Bryant Browne v. Warden (2013)

MEMORANDUM OF DECISION

I. Procedural History

The petitioner was the defendant in five separate informations charging various criminal and motor vehicle offenses in the Middlesex Judicial District.   The facts that could reasonably have been found by the jury at trial are as follows:

On January 28, 2000, the defendant was an unemployed drug addict with a $40 a day heroin habit.   That morning, he met his accomplice, Victor Santiago, in New Haven and drove to Middletown.   At approximately 11:30 a.m., the pair forcibly entered the unoccupied home of the Fraulino family They ransacked the house, collecting jewelry, cash and electronic equipment.   Shortly thereafter, Rosemary Fraulino returned home and observed an unfamiliar motor vehicle in the driveway.   She did not stop at her house but instead called the police on her cellular telephone to alert them to the suspicious occurrence.

John Labbadia, a Middletown police officer, responded to the scene and partially blocked the defendant's vehicle in the driveway.   The defendant and Santiago saw Labbadia arrive.   When the officer walked to the rear of the house, they abandoned some of the Fraulinos' possessions in the living room and foyer.   The defendant got into his vehicle and sped away with his accomplice.

Labbadia, believing that he had interrupted a burglary, radioed the police dispatcher.   He pursued the defendant and Santiago on back roads and side streets to Route 9. George Dingwall, a sergeant on the Middletown police force, heard Labbadia's broadcast and joined the pursuit.   A Portland police officer also heard Labbadia's broadcast.   Three police cruisers with lights and sirens activated followed the defendant's vehicle south on Route 9 at a high rate of speed.

The state police had been alerted, and a number of troopers positioned themselves at exit six on Route 9. One trooper placed stop sticks across a lane of the highway, but the defendant successfully avoided them.   Several troopers then joined the chase.   The defendant operated his vehicle in an erratic manner back and forth across the highway.

Near exit four in Essex, Dingwall drove his cruiser beside the defendant's vehicle.   The defendant swerved his vehicle toward Dingwall's vehicle.   Dingwall lost control of his cruiser, which spun around and off the highway, crashing in a heavily wooded portion of the median.

The defendant continued to drive south on Route 9 at a high rate of speed.   Scott Wisner, a state trooper, positioned his cruiser alongside the defendant's vehicle.   The defendant swerved toward Wisner's cruiser, striking it.   Wisner dropped back, and Labbadia moved his cruiser ahead of the defendant's vehicle.   The defendant's car struck the rear of Labbadia's cruiser, which also spun out of control and off the highway.   The defendant then drove onto Interstate 95 southbound.

The state police responded in force.   One trooper preceded the pursuit and warned motorists to move off the highway.   State troopers used their cruisers to block the entrance ramps to the interstate highway.   At exit sixty-seven, the state troopers deployed stop sticks again, but the defendant veered off the roadway to avoid them.   At exit sixty-three in Clinton, police cruisers were parked in the gore between the exit and entrance ramps to the highway.   State troopers were standing in the gore in another effort to deploy stop sticks.   The defendant saw the trap and drove off the highway through the gore, coming dangerously close to the troopers standing there.   He drove onto the entrance ramp and back onto the highway.

The defendant continued to weave through traffic.   Between exits fifty-nine and fifty-eight in Guilford, Adam Brown, a state trooper, successfully deployed stop sticks under the tires of the defendant's vehicle.   Nevertheless, the defendant kept going and at exit fifty-seven attempted to force Robert Hart, a state trooper, off the highway.   The defendant stopped his vehicle, which was traveling on the rims of its wheels, against the Jersey barriers near exit fifty-four in Branford.

When the defendant got out of his vehicle, he said, ‘I'm on drugs, man—real bad—I'm on drugs.’   Personalty belonging to the Fraulino family was found in the defendant's vehicle.   As a state trooper was transporting the defendant to the state police barracks in Westbrook, a police radio dispatch broadcasted information that Dingwall had been transported to a hospital by Life Star helicopter.   In response, the defendant made several unsolicited remarks:  ‘It's not my fault, I'm on drugs;  you can't blame me for any of this because I'm on drugs.’   Dingwall died as a result of his injuries.

State v. Browne, 84 Conn.App. 351, 355–58, 854 A.2d 13, cert. denied, 271 Conn. 931, 859 A.2d 930 (2004).   The petitioner was represented at trial by Attorney Norman Pattis.   Following a trial to a jury, the petitioner was found guilty of numerous offenses, and acquitted of others, and the trial court, Clifford, J., sentenced him to a total effective sentence of thirty-two years incarceration.¹  The petitioner, represented by Attorney Mark Rademacher, subsequently appealed his convictions, which were affirmed.  Id.

The petitioner commenced the present action by filing a petition for writ of habeas corpus challenging the legality of his detention on December 13, 2004.²  Following the appointment of counsel, changes in counsel, and several amendments, a final amended petition was filed on March 25, 2013 (# 202.50) making two claims, the first that he received ineffective assistance from his trial counsel, Attorney Pattis, and the second that he received ineffective assistance from appellate counsel, Attorney Rademacher.   The respondent filed a return on March 28, 2013 generally denying the claims in the petition.   The matter was tried before the court on April 8 and April 30, 2013.   Additional procedural history will be presented as needed throughout the body of this decision.

II. Law and Discussion

“[The United States Supreme Court] has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial.”  Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  “The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to accord defendants the ample opportunity to meet the case of the prosecution to which they are entitled.”   (Internal quotation marks omitted.)  Id., 685.  “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”  Id., 686.

“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.   This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.   Second, the defendant must show that the deficient performance prejudiced the defense.   This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.   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.”  Id., 687.  “[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.”   Id., 688.  “Judicial scrutiny of counsel's performance must be highly deferential.   It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”   Id., 689.  “Thus, a court ․ must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.  [The defendant] must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.   The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.   In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.   At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”  Id., 690.

Under the second prong of the test, “[a]n 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.”  Id., 691.  “[A]ctual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.”  Id., 693.  “Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.”  Id. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.”   Id. “The defendant must show 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.  “An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like.”  Id., 695.   The court “must consider the totality of the evidence before the judge or jury.”  Id. “In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner's failure to prove either is fatal to a habeas petition.”  (Internal quotation marks omitted.)  Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).

The petitioner first alleges that Attorney Pattis was ineffective for failing to have employed the services of expert witnesses to challenge the State's theory of causation and intent or to raise defenses as to all claims relating to the death of Sergeant Dingwall.   The petitioner's real contention here is that Attorney Pattis should have called expert witnesses to testify for the defense about what “caused” Sgt. Dingwall to lose control of his cruiser, the petitioner's defense theory at trial having been that it was Sgt. Dingwall's handling of the vehicle, reckless pursuit tactics, and mismatched tires that, individually or together, “caused” him to lose control of his cruiser that day.   As discussed in greater detail below, the petitioner has failed to prove his claim, because he has failed to prove that Attorney Pattis' representation was constitutionally deficient.   Additionally, even if the petitioner could prove that Attorney Pattis' representation was constitutionally deficient, his claim would still fail, because he has failed to prove that he was prejudiced.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

Again, the question here is not whether defense counsel was “perfect,” but whether the result of the trial was rendered unreliable by his performance.   Strickland v. Washington, supra, 466 U.S. 687.   With regard to the issues in question here, Attorney Pattis did a commendable job of making sure that all of the relevant issues, biases and factual considerations that supported his client's theory of defense were laid out for the jury to consider.   Through thorough cross examination of every witness the State placed on the stand, including police officers who witnessed Sgt. Dingwall's accident, Attorney Pattis was able to get evidence before the jury that, if accepted, could reasonably have allowed them to conclude that the petitioner was not engaged in any erratic, evasive or aggressive maneuvers at the time Sgt. Dingwall lost control of his vehicle.³ ,⁴ During cross examination of the State's two expert witnesses, an accident reconstruction expert from the State Police and a representative from the Goodyear Tire Company, Attorney Pattis was also able to elicit admissions that there was no evidence of any contact between Sgt. Dingwall's vehicle and the petitioner's vehicle,⁵ that the fact that the left front tire of Sgt. Dingwall's cruiser was overinflated by nine pounds was an important variable in evaluating the safe operation of a vehicle,⁶ that engaging in a high speed chase with mismatched radial and snow tires on a police cruiser was against the tire manufacturer's safety recommendations,⁷ that experts with whom the State's accident reconstruction expert had consulted about the petitioner's case had conflicting opinions about whether the mismatched tires played any role in the accident,⁸ and that the accident reconstruction expert did not interview any of the police officers who actually witnessed the accident ⁹ nor did he consult with anyone from Goodyear Tire, the company that manufactured the tires on Sgt. Dingwall's vehicle, before reaching his final conclusions.

When cross examining the Goodyear Tire representative, Attorney Pattis forced him to admit that his testimony on direct examination conflicted with his original report on the case, which said, “because of the unique demands of law enforcement operations, particularly in pursuit work ․ it is absolutely essential that if winter tires are used, they be applied to all four wheel positions.” ¹⁰  He also forced the Goodyear representative to admit that he could not rule out the mismatched tires as a possible cause of Sgt. Dingwall's accident,¹¹ and that the differences in tire pressure could have had an effect on performance of the cruiser.¹²

The petitioner presented two of his own experts at the habeas hearing, one an expert in vehicle dynamics and the other an expert in tires.   Although both had substantial resumes and obvious expertise in their relative fields, other than offering affirmative opinions that the “cause” of Sgt. Dingwall's accident was not the petitioner, but a combination of the mismatched tires and Sgt. Dingwall's reckless pursuit tactics, they did not offer any testimony that was materially different from the information Attorney Pattis was able to obtain through admissions during cross examination of the State's expert witnesses.   In other words, the only real difference that would have resulted if these experts had been called to testify for the defense at the criminal trial would have been that the information supporting the theory that reckless police tactics or improper maintenance of the police cruiser “caused” Sgt. Dingwall's accident would have come from the affirmative testimony of defense witnesses instead of admissions from witnesses called by the State.

Taking into consideration the totality of the evidence, including the thoroughness of Attorney Pattis' cross examination of the State's witnesses, the court does not find that there is a reasonable probability that having had experts testify for the defense to the same information—that a police officer attempting to “box” a suspect's vehicle in while traveling in excess of 100 miles per hour on mismatched tires poses a significant danger of injury or death to the police officer—that Attorney Pattis was able to obtain through admissions from the State's experts would have resulted in a more favorable result for the petitioner.  “A review of the record in the present case leads [the court] to the conclusion that any alleged errors of the petitioner's trial counsel did not deprive the petitioner of a fair trial.   Further, [the court's] confidence in the verdict is not undermined by the lack of an expert for the defense.   On the basis of the evidence in the record, there does not exist a reasonable probability that the outcome of the criminal trial would have been different.”  Michael T. v. Commissioner of Correction, 307 Conn. 84, 102, 52 A.3d 655 (2012).

Additionally, although expert testimony was necessary for the jury to reasonably determine the speeds at which the vehicles were traveling, whether there may have been contact between some of the vehicles, and the dynamics of the accident itself, the underlying concept both the State and defense vigorously, although from alternate perspectives, presented to the jurors at the trial—that three to five motor vehicles operating at times less than one foot abreast of each other, on a two-lane highway, while jockeying for position at speeds between 105 and 113 miles per hour, exposes even the most skilled driver to the danger of losing control of the vehicle and being killed—were not beyond the ability of the typical juror to comprehend through use of his or her common senses without the assistance of expert testimony.   In this case, notwithstanding testimony from several officers that they did not witness any erratic driving by the petitioner at the exact time of Sgt. Dingwall's accident, this court finds that there was ample evidence in the record, including the petitioner's admission in a written statement,¹³ from which, if accepted, jurors could have determined that the petitioner “caused” Sgt. Dingwall's accident using nothing more than their common senses and that defense experts opining on nuances of the meaning of word “cause” would not have effected the outcome with any reasonable probability.  Strickland v. Washington, supra, 466 U.S. 694.   In the present case, therefore, the court finds that the petitioner's claim fails, because he has failed to establish that he was prejudiced.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

The petitioner's next claim is that Attorney Pattis was ineffective for failing to employ the services of an expert witness to defend against the charges related to the claim that he ran his vehicle into Trooper Scott Wisner's cruiser and forced him off the road in the area of the Rt. 9 South and Interstate 95 interchange.   The only evidence presented by the petitioner on this issue during the habeas trial was that of Dr. Christopher Shapley, the vehicle dynamics expert, whose limited offering was an opinion that Trp. Wisner had placed himself in a position to be contacted by the petitioner and, but for that positioning, there would not have been any contact between the two vehicles.   As with the expert testimony discussed above, however, this testimony was not materially different from the theory of defense that was presented by Attorney Pattis throughout the trial—that the driving and tactics used by police were so reckless under the circumstances that they constituted a superseding and intervening “cause” to any conduct the petitioner may have engaged in.   More importantly, though, was the fact that Dr. Shapley's opinion was not based on any scientific calculations or specialized knowledge of evidence from this portion of the scene, nor was it based on the results of some protracted examination of evidence with specialized tools or testing.   Instead, Dr. Shapley simply made a determination that he believed the petitioner's claim that he did not intend to strike Tpr. Wisner's vehicle.   Such an opinion, however, was neither material or helpful to the petitioner's case, nor was it properly the subject of expert testimony, for the determination of credibility was the jury's, and the jury's alone, and “[t]he [jury] can ․ decide what—all, none, or some—of a witness' testimony to accept or reject.”  (Internal quotation marks omitted.)  State v. Vega, 128 Conn.App. 20, 27, 17 A.3d 1060, cert. denied, 301 Conn. 919, 21 A.3d 463 (2011).   As to the present claim, therefore, the petitioner has failed to present any evidence from which this court could find any reasonable probability that there would have been a more favorable outcome had this testimony been presented at his trial.  Strickland v. Washington, supra, 466 U.S. 694.   As such, the petitioner has failed to establish prejudice, so his claim fails.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

Without getting into great detail, the court also finds that Attorney Pattis provided the respondent with effective and competent representation with respect to the claims above.   A review of the trial transcript reveals an attorney who was prepared to cross examine every witness presented by the State in great detail.   Attorney Pattis doggedly challenged the State's witnesses with even the slightest modification between their trial testimony and prior testimony or statements they had given on this matter, down, in some cases, to the slight difference in adjectives they used to describe things, and succeeded in getting nearly every important fact witness placed on the stand by the State to admit that they had modified their trial testimony to be more favorable to the State than some prior statement or testimony the witness had given.   The detail with which Attorney Pattis cross examined the State's expert witnesses, using scientific terms and terms of art in their respective fields to thoroughly question them about their findings, also made it quite clear that he had gone through pains to educate himself on their reports and the subjects about which they were going to testify, and it was evident that he was properly prepared to challenge them on cross examination.   He was prepared with numerous motions challenging the State's evidence, one of which, as will be discussed in relation to the next claim below, was nearly successful in prohibiting the State from presenting evidence that was necessary for the State to establish an element of the larceny-related charges.   In all, this court finds that there is no question that Attorney Pattis represented the petitioner in this matter with all the competence and vigor one would expect of a reasonably trained and educated defense attorney.  Strickland v. Washington, supra, 466 U.S. 689.   Therefore, even if the petitioner could somehow prove that he was prejudiced by the omission of expert testimony on either of the two subjects above, his claims would still fail.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783 (petitioner must prove deficient performance and prejudice conjunctively).

The petitioner's next claim is that Attorney Pattis was ineffective for failing to hire an expert witness to contest the evidence of value presented by the State regarding the items that the petitioner stole, and attempted to steal, from the complainant's residence.   The petitioner's contention is that such expert testimony would have created reasonable doubt as to the larceny-related charges, because it would have shown that the value of the property related to each charge was not at least one thousand dollars, a required element to prove larceny in the third degree at that time.   Once again, however, the court finds that the petitioner has failed to establish his claim, because Attorney Pattis provided constitutionally adequate representation with respect to these matters.  Strickland v. Washington, supra, 466 U.S. 689.

The thing at issue here, and a contested issue at the trial, was the establishment of the value of the property the petitioner took, and attempted to take, from the Fraulino residence.   Many of the items taken, or attempted to be taken, were seven or eight years old at the time of the crime, and nine to ten years old at the time of the trial.   Mr. Fraulino had receipts or other documentation from which he could establish the original purchase price paid for nearly every item.   With regard to proving the “value” of the property to establish that it met the one thousand dollar requirement of larceny in the third degree, however, General Statutes § 53a–121, Value of property of services, provided in relevant part:  “(a) For the purposes of this part, the value of property or services shall be ascertained as follows:  (1) Except as otherwise specified in this section, value means the market value of the property ․ at the time and place of the crime or if such cannot be satisfactorily ascertained, the cost of replacement of the property ․ within a reasonable time after the crime.”  (Emphasis added.)   The petitioner's contention is that Attorney Pattis had nothing to contest the testimony provided by Mr. Fraulino as to the value of the property, even though he testified that he had not attempted to make any assessment of the value of the items in question until about two weeks before the criminal trial, which was nearly two years after “the time and place of the crime.”

With regard to the value of each item, the State was allowed, over Attorney Pattis' numerous objections, to establish the “value” of each piece of property by presenting its replacement cost, which the State established by having Mr. Fraulino testify that he had gone to stores about two weeks prior to the trial, at the suggestion of the State, and priced what new items similar or identical to his used ones were selling for.   Mr. Fraulino then testified that the present price of each item new was what he would have attempted to sell his used items for back at the time of the crime.¹⁴  In other words, the State was able to establish the replacement value “within a reasonable time after” January 28, 2000, the date of the crime, through Mr. Fraulino's testimony that he would have only sold his used items for prices he did not obtain until December 2001, nearly two years after the crime.   It was the petitioner's contention that Attorney Pattis should have had an expert called to testify about the actual depreciated value of each item at or near the time of the crime, instead of allowing the jury to rely on Mr. Fraulino's values.

Attorney Pattis testified that he did not hire his own expert to value the property, because he did not consider that as an option until seeing that the co-defendant had used an expert in his subsequent trial and obtained guilty verdicts on lesser counts of larceny.   He remembered there being an issue with valuation at the petitioner's trial, but, twelve years having passed, could not remember the specifics of what that issue was.   Although Attorney Pattis' memory of what he did at the trial on this issue may have failed him, it was clear from reviewing the transcript that he believed that the State's failure to have their own expert was a fatal mistake, and he was adequately prepared to make the challenge when the State attempted to introduce the evidence through Mr. Fraulino.   It is clear from the record that the strategy, rather than putting on affirmative evidence of value, was to prevent any evidence of value from coming before the jury, which would have been fatal to the larceny and attempted larceny in the third degree charges if he had succeeded.

Attorney Pattis' objection to Mr. Fraulino's testimony about value resulted in a lengthy hearing outside the presence of the jury, which included arguments and questioning by both counsel.¹⁵  During this hearing, Attorney Pattis argued that the proper way for the value of the property at or near the time of the crime to be determined would have been for Mr. Fraulino or the State to have had someone with the proper expertise appraise the property.   Following a voir dire of Mr. Fraulino, Attorney Pattis also objected that Mr. Fraulino's values were not “real” values at which he would have agreed to sell his used items in a long-arm transaction, but merely hearsay repetitions of values he had seen or heard when he went price-shopping to the stores shortly before trial.   Attorney Pattis also steadfastly objected that, even if it was appropriate for Mr. Fraulino to testify as to the replacement values he had obtained during his trips to stores, those trips did not occur until December 2001, nearly two years after the crime, and were not a reasonable representation of the value of the property “within a reasonable time after the crime,” making any attempt to reach a conclusion as to their value back on or near January 28, 2000 purely speculative.   He nearly succeeded in convincing the court to prohibit the State from introducing the evidence to the jury.¹⁶

After Mr. Fraulino testified on direct, Attorney Pattis subjected him to a vigorous cross examination, bringing to light for the jury, if they chose to accept it;  State v. Vega, supra, 128 Conn.App. 27 (“[t]he [jury] can ․ decide what—all, none, or some—of a witness' testimony to accept or reject”);  that Mr. Fraulino's sentimental attachment to the property resulted in inflated values.   Attorney Pattis also succeeded in getting Mr. Fraulino to admit that he had no idea what the various pieces of property would have been worth in or around January 28, 2000.

This is the classic “hindsight is 20/20” argument being made by the petitioner.   Attorney Pattis had what appears to have been a more than reasonable strategy to prevent the State from presenting any evidence at all on an essential element of the larceny third related charges.   In hindsight, however, that strategy was not successful.   An unsuccessful trial strategy, however, is not per se one in the same with constitutionally deficient representation.  “It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved 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 ․ [T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment ․ It is well established that [a] reviewing court must view counsel's conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time.”  (Citations omitted;  internal quotation marks omitted.)  Boyd v. Commissioner of Correction, 130 Conn.App. 291, 297–98, 21 A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011).

In the present case, the court finds that Attorney Pattis' strategy, although ultimately unsuccessful, was not unreasonable, nor did his approach lack the reasonable level of competence and preparation that one would expect from a criminal defense attorney under similar circumstances.  Strickland v. Washington, supra, 466 U.S. 689.   As such, the petitioner's claim fails, so there is no need for the court to address whether he was prejudiced by the lack of expert testimony on this issue.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

Finally, the petitioner also makes a claim of ineffective assistance against his appellate counsel, Attorney Mark Rademacher.   The petitioner's claim is that Attorney Rademacher failed to challenge the trial court's ruling on a motion in limine by the State which prohibited defense counsel from introducing a written reprimand into evidence that Sgt. Dingwall received in 1998 for violation of the Middletown Police Department's high speed pursuit policy.   The petitioner, however, has failed to prove that Attorney Rademacher provided constitutionally deficient performance.

By way of background, petitioner's defense counsel called the Chief of the Middletown Police Department to the stand as a defense witness and attempted to introduce evidence about the policies and procedures in place at the time of this incident for high speed pursuits and, of relevance to this claim, a specific reprimand Sgt. Dingwall received for violation of those policies and procedures during a pursuit in 1998.¹⁷  Following a hearing, and reviewing the specifics of the reprimand in camera, the court sustained the State's objection to the proposed evidence on relevance grounds.¹⁸

“When a claim of ineffective assistance of counsel is based on failure to raise viable issues, the [habeas] court must examine the trial court record to determine whether appellate counsel failed to present significant and obvious issues on appeal.   Significant issues which could have been raised should then be compared to those which were raised.   Generally, only when ignored issues are clearly stronger than those presented will the presumption of effective assistance of counsel be overcome.”  (Internal quotation marks omitted.)   Fernandes v. Warden, Superior Court, Judicial District of Tolland, Docket No. CV 11–4004019 (January 30 2012, Cobb, J.), citing Gray v. Greer, 800 F.2d 644 (7 Cir.1985).  “It is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the Sixth Amendment ․ A reviewing court must be highly deferential to counsel's decision and judge the action from counsel's perspective at the time.”  (Citations omitted;  internal quotation marks omitted.)  Valeriano v. Bronson, 209 Conn. 75, 87, 546 A.2d 1380 (1988).  “[The] task here is to decide whether the decision not to appeal the [particular issue being complained of] fell below the reasonabl[e] competen[ce] or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.”  (Internal quotation marks omitted.)  Id., 88.   The strategic decision to abandon weaker arguments in favor of stronger ones “was given great weight by the United States Supreme Court in Jones v. Barnes [463 U.S. 745, 751–52, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) ], where it said:  Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues ․ [T]here can hardly be a question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review ․ A brief that raises every colorable issue runs the risk of burying good arguments ․ in a verbal mound made up of strong and weak contentions.”  (Citations omitted;  internal quotation marks omitted.)  Valeriano v. Bronson, supra, 209 Conn. 89.

The petitioner has failed to prove that Attorney Rademacher's representation fell below constitutionally reasonable standards.   Attorney Rademacher testified about his consideration of the issues in this case and stated that he raised the issues he believed would give the petitioner the best chance of success on appeal, and which attacked those charges for which he received the longest sentences, and the petitioner has presented no evidence to bring his knowledge of the law, the way he conducted his research, or the reasonableness of his decisions on which issues to raise into question.  Valeriano v. Bronson, supra, 209 Conn. 88.   As such, the petitioner has failed to prove that counsel's performance fell below constitutionally recognized standards, so it is not necessary to address the matter of prejudice.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783 (petitioner must prove deficient performance and prejudice conjunctively).

III. Conclusion

Based on the foregoing, the petition for writ of habeas corpus is DENIED.

If either party wishes to appeal this ruling, then counsel shall prepare and submit a judgment file to the clerk within thirty (30) days.   All other necessary appellate forms shall be filed within the time-frames set forth in applicable Practice Book and/or statutory sections.

Hon. John M. Newson

FOOTNOTES

FN1. The jury convicted the petitioner of larceny in the third degree in violation of General Statutes §§ 53a–124(a)(2) and 53a–119, attempt to commit larceny in the third degree in violation of General Statutes §§ 53a–49(a), 53a–124(a)(2) and 53a–119, conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a–48(a) and 53a–103, conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53a–48(a) and 53a–124, disregarding an officer's signal by engaging an officer in a pursuit resulting in death in violation of General Statutes § 14–223(b), interfering with an officer in violation of General Statutes § 53a–167a(a), attempt to commit assault of a peace officer in violation of General Statutes §§ 53a–49(a)(2) and 53a–167c(a)(1), criminal mischief in the first degree in violation of General Statutes § 53a–115(a)(1), misconduct with a motor vehicle in violation of General Statutes § 53a–57, reckless driving in violation of General Statutes § 14–222 and engaging an officer in pursuit in violation of General Statutes § 14–223(b).  State v. Browne, supra, 84 Conn.App. 354, n.1..  FN1. The jury convicted the petitioner of larceny in the third degree in violation of General Statutes §§ 53a–124(a)(2) and 53a–119, attempt to commit larceny in the third degree in violation of General Statutes §§ 53a–49(a), 53a–124(a)(2) and 53a–119, conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a–48(a) and 53a–103, conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53a–48(a) and 53a–124, disregarding an officer's signal by engaging an officer in a pursuit resulting in death in violation of General Statutes § 14–223(b), interfering with an officer in violation of General Statutes § 53a–167a(a), attempt to commit assault of a peace officer in violation of General Statutes §§ 53a–49(a)(2) and 53a–167c(a)(1), criminal mischief in the first degree in violation of General Statutes § 53a–115(a)(1), misconduct with a motor vehicle in violation of General Statutes § 53a–57, reckless driving in violation of General Statutes § 14–222 and engaging an officer in pursuit in violation of General Statutes § 14–223(b).  State v. Browne, supra, 84 Conn.App. 354, n.1.

FN2. Consolidated with this matter is also an earlier petition filed on April 9, 2003 challenging the same convictions..  FN2. Consolidated with this matter is also an earlier petition filed on April 9, 2003 challenging the same convictions.

FN3. When cross examining Sgt. Clanford Pierce of the State Police, Attorney Pattis was able to secure the following admissions:Q: You were about a hundred feet behind Sergeant Dingwall's cruiser when he lost control of it?A: Yes ․Q: You saw no evasive action on the red part—on the part of the red car.   You didn't see it swerving from lane to lane or attempting to hit a trooper's vehicle at any point did you?A: No ․Q: And during that entire period of time [while pursuing the petitioner's vehicle before the crash], you never saw the red car collide with the police cruiser?A: No.Q: In fairness, you never saw a cruiser collide with the red car?A: NoQ: You didn't see the red car swerving from lane to lane?A: No.Q: You didn't see the police car swerving from lane to lane?A: No.Exhibit C, Transcript of 12/12/01, pp. 174, ln. 25—pp. 176..  FN3. When cross examining Sgt. Clanford Pierce of the State Police, Attorney Pattis was able to secure the following admissions:Q: You were about a hundred feet behind Sergeant Dingwall's cruiser when he lost control of it?A: Yes ․Q: You saw no evasive action on the red part—on the part of the red car.   You didn't see it swerving from lane to lane or attempting to hit a trooper's vehicle at any point did you?A: No ․Q: And during that entire period of time [while pursuing the petitioner's vehicle before the crash], you never saw the red car collide with the police cruiser?A: No.Q: In fairness, you never saw a cruiser collide with the red car?A: NoQ: You didn't see the red car swerving from lane to lane?A: No.Q: You didn't see the police car swerving from lane to lane?A: No.Exhibit C, Transcript of 12/12/01, pp. 174, ln. 25—pp. 176.

FN4. During the cross examination of Thomas Lillis of the Essex Police Department, Attorney Pattis was able to secure the following admissions:Q: And you saw no collision between the vehicles.   Right?A: No. I did not see any.Q: You didn't see any police car swerve into Mr.—or into the red vehicle.   Fair enough.A: I did not see anything.Q: You didn't see the red vehicle swerve into any police cars?A: No, sir.Q: And in those instantaneous moments before the crash [of Sgt. Dingwall's cruiser], you didn't see anyone apply their brakes?A: No.Exhibit D, Transcript of 12/13/01, pp. 86..  FN4. During the cross examination of Thomas Lillis of the Essex Police Department, Attorney Pattis was able to secure the following admissions:Q: And you saw no collision between the vehicles.   Right?A: No. I did not see any.Q: You didn't see any police car swerve into Mr.—or into the red vehicle.   Fair enough.A: I did not see anything.Q: You didn't see the red vehicle swerve into any police cars?A: No, sir.Q: And in those instantaneous moments before the crash [of Sgt. Dingwall's cruiser], you didn't see anyone apply their brakes?A: No.Exhibit D, Transcript of 12/13/01, pp. 86.

FN5. Exhibit E, Transcript of 12/17/01, Cross examination of Sgt. Joe Fontanella, State Police, pp. 193..  FN5. Exhibit E, Transcript of 12/17/01, Cross examination of Sgt. Joe Fontanella, State Police, pp. 193.

FN6. Exhibit E, pp. 212, ln. 9–26..  FN6. Exhibit E, pp. 212, ln. 9–26.

FN7. Exhibit E, pp. 216..  FN7. Exhibit E, pp. 216.

FN8. Exhibit E, pp. 226..  FN8. Exhibit E, pp. 226.

FN9. Exhibit F, Transcript of 12/18/01, pp. 13–14..  FN9. Exhibit F, Transcript of 12/18/01, pp. 13–14.

FN10. Exhibit F, pp. 68..  FN10. Exhibit F, pp. 68.

FN11. Exhibit F, pp. 75..  FN11. Exhibit F, pp. 75.

FN12. Exhibit F, pp. 82–85..  FN12. Exhibit F, pp. 82–85.

FN13. The relevant portion of the petitioner's statement, which was read into the record went as follows:  “As we continued down the highway, I was traveling in the left lane.   It appeared that the Middletown cop was trying to get ahead of me.   I swerved to the right so the cop could not get ahead of me.   At this point, the police car swerved and began to spin out.   I saw through the rearview window that the police car went out of control and saw a lot of snow flying in the air.”   Exhibit H, Transcript of 12/20/2001, pp. 223, ln. 3–10..  FN13. The relevant portion of the petitioner's statement, which was read into the record went as follows:  “As we continued down the highway, I was traveling in the left lane.   It appeared that the Middletown cop was trying to get ahead of me.   I swerved to the right so the cop could not get ahead of me.   At this point, the police car swerved and began to spin out.   I saw through the rearview window that the police car went out of control and saw a lot of snow flying in the air.”   Exhibit H, Transcript of 12/20/2001, pp. 223, ln. 3–10.

FN14. The instruction given to the jury on value went as follows:  “The law sets forth the standard you are to use in considering the value of the property or service involved.   Here it's property.  ‘Value’ means the market value of the property at the time and place of the crime.  ‘Market value’ means the price that would, in all probability, result from fair negotiations between willing buyers and sellers at the time and place of the crime.   The probability being based upon the evidence in this case.   You're not to consider the value of the property to the owner ․ If you can determine the price the property sold for at the time of the crime, then it is a controlling value.   If the market value cannot be determined, then you should consider the replacement cost of the goods or services with [in] any reasonable time after the crime.”   Exhibit J, Transcript of 1/3/2002, pp. 128–29..  FN14. The instruction given to the jury on value went as follows:  “The law sets forth the standard you are to use in considering the value of the property or service involved.   Here it's property.  ‘Value’ means the market value of the property at the time and place of the crime.  ‘Market value’ means the price that would, in all probability, result from fair negotiations between willing buyers and sellers at the time and place of the crime.   The probability being based upon the evidence in this case.   You're not to consider the value of the property to the owner ․ If you can determine the price the property sold for at the time of the crime, then it is a controlling value.   If the market value cannot be determined, then you should consider the replacement cost of the goods or services with [in] any reasonable time after the crime.”   Exhibit J, Transcript of 1/3/2002, pp. 128–29.

FN15. Exhibit I, Transcript of 1/2/2002, pp. 16–37..  FN15. Exhibit I, Transcript of 1/2/2002, pp. 16–37.

FN16. “THE COURT:  Well, as I indicated, it is far from perfect and it certainly is a risk the state is taking.   But, it's my call at this point and as you indicated, a phrase that you have used ad nausea, and there's one I've used a lot and other judges use and many times it goes to the weight, not its admissibility.   So, I guess I'm going to reiterate the phrase.   As I said, I'm a little uncomfortable with it.   But, I do think based on our case law, the victim can give his opinion.   He's basing it on going to stores.   It is far from perfect.   I think it is subject to cross-examination, obviously.   So, I'm going to overrule the objection.”   Exhibit I, pp. 35, ln. 14–25..  FN16. “THE COURT:  Well, as I indicated, it is far from perfect and it certainly is a risk the state is taking.   But, it's my call at this point and as you indicated, a phrase that you have used ad nausea, and there's one I've used a lot and other judges use and many times it goes to the weight, not its admissibility.   So, I guess I'm going to reiterate the phrase.   As I said, I'm a little uncomfortable with it.   But, I do think based on our case law, the victim can give his opinion.   He's basing it on going to stores.   It is far from perfect.   I think it is subject to cross-examination, obviously.   So, I'm going to overrule the objection.”   Exhibit I, pp. 35, ln. 14–25.

FN17. On 11/23/98, Sgt. Dingwall received a written verbal warning for violation of Middletown pursuit policies for engaging in a high speed pursuit of a misdemeanor suspect that started in Middletown and ended in New Haven, thus, reads the reprimand, compromising the safety of other officers, due to the distance and high speeds of the pursuit..  FN17. On 11/23/98, Sgt. Dingwall received a written verbal warning for violation of Middletown pursuit policies for engaging in a high speed pursuit of a misdemeanor suspect that started in Middletown and ended in New Haven, thus, reads the reprimand, compromising the safety of other officers, due to the distance and high speeds of the pursuit.

FN18. Exhibit I, Transcript of 1/2/2002, pp. 122..  FN18. Exhibit I, Transcript of 1/2/2002, pp. 122.

Newson, John M., J.