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*********************************************** 
DANNY BROWN v. COMMISSIONER

OF CORRECTION

(AC 39476)

DiPentima, C. J., and Elgo and Flynn, Js.

Syllabus

The petitioner, who had been convicted of the crimes of murder and conspiracy to commit murder, sought a writ of habeas corpus, claiming, inter

alia, that the state had violated his due process rights by suppressing

material exculpatory evidence in violation of Brady v. Maryland (373

U.S. 83). Specifically, the petitioner claimed that the state failed to

disclose evidence of express or implied agreements it allegedly had

made with two witnesses, V and S, both of whom also had been charged

in connection with the underlying murder, in exchange for their testimony at the petitioner’s criminal trial. The habeas court rendered judgment denying the habeas petition and thereafter denied the petition for

certification to appeal, and the petitioner appealed to this court. Held:

1. The habeas court did not abuse its discretion in denying the petition for

certification to appeal as to the petitioner’s Brady violation claim, that

court having properly concluded that the state had not committed a

Brady violation with respect to its agreements with V and S to bring

their cooperation in the petitioner’s criminal trial to the attention of the

court in their criminal proceedings; the habeas court’s finding that the

state had disclosed the agreements to the petitioner prior to his criminal

trial was not clearly erroneous and was supported by the evidence in

the record, and because the petitioner did not present evidence that

compelled a finding by the habeas court that the state also had

agreements with V and S to give them favorable treatment at their bond

hearings, the petitioner’s Brady claim and his related claim that the

state improperly failed to correct the false testimony of V and S at his

criminal trial necessarily failed.

2. The habeas court did not abuse its discretion in denying the petition for

certification to appeal as to the petitioner’s claim that his trial counsel

was ineffective in failing to adequately cross-examine V and S, which

was based on the fact that counsel did not order, review or utilize

transcripts of their bond hearings: the record demonstrated that the

reduction of S’s and V’s bonds, as well as the incentive of S and V to

testify at the petitioner’s trial, repeatedly was brought to the attention of

the jury, which was presumed to have followed the accomplice testimony

instruction that it had been given by the trial court, and, therefore, the

petitioner failed to demonstrate a reasonable probability that, but for

his trial counsel’s failure to obtain the bond hearing transcripts and to

cross-examine S and V therewith, the result of his criminal trial would

have been different.

Argued November 13, 2017—officially released January 23, 2018

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district of

Tolland and tried to the court, Cobb, J.; thereafter, the

petition was withdrawn in part; judgment denying the

petition; subsequently, the court denied the petition for

certification to appeal, and the petitioner appealed to

this court. Appeal dismissed.

James E. Mortimer, assigned counsel, with whom,

on the brief, was Michael D. Day, assigned counsel, for

the appellant (petitioner).

Theresa Anne Ferryman, senior assistant state’s

attorney, with whom, on the brief, were Michael L.
Regan, state’s attorney, and Stephen M. Carney, senior

assistant state’s attorney, for the appellee (respondent).
Opinion

ELGO, J. The petitioner, Danny Brown, known also

as Daniel Brown,1 appeals following the denial of his

petition for certification to appeal from the judgment

of the habeas court denying his petition for a writ of

habeas corpus. The petitioner claims that the court

abused its discretion by denying his petition for certification to appeal, and by rejecting his claims that (1)

the state violated his rights to due process and a fair

trial by failing to disclose material exculpable evidence

and failing to correct false testimony from certain witnesses at his criminal trial, and (2) his criminal trial

counsel rendered ineffective assistance. We conclude

that the habeas court did not abuse its discretion in

denying the petition for certification to appeal and,

therefore, dismiss the appeal.

This case involves a homicide in New London. As

the Supreme Court recounted in the petitioner’s direct

appeal, ‘‘James ‘Tiny’ Smith and Darrell Wattley fought

at a party on July 4, 1995. Wattley sliced Smith’s throat

with a box cutter, wounding him superficially. On the

afternoon of July 13, 1995, [the petitioner] and [Jamie]

Gomez picked Smith up at the house of Smith’s mother,

and drove him to [Anthony] Booth’s apartment at 93

State Pier Road in New London. When the three men

arrived at Booth’s apartment, Booth told them that he

had asked Angeline Valentin, who lived in the same

building, to call Wattley over to the building so that

Wattley and Smith could fight. Booth, [the petitioner],

Gomez and Smith watched television while they waited

for Wattley to arrive. During their wait, and while [the

petitioner] was rummaging through a grey knapsack,

Booth asked [the petitioner] whether he ‘[had worn]

gloves when he loaded it.’ Booth also had a knife in his

hand. When Smith asked Booth why he needed the

knife, Booth replied: ‘[D]on’t worry about it, we are just

going to fight him.’

‘‘When Valentin called to say that Wattley was on his

way, the four men left the building and went outside.

Gomez and [the petitioner] went to the north side of

the building while Smith and Booth went to the south

side and hid behind a bush. While they were waiting,

Booth was talking on a cellular telephone to either

[the petitioner] or Gomez. After approximately fifteen

minutes, a car arrived and Wattley got out. Wattley

walked toward the north end of the building, where

[the petitioner] and Gomez were waiting. Smith and

Booth then entered the building on the south side and

began to ascend the stairs. When Smith and Booth

reached the third floor, where Valentin’s apartment was

located, they heard gunshots below. Smith and Booth

then ran to exit the building. As they descended the

stairs, they saw Wattley lying face down in the second

floor hallway with blood everywhere. Booth then

stabbed Wattley a couple of times before Smith and
Booth fled the building.

‘‘The four men ran to a red Mitsubishi, which was

parked on State Pier Road, east of the building. This

car was owned by Gomez’ girlfriend, Dawn Waterson.

Gomez sat in the driver’s seat, and [the petitioner],

Smith and Booth sat in the passenger seats. As they

drove away, [the petitioner] said ‘I robbed that nigger

too.’ [The petitioner] had a knife in his lap, which he

threw out of the window while they were driving.

Gomez drove Waterson’s car across town and parked it

behind a mall. The four men walked through a cemetery

before splitting up. In the cemetery, Booth told them

that, if questioned, he and [the petitioner] would say

that they had been together. In addition, Booth told

Smith and Gomez to come up with an alibi. The four

men then separated.

‘‘A few hours after the murder, Booth approached

Valentin in the parking lot of 93 State Pier Road. Booth

told her that they shot ‘him.’ Booth also told Valentin

that he knew that she would not have lured Wattley to

the building if she had known that they intended to

murder him.’’ (Footnote omitted.) State v. Booth, 250

Conn. 611, 614–15, 737 A.2d 404 (1999), cert. denied

sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S.

Ct. 1568, 146 L. Ed. 2d 471 (2000).

The petitioner subsequently was arrested and a consolidated trial with Booth and Gomez followed, at the

conclusion of which the jury found all three defendants

guilty of murder in violation of General Statutes § 53a54a, and conspiracy to commit murder in violation of

General Statutes §§ 53a-54a and 53a-48 (a).2

Id., 613.

The petitioner directly appealed from that judgment

of conviction, which our Supreme Court affirmed in a

consolidated appeal with Booth and Gomez. Id., 663.

The petitioner commenced this habeas action in 2013.

On March 15, 2016, he filed a second amended petition

for a writ of habeas corpus that contained two counts.

The first alleged ineffective assistance on the part of

his criminal trial counsel, Attorney Jeremiah Donovan,

in failing to adequately cross-examine and impeach the

testimony of Smith and Valentin.3

In the second count,

the petitioner alleged a due process violation stemming

from the state’s handling of allegedly exculpatory evidence regarding the testimony of Smith and Valentin.

More specifically, the petitioner alleged that the state

‘‘failed to disclose material favorable evidence to the

petitioner with respect to an express or implied

agreement’’ with both Smith and Valentin ‘‘for favorable

treatment in [their] then pending criminal case[s] and

failed to correct [their] false or misleading testimony

concerning the same . . . .’’

A habeas trial was held on March 5, 2016, at which

Donovan was the sole witness.4

In its subsequent memorandum of decision, the habeas court rejected the peti-
tioner’s claims. With respect to his ineffective

assistance of counsel claim, the court concluded that

the petitioner failed to satisfy the prejudice prong of

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). As to his claims regarding

the suppression of allegedly exculpatory evidence, the

court found that the petitioner failed to prove the existence of an agreement between the state and Smith and

Valentin that the state had suppressed. In so doing,

the court acknowledged that Donovan, in his habeas

testimony, confirmed that the state had assured Smith

and Valentin that their ‘‘cooperation [at the petitioner’s

criminal trial] would be taken into consideration upon

sentencing.’’ The court nonetheless found that the petitioner had not met his burden in demonstrating that

the state suppressed evidence of that assurance. The

court further found that ‘‘even if the [state] had suppressed evidence, the petitioner also failed to prove

that this evidence would have been material.’’ The court,

therefore, denied the petition for a writ of habeas corpus. The petitioner then filed a petition for certification

to appeal to this court, which the habeas court denied,

and this appeal followed.

On appeal, the petitioner claims that the court abused

its discretion in denying the petition for certification

to appeal. Our standard of review for such claims is

well established. ‘‘Faced with a habeas court’s denial

of a petition for certification to appeal, a petitioner can

obtain appellate review of the dismissal of his petition

for habeas corpus only by satisfying the two-pronged

test enunciated by our Supreme Court in Simms v.

Warden, 229 Conn. 178, 640 A.2d 601 (1994), and

adopted in Simms v. Warden, 230 Conn. 608, 612, 646

A.2d 126 (1994). First, [the petitioner] must demonstrate

that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then

prove that the decision of the habeas court should be

reversed on the merits. . . . A petitioner may establish

an abuse of discretion by demonstrating that the issues

are debatable among jurists of reason . . . [the] court

could resolve the issues [in a different manner] . . .

or . . . the questions are adequate to deserve encouragement to proceed further. . . . In determining

whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s

underlying claims to determine whether the habeas

court reasonably determined that the petitioner’s

appeal was frivolous.’’ (Citation omitted; internal quotation marks omitted.) Ramos v. Commissioner of Correction, 172 Conn. App. 282, 294, 159 A.3d 1174, cert.

denied, 327 Conn. 904, 170 A.3d 1 (2017). With that

standard in mind, we turn to the substantive claims

raised by the petitioner.

I
The petitioner first contends that the court abused

its discretion in denying his petition for certification to

appeal because the state violated his right to due process and a fair trial by failing to disclose material exculpatory evidence in contravention of Brady v. Maryland,

373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

The petitioner claims that the state suppressed evidence

of an agreement between the state and Smith and Valentin in exchange for their testimony at the petitioner’s

criminal trial.

‘‘The law governing the state’s obligation to disclose

exculpatory evidence to defendants in criminal cases

is well established. The defendant has a right to the

disclosure of exculpatory evidence under the due process clauses of both the United States constitution and

the Connecticut constitution. . . . In order to prove a

Brady violation, the defendant must show: (1) that the

prosecution suppressed evidence after a request by the

defense; (2) that the evidence was favorable to the

defense; and (3) that the evidence was material. . . .

‘‘It is well established that [i]mpeachment evidence

as well as exculpatory evidence [fall] within Brady’s

definition of evidence favorable to an accused. . . .

[An express or implied] plea agreement between the

state and a key witness is impeachment evidence falling

within the definition of exculpatory evidence contained

in Brady . . . .

‘‘The [United States] Supreme Court established a

framework for the application of Brady to witness plea

agreements in Napue v. Illinois, 360 U.S. 264, 79 S. Ct.

1173, 3 L. Ed. 2d 1217 (1959), and Giglio v. United

States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104

(1972). . . . Drawing from these cases, [the Connecticut Supreme Court] has stated: [D]ue process is . . .

offended if the state, although not soliciting false evidence, allows it to go uncorrected when it appears. . . .

If a government witness falsely denies having struck a

bargain with the state, or substantially mischaracterizes

the nature of the inducement, the state is obliged to

correct the misconception. . . . Regardless of the lack

of intent to lie on the part of the witness, Giglio and

Napue require that the prosecutor apprise the court

when he knows that his witness is giving testimony that

is substantially misleading. . . . A new trial is required

if the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury.’’ (Citations omitted; internal quotation marks omitted.) State

v. Ouellette, 295 Conn. 173, 185–86, 989 A.2d 1048 (2010).

As our Supreme Court has explained, ‘‘[t]he prerequisite of any claim under the Brady, Napue and Giglio line

of cases is the existence of an undisclosed agreement

or understanding between the cooperating witness and

the state.’’ Id., 186. In its memorandum of decision, the

habeas court found that no specific agreement existed
between the state and either Smith or Valentin, apart

from the state’s assurance that it would bring their

cooperation to the attention of the court in their respective criminal proceedings.

The petitioner now challenges the propriety of that

determination. His claim is governed by the clearly erroneous standard of review. ‘‘The existence of an undisclosed plea agreement is an issue of fact for the

determination of the trial court. . . . [W]here the factual basis of the court’s decision is challenged we must

determine whether the facts set out in the memorandum

of decision are supported by the evidence or whether,

in light of the evidence and the pleadings in the whole

record, those facts are clearly erroneous.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Floyd, 253 Conn. 700, 737, 756 A.2d 799 (2000). ‘‘[A]

finding of fact is clearly erroneous when there is no

evidence in the record to support it . . . or when

although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.’’

(Internal quotation marks omitted.) Orcutt v. Commissioner of Correction, 284 Conn. 724, 742, 937 A.2d 656

(2007). In reviewing the factual findings of a habeas

court, ‘‘[t]his court does not retry the case or evaluate

the credibility of the witnesses. . . . Rather, we must

defer to the [court’s] assessment of the credibility of

the witnesses based on its firsthand observation of their

conduct, demeanor and attitude. . . . The habeas

judge, as the trier of facts, is the sole arbiter of the

credibility of witnesses and the weight to be given to

their testimony.’’ (Internal quotation marks omitted.)

Elsey v. Commissioner of Correction, 126 Conn. App.

144, 153, 10 A.3d 578, cert. denied, 300 Conn. 922, 14

A.3d 1007 (2011).

In this habeas proceeding, the petitioner bore the

burden ‘‘to prove the existence of undisclosed exculpatory evidence.’’ State v. Floyd, supra, 253 Conn. 737.

We agree with the habeas court that the petitioner did

not satisfy that burden.

A

In its memorandum of decision, the court found that

the state had assured both Smith and Valentin that it

would bring their cooperation in the petitioner’s criminal trial to the attention of the court in their respective

criminal proceedings. The court further found that the

state disclosed that agreement to the petitioner prior

to his criminal trial.

The evidence in the record substantiates those findings. Donovan testified at the habeas trial that, in multiple conversations with the prosecutor, he was apprised

that the state made ‘‘no promises to [Smith and Valentin]

other than to bring their cooperation to the attention

of the sentencing judge’’ in their respective proceedings.
On the basis of his extensive experience dealing with

the New London County Office of the State’s Attorney,

Donovan explained that the state’s agreement to bring

Smith’s and Valentin’s cooperation to the court’s attention, but not make any specific promises or representations, was consistent with its general practice at that

time. Donovan further confirmed that he was aware of

that agreement prior to the petitioner’s criminal trial.

The court, as the sole arbiter of credibility, was free to

credit that testimony. See Sanchez v. Commissioner of

Correction, 314 Conn. 585, 604, 103 A.3d 954 (2014)

(‘‘we must defer to the [trier of fact’s] assessment of

the credibility of the witnesses based on its firsthand

observation of their conduct, demeanor and attitude’’

[internal quotation marks omitted]); Taylor v. Commissioner of Correction, 284 Conn. 433, 448, 936 A.2d 611

(2007) (‘‘[t]he habeas judge, as the trier of facts, is the

sole arbiter of the credibility of witnesses and the

weight to be given to their testimony’’ [internal quotation marks omitted]). Moreover, at the conclusion of

the habeas trial, the petitioner’s counsel conceded that

‘‘[w]ith respect to the evidence that was introduced,

[Donovan] was made aware that [Smith and Valentin’s]

cooperation would be brought to the sentencing

judge’s attention.’’

On the basis of that evidence, the court properly

could find that the state disclosed to the petitioner

its agreement with Smith and Valentin to bring their

cooperation to the attention of the court in their respective criminal proceedings. That finding, therefore, is not

clearly erroneous.

B

The petitioner nevertheless claims that, beyond the

agreement addressed in part I A of this opinion, a specific agreement existed between the state and both

Smith and Valentin regarding the lowering of their

respective bonds, which was not disclosed to the petitioner.5 Under Connecticut law, the petitioner bore the

burden of proving the existence of that agreement.

Walker v. Commissioner of Correction, 103 Conn. App.

485, 493, 930 A.2d 65, cert. denied, 284 Conn. 940, 937

A.2d 698 (2007).

The following additional facts, as reflected in the

record and as recited in this court’s recent decision

on the habeas action involving one of the petitioner’s

coconspirators,6 are relevant to this claim. ‘‘On September 13, 1995, Valentin testified during a probable cause

hearing for Booth that implicated Booth in Wattley’s

murder. During Valentin’s bond hearing on October 5,

1995, Bernard Steadman, her attorney, represented: ‘I

have discussed this matter with the state and they

would—my understanding is that there would be no

objection to her moving out of state, should she be

released on a bond, and provided that she maintain

contact with—to or with their office either through
me or directly.’ Steadman asked the court to consider

releasing Valentin on a promise to appear and allowing

her to travel to New Jersey, given her cooperation with

the state, and because Wattley’s murder appeared to be

gang related.7 Paul E. Murray, the supervisory assistant

state’s attorney (prosecutor),8

informed the court: ‘I did

indicate to [Steadman], Your Honor, that I would bring

to the court’s attention [Valentin’s] cooperation, and I

think I’ve done that.’ The prosecutor also informed the

court that he had spoken with Valentin’s mother about

Valentin going to New Jersey and that ‘both [Valentin]

and her mother have agreed . . . to keep the state

apprised as to her location and how she can be reached

. . . .’ In the event that she did not keep the state

apprised of her location, the prosecutor stated that ‘[the

state] will find her and she will have forfeited whatever

benefits she has gained from her cooperation to this

point.’ He also stated: ‘I’m not sure whether a promise

to appear is the appropriate thing, but I think certainly

a substantial reduction in her bond is appropriate.’

Thereafter, the prosecutor stated that he would not

object to a written promise to appear and informed the

court: ‘I think if I were in your position, I would not

be averse to a written promise to appear. I’m trying to

be careful as to—as to the record I’m making.’

‘‘After considering, inter alia, the ‘cooperative aspects

of this matter,’ the court, Purtill, J., reduced Valentin’s

bond from $100,000 to a written promise to appear and

permitted her to reside in New Jersey. Immediately

following that decision, the following colloquy took

place in open court:

‘‘ ‘[The Prosecutor]: . . . For the record, I would

indicate I do not disagree at all with the court’s decision.

I was trying to be careful with the record because of

obvious cross-examination effect. In consideration, I

want the record to be clear that the only representations made to [Valentin] were that any cooperation

would be brought to the attention of the sentencing

court. There was no quid pro quo for a specific bond

recommendation.

‘‘ ‘[Steadman]: That is true, Your Honor.’ . . .

‘‘On March 14, 1996, during a consolidated probable

cause hearing for [the petitioner and Gomez], Smith

provided testimony that implicated [them] in Wattley’s

murder. [Gomez and his trial counsel] attended this

hearing, and so did Donovan, [the petitioner’s] lawyer.

At the beginning of Smith’s testimony, the following

examination took place in open court:

‘‘ ‘[The Prosecutor]: And you are in fact charged with

murder, felony murder, and conspiracy to commit murder with respect to the case that we are going to talk

about, is that right?

‘‘ ‘[Smith]: Yes.

‘‘ ‘[The Prosecutor]: And is it fair to say that other
than bringing your cooperation to the attention of the

sentencing court, you haven’t been promised anything

in return for your testimony?

‘‘ ‘[Smith]: No.

‘‘ ‘[The Prosecutor]: You say ‘no.’ That is the truth,

isn’t it?

‘‘ ‘[Smith]: That’s the truth.’ . . .

‘‘On May 3, 1996, approximately two months after

Smith testified at the consolidated probable cause hearing, the court, Parker, J., addressed Smith’s motion for

modification of his bond. The state did not object to

the motion. Counsel for Smith represented that the reasons for requesting a bond modification were that

Smith’s life had been threatened and he had cooperated

with the state. Thereafter, the court reduced Smith’s

bond from $500,000 to $100,000 and permitted him to

travel throughout the continental United States.

‘‘On May 10, 1996, the court, Purtill, J., amended the

terms of Smith’s bond, making it a $100,000 nonsurety

bond with a nominal real estate bond. During this hearing, the prosecutor stated that the state had been in

contact with a parole officer in Alabama, who agreed

to arrange weekly reporting with Smith if he were

allowed to reside there. The court asked that the state

‘reduce that condition to writing and give a copy to

. . . Smith.’ Smith was then permitted to be released

on bond.’’ (Emphasis in original; footnotes added and

footnote in original.) Gomez v. Commissioner of Correction, 178 Conn. App. 519, 529–31, A.3d (2017).

On appeal, the petitioner renews his claim that a

specific agreement existed between the state and Smith

and Valentin regarding the lowering of their respective

bonds. He presented the habeas court with no evidence

of such a specific agreement. The petitioner did not

call Smith, Valentin, or their trial attorneys as witnesses

at the habeas trial, nor did he introduce the testimony

of the prosecutor. The only evidence he submitted to

support his claim was the transcripts of the bond hearings, which merely indicate that the state did not object

to the bond reductions contemplated therein. The transcripts also contain statements regarding the specific

rationales for those bond reductions. In Smith’s case,

it was the undisputed fact that ‘‘his life [had] been

threatened’’ while incarcerated. In Valentin’s case, it

was because she was only sixteen years old, had no

criminal record at the time of the July 13, 1995 homicide,

and her family was planning on moving out of state

due to ‘‘the gang involvement’’ in that homicide. See

footnote 7 of this opinion. In granting the requested

bond reduction, the court, Purtill, J., stated that it was

‘‘considering mainly the youth of this young lady and

the fact that she would have to be—if she was kept in

confinement here, it would have to be in segregation

because of the circumstances; and for a person of her
age it probably is not at all appropriate, as mentioned

by counsel. That’s the main reason the bond is being

reduced.’’

Furthermore, those bond hearing transcripts do not

indicate that any agreement existed between the state

and Smith and Valentin, apart from the assurance that

their cooperation in the petitioner’s criminal proceeding

would be brought to the sentencing judge’s attention.

As the prosecutor expressly stated during Valentin’s

October 5, 1995 bond hearing: ‘‘I want the record to be

clear that the only representations made to [Valentin]

were that any cooperation would be brought to the

attention of the sentencing court. There was no quid pro

quo for a specific bond recommendation.’’ In response,

Valentin’s attorney stated, ‘‘That is true, Your Honor.’’9

That testimony is consistent with that offered by Donovan at the petitioner’s habeas trial. Donovan testified

that, as a matter of practice, the New London County

Office of the State’s Attorney would not make ‘‘any

specific promises’’ apart from the assurance that the

cooperation of such witnesses would be brought to the

attention of the court in their own criminal proceedings.

Our review of the record reveals that the petitioner

did not present evidence at his habeas trial that compelled a finding that the state reached an agreement

with Smith and Valentin to give favorable treatment at

their bond hearings in exchange for their testimony at

the petitioner’s criminal trial. In light of the foregoing,

the court properly concluded that the petitioner had

not met his burden in demonstrating the existence of

a specific agreement between the state and Smith and

Valentin regarding their bond proceedings. Absent such

an agreement, the petitioner’s Brady claim, as well as

his related claim that the state failed to correct false

testimony related thereto, necessarily fails. See State

v. Ouellette, supra, 295 Conn. 186.

II

The petitioner also claims that the court abused its

discretion in denying his petition for certification to

appeal because Donovan rendered ineffective assistance by failing to adequately cross-examine and

impeach the testimony of Smith and Valentin at trial.

That claim is premised on the undisputed fact that Donovan did not order, and thus did not review and utilize,

the transcripts of Smith and Valentin’s bond hearings.

‘‘To succeed on a claim of ineffective assistance of

counsel, a habeas petitioner must satisfy the twopronged test articulated in Strickland v. Washington,

[supra, 466 U.S. 668]. Strickland requires that a petitioner satisfy both a performance prong and a prejudice

prong. To satisfy the performance prong, a claimant

must demonstrate that counsel made errors so serious

that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment. . . . To satisfy
the prejudice prong, a claimant must demonstrate that

there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding

would have been different. . . . Although a petitioner

can succeed only if he satisfies both prongs, a reviewing

court can find against a petitioner on either ground.’’

(Citations omitted; internal quotation marks omitted.)

Breton v. Commissioner of Correction, 325 Conn. 640,

668–69, 159 A.3d 1112 (2017).

Although he did not obtain the transcripts of their

bond hearings, Donovan testified that, at the time of

the petitioner’s trial, he was aware that Smith and Valentin ‘‘had been released on bond.’’ Donovan testified that

he knew why their bonds had been reduced, which he

utilized in his cross-examination of those witnesses at

trial. The transcripts of the petitioner’s trial, which were

admitted into evidence at the habeas trial, demonstrate

that Donovan questioned both Smith10 and Valentin11

extensively on the issue of their bond reductions, and

the motivations therefor, during the petitioner’s criminal trial. Furthermore, as the habeas court noted in its

memorandum of decision, the transcripts reveal ‘‘that

counsel for the petitioner’s codefendants also questioned both Valentin and Smith concerning their bond

reductions. During [their] cross-examination of Valentin, they both questioned her regarding the fact that her

$150,000 bond was reduced to a promise to appear after

she testified at a preliminary hearing. Furthermore,

[Booth’s attorney] questioned Smith regarding the fact

that his $500,000 bond was reduced and he was subsequently released after he testified at the probable cause

hearing.’’ In addition, both Smith and Valentin in their

testimony at the petitioner’s trial admitted that they

hoped that their cooperation would be taken into

account with regard to their pending charges.

We also note that, in their closing remarks to the

jury, Donovan and counsel for the petitioner’s codefendants all reminded jurors of the circumstances surrounding the bond reductions for Smith and Valentin,

and suggested that those reductions were connected

to their testimony in the consolidated trial. They thus

encouraged the jury to consider that connection in

assessing their credibility as witnesses. Additionally, in

its charge to the jury, the court provided an accomplice

testimony instruction, which cautioned jurors that the

testimony of an accomplice could be ‘‘colored’’ by the

fact that such witnesses may ‘‘be looking for or hoping

for some favorable treatment in the sentence or disposition of his or her case . . . .’’12 Absent an indication to

the contrary, the jury is presumed to have heeded that

instruction. See State v. Wooten, 227 Conn. 677, 694,

631 A.2d 271 (1993) (‘‘[j]urors are presumed to follow

the instructions given by the judge’’ [internal quotation

marks omitted]).

The record before the habeas court thus demon-
strates that the reduction of Smith’s and Valentin’s

bonds, as well as Smith’s and Valentin’s incentive to

testify at the petitioner’s trial, repeatedly was brought

to the attention of the jury at the petitioner’s trial. The

petitioner has not demonstrated how Donovan’s failure

to obtain the transcripts of the bond proceedings

resulted in prejudice, apart from asserting that a review

of those transcripts would have enabled him to impeach

Smith’s and Valentin’s allegedly false testimony that

there was no specific agreement between them and the

state regarding those bond proceedings. That assertion

fails in light of the habeas court’s determination that

no such agreement had been proven, and thus no Brady

violation transpired, which determinations we have

affirmed in part I of this opinion. On our thorough

review of the record, we conclude that the habeas court

properly determined that the petitioner has not demonstrated a reasonable probability that, but for Donovan’s

alleged failure to obtain the bond hearing transcripts

and cross-examine Smith and Valentin therewith, the

result of the petitioner’s criminal trial would have been

different. Accordingly, we conclude that the habeas

court did not abuse its discretion in denying the petition

for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

1 At the habeas trial, the petitioner repeatedly was referred to as ‘‘Danny

Brown.’’ The appeal form filed with this court indicates that it was filed by

‘‘Danny Brown a/k/a Daniel.’’ In its decision on his direct appeal, the Supreme

Court referred to the petitioner as ‘‘Daniel Brown.’’ State v. Booth, 250 Conn.

611, 613, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut,

529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000).

2 The court sentenced the petitioner to a total effective term of fifty-five

years incarceration. State v. Booth, supra, 250 Conn. 613.

3 The first count of the petition also alleged that Donovan was deficient in

failing ‘‘to adequately advise the petitioner concerning his right [to] sentence

review and failed to adequately pursue the same . . . .’’ The petitioner

withdrew that claim at his habeas trial.

4 The petitioner also introduced into evidence transcripts of various proceedings and informations involving the petitioner, Smith, and Valentin. In

addition, a copy of the July 24, 1996 request for disclosure filed by Donovan

prior to the petitioner’s criminal trial was admitted into evidence, in which

Donovan requested, inter alia, disclosure of ‘‘any benefit offered to or conferred upon [any] witness by the prosecuting authority.’’

5 At the habeas trial, the court asked the petitioner’s counsel to clarify

the nature of the allegations contained in the second count of the operative

petition for a writ of habeas corpus. Counsel at that time confirmed that

the second count was predicated exclusively on the state’s ‘‘preexisting

agreement with [Smith and Valentin] to not object to the bond hearing’’ that

allegedly existed and was not disclosed to the petitioner.

6

In Gomez v. Commissioner of Correction, 178 Conn. App. 519, 521–22,

A.3d (2017), this court affirmed the judgment of the habeas court

denying Gomez’ second petition for a writ of habeas corpus, which contained

allegations that largely mirror those advanced in the present action. See

id., 524–25.

7 At the consolidated criminal trial, Waterson testified that the petitioner,

Booth, and Gomez ‘‘were members of the 20 Love gang.’’ State v. Booth,

supra, 250 Conn. 637. As our Supreme Court noted in the petitioner’s direct

appeal, ‘‘there was other testimony concerning [the petitioner’s] alleged

gang membership that properly was admitted at trial.’’ Id., 639.

8

‘‘Murray represented the state at the . . . consolidated criminal trial.

He also represented the state in connection with the criminal proceedings

against Valentin and Smith.’’ Gomez v. Commissioner of Correction, 178
Conn. App. 519, 529 n.9, A.3d (2017).

9 Smith engaged in a similar colloquy with the prosecutor during the March

14, 1996 hearing. See Gomez v. Commissioner of Correction, supra, 178

Conn. App. 530–31.

10 During Smith’s testimony, the following colloquy occurred:

‘‘[Donovan]: . . . As you sit here today, you recognize that there’s some

connection between your being a free man today and your testifying against

these defendants?

‘‘[Smith]: Rephrase that again.

‘‘[Donovan]: Do you think that there may be a connection between your

being a free man today—

‘‘[Smith]: I’m not totally free.

‘‘[Donovan]: When you leave this courtroom, you’ll leave without shackles

on, right?

‘‘[Smith]: Yeah.

‘‘[Donovan]: And when you leave this courtroom, you’ll go back home

. . . .

‘‘[Smith]: Yeah. . . .

‘‘[Donovan]: Sleep in your own bed?

‘‘[Smith]: Yeah. . . .

‘‘[Donovan]: There won’t be any bars on the window?

‘‘[Smith]: No. . . .

‘‘[Donovan]: . . . [T]he point is, that there is a connection between your

being able to enjoy all those things and the fact that you’re sitting up there

on the [witness] stand trying to put the blame on these men, isn’t there?

‘‘[Smith]: I’m just telling the truth.

‘‘[Donovan]: Isn’t there a connection between your waking up in the

morning, eating your own breakfast, going to bed in your own bed at night,

doing your own job, being a free man, and your sitting on the stand testifying

on behalf of the state?

‘‘[Smith]: I’m testifying on my own behalf, telling the truth. . . .

‘‘[Donovan]: It just happens that you came in and testified in a probable

cause hearing, and then miraculously after that you were no longer in jail?

‘‘[Smith]: I was bonded out.

‘‘[Donovan]: Bonded out, yeah. What was your bond when you were

arrested?

‘‘[Smith]: Half a million.

‘‘[Donovan]: And what was your bond when you were bonded out?

‘‘[Smith]: I don’t know, my lawyer took care of that.

‘‘[Donovan]: Isn’t there some connection maybe between your bonding

out and your cooperation?

‘‘[Smith]: No connection.’’

11 During Valentin’s testimony, the following colloquy occurred:

‘‘[Donovan]: Life is more pleasant outside of jail than it is in jail, right?

‘‘[Valentin]: Yes.

‘‘[Donovan]: Now, do you remember the last time you testified in court;

you were in jail, weren’t you?

‘‘[Valentin]: Yes, I was.

‘‘[Donovan]: They brought you from jail here to testify?

‘‘[Valentin]: Yes.

‘‘[Donovan]: And they brought you here to testify against [Booth],

didn’t they?

‘‘[Valentin]: Yes.

‘‘[Donovan]: And you did testify against [Booth], didn’t you?

‘‘[Valentin]: Yes, I did.

‘‘[Donovan]: After you testified against [Booth], you were released from

jail, weren’t you?

‘‘[Valentin]: Yes, I was.

‘‘[Donovan]: Do you think there might be, there just might be, some

connection between you testifying against [Booth] and your not being in

jail anymore?

‘‘[Valentin]: No.

‘‘[Donovan]: You don’t see any connection at all?

‘‘[Valentin]: (Witness nods in the negative.)

‘‘[Donovan]: You think that had you not testified against [Booth], you

would be released right now, do you?

‘‘[Valentin]: I don’t know.

‘‘[Donovan]: This is something that your lawyer has handled for you—

‘‘[Valentin]: Yes.

‘‘[Donovan]: —is that right, arranged for you to get out of jail?
‘‘[Valentin]: Yes.

‘‘[Donovan]: And you don’t think that your cooperating with [the state in

Booth’s proceeding] has anything to do with your being in New Jersey

right now?

‘‘[Valentin]: I don’t know.

‘‘[Donovan]: You don’t know. What do you think in your heart?

‘‘[Valentin]: To be honest, I don’t know. I never really much—I didn’t pay

mind to that. I never really sat down and thought about it.’’

12 The court instructed the jury in relevant part: ‘‘Now, in this case, we

have what we call ‘accomplice testimony.’ Certain of the witnesses, by their

own testimony, participated in one way or another in the criminal conduct

charged by the state in this case. In weighing the testimony of [an] accomplice

who is a self-confessed criminal, you must consider that fact. . . .

‘‘Also, in weighing the testimony of [an] accomplice who has not yet been

sentenced or whose case has not yet been disposed of, you should keep in

mind that he or she may, in his or her own mind, be looking for or hoping

for some favorable treatment in the sentence or disposition of his or her

case, and that therefore, he or she may have such an interest in the outcome

of this case that his or her testimony may be colored by that fact.

‘‘Therefore, the jury must look with particular care at the testimony of

accomplices and scrutinize it very carefully before you accept it.’’