******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
JOHNNIE ARTHUR v. COMMISSIONER

OF CORRECTION

(AC 37403)

Sheldon, Keller and Flynn, Js.

Argued October 13, 2015—officially released January 26, 2016

(Appeal from Superior Court, judicial district of

Tolland, Cobb, J.)

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

driver who was present at the scene of the crime. We

affirm the judgment of the habeas court.

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 wit-
nessed 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 as DiBenedetto, who then was transported to police headquarters. Simone subsequently

interviewed Henderson, Sonemaneevong and Green,

from which he learned that DiBenedetto’s boyfriend

may have been involved in the shooting. He then interviewed DiBenedetto, who was uncooperative and identified her boyfriend only as ‘Johnnie.’ Further

investigation revealed that DiBenedetto had been talking on her cellular telephone with the [petitioner] up

to the time of the incident and that she had two cellular

telephones registered in her name, both of which were

used during that conversation. Telephone records,

which were admitted into evidence at trial, established

that DiBenedetto’s initial conversation in the early

morning hours of September 30, 2007, lasted forty-one

minutes and three seconds, from 3:10 a.m. to 3:51 a.m.

Telephone records also established that although the

signal from DiBenedetto’s other telephone was routed

through a cell tower in New Haven at 3:10 a.m., it was

routed through a tower on Campbell Avenue in West

Haven from 3:51 a.m. to 3:56 a.m. The Campbell Avenue

tower is in the vicinity of Glade Street and was used

by both of DiBenedetto’s cellular telephones at that

time. Additional calls between DiBenedetto’s two telephones were made at 3:52 a.m., 3:55 a.m. and 3:57 a.m.

The police received a 911 call reporting the shooting

at 3:57 a.m.
‘‘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 drying on the chair at 719

Orchard Street. Johnson further testified that DiBenedetto drove a ‘red Pontiac Grand Am GT’ at the time of

the shooting.

‘‘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 paperto a supervisorimmediately.

‘‘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, arguing primarily that the state had not

proven beyond a reasonable doubt that the [petitioner]

had shot the victim. The court denied the motion, and

the jury thereafter found the [petitioner] guilty on all

counts. The court rendered judgment accordingly and

sentenced the [petitioner] to a total effective term of

twenty-five years incarceration.’’ (Footnotes omitted.)

Id., 373–79.

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 must demonstrate that counsel made errors so serious that counsel

was not functioning as the counsel guaranteed . . . by

the Sixth Amendment. . . . 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.’’ (Citations omitted; internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 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); see also Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984) (discussing performance and prejudice prongs necessary to establish ineffective assistance claim).

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 itrelates 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 the

petitioner cannot satisfy Strickland’s prejudice prong

with respect to Attorney Hopkins’ handling of the cell

phone evidence. We agree with the respondent.

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 its effort to establish the movements of the petitioner during the early morning hours of September 30,

2007, the state offered at trial exhibits and testimony

pertaining to the cell phone evidence. Investigation

revealed that DiBenedetto had been talking on her cell

phone with the petitioner up to the time of the incident

and subsequent to it, and that she had two cell phones

registered in her name, both of which were used during

that conversation. The state subpoenaed and offered

as exhibits the T-Mobile call detail records for the calls

placed between DiBenedetto’s two cell phones prior

to, at and subsequent to the time of the shooting. These

records indicated when calls were made and which cell

towers were used to transmit the calls. During its direct

examination of Detective Simone about these cell

phone records, the state elicited his testimony that the

records showed that both of DiBenedetto’s cell phones

were on Glade Street at about the time of the shooting.

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 celltowerlocated 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 omitted.) Scandariato v. Borrelli, 153Conn. App.

819, 826, 105 A.3d 247 (2014). ‘‘In Porter we recognized

that Daubert’s vagueness as to how and when to apply

the factors of the [Daubert] test was necessary. . . .

In order to maintain flexibility in applying the test, we

did not define what constitutes scientific evidence. . . .

Consequently, our initial inquiry is whether the [evidence] at issue . . . is the type of evidence contemplated by Porter.’’ (Citations omitted; internal quotation

marks omitted.) State v. Griffin, 273 Conn. 266, 276,

869 A.2d 640 (2005). The hearing in which this judicial

assessment occurs is referred to as a Porter hearing.

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 afterthe 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

C

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 ‘‘[t]he

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 callforthe 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?

‘‘[Detective Simone]: Yes. At the completion of that

forty-two minute phone call there were, I believe, four

additional calls, not as long in duration. During those

four calls, both phones were in the location of the West

Spring Street cell site.

‘‘[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.’’ With respect to Susan Johnson, the

habeas court noted that a trial attorney’s manner of

questioning a witness is a tactical decision that typically

is not second-guessed by a reviewing court. See Velasco

v. Commissioner of Correction, supra, 119 Conn.

App. 172.

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 ‘‘doubleedged 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 notreasonably probable that any additional or tactically different crossexamination 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 radiofrequency 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 errin 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 lot. Kidd further

testified that he ducked down and that the whole shooting was over in less than one minute. Kidd also testified

that he remembered hearing ‘‘two distinct shots,’’ that

he did not recall seeing more than one shooter, and

that he could only see the shooter’s back.

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 shooting, we readily conclude that the habeas court did not commit error in

denying the petitioner’s habeas petition based upon its

conclusion that he did notreceive ineffective assistance

of counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

1 For the remainder of this opinion, we shall refer to this evidence as the

‘‘cell phone evidence.’’ Specifically, this evidence consisted of cell phone

records and accompanying testimonial evidence that the state offered to

place the petitioner at or near the scene of the crime.

2 Susan Johnson was a representative of the cell phone service provider,

T-Mobile. She was subpoenaed to present the cell phone records that were

admitted as evidence. She also testified about those records at the petitioner’s criminal trial.

3 At the conclusion of the petitioner’s habeas proceedings, the petitioner

withdrew this sixth ground, and it was not addressed by the habeas court

in its memorandum of decision.

4 The petitioner also claims on appeal that there is a reasonable probability

that the jury would have acquitted him if it had heard evidence about the

limitations of the cell phone evidence. Although the petitioner labels this

claim as separate from his other claims that Attorney Hopkins rendered

ineffective assistance in his treatment of the cell phone evidence, we deem

the claim as being integral to our consideration of these other claims because

it addresses the issue of prejudice, if any, resulting from Attorney Hopkins’

treatment of the cell phone evidence.

5 Other testimony established that the gray Ford Taurus that the shooter

was suspected of driving as he fled the scene was headed to this general

area of New Haven.

6 We note that numerous courts across the country have concluded that

such evidence is sufficiently well established that a -hearing concerning its

scientific reliability is unnecessary, provided that it is relevant to the case

at hand. See, e.g., United States v. Jones, 918 F. Supp. 2d 1, 7 (D.D.C. 2013)

(concluding that Daubert hearing was unnecessary for cell phone records

admitted to locate phone at time calls were placed and noting that the ‘‘use
of cell phone records to locate a phone has been widely accepted in both

federal and state courts across the country’’); see also Jackson v. Allstate

Ins. Co., 785 F.3d 1193, 1204 n.5 (8th Cir. 2015) (rejecting argument that

cell site analysis data is inherently unreliable as evidence); United States

v. Schaffer, 439 Fed. Appx. 344, 347 (5th Cir. 2011) (concluding that expert’s

testimony on historical cell site location data was neither ‘‘untested nor

unestablished’’ and holding that trial court did not abuse discretion in permitting FBI agent to testify as expert in field); Stevenson v. State, 222 Md. App.

118, 133, 112 A.3d 959 (2015) (concluding that cell phone location evidence

was not novel scientific evidence requiring hearing similar to Porter hearing

under Maryland law); Wilder v. State, 191 Md. App. 319, 367, 991 A.2d 172

(‘‘[w]e recognize that cellular telephone technology has become generally

understood’’), cert. denied, 415 Md. 43, 997 A.2d 792 (2010); State v. White,

37 N.E.3d 1271, 1280–81 (Ohio App. 2015) (holding that cell site analysis

from FBI special agent was reliable evidence).

7

In addition to the incriminating evidence noted in the memorandum of

decision, the habeas court adopted the facts as set forth by this court in

the petitioner’s direct appeal, which also included incriminating evidence

against the petitioner. Specifically, these recited facts included Officer

Gonce’s testimony that he saw a gray Ford Taurus with New York license

plates fleeing Glade Street at a high rate of speed immediately after the

shooting. State v. Arthur, supra, 128 Conn. App. 374. Further, these facts

included Detective Simone’s testimony that when he searched a gray Ford

Taurus with New York license plates, which was found in DiBenedetto’s

driveway on September 30, 2007, he found and seized photographs of the

petitioner with friends at a nightclub resembling Sports Haven, in which

the petitioner was wearing clothing resembling the clothing worn by the

shooter. These photographs also appeared to have been taken the night

before. Id., 375–76. Detective Simone also testified that when he interviewed

the petitioner, he confirmed that he had been at the Sports Haven nightclub

on the night of September 29, 2007. Id., 376. Detective Simone furthertestified

that during this same interview, the petitioner stated that he did not drive,

despite the fact that DiBenedetto’s neighbor, Brenda Ollison, later testified

at the petitioner’s criminal trial that she had witnessed the petitioner driving

a gray Ford Taurus from DiBenedetto’s residence on the weekend of the

shooting. Id. Finally, the facts that the habeas court adopted included testimony from DiBenedetto’s sister, Lori Ann Johnson, that when she went to

DiBenedetto’s residence on October 1, 2007, she observed the petitioner’s

recently washed clothes on a chair, which resembled the clothes that the

petitioner had been wearing at the Sports Haven nightclub in the photograph

found in the gray Ford Taurus and which resembled the clothing that eyewitnesses observed the shooter to be wearing. Id.

8 Although the petitioner, in his amended petition, did not specifically

claim that Attorney Hopkins rendered ineffective assistance with respect

to his cross-examination, or lack thereof, of Detective Simone, we interpret

the habeas court’s decision to have addressed the substance of this issue

in its discussion of the petitioner’s claim pertaining to Hopkins’ failure to

object to Detective Simone’s testimony.

9 On the next day of trial, Susan Johnson testified that cell site information

indicates which particular cell tower a cell phone’s incoming and outgoing

calls are transmitted through at a given point in time.