Opinion
No. CV 05 4000431 S
January 26, 2009
MEMORANDUM OF DECISION
The petitioner, Shawn Crocker, filed a petition for a writ of habeas corpus on April 9, 2005, challenging the legality of his detention. He was charged with murder in violation of General Statutes § 53a-54a, manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a, and criminal possession of a firearm in violation of General Statutes § 53a-217. His initial trial resulted in a mistrial on November 8, 1997, when the jury was unable to reach a unanimous verdict. He was convicted on retrial of all three counts, and the convictions were upheld on appeal. See State v. Crocker, 83 Conn.App. 615, 852 A.2d 762, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004). He was represented at the first criminal trial by attorney Michael Dolan, at the second trial by attorney Leo Ahern, and on appeal by attorney Adele Patterson.
The petitioner has previously filed a petition for a writ of habeas corpus challenging the effectiveness of his criminal trial counsel. The petition was denied by the court on March 23, 2005. See Crocker v. Commissioner of Correction, Superior Court, judicial district of Tolland at Somers, Docket No. CV 02 0815954 (March 23, 2005, Fuger, J.) He appealed the habeas court's decision, which was also affirmed by the Appellate Court. See Crocker v. Commissioner of Correction, 101 Conn.App. 133, 921 A.2d 928, cert. denied, 283 Conn. 905, 927 A.2d 916 (2007). He was represented throughout the first habeas proceedings by attorney Genevieve Salvatore and on appeal by attorney Joseph Jaumann.
On June 21, 2008, the petitioner filed a third amended petition in which he alleges that his previous habeas counsel, attorney Salvatore, was ineffective in failing to (1) challenge attorney Ahern's failure to object to the testimony of detective William Piascyk, who testified to the out-of-court identification of the petitioner by one Travis Jenkins, who was unavailable at the petitioner's second criminal trial, (2) challenge attorney Ahern's failure to object to the introduction into evidence of a map, the contents of which were supplied almost entirely by Jenkins, because Jenkins was unavailable to testify, (3) challenge attorney Ahern's failure to object to the admission of Tacuma Grear's 1998 taped statement under Whelan on the ground that the statement was unreliable in light of a prior statement made by Grear, (4) challenge attorney Ahern's failure to challenge the reliability of an identification made by George David Wright to the police, (5) challenge attorney Patterson's failure to adequately brief the issue of prosecutorial misconduct arising from comments made during closing, (6) raise the issue of prosecutorial misconduct for failure to disclose exculpatory impeachment evidence against Grear, (7) investigate Yvonne Tyson and her male friend, and (8) raise the issue of double jeopardy.
The respondent filed a return on August 30, 2007 in which he denied the claims of failure to investigate and failure to raise prosecutorial misconduct by attorney Salvatore. The respondent also asserted that the claims arising from attorney Ahern's representation were all addressed in the previous habeas trial, that the prosecutorial misconduct claim arising from closing arguments was already addressed at the previous habeas trial and on direct appeal, and that the claim of double jeopardy was procedurally defaulted and failed to state a cognizable claim.
The matter came before the court for a trial on the merits on March 13, 2008, April 29, 2008, June 24, 2008 and September 15, 2008. Testifying were the petitioner, attorney Salvatore, and Richard Pelletier, a detective involved in the investigation of the petitioner's criminal case and who testified at the criminal trial. Both parties submitted exhibits, consisting mostly of transcripts from the underlying criminal trials and exhibits therefrom as well as transcripts of the first habeas trial and the pleadings from the appellate proceedings. The court allowed post-trial briefs upon the request of the parties; the petitioner filed his on October 24, 2008. The respondent had until December 15, 2008 to file a reply brief, but opted instead to rest on the arguments contained in its pretrial brief.
FINDINGS OF FACTS
The following underlying facts are taken from the Appellate Court's opinion in State v. Crocker, supra, 83 Conn.App. 615: "The jury reasonably could have found the following facts. Shortly before 7:30 p.m. on October 27, 1997, George David Wright drove a stolen Jeep Cherokee to the Quinnipiac Terrace housing complex in New Haven, also known as `The Island.' The victim, Daryl Price, was in the passenger seat of the Jeep, and Calvin Taylor was seated in the back. At the housing complex, Wright and Taylor exited the vehicle, and Tacuma Grear approached the Jeep to talk to the victim. They talked about the killing of Grear's brother, Corey Grear, which had occurred approximately one week earlier, for which the victim had apologized. Corey Grear was a friend of the defendant, and the defendant had held him in his arms after Grear was fatally shot by the victim. The defendant had witnessed the victim shoot Corey Grear. Corey Grear was also a member, as was the defendant, of the Island Brothers, a street gang into which the victim had been introduced and sponsored by the defendant. As his sponsor, the defendant was responsible for disciplining the victim should the victim kill a fellow gang member.
As Tacuma Grear walked away from the Jeep, the defendant had come up to the driver's side of the Jeep carrying a handgun. He then leaned into the Jeep and fired four times into the vehicle. Two .45 caliber bullets hit the victim, killing him, and two other bullets were found in the Jeep." Id., 619.
Attorney Salvatore testified that she raised those issues she found to be most viable, favoring a "revolver" approach to a "shotgun" approach. She testified to having reviewed all available transcripts and evidence, and that the claims currently raised by the petitioner would not have been viable claims. She also testified that, ultimately, there were a number of overlapping and partially conflicting stories about what happened the day of the shooting, and that the jury simply decided which story to believe. The record bears out this conclusion. At least seven eyewitnesses testified, each with varying degrees of difference in their version of events; most of these witnesses also had given previous accounts in the form of police statements or sworn testimony that conflicted in some respects with their own testimony at trial.
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). 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; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203 (2008).
"The first part of the Strickland analysis requires the petitioner to establish that counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Andrades v. Commissioner of Correction, 108 Conn.App. 509, 512, 948 A.2d 365, cert. denied, 289 Conn. 906, 957 A.2d 868 (2008).
A. Ineffective assistance of attorney Ahern
The petitioner first attacks attorney Salvatore's failure to challenge attorney Ahern's failure to object to or prevent certain testimony or evidence from being admitted based on the fact that the sources of the testimony were unavailable for cross-examination or that the evidence was unreliable. The respondent counters that these claims were in fact addressed at the first habeas trial and, therefore, are successive and barred from consideration by this court. With respect to each of the claims arising from Ahern's representation, however, the petitioner has alleged that they were not raised at the first habeas trial due to attorney Salvatore's ineffective assistance. This presents a set of unique issues that were not adjudicated in the prior habeas — indeed, by their very nature, they could not have been — and are therefore not successive or barred by res judicata. In such a situation, "[a]lthough the petitioner must, by necessity, repeat his allegations of trial counsel's inadequacy, there may never have been a proper determination of that issue in the first habeas proceeding because of the allegedly incompetent habeas counsel. The claim of ineffective assistance of habeas counsel, when added to the claim of ineffective assistance of trial counsel, results in a different issue." (Internal quotation marks omitted.) Harris v. Commissioner of Correction, 108 Conn.App. 201, 207, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008), quoting CT Page 2346 Lozada v. Warden, 223 Conn. 834, 843-45, 613 A.2d 818 (1992). Therefore, this court must address the merits of the claims.
1. Identification of petitioner by Travis Jenkins
The petitioner first claims that attorney Salvatore was ineffective in failing to claim that attorney Ahern should have objected to the testimony of detective Piasczyk that included an out-of-court identification of the petitioner by Jenkins, when the issuance of both subpoenas and a capias were ineffective in obtaining Jenkins's presence in court and, therefore, he was unavailable to testify.
The petitioner argues that State v. Outlaw, 216 Conn. 492, 582 A.2d 751 (1990) would have prohibited the introduction of officer Piasczyk's testimony regarding Jenkins's identification of the petitioner as the shooter from a photographic array. In Outlaw, the State attempted to introduce, though the testimony of two police officers, the out-of-court identification of the petitioner by an unavailable witness. The court, distinguishing the case from that in State v. Townsend, 206 Conn. 621, 539 A.2d 114 (1988) and State v. McClendon, 199 Conn. 5, 505 A.2d 685 (1986), held that the introduction of the identifying witness's testimony from the probable cause hearing was not adequate opportunity for cross-examination and, therefore, did not meet the exception established by McClendon.
The facts in the present case differ from those in Outlaw, however. The witness in Outlaw was unavailable for trial, but had testified at the probable cause hearing in that case and the transcript of his testimony therein was admitted into evidence. The court reasoned that "we [do not] believe that Phillip's availability for cross-examination at the probable cause hearing renders the officers' testimony admissible under Townsend. A fundamental, and we think dispositive, difference between the facts of Townsend and those in the case at bar is that the state did not offer the officers' testimony at the probable cause hearing, at which Phillip testified so that he could have been cross-examined about his previous identification of the defendant from the photographic array." State v. Outlaw, supra, 216 Conn. 498. This language carries the implication that, had Phillip been presented with and cross-examined as to the identification at the probable cause hearing, the matter would have been decided differently. In the present case, Jenkins was presented at the first trial, the transcript of which was submitted at the second trial, with his identification of the petitioner and was cross-examined on this point by attorney Ahern. This is sufficient to satisfy the cross-examination requirements of McClendon. See State v. McClendon supra, 199 Conn. 11 ("We hereby hold that in situations such as this where the identifications were reliable and the witnesses were available for cross-examination an exception to the hearsay rule is warranted. As a result, we find that the trial court did not abuse its discretion in admitting the testimony in question").
The precise situation now presented, where the out-of-court identification of an unavailable witness is introduced at trial but where the witness has previously been examined and cross-examined as to the identification and the transcript of the latter proceeding is introduced, has not been addressed by the appellate authority of this state. Nevertheless, the language of Outlaw, which differs from the present case only insofar as the identifying witness was not examined with respect to the out-of-court identification in the proceeding the transcript of which was introduced at the criminal trial, strongly suggests that this difference is critical and dispositive of the inquiry. See State v. Outlaw, supra, 216 Conn. 498. If the prior testimony itself is admissible for substantive purposes, it stands to reason that the cross-examination regarding an out-of-court identification therein would be sufficient opportunity for a defendant to elicit any inconsistencies or sources of unreliability arising from the identification.
Moreover, although the Appellate Court declined to review the petitioner's claim on direct appeal that his attorney should have objected to the admission of Jenkins's prior trial testimony, it did note that "the defendant could have confronted and cross-examined Jenkins at the time the state wanted to call him to testify after it had rested its case, but, by successfully objecting, gave up that opportunity. The defendant now seeks a new trial because he did not cross-examine Jenkins. We would disagree. Our rules of procedure do not allow a defendant to pursue one course of action at trial and later, on appeal, argue that a path he rejected should be open to him. State v. Reynolds, 264 Conn. 1, 207, 836 A.2d 224 (2003), cert. denied, [ 541 U.S. 908,] 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004) . . ." (Citations omitted.) State v. Crocker, supra, 83 Conn.App. 655. Despite being a habeas claim rather than an appeal, the same reasoning applies: The defendant cannot object to a witness being called in one breath then claim he had an inadequate opportunity to cross-examine him the next. Therefore, the petitioner has failed to establish that his attorney's performance was deficient.
And as to the possible claim that Ahern was ineffective in objecting to the reopening of the state's case so that Jenkins could testify, this claim was addressed and denied in the first habeas trial. See Crocker v. Commissioner of Correction, supra, Docket No. CV 02 0815954 ("it is clear that Attorney Ahern had a legitimate and justifiable trial strategy when he objected to the state re-opening its case after it had rested to present the testimony of Travis Jenkins . . . Attorney Ahern suspected (probably for good reason) that this would not be good for his client and elected to object, thereby forcing the state to rely upon the Whalen statement. As such, this is a cogent and clearly thought out strategy that makes sense. It is inappropriate for a habeas court to second-guess a trial defense counsel's strategic decisions in the absence of clear evidence pointing to the error of that strategy").
Finally, even if deficient performance were to be presumed, the petitioner cannot establish prejudice. As the Appellate Court noted in the first habeas, "the Jenkins transcript was not strong evidence for the state." Crocker v. Commissioner of Correction, supra, 101 Conn.App. 139. Jenkins' identification of the petitioner was already in evidence through the transcript of the prior trial anyway, at which Jenkins was presented with the photographic array from which he identified the petitioner. (Exh. 6, pp. 44-45.) The petitioner has not demonstrated that, but for the testimony as to the out-of court identification, the outcome of the trial would have been different. See Andrades v. Commissioner of Correction, supra, 108 Conn.App. 512.
2. Jenkins Map
The petitioner next challenges attorney Salvatore's failure to attack attorney Ahern's failure to object to the admission into evidence of a map drawn by detective Piasczyk under Jenkins' direction. The petitioner contends that the map constitutes hearsay that was erroneously admitted under the business record exception. This claim, however, is merely a narrower formulation of the one previously litigated: that the transcript of Jenkins' prior testimony should not have been admitted at trial. The map merely acted as a visual aide to understanding Jenkins' testimony and did not add to or subtract from the content of it. The Appellate Court has already concluded that the failure to object to the admission of Jenkins' testimony did not constitute ineffective assistance of counsel. While the inadmissibility of the map is technically a discrete claim, the Appellate Court's conclusion with respect to Jenkins' testimony in general is dispositive of this issue and the petitioner cannot demonstrate ineffective assistance of counsel on this basis. If no prejudice resulted from the introduction of Jenkins' prior testimony; see Crocker v. Commissioner of Correction, supra, 101 Conn.App. 139-40; no prejudice resulted from the introduction of a map created by him that served merely as a visual aide that comported with his testimony.
3. Statement of Tacuma Grear
The petitioner next attacks attorney Salvatore's failure to challenge attorney Ahern's failure to object to the admission of Tacuma Grear's tape recorded statement of June 18, 1998 to detective Frank Roberts, on the basis that it was unreliable in light of his previous inconsistent statement of December 23, 1997, recorded in attorney Dolan's office. This argument is misguided. A partial transcript of Grear's June 18, 1998 statement was admitted as a prior inconsistent statement and Grear was cross-examined with respect to it. The requirement of reliability set forth in State v. Whelan, 200 Conn. 743, 753-54, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct 597, 93 L.Ed.2d 598 (1986) is satisfied by a tape recorded statement averred as accurate by the witness. Id., 754 n. 9 ("we note that prior tape recorded statements possess similar indicia of reliability and trustworthiness to allow their substantive admissibility as well"). While the petitioner claims this statement was unreliable in light of a prior statement made by Grear, this argument begs the question and presumes the greater reliability of Grear's December 23, 1997 statement. The weight to give such statements is for the jury to decide; the mere fact that there are multiple incongruous statements in existence does not itself prohibit their admission into evidence when the witness testifies before the jury and is cross-examined regarding the inconsistencies in the prior statements. Id., 750-51 ("when the declarant is in court, under oath, and subject to cross-examination before the factfinder concerning both his out-of-court and in-court statements, the usual dangers of hearsay are largely nonexistent") (internal quotation marks omitted). Therefore, there was little basis for objection by attorney Ahern, and it was not deficient to allow Grear's prior statement to come before the jury. Thus, there was also no issue for attorney Salvatore to have raised in this regard, and the petitioner has failed to demonstrate ineffective assistance on this ground.
4. Prior identification by George David Wright
The petitioner's final claim stemming from the representation of attorney Ahern is that Ahern was ineffective in failing to prevent an identification of the petitioner by George David Wright from coming before the jury when Wright refused to testify. This claim appears to have been addressed on direct appeal in the context of a claim regarding the introduction of Wright's testimony at the probable cause hearing, and would therefore be precluded from consideration by this court. See State v. Crocker, supra, 83 Conn.App. 644-50. In any event, the petitioner has apparently forsaken this claim because it was not addressed in his post-trial brief, and no evidence was adduced in support beyond a brief mention of Wright's testimony in the probable cause hearing transcript. (Exh. 5.) Therefore, it is deemed abandoned. See Wooten v. Commissioner of Correction, 104 Conn.App. 793, 801, 936 A.2d 263 (2007), cert. denied, 289 Conn. 911, 957 A.2d 858 (2008).
B. Ineffective assistance of attorney Patterson
The petitioner goes on to attack attorney Salvatore's failure to challenge attorney Patterson's failure to adequately brief, on direct appeal, the claim of prosecutorial misconduct arising from the state's attorney's comment during closing arguments regarding the suspiciousness of the petitioner's post- Miranda silence. The prosecutor argued that "Mr. Crocker's story was told smoothly. But it should be; he had three years to practice it. Remember on November 3, 1997 he wouldn't even tell the police who his alibi witness[es] were, who was there," and that "the defendant refused to give a taped statement. Why do you think that is?" The respondent contends that this claim was already addressed both at the previous habeas trial and on direct appeal. The record reveals that the claim was raised at the first habeas trial, but was held to be procedurally defaulted and not addressed on the merits. Attorney Patterson raised this as an issue on direct appeal, but the Appellate Court declined to review the claim because it was inadequately briefed. State v. Crocker, supra, 83 Conn.App. 660. Thus, this claim has never been fully addressed on its merits. The respondent raised a blanket defense of procedural default, but did not specify that this claim of prosecutorial misconduct in particular was defaulted. In any event, even if the generic procedural default defense were construed to apply to this claim, the claim is ultimately grounded in the ineffective assistance of appellate counsel, which obviates the cause and prejudice inquiry and collapses the issue into the standard two-pronged CT Page 2350 Strickland test. See Johnson v. Commissioner of Correction, 285 Conn. 556, 569-71, 941 A.2d 248 (2008); Valeriano v. Bronson, 209 Conn. 75, 85, 546 A.2d 1380 (1988).
The issue thus defined, the petitioner cannot hope to establish prejudice on this ground because, even assuming deficient performance, raising this issue was not likely to have altered the outcome of his trial because the argument was not likely to have been successful on appeal. "[P]rosecutorial misconduct of a constitutional magnitude can occur in the course of closing arguments . . . In determining whether such misconduct has occurred, the reviewing court must give due deference to the fact that counsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument . . . Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury's attention from the facts of the case . . ." Just as the prosecutor's remarks must be gauged in the context of the entire trial, once a series of serious improprieties has been identified we must determine whether the totality of the improprieties leads to the conclusion that the defendant was deprived of a fair trial . . . Thus, the question . . . is whether the sum total of [the assistant state's attorney's] improprieties rendered the defendant's [trial] fundamentally unfair, in violation of his right to due process . . . The question of whether the defendant has been prejudiced by prosecutorial misconduct, therefore, depends on whether there is a reasonable likelihood that the jury's verdict would have been different absent the sum total of the improprieties." State v. Crocker, supra, 83 Conn.App. 657-58.
"[T]he United States Supreme Court held that the impeachment of a defendant through evidence of his silence following his arrest and receipt of Miranda warnings violates due process. The court based its holding [on] two considerations: First, it noted that silence in the wake of Miranda warnings is insolubly ambiguous and consequently of little probative value. Second and more important[ly], it observed that while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." (Internal quotation marks omitted.) State v. Kirby, 280 Conn. 361, 400, 908 A.2d 506 (2006).
"Our Supreme Court has held, however, that the [ Doyle] rule does not apply when the defendant merely pauses during an interview or alternates between remaining silent and speaking: While a defendant may invoke his right to remain silent at any time, even after he has initially waived his right to remain silent, it does not necessarily follow that he may remain selectively silent . . . In [ State v. Talton, 197 Conn. 280, 296, 497 A.2d 35 (1985)], the defendant answered a question from the police by explaining, I'd rather not tell you. I don't want to tell you . . . In that case, the trial court permitted a police officer to testify at trial that the defendant had made those statements after having received the Miranda warnings . . . The court found that the defendant had not invoked his right to silence; [h]e just chose not to give that information . . . The Supreme Court affirmed the decision of the trial court." (Internal quotation marks omitted.) State v. Camacho, 92 Conn.App. 271, 281, 884 A.2d 1038 (2005), cert. denied, 276 Conn. 935, 891 A.2d 1 (2006).
"A Doyle violation may, in a particular case, be so insignificant that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible question or comment upon a defendant's silence following a Miranda warning. Under such circumstances, the state's use of a defendant's postarrest silence does not constitute reversible error . . . The [error] has similarly been [found to be harmless] where a prosecutor does not focus upon or highlight the defendant's silence in his cross-examination and closing remarks and where the prosecutor's comments do not strike at the jugular of the defendant's story . . . The cases wherein the error has been found to be prejudicial disclose repetitive references to the defendant's silence, reemphasis of the fact on closing argument, and extensive, strongly-worded argument suggesting a connection between the defendant's silence and his guilt." (Citations omitted; internal quotation marks omitted.) State v. Daugaard, 231 Conn. 195, 211-13, 647 A.2d 342 (1994), cert denied, 513 U.S. 1099, 115 S.Ct. 770, 130 L.Ed.2d 666 (1995)." State v. Camacho, supra, 92 Conn.App. 283-84.
In the present case, the petitioner came to the police station of his own initiative and spoke with detective Piaszcyk. He was not in custody at the time but was read his Miranda rights because he was the chief suspect in the case. He did not assert his right to silence after being read his Miranda rights, but voluntarily signed a form waiving that right and voluntarily answered questions. He initially provided the police with his own version of the events of the day of the shooting. (Exh. 2, tr., 11/7/00, pp. 62-83.) The fact that he did not provide the names of alibi witnesses is not the same as a choice to remain silent, and pointing this fact out does not constitute misconduct. Moreover, even if the remarks were improper, the comments in question were a miniscule portion of an extensive closing argument and were not likely to have made a particularly strong impression on the jury. This scenario does not implicate the proscriptions established by the Supreme Court in Doyle v. Ohio, 426 U.S. 610, 96 SS.Ct. 2240, 49 L.Ed.2d 91 (1976) that amount to prosecutorial misconduct. Therefore, the petitioner cannot establish prejudice from either attorney Patterson or attorney Salvatore in failing to argue this issue on appeal or at the first habeas trial, respectively.
C. Ineffective assistance of attorney Salvatore 1. Failure to disclose impeachment evidence
The petitioner next claims that attorney Salvatore was ineffective in failing to raise the issue of the prosecutor's failure to disclose evidence that would exculpate the petitioner and impeach Tacuma Grear in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The petitioner submitted the November 9, 1997 transcript of Grear's testimony in State v. Talton, Docket No. CR 97 0446889, which took place around the time of the petitioner's first trial. Therein, Grear testified that an individual he knew as "Slim Goodie" he also knew as "Shawn Bethea." (Exh. 11, p. 100.)
The respondent raised a generic claim of procedural default in the return to any claims which may have been raised at trial on direct appeal. Although this argument was not pursued in the respondent's brief, this is exactly the sort of claim to which the defense applies. "The appropriate standard for reviewability of habeas claims that were not properly raised at trial . . . or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition . . . [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 . . ." (Citations omitted; internal quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001). The petitioner did not file a reply to the return as provided by Practice Book § 23-31 and has not asserted cause and prejudice that would cure the default. Therefore, he is presently defaulted from pursuing this claim.
Moreover, even if the petitioner could demonstrate cause, he would be unable to establish prejudice. The petitioner contends that Grear's testimony in Talton represents an inconsistency regarding the petitioner's street name, as well as that Goodie was a "small guy" while the petitioner is over six feet tall. However, a review of the transcript did not reveal the comment regarding "Goodie's" stature. And while Grear did identify "Slim Goodie" as Shawn Bethea in the Talton trial and Shawn Crocker in the petitioner's trial, this discrepancy is readily explained by the petitioner's own testimony at this habeas trial that the name "Bethea" comes from his mother's side of the family and that he is in fact known on the streets as "Goodie" or "Slim Goodie." Grear's taped statement to the police identified "Shawn Crocker a/k/a Goody" as the person who "looked to be the shooter." (Exh. tr. 10/27/00 p. 66.) Nothing about the Talton testimony materially contradicted Grear's later testimony or in any way exculpated the petitioner. Brady only requires the disclosure of information material to guilt or punishment or that alters the credibility of a crucial state's witness. State v. Falcon, 90 Conn.App. 111, 122, 876 A.2d 547, cert. denied, 275 Conn. 926, 883 A.2d 1248 (2005). In short, this is a specious claim at best and the petitioner has failed to demonstrate either deficient performance or prejudice resulting from attorney Salvatore's failure to raise it.
2. Failure to investigate
The petitioner next claims that attorney Salvatore was ineffective in failing to investigate Yvonne Tyson and "her male friend" who both allegedly had potentially exculpatory information. No evidence was presented with respect to Yvonne Tyson. The petitioner did, however, present evidence that Ernest Henry, whom the petitioner testified was one of the leaders of the Island Brothers gang, had given a statement to a private investigator on January 16, 1998 in which he described the shooter as short and stocky, whereas the petitioner is tall and slender. Henry also averred that the shooter did not limp, while the petitioner testified that he walked with a limp at the time due to a gunshot wound, and that the petitioner had not been in the area all day.
Attorney Salvatore testified that she was aware of Henry's statement but would have made the tactical determination that it was not helpful for the habeas petition. "It is not for a court to second-guess matters of strategy and tactics." Ostolaza v. Warden, 26 Conn.App. 758, 774, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992). "[S]trategic choices made after thorough investigation of [the] law and facts relevant to plausible options are virtually unchallengeable . . . [T]he [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (Citation omitted; internal quotation marks omitted.) CT Page 2354 Johnson v. Commissioner of Correction, 222 Conn. 87, 96, 608 A.2d 667 (1992).
Attorney Salvatore's decision was clearly "within the wide range of professionally competent assistance"; id.; required by the constitution. Henry's statement not only contradicted several of the other trial witnesses but also contradicted the petitioner's own testimony, both in the particulars of the shooting and the fact that Crocker admitted to being in the area. Henry also claimed the shooting occurred around nine o'clock or nine-thirty P.M. while other witnesses almost unanimously maintained that it occurred sometime between seven-thirty and eight o'clock P.M. No other witnesses placed Henry on the scene at the time of the shooting. Thus, a claim that attorney Ahern was ineffective for failing to investigate or call Henry was not likely to succeed at the first habeas trial, and attorney Salvatore was not deficient in failing to investigate this possible avenue of inquiry. Moreover, even assuming deficient performance, the petitioner has failed to establish resulting prejudice because he has not shown that investigating and calling Henry at the first habeas trial was likely to have resulted in the granting of habeas relief.
3. Double Jeopardy
The petitioner's final claim is that attorney Salvatore was ineffective in failing to allege that his retrial on the criminal charges after his initial mistrial violated his right against double jeopardy. This claim is readily disposed of. "It is axiomatic that a mistrialrequired by the manifest necessities of the case does not terminate jeopardy . . . The jury's inability to reach a unanimous verdict on a count that may compel the trial court to declare a mistrial is indisputably such a case . . . [A] trial court's declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which [the defendant] was subjected. Richardson v. United States, 468 U.S. 317, 326, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984)." (Citations omitted; internal quotation marks omitted.) State v. James, 247 Conn. 662, 673-74, 725 A.2d 316 (1999). The record reveals beyond dispute that the petitioner's original criminal trial resulted in a mistrial due to a hung jury. (Exh. 12, pp. 793-95.) Therefore, the petitioner cannot demonstrate deficient performance or prejudice in not raising this issue because there was clearly no legal basis for so doing.
Attorney Ahern did move for a mistrial in the first trial due on the basis of improper remarks made by the prosecution, which was denied. He also filed a motion to dismiss before the second trial based on the fact that the mistrial was the result of the improper comments and, therefore, retrial would violate double jeopardy. (Exh. 8.) This, too, was denied. The defendant now makes essentially the same argument, albeit in a different context, as in the motion to dismiss, but it is no more meritorious now.
CONCLUSION
For the foregoing reasons, the petition for habeas corpus is denied. The petitioner shall submit a judgment file to the clerk within thirty days.