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*********************************************** 
CALVIN BENNETT v. COMMISSIONER OF

CORRECTION

(AC 37131)

Lavine, Elgo and Beach, Js.

Syllabus

The petitioner, who had been convicted of the crimes of aiding and abetting

murder, felony murder, home invasion and burglary in the first degree,

sought a writ of habeas corpus, claiming that his trial counsel had

rendered ineffective assistance by, inter alia, failing to adequately challenge the eyewitness testimony of B and C. At the habeas trial, the

petitioner claimed, inter alia, that his trial counsel should have offered

expert testimony on the issue of the reliability of eyewitness identification, and the petitioner presented the testimony of a legal expert, S, in

support of that claim. The petitioner also offered into evidence as a full

exhibit a copy of the transcript of certain expert testimony at a hearing,

pursuant to State v. Porter (241 Conn. 57), in the trial of his codefendant,

M, and the habeas court declined to admit the transcript into evidence

as a full exhibit. 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 with respect to the petitioner’s claims that the

court improperly declined to admit as a full exhibit the transcript of

the expert testimony presented at M’s criminal trial and that his trial

counsel performed deficiently by inadequately challenging eyewitness

testimony, the petitioner having failed to demonstrate that the issues

he raised were debatable among jurists of reason, or that a court could

have resolved them in a different manner.

2. The habeas court did not abuse its discretion in declining to admit the

transcript of the expert testimony from M’s criminal trial into evidence

as a full exhibit, which the petitioner claimed was admissible for the

purpose of showing the basis for S’s expert opinions: although, in certain

circumstances, the information that an expert witness relied on may be

admissible for the purpose of showing the basis for the opinions of that

expert, there was no requirement that such documents be admitted as

a full exhibit, as the facts contained therein were hearsay, and the record

showed that S testified at length about the developments in the law

regarding eyewitness identification, about the opinions expressed by

the expert in M’s criminal trial, and about studies underlying the changes

in the law; moreover, the habeas court did not err by not taking judicial

notice of the transcript, as the opinions expressed by the expert witness

in M’s criminal trial were not the sort of uncontested facts contemplated

by the concept of judicial notice, and the court acted within its discretion

under the applicable provision (§ 2-1) of the Connecticut Code of Evidence, and the petitioner’s unpreserved claim that the habeas court

should have admitted the transcript as a full exhibit pursuant to the

residual exception to the hearsay rule was not reviewable, the petitioner

having failed to raise the claim before the habeas court.

3. The petitioner could not prevail on his claim that the habeas court erred

in concluding on the merits that his right to the effective assistance of

counsel was not violated: that court did not err in its conclusion that

the petitioner’s trial counsel did not perform deficiently by not moving

to suppress B’s in-court identification of the petitioner, as trial counsel’s

performance had to be considered in light of the legal standards in

effect at the time of the petitioner’s criminal trial, which allowed for

the exclusion of an in-court identification only when it was tainted by

an unnecessarily suggestive and unreliable out-of-court identification,

and provided that, in all other circumstances, as here, a defendant’s

protection against the obvious suggestiveness in any courtroom confrontation was his right to cross-examination, which trial counsel here performed effectively; moreover, there was no merit to the petitioner’s

claim that his trial counsel performed deficiently by not presenting an

expert on the issue of eyewitness identification, as the controlling law
at the time of the petitioner’s criminal trial discouraged the use of expert

testimony on that issue and it was, thus, reasonable for trial counsel to

use cross-examination to attack the weight of the testimony of B and

C, and the petitioner’s claim that his trial counsel performed deficiently

by not emphasizing, in the course of cross-examination, certain factors

identified as important by our Supreme Court in evaluating the reliability

of an eyewitness identification was unavailing, as trial counsel’s performance could not be evaluated according to standards enunciated by

our Supreme Court three years after the criminal trial.

Argued December 11, 2017—officially released June 12, 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, Fuger, J.; judgment

denying the petition; thereafter, the court denied the

petition for certification to appeal, and the petitioner

appealed to this court. Appeal dismissed.

Michael W. Brown, assigned counsel, for the appellant (petitioner).

Michele C. Lukban, senior assistant state’s attorney,

with whom, on the brief, were Maureen Platt, state’s

attorney, and Marc G. Ramia, senior assistant state’s

attorney, for the appellee (respondent).
Opinion

BEACH, J. The petitioner, Calvin Bennett, 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. On appeal, the

petitioner claims that the habeas court (1) abused its

discretion in denying his petition for certification to

appeal, (2) abused its discretion in declining to admit

into evidence a transcript from the criminal trial of

another defendant, and (3) erred in finding that his right

to the effective assistance of counsel at his criminal trial

had not been violated. We disagree and, accordingly,

dismiss the appeal.

Our Supreme Court, in the petitioner’s direct appeal,

recited the following facts, as found by the three judge

trial court. ‘‘[The victim] James Caffrey lived in the

second floor apartment of 323 Hill Street in Waterbury

with his girlfriend Samantha Bright and one other roommate. [The victim’s] mother, Emilia Caffrey, lived in the

first floor apartment. In the late afternoon of Saturday,

October 26, 2008, [the victim] and Bright had five visitors, including [the codefendant] Tamarius Maner, in

their living room. Maner had a clear view of the bedroom from where he was seated in the living room.

Maner purchased a small amount of marijuana from

[the victim] and paid him some money, which [the victim] put in the bedroom. [The victim] kept the marijuana

in the bedroom. [The victim] remarked that he had

saved $500 for a child that he was expecting with Bright.

‘‘At about that time, Maner and the [petitioner] lived

next door to each other in Bridgeport and had done drug

business together. Maner contacted the [petitioner] by

cell phone during the evening of Saturday, October 26.

Shortly after midnight on Sunday, October 27, Maner

and the [petitioner] drove from Bridgeport to Waterbury

to go to [the victim’s] apartment. They were carrying

loaded handguns.

‘‘Just after 1 a.m., the doorbell to the second floor

apartment at 323 Hill Street rang and [the victim]

answered the door. A conversation of a few seconds

with . . . [the victim] ensued. Maner then shot [the

victim] in the face from a distance of one to three

feet with a .45 caliber handgun. [The victim] fell in the

hallway in a pool of blood and died from the gunshot

wound to the head.

‘‘Maner and the [petitioner] walked past [the victim]

and into a bedroom. There the [petitioner] put a gun

to Bright’s head and asked: Where is everything? Bright

understood the question to inquire about money and

drugs. Bright referred them to the top dresser drawer.

Maner opened it and threw its contents on the bedroom floor.

‘‘At about that time, they heard the screams of Emilia

Caffrey, who had heard the shot and discovered her
son lying in the second floor hallway. The [petitioner]

told Bright to keep her head down and face toward

the wall. Maner and the [petitioner] then ran into the

kitchen, which Emilia Caffrey had also entered in order

to call 911. Maner, who was standing at the stove, fired

one shot at [Emilia] Caffrey and missed. The [petitioner]

was standing at the window.

‘‘Maner and the [petitioner] then ran out of the

kitchen, pushing [Emilia] Caffrey to the floor as they

left. They returned to their car and arrived back in

Bridgeport around 2 a.m.

‘‘Police interviews of some of the Waterbury visitors

to [the victim’s] apartment on the afternoon of October

26 led to the identity of Maner . . . . Further police

investigation, including analysis of Maner’s cell phone

calls, brought police to an apartment in Bridgeport

where they found the [petitioner]. The [petitioner] voluntarily returned to Waterbury with the police and told

them that he had not left Bridgeport on the night in

question. When confronted with the fact that his cell

phone records showed him in Waterbury during the

time of the crimes, the [petitioner] put his head down

for a minute and then indicated that he had nothing

more to say. A search, pursuant to a warrant, of his

apartment in Bridgeport revealed a suitcase containing

the [petitioner’s] clothes, a loaded .45 caliber pistol,

and a sock containing sixty-one rounds of ammunition.’’

(Internal quotation marks omitted.) State v. Bennett,

307 Conn. 758, 761–63, 59 A.3d 221 (2013).

Our Supreme Court noted that the petitioner ‘‘was

charged with aiding and abetting murder in violation

of General Statutes §§ 53a-8 and 53a-54a, felony murder

in violation of General Statutes § 53a-54c, home invasion in violation of General Statutes § 53a-100aa (a) (1),

and burglary in the first degree in violation of General

Statutes § 53a-101 (a) (3). The [petitioner] elected a trial

to a three judge court . . . . The panel, consisting of

Cremins, Crawford and Schuman, Js., rendered a

unanimous verdict of guilty on all of the charges except

aiding and abetting murder, on which a majority of

the panel found the [petitioner] guilty, and thereafter

rendered judgment in accordance with the verdict and

imposed a total effective sentence of sixty years imprisonment. . . . [T]he [petitioner] directly appealed from

the judgment of conviction to [our Supreme Court]. On

appeal, the [petitioner] contend[ed]: (1) that there was

insufficient evidence to convict him of aiding and abetting murder; and (2) that he did not knowingly waive

his right to a jury trial.’’ (Citation omitted.) Id., 760–61.

Our Supreme Court reversed the judgment as to the

petitioner’s first claim but affirmed it in all other

respects. Id., 777.

In his amended petition for a writ of habeas corpus,

filed February 4, 2014, the petitioner claimed that his

trial counsel, Lawrence Hopkins, rendered ineffective
assistance by, among other things, failing adequately

to challenge the eyewitness testimony of Bright and

Emilia Caffrey. The habeas court denied the petition

for a writ of habeas corpus and a subsequent petition

for certification to appeal from the court’s judgment.

This appeal followed. Additional facts will be discussed

as necessary.

I

The petitioner claims that the habeas court erred in

denying his petition for certification to appeal from the

denial of his habeas petition. Specifically, he argues

that because the issues are debatable among jurists

of reason and a court could have resolved the issues

differently, the habeas court abused its discretion in

denying his petition for certification to appeal.

‘‘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. . . . To prove that the denial of his petition for

certification to appeal constituted an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are

debatable among jurists of reason; that a court could

resolve the issues [in a different manner]; or that 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. In other words, we review

the petitioner’s substantive claims for the purpose of

ascertaining whether those claims satisfy one or more

of the three criteria . . . adopted by [our Supreme

Court] for determining the propriety of the habeas

court’s denial of the petition for certification.’’ (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction, 169 Conn. App. 813,

821–22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904,

156 A.3d 536 (2017).

As we discuss more fully in parts II and III of this

opinion, we disagree with the petitioner’s claims that

the habeas court abused its discretion in declining to

admit as a full exhibit a transcript of expert testimony
presented at Maner’s criminal trial and that Hopkins

performed deficiently in inadequately challenging eyewitness testimony. Because the resolution of the petitioner’s claims does not involve an issue that is

debatable among jurists of reason and a court could

not reasonably have resolved the issues differently, we

conclude that the habeas court did not abuse its discretion in denying certification to appeal from the denial

of the petition for a writ of habeas corpus.

II

We turn to the question of whether the habeas court

abused its discretion in refusing to admit as a full exhibit

a transcript of expert testimony from Maner’s criminal

trial. The petitioner argues that the transcript was relevant evidence in support of his claim that Hopkins rendered ineffective assistance by failing to present at the

criminal trial an expert witness on the issue of the

reliability of eyewitness identification. We conclude

that the habeas court did not abuse its discretion in its

evidentiary ruling.

We first set forth our standard of review. ‘‘To the

extent [that] a trial court’s admission of evidence is

based on an interpretation of [our law of evidence], our

standard of review is plenary. For example, whether

a challenged statement properly may be classified as

hearsay and whether a hearsay exception properly is

identified are legal questions demanding plenary

review. . . . We review the trial court’s decision to

admit [or exclude] evidence, if premised on a correct

view of the law, however, for an abuse of discretion.

. . . The trial court has wide discretion to determine

the relevancy of evidence and the scope of cross-examination. . . . Thus, [w]e will make every reasonable

presumption in favor of upholding the trial court’s ruling[s] [on these bases] . . . . In determining whether

there has been an abuse of discretion, the ultimate

issue is whether the court . . . reasonably [could have]

conclude[d] as it did.’’ (Internal quotation marks omitted.) Weaver v. McKnight, 313 Conn. 393, 426, 97 A.3d

920 (2014).

‘‘[A]n out-of-court statement offered to establish the

truth of the matter asserted is hearsay. . . . As a general rule, such hearsay statements are inadmissible

unless they fall within a recognized exception to the

hearsay rule. . . . A hearsay statement that does not

fall within one of the traditional exceptions to the hearsay rule nevertheless may be admissible under the residual exception to the hearsay rule provided that the

proponent’s use of the statement is reasonably necessary and the statement itself is supported by equivalent

guarantees of trustworthiness and reliability that are

essential to other evidence admitted under traditional

exceptions to the hearsay rule. . . .

‘‘Reasonable necessity may be established by show-
ing that unless the hearsay statement is admitted, the

facts it contains may be lost, either because the declarant is dead or otherwise unavailable, or because the

assertion is of such a nature that evidence of the same

value cannot be obtained from the same or other

sources.’’ (Citations omitted; internal quotation marks

omitted.) Corbett v. Commissioner of Correction, 133

Conn. App. 310, 319–20, 34 A.3d 1046 (2012).

The following additional facts, which appear in the

record, are relevant. At his habeas trial, the petitioner

claimed that Hopkins should have offered expert testimony on the issue of the reliability of eyewitness identification. The petitioner presented a legal expert, Lisa

Steele, who testified comprehensively. Although she

was qualified as a legal expert, the habeas court did

not find Steele to be qualified as an expert in the science

of eyewitness identification. Steele then testified that

she had reviewed all of the transcripts and briefs in the

cases of both the petitioner and Maner;1

she had also

reviewed the witness statements by Bright and Emilia

Caffrey. Steele opined that Hopkins could have applied

State v. Ledbetter, 275 Conn. 534, 881 A.2d 290 (2005),

cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed.

2d 537 (2006), and State v. Marquez, 291 Conn. 122,

967 A.2d 56, cert. denied, 558 U.S. 895, 130 S. Ct. 237,

175 L. Ed. 2d 163 (2009), to highlight weaknesses in the

identification procedures used in the present case to

identify the petitioner as a perpetrator. Specifically, the

police had used nonblind simultaneous photographic

arrays, and the officer conducting the process knew the

identities of the suspects. Steele opined that Hopkins

should have forcefully highlighted the effects of stress,

lighting, and the threatened use of weapons on the

reliability of eyewitness identification through crossexamination and by using an expert in the field of eyewitness identification.

Steele contrasted the petitioner’s criminal case to

that of Maner, in which the expert testimony of Steven

Penrod, a psychologist, was presented. She noted that

Penrod had testified about the subconscious influences

that officers exert in the presentation of photographic

arrays to witnesses when the officers are aware of a

suspect’s identity. She said that an expert such as Penrod would have been effective in educating the three

judge court about factors such as the effect of stress

on eyewitness identification. On cross-examination, the

respondent, the Commissioner of Correction, elicited

from Steele the information that Maner was convicted

despite the use of Penrod at his trial.

During Steele’s testimony, the petitioner offered into

evidence as a full exhibit his exhibit 19 for identification, which was a copy of the transcript of the Porter2

hearing in Maner’s trial on the issue of Penrod’s qualifications as an expert. Steele had reviewed the transcript

prior to her testimony, and from it she gleaned informa-
tion regarding the science of eyewitness identification

as it related to Maner’s trial. The respondent objected

to its introduction as a full exhibit, apparently on relevancy grounds, because the testimony took place in the

trial of a different defendant and the trial took place

approximately one year after the petitioner’s criminal

trial. The habeas court and the petitioner’s counsel then

engaged in the following colloquy:

‘‘The Court: [W]hat’s the purpose you’re seeking to

introduce this for?

‘‘[The Petitioner’s Counsel]: Your Honor, I seek to

submit it as a full exhibit for the purpose of the information that . . . Steele reviewed and the basis of formulating her opinions or the opinions that she will be

formulating in this particular trial.

‘‘The Court: Not for the truth contained within?

‘‘[The Petitioner’s Counsel]: Not as far as what happened to . . . Maner’s trial or anything like that. Basically, just the information regarding the science of

witness identification.

‘‘The Court: Well, there, I assume, is testimony by

. . . Penrod?

‘‘[The Petitioner’s Counsel]: Correct.

‘‘The Court: And are you seeking to have me accept

that as for the truth contained in that testimony?

‘‘[The Petitioner’s Counsel]: For that limited purpose,

yes, Your Honor.

‘‘The Court: How’s that not hearsay?

‘‘[The Petitioner’s Counsel]: Well, I believe Your

Honor can take judicial notice [of] the particular transcript. If nothing else, it was a part of . . . Maner’s

appeal and that part of his appellate record.

‘‘The Court: What do I care about . . . Maner’s

[appeal]? I mean . . . this case involves [the petitioner].

‘‘[The Petitioner’s Counsel]: I understand that, but

. . . Maner was [the petitioner’s] codefendant . . . . I

submit to the court that the information contained

therein is relevant to [the petitioner] as far as the eyewitness identification is concerned, and the . . . availability of the information that . . . Hopkins had and failed

to utilize at the time of [the petitioner’s] trial.

‘‘The Court: Objection’s sustained.’’

The record reveals, then, that the rationale advanced

for admission as a full exhibit was somewhat scattered.

The petitioner first suggested that the exhibit was

admissible for the purpose of showing a basis for

Steele’s opinions. Although, in some circumstances,

such information may be admissible for that limited

purpose,3

there is no requirement that such documents
be admitted as full exhibits, because the ‘‘facts’’ contained therein are hearsay nonetheless. See, e.g., Tadros

v. Tripodi, 87 Conn. App. 321, 329, 866 A.2d 610 (2005)

(‘‘[t]he court was well within its discretion to allow [the

witness] to testify as to the bases of his expert opinion,

regardless of whether the documentation on which he

relied was itself admissible’’ [emphasis added]). The

record reveals that Steele testified at considerable

length about the developments in the law regarding

eyewitness identification, including Ledbetter and State

v. Guilbert, 306 Conn. 218, 49 A.3d 705 (2012),4

she

testified about the opinions which Penrod had

expressed during the Porter hearing in Maner’s criminal

trial; and the petitioner agreed in his brief that Steele

testified about the studies underlying the changes in

the law. The court did not abuse its discretion in declining to admit the transcript as a full exhibit on the basis

of it having been used in the formulation of Steele’s

expert opinions.

The petitioner also argues that the court erred by not

taking judicial notice of the transcript, because it was

a document created in the course of another judicial

proceeding. Section 2-1 of the Connecticut Code of Evidence states in relevant part that ‘‘[a] court may, but

is not required to, take notice of matters of fact, in

accordance with subsection (c),’’ which provides that

a ‘‘judicially noticed fact must be one not subject to

reasonable dispute in that it is either (1) within the

knowledge of people generally in the ordinary course

of human experience, or (2) generally accepted as true

and capable of ready and unquestionable demonstration.’’ The opinions expressed by Penrod were simply

not the sort of uncontested facts contemplated by the

concept of judicial notice. See, e.g., State v. Guilbert,

supra, 306 Conn. 230 (admissibility of expert testimony

dependent on whether witness offered as expert has

any peculiar knowledge or experience, not common to

world, which aids fact finder); see also State v. Porter,

241 Conn. 57, 84–85, 698 A.2d 739 (1997), cert. denied,

523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).

In any event, the rule on its face grants discretion to

the court, and the court did not abuse its discretion,

especially in light of Steele’s testimony on the same

topic.

The petitioner argues on appeal that the court should

have admitted the transcript as a full exhibit pursuant

to the residual exception to the hearsay rule. This reasoning was not advanced to the habeas court and, thus,

was not preserved for review. ‘‘An appellant who challenges on appeal a trial court’s exclusion of evidence

is limited to the theory of admissibility that was raised

before and ruled upon by the trial court. A court cannot

be said to have refused improperly to admit evidence

during a trial if the specific grounds for admission on

which the proponent relies never were presented to the

court when the evidence was offered. . . . Error does
not lie in the exclusion of evidence claimed on an inadmissible ground even though it might have been admissible had it been claimed on another and different

ground [at trial]. . . . A contrary policy would allow

trial court proceedings to become a Kafkaesque academic test which [the trial judge] may be determined

to have failed because of questions never asked of him

or issues never clearly presented to him.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Polynice, 164 Conn. App. 390, 401, 133 A.3d 952, cert.

denied, 321 Conn. 914, 136 A.3d 1274 (2016). We, therefore, decline to review the claim that the transcript

should have been admitted on the basis of the residual

exception to the hearsay rule.5

Finally, Steele testified about the many resources

available to Hopkins at the time of the petitioner’s criminal trial, including the science that was beginning to

be accepted in the law. We do not see what value the

transcript would have added to the habeas court’s analysis. The habeas court did not abuse its discretion in

declining to admit exhibit 19 into evidence as a full

exhibit.

III

The petitioner also claims that the habeas court erred

in concluding on the merits that the petitioner’s right

to the effective assistance of counsel was not violated.

The petitioner argues that Hopkins performed deficiently by inadequately challenging the eyewitness testimony of Bright and Emilia Caffrey. Specifically, he

argues that Hopkins should have moved to suppress

the identification made by Bright and should have more

effectively challenged the testimony of Bright and Emilia Caffrey. We disagree.

We begin with the standard of review applicable to

this claim. ‘‘The habeas court is afforded broad discretion in making its factual findings, and those findings

will not be disturbed unless they are clearly erroneous.

. . . Historical facts constitute a recital of external

events and the credibility of their narrators. . . .

Accordingly, [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. . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question

of law and fact, which is subject to plenary 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 674 (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. . . .

‘‘To prove his or her entitlement to relief pursuant

to Strickland, a petitioner must first satisfy what the

courts refer to as the performance prong; this requires

that the petitioner demonstrate that his or her counsel’s

assistance was, in fact, ineffective in that counsel’s performance was deficient. To establish that there was

deficient performance by the petitioner’s counsel, the

petitioner must show that counsel’s representation fell

below an objective standard of reasonableness. . . . A

reviewing court must view counsel’s conduct with a

strong presumption that it falls within the wide range

of reasonable professional assistance. . . . The range

of competence demanded is reasonably competent, or

within the range of competence displayed by lawyers

with ordinary training and skill in the criminal law. . . .

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

highly deferential. . . . 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. . . . 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 . . . .’’ (Citations omitted; internal quotation marks

omitted.) Spearman v. Commissioner of Correction,

164 Conn. App. 530, 537–39, 138 A.3d 378, cert. denied,

321 Conn. 923, 138 A.3d 284 (2016).

The following additional facts are relevant. At the

habeas trial, Hopkins testified that he hired an investigator to interview witnesses but did not use the results

of that investigation in the petitioner’s defense. Hopkins

testified to knowing that Bright and Emilia Caffrey were

shown photographic arrays, which included a photograph of the petitioner two days after the shooting, and

that Bright had not been able to identify the petitioner

at that time. Bright later identified the petitioner at a

probable cause hearing and at trial. Hopkins also testified that he had reviewed Bright’s statement to police,

in which she said that she did not get a good look at

either of the two intruders. Hopkins said he ‘‘never

pursued a motion to suppress [Bright’s in-court identifi-
cations] . . . because, really, we used all of that background . . . for purposes of cross-examination, both

in the probable cause hearing and at trial, and made a

big issue out of it in front of . . . the three judge panel.’’

The habeas court then engaged in the following discussion with the petitioner’s counsel.

‘‘The Court: [Counsel], may I ask you a question?

‘‘[The Petitioner’s Counsel]: Yes, Your Honor.

‘‘The Court: [Bright] did not identify [the petitioner]. Correct?

‘‘[The Petitioner’s Counsel]: Correct.

‘‘The Court: What . . . is there to suppress?

‘‘[The Petitioner’s Counsel]: The in-court identification, Your Honor.

‘‘The Court: That’s her testimony.

‘‘[The Petitioner’s Counsel]: Well, it was. It wasn’t. But

it was also an identification that was made in court—

‘‘The Court: Well, I understand.

‘‘[The Petitioner’s Counsel]: —when asked.

‘‘The Court: But she’s there. She’s under oath.

‘‘[The Petitioner’s Counsel]: Correct.

‘‘The Court: She’s subject to cross-examination. . . .

[W]here is anything to be suppressed?

‘‘[The Petitioner’s Counsel]: I claim that a motion still

could have been done, argued. I’ll move off this subject

and I’ll—

‘‘The Court: I’m not telling you to move off. I’m just

asking you: where is the evidence that was subject to

a potential motion for suppression?

‘‘[The Petitioner’s Counsel]: Well, it would have been

the in-court identification. You could have moved to

suppress that. You could have also addressed it through

cross-examination.

‘‘The Court: Didn’t [Hopkins] just say he did that?

‘‘[The Petitioner’s Counsel]: Correct. I’m just clarifying things, Your Honor.

‘‘The Court: So, what motion was [Hopkins] to have

filed pretrial before [Bright] made an identification in

court?

‘‘[The Petitioner’s Counsel]: It would have been a

motion to suppress, but he did not do that.

‘‘The Court: There was nothing to suppress.

‘‘[The Petitioner’s Counsel]: And I—

‘‘The Court: Was there?

‘‘[The Petitioner’s Counsel]: —understand that, Your
Honor. That is correct, Your Honor. . . . Your Honor’s

correct. I’ll withdraw that line of questioning. I won’t

proceed further on that.’’

The petitioner’s counsel then asked Hopkins if he

sought to suppress Emilia Caffrey’s identification of the

petitioner. Hopkins responded that he did not, stating: ‘‘I

just didn’t feel that there were any reasonable grounds

upon which to base such a motion.’’

In its memorandum of decision, the habeas court

stated the following: ‘‘The petition . . . attempts to

take . . . Hopkins to task for failing to adequately

address a suppression motion as to the pretrial eyewitness identification of the petitioner by . . . Bright.

What emerged loud and clear from the testimony that

was received in this case is that there really were not

any grounds upon which the evidence could be suppressed at trial. The petitioner’s own legal expert also

made it abundantly clear in her testimony that it was

her opinion that there was no basis upon which the

evidence could be prevented from being presented to

the three judge panel. So, there is nothing in . . . Hopkins’ trial representation on this point that merits

habeas relief. . . .

‘‘At the outset of this discussion, it is clear that . . .

Hopkins did an outstanding job of cross-examining both

of the eyewitnesses on their identifications. The transcripts reveal it to be a vigorous and thorough job.

All of the facts that were necessary to undermine the

credibility and reliability of those identifications of the

petitioner were elucidated on [cross-examination]. In

fact, the petitioner’s own legal expert conceded as much

in her testimony.’’

The petitioner claims that pursuant to the principles

stated in State v. Dickson, 322 Conn. 410, 141 A.3d 810

(2016), cert. denied, U.S. , 137 S. Ct. 2263, 198

L. Ed. 2d 713 (2017), decided approximately two years

after the decision of the habeas court in the present

case, Hopkins should have moved to suppress Bright’s

identification of the petitioner because she had been

unable to identify the petitioner from a photographic

array several days after the shooting, but later made

in-court identifications. At the probable cause hearing,

Bright testified that she first recognized the petitioner

when he had appeared in court after his arrest.

In Dickson, our Supreme Court concluded ‘‘that first

time in-court identifications, like in-court identifications that are tainted by an unduly suggestive out-ofcourt identification, implicate due process protections

and must be prescreened by the trial court.’’ Id., 426.

The court specifically described the state of the law

prior to its decision in Dickson: an in-court identification was subject to exclusion only when tainted by

an unnecessarily suggestive and unreliable out-of-court

identification; otherwise, an in-court identification was
subject only to cross-examination. Id., 422–23. The

court further stated that its holding regarding prescreening was to apply only to future cases and pending

related cases, and was not to be applied retroactively

in habeas actions. Id., 450–51 and 451 n.34.

At the time of the petitioner’s criminal trial, the controlling law was State v. Smith, 200 Conn. 465, 512 A.2d

189 (1986), overruled in part by State v. Dickson, 322

Conn. 410, 141 A.3d 810 (2016), cert. denied, U.S.

, 137 S. Ct. 2263, 198 L. Ed. 2d 713 (2017). In Smith,

our Supreme Court stated that it knew ‘‘of no authority

which would prohibit, as unduly suggestive, an exclusively in-court identification. . . . The defendant’s protection against the obvious suggestiveness in any

courtroom confrontation is his right to cross-examination. . . . The innate weakness in any in-court testimonial identification is grounds for assailing its weight

rather than its admissibility.’’ (Citations omitted; internal quotation marks omitted.) Id., 470.

We of course consider Hopkins’ performance in light

of standards in effect at the time of the petitioner’s

criminal trial. ‘‘Counsel . . . performs effectively when

he elects to maneuver within the existing law . . . .’’

(Internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 462, 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).

At the time of the petitioner’s criminal trial, there was

no legal ground for suppression, and Hopkins crossexamined effectively. The habeas court did not err in

its conclusion that Hopkins did not perform deficiently

by not moving to suppress Bright’s identification.

The petitioner also argues that Hopkins did not adequately attack the identifications made by Bright and

Emilia Caffrey. The petitioner specifically points to factors such as lighting, the short duration of the incident,

and stress experienced by the witnesses at the time

they saw the perpetrators, which, he now claims, should

have been more forcefully developed. He also posits

that the identifications were cross-racial and, as such,

would have affected the reliability of the identifications.

The petitioner argues that Hopkins should have used

an expert and should have stressed more applicable

case law.

There is no merit to the claim that Hopkins performed

deficiently by not presenting an expert on the issue of

eyewitness identification. At the time of the petitioner’s

criminal trial, the controlling law on the issue was State

v. Kemp, 199 Conn. 473, 507 A.2d 1387 (1986), overruled

in part by State v. Guilbert, 306 Conn. 218, 49 A.3d 705

(2012), in which our Supreme Court observed ‘‘that

the reliability of eyewitness identification is within the

knowledge of jurors and expert testimony generally

would not assist them in determining the question. . . .

Such testimony is also disfavored because . . . it
invades the province of the jury to determine what

weight or effect it wishes to give to eyewitness testimony.’’ (Citation omitted; internal quotation marks

omitted.) Id., 477.

Three years after the petitioner’s criminal trial, our

Supreme Court decided Guilbert, which overruled

Kemp. The court concluded that Kemp was ‘‘out of step

with the widespread judicial recognition that eyewitness identifications are potentially unreliable in a variety of ways unknown to the average juror.’’ State v.

Guilbert, supra, 306 Conn. 234. The court also observed

that cross-examination ‘‘often is not as effective as

expert testimony at identifying the weaknesses of eyewitness identification testimony because cross-examination is far better at exposing lies than at countering

sincere but mistaken beliefs.’’ Id., 243. The court noted

that ‘‘some circumstances undoubtedly call for more

than mere cross-examination of the eyewitness.’’ (Internal quotation marks omitted.) Id., 244.

Again, because the law in effect at the time of the

criminal trial discouraged the use of expert testimony

on the issue of eyewitness identification, Hopkins did

not perform deficiently by not presenting expert testimony. It was reasonable for Hopkins to use cross-examination to attack the weight of the testimony of Bright

and Emilia Caffrey. Therefore, the habeas court did not

err in failing to find deficient performance pertaining

to this claim.

Finally, the petitioner claims that Hopkins performed

deficiently by not stressing in the course of cross-examination, even if an expert were not called to testify,

several factors identified as important in Guilbert. Performance of counsel is not to be evaluated according

to standards enunciated three years after the criminal

trial. For example, in State v. Marquez, supra, 291 Conn.

164–65, our Supreme Court had held that a nonblind

photographic array was not unnecessarily suggestive.

We have reviewed the record of the cross-examinations6

and we conclude that the habeas court did not err in

finding the performance adequate.

The appeal is dismissed.

In this opinion the other judges concurred.

1 Maner, a coparticipant in the petitioner’s criminal activity, was tried

separately from, and after, the petitioner. The transcripts of Maner’s trial

were available to the petitioner at his habeas trial.

2 See State v. Porter, 241 Conn. 57, 80–90, 698 A.2d 739 (1997), cert. denied,

523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).

3 Section 7-4 (b) of the Connecticut Code of Evidence provides: ‘‘The facts

in the particular case upon which an expert bases an opinion may be those

perceived by or made known to the expert at or before the proceeding. The

facts need not be admissible in evidence if of a type customarily relied on

by experts in the particular field in forming opinions on the subject. The

facts relied on pursuant to this subsection are not substantive evidence,

unless otherwise admissible as such evidence.’’ (Emphasis added.)

4 Steele was appellate counsel for the defendant in both Ledbetter and

Guilbert.

5 We note that, although a court may take judicial notice of a file in another

case; see, e.g., State v. Bunkley, 202 Conn. 629, 648, 522 A.2d 795 (1987);
the specific evidence sought to be admitted is subject to ordinary evidential

standards, such as relevance and hearsay. State v. Speers, 17 Conn. App.

587, 601–602, 554 A.2d 769, cert. denied, 211 Conn. 808, 559 A.2d 1142, cert.

denied, 493 U.S. 851, 110 S. Ct. 150, 107 L. Ed. 2d 108, cert. denied sub nom.

George v. Connecticut, 493 U.S. 893, 110 S. Ct. 241, 107 L. Ed. 2d 192

(1989). Such evidence may well be admissible to show that information

or documentation exists, as opposed to the truth of the information or

documentation. See, e.g., Heritage Village Master Assn., Inc. v. Heritage

Village Water Co., 30 Conn. App. 693, 701, 622 A.2d 578 (1993); see also C.

Tait & E. Prescott, Connecticut Evidence (5th Ed. 2014) § 2.16.5, p. 125. In

the present case, there was no dispute that the information existed.

6 During Hopkins’ cross-examination of Bright, he stressed, among other

things, her inability to give to the police an accurate description of the

intruders due to lighting issues, inconsistencies between her initial statement

to the police and testimony at trial, her not looking at the intruders because

she was told to look away, the short duration of the incident, and her inability

to pick the petitioner from a photographic array shortly after the shooting.

During Hopkins’ cross-examination of Emilia Caffrey, he asked her, among

other things, about her statement to the police in which she stated that she

did not get a good look at one of the two intruders, presumably the petitioner,

her being startled because she was fired upon, the short duration of the

incident, and her hesitancy in selecting the petitioner from a photographic array.