McGee v. Commissioner of Correction

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FRANK MCGEE v. COMMISSIONER OF CORRECTION
(AC 36141)
Lavine, Keller and Flynn, Js.
Argued March 2—officially released June 16, 2015

(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.
Albert J. Oneto IV, assigned counsel, with whom was
David B. Rozwaski, assigned counsel, for the appel-
lant (petitioner).
Emily Graner Sexton, special deputy assistant state’s
attorney, with whom, on the brief, were Maureen Platt,
state’s attorney, and Cynthia S. Serafini, senior assis-
tant state’s attorney, for the appellee (respondent).
 Opinion

LAVINE, J. The petitioner, Frank McGee, appeals
from the judgment of the habeas court denying his
amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the court abused its
discretion in denying his petition for certification to
appeal. He argues that the court improperly found that
his trial counsel did not render ineffective assistance
by failing to: (1) adequately cross-examine two material
witnesses; (2) respond to alleged juror misconduct; (3)
file a posttrial motion on the basis of an inconsistent
verdict; and (4) adequately prepare for the petitioner’s
sentencing hearing.1 We dismiss the petitioner’s appeal.
The underlying facts were set forth in this court’s
opinion in State v. McGee, 124 Conn. App. 261, 4 A.3d
837, cert. denied, 299 Conn. 911, 10 A.3d 529 (2010),
cert. denied, U.S. , 131 S. Ct. 2114, 179 L. Ed.
2d 908 (2011), in which this court affirmed the trial
court’s judgment of conviction. The jury reasonably
could have found the following facts. ‘‘At approximately
1 a.m. on March 23, 2007, the victims, D and T,2 were
on Pine Street in Waterbury, where they purchased a
small amount of cocaine from an unidentified individ-
ual. Soon thereafter, a silver Lexus, driven by the [peti-
tioner], pulled up to the victims. . . . The [petitioner]
began asking D and T if they wanted to get shot. . . .
The [petitioner] started going through D’s pockets and
found $6, which he took from him. The [petitioner] then
searched T for cocaine by placing his hands on different
parts of her body. . . . D went to his home, two houses
away, and called 911. Police officers arrived and found
a car matching the description given by D on Congress
Avenue. D and T went to Congress Avenue and posi-
tively identified the [petitioner] and the other occupants
of his car, who were arrested.’’ (Footnote in original;
internal quotation marks omitted.) Id., 263–64.
The petitioner was convicted, after a jury trial, of
two counts of robbery in the second degree in violation
of General Statutes § 53a-135 (a) (1) and (2), conspiracy
to commit robbery in the second degree in violation of
General Statutes §§ 53a-48 (a) and 53a-135 (a) (2), sex-
ual assault in the fourth degree in violation of General
Statutes § 53a-73a (a) (2) and breach of the peace in
the second degree in violation of General Statutes § 53a-
181 (a) (3). Id., 263. The petitioner was acquitted of
charges of larceny in the second degree in violation of
General Statutes § 53a-123 (a) (3) and sexual assault in
the third degree in violation of General Statutes § 53a-
72a (a) (1) (A). Id., 263 n.1.
On direct appeal, the petitioner claimed, inter alia,
that his conviction of two counts of robbery in the
second degree was legally inconsistent with the acquit-
tal on the larceny charge. Id., 264. He argued that this
court should vacate the conviction of the two robbery
charges. Id. In affirming the judgment of conviction,
this court held that State v. Arroyo, 292 Conn. 558, 973
A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130 S. Ct.
1296, 175 L. Ed. 2d 1086 (2010), controlled and that
the petitioner’s claim was not reviewable. See State v.
McGee, supra, 124 Conn. App. 264–66 (analyzing state
and federal precedent).
Following the petitioner’s unsuccessful direct appeal,
on November 17, 2011, the petitioner filed an amended
petition for a writ of habeas corpus. The petitioner
claimed that his trial counsel, Christopher Parker, pro-
vided ineffective assistance. The matter was tried
before the habeas court. At the habeas trial, the peti-
tioner, Norman A. Pattis, an attorney expert, Nellie
McGee, the petitioner’s mother, Mary Anderson and
Eileen Mayo, the petitioner’s sisters, and Jacqueline
Wieronski, a court clerk, testified. At the conclusion of
evidence, the court instructed the petitioner to file a
posttrial brief with the claims he wanted to pursue. The
petitioner briefed the following four issues, which he
has raised on appeal to this court: that trial counsel
failed to (1) adequately cross-examine codefendant
Michael Refalo, and T; (2) move for a mistrial on the
ground of jury misconduct; (3) move for a mistrial on
the ground that the verdict was inconsistent; and (4)
adequately prepare for the petitioner’s sentencing.
On August 16, 2013, the court issued a memorandum
of decision denying the habeas petition. In its ruling,
the court made the following determinations: (1) that
‘‘Attorney Parker’s cross-examination of [Refalo and T]
was objectively reasonable’’; (2) there was no juror
misconduct and ‘‘[m]oreover, the petitioner has failed to
prove any prejudice’’; (3) that ‘‘the petitioner’s attorney
expert testified that the failure to file a posttrial motion
on [the issue of an inconsistent verdict] did not consti-
tute deficient performance based on the Supreme
Court’s decision in State v. Arroyo, [supra] 292 Conn.
585–86’’; and (4) that ‘‘Attorney Parker’s representation
of the petitioner at sentencing was objectively reason-
able.’’ For those reasons, the habeas court denied the
petitioner’s amended petition for a writ of habeas cor-
pus. Subsequently, on August 28, 2013, the court denied
the petition for certification to appeal. This appeal
followed.
On appeal, the petitioner claims that the habeas court
abused its discretion by denying his petition for certifi-
cation to appeal. We begin our analysis with the relevant
standard of review. ‘‘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, he must demonstrate that the
denial of his petition for certification constituted an
abuse of discretion. . . . To prove an abuse of discre-
tion, the petitioner must demonstrate that the [resolu-
tion 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. . . . 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. . . . In determining whether there has been
an abuse of discretion, every reasonable presumption
should be given in favor of the correctness of the court’s
ruling . . . [and] [r]eversal is required only where an
abuse of discretion is manifest or where injustice
appears to have been done.’’ (Internal quotation marks
omitted.) Wilson v. Commissioner of Correction, 150
Conn. App. 53, 56–57, 90 A.3d 328, cert. denied, 312
Conn. 918, 94 A.3d 641 (2014).
‘‘We examine the petitioner’s underlying claim of inef-
fective assistance of counsel in order to determine
whether the habeas court abused its discretion in deny-
ing the petition for certification to appeal. Our standard
of review of a habeas court’s judgment on ineffective
assistance of counsel claims is well settled. In a habeas
appeal, this court cannot disturb the underlying facts
found by the habeas court unless they are clearly erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary.’’ (Internal quotation marks omitted.) Day
v. Commissioner of Correction, 151 Conn. App. 754,
757–58, 96 A.3d 600, cert. denied, 314 Conn. 936, 102
A.3d 1113 (2014).
‘‘In Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States
Supreme Court enunciated the two requirements that
must be met before a petitioner is entitled to reversal
of a conviction due to ineffective assistance of counsel.
First, the [petitioner] must show that counsel’s perfor-
mance was deficient. . . . Second, the [petitioner]
must show that the deficient performance prejudiced
the defense. . . . Unless a [petitioner] makes both
showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversarial process
that renders the result unreliable. . . . A reviewing
court need not address both components of the inquiry
if the [petitioner] makes an insufficient showing on
one.’’ (Internal quotation marks omitted.) Miller v.
Commissioner of Correction, 153 Conn. App. 747, 751–
52, 104 A.3d 767 (2014), cert. denied, 315 Conn. 912,
106 A.3d 304 (2015). With that standard in mind, we
examine the petitioner’s claims.
I
The petitioner’s first claim is that the court improp-
erly concluded that trial counsel’s cross-examination of
Refalo and T was adequate. Specifically, the petitioner
argues that trial counsel elicited damaging testimony
from Refalo, namely, that the petitioner had punched
one of the two victims, which had not been elicited on
direct examination. The petitioner also claims that his
counsel failed to object to T’s testimony that the peti-
tioner was violent and in jail. We are not persuaded.
The habeas court determined that trial counsel’s rep-
resentation of the petitioner was not deficient relative to
counsel’s questioning of Refalo regarding the petitioner
having punched D, the habeas court found that Refalo
had already testified to this alleged fact on direct exami-
nation.3 Further, the court held that ‘‘[t]he petitioner
has failed to prove this claim and has not indicated
any legal basis for such a challenge to an eyewitness’
account of the events.’’ In regard to the petitioner’s
claim that trial counsel failed to object to T’s testimony
that the petitioner was violent and in jail, the court held
that T’s comments did not prejudice the petitioner and
that ‘‘[o]ur courts have found that remarks regarding a
defendant’s pretrial incarceration did not deprive the
[petitioner] of a fair trial.’’ The court found that trial
counsel’s cross-examination of both Refalo and T was
‘‘consistent with [the] petitioner’s defense of undermin-
ing the credibility of the state’s witnesses and denying
his participation in the crimes despite his presence
when they occurred.’’ The habeas court found trial
counsel’s questioning adequate because the petitioner
failed to prove that counsel’s approach fell below the
range of reasonable professional assistance.
On the basis of our review of the record, we agree
with the habeas court’s conclusion that the petitioner
failed to demonstrate that trial counsel’s questioning
of Refalo and T constituted deficient performance or
that it was prejudicial. ‘‘An attorney’s line of questioning
on examination of a witness clearly is tactical in nature.
[As such, this] court will not, in hindsight, second-guess
counsel’s trial strategy.’’ (Internal quotation marks
omitted.) Antonio A. v. Commissioner of Correction,
148 Conn. App. 825, 832, 87 A.3d 600, cert. denied, 312
Conn. 901, 91 A.3d 907 (2014). We acknowledge the
habeas court’s conclusion that the question on cross-
examination that elicited the testimony that the peti-
tioner punched D was essentially subsumed by Refalo’s
testimony on direct examination. Moreover, we reject
the proposition that a question which elicits marginally
damaging testimony amounts to ineffective assistance.
As any trial lawyer knows, anytime questions are put
to a witness, a risk exists that unhelpful information
will be disclosed. In addition, ‘‘[t]he decision of a trial
lawyer not to make an objection is a matter of trial
tactics, not evidence of incompetency. . . . [T]here is
a strong presumption that the trial strategy employed
by a criminal defendant’s counsel is reasonable and is
a result of the exercise of professional judgment . . . .
An [e]xperienced [litigator may] utilize the trial tech-
nique of not objecting to inadmissible evidence to avoid
highlighting it in the minds of the jury.’’ (Internal quota-
tion marks omitted.) White v. Commissioner of Correc-
tion, 145 Conn. App. 834, 855–56, 77 A.3d 832, cert.
denied, 310 Conn. 947, 80 A.3d 906 (2013). Accordingly,
we conclude that the petitioner has failed to overcome
the presumption that trial counsel’s questioning of
Refalo and T represented a reasonable trial strategy.
II
The petitioner next claims that the court improperly
found that trial counsel did not render ineffective assis-
tance by failing to respond to the alleged juror miscon-
duct.4 This claim lacks merit.
The following facts are relevant to our disposition of
this claim. At the habeas proceeding, Wieronski testified
that after the court dismissed the jury to begin delibera-
tions, she overheard a juror discussing the case when
she delivered the exhibits to the jury room. The trial
court put the issue on the record and concluded that
Wieronski heard a juror say ‘‘sexual something’’ after
the trial court took attendance and the jury began delib-
erations. The record reveals that the alleged juror mis-
conduct occurred on the morning of March 11, 2008,
one day after the court excused the jury from the court-
room to begin deliberations. The trial court stated that
Wieronski was mistaken in believing that the jury was
not supposed to begin deliberating until after she deliv-
ered the exhibits and, therefore, there was no juror mis-
conduct.
We agree with the court that trial counsel provided
effective assistance. The habeas court properly con-
cluded that ‘‘[a]t the time that the clerk had overheard
the jury discussing the case, the case had already been
properly submitted to it for deliberations’’ and, there-
fore, trial counsel was not deficient in failing to respond
to the juror misconduct, or lack thereof. As the habeas
court found, ‘‘it was evident that the clerk mistakenly
believed that the jury could not start deliberating until
after the exhibits arrived, despite the fact that the court
expressly told them they could do so.’’ We, therefore,
conclude that trial counsel did not render ineffective
assistance in failing to respond to a claim of juror mis-
conduct that lacked merit.5 See Tillman v. Commis-
sioner of Correction, 54 Conn. App. 749, 756–57, 738
A.2d 208 (‘‘failure to pursue unmeritorious claims can-
not be considered conduct falling below the level of
reasonably competent representation’’ [internal quota-
tion marks omitted]), cert. denied, 251 Conn. 913, 739
A.2d 1250 (1999).
III
We next address the petitioner’s third claim, which
is that the court incorrectly concluded that trial counsel
did not render ineffective assistance in failing to file a
posttrial motion on the basis of an inconsistent verdict.
The petitioner contends that trial counsel should have
moved for a judgment of acquittal on the basis of the
jury’s having returned an inconsistent verdict. The
respondent, the Commissioner of Correction, argues
that the petitioner’s claim was already raised and
decided on his direct appeal. In his direct appeal, the
petitioner claimed that due to the inconsistent verdict,
his conviction of two counts of robbery in the second
degree should have been vacated. State v. McGee, supra,
124 Conn. App. 265. This court held that pursuant to
State v. Arroyo, supra, 292 Conn. 585–86, the petition-
er’s claim of a legally inconsistent verdict was not
reviewable. State v. McGee, supra, 266.
We agree with the respondent that the petitioner’s
claim is barred by the doctrine of res judicata. ‘‘The
doctrine of res judicata provides that a former judgment
serves as an absolute bar to a subsequent action involv-
ing any claims relating to such cause of action which
were actually made or which might have been made.
. . . The doctrine . . . applies to criminal as well as
civil proceedings and to state habeas corpus proceed-
ings.’’ (Internal quotation marks omitted.) Carter v.
Commissioner of Correction, 133 Conn. App. 387, 393,
35 A.3d 1088, cert. denied, 307 Conn. 901, 53 A.3d 217
(2012). Because the court ruled that the petitioner’s
previous claim of a legally inconsistent verdict was not
reviewable, his claim on appeal that trial counsel ren-
dered ineffective assistance by failing to file a posttrial
motion is barred by the doctrine of res judicata.
IV
The petitioner’s final claim is that the court improp-
erly concluded that trial counsel was not ineffective in
allegedly failing to prepare for the petitioner’s sentenc-
ing hearing. Specifically, the petitioner argues that his
trial counsel’s performance ‘‘prejudiced the outcome
of the petitioner’s sentencing hearing because [trial
counsel] had not prepared the petitioner properly, or
investigated the presentence investigation report (PSI)
with the [p]etitioner for inaccuracies, or consulted with
the petitioner’s family for mitigating evidence outside
the PSI.’’ (Internal quotation marks omitted.) We
disagree.
The habeas court found the following facts. ‘‘Prior
to and at the sentencing, the court and the parties had
a copy of the PSI prepared by the department of proba-
tion. The PSI included statements from a number of
the petitioner’s family members, including his mother,
brother and sisters, that were beneficial to the peti-
tioner. . . . [The petitioner] had no significant work
history . . . [and] Attorney Parker met with the peti-
tioner prior to the sentencing and reviewed the PSI
with him.’’ ‘‘In rendering its sentence, the [trial] court
considered the mitigating factors including the fact that
the petitioner had a supportive family, had a substance
abuse problem and that the victims were involved in
criminal activity.’’ At the habeas trial, the petitioner
testified that the PSI contained numerous inaccuracies
that did not reflect that he had ‘‘a much more extensive
work history,’’ that his prison disciplinary history was
‘‘more reflective of his prior incarcerations and not his
present situation,’’ that he had a good relationship with
his son and that none of his prior convictions involved
the use of a firearm.
The habeas court concluded that trial counsel’s per-
formance at sentencing was objectively reasonable. The
court found that the allegations of error in the PSI were
‘‘inaccurate’’ and that any errors were ‘‘insubstantial.’’
The court further concluded that any additional evi-
dence of familial support would have been cumulative
of the information within the PSI. Furthermore, the
court concluded that ‘‘the petitioner has failed to prove
prejudice in that he has failed to prove that he would
have received a lesser sentence but for counsel’s defi-
ciencies.’’
The sentencing court acknowledged the mitigating
factors such as the petitioner’s familial support and
substance abuse issues. The record is clear that the
sentencing court predicated its sentence primarily on
the petitioner’s unwillingness to admit guilt and crimi-
nal history. The court nonetheless took into account
the mitigating factors in rejecting the state’s argument
for the maximum sentence in this case. Accordingly,
we conclude that the petitioner has failed to demon-
strate that, but for trial counsel’s alleged unprofessional
errors, the result of the proceeding would have been
different. See, e.g., Ruffin v. Commissioner of Correc-
tion, 106 Conn. App. 396, 400, 943 A.2d 1105 (failure to
correct error in presentence investigation report not
ineffective assistance because petitioner failed to dem-
onstrate that ‘‘the discrepancy would have made a dif-
ference in the sentence imposed’’), cert. denied, 286
Conn. 922, 949 A.2d 481 (2008).
Having carefully reviewed the claims raised by the
petitioner, as well as the court’s resolution of those
claims, we conclude that the petitioner has not estab-
lished that the court’s resolution of those issues is
debatable among jurists of reason, that a court could
have resolved them in a different manner, or that the
questions presented are adequate to deserve encourage-
ment to proceed further. See Lozada v. Deeds, 498 U.S.
430, 431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991);
Simms v. Warden, supra, 230 Conn. 616. The habeas
court, therefore, did not abuse its discretion in denying
the petition for certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner also claims that, viewed cumulatively, trial counsel’s
actions and omissions amount to ineffective assistance. Specifically, the
petitioner argues that the cumulative effect of trial counsel’s ‘‘deficient
performance at the . . . criminal trial prejudiced the outcome of the peti-
tioner’s criminal case.’’ Both this court and our Supreme Court have declined
to recognize such a claim. ‘‘Our Supreme Court has declined ‘to create a
new constitutional claim in which the totality of alleged constitutional error
is greater than the sum of its parts.’ ’’ Adorno v. Commissioner of Correction,
66 Conn. App. 179, 195–96 n.7, 783 A.2d 1202, cert. denied, 258 Conn. 943,
786 A.2d 428 (2001), quoting State v. Tillman, 220 Conn. 487, 505, 600 A.2d
738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876
(1992). The petitioner, therefore, has failed to state a claim.
2
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
3
On direct examination, Refalo testified that the petitioner ‘‘kind of man-
handles [D] and ran out and shakes him down.’’ Similarly, on cross-examina-
tion Refalo testified that the petitioner ‘‘manhandled [D], punching [him] in
the ribs.’’ Trial counsel objected to Refalo’s testimony that the petitioner
punched D, but the court overruled the objection on the ground that the
answer was responsive to the question.
4
We note that the petitioner raised a narrower claim before the habeas
court that trial counsel failed to seek a mistrial on the basis of juror miscon-
duct. Although on appeal to this court, the petitioner’s claim is broader
than that raised before the habeas court, it still falls within the court’s
determination that trial counsel did not take any remedial steps on the basis
of the alleged juror misconduct because ‘‘it was evident that the clerk
mistakenly believed that the jury could not start deliberating until after the
exhibits arrived . . . .’’
5
The petitioner agreed at oral argument before this court that the alleged
juror misconduct occurred on day two of jury deliberations and, therefore,
the jurors had the opportunity to see the exhibits the day before. The
petitioner’s claim also fails because the jury did not return a verdict before
the exhibits were delivered on the second day of jury deliberations. The
petitioner, therefore, has failed to identify any prejudice stemming from the
alleged juror misconduct. We note that it is better practice for a court to
instruct the jury to wait to deliberate until all of the fully admitted exhibits
are delivered to the jury room. See State v. Washington, 182 Conn. 419, 425,
438 A.2d 1144 (1980) (‘‘it is improper for jurors to discuss a case among
themselves until all the evidence has been presented, counsel have made
final arguments, and the case has been submitted to them after final instruc-
tions by the trial court’’); see also Practice Book § 42-23.