136711 v. Warden (2013)

MEMORANDUM OF DECISION

The petitioner, Larry Davis, brings this petition for a writ of habeas corpus claiming that his trial counsel was ineffective and that his right to due process was violated.   The petitioner seeks to have this court vacate the judgments of conviction and order a new trial.   Based upon the credible evidence presented, the court finds the issues for the respondent and denies the petition.

The petitioner was charged with numerous offenses in five separate cases in the judicial district of New Haven.   The state sought to have all five cases consolidated for trial over the petitioner's objection.   The trial court granted the state's motion in part and permitted a consolidated trial as to four of the five cases.

The petitioner proceeded to trial before a jury on three of the four cases.   In the first case (Standberry case), docket number CR00–0490576, the petitioner was charged in a two-part substitute information with assault in the first degree in violation of General Statutes §§ 53a–8(a) and 53a–59(a)(5), carrying a pistol without a permit in violation of General Statutes § 29–35, criminal possession of a firearm in violation of General Statutes § 53a–217, failure to appear in the first degree in violation of General Statutes § 53a–172 and, in a Part B information, being a persistent dangerous felony offender in violation of General Statutes § 53a–40(a) and (f).  In the second case (Smith case), docket number CR03–0024537, the petitioner was charged with robbery in the first degree in violation of General Statutes § 53a–134(a)(4), larceny in the second degree in violation of General Statutes § 53a–123(a)(3) and, in a Part B information, being a persistent dangerous felony offender in violation of General Statutes § 53a–40(a) and (h).  In the third case (Hughes case), the petitioner was charged with burglary in the second degree in violation of General Statutes § 53a–102(a)(2), robbery in the first degree in violation of General Statutes § 53a–134(a)(4) and larceny in the second degree in violation of General Statutes § 53a–123(a)(3).   In the fourth case, docket number CR91–0345579, which was tried to the court, the petitioner was charged with three counts of violation of probation in violation of General Statutes § 53a–32.

After a trial to the jury, the petitioner was convicted of all charges in both the Standberry and Smith cases but was acquitted of the charges in the Hughes case.   The Part B informations were then tried to the jury, which returned guilty verdicts on the two charges of the petitioner being a persistent dangerous felony offender.   Additionally, the court found that the petitioner had violated the terms of his probation.   On August 6, 2004, the petitioner was sentenced to a total effective sentence of eighty (80) years to serve.

The petitioner appealed from the judgments of conviction, which were affirmed by the Appellate Court.  State v. Davis, 98 Conn.App. 608, 911 A.2d 753 (2006).   The petitioner filed a petition for certification to appeal with the Supreme Court, which was granted as to whether the Appellate Court properly concluded that the petitioner's right to a fair trial was prejudiced by the trial court's consolidation for trial of three separate informations.  State v. Davis, 281 Conn. 915, 917 A.2d 999 (2007).   The Supreme Court affirmed the judgment of the Appellate Court.  State v. Davis, 286 Conn. 17, 942 A.2d 373 (2008).

The Supreme Court's decision restates the following facts that could have reasonably been found by the jury:

The jury reasonably could have found the following facts, as summarized in part by the Appellate Court, with respect to the offenses charged in the Standberry information.  “In September 1998, the first victim, [Standberry], had been introduced to the defendant by her best friend, Taraneisha Brown.   Brown and the defendant were involved in a personal relationship.   On September 27, 1998, Standberry asked Brown for payment toward a substantial debt owed by Brown.   Brown replied that she would return Standberry's telephone call but never did.

“The next day, the defendant received a telephone call in the afternoon and left work early.   On the evening of September 28, 1998, Standberry parked her vehicle in the Pro Park parking lot located near Yale–New Haven Hospital (hospital), where she was employed in the food and nutrition department.   Brown knew that Standberry parked in that particular lot when working at the hospital.   Standberry left the hospital carrying a plate of food at approximately 9:25 p.m. and went to her vehicle.   As she was placing the food in her vehicle, she observed an individual approach.   She attempted to close her door, but it was forced open.   The defendant came up to Standberry, said ‘revenge,’ and shot her several times before slowly walking away.”   Despite severe physical injuries, Standberry was able to drive her vehicle, with the driver side door open and her injured leg hanging outside of the vehicle, to the entrance of the children's hospital.   An ambulance was summoned and Standberry was rushed to the emergency room, where she underwent several surgeries.   Standberry testified that a cadaver bone was inserted in her shoulder to repair bone loss and nerve damage, and that two bullets remain in her body, one in her hip and one in her knee.

The jury reasonably could have found the following facts, as summarized by the Appellate Court, with respect to the offenses charged in the Smith information.  “The second victim, [Smith], was at a club in New Haven on January 25, 2002.   After speaking with the defendant for approximately twenty minutes, he left at 2 a.m. The defendant stopped Smith in the parking lot and asked for a ride to Sheffield Street.   Smith agreed, and the defendant and his friend entered Smith's vehicle.   After arriving, the defendant asked Smith to drive them to Carmel Street, where an individual known as ‘Mizzy’ owed him money.   After Smith drove to the bottom of a hill, the defendant took out a gun and threatened him.   Smith continued on to Carmel Street and parked.   The defendant placed his gun against Smith's head and demanded money.   Smith gave the defendant his wallet and told him that he could get more from an automated teller machine.   Smith drove to a nearby bank and, after parking, fled to a nearby gas station.   Smith telephoned the police and showed them the bank parking lot where he had left his vehicle.   The police recovered Smith's vehicle approximately one week later.”

Lastly, “[a] summary of the evidence presented against the defendant with respect to [the Hughes information] is necessary for our discussion.   There was evidence presented that Hughes was the superintendent of a building at 260 Dwight Street in New Haven.   During the early morning of March 13, 2002, the defendant rang Hughes' doorbell and said he was there to pick up items that an individual known as ‘Magnetic’ had left for him.   These items included a motor vehicle, a safe, a bulletproof vest and 2.5 kilograms of cocaine.   The defendant entered the apartment, pointed a gun at Hughes and ordered him to turn over the requested items.   The defendant took the keys to the motor vehicle and specifically asked for the cocaine.   Hughes responded that there was no cocaine in the apartment.   After being told to get on his knees, Hughes indicated that he would give the defendant the cocaine.   The two men walked into a storage area, and Hughes managed to duck behind a steel door, escape through a window and flee to a nearby hotel.   Hughes reported the incident to the police, who searched for the defendant, but were unable to locate him.   Later that day, police officers recovered Hughes' motor vehicle.”

State v. Davis, supra, 286 Conn. 25–26 (internal citations and footnote omitted).

The petitioner filed this habeas petition on May 22, 2008.   In the amended petition, the petitioner's primary claim is that his trial counsel was ineffective.   The respondent's return denies the petitioner's material allegations and asserts as defenses both procedural default and res judicata.   The petitioner filed a reply which denied these defenses.

The matter was tried before this court on November 21 and 22, 2011,¹ and January 30 and April 3, 2012.   The petitioner testified and called as witnesses Lieutenant Roger Young, Detective James Naccarato, Diane McKinnie, Lenwood Smith, Officer David Stephens, Dr. Jennifer Dysart, petitioner's expert on eyewitness identification, Attorney Robert Berke, petitioner's trial counsel, Detective Edwin Rodriguez, and Victoria Standberry.   The petitioner also entered numerous documents into evidence, and the respondent entered three transcripts and the record from the criminal proceedings into evidence.   The parties filed post-trial briefs.²

Relevant facts will be discussed below as necessary.

DISCUSSION

“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).”  (Citations omitted.)  Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

To establish a claim of ineffective assistance of trial counsel, the petitioner has the burden to establish that “(1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.”  (Internal quotation marks omitted;  emphasis in original.)  Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. 688, 694.  “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 Sixth Amendment.’  “ Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 687.   It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action.   Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment, and as a result, he was deprived of a fair trial.  Harris v. Commissioner of Correction, 107 Conn.App. 833, 845–46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).

Under the second prong of the test, the prejudice prong, the petitioner must show that “counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial the result of which is reliable.”  (Internal quotation marks omitted.)  Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012).

When assessing trial counsel's performance, the habeas court is required to “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ․” Strickland v. Washington, supra, 466 U.S. 689.   The United States Supreme Court explained:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.   Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy ․ There are countless ways to provide effective assistance in any given case.   Even the best criminal defense attorneys would not defend a particular client in the same way.

(Citation omitted.)  Id., 689.

Ultimately, “[t]he 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.”  Strickland v. Washington, supra, 466 U.S. 686.

“[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies ․ If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ․ that course should be followed.”  Aillon v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989), citing and quoting Strickland v. Washington, supra, 466 U.S. 697;  King v. Commissioner of Correction, 73 Conn.App. 600, 602–03, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003) (“Because both prongs of the Strickland test must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong”).

1. Expert Witness Regarding Eyewitness Identification

The petitioner alleges that trial counsel, Attorney Robert Berke, was ineffective for failing to retain and use an expert on eyewitness identification.   Such an expert, according to the petitioner, would have analyzed the statements and circumstances, as well as review the identification issues of the identifications by Standberry, Hughes and Smith, the victims in the three cases tried to the jury.   The court rejects this claim.

The Appellate Court has recently reiterated “that there is no per se rule that requires a trial attorney to seek out an expert witness.”  Stephen S. v. Commissioner of Correction, 134 Conn.App. 801, 811, 40 A.3d 796, cert. denied, 304 Conn. 932, 43 A.3d 660 (2012).  “In Peruccio v. Commissioner of Correction, 107 Conn.App. 66, 943 A.2d 1148, cert. denied, 287 Conn. 920, 951 A.2d 569 (2008), however, [the Appellate Court] noted that in some cases, ‘the failure to use any expert can result in a determination that a criminal defendant was denied the effective assistance of counsel.’  Id., 76.”   Stephen S. v. Commissioner of Correction, supra, 134 Conn.App. 811.   However, the decision to call any witness, including an expert 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.)  Eastwood v. Commissioner of Correction, 114 Conn.App. 471, 481, 969 A.2d 860, cert. denied, 292 Conn. 918, 973 A.2d 1275 (2009);  see also Harris v. Commissioner of Correction, 134 Conn.App. 44, 57–58, 37 A.3d 802, cert. denied, 304 Conn. 919, 41 A.3d 306 (2012) (failure to call expert regarding a child's competency to testify not error where no evidence expert testimony would have weakened the child's testimony).  “[Expert testimony] is required only when the question involved goes beyond the field of ordinary knowledge and experience of the trier of fact.”  (Internal quotation marks omitted.)  State v. Padua, 273 Conn. 138, 149, 869 A.2d 192 (2005).

Since the petitioner's trial, the law on presenting expert witnesses on eyewitness identifications has changed.   At the time of the petitioner's trial in 2004, experts on eyewitness identifications were not generally admissible at trial, and in fact, were disfavored by our courts.   When this case was tried, the two key cases on expert testimony on eyewitness identification testimony were State v. Kemp, 199 Conn. 473, 475–79, 507 A.2d 1387 (1986), and State v. McClendon, 248 Conn. 572, 730 A.2d 1107 (1999).   Under those cases, it was determined that the reliability of eyewitness identifications was generally within the knowledge of jurors and expert testimony would not generally assist jurors in determining the issue of identification.   In Kemp, the Supreme Court stated:  “[s]uch testimony is ․ disfavored because ․ it invades the province of the jury to determine what weight or effect it wishes to give to eyewitness testimony.”  (Internal quotation marks omitted.)  State v. Kemp, supra, 477.

The Supreme Court has since reversed its holdings in Kemp and McClendon in State v. Guilbert, 306 Conn. 218, 49 A.3d 705 (2012).   In Guilbert, the Supreme Court assessed the science of eyewitness identifications and the law on its admissibility over the years and concluded that:  “Kemp and McClendon are out of step with the widespread judicial recognition that eyewitness identifications are potentially unreliable in a variety of ways unknown to the average juror.   This broad based judicial recognition tracks a near perfect scientific consensus.   The extensive and comprehensive scientific research, as reflected in hundreds of peer reviewed studies and meta-analyses, convincingly demonstrates the fallibility of eyewitness identification testimony and pinpoints an array of variables that are most likely to lead to mistaken identification.”  State v. Guilbert, supra, 306 Conn. 234–36.   Also, although in 2004, cross examination and closing argument were generally considered adequate methods to address the unreliability of eyewitness identifications, these suppositions were also questioned in Guilbert.   Id. (“federal and state courts around the country have recognized that the methods traditionally employed for alerting juries to the fallibility of eyewitness identifications—cross-examination, closing argument, and generalized jury instructions on the subject—frequently are not adequate to inform them of the factors affecting the reliability of such identifications”).

However, despite the change in the law since 2004 when this case is tried, the reasonableness of counsel's conduct for purposes of determining if counsel's performance was deficient must be evaluated based on the state of the law at the time the trial was conducted.  Strickland v. Washington, supra, 466 U.S. 689 (“[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”);  Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172–73, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).   The Supreme Court has stated that attorneys are not required to anticipate changes in the law or seek to change existing law in order to provide effective assistance in a criminal trial.  Velasco v. Commissioner of Correction, supra, 173;  Ledbetter v. Commissioner of Correction, supra, 275 Conn. 461.  “Counsel instead performs effectively when he elects to maneuver within the existing law ․” Ledbetter v. Commissioner of Correction, 275 Conn. 451, 461–62, 880 A.2d 160 (2005), cert. denied sub nom.   Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006).

Even in both Guilbert and Williams, the court deemed it a factor as to the eyewitness was familiar with the perpetrator prior to the crime.  State v. Guilbert, supra, 306 Conn. 261;  State v. Williams, supra, 146 Conn.App. 139.

Attorney Berke was aware in 2004 of the status of the law controlling the use of expert witnesses on eyewitness identification.   He did not retain or use such an expert because he did not think it would be persuasive, even if admitted by the trial court in its discretion, and instead used cross examination to underscore inconsistencies in eyewitness statements and testimony.

Both witnesses knew or were familiar with the petitioner at the time of the incidents.   The victim, Standberry had met the petitioner at her friend Taraneisha Brown's house a week or two before the shooting and spoke with him for five to ten minutes.   The victim, Smith, met the petitioner at a club, where he thought the petitioner was familiar and then spoke with him for approximately twenty minutes before he and the petitioner left the club and got in Smith's car.   The admission of expert testimony on eyewitness identification would be decided by the trial court after taking into consideration Standberry's and Smith's familiarity with the petitioner and support the preclusion of such expert testimony.  State v. Guilbert, supra, 306 Conn. 261;  State v. Williams, supra, 146 Conn.App. 139;  State v. Sanchez, 128 Conn.App. 1, 9–10, 15 A.3d 1182 (2011) (victim over the course of several hours had opportunity to view perpetrator prior to offense;  trial court's denial of motion to suppress identification affirmed), aff'd, 308 Conn. 64, 60 A.3d 271 (2013).

The petitioner has not proved that trial counsel's failure to present an expert witness at trial was deficient in view of the law on the admissibility of expert testimony in 2004.   In addition, given that the law disfavored expert testimony at the time of the petitioner's trial, the petitioner has not proved that had trial counsel attempted to call an expert witness at trial, the court was likely to have admitted such testimony.   Furthermore, given the circumstances of the identifications in this case, and that the victims were familiar with the petitioner, the petitioner has not proved that such testimony would have altered the result of the trial.   See Velasco v. Commissioner of Correction, supra, 119 Conn.App. 173–74.

The petitioner has, therefore, failed to establish either prong of the Strickland test.

2. Failure to File Motion to Suppress

The petitioner next claims that trial counsel was ineffective in failing to move to suppress the photo array identifications by the victims, as well as challenge the methods employed by the police to identify him in the Standberry, Hughes and Smith cases.   The petitioner has failed to show that Attorney Berke was ineffective.

“To prevail on a motion to suppress a pretrial identification, a defendant must prevail on a two-pronged inquiry.  ‘[F]irst, it must be determined whether the identification procedure was unnecessarily suggestive;  and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances ․ An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification ․ The defendant bears the burden of proving both that the identification procedures were unnecessarily suggestive and that the resulting identification was unreliable.’  (Internal quotation marks omitted.)  State v. Bell, 93 Conn.App. 650, 660, 891 A.2d 9, cert. denied, 277 Conn. 933, 896 A.2d 101 (2006).”  Velasco v. Commissioner of Correction, supra, 119 Conn.App. 170–71.

Habeas courts have found that a decision not to move to suppress but to seek to discredit identification through cross examination may be a sound tactical decision.   See, e.g., Williams v. Bronson, 21 Conn.App. 260, 266, 573 A.2d 330 (1990).  “Whether to afford a witness an opportunity to rehearse his testimony at a suppression hearing, especially when the prospects of suppression are negligible, is very much a tactical decision, not easily characterized as ineffective assistance of counsel.”  Id., 266.   To establish prejudice on this claim the petitioner must prove that that there was a reasonable probability that the trial court would have granted a motion to suppress the identifications.  Velasco v. Commissioner, supra, 119 Conn.App. 170.

Attorney Berke filed a motion to suppress the identifications, but later withdrew it after consulting with the petitioner.   Attorney Berke explained in the underlying criminal proceeding that:  “There was a motion that I had previously filed to suppress the photo arrays, and although it was discussed in chambers and I did discuss it with Mr. Davis, I would just like to put on the record that after a discussion that we had over the past two days, Mr. Davis and I, are withdrawing that motion to suppress for a number of reasons, which I would not prefer to place on the record, but nevertheless I believe Mr. Davis is doing it based upon initially my advice, and secondly because he understands the risks of proceeding, so we are not proceeding with that motion.”

The petitioner's claim that the photo array procedures used by the police were unnecessarily suggestive in large measure incorporates his claim that trial counsel failed to use an expert witness.   This issue has been rejected for the reasons stated above.

The petitioner also faults counsel for not challenging the police's use of a simultaneous photo array instead of sequential photo array, the police not using a “double-blind” identification procedure, as well as the form used by police not containing a line that eyewitnesses could indicate that the perpetrator was not included in the array.

The Supreme Court in State v. Marquez, supra, 291 Conn. 154, stated that “although the scientific community recommends the use of a double-blind identification procedure, and such a procedure has intuitive appeal, we never have held that the failure to use such a procedure carries such a substantial risk of misidentification that its use must be required to avoid unnecessary suggestiveness.”  (Emphasis in original.)   Thus, there was no requirement for the police to use a double-blind identification procedure when investigating the petitioner's underlying offenses.   Such procedures were unlikely necessary to make a substantial difference in this case as the victims knew or were familiar with the petitioner.

Attorney Berke's conduct is strongly presumed to fall within the wide range of reasonable professional assistance.  Strickland v. Washington, supra, 466 U.S. 689.   The decision to withdraw the motion to suppress, after extensive consultations with the petitioner, was a tactical decision by Attorney Berke that this court will not second guess in the absence of evidence showing the tactical decision had no reasonable basis.  Lewis v. Commissioner of Correction, 89 Conn.App. 850, 868, 877 A.2d 11 (habeas court will not second-guess tactical decisions made in exercise of professional judgment), cert. denied, 275 Conn. 905, 882 A.2d 672 (2005).   Thus, petitioner has not overcome that strong presumption by affirmatively proving counsel's performance was deficient.   Nor has the petitioner established that had he pursued the motion to suppress the identification evidence he would have prevailed.   See Velasco v. Commissioner of Correction, supra, 119 Conn.App. 170–71.

Accordingly, this claim is denied.

3. Failures Related to Detective Rodriguez

The petitioner claims that Attorney Berke failed to adequately investigate and examine Detective Rodriguez about his pattern and practice of investigative misconduct in other cases.   The court concludes that the petitioner has failed to show Attorney Berke was ineffective.

“ ‘The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.’  ․ Tatum v. Commissioner of Correction, 66 Conn.App. 61, 66, 783 A.2d 1151, cert. denied, 258 Conn. 937, 785 A.2d 232 (2001);  see also Nieves v. Commissioner of Correction, 51 Conn.App. 615, 624, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999).  ‘The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner.’   Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001).”  Norton v. Commissioner of Correction, 132 Conn.App. 850, 858–59, 33 A.3d 819, cert. denied, 303 Conn. 936, 36 A.3d 695 (2012).

The court finds the following facts relevant to these claims.

Detective Rodriguez prepared a supplementary police report in the Standberry case dated October 2, 1998.   The report contains the following narrative:

On September 29, 1998, at approximately 10:00 a.m., this writer spoke with Diane McKinney regarding the shooting of Victoria Standberry.   Diane stated that on aforementioned date she spoke with Victoria over the phone and that she told her the reason she was shot was because her daughter's [i.e., Taraneisha Brown] vehicle was broken into.   Diane stated that her daughter, Tara, was told by neighbors that they [had] seen Victoria['s] vehicle flee the seen [sic] the day her vehicle was broken into.

Diane also stated that Tara had borrowed $600.00, from Victoria and that she was late in paying her back.   Diane believes that Tara['s] boyfriend, Larry Davis, is the cause of all the problems between Victoria and Tara.

During the pendency of the criminal case, Attorney Berke became aware that Detective Rodriguez's conduct in investigating other cases had been called into question.   Attorney Berke subpoenaed Detective Rodriguez's police personnel file.   Without objection by the state, Judge Licari conducted an in camera review of all subpoenaed documents to determine if there was any potential impeachment material contained therein.   Judge Licari concluded that two reports in the personnel file contained potential impeachment material and made those two reports available to the parties.

Attorney Berke used the information obtained from the disclosed documents to cross examine Detective Rodriguez about being disciplined and reprimanded for prompting a witness during a photo array identification.   The prosecutor then on redirect elicited that Detective Rodriguez had come to the state's attorney's office in 1997/1998 and 2001 to report potential misconduct by high level officials in the detective bureau, resulting in an investigation that led to the arrest of the chief of detectives.   The timing of the reprimand correlated with Detective Rodriguez's cooperation with the office of the state's attorney.

Both Attorney Berke and Detective Rodriguez testified at the habeas trial.   Their testimonies, whether viewed individually or combined, do not support the petitioner's contentions that Detective Rodriguez did anything improper while investigating the petitioner's case or that Attorney Berke failed to properly investigate and examine Detective Rodriguez regarding misconduct in other cases.

The petitioner presented testimony from Diane McKinnie, the petitioner's mother-in-law.   McKinnie denied telling police that she told the victim that she had been shot because her daughter's car had been vandalized, or that she was aware of any dispute between them.   The court does not credit Ms. McKinnie's testimony repudiating her comments to the police.

The petitioner has failed to establish that Detective Rodriguez did anything improper while investigating the case or that Attorney Berke was ineffective in his examination or investigation of Rodriquez.

Accordingly, these claims are denied.³

4. Examination of Standberry

The petitioner's final claim of deficient performance is that Attorney Berke failed at trial to examine Victoria Standberry “rigorously and to point out the numerous factual errors, logical inconsistencies, irrelevancies, and unusual background circumstances, with regard to her testimony and her identification of the [petitioner] in particular.”   The court rejects this claim.

“An attorney's line of questioning on examination of a witness clearly is tactical in nature.  [As such, this] court will not, in hindsight, second-guess counsel's trial strategy.”  State v. Drakeford, 63 Conn.App. 419, 427, 777 A.2d 202 (2001), aff'd, 261 Conn. 420, 802 A.2d 844 (2002).  “[C]ross examination is a sharp two-edged sword and more criminal cases are won by not cross examining adverse witnesses, or by a very selective and limited cross examination of such witnesses, than are ever won by demolishing a witness on cross examination.”  (Internal quotation marks omitted.)  State v. Clark, 170 Conn. 273, 287–88, 365 A.2d 1167 (1976).  “The fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance.”  Velasco v. Commissioner of Correction, supra, 119 Conn.App. 172.   An attorney's cross examination must fall below an objective standard of reasonableness to be considered deficient.  Duperry v. Solnit, 261 Conn. 309, 335–36, 803 A.2d 287 (2002).

Attorney Berke reasonably challenged the victim's credibility by questioning her about her use of different names (Standberry, Gibbs and Cannon), her ability to accurately recall and report facts surrounding the shooting and the petitioner's appearance, discrepancies between statements she gave to the police and her in-court testimony, her 1987 conviction for larceny in the second degree, her 1990 conviction under the name Victoria Cannon for larceny, and a separate incident where she was threatened by another individual with being shot.   A fair reading of the entire examination of Ms. Standberry conducted by Attorney Berke shows that it did not fall below an objective standard of reasonableness.

Thus, the petitioner has failed to prove this claim.

CONCLUSION

For all of the foregoing reasons, the petition is denied.   Judgment shall enter for the respondent.

So ordered.

Cobb, J.

FOOTNOTES

FN1. On November 11, 2011, the first day of trial, the court granted in part the respondent's motion to dismiss.   As a result, the claims asserted in paragraph H (prosecutorial misconduct) of the amended petition were dismissed, as well as the portions of paragraph J that pertained to the Hughes case due to the fact that the jury acquitted the petitioner on all charges in the Hughes case.   However, because the Hughes case was tried together with the two other cases, the court permitted the petitioner to present evidence pertaining to the Hughes case if it was relevant to the petitioner's claims in this case.   The court also dismissed any claims of ineffective assistance of counsel as they pertain to the Hughes case, again reserving decision on the relevancy of evidence from the representation in the Hughes case as it relates to the two other cases.   Lastly, the court dismissed any claims relating to the joinder of the criminal cases, as joinder issues were fully addressed on the petitioner's direct appeal..  FN1. On November 11, 2011, the first day of trial, the court granted in part the respondent's motion to dismiss.   As a result, the claims asserted in paragraph H (prosecutorial misconduct) of the amended petition were dismissed, as well as the portions of paragraph J that pertained to the Hughes case due to the fact that the jury acquitted the petitioner on all charges in the Hughes case.   However, because the Hughes case was tried together with the two other cases, the court permitted the petitioner to present evidence pertaining to the Hughes case if it was relevant to the petitioner's claims in this case.   The court also dismissed any claims of ineffective assistance of counsel as they pertain to the Hughes case, again reserving decision on the relevancy of evidence from the representation in the Hughes case as it relates to the two other cases.   Lastly, the court dismissed any claims relating to the joinder of the criminal cases, as joinder issues were fully addressed on the petitioner's direct appeal.

FN2. The briefing and decision in this case was significantly delayed due to petitioner's requests for habeas transcripts..  FN2. The briefing and decision in this case was significantly delayed due to petitioner's requests for habeas transcripts.

FN3. In his amended petition, the petitioner alleges that his right to due process was violated by Detective Rodriguez's improper conduct in this case and in particular, executing a false report.   The court has addressed and rejected this identical claim in the context of ineffective assistance of counsel.   The petitioner has not presented any credible evidence to substantiate his claim that the report is false or contains outright fabrications.   The petitioner also has not proven that the identifications were unduly suggestive and would have been suppressed.   Accordingly, this claim is denied..  FN3. In his amended petition, the petitioner alleges that his right to due process was violated by Detective Rodriguez's improper conduct in this case and in particular, executing a false report.   The court has addressed and rejected this identical claim in the context of ineffective assistance of counsel.   The petitioner has not presented any credible evidence to substantiate his claim that the report is false or contains outright fabrications.   The petitioner also has not proven that the identifications were unduly suggestive and would have been suppressed.   Accordingly, this claim is denied.

Cobb, Susan Quinn, J.