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LESLIE RUSSELL v. COMMISSIONER

OF CORRECTION

(AC 34551)

Lavine, Bear and West, Js.*

Argued January 16—officially released May 6, 2014

(Appeal from Superior Court, judicial district of

Tolland, T. Santos, J.)

Gwendolyn S. Bishop, assigned counsel, for the

appellant (petitioner).

James M. Ralls, assistant state’s attorney, with

whom, on the brief, were Stephen J. Sedensky III, state’s

attorney, and Warren Murray, supervisory assistant

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

WEST, J. The petitioner, Leslie Russell, appeals from

the judgment of the habeas court denying his petition

for a writ of habeas corpus. In this appeal, the petitioner

claims that the court improperly denied his claim of

ineffective assistance of counsel on the basis of his trial

counsel’s failure to object to the victim’s lay testimony

on an ultimate issue in the case. The petitioner specifically argues that his trial counsel rendered ineffective

assistance by not objecting to the victim’s testimony

identifying the petitioner as the individual depicted in

a surveillance videotape that was recorded inside the

victim’s home. We are not persuaded, and therefore,

affirm the judgment of the habeas court.

The following facts and procedural history, as set

forth in the petitioner’s direct appeal; State v. Russell,

101 Conn. App. 298, 302, 922 A.2d 191, cert. denied, 284

Conn. 910, 931 A.2d 934 (2007); are relevant to our

review of this claim. ‘‘The [petitioner] and the victim

. . . met some time in 2001 and dated on again, off

again until January, 2003, when the victim finally broke

off the relationship.’’ Id.

In 2003, the victim experienced two incidents involving the petitioner, which led the victim to believe that

the petitioner had access to information regarding her

schedule. Consequently, ‘‘she purchased a ‘spy camera’

disguised as a flower pot, which she installed on top

of her refrigerator. . . . The camera faced a clock and

the victim’s wall calendar, on which she recorded many

of her and her children’s planned appointments and

events. On the evening of Friday, January 9, 2004, the

victim went out to dinner with some friends. Her children were with their father, as was usual on Fridays,

a fact of which the [petitioner] was aware.

‘‘When the victim returned home at about 11 p.m.,

she played the videotaped footage that her camera had

recorded while she was out. The tape showed that

between 10 and 10:40 p.m., an individual, whom the

victim recognized as the [petitioner], had moved

throughout the kitchen and, apparently, elsewhere

within the house. . . . While in the kitchen, the individualrepeatedly looked through the victim’s calendar, and

he removed her telephone from the wall and accessed

information in its caller identification unit. He opened

a set of louvered doors behind which the victim kept

a bag containing discarded mail for recycling. The individual looked through the bag, removed some of the

papers from within and tucked them into his waistband

near the small of his back. Although $106 in cash was

secured to the front of the victim’s refrigerator, the

individual did not take it. . . . When the police arrived

. . . [n]o intruder was found, and there were no signs

of forced entry.

‘‘On the basis of information supplied by the victim,
a search warrant was obtained for the [petitioner’s]

vehicle and residence. Upon executing that warrant,

the police seized several flashlights, a black knit cap

and a gray hooded sweat jacket with rubber gloves in

the pocket that was hanging on the [petitioner’s] bedpost. . . . When asked by police whether he had a key

to the victim’s house, the [petitioner] immediately

retrieved from a ring a key that matched a key the

victim had provided.

‘‘Thereafter, the [petitioner] was charged with one

count of stalking in the third degree, one count of criminal violation of a protective order and one count of

burglary in the second degree.’’ (Footnotes omitted.)

Id., 305–307. The matter was consolidated for trial with

another incident involving the petitioner and the victim

that resulted in charges of one count of violating a

protective order and one count of stalking in the third

degree. A jury found the petitioner guilty of two counts

of violating a protective order in violation of General

Statutes § 53a-223, two counts of stalking in the third

degree in violation of General Statutes § 53a-181e (a),

and one count of burglary in the second degree in violation of General Statutes § 53a-102 (a) (1). On direct

appeal, this court reversed the petitioner’s conviction

of burglary in the second degree and one count of stalking in the third degree, and remanded the matter to the

trial court with direction to render judgment of not

guilty as to those charges. The judgment was affirmed

in all other respects. Id., 334–35.

Subsequently, the petitioner filed an amended petition for a writ of habeas corpus, alleging, inter alia,

ineffective assistance of his trial counsel, Richard

Arconti.1 Following a one day trial, the habeas court

issued a memorandum of decision denying the amended

petition for a writ of habeas corpus. The court determined that Arconti did not render deficient performance because, following a Franks hearing regarding

the admissibility of the videotape; see Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667

(1978); he employed a reasonable trial strategy by not

objecting to the victim’s testimony identifying the petitioner as the individual depicted in the footage.2 The

habeas court additionally determined that the petitioner

failed to produce any evidence demonstrating a reasonable probability that the outcome of the case would

have been different absent Arconti’s alleged deficient

performance. Thereafter, the habeas court granted the

petition for certification to appeal.

On appeal, the petitioner claims that the habeas court

improperly determined thatArconti’s failure to objectto

the victim’s testimony identifying him as the individual

depicted in the surveillance videotape did not constitute

ineffective assistance of counsel. The petitioner contends that Arconti should have objected to this identification as an impermissible lay opinion on an ultimate
issue in the case, pursuantto § 7-3 (a) of theConnecticut

Code of Evidence, and that his failure to do so resulted

in prejudice to the petitioner. We disagree.

‘‘When reviewing the decision of a habeas court, the

facts found by the habeas court may not be disturbed

unless the findings were clearly erroneous. . . . The

issue, however, of [w]hetherthe representation a defendant received at trial was constitutionally inadequate

is a mixed question of law and fact. . . . As such, that

question requires plenary review by this court unfettered by the clearly erroneous standard. . . . To succeed on a claim of ineffective assistance of counsel,

a habeas petitioner must satisfy the two-pronged test

articulated in Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland

requires that a petitioner satisfy both a performance

prong and a prejudice prong.

‘‘To satisfy the performance prong, a claimant must

demonstrate that counsel made errors so serious that

counsel was not functioning as the counsel guaranteed

. . . by the [s]ixth [a]mendment [to the United States

constitution]. . . . 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.’’ (Internal quotation marks omitted.) Moye v.

Commissioner of Correction, 147 Conn. App. 325, 328–

29, 81 A.3d 1222 (2013), cert. granted on other grounds,

311 Conn. 911, 84 A.3d 880 (2014).

We conclude that the habeas court’s determination

that Arconti rendered effective assistance of counsel

to the petitioner was not improper. We resolve this

claim on the basis of the prejudice prong of the Strickland test. See State v. Lameirao, 135 Conn. App. 302,

327, 42 A.3d 414 (‘‘[i]n its analysis, a reviewing court

may look to the performance prong or to the prejudice

prong, and the petitioner’s failure to prove either is

fatal to a [claim of ineffective assistance of counsel]’’

[internal quotation marks omitted]), cert. denied, 305

Conn. 915, 46 A.3d 171 (2012).

The petitionerfailed to meet his burden of demonstrating that, absent Arconti’s alleged deficient performance, there was a reasonable probability that he

would not have been convicted of the charges against

him. In reaching this conclusion, we are persuaded by

this court’s analysis with respect to the petitioner’s

sufficiency of the evidence claim raised on direct

appeal. State v. Russell, supra, 101 Conn. App. 332–34;

see also Diaz v.Commissioner ofCorrection, 125Conn.

App. 57, 67, 6 A.3d 213 (2010) (‘‘[t]his court’s finding

on direct appeal that the trial court’s statement was

harmless error . . . while not dispositive, is persuasive’’ in resolving petitioner’s habeas claim of ineffective assistance of counsel [citation omitted]), cert.
denied, 299 Conn. 926, 11 A.3d 150 (2011). On direct

appeal, the petitioner claimed that there was insufficient evidence proving that he was the person depicted

in the videotape. State v. Russell, supra, 332.

This court rejected the sufficiency claim, citing an

abundance of evidence, aside from the victim’s testimony, identifying the petitioner as the individual

depicted in the surveillance video: ‘‘Apart from the victim’s testimony, the jury viewed the videotape and was

able to assess for itself whether the individual depicted

therein, on the basis of all of his physical characteristics,

was the [petitioner]. Moreover, substantial circumstantial evidence supported the jury’s finding as to identity.

The individual entered the victim’s home on a Friday

night, a time at which the [petitioner] was aware that

the victim’s children would be with their father. He

seemed familiar with his surroundings, initially checking the room where the victim typically kept a large

dog crated. The police determined that there were no

signs of a forced entry to the victim’s residence; when

they thereafter executed a search warrant at the [petitioner’s] residence, he immediately surrendered a key

to the victim’s residence that she denied ever giving

him. That search warrant also uncovered items of clothing that matched those worn by the person on the videotape. Those items were not in a dresser or closet but

out in the open in the [petitioner’s] bedroom.

‘‘Furthermore, the person on the videotape did not

behave as would a garden variety prowler but,rather, as

someone interested in obtaining personal information

about the victim. He ignored a substantial amount of

cash attached to the victim’s refrigerator and neglected

to abscond with any valuables. Instead, the individual

focused his attention on the victim’s calendar, her caller

identification unit and her discarded mail. In the

absence of any viable alternative suspect, it was not

unreasonable or illogical for the jurors to infer that

the [petitioner], who admittedly had parked near the

victim’s residence in the dark, multiple times per week

for the better part of two years, was the individual who

entered the victim’s residence to forage through her

personal belongings.’’ Id., 332–33.

In light of this court’s holding on direct appeal that

there was ample evidence identifying the petitioner as

the intruder depicted in the videotape, it would be a

significant hurdle for the petitioner to convince us that

there is a reasonable probability that the outcome

would have been different if Arconti had objected to

the victim’s testimony. See Diaz v. Commissioner of

Correction, supra, 125 Conn. App. 67. The record

reflects that the petitioner did not present any evidence

to the habeas court demonstrating a reasonable probability that the jury would not have found him guilty

absent Arconti’s alleged deficient performance.

The habeas court quoted the previously mentioned
evidence in support of its conclusion that the petitioner

failed to demonstrate prejudice pursuant to Strickland.

We agree with the habeas court’s determination. Significantly, the court stated that ‘‘the jury itself saw the

videotape’’ and therefore was able to assess independently whether the petitioner was depicted therein.

(Emphasis in original.) The videotape showed an individual who gained entry into the victim’s home without

force, was familiar with his surroundings, and demonstrated an acute interest in accessing personal information about the victim. On the basis of this evidence,

the jury reasonably could have concluded, without the

victim’s testimony, that the petitioner was the intruder.

Because the petitioner failed to produce any evidence

demonstrating a reasonable probability that he would

not have been convicted absent Arconti’s alleged deficient performance, we conclude that the habeas court

did not improperly determine that the petitioner failed

to demonstrate prejudice pursuant to Strickland.

3

The judgment is affirmed.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 The petitioner additionally claimed ineffective assistance of appellate

counsel, and that his right to due process was violated by prosecutorial

impropriety. Those claims are not presently before this court.

2 Arconti testified that he did not object to the victim’s testimony because,

pursuant to the court’s determination thatthe videotape itself was admissible

on the basis of a Franks hearing; see State v. Ferguson, 260 Conn. 339,

363–64, 796 A.2d 1118 (2002) (describing procedure for Franks hearing); he

believed that the victim’s testimony with respect to the videotape would be

admissible as well. Arconti further testified that he did not object to the

victim’s testimony identifying the petitioner because he believed that it

served to impeach her credibility. Namely, the victim testified that she

recognized the individual in the videotape as the petitioner by his eyes.

Arconti believed that this testimony impeached the victim’s credibility

because the individual’s eyes were obscured by a scarf and hat. The habeas

court determined that Arconti employed a reasonable trial strategy.

Although we do not reach the performance prong of Strickland, we note

that since the time that this case was litigated in 2004, the legal landscape

has changed with respect to eyewitness identification where the victim

knows the defendant prior to identifying him or her as the perpetrator. See

State v. Wilson, 308 Conn. 412, 453 n.18, 64 A.3d 91 (2013), quoting State

v. Guilbert, 306 Conn. 218, 259–60, 49 A.3d 705 (2012); State v. Guilbert,

306 Conn. 218, 259–60, 49 A.3d 705 (2012) (‘‘although there are exceptions,

identification of a person who is well-known to the eyewitness generally does

not give rise to the same risk of misidentification as does the identification of

a person who is not well-known to the eyewitness’’); State v. Williams, 146

Conn. App. 114, 139, 75 A.3d 668 (trial court did not abuse discretion when

it precluded expert testimony regarding eyewitness identification where

victim knew defendant), cert. granted, 310 Conn. 959, 82 A.3d 626 (2013).

In this case, the victim was well-acquainted with the petitioner.

3

In this appeal, the petitioner additionally claims that the habeas court

improperly determined ‘‘that the issue of prejudice concerning the victim’s

opinion testimony with respect to the videotape evidence was res judicata

relying on [this court’s] earlier determination [in State v. Russell, supra, 101

Conn. App. 332–34] that there was sufficient evidence distinct from the

victim’s testimony about the videotape to support the conviction in the

context of the petitioner’s appellate claim of insufficiency of the evidence

to support the verdict.’’ In its memorandum of decision, the habeas court

stated that ‘‘distinct from any application of the two-pronged Strickland

test, the Appellate Court has already determined, based on its review of the

record, that there was sufficient evidence distinct from the victim’s testimony to support the conviction. That determination is res judicata and
binding on this court.’’ (Emphasis altered.)

The habeas court’s decision makes clear that its discussion of res judicata

is wholly distinct from its analysis of the petitioner’s claim under the Strickland test. Because our conclusion is predicated entirely on the habeas

court’s analysis pursuant to the prejudice prong of Strickland, we need

not assess the propriety of its decision as it pertains to the doctrine of

res judicata.