JOHNNIE ARTHUR v. COMMISSIONER OF CORRECTION
AC 37403
Sheldon, Keller and Flynn, Js.
Argued October 13, 2015—officially released January 26, 2016
(
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Stephen Lebedevitch, with whom, on the brief, was Stephanie M. O‘Neil, for the appellant (petitioner).
Rocco A. Chiarenza, assistant state‘s attorney, with whom, on the brief, were Kevin D. Lawlor, state‘s attorney, and Erika L. Brookman, assistant state‘s attorney, for the appellee (respondent).
Opinion
KELLER, J. Upon a grant of certification to appeal, the petitioner, Johnnie Arthur, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court‘s decision should be reversed because that court erred by not concluding that the petitioner‘s trial counsel, Attorney Lawrence Hopkins, rendered ineffective assistance based upon (1) the manner in which he addressed evidence related to the cellular telephone (cell phone) records of the petitioner‘s girlfriend, which were offered into evidence by the state and admitted at the petitioner‘s criminal trial,1 and (2) his failure to call as a trial witness a taxi
The following procedural history and facts are relevant to the present appeal. In 2009, the petitioner was convicted, following a jury trial, of (1) attempt to commit murder, (2) assault in the first degree, (3) criminal possession of a firearm, and (4) carrying a pistol or revolver without a permit. This court, in affirming the petitioner‘s conviction on direct appeal, State v. Arthur, 128 Conn. App. 371, 18 A.3d 610, cert. denied, 302 Conn. 910, 23 A.3d 1249 (2011), stated that the jury could have reasonably found the following facts. “On the evening of September 29, 2007, the victim, Andrew Garnett, attended a party at the Sports Haven nightclub in New Haven with friends, including Dionte Dixon. While there, they met Nancy Sonemaneevong, Barbara ‘Shanita’ Green and the [petitioner‘s] girlfriend, Robin DiBenedetto. Green informed Dixon that she had a crush on his friend, Eugene Wright, and Dixon arranged for her to meet Wright later that evening. When the party ended, those individuals departed for Wright‘s apartment at 30 Glade Street in West Haven. Dixon drove his own car, the victim rode in a second vehicle with other friends, and DiBenedetto drove Sonemaneevong and Green in her red Pontiac Grand Am. At that time, DiBenedetto was speaking with the [petitioner] on her cellular telephone.
“When the vehicles arrived at the parking lot at 30 Glade Street in the early morning hours of September 30, 2007, Green immediately entered Wright‘s apartment. At that time, the victim and Dixon entered the Pontiac Grand Am and began flirting with DiBenedetto and Sonemaneevong. When Sonemaneevong needed to use a bathroom, Dixon escorted her into Wright‘s apartment. The victim remained in the vehicle with DiBenedetto, who still was on the telephone with the [petitioner].
“A bystander in the parking lot, Jamie Henderson, observed a man he knew as ‘Drew’ speaking to the female driver of the red Pontiac vehicle. He then witnessed a gray Ford Taurus enter the parking lot, from which a male wearing a dark colored hoodie and hat emerged looking ‘like he meant business.’ With a hand in the hoodie, the man asked DiBenedetto to leave with him, and she refused. The victim informed the man that ‘[s]he good. She with us.’ The man then fired multiple gunshots at him from close range. As the victim crawled on the ground, the Ford Taurus and the Pontiac Grand Am fled the scene.
“Officer Radames Gonce of the West Haven police department, who at the time was responding to an unrelated call nearby, heard the gunshots emanate from the Glade Street area. As Gonce drove toward Glade Street, he saw several vehicles driving away at a high rate of speed, including a gray Ford Taurus with a New York license plate. When he arrived at the parking lot outside Wright‘s apartment, Gonce found the victim lying on the ground. The victim subsequently was transported by ambulance to Yale-New Haven Hospital, where he was treated for life threatening injuries that included, inter alia, a collapsed lung, three gunshot wounds to the chest and one gunshot wound to his left thigh. Following emergency surgery, the victim recuperated in the hospital for seven days.
“While investigating the scene of the shooting, Detective Anthony Simone of the West Haven police department learned that the red Pontiac Grand Am had been located and asked the operator to return to the Glade Street parking lot. When the vehicle arrived, the operator was identified
“Simone‘s investigation also revealed that DiBenedetto lived at 719 Orchard Street in New Haven with the [petitioner]. When police arrived at that property on the day of the shooting, they found a silver Ford Taurus with a New York license plate in the backyard. Gonce arrived later and confirmed that the vehicle looked like the one he observed fleeing the Glade Street area moments after the shooting. The police seized the vehicle, and a search revealed a cellular telephone and a photograph of the [petitioner] with friends at what appeared to be the party at the Sports Haven nightclub hours earlier. The police also learned that DiBenedetto had rented the vehicle from Enterprise Rental Car from September 28, 2007, through October 1, 2007.
“When Simone interviewed the [petitioner], he confirmed that he had attended the party at the Sports Haven nightclub a day earlier. The [petitioner] stated that he attended with friends and that he did not drive there ‘because he doesn‘t drive.’ The [petitioner] did not provide any further information to police at that time. Nonetheless, Brenda Ollison, DiBenedetto‘s upstairs neighbor at 719 Orchard Street, testified at trial that she observed the [petitioner] driving the Ford Taurus on the weekend in question.
“As a result of their preliminary investigation, the police obtained a description of the person who had shot the victim. Simone detailed that description at trial as follows: ‘Black male, approximately five foot nine, at the time wearing dark pants with a design on the rear pockets, a dark hooded sweatshirt with red drawstrings and a red and white design on the front, and a black fitted baseball style cap.’ DiBenedetto‘s sister, Lori Ann Johnson, testified that she had cared for DiBenedetto‘s son on the evening of September 29, 2007, so that DiBenedetto could attend the party at the Sports Haven nightclub. When Johnson went to DiBenedetto‘s residence at 719 Orchard Street on October 1, 2007, DiBenedetto and the [petitioner] were there. Johnson observed the [petitioner‘s] recently washed clothes on a chair. She saw a black ‘zip-up,’ a black tee shirt and dark jeans, which she stated the [petitioner] had worn to the Sports Haven nightclub. When shown the outfit worn by the [petitioner] in the photograph found in the search of the Ford Taurus, Johnson identified it as the same outfit she had seen
“While recovering from surgery at the hospital, the victim spoke with Detective Usha Carr of the West Haven police department. Carr testified that the victim stated that, on the night of the shooting, he was ‘hanging out’ in the parking lot at 30 Glade Street with friends. While the victim was chatting with a white female in a red Pontiac Grand Am, ‘a black male drove up’ in a
silver Ford Taurus. The man repeatedly told the woman with whom the victim had been speaking to leave with him. The victim told the man that ‘[s]he good. She with us.’ The victim‘s next recollection was the smell of gunpowder. During the interview, Carr showed the victim a photographic array, informing him that the shooter ‘might or might not be’ in the array. The victim selected the [petitioner‘s] photograph as that of his assailant. The victim refused to sign the photographic array or to provide a recorded statement, however, because he did not want to be labeled a ‘snitch.’ At trial, the victim identified the [petitioner] in court as the individual that he had selected from the photographic array.
“The [petitioner] thereafter was arrested and charged with criminal attempt to commit murder, assault in the first degree, criminal possession of a firearm and carrying a pistol or revolver without a permit. While incarcerated at the MacDougall-Walker Correctional Institution, the [petitioner] received a visit from DiBenedetto and his mother, Judith Wright, on January 23, 2009. The visit transpired in a noncontact area, which contains ‘a glass that separates [the inmate from the visitors] with a booth and the visitors are on the opposite side of them and they make contact through two . . . phone headsets.’ On the date in question, Correction Officer Rudolfo Santana observed the [petitioner] ‘looking over his shoulder, towards where I was standing, kind of suspiciously, sort of nervous. So I started observing him a little bit more closely. I noticed that he was moving his right hand, like trying to hide something, bringing it up, bringing it down, and every time I looked towards him, he would bring it down. So I approached him from the backside and I noticed he had his right hand against the window with a piece of paper and I asked him for it. He handed it to me with no problem. I looked at the piece of paper. I saw it had some information on it, so I stated to him to continue with his visit, and I walked out of that particular area there. He [stood] up, follow[ed] me, and asked me what I was going to do with the paper and [told me] to throw it away, and I gave him a direct order to go sit back down and continue with his visit.’ Santana identified the [petitioner] in court as that inmate. Santana further testified that he brought the paper to a supervisor immediately.
“The paper was admitted as a full exhibit at trial, and the clerk of court read its contents. The paper listed two telephone numbers . . . and then stated: ‘(NAME) Drew Tell him please don‘t cooperate with the courts, [a]nd to tell his friends not too. And if [I] would of known what [I] know now it wouldn‘t never happened, [d]on‘t never tell him your real name ok ma. Ask him if he could help me, by not cooperating, cry too ma, don‘t talk to nobody but him ma, ok just him. I need that nigga to not cooperate with them anymore. [I]f
that‘s done, with the victim theirs no case.’ At trial, the victim testified that, after the shooting, he learned that the [petitioner] was his cousin.
“At the conclusion of the state‘s case in his criminal trial, the [petitioner] moved for a judgment of acquittal on all charges,
The petitioner filed a petition for a writ of habeas corpus in January, 2012, and then filed an amended petition on November 26, 2013. In the amended petition, the petitioner claimed that he received ineffective assistance of counsel during his criminal trial based upon the following six failures of Attorney Hopkins: (1) his failure to request, pursuant to State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), a hearing (Porter hearing) with respect to the cell phone evidence; (2) his failure to object to Detective Simone‘s opinion testimony that the aforementioned cell phone records placed the petitioner on Glade Street during the shooting; (3) his failure to properly cross-examine a state‘s witness, Susan Johnson,2 who offered testimony pertaining to, inter alia, the process of determining the approximate location of cell phone users based upon cell site data and cell phone records; (4) his failure to present his own expert witness at trial to rebut the state‘s cell phone evidence; (5) his failure to investigate and call as a witness, Alfred Kidd, a taxi driver who had been present at the scene of the shooting; and (6) his failure to properly cross-examine two of the state‘s witnesses who were police officers who responded to the scene of the shooting.3
The respondent, the Commissioner of Correction, denied the substance of all of the petitioner‘s claims in a return filed on December 31, 2013. On May 13, 2014, the court, Cobb, J., held an evidentiary hearing in the habeas matter, during which the petitioner presented exhibits and called the following witnesses: (1) Attorney Hopkins; (2) Attorney Aaron J. Romano, an experienced criminal defense attorney; (3) Kidd; (4) Joseph Sierra, a custodian of records for T-Mobile; and (5) Justin Darrow, a radio-frequency engineer with expertise in cell phone data. Both parties also filed pretrial briefs and the petitioner filed a posttrial brief. On October 27, 2014, the habeas court issued a memorandum of decision wherein it denied the petitioner‘s amended petition. The petitioner thereafter sought certification to appeal to this court, which the habeas court granted on November 3, 2014. This appeal followed. Additional
facts will be set forth as necessary.
“We begin our discussion by noting that the effectiveness of an attorney‘s representation of a criminal defendant is a mixed determination of law and fact that . . . requires plenary review . . . . The sixth amendment to the United States constitution guarantees a criminal defendant the assistance of counsel for his defense. . . . It is axiomatic that the right to counsel is the right to the effective assistance of counsel. . . . A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong, a claimant
I
We first address the petitioner‘s claims that the habeas court improperly denied his habeas petition by not concluding that Attorney Hopkins rendered ineffective assistance in various ways related to the manner in which he addressed the cell phone evidence admitted at trial. On appeal, the petitioner claims that he received ineffective assistance of counsel because of the following: (1) Attorney Hopkins failed to “research and investigate” the limitations of the cell phone records, which impaired his ability to properly defend the petitioner; (2) Attorney Hopkins failed to request a Porter hearing to challenge the state‘s argument that the cell phone records provided data that could be used to determine the movements of the petitioner on the night of the shooting; (3) Attorney Hopkins failed to consult with and to present a cell phone expert to testify regarding the limitations of the cell phone records, which impaired his ability to properly defend the petitioner; and (4) Attorney Hopkins opted not to challenge, in any manner, the cell phone evidence that the state offered, which generally revealed counsel‘s unreasonable and inadequate investigation.4
In contesting the petitioner‘s ineffective assistance claim as it relates to the cell phone evidence, the respondent argues the following: (1) that the petitioner‘s claim that Attorney Hopkins inadequately investigated the
limitations of cell phone records should not be addressed by this court on appeal because it was never raised in his operative habeas petition and that ground of ineffectiveness was not considered by the habeas court; (2) that the petitioner failed to establish ineffective assistance based upon Attorney Hopkins’ failure to request a Porter hearing on the cell phone evidence or to present his own expert on the cell phone evidence; and (3) that the petitioner failed to establish ineffective assistance based upon Attorney Hopkins’ failure to properly cross-examine Susan Johnson or Detective Simone. Alternatively, the respondent claims that even if this court concludes that Attorney Hopkins rendered ineffective assistance in relation to the cell phone evidence under Strickland‘s performance prong, the habeas court‘s decision should be affirmed because
A
We decline to review the petitioner‘s claim that he received ineffective assistance of counsel based upon Attorney Hopkins’ failure to research and investigate the limitations of the cell phone evidence. “[A] habeas petitioner is limited to the allegations in his petition, which are intended to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise.” (Internal quotation marks omitted.) Moye v. Commissioner of Correction, 316 Conn. 779, 789, 114 A.3d 925 (2015). An appellate court will decline to review a habeas petitioner‘s claim where the petitioner raises it for the first time in appealing from the habeas court‘s decision, where the habeas court did not address the claim in its decision, and where the petitioner neither raised such claim in his operative habeas petition nor sought an articulation of the habeas court‘s decision with respect to such claim. See Harris v. Commissioner of Correction, 271 Conn. 808, 843–44, 860 A.2d 715 (2004); Bertotti v. Commissioner of Correction, 136 Conn. App. 398, 404, 44 A.3d 892, cert. denied, 307 Conn. 901, 53 A.3d 217 (2012); Velasco v. Commissioner of Correction, 119 Conn. App. 164, 166 n.2, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010); Copeland v. Warden, 26 Conn. App. 10, 13–14, 596 A.2d 477 (1991), aff‘d, 225 Conn. 46, 621 A.2d 1311 (1993).
In his amended petition for a writ of habeas corpus, the petitioner did not specifically claim that Attorney Hopkins rendered ineffective assistance based upon his failure to investigate the limitations of the cell phone evidence. To the contrary, as his petition relates to the cell phone evidence, the petitioner merely claimed that he had received ineffective assistance because Attorney Hopkins (1) failed to request a Porter hearing with respect to the cell phone evidence, (2) failed to object
to testimony pertaining to the cell phone evidence, (3) failed to properly cross-examine a state‘s witness pertaining to the cell phone evidence, and (4) failed to call an expert witness on cell phone evidence. Moreover, in the memorandum of decision denying the habeas petition, the habeas court did not address any claims pertaining to Attorney Hopkins’ alleged failure to investigate the limitations of the cell phone evidence. Rather, consistent with the petition, the court addressed the claim as involving failures to request a Porter hearing on the cell phone evidence, to cross-examine certain witnesses adequately concerning this evidence, and to object to portions of these witnesses’ testimony. Thus, we conclude that the petitioner‘s claim that he received ineffective assistance based upon Attorney Hopkins’ failure to investigate the limitations of the cell phone evidence is not properly before this court and we decline to address its merits.
B
We now address the petitioner‘s claim that he received ineffective assistance of counsel because Attorney Hopkins failed to request a Porter hearing regarding the cell phone evidence offered by the state to show the petitioner‘s movements on the night of the shooting. We conclude that the habeas court properly determined that the petitioner failed to prove prejudice as a result of Attorney Hopkins’ failure to request a Porter hearing. The following additional facts are relevant to our review of the petitioner‘s claim.
In conjunction with its offer of the cell phone records at trial, the state, on the day after its presentation of Detective Simone‘s testimony, presented testimony from a T-Mobile custodian of records, Susan Johnson. During her direct examination, she read from the records and testified that during the early morning hours of September 30, 2007, the records for DiBenedetto‘s cell phones indicated that a call was made from
one of those cell phones to the other of those cell phones at 3:10 a.m. and that this call lasted until 3:51 a.m. Furthermore, Susan Johnson testified that the cell phone placing the call at 3:10 a.m. initially transmitted its signal through a cell tower located at 159 Middletown Avenue in New Haven, which is near the Sports Haven nightclub. She also testified that this same phone, at 3:57 a.m., transmitted its signal through another cell tower located at 950 Campbell Avenue in West Haven, which is near the location at which the shooting occurred. During his examination of Susan Johnson, Attorney Hopkins elicited her testimony that the records showed that the same cell phone later placed a call at 4:19 a.m. and that it transmitted its signal through the cell tower located at 159 Middletown Avenue in New Haven at that time.5 After Attorney Hopkins’ examination of Susan Johnson and his initial objection to the state‘s offer of the cell phone records on relevance grounds, the records ultimately were admitted as a full exhibit. At no time did Attorney Hopkins request the trial court to conduct a Porter hearing.
“In State v. Porter, supra, 241 Conn. 57, our Supreme Court adopted the test for determining the admissibility of scientific evidence set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). In so doing, our Supreme Court noted two threshold requirements to the admissibility of scientific evidence. First, that the subject of the testimony must be scientifically valid, meaning that it is scientific knowledge rooted in the methods and procedures of science . . . and is more than subjective belief or unsupported speculation. . . . This requirement establishes a standard of evidentiary reliability . . . as, [i]n a case involving scientific evidence, evidentiary reliability will be based upon scientific validity. . . . Second, the scientific evidence must fit the case in which it is presented. . . . In other words, proposed scientific testimony must be demonstrably relevant to the facts of the particular case in which it is offered, and not simply be valid in the abstract.” (Internal quotation marks
In the present case, we conclude that the habeas court properly determined that the petitioner failed to prove prejudice and ineffective assistance of counsel from Attorney Hopkins’ failure to request a Porter hear-
ing regarding the cell phone evidence. The petitioner argues in his brief that the state‘s use of the cell phone evidence as evidence of his movements prior to, at the time of, and after the shooting was improper and should have been challenged using a Porter hearing. The petitioner also contends that if Attorney Hopkins had requested, and if the trial court had held, a Porter hearing to examine the reliability of the cell phone evidence, its admissibility would have been limited by disallowing its use for the purpose of showing to the jury that the petitioner was on Glade Street when the shooting occurred. We fail to see how Attorney Hopkins’ failure to request a Porter hearing prejudiced the petitioner at trial.
First, we observe that the petitioner failed to present evidence that the outcome of a request for a Porter hearing would have been favorable to the defense. During the petitioner‘s habeas proceedings, he presented the testimony of Attorney Romano, an attorney with experience in criminal defense matters. Attorney Romano testified that he routinely files motions for Porter hearings when prosecutors offer cell phone evidence of this nature but that none of his motions has been granted. Attorney Hopkins also testified that, in his experience, cell phone records of this type are generally admitted into evidence. The petitioner also presented the testimony of a T-Mobile custodian of records and a radio-frequency engineer at his habeas proceedings in order to refute the state‘s cell phone evidence. The habeas court found that this testimony failed to establish that the trial court would have granted the petitioner a Porter hearing on the cell phone evidence had Attorney Hopkins moved for one. The testimony presented by the petitioner‘s witnesses at his habeas proceedings did not help to demonstrate that the cell phone evidence would be novel scientific evidence so as to require a Porter hearing prior to its admission. Thus, we conclude that the petitioner has failed to show that he was prejudiced by Attorney Hopkins’ failure to request a Porter hearing because he failed to prove to the habeas court that such a request would have any merit or would have changed the outcome of his trial.6 See Harvey v. Commissioner of Correction, 98 Conn. App. 717, 725, 912 A.2d 497 (2006) (concluding that for habeas petitioner to show trial counsel was ineffective due to counsel‘s failure to file motion to suppress, petitioner must demonstrate that underlying motion is meritorious and that outcome of trial would have been different had motion been granted), cert. denied, 281 Conn. 914, 916 A.2d 55 (2007).
Second, we conclude on the basis of our review of the evidence that the petitioner cannot demonstrate prejudice because the cell phone evidence was not significant to the state‘s case. See Strouse v. Leonardo, 928 F.2d 548, 556 (2d Cir. 1991) (holding no prejudice when habeas petitioner‘s ineffective assistance appeal
arose from trial where overwhelming evidence of guilt had been admitted aside from alleged deficiencies of counsel); Stepney v. Commissioner of Correction, 129 Conn. App. 364, 367–68, 19 A.3d 1262 (2011) (holding habeas petitioner‘s counsel was not ineffective where alleged shortcomings were deemed strategic decisions and were made in face of overwhelming evidence of petitioner‘s guilt), cert. denied, 315 Conn. 907, 105 A.3d 236 (2014). Specifically, we agree with the habeas court‘s finding that there was other probative evidence linking the petitioner to the shooting, namely, (1) the victim‘s identification of the petitioner as the shooter in a photographic array only days after the shooting had occurred and his subsequent confirmation of that identification at trial, and (2) the petitioner‘s letter from prison wherein he essentially admitted that he had committed the crime. State v. Arthur, supra, 128 Conn. App. 373–78.7
Next, we address the petitioner‘s claim that he received ineffective assistance of counsel because Attorney Hopkins chose not to challenge the cell phone evidence. Specifically, the petitioner claims that Attorney Hopkins rendered ineffective assistance by not objecting—other than on relevance grounds—to the cell phone evidence or to the testimony of Susan Johnson or Detective Simone about such evidence, and by not adequately cross-examining these witnesses on this same evidence.8 The following additional facts are relevant to our resolution of this claim. On the day before the state offered Susan Johnson‘s testimony on the cell phone evidence at trial to show that both of DiBenedetto‘s cell phones were being used at or about the time at which the shooting occurred, and that they were both using cell towers in West Haven and New Haven during that time period, the state elicited testimony from Detective Simone. Detective Simone testified that ex parte search warrants were executed on T-Mobile for DiBenedetto‘s cell phone records and that “the goal in obtaining those records was to get the call detail and call times, as well as cell site locations, which would identify the area [in] which the calls were placed.”9 The state‘s direct examination of Detective Simone as it related to the cell phone records then proceeded as follows:
“[The Prosecutor]: And what are you able to tell, with regard to cell site location?
“[Detective Simone]: We are given a longitude-latitude and you were able to pinpoint where the exact cell tower in any given location was located. . . .
“[The Prosecutor]: Okay. And based upon your investigation, what were you able to determine?
“[Detective Simone]: We were able to determine that the forty-two minute phone call that was made by Ms.
DiBenedetto to [the petitioner] was—had originated and terminated, which started and ended, at hitting a cell site on West Spring Street, which is about two blocks away from the Glade Street location. That is the closest cell tower to Glade Street. . . .
“[The Prosecutor]: And what, with regard to that forty-two minute conversation, what were you able to conclude, by reviewing the records?
“[Detective Simone]: We were able to conclude that the call was placed from Ms. DiBenedetto‘s phone to the phone being held by [the petitioner]. We were able to tell that [the petitioner] was in New Haven at the time the phone call was placed from Robin and the terminating cell site, which is the ending cell site, for that call for the other phone, for [the petitioner‘s] phone, was also in New Haven.
“[The Prosecutor]: Okay. And at any point in time, did the—during that time period, did [the petitioner‘s] phone hit off of the West Spring Street tower?
“[The Prosecutor]: And do you recall what time those phone calls were made? . . .
“[Detective Simone]: There was a phone call at 3:52 a.m., at 3:55 a.m., and at 3:57 a.m.
“[The Prosecutor]: And which tower—which cell site did those three calls hit off of?
“[Detective Simone]: The West Spring Street cell tower.
“[The Prosecutor]: And which cell phone was that attributed to?
“[Detective Simone]: To the—both cell phones were on that same—the calls were made from one cell phone to the other, and they were both on that same tower.
“[The Prosecutor]: Okay. Was there anything else that you were able to determine by looking at the cell phone records?
“[Detective Simone]: We were able to determine that based on the 911—first 911 call coming in at 3:57 a.m., following the shooting, the cell records indicate that at 3:58 an additional call was placed, also off the same cell tower, followed up by additional calls, and the calls, at that time, started to go away from the West Haven area and started hitting New Haven towers.
“[The Prosecutor]: Okay. Which you would take to mean what?
“[Detective Simone]: I would take that to mean that
both phones were on Glade Street prior to the shooting and at the end of the shooting; at the completion of the shooting both phones moved away from Glade Street and returned to New Haven.”
Attorney Hopkins briefly cross-examined Detective Simone but did not cross-examine him or object to his testimony pertaining to his interpretation of the records’ ability to show the petitioner‘s location on Glade Street. We reiterate that Susan Johnson, the T-Mobile custodian of records, testified on the day after Detective Simone testified at trial. She testified about the cell phone records of DiBenedetto‘s two cell phones, which were recorded during the early morning hours of September 30, 2007. In essence, Susan Johnson testified that the records indicated that one of DiBenedetto‘s cell phones made several calls to the other during the time period spanning from 3:10 a.m. to 4:19 a.m. Furthermore, Susan Johnson testified that these calls initially were transmitted through a cell tower in New Haven near the Sports Haven nightclub, were transmitted later through a cell tower in West Haven near Glade Street at a time immediately prior to the time at which the shooting occurred, and finally were transmitted through a cell tower near DiBenedetto‘s residence in New Haven at a time shortly after the time at which the shooting occurred. Attorney Hopkins only briefly questioned Susan Johnson.
Although Detective Simone incorrectly testified that the cell phone records proved that both of DiBenedetto‘s cell phones were on Glade Street prior to and after the time of the shooting, we conclude that the habeas court properly determined that the petitioner failed to establish prejudice as a result of Attorney Hopkins’ cross-examination of Detective Simone and Susan Johnson. With respect to Detective Simone, the habeas court found that “the petitioner ha[d] not demonstrated that he was prejudiced by Attorney Hopkins’ failure to object to [Detective Simone‘s] testimony . . . because the evidence linking the petitioner to the crime was substantial.”
The habeas court found credible Attorney Hopkins’ testimony that he did not challenge the ability of the cell phone evidence to show the movements of the petitioner because there was additional evidence, including eyewitness accounts, placing the petitioner at the scene of the shooting. Furthermore, the habeas court found credible Attorney Hopkins’ testimony that he deemed the cell phone evidence to be a “double-edged sword” because although the evidence placed the petitioner near the scene of the shooting, it also
established that he was on the cell phone when the shooting occurred, which, in his opinion, made it less likely that the petitioner committed the shooting.
In addition to the testimony that the habeas court noted in the memorandum of decision, Attorney Hopkins testified at the habeas trial that he did not see how much evidentiary weight the cell phone evidence added to the state‘s case against the petitioner because it generally corroborated undisputed facts. Furthermore, Attorney Hopkins testified that there was more reliable evidence showing that the calls between DiBenedetto‘s two cell phones had occurred at about the time of the shooting and that one easily could have concluded that the petitioner was using one of those phones at the time of the shooting based upon such evidence. Finally, Attorney Hopkins testified that he was more concerned about other, more incriminating evidence offered by the state that tended to prove that the petitioner had committed the shooting, namely, eyewitness accounts placing him at the scene of the shooting and his letter from prison wherein he essentially had admitted that he committed the crime.
Based upon our review of the record, we agree with the habeas court‘s determination that there was other probative evidence linking the petitioner to the shooting. See part I B of this opinion. In light of this and other admitted evidence aside from the cell phone evidence, as well as the testimony pertaining to the cell phone evidence from the petitioner‘s habeas proceedings, we readily conclude that it is not reasonably probable that any additional or tactically different cross-examination of Detective Simone or Susan Johnson regarding the cell phone evidence would have changed the result of the petitioner‘s criminal trial.
D
We now address the petitioner‘s claim that he received ineffective assistance of counsel because of Attorney Hopkins’ failure to call his own expert witness who could testify as to a contrary interpretation of the cell phone evidence than that presented by the state. “[T]here is no per se rule that requires a trial attorney to seek out an expert witness.” (Internal quotation marks omitted.) Antonio A. v. Commissioner of Correction, 148 Conn. App. 825, 833, 87 A.3d 600, cert. denied, 312 Conn. 901, 91 A.3d 907 (2014); Thompson v. Commissioner of Correction, 131 Conn. App. 671, 696, 27 A.3d 86, cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011). “[T]he failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.” (Internal quotation marks omitted.) Harris v. Commissioner of Correction, 134 Conn. App. 44, 57, 37 A.3d 802, cert. denied, 304 Conn. 919, 41 A.3d 306 (2012).
At the habeas trial, the petitioner presented a radio-frequency engineer, Darrow, as a witness with expertise in cell phone data. In essence, Darrow testified that based upon his review of the cell phone evidence and the trial record, the cell site data relied upon by the state could not pinpoint that the cell phone that the petitioner was using was on a particular street at the time surrounding the shooting. Darrow, however, did testify that the cell site data showed that the phone that the petitioner was using was within 1.7 miles of the cell tower nearest to Glade Street. Thus, the petitioner‘s own witness interpreted the cell phone evidence in a manner consistent with what Susan Johnson indicated the cell phone records revealed at trial. Even if Attorney Hopkins had called an expert witness during the petitioner‘s criminal trial, the jury would have heard that although the cell phone records did not pinpoint the petitioner‘s exact location, they nevertheless showed that he was using a cell phone in an area that included the scene of the crime when it occurred. Accordingly, we agree with the habeas court that the thrust of Darrow‘s testimony shows that if Attorney Hopkins had called an expert witness to testify about the cell phone evidence at the petitioner‘s criminal trial, there is not a reasonable probability that the outcome of the petitioner‘s criminal trial would have been different. Furthermore, the overwhelming evidence of the petitioner‘s guilt aside from the cell phone evidence would not have been affected by expert testimony. We conclude that the habeas court did not err in its determination that the petitioner failed to establish prejudice as a result of Attorney Hopkins’ decision not to call an expert witness regarding the cell phone evidence.
II
Finally, we address the petitioner‘s claim that the habeas court erred by not concluding that he received ineffective assistance of counsel because of Attorney Hopkins’ failure to call as a trial witness Kidd, a taxi driver who had been present at the scene of the shooting and who subsequently gave a statement to the police. The petitioner claims that he received ineffective assistance because Attorney Hopkins’ decision not to call Kidd as a witness was not a reasonable strategy, especially in light of the fact that Kidd was a disinterested witness who gave a statement to the police that contradicted other evidence linking the petitioner to the shooting.
At the habeas trial, the petitioner presented Kidd‘s statement to the police as an exhibit and Kidd testified himself. The substance of Kidd‘s statement to the police was that at about the time of the shooting, he went to pick up a fare at 31 Glade Street and that when he stopped to wait, he heard five or six gunshots and then immediately saw people fleeing. Contrary to the testimony of any of the other witnesses, Kidd stated that
he then heard four or five additional gunshots from a gun wielded by a black man as he “was running down the side of the building after the people that ran.” Kidd stated that the man that he allegedly saw had braided hair, was not wearing a hat, and was wearing a black sweatsuit and a black jacket with white panels on the sides. Kidd also stated that he thought the second succession of gunshots sounded like they emanated from a gun of a different caliber than that of the first gun.
During his own testimony at the habeas trial, Kidd testified that immediately before the shooting occurred, a man pulled up in a car, exited, and started shooting into a crowd in the Glade Street parking
Attorney Hopkins testified during the habeas trial that he chose not to call Kidd as a defense witness primarily because he thought Kidd‘s statement to the police was unreliable. Attorney Hopkins testified that he believed Kidd to be an unreliable witness particularly because his version of events did not comport with those of the other eyewitnesses. Specifically, Hopkins noted that Kidd was the only eyewitness who believed that there may have been two shooters, or at least that two different guns were used, and who described the shooter as having dreadlocks or braided hair. Furthermore, Hopkins testified that he “just thought what [Kidd] was able to add to the entire scenario was a nullity, essentially.”
Although the petitioner alleges that Kidd was the only disinterested witness to the shooting—and thus would have been particularly persuasive to the jury—the record reveals that Henderson, an innocent bystander, also testified to witnessing the shooting. At the petitioner‘s criminal trial, Henderson testified that he only knew the victim because he was living in the same neighborhood in which he was living at the time of the shooting. Henderson further testified that he was in the Glade Street parking lot when the shooting occurred and that he observed a man wearing a dark-colored hooded sweatshirt and hat emerge from a gray Ford Taurus and commit the shooting.
“[T]he failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.” (Internal quotation marks omitted.) Harris v. Commissioner of Correction, supra, 134 Conn. App. 57. Our review of Kidd‘s testimony at the habeas trial and his statement to the police leads us to agree with the habeas court‘s conclusion that Attorney Hopkins did not render ineffective assistance by failing to call
him as a witness at trial. In the memorandum of decision denying the petitioner‘s petition, the habeas court found that “the petitioner [had] not overcome the strong presumption that Attorney Hopkins’ decision to not call Kidd as a witness constituted reasonable trial strategy.” In this regard, the court credited as true Attorney Hopkins’ testimony that he did not find Kidd reliable and afforded deference to his strategic decision.
We conclude that the petitioner is unable to show that these findings are clearly erroneous. We also agree with the habeas court‘s conclusion that the petitioner failed to prove prejudice under Strickland as a result of Attorney Hopkins’ failure to call Kidd as a witness. During the habeas trial, Kidd testified in a manner that was not at all inconsistent with the testimony of the other eyewitnesses. Specifically, he testified that he did not “recall seeing more than one shooter.” Although Kidd indicated in his statement to the police that he could not say whether there was only one shooter, his testimony at the habeas trial sheds light on the weakness of his testimony in the petitioner‘s defense. Even if Kidd had testified that he witnessed more than one shooter, such testimony would still not have exonerated the petitioner. In light of the questionable reliability of Kidd‘s testimony and his statement to the police, as well as the aforementioned abundance of other evidence linking the petitioner to the
The judgment is affirmed.
In this opinion the other judges concurred.