Hall v. Commissioner of Correction

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 RON HALL v. COMMISSIONER OF CORRECTION
(AC 35097)
DiPentima, C. J., and Lavine and Flynn, Js.
Argued February 10—officially released September 9, 2014

(Appeal from Superior Court, judicial district of
Tolland, Hon. Joseph J. Purtill, judge trial referee.)
Sarah F. Summons, assigned counsel, for the appel-
lant (petitioner).
James M. Ralls, senior assistant state’s attorney, with
whom, on the brief, were Patricia M. Froehlich, state’s
attorney, and Marcia A. Pillsbury, assistant state’s
attorney, for the appellee (respondent).
 Opinion

LAVINE, J. The petitioner, Ron Hall, appeals follow-
ing 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.1 On appeal, the
petitioner claims that the habeas court improperly (1)
denied his petition for certification to appeal and (2)
denied his petition for a writ of habeas corpus. We
dismiss the appeal.
The following facts, as recounted in the petitioner’s
direct appeal; see State v. Hall, 120 Conn. App. 191, 991
A.2d 598, cert. denied, 297 Conn. 903, 994 A.2d 1288
(2010); and procedural history are relevant to our reso-
lution of this appeal.
‘‘On the night of June 11, 2007, Shamaila Riaz and
Michael Purcell were working in the Best Way gasoline
station and convenience store in Moosup. At approxi-
mately 9:30 p.m., the [petitioner], who wore a black
covering over his nose and mouth, entered the store,
pointed a silver handgun at Riaz with his left hand and
demanded money, threatening to kill her if she did not
comply. Riaz testified that the man was a Caucasian in
his mid-forties with ‘a big belly’ and was approximately
five feet, ten inches in height. She described his facial
covering as a ‘black winter mask.’ Purcell described
the man as an ‘older’ Caucasian with black hair, approxi-
mately five feet, nine inches or five feet, ten inches in
height, who was ‘kind of heavyset.’ He testified that the
covering on the [petitioner’s] face was a black winter-
type scarf. After Riaz had given the [petitioner] the
approximately $400 that was in the cash register, the
[petitioner] ran out of the store. Riaz chased after the
[petitioner], running outside and shouting in an attempt
to attract attention.
‘‘Outside the gasoline station, six teenage boys in the
area heard Riaz’ shouts and saw the [petitioner] running
away from the scene. Ryan Tetreault, one of the teenag-
ers outside the store, testified as follows. Tetreault and
five friends had just come out of a nearby Cumberland
Farms store near the Best Way gasoline station when
they encountered Riaz yelling that she had been robbed.
Tetreault had known the [petitioner] prior to the eve-
ning in question. . . . Tetreault and his friends chased
after the [petitioner], eventually cornering him in a
nearby fenced-in parking lot. The [petitioner] then
pointed his gun at the teenagers, and the covering over
his face fell down. It was then that Tetreault, who was
approximately four to five feet away, recognized the
[petitioner]. The [petitioner] subsequently ran to a
nearby parking lot, got into a maroon, four door Volks-
wagen Passat and drove away. Tetreault previously had
seen the [petitioner] driving the same car.
‘‘Local police arrived at the scene shortly after the
[petitioner] had fled. Officers interviewed the witnesses
and viewed a video from a surveillance system within
the store. On the basis of their investigation, the police
suspected the [petitioner] to be the perpetrator. They
proceeded to the [petitioner’s] house, where, after a
period of surveillance, they announced their presence,
and the [petitioner] met them without protest. The [peti-
tioner] spoke willingly to the police, and he provided
three different accounts of his whereabouts during the
time of the robbery. A search [of the petitioner’s home],
executed pursuant to a warrant . . . revealed .25 cali-
ber handgun ammunition. Police found a black scarf
on the passenger side floor of the [petitioner’s] red
Volkswagen automobile. Neither the handgun used in
the robbery, nor the stolen proceeds ever were located.
The [petitioner] subsequently was arrested and was
charged with one count of robbery in the first degree
in violation of [General Statutes] § 53a-134 (a) (4) and
one count of larceny in the second degree in violation
of [General Statutes] § 53a-123 (a) (3).’’ Id., 192–94.
At his criminal trial, the following occurred relative
to the petitioner’s claims on appeal. During its case-
in-chief, ‘‘[t]he state offered [a] VHS videotape, which
depicted the inside of the Best Way store at the time
of the robbery, as an exhibit during Riaz’ testimony.
Riaz testified that the videotape fairly and accurately
depicted the incident in question. Upon the state’s offer
of the videotape as a full exhibit, the [petitioner] offered
no objection. Later in the trial, Detective Steven Berthi-
aume of the Plainfield police department testified as
to how the videotape had been produced. Berthiaume
stated that because the in-store surveillance system was
digital and did not offer the capability of reproduction,
he recorded the images with a handheld camera and
later transferred the recording to a VHS tape. He admit-
ted that the images on the videotape were not as clear
as the images on the in-store system. The [petitioner]
never challenged the videotape and made no motion to
strike the evidence on the basis of the facts pertaining
to the origin of the videotape, as revealed by Berthi-
aume.’’ Id., 199.
Also at trial, Sherry White, the petitioner’s girlfriend,
testified for the petitioner. White testified that the peti-
tioner had a court date on the day of the robbery for
a pending case in which the petitioner thought he was
‘‘going [to have] to spend thirty days in jail . . . .’’ Fol-
lowing the close of the state’s evidence, the petitioner
elected to testify. On direct examination, the petitioner
testified that he had ‘‘some issues’’ at the courthouse
on the date of the robbery. On cross-examination, the
state inquired about those pending charges. The state
also inquired about the petitioner’s prior misdemeanor
convictions that ranged from fifteen to twenty-one years
old.2 The petitioner’s counsel did not object to the
state’s cross-examination.
The jury found the petitioner guilty of robbery in the
first degree in violation of § 53a-134 (a) (4) and larceny
in the second degree in violation of § 53a-123 (a) (3).
The court sentenced the petitioner to a total effective
sentence of fifteen years incarceration, execution sus-
pended after ten years, with five years of probation.
The petitioner appealed his conviction to this court,
claiming that (1) the evidence was insufficient to sup-
port his convictions, (2) the trial court improperly
admitted the videotape depicting the robbery into evi-
dence, and (3) the prosecutor acted inappropriately
by cross-examining him concerning prior convictions.
State v. Hall, supra, 120 Conn. App. 192, 200. This court
determined that (1) there was sufficient evidence to
support the petitioner’s convictions, (2) the admissibil-
ity of the videotape was unreviewable because it was
unpreserved, and (3) the petitioner failed to present an
adequate record to review the prosecutorial impropri-
ety claim. Id., 196, 199, 203. Thereafter, the petitioner
filed a petition for a writ of habeas corpus on June 11,
2010, in which he alleged ineffective assistance of trial
counsel on the basis of, inter alia, his counsel’s (1)
failure to object to the admission of the copied video-
tape and (2) failure to object to the state’s cross-exami-
nation concerning his past misdemeanor convictions.
The habeas court denied the petitioner’s petition for
a writ of habeas corpus in a memorandum of decision
filed May 30, 2012, finding that the petitioner’s trial
counsel was not ineffective by failing to object to either
the admission of the videotape or the state’s cross-
examination. With respect to trial counsel’s failure to
object to the admission of the copied videotape, the
habeas court determined that trial counsel’s perfor-
mance was deficient, but determined that the deficient
performance was not prejudicial. The habeas court con-
cluded that ‘‘[t]here is nothing to indicate that an objec-
tion to its admissibility would have been successful.’’
The court reasoned that, although an original is gener-
ally required, a copy may be used in lieu of the original
unless there are questions as to the tape’s authenticity
or the use of the copy would be unfair to the petitioner.
The habeas court found that although the videotape
depicts a shining object in the perpetrator’s left hand,
the object cannot be identified as a handgun. The court
concluded, however, that the videotape was merely
cumulative evidence and, given the testimony of Riaz
and Purcell, had minimal impact.
The habeas court also concluded that trial counsel’s
failure to object to the state’s cross-examination con-
cerning the petitioner’s past misdemeanors was also
deficient, but not prejudicial. The court determined
that, on the strength of the state’s case, it ‘‘cannot be
found that but for counsel’s unprofessional errors, the
results of the trial would have been different.’’ There-
after, the petitioner sought certification to appeal the
denial of his petition for a writ of habeas corpus, which
was denied. This appeal followed.
On appeal, the petitioner claims that the habeas court
abused its discretion when it denied his petition for
certification to appeal and that the court improperly
denied his petition for a writ of habeas corpus. Specifi-
cally, he claims that the habeas court improperly deter-
mined that counsel’s failure to object to the copied
videotape was not prejudicial. The petitioner also
claims that prosecutorial impropriety—with respect to
the state’s cross-examination regarding the petitioner’s
previous misdemeanor convictions—‘‘fatally tainted
the fairness of the trial and deprived the [petitioner] of
due process.’’
It is well established that ‘‘[w]hen the habeas court
denies certification to appeal, a petitioner faces a formi-
dable challenge, as we will not consider the merits of
a habeas appeal unless the petitioner establishes that
the denial of certification to appeal amounts to an abuse
of discretion. . . . An abuse of discretion exists only
when the petitioner can show that the issues are debat-
able 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 fur-
ther. . . . Simms v. Warden, 230 Conn. 608, 616, 646
A.2d 126 (1994). [For this task] 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 order to establish an ineffective assistance of
counsel claim a petitioner must meet the two-pronged
test enunciated in Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Specifi-
cally, the claim must be supported by evidence estab-
lishing 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 for the deficient performance. . . . Crocker v.
Commissioner of Correction, 126 Conn. App. 110, 116,
10 A.3d 1079, cert. denied, 300 Conn. 919, 14 A.3d 333
(2011). Because both prongs of Strickland must be dem-
onstrated for the petitioner to prevail, failure to prove
either prong is fatal to an ineffective assistance claim.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) Jefferson v. Commissioner of Cor-
rection, 144 Conn. App. 767, 772–73, 73 A.3d 840, cert.
denied, 310 Conn. 929, 78 A.3d 856 (2013).
I
The petitioner first claims that the habeas court
abused its discretion when it denied his petition for
certification to appeal because the habeas court
improperly concluded that trial counsel’s deficient per-
formance was not prejudicial. We disagree.
To demonstrate that counsel’s deficient performance
was prejudicial under Strickland, it was incumbent
upon the petitioner to demonstrate ‘‘that counsel’s
errors were so serious as to deprive the [petitioner] of
a fair trial, a trial whose result is reliable. . . . The
petitioner must establish that, as a result of his trial
counsel’s deficient performance, there remains a proba-
bility sufficient to undermine confidence in the verdict
that resulted in his appeal.’’ (Citation omitted; internal
quotation marks removed.) Michael T. v. Commis-
sioner of Correction, 307 Conn. 84, 101–102, 52 A.3d
655 (2012). This, he has not done.
The videotape merely was cumulative of testimony
from numerous eyewitnesses who identified the peti-
tioner as the robber. As noted in the petitioner’s direct
appeal: ‘‘The state offered three eyewitnesses who posi-
tively identified the [petitioner]: Tetreault, [Jeremy]
Porter and [Elizabeth] Mack. Significantly, two of these
witnesses knew the [petitioner] prior to June 11, 2007.
Tetreault’s grandmother was related to the [petitioner’s]
brother by marriage, and Tetreault knew the [petitioner]
prior to that evening. Mack also previously was
acquainted with the [petitioner]. Porter’s account of the
relevant events was substantially the same as
Tetreault’s. The jury heard evidence that he and
Tetreault were roommates and, thus, was able to credit
or discount Porter’s identification accordingly as it saw
fit. . . .
‘‘The videotape was a portion of the evidence pre-
sented by the state to establish the identity of the perpe-
trator of the crimes charged. The state also put forth
substantial additional evidence, as has been detailed
previously. Viewing the record evidence as a whole,
as we must, it is of no moment that the videotape,
considered in artificial isolation, may not have proven
the [petitioner’s] identity beyond a reasonable doubt.
The entirety of the evidence was sufficient to support
the [petitioner’s] conviction.’’ State v. Hall, supra, 120
Conn. App. 197–98.
Because the videotape was merely cumulative of the
testimony of numerous eyewitnesses who identified the
petitioner as the Best Way gasoline station robber, the
petitioner cannot show that ‘‘as a result of his trial
counsel’s deficient performance, there remains a proba-
bility sufficient to undermine confidence in the verdict
that resulted in his appeal.’’ (Internal quotation marks
omitted.) Michael T. v. Commissioner of Correction,
supra, 307 Conn. 101–102. We cannot say that the
habeas court abused its discretion when it denied the
petitioner’s petition for certification to appeal with
respect to the admission of the videotape.
II
The petitioner’s next claim is that ‘‘prosecutorial
impropriety fatally tainted the fairness of the trial and
deprived [him] of due process.’’ This claim is predicated
on the state’s inquiry into the petitioner’s misdemeanor
convictions during his cross-examination at trial.3 The
respondent, the Commissioner of Correction, claims
that this claim is not reviewable because it was not
raised in the petitioner’s petition for a writ of habeas
corpus. In the alternative, the respondent claims that
the claim is procedurally defaulted because it was not
properly raised in the petitioner’s direct appeal and the
petitioner has failed to satisfy the cause and prejudice
test. See generally Wainwright v. Sykes, 433 U.S. 72,
97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). We agree that
the petitioner’s claim of prosecutorial misconduct is
not reviewable, but for a different reason.
In response to a question from this court during oral
argument, the petitioner conceded that the prosecu-
torial impropriety claim in his brief is really an eviden-
tiary claim. As previously noted, the petitioner did not
object to the admission of the evidence of his prior
misdemeanor convictions at trial. On appeal, the peti-
tioner has not sought review of this evidentiary claim
pursuant to State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989), nor claimed any exceptional cir-
cumstances which would permit this court to review
an unpreserved evidentiary claim. Therefore, this
unpreserved claim is not properly before us and we
decline to review it.4
The appeal is dismissed.
In this opinion the other judges concurred.
1
We note that the petitioner amended his petition for a writ of habeas
corpus at the time of trial to also allege ineffective assistance of trial counsel
for failing to advise him properly regarding sentence review, and for failing
to file a sentence review application pursuant to General Statutes § 51-195.
The court granted the amended petition on this ground only and reinstated
the petitioner’s right to sentence review. Because the amendment to the
petition is not at issue on appeal, in this opinion we refer only to the
original petition.
2
The state first asked the petitioner if he ever had any ‘‘cases before in
the criminal justice system.’’ The petitioner responded with, ‘‘motor vehicle.’’
As noted in his direct appeal, the state then proceeded to question further
about the petitioner’s past convictions: ‘‘During his cross-examination, the
prosecutor asked the [petitioner]: ‘[W]ould it surprise you if I told you [that]
you had a case involving the charge of harassment?’ With regard to the
harassment charge, which he indicated occurred in 1987, the prosecutor
further inquired: ‘Would it also surprise you that you were convicted for
not going to court?’ The [petitioner] did not respond directly to these ques-
tions. The prosecutor did not state the specific statutory provision under
which the [petitioner] had been charged. The prosecutor proceeded to ask
the [petitioner] whether he was ‘surprised’ to learn that he also had been
convicted of failure to appear in court on a breach of the peace charge in
1993. The [petitioner] answered in the affirmative, and the prosecutor ceased
the line of questioning. Again, the prosecutor did not state what degree of
the crime of breach of the peace was involved.’’ State v. Hall, supra, 120
Conn. App. 201–202.
3
In his reply brief, the petitioner cited the same factual basis as used
for his prosecutorial impropriety claim, but couches the claim in terms of
ineffective assistance of counsel. That is, he contends that his trial counsel
was ineffective because of his failure to object to the state’s inquiry into
his prior misdemeanor convictions. As a result, he contends that ‘‘the court
must decide whether the ‘strategic’ decision to not object to the prior misde-
lay outside the range of competence displayed by lawyers with ordinary skill
and training in criminal law.’’ To the extent that this ineffective assistance of
counsel claim was not addressed in his opening brief, we decline to review
it. See Grimm v. Grimm, 276 Conn. 377, 393–94 n.19, 886 A.2d 391 (2005),
cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006).
4
In his brief, the petitioner claimed that ‘‘[a] claim of prosecutorial impro-
priety, whether preserved at trial or not, warrants review.’’ Although this
is true; see State v. Fauci, 282 Conn. 23, 33, 917 A.2d 978 (2007); in light
of the petitioner’s concession that the claim is really evidentiary in nature,
the petitioner has failed to articulate a basis on which this court can review
an unpreserved evidentiary claim.