointed to any authority, requiring a trial court to give an accomplice testimony instruction on statements of a non-testifying accomplice admitted under recognized exceptions to the hearsay rule.   The exceptions to the hearsay rule are based on the reliability and trustworthiness of certain types of out-of-court statements.   Accordingly, Attorney Cramer had no grounds for requesting an instruction on accomplice testimony regarding the hearsay statements made by Henry, and even if he had made such a request, the petitioner has not demonstrated that the trial court would have given the instruction or that it would have changed the outcome of his trial.

As for Martin, it is likewise far from clear that her testimony necessitated an accomplice testimony instruction.   She had strong connections to Henry, who was her boyfriend at the time, and the petitioner, who supplied her with drugs;  she drove them around the day of the murders;  she knew Votino owed the petitioner a debt;  she knew they were going to Votino's the night of the murders;  she knew they had a gun;  she brought the petitioner his backpack later that night as requested by him;  she knew Henry disposed of the gun;  and she accompanied Henry to a motel later that night to sell drugs.   However, she arguably did not have the mental state required for her to be an accomplice.   General Statutes § 53a–8, which defines accomplice liability, provides in relevant part:  “A person, acting with the mental state required for the commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct ․” There is no evidence that Martin had the intent to kill, rob, steal or sell drugs to anyone involved in the underlying crimes.   There is also no evidence that she conspired to do so.

In any event, the petitioner has not demonstrated that he suffered any prejudice from Attorney Cramer's failure to request an accomplice testimony instruction regarding Martin's testimony.   First, it is not clear that the trial court would have given the instruction had it been requested, as there arguably was insufficient evidence that Martin was an accomplice to the crimes.   Second, during his cross-examination of Martin and in his closing argument, Attorney Cramer brought the possible motives Martin might have to testify falsely to the attention of the jury.   He highlighted that she had criminal charges (unrelated to the charges the petitioner was facing) pending when she gave her statements to the police, that her children had been taken from her around the same time, and that she had a charge (again, unrelated to the crimes underlying the petitioner's case) pending against her at the time she testified.   Although no promises had been made to her, Martin ultimately testified that she expected help from the police.²⁶  Third, the trial court instructed the jury, in assessing the credibility of witnesses, to consider whether they had an interest in the outcome of the case, or any bias or prejudice concerning any party.²⁷  It also instructed the jury that the fact that a witness had criminal charges pending at the time he or she spoke to the police, had been convicted of a crime or had committed acts of misconduct could be considered in assessing his or her credibility.   In doing so, the trial court listed the charges, convictions and misconduct of the witnesses where applicable.   Martin was one of the witnesses whose charges and misconduct were listed by the trial court.²⁸  In short, the jury was adequately cautioned regarding the possible unreliability of Martin's testimony.

Moreover, Martin's testimony was not the only evidence that inculpated the petitioner.   As noted by the Supreme Court in the petitioner's direct appeal, “[t]he state's case was strong ․ [T]here was evidence connecting [the petitioner] to the murder weapon;  witnesses testified that they had seen the defendant scrubbing his clothes and boots immediately after the murders;  and he fled soon thereafter.   There was evidence that he was at Votino's house during the murders, and motive evidence regarding the drug debt and the conspiracy to steal Votino's Jeep. Numerous statements by Henry ․ detailed how the [petitioner] had executed four people.   The [petitoner's] fingerprints were found on the Jeep, along with gunshot residue.   The [petitioner] also demonstrated consciousness of guilt when he fled the state on the night of the murders.   Finally, the state called several witnesses to prove the existence of a conspiracy between the [petitioner] and Henry to commit these crimes and to conceal them afterward.”  State v. Camacho, supra, 282 Conn. 383–84.   Based on the above, the petitioner has failed to prove that Attorney Cramer rendered ineffective assistance by failing to request an accomplice testimony with respect to Martin's testimony.  Small v. Commissioner of Correction, supra, 286 Conn. 712–13.

COUNT SEVEN—INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

Lastly, in count seven of his petition, the petitioner alleges that his appellate counsel, Attorney Steele, rendered ineffective assistance by (1) failing to adequately raise the claim that the petitioner's constitutional right to confrontation was violated by the admission of the hearsay statements made by Henry to Martin and Fusco, (2) failing to raise and/or adequately raise the claim that the petitioner's constitutional right to due process and a fair trial was violated by the admission of the 911 tape and by references to the petitioner's nickname, “Killer,” during the trial, (3) failing to raise the claim that the petitioner's constitutional right to a public trial and to be present during the trial was violated by the trial court holding a non-public, in-chambers hearing regarding possible juror misconduct, (4) failing to raise the claim that the trial court erred by holding an inadequate hearing regarding possible juror misconduct, (5) failing to raise the claim that the petitioner's constitutional right to an impartial jury was violated and (6) failing to raise a claim that the trial court erred by not giving an accomplice testimony instruction relating to Martin's testimony and the hearsay statements made by Henry.

To prevail on a claim of ineffective assistance of appellate counsel, a petitioner must show that appellate counsel's representation “fell below an objective standard of reasonableness”;  Duperry v. Solnit, 261 Conn. 309, 335, 803 A.2d 287 (2002);  and that “there is a reasonable probability that but for appellate counsel's error, the petitioner would have prevailed in his direct appeal.”  (Internal quotation marks omitted.)  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).

The petitioner has failed to prove that Attorney Steele performed deficiently.   She testified that she considered some of the issues that the petitioner claims she should have raised but ultimately she settled on two issues—(1) the erroneous admission of the hearsay statements made by Henry to Martin and Fusco and (2) prosecutorial misconduct—that she believed to be the strongest.  “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).   Accordingly, Attorney Steele cannot be faulted for failing to raise the issues that the petitioner claims she should have raised.

Additionally, the petitioner has not presented any evidence to prove that had these issues been raised or had those that were raised been more “adequately raised,” there is a reasonable probability that he would have prevailed on appeal.   Consequently, his claims against Attorney Steele fail.

CONCLUSION

Based on the foregoing, the petition for a writ of habeas corpus is denied.   If the petitioner wishes to appeal the court's ruling, counsel shall prepare and submit a judgment file to the clerk within thirty (30) days.

BY THE COURT,

Hon. John M. Newson

FOOTNOTES

FN1. A number of these claims are deemed abandoned, as the petitioner presented little to no evidence on them.   For example, the petitioner alleges that Attorney Cramer failed to adequately cross-examine, impeach and otherwise discredit various witnesses.   The petitioner did not present any evidence as to how Attorney Cramer could have more effectively cross-examined or impeached these witnesses or as to what effect, if any, such action would have had on the outcome of his trial.   Accordingly, these claims are deemed abandoned and will not be reviewed.   See Solek v. Commissioner of Correction, 107 Conn.App. 473, 480–81, 946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008) (“[t]he responsibility of a habeas court, in confronting an often voluminous trial court record, is to respond to those claims fairly advanced by the petitioner.   The mere recital of those claims in a petition, without supporting oral or written argument, does not adequately place those claims before the court for its consideration”)..  FN1. A number of these claims are deemed abandoned, as the petitioner presented little to no evidence on them.   For example, the petitioner alleges that Attorney Cramer failed to adequately cross-examine, impeach and otherwise discredit various witnesses.   The petitioner did not present any evidence as to how Attorney Cramer could have more effectively cross-examined or impeached these witnesses or as to what effect, if any, such action would have had on the outcome of his trial.   Accordingly, these claims are deemed abandoned and will not be reviewed.   See Solek v. Commissioner of Correction, 107 Conn.App. 473, 480–81, 946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008) (“[t]he responsibility of a habeas court, in confronting an often voluminous trial court record, is to respond to those claims fairly advanced by the petitioner.   The mere recital of those claims in a petition, without supporting oral or written argument, does not adequately place those claims before the court for its consideration”).

FN2. To facilitate the review of the petitioner's ineffective assistance of trial counsel claims, they have been grouped together where appropriate..  FN2. To facilitate the review of the petitioner's ineffective assistance of trial counsel claims, they have been grouped together where appropriate.

FN3. Petitioner's Exhibit [Exh.] 9, pp. 3109–10.   During the in-chambers discussion, Dickau elaborated on the difficulties between her sister and her and explained why her sister may have called the courthouse to try to embarrass and discredit her.   See Petitioner's Exh. 8..  FN3. Petitioner's Exhibit [Exh.] 9, pp. 3109–10.   During the in-chambers discussion, Dickau elaborated on the difficulties between her sister and her and explained why her sister may have called the courthouse to try to embarrass and discredit her.   See Petitioner's Exh. 8.

FN4. Dickau explained that “they [her family members from California] were here because they were interested in the Father Lysz case.   And that they had come to the courthouse to hear that case, which [was] presently going on.   And that after they finished there, they did stop in here and observe this trial for a while.”   Petitioner's Exh. 9, pp. 3313–14..  FN4. Dickau explained that “they [her family members from California] were here because they were interested in the Father Lysz case.   And that they had come to the courthouse to hear that case, which [was] presently going on.   And that after they finished there, they did stop in here and observe this trial for a while.”   Petitioner's Exh. 9, pp. 3313–14.

FN5. The trial court did, however, indicate that “if the caller does identify herself by name, and come into court to make a claim, then of course [t]he court will entertain such, and deal with it appropriately.”   Petitioner's Exh. 9, pp. 3115–16..  FN5. The trial court did, however, indicate that “if the caller does identify herself by name, and come into court to make a claim, then of course [t]he court will entertain such, and deal with it appropriately.”   Petitioner's Exh. 9, pp. 3115–16.

FN6. Petitioner's Exh. 8, pp. 1, 7..  FN6. Petitioner's Exh. 8, pp. 1, 7.

FN7. At the habeas trial, Attorney Cramer testified that he advised the petitioner of what occurred during the in-chambers hearing..  FN7. At the habeas trial, Attorney Cramer testified that he advised the petitioner of what occurred during the in-chambers hearing.

FN8. Petitioner's Exh. 1, pp. 161–72..  FN8. Petitioner's Exh. 1, pp. 161–72.

FN9. Petitioner's Exh. 1, pp. 1300–03..  FN9. Petitioner's Exh. 1, pp. 1300–03.

FN10. The following colloquy occurred:Q. And how were you introduced—by what name were you introduced to Marco Camacho, in the sense of was it a formal name or some other—A.  No it was a nickname.Q. It was a nickname.   And did there come a time that you knew Marco Camacho by another name, in addition to the nickname?A. Yeah we called him—he was known by Marco, Camacho, and killer.Petitioner's Exh. 1, p. 1299..  FN10. The following colloquy occurred:Q. And how were you introduced—by what name were you introduced to Marco Camacho, in the sense of was it a formal name or some other—A.  No it was a nickname.Q. It was a nickname.   And did there come a time that you knew Marco Camacho by another name, in addition to the nickname?A. Yeah we called him—he was known by Marco, Camacho, and killer.Petitioner's Exh. 1, p. 1299.

FN11. Petitioner's Exh. 1, pp. 1304–05..  FN11. Petitioner's Exh. 1, pp. 1304–05.

FN12. Petitioner's Exh. 1, p. 2683..  FN12. Petitioner's Exh. 1, p. 2683.

FN13. Petitioner's Exh. 1, pp. 2683–86..  FN13. Petitioner's Exh. 1, pp. 2683–86.

FN14. Petitioner's Exh. 1., pp. 1568–70, pp. 1586–91, pp. 1599–600, pp. 1602–03 (objection to Martin's testimony), pp. 3786–95 (objection to Fusco's testimony), pp. 4438–40, pp. 4457–60, pp. 4466–67 (objection to additional testimony from Martin)..  FN14. Petitioner's Exh. 1., pp. 1568–70, pp. 1586–91, pp. 1599–600, pp. 1602–03 (objection to Martin's testimony), pp. 3786–95 (objection to Fusco's testimony), pp. 4438–40, pp. 4457–60, pp. 4466–67 (objection to additional testimony from Martin).

FN15. Petitioner's Exh. 1, pp. 3786–95, pp. 4438–39..  FN15. Petitioner's Exh. 1, pp. 3786–95, pp. 4438–39.

FN16. Petitioner's Exh. 6..  FN16. Petitioner's Exh. 6.

FN17. In Shaw's February 2, 2000 statement, he indicates that Henry told him to say that “[the petitioner] just flipped out and started shooting people” and that he threatened to kill Henry if he did not dispose of the gun.   Petitioner's Exh. 6. Jones testified that Henry told him that the petitioner killed everyone and that he [Henry] was in the car and ran when he heard gunshots..  FN17. In Shaw's February 2, 2000 statement, he indicates that Henry told him to say that “[the petitioner] just flipped out and started shooting people” and that he threatened to kill Henry if he did not dispose of the gun.   Petitioner's Exh. 6. Jones testified that Henry told him that the petitioner killed everyone and that he [Henry] was in the car and ran when he heard gunshots.

FN18. The petitioner also claims that Attorney Cramer failed to present the testimony of Sherry Heath, Joanne Perez, Neftali Ortiz, Tavares Neal and Tom Brube.   The petitioner did not present any evidence regarding these potential witnesses.   Accordingly, the petitioner's claims as to these potential witnesses are deemed abandoned.   See footnote 1..  FN18. The petitioner also claims that Attorney Cramer failed to present the testimony of Sherry Heath, Joanne Perez, Neftali Ortiz, Tavares Neal and Tom Brube.   The petitioner did not present any evidence regarding these potential witnesses.   Accordingly, the petitioner's claims as to these potential witnesses are deemed abandoned.   See footnote 1.

FN19. Petitioner's Exh. 17..  FN19. Petitioner's Exh. 17.

FN20. Petitioner's Exh. 1, pp. 2372–99..  FN20. Petitioner's Exh. 1, pp. 2372–99.

FN21. Petitioner's Exh. 1, pp. 132–37..  FN21. Petitioner's Exh. 1, pp. 132–37.

FN22. Petitioner's Exhs. 13, 15 and 16..  FN22. Petitioner's Exhs. 13, 15 and 16.

FN23. Petitioner's Exh. 10..  FN23. Petitioner's Exh. 10.

FN24. Petitioner's Exh. 1, pp. 1418–528..  FN24. Petitioner's Exh. 1, pp. 1418–528.

FN25. Petitioner's Exh. 1, pp. 2372–419..  FN25. Petitioner's Exh. 1, pp. 2372–419.

FN26. Petitioner's Exh. 1, pp.1963–2004..  FN26. Petitioner's Exh. 1, pp.1963–2004.

FN27. Petitioner's Exh. 1, pp. 4860–61..  FN27. Petitioner's Exh. 1, pp. 4860–61.

FN28. Petitioner's Exh. 1, pp. 4867–68..  FN28. Petitioner's Exh. 1, pp. 4867–68.

Newson, John M., J.