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MARCO CAMACHO v. COMMISSIONER

OF CORRECTION

(AC 34678)

Robinson, Sheldon and Bishop, Js.*

Argued December 6, 2013—officially released March 4, 2014

(Appeal from Superior Court, judicial district of

Tolland, Newson, J.)

Joseph Visone, assigned counsel, for the appellant

(petitioner).

Ronald G. Weller, senior assistant state’s attorney,

with whom, on the brief, were Brian Preleski, state’s

attorney, and Angela R. Macchiarulo, senior assistant

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

BISHOP, J. The petitioner, Marco Camacho, appeals

from the judgment of the habeas court denying his

petition for a writ of habeas corpus. The petitioner

claims that the court erred in finding that his appellate

counsel did not render ineffective assistance by failing

to challenge the propriety of: (1) the admission, at trial,

of a 911 tape recording from the victim; and (2) reference made by the prosecutor at trial to the petitioner’s

nickname, ‘‘Killer.’’ We affirm the judgment of the

habeas court.

The petitioner was charged with and, following a jury

trial, convicted of four counts of murder in violation

of General Statutes § 53a-54a, four counts of felony

murder in violation of General Statutes § 53a-54c, one

count oftampering with evidence in violation of General

Statutes § 53a-155, one count of larceny in the first

degree in violation of General Statutes § 53a-122 (a)

(3), one count of robbery in the first degree in violation

of General Statutes § 53a-134 (a) (1), one count of possession of narcotics with intent to sell in violation of

General Statutes § 21a-277 (a), one count of possession

of a stolen firearm in violation of General Statutes § 53a212, and one count of conspiracy to commit the crimes

of murder, possession of narcotics with intent to sell,

robbery in the first degree, larceny in the first degree,

and tampering with evidence in violation of General

Statutes §§ 53a-48, 53a-54a (b), 21a-277 (a), 53a-134 (a)

(1), 53a-122 (a)(3), and 53a-155,respectively. Following

the conviction, the trial court sentenced the petitioner

to a total effective term of 260 years imprisonment. The

petitioner unsuccessfully appealed from his conviction.

State v. Camacho, 282 Conn. 328, 924 A.2d 99, cert.

denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273

(2007).

The facts set out by the court in Camacho provide

the evidentiary backdrop for the issues before us. ‘‘At

approximately 8:30 p.m., on September 25, 1996, a

Southington police department emergency dispatcher

received a 911 call from 932 Shuttle Meadow Road, the

residence of Nick Votino. Responding to the call, the

police discovered four persons dead from gunshot

wounds in the master bedroom: Nick Votino,1 his daughter, Joanne Votino, Lynn Suszynski and Wayne Barrows.

‘‘Police found evidence of recent cocaine use at the

crime scene, and Votino, Suszynski and Barrows all

tested positive for cocaine in toxicology tests performed in conjunction with their autopsies. Police also

found crack cocaine, drug paraphernalia and a large

quantity of a cutting agent used in the process of making

crack cocaine.

‘‘Weeks before the murders, in the beginning of September, 1996, the [petitioner] and Eric Henry, with

whom the [petitioner] sold drugs, were living in the
Southington home of Henry’s girlfriend, Raquel Martin.

. . . The [petitioner] and Henry had been using Martin’s

residence as the base of operations to sell crack

cocaine. Previously, the [petitioner] had been supplying

Henry with drugs to sell, and had moved into Martin’s

house in order to facilitate his drug dealing business.

The [petitioner] and Henry became partners, with the

[petitioner] supplying the drugs and Henry supplying

protection as well as expanding the [petitioner’s] market with his own group of acquaintances. Additionally,

Votino had been selling drugs for the [petitioner]. As a

result of his own drug habit, Votino had become

indebted to the [petitioner] in the amount of $400. The

[petitioner] had taken a necklace belonging to Votino

as collateral on the debt. . . .

‘‘[On September 25, 1996, at] approximately 4:30 p.m.,

Martin drove the [petitioner] and Henry to Votino’s

house because the [petitioner] wanted to discuss the

debt that Votino owed him. Martin, who waited in the

living room while the [petitioner], Henry and Votino

spoke in the kitchen, overheard Votino say that he had

$200 worth of crack cocaine left to sell, but would

need more to sell in order to pay off his debt to the

[petitioner]. . . . The [petitioner] told Votino that he

would come back later that night with more drugs for

Votino to sell, and warned that Votino had better be

home and have sold some of the drugs he already had

before the [petitioner] returned.

‘‘Thereafter, Martin drove the [petitioner] and Henry

to the [petitioner’s] mother’s house in New Britain

where the [petitioner] picked up some clothing in a

black backpack. When they returned to Martin’s house,

the [petitioner] paged his drug supplier, Pedro Ramirez,

and he and Henry went to meet him. The [petitioner]

purchased crack cocaine from Ramirez and told Ramirez he was about to ‘stick somebody up,’ which Ramirez

took to mean that the [petitioner] intended to rob

someone.

‘‘After the [petitioner] and Henry had returned to

Martin’s house, the [petitioner] entered Martin’s bedroom with a gun in a small black pouch, gloves and

bullets. The [petitioner] then put the bullets in the gun,

wiped down the gun and put it back into the pouch.

Henry took the gun from the [petitioner] and put it in

the waistband of his pants. The [petitioner] and Henry

then left in Martin’s car for Votino’s house.

‘‘Approximately one-half hour after they had left Martin’s house, Henry telephoned Martin from Votino’s bedroom and told her that he and the [petitioner] would

be returning to her house shortly. Martin heard sounds

of a party-like atmosphere and Votino’s voice in the

background. At the same time, unbeknownst to the

[petitioner] and Henry, Joanne Votino was in her bedroom speaking on the telephone to her boyfriend,

Demond Johnson. Johnson heard four or five loud
noises that he thought sounded like gunshots, followed

by Joanne Votino yelling, ‘[w]hat’s going on,’ and banging on the door to the master bedroom. Johnson then

heard Joanne Votino scream, ‘[o]h my God,’ followed

by a loud thump as she fell to the ground, as a result

of being shot. Joanne Votino screamed Johnson’s name

and told him to call 911, which he did. . . .

‘‘Although he had fled the state, the [petitioner]

stayed in contact with a number of people in Connecticut, trying to determine how much the police knew and

how to cover his tracks. . . . On Tuesday, October 1,

1996, the [petitioner] surrendered to police at his aunt’s

house in Beaufort, South Carolina, where he had fled

. . . .’’ (Footnote omitted.) Id., 333–41.

The petitioner filed a petition for a writ of habeas

corpus on July 10, 2007. In the amended petition dated

August 16, 2011, the petitioner alleged: (1) in count one,

that his constitutionalrightto a public trial was violated;

(2) in count two, that his constitutional right to be

present during the trial was violated; (3) in count three,

that his constitutional right to an impartial jury was

violated; (4) in count four, that his constitutional right

to confrontation was violated; (5) in count five, that his

constitutional rights to due process and a fair trial were

violated; (6) in count six, that his constitutional right

to the effective assistance of trial counsel was violated;

and (7) in count seven, that his constitutional right

to the effective assistance of appellate counsel was

violated. The respondent, the Commissioner of Correction, filed a return on August 17, 2011, generally denying

the allegations in the petition and raising the special

defenses of procedural default and res judicata as to

counts one through five. On September 9, 2011, the

respondent filed a motion to dismiss counts one, two,

and three on the ground of procedural default, and

counts four and five on the ground of res judicata or,

alternatively, procedural default. In response, the court

dismissed counts one through three on the ground of

procedural default, and count four on the ground of res

judicata. The court did not, however, dismiss count five,

as it found neither res judicata nor procedural default

to apply given the allegations in the petition. Camacho

v. Warden, Superior Court, judicial district of Tolland,

Docket No. CV-07-4001839 (October 24, 2011). The matter was tried to the court, Newson, J., on the remaining

three counts on September 12, 14, and 23, 2011, and

January 5, 2012. On April 30, 2012, the court denied the

petition for a writ of habeas corpus. The petitioner filed

a petition for certification to appeal on May 7, 2012,

which was granted by the court. Because the petitioner

appeals only from the court’s denial of his claims as

they relate to appellate counsel, we confine our review

to the claims set forth in the seventh count. Additional

facts will be set forth as necessary.

As noted, the petitioner contends that the court erred
in finding that appellate counsel did not render ineffective assistance by failing to argue that the petitioner’s

due process rights were violated by: (1) the admission

at trial of a 911 tape recording of the victim’s call for

assistance; and (2) reference by the prosecutor at trial

to the petitioner as ‘‘Killer.’’

We first address decisional law that is applicable to

the issues presented for review and the standard that

sets the contours of our assessment on review. ‘‘In

Strickland v. Washington, 466 U.S. 668, 671, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984), the United States Supreme

Court articulated a two part analysis for evaluating constitutional claims of ineffective assistance of counsel.

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not

functioning as the counsel guaranteed the defendant

by the Sixth Amendment. Second, the defendant must

show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors

were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable. . . . Our Supreme

Court has adopted that two part analysis in reviewing

claims of ineffective assistance of appellate counsel.

. . .

‘‘The first part of the Strickland analysis requires the

petitionerto establish that appellate counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. . . . [A]

court must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances,

the challenged action might be considered sound trial

strategy. . . . The right to counsel is not the right to

perfect representation. . . . While an appellate advocate must provide effective assistance, he is not under

an obligation to raise every conceivable issue. A brief

that raises every colorable issue runs the risk of burying

good arguments . . . in a verbal mound made up of

strong and weak contentions. . . . Indeed, [e]xperienced advocates since time beyond memory have

emphasized the importance of winnowing out weaker

arguments on appeal and focusing on one central issue

if possible, or at most on a few key issues. . . . Most

cases present only one, two, or three significant questions. . . . The effect of adding weak arguments will

be to dilute the force of the stronger ones. . . . Our

Supreme Court has stated that [i]t is possible to leave

out a dispositive issue on appeal and nevertheless, to

have furnished a petitioner with adequate counsel under

the sixth amendment. . . . Finally, [i]f the issues not

raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual

burden since the failure to pursue unmeritorious claims

cannot be considered conduct falling below the level
of reasonably competent representation.’’ (Citations

omitted; internal quotation marks omitted.) Mozell v.

Commissioner of Correction, 87 Conn. App. 560, 562–

64, 867 A.2d 51, cert. denied, 273 Conn. 934, 875 A.2d

543 (2005).

‘‘For claims of ineffective assistance of appellate

counsel, we must assess whether there is a reasonable

probability that, but for appellate counsel’s failure to

raise the issue on appeal, the petitioner would have

prevailed in his direct appeal, i.e.,reversal of his conviction or granting of a new trial. . . . [T]o determine

whether a habeas petitioner had a reasonable probability of prevailing on appeal, a reviewing court necessarily

analyzes the merits of the underlying claimed error in

accordance with the appropriate appellate standard for

measuring harm.’’ (Internal quotation marks omitted.)

Moody v. Commissioner of Correction, 127 Conn. App.

293, 301, 14 A.3d 408, cert. denied, 300 Conn. 943, 17

A.3d 478 (2011).

Our review of the judgment of the habeas court is

carefully circumscribed. ‘‘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.’’ (Citations omitted; internal quotation

marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 677, 51 A.3d 948 (2012).

The law governing a petitioner’s claim of ineffective

assistance of counsel for failure to raise claims on

appeal is well established. ‘‘The determination of which

issues to present, and which issues not to present, on

an appeal is by its nature a determination committed

to the expertise of appellate counsel, and not to his

client. . . . By that determination, appellate counsel

seeks to focus the concern of the appellate court on

those issues which he deems to be most persuasive, and

thus does appellate counsel most effectively present

his client’s appeal.’’ (Citation omitted.) Valeriano v.

Bronson, 12 Conn. App. 385, 390, 530 A.2d 1100 (1987),

aff’d, 209 Conn. 75, 546 A.2d 1380 (1988). ‘‘[A] habeas

court will not, with the benefit of hindsight, secondguess the tactical decisions of appellate counsel. Legal

contentions, like the currency, depreciate through overissue. . . . [M]ultiplying assignments will dilute and

weaken a good case and will not save a bad one. . . .

The effect of adding weak arguments will be to dilute

the force of the stronger ones.’’ (Internal quotation

marks omitted.) Farnum v. Commissioner of Correc-
tion, 118 Conn. App. 670, 679, 984 A.2d 1126 (2009),

cert. denied, 295 Conn. 905, 989 A.2d 119 (2010). We

also note that ‘‘[i]t 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.’’ (Citation omitted.) Strickland

v. Washington, supra, 466 U.S. 689. With the general

principles that guide our review in mind, we turn, now,

to an assessment of the particular claims.

I

The petitioner first contends that the habeas court

erred by finding that appellate counsel did not render

ineffective assistance for failing to argue that the petitioner’s right to due process was violated by the admission of a 911 tape recording into evidence. Specifically,

the petitioner contends that ‘‘[w]hen the cumulative

effects of the improperly admitted [911 tape], coupled

with the prosecutor’s remarks, are viewed as a whole,

the habeas court’s reliance on the adequacy of curative

instructions fails . . . because the cumulative effect of

errors committed at trial may be so severe that they

cannot be erased from the jurors’ minds with nothing

more than a limiting instruction.’’ We are unpersuaded.

During the petitioner’s criminal trial, the state introduced a 911 tape recording of Joanne Votino’s call to

police that she made after she had been shot and during

which she can be heard gasping for breath, unable to

talk. The habeas court noted that the petitioner’s trial

counsel objected to the admission of the tape on relevancy grounds and on the ground that its prejudicial

effect outweighed its probative value but, after argument, the court admitted the tape as a full exhibit.2 The

tape was played during trial and was replayed by the

prosecutor during the rebuttal portion of the state’s

closing argument. On direct appeal, the petitioner did

not assert that the admission of the 911 tape was error;

rather, counsel argued only that playing the tape during

closing argument by the prosecutor constituted misconduct. This claim failed on review. State v. Camacho,

supra, 282 Conn. 377–78.

During the habeas trial, appellate counsel testified

that while she considered raising a distinct issue concerning the admission of the tape at trial, she decided,

instead, to limit the scope of the appeal to the issues

she perceived to be her strongest. As a consequence,

she decided to focus exclusively on the following issues:

(1) a claim that it was error for the court to have admitted hearsay statements made by Henry to Martin and
Fusco; and (2) a claim of prosecutorial misconduct.

With regard to the admission of the 911 tape recording,

counsel testified that, while ‘‘I could have robed [such

a claim] in constitutional garb, I think the best I could

do with it was to bring it through the [prosecutorial]

misconduct claim.’’

On the basis of our review, we find no fault with

the habeas court’s decision that the petitioner was not

deprived of the effective assistance of appellate counsel

by failing to challenge the admission of the 911 tape

recording on review. As noted by the habeas court, the

determination of which issues to raise on appeal is a

matter of tactics and strategy best left to the discretion

of appellate counsel, and such determinations will not

be overturned on review unless a reviewing court is

convinced that there was not a reasonable basis for

them. See United States ex rel. Roche v. Scully, 739 F.2d

739, 742 (2d Cir. 1984) (‘‘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 defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy.’’ [Internal quotation marks

omitted.]); Alterisi v. Commissioner of Correction, 145

Conn. App. 218, 232, 77 A.3d 748 (stating there is strong

presumption of reasonableness that attaches to appellate counsel’s tactical decisions), cert. denied, 310

Conn. 933, 78 A.3d 859 (2013). The petitioner has failed

to prove that counsel’s strategy on appeal ‘‘fell below

an objective standard of reasonableness . . . .’’ Mozell

v. Commissioner of Correction, supra, 87 Conn. App.

563. In sum, on the record before us, we conclude that

the habeas court did not abuse its discretion in

determining that appellate counsel’s decision to forgo

raising this issue on appeal was reasonable.

II

The petitioner next claims that the habeas court erred

in finding that appellate counsel did not render ineffective assistance for failing to argue that the petitioner’s

right to due process was violated by the repeated reference to the petitioner’s nickname, ‘‘Killer,’’ at trial. Specifically, the petitioner argues that the court ‘‘failed to

consider the cumulative effects on [his] right to a fair

trial when the reference to the nickname ‘Killer’ was

evaluated in light of the prejudicial effects the 911 tape

had on the jury . . . as well as the effects on the jury

that resulted from the prosecutor’s over-reach during

closing argument . . . .’’ See State v. Camacho, supra,

282 Conn. 382. We disagree.
The following additional facts are relevant to our

resolution of this claim. Prior to the beginning of the

criminal trial, the court granted the petitioner’s motion

to exclude any reference at trial to his nickname,

‘‘Killer.’’ At trial, the state called Martin as a witness.

During direct examination, the prosecutor questioned

Martin as to whether she knew the petitioner by name.

Martin replied that the petitioner was known by Marco,

Camacho, and ‘‘Killer.’’ Defense counsel immediately

moved for a mistrial and the jury was excused. Out of

the jury’s presence, a discussion arose between the

court and the parties during which Martin confirmed

that the prosecutor had told her not to mention the

nickname ‘‘Killer’’ during hertestimony. Martin claimed,

instead, that she had simply been confused by the question regarding the petitioner’s name. The court denied

the petitioner’s motion for a mistrial while instructing

Martin not to refer to the petitioner as ‘‘Killer’’ again.

When the jury returned, the court gave a curative

instruction that the jury should disregard the nickname

completely, that the use of the nickname should be

stricken from the record, and that the jury should not

take the nickname into consideration in its deliberations. Thereafter, Martin testified for two more days

without again referring to the petitioner as ‘‘Killer.’’

Approximately six weeks later,the state recalled Martin as a witness. During direct examination, the prosecutor asked Martin about discussions she had had with

Henry after the murders, and, in responding, Martin

once again referred to the petitioner as ‘‘Killer.’’ When

defense counsel objected, the jury was excused, and

counsel moved for a mistrial for the second time. In

the jury’s absence, Martin apologized to the court and

explained that her use of the nickname had been unintended. The court found that Martin’s use of the nickname was accidental and ‘‘not so prejudicial to warrant

a mistrial.’’ Accordingly, the court denied the petitioner’s motion and, when the jury returned, gave a second

curative instruction concerning the reference to the

petitioner by his nickname, ‘‘Killer.’’ On appeal, appellate counsel did not challenge the court’s denial of either

motion for a mistrial.

In addition to Martin’s references to the petitioner

as ‘‘Killer,’’ the court chastised the prosecutorfortelling

the jury that he was submitting a document ‘‘with the

exception of the nickname.’’ Defense counsel immediately moved for a mistrial, but the court denied the

motion. The court told the prosecutor that ‘‘[i]t was not

good judgment to mention that in front of the jury.’’

At the habeas trial, appellate counsel testified that

she recalled considering the multiple references to the

petitioner as ‘‘Killer’’ throughout trial as a potential

claim on appeal. Ultimately, however, she stated that

she determined that a claim concerning the use of the

nickname by Martin and the prosecutor at trial would
be a ‘‘difficult claim to make.’’

As noted, each time Martin used the term ‘‘Killer,’’

the court gave a curative instruction to the jury. ‘‘We

are mindful that curative instructions are not a cureall for every improper event that may transpire during

a trial. . . . The likely effectiveness of such a remedy

is dependent on the magnitude of the impropriety to

which it is directed.’’ (Citation omitted.) State v. Nance,

119 Conn. App. 392, 406, 987 A.2d 376, cert. denied, 295

Conn. 924, 991 A.2d 569 (2010). Importantly, ‘‘absent

clear evidence to the contrary, we presume that the

jury followed the court’s instructions.’’ Id., 405. ‘‘While

the remedy of a mistrial is permitted under the rules

of practice, it is not favored. . . . If curative action can

obviate the prejudice, the drastic remedy of a mistrial

should be avoided. . . . The general rule in Connecticut is that a mistrial is granted only where it is apparent

to the court that as a result of some occurrence during

trial a party has been denied the opportunity for a fair

trial. . . . The trial court enjoys wide discretion in

deciding whether a mistrial is warranted . . . and its

evaluation as to events occurring before the jury is to be

accorded the highest deference. . . . Every reasonable

presumption will be given in favor of the trial court’s

ruling . . . because the trial court, which has a firsthand impression of the jury, is in the best position to

evaluate the critical question of whether the juror’s or

jurors’ exposure has prejudiced a defendant. . . . It is

only when an abuse of discretion is manifest or where

an injustice appears to have been done that a reversal

will result from the trial court’s exercise of discretion.

. . . A reviewing court gives great weight to curative

instructions in assessing error.’’ (Internal quotation

marks omitted.) State v. Boykin, 74 Conn. App. 679,

685–86, 813 A.2d 143, cert. denied, 263 Conn. 901, 819

A.2d 837 (2003).

In support of his claim, the petitioner relies on our

decision in State v. Williams, 41 Conn. App. 180, 190,

674 A.2d 1372, cert. denied, 237 Conn. 925, 677 A.2d 950

(1996), for the proposition that the cumulative effect of

errors committed at trial may be so serious that no

curative instruction reasonably could be expected to

remove their prejudicial impact. Here, the record

reflects that the trial took approximately six weeks

during which Martin made reference to the petitioner

as ‘‘Killer’’ twice and the prosecutor made oblique reference to the term once. Although the use of this term

by the witness and the reference to it by the prosecutor

at trial was inappropriate, we do not fault the habeas

court in concluding, on the basis of this record, that

the petitioner had failed to demonstrate that these missteps by the witness and the prosecutor so prejudiced

the jury that a mistrial was warranted.

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 As our Supreme Court did on direct appeal, we refer to Nick Votino by

his last name and to Joanne Votino by her full name. State v. Camacho,

supra, 282 Conn. 333 n.9.

2 There is some confusion concerning whether the petitioner’s second

issue was properly preserved at trial as, in our Supreme Court’s opinion on

direct appeal, the court stated that the 911 tape was admitted without

objection. State v. Camacho, supra, 282 Conn. 377. In this habeas matter,

both counsel and the court reflected their belief that the petitioner’s trial

counsel had, in fact, objected to the admission of the 911 tape on the grounds

of relevance and on the ground that its probative value was outweighed by

its likely prejudicial impact. We need not resolve that confusion in the

record, however, in order to resolve the question of whether appellate

counsel was ineffective for her failure to assert that the admission violated

the petitioner’s constitutional right to due process and a fair trial, as, under

State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), counsel could have

at least asserted that the issue, whether or not preserved, could be reviewed

on appeal if it did, indeed, implicate a constitutional right. From the record

of the habeas hearing, we infer that appellate counsel was not convinced

that she could successfully elevate this evidentiary claim to a constitutional

one, and, therefore, she decided instead to focus on the issues that she

thought had greater viability.