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ANGEL NIEVES v. COMMISSIONER OF CORRECTION

(AC 38172)

Beach, Keller and Norcott, Js.

Argued September 20—officially released December 6, 2016

(Appeal from Superior Court, judicial district of

Tolland, Oliver, J.)

Damon A. R. Kirschbaum, with whom, on the brief,

was Vishal K. Garg, for the appellant (petitioner).

Sarah Hanna, assistant state’s attorney, with whom,

on the brief, were Gail P. Hardy, state’s attorney, and

Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
Opinion

NORCOTT, J. Following a grant of certification to

appeal, the petitioner, Angel Nieves, 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 improperly concluded that he had not demonstrated that his trial counsel rendered ineffective assistance by failing to present

an exculpatory statement made by a state’s witness

describing the perpetrator of the crime with which the

petitioner was charged. We disagree and, accordingly,

affirm the judgment of the habeas court.

The following undisputed facts and procedural history are relevant to the disposition of the petitioner’s

claims. The victim was murdered during a shooting

incident on April 18, 2002. State v. Nieves, 106 Conn.

App. 40, 43, 941 A.2d 358, cert. denied, 286 Conn. 922,

949 A.2d 482 (2008). The petitioner was arrested as a

suspect in March, 2003.1 Of the six witnesses who testified, three gave a similar description of the shooter

to the police and again at trial, and three positively

identified the petitioner as the shooter in court.2 One

witness testified that the petitioner admitted to murdering the victim. The witness whose statement is at issue

in this case, Maria Quinones, did not testify but gave

the same general description of the shooter to Christine

Mertes, the canvassing officer. Unlike other witnesses,

however, Quinones described the shooter as having

neck tattoos.3

On May 31, 2005, following a jury trial, the petitioner

was convicted of murderin violation of General Statutes

§ 53a-54a (a), carrying a pistol without a permit in violation of General Statutes § 29-35, and criminal possession of a firearm in violation of General Statutes § 53a217 (a) (1). On August 30, 2005, the petitioner was

sentenced to a total effective sentence of sixty-eight

years of imprisonment. The petitioner’s conviction was

affirmed on direct appeal. State v. Nieves, supra, 106

Conn. App. 40.

On December 16, 2014, the petitioner filed an

amended petition for a writ of habeas corpus, alleging

that his trial counsel provided ineffective assistance

because they4

failed to offer as ‘‘substantive evidence

a statement relating to the identification of the shooter

under an exception to the hearsay rule.’’ On March 16,

2015, the habeas court, Oliver, J., heard evidence at a

hearing on the petition. On June 19, 2015, the court

denied the petition, finding that trial counsel had not

provided ineffective assistance. The petitioner then

filed a petition for certification to appeal from the

court’s judgment, which the court granted on July 2,

2015. This appeal followed. Additional facts will be set

forth as necessary.

The petitioner first claims that his trial counsel ren-
dered ineffective assistance by failing to introduce the

purportedly exculpatory statement of Quinones,

despite its potential availability under the spontaneous

utterance exception to the hearsay rule, which was

based on trial counsel’s ‘‘erroneous belief that the identification was an inadmissible out-of-court-statement.’’

We are not persuaded.

We begin by setting forth the applicable standard of

review. ‘‘A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at

all critical stages of criminal proceedings. . . . This

right arises under the sixth and fourteenth amendments

to the United States constitution and article first, § 8,

of the Connecticut constitution. . . . As enunciated in

Strickland v. Washington, [466 U.S. 668, 686, 687, 104

S. Ct. 2052, 80 L. Ed. 2d 647 (1984)], [our Supreme Court]

has stated: 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. . . . The claim will succeed only if both prongs

are satisfied.’’ (Internal quotation marks omitted.)

Spearman v. Commissioner of Correction, 164 Conn.

App. 530, 538, 138 A.3d 378 (2016).

‘‘[According to] Strickland, [an ineffective assistance

of counsel] claim must be supported by evidence establishing that (1) counsel’s representation fell below an

objective standard of reasonableness, and (2) counsel’s

deficient performance prejudiced the defense because

there was a reasonable probability that the outcome of

the proceedings would have been different had it not

been forthe deficient performance.’’(Emphasis in original; internal quotation marks omitted.) Hall v. Commissioner of Correction, 124 Conn. App. 778, 782–83, 6

A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d

571 (2011).

‘‘In 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 habeas

petition.’’ (Internal quotation marks omitted.)

Delvecchio v. Commissioner of Correction, 149 Conn.

App. 494, 500, 88 A.3d 610, cert. denied, 312 Conn. 904,

91 A.3d 906 (2014). ‘‘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.’’

(Internal quotation marks omitted.) Banks v. Commissioner of Correction, 147 Conn. App. 331, 338–39, 82

A.3d 658 (2013), cert. denied, 311 Conn. 916, 84 A.3d

883 (2014).

As to the performance prong, ‘‘[i]t is well established

that when analyzing a claim of ineffective assistance,

counsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable professional judgment.’’ (Internal
quotation marks omitted.) Sanders v. Commissioner

of Correction, 83 Conn. App. 543, 551, 851 A.2d 313,

cert. denied, 271 Conn. 914, 859 A.2d 569 (2004).

‘‘[J]udicial scrutiny of counsel’s performance must

be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a

court, examining counsel’s defense after it has proved

unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort

be made to eliminate the distorting effects of hindsight,

to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties

inherent in making the evaluation, a court must indulge

a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance;

that is, the [petitioner] must overcome the presumption

that, under the circumstances, the challenged action

might be considered sound trial strategy.’’(Internal quotation marks omitted.) Spearman v. Commissioner of

Correction, supra, 164 Conn. App. 539.

The facts found by the habeas court regarding trial

counsel’s representation of the petitioner will not be

disturbed absent a showing that they were clearly erroneous. Banks v. Commissioner of Correction, supra,

147 Conn. App. 338. The court’s ultimate determination

as to whether these findings satisfy the legal standard

forineffective assistance of counsel, however, is subject

to plenary review. Id.

In the present case, the habeas court determined that

trial counsel’s representation of the petitioner was not

deficient with respect to counsel’s decision not to introduce Quinones’ statement that the shooter had neck

tattoos under the spontaneous utterance exception to

the hearsay rule. The court also found that the petitioner

was not prejudiced by his trial counsel’s performance.

Specifically, the court correctly and succinctly found

that Quinones, in a subsequent statement to police,

‘‘specifically identif[ied] the petitioner as the shooter,’’

and that counsel’s decision not to attempt to offer the

statement regarding the neck tattoos ‘‘was based on

their carefully considered legal opinions and experience

. . . .’’ The court found that counsel ‘‘did not think the

initial statement qualified as an excited utterance’’ and

were concerned about the possibility of the state offering Quinones’ second statement identifying the petitioner as the shooter into evidence as a response to

any attempt to introduce the statement regarding the

neck tattoos. The court further refused to ‘‘assume that

the jury would have credited the oral statement offered

by the defense to such a degree that it would have

overcome not only the evidence in the trial record,

but a later identification by that same witness of the
petitioner as the killer.’’ These determinations, combined with the state’s ‘‘strong case against the petitioner, including several eyewitnesses to the murder of

the victim,’’ supported a finding that the petitioner had

not suffered any prejudice.

We note that ‘‘our review of an attorney’s performance is especially deferential when his or her decisions are the result of relevant strategic analysis. . . .

Thus, [a]s a general rule, a habeas petitioner will be

able to demonstrate that trial counsel’s decisions were

objectively unreasonable only if there [was] no . . .

tactical justification for the course taken.’’ (Citation

omitted; internal quotation marks omitted.) Spearman

v. Commissioner of Correction, supra, 164 Conn.

App. 540–541.

The petitioner’s trial counsel specifically testified

before the court that they had considered and chosen

not to present Quinones’ statement as part of their trial

strategy. They weighed that choice against the alternative, which was to present it and risk the state offering

into evidence her subsequent statement identifying the

petitioner as the shooter. Thus, even if Quinones’ statement regarding the neck tattoos was a spontaneous

utterance, and, thus, admissible as an exception to the

rule against hearsay,5

the petitioner’s trial counsel were

not obligated to present it. ‘‘[T]he presentation of testimonial evidence is a matter of trial strategy.’’ Chace v.

Bronson, 19 Conn. App. 674, 680–81, 564 A.2d 303, cert.

denied, 213 Conn. 801, 567 A.2d 832 (1989).

Trial counsel reasonably determined that offering

Quinones’ statement would have hurt, rather than

helped, the petitioner’s case.6

‘‘[O]ur habeas corpus

jurisprudence reveals several scenarios in which courts

will not second-guess defense counsel’s decision not

to investigate or call certain witnesses or to investigate

potential defenses, such as when . . . counsel learns

of the substance of the witness’ testimony and determines that calling that witness is unnecessary or potentially harmful to the case . . . .’’ (Emphasis added.)

Gaines v. Commissioner of Correction, 306 Conn. 664,

681–82, 51 A.3d 948 (2012).

Here, there were multiple reasons for trial counsel

not to present Quinones’ statement.7 Quinones’ other

descriptions of the shooter in her first statement were

virtually identical to those of the other eyewitnesses,

and thus, it is inconceivable that, as the petitioner

argues, this evidence would have ‘‘significantly undermined the state’s case against [him].’’ Presenting the

first statement would allow the state to then explore

potential explanations for the discrepancy between her

first statement and those of the other eyewitnesses.8

Trial counsel would therefore have had to impeach their

own witness. Offering the statement regarding the neck

tattoos also would have allowed the state to not only

call Quinones as a witness, but also to offer Quinones’
subsequent identification statement through the testimony of the lead detective, William Siemionko.9 Conn.

Code. Evid. § 8-8 (impeachment of nontestifying declarant with inconsistent statement).10 That statement, if

admitted, would have been potentially harmful to the

petitioner’s case, as it would have not only discredited

Quinones’ original statement regarding the tattoos, but

would have amounted to evidence of another eyewitness identification.11 Trial counsel testified during the

habeas trial proceedings that presenting testimony

through Mertes’report was imprudent as police officers

are aligned with the state. Thus, there were multiple

strategic reasons to not offer Quinones’ statement

regarding the tattoos, despite its potentially exculpatory weight.

The petitioner also argues that the court erred in

concluding that Quinones’ statement identifying the

petitioner as the shooter would have been admitted

into evidence. Specifically, the petitioner asserts that

there was no reasonable basis for the state to present

Quinones as a witness to testify with regard to her

identification of the petitioner as the shooter due to

her violation of a sequestration order. However, the

petitioner does not cite any case law to support his

argument that the sole remedy to a violation of a sequestration orderis to preclude that witness’ testimony in its

entirety. In fact, while a court ‘‘may choose to preclude a

witness from testifying or to strike a witness’ testimony

to remedy unfairness resulting from a violation . . .

the exclusion of witness testimony . . . is not the preferred remedy for a violation of a sequestration order.’’

(Citation omitted; internal quotation marks omitted.)

State v. Guerrera, 167 Conn. App. 74, 99, 142 A.3d 447,

cert. granted on other grounds, 323 Conn. 922, A.3d

(2016). As Quinones’ subsequent statement identifying the petitioner as the shooter probably could12 have

been admitted under several scenarios, we must reject

the petitioner’s argument.

For the foregoing reasons, the habeas court properly

concluded that the petitioner’s trial counsel had not

performed below an objective standard of reasonableness. Accordingly, the petitioner’s claim of ineffective

assistance fails the performance prong of Strickland,

13

and we need notreach whetherthe petitioner was prejudiced14 in a way that deprived him of a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The petitioner turned himself in to the authorities after evading police

for almost a year.

2 Although the descriptions varied slightly, three witnesses agreed that

the shooter was Hispanic and wore a yellow T-shirt and jeans or dark shorts.

Two of those three also testified that the shooter was five feet seven inches

or five feet eight inches. One in-court witness testified that the petitioner

was the shooter, but refused to look at him for in-court identification. The

trial court noted that it had ‘‘very reluctant, frightened . . . witnesses in

this case.’’

3 According to the record, the petitioner does not have neck tattoos, and,
therefore, it was of value to the petitioner to have eyewitness testimony

describing the shooter as having such. In an oral statement to Mertes on

the night of the murder, Quinones described the tattoos as praying hands

on the right side of the shooter’s neck, and Japanese writing on the left

side. The petitioner alleges in his brief that another witness, Norman Figueroa, also described the shooter as having neck tattoos. However, Figueroa’s

alleged statement is not corroborated by the record, nor does the petitioner

argue that the statement should have been presented by trial counsel, and

there is no mention or analysis of any impact of such potential testimony

in the petitioner’s brief. We therefore deem this argument abandoned and

decline to review it. See Fradianni v. Protective Life Ins. Co., 145 Conn.

App. 90, 92 n.2, 73 A.3d 896 (claim or argument not briefed deemed abandoned), cert. denied, 310 Conn. 934, 79 A.3d 888 (2013).

4 Two attorneys, George Flores and Sara Bernstein, represented the petitioner at trial; he alleges that both rendered ineffective assistance of counsel.

5

‘‘The excited utterance exception is well established. Hearsay statements,

otherwise inadmissible, may be admitted into evidence to prove the truth

of the matter asserted therein when (1) the declaration follows a startling

occurrence, (2) the declaration refers to that occurrence, (3) the declarant

observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication by the

declarant.’’ (Internal quotation marks omitted.) State v. Kendall, 123 Conn.

App. 625, 666, 2 A.3d 990, cert. denied, 299 Conn. 902, 10 A.3d 521 (2010).

Mertes testified at the habeas trial that Quinones appeared excited and

upset while describing the shooter. The petitioner relies on this testimony

in an attempt to argue that Quinones’ statement would unequivocally have

been admitted under the spontaneous utterance exception to the hearsay

rule. This is not necessarily so. The record reflects that Mertes did not have

immediate contact with her after the shooting. Therefore, it is not clear

that Quinones’ statement was admissible under the spontaneous utterance

exception, as it must have been made under such circumstances as to negate

the ‘‘opportunity for deliberation and fabrication by the declarant.’’ (Internal

quotation marks omitted.) Id. Regardless, and as later explained, we need

not reach a conclusion as to whether Quinones’ statement qualified as a

spontaneous utterance.

6 The petitioner also argues that trial counsel failed to adequately research

whether Quinones’ statement would fall under the spontaneous utterance

exception. In light of the fact that trial counsel weighed the potential admission of Quinones’ statement against other potentially damaging evidence

that would then have likely been admitted, we need not address whether

such a failure constitutes deficient performance.

7

In reconstructing the circumstances, ‘‘a reviewing court is required not

simply to give [the trial attorney] the benefit of the doubt . . . but to affirmatively entertain the range of possible reasons . . . counsel may have had

for proceeding as [he] did . . . .’’ (Internal quotation marks omitted.)

Michael T. v. Commissioner of Correction, 319 Conn. 623, 632, 126 A.3d

558 (2015).

8 The discrepancy between Quinones’ original statement and the other

eyewitnesses’ testimony was perhaps due to a fear of retaliation by the

petitioner, as it appeared from the record that more than one witness was

fearful of presenting testimony against him.

9 Quinones’ identification statement was originally made to Detective Siemionko during the course of his investigation.

10 Conn. Code. Evid. § 8-8 states: ‘‘When hearsay has been admitted in

evidence, the credibility of the declarant may be impeached, and if

impeached may be supported, by any evidence that would be admissible

for those purposes if the declarant had testified as a witness. Evidence of a

statement ofthe declarant made at any time, inconsistent with the declarant’s

hearsay statement, need not be shown to or the contents of the statement

disclosed to the declarant.’’

11 The record also reflects that Quinones knew the petitioner, which would

amount to an additional reason not to try to admit her statement into

evidence.

12 We have set forth a variety of ways that the trial court could have

admitted Quinones’ statement. It is well settled that a trial court’s ‘‘ruling

on the admissibility of evidence is entitled to great deference. . . . [T]he

trial court has broad discretion in ruling on the admissibility . . . of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned

only upon a showing of a clear abuse of the court’s discretion.’’ (Citations

omitted; internal quotation marks omitted.) State v. Dunbar, 51 Conn. App.

313, 323–24, 721 A.2d 1229 (1998), cert. denied, 247 Conn. 962, 724 A.2d 426
(1999). Thus, the trial court would likely have been well within its province

to admit Quinones’ statement under the previously mentioned methods.

13 Because the petitioner has failed to meet the performance prong of

Strickland, we need not reach the issue of prejudice under Hill v. Lockhart,

474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). ‘‘It is well settled that

[a] reviewing court can find against a petitioner on either ground, whichever

is easier.’’ (Emphasis omitted; internal quotation marks omitted.) Small v.

Commissioner, 286 Conn. 707, 713, 946 A.2d 1203, cert. denied sub nom.

Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008).

14 It should be noted that the petitioner, in his brief, equates the duty of

defense counsel under Strickland to provide effective assistance of counsel

to the duty of prosecutors under Brady v. Maryland, 373 U.S. 83, 87, 83 S.

Ct. 1194, 10 L. Ed. 2d 215 (1963), to disclose exculpatory evidence. In sum,

the petitioner argues that this court should conclude that the failure of trial

counsel to present Quinones’ testimony is equivalent to a Brady violation

because of its exculpatory content. This is incorrect and must be addressed.

Prosecutors have a duty under Brady and rule 3.8 (4) of the Rules of

Professional Conduct to disclose ‘‘to the defense . . . all evidence or information known to the prosecutor that tends to negate the guilt of the accused

or mitigates the offense . . . .’’ No such duty applies to defense counsel.

As explained previously, defense counsel has the discretion to make a

strategic decision whether to present a witness’ statement that, although

potentially exculpatory in nature, may hurt rather than help the defense’s

case.