Opinion
No. CV 04 0004313 S
May 29, 2009
MEMORANDUM OF DECISION
The petitioner, Richard Koslik, filed this petition for a writ of habeas corpus on January 22, 2004, challenging the legality of his detention. He was convicted, after a jury trial, of offering to make a home improvement without being registered as a home improvement contractor in violation of General Statutes § 20-427(b)(5) and representing himself falsely as or impersonating a registered home improvement contractor in violation of § 20-427(b)(3). The court, Wollenburg, J., sentenced him on June 18, 2002 to six months incarceration, execution suspended after three months, plus three years probation on each count, to be served consecutively, for a total effective sentence of one year incarceration suspended after six months plus three years probation. The petitioner was represented at trial by attorney Donald Gaudreau; assistant attorney general Matthew Beizer was the prosecuting authority. The petitioner appealed his convictions, which were upheld by the Appellate Court. State v. Koslik, 80 Conn.App. 746, 837 A.2d 813, cert. denied, 268 Conn. 908, 845 A.2d 413 (2004).
The petitioner filed a four-count amended petition on January 12, 2007, asserting that his rights under the sixth and fourteenth amendments to the United States constitution and article first, § 8 of the constitution of Connecticut were violated. The petitioner alleges, in count one, that his convictions were the result of ineffective assistance of counsel; in count two, that his attorney defrauded him; in count three, that his attorney was under a conflict of interest at the time he represented the petitioner; in count four, that his convictions were the result of prosecutorial misconduct. The respondent filed a return on February 8, 2007, denying the material allegations of the petition and raising the special defense of procedural default as to select portions of counts one and four.
The matter came before the court on June 20, 2007, and was heard intermittently over the course of many months on December 20, 2007, May 6, 7, and 20, 2008, June 2 and 12, 2008, and October 2, 2008. Counts two and four were dismissed by the court during trial on December 20, 2007, on the ground that the petitioner was procedurally defaulted from raising them because he had not raised them at trial or on direct appeal. On May 6, 2008, pursuant to a motion for reargument and reconsideration by the respondent, the court alternatively dismissed count two on the ground that it failed to state a claim upon which relief could be granted. The parties submitted various exhibits, including transcripts from the criminal trial and various exhibits entered at the criminal trial. Testifying were the petitioner and attorneys Gaudreau and Beizer. The petitioner filed a post-trial brief on February 19, 2009, and the respondent filed a reply brief on March 16, 2009.
FINDINGS OF FACTS
The following underlying facts are taken from the Appellate Court's decision. "The facts underlying the conviction, as the jury reasonably could have found them, are as follows. The defendant was a registered home improvement contractor prior to August 26, 1998. On August 26, 1998, the department of consumer protection (department) suspended the defendant's registration. In 1998, Christine Burns contacted the defendant to discuss his remodeling the kitchen and the bathroom in her single-family home. Burns did not hire the defendant to undertake the job until February 2001. In the period leading to his being hired for the job, the defendant spoke with Burns and, less frequently, with her husband, Eric Burns, about the project and its cost. During those conversations, the defendant falsely represented himself as or impersonated a registered home improvement contractor and offered to make home improvements to the Burns' home without having a current certificate of registration enabling him lawfully to do so.
"Upon signing a written agreement with the defendant on February 8, 2001, Christine Burns paid the defendant an initial deposit of $8,500. On or about March 26, 2001, the defendant, along with two other individuals, performed demolition work in the Bums' kitchen. The defendant and others thereafter performed more work at the home. By April 1, 2001, Christine Burns had paid the defendant in excess of $14,000. The defendant worked intermittently on the project during April and May 2001, and Christine Burns repeatedly expressed to the defendant her displeasure with the pace of his performance. During May 2001, the defendant stopped working on the project altogether.
"Christine Bums spoke with the defendant via telephone. The defendant informed her that he needed more money and that she had lost her `time slot' in which he could complete her project. The defendant installed the cabinets in the kitchen, but left other aspects of the project, such as the installation of flooring and lighting in the kitchen, unfinished. The defendant also failed to perform any renovation in the bathroom that he had agreed to perform. Christine Burns obtained estimates from other contractors regarding the cost of completing the renovation. Those estimates ranged from between $13,000 and $15,000.
"Frustrated by her failed attempts to get the defendant to return to her home to complete the remodeling project, Christine Burns filed a complaint with the department, and a department investigator looked into her complaint. The defendant's arrest followed." State v. Koslik, supra, 80 Conn.App. 748-50. The petitioner's appeal raised the issues of an insufficiency of evidence, improper jury instructions and the court's failure to sua sponte strike certain testimony and evidence. See id.
At the habeas trial, the petitioner testified that his attorney did not discuss the elements of the charges with him, but did discuss numerous legal points such as the statute of limitations, what types of conduct are covered by the Home Improvement Act, and what constitutes an "offer." He testified that he did not want to make a deal with the state because he was not guilty. He testified that attorney Gaudreau ignored him and would not ask the questions or put on the defense he wanted. He also testified that attorney Gaudreau never advised him not to testify after the close of the state's case.
To the contrary, attorney Gaudreau testified that he thoroughly discussed the case with the petitioner and, even during trial, consistently conferred with his client regarding the cross-examination of witnesses. He also testified that he strongly urged the petitioner not to testify, and that his strategy was to simply leave the state to its proof. According to Gaudreau, the petitioner's testimony was detrimental to the defense, as it brought out harmful facts on cross-examination and permitted the state to introduce further harmful evidence in rebuttal. Attorney Gaudreau testified that the overarching defense was that the petitioner was a supplier of materials only, that the contract between him and the Burnses was a retail sales contract, and that the petitioner had not made nor offered to make any home improvements; however, he conceded that this left a large "gap" that the jury would have to fill in, in that there was no indication that the Burnses had contracted with anyone else, including Dave Przybyla, to actually perform the installation. Attorney Gaudreau felt that the state's case was strong and advised the petitioner to seek a plea bargain. He testified that he did not feel that a statute of limitations defense had merit, and that the petitioner agreed with him that the best defense was to argue that the checks the petitioner received were for the production and delivery of materials. He further testified that he did not call David Przybyla as a witness because he did not feel he would present himself well to the jury and would likely hurt the petitioner's case; moreover, the petitioner agreed that Przybyla should not be called. Finally, he testified that he had cashed certain checks, written by the petitioner's clients to the petitioner and endorsed to attorney Gaudreau by the petitioner because that was how the petitioner insisted he pay attorney Gaudreau for his services.
Additional facts will be discussed as necessary.
DISCUSSION A. Ineffective Assistance of Counsel
"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 . . .
"A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial. The right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction . . .
"In Strickland v. Washington, [ 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel during criminal proceedings: the defendant must show: (1) that counsel's representation fell below an objective standard of reasonableness and (2) that defense counsel's deficient performance prejudiced the defense . . .
"The first part requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the [s]ixth [a]mendment . . . In determining whether such a showing has been made, judicial scrutiny of counsel's performance must be highly deferential . . . The reviewing court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct . . .
"The second part requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable . . . The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Internal quotation marks omitted.) Valentin v. Commissioner of Correction, 94 Conn.App. 751, 754-55, 895 A.2d 242 (2006).
"It is well settled that in order to prevail on a claim of ineffective assistance of counsel, the petitioner must prove both prongs of the Strickland test. A reviewing court [therefore] can find against a petitioner on either ground, whichever is easier." (Internal quotation marks omitted.) Lacks v. Commissioner of Correction, 87 Conn.App. 225, 231, 866 A.2d 660, cert. denied, 273 Conn. 922, 871 A.2d 1027 (2005).
The petitioner contends that attorney Gaudreau was ineffective in that he failed to properly prepare for trial, failed to object to the court's charge to the jury, failed to object to certain evidence and testimony at trial, failed to raise certain defenses including nonspecific dates in the substitute information and the statute of limitations, admitted damaging information in the form of prior bad acts evidence, and failed to preserve certain issues for appeal. The court will address each claim seriatim.
1. Trial preparation
The petitioner first contends that his attorney failed to investigate and call at trial several witnesses who had "critical testimony" for the defense. Foremost among them was David Przybyla, a former employee of the petitioner who was ostensibly the general contractor on the Burns job. The petitioner's position appears to be that Przybyla was chiefly responsible for the actual installation of the materials, and that his testimony would establish that the petitioner had nothing to do with installation. Attorney Gaudreau, however, credibly testified that he discussed calling Przybyla with the petitioner, but that both agreed that Przybyla would not be an effective witness, a fact the petitioner does not appear to challenge. Attorney Gaudreau testified that Przybyla presented as unprofessional and would make a poor impression on the jury; furthermore, Przybyla conceded in an interview that "I do what Rick [the petitioner] tells me to do," which would conflict with the defense that the petitioner did not at all arrange for the installation of the materials. Both Mr. and Mrs. Burns testified at the criminal trial that they did not have any dealings with Przybyla but dealt only with the petitioner. Therefore, the failure to call Przybyla as a witness was a prudent tactical decision, and the petitioner has not demonstrated deficiency on attorney Gaudreau's part.
With respect to the other witnesses the petitioner maintains attorney Gaudreau should have investigated and/or called, no evidence at the habeas trial was presented. "[T]he presentation of testimonial evidence is a matter of trial strategy . . . The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense." (Internal quotation marks omitted.) Lambert v. Commissioner of Correction, 100 Conn.App. 325, 328, 918 A.2d 281, cert. denied, 282 Conn. 915, 924 A.2d 138 (2007). Attorney Gaudreau testified that Andre Grzyb was the plumber on the job, but that, like Przybyla, he concluded he would not be an effective witness. It is unclear who Donald Brown or Robert LeBlanc were; presumably they also worked on the job, but no evidence was presented as to what their expected testimony might be. Attorney Gaudreau did call one witness in sur-rebuttal, Mark Tracey, an electrician who performed electrical work at the Burns' house on March 26, 28, and 30th. Tracey testified that he never noticed the petitioner doing any installation or other work beyond delivering cabinets, and that he had been hired by Przybyla, whom he knew as the "general contractor." While favorable to the petitioner's defense, this testimony was apparently not enough to convince the jury of his innocence, and further testimony to the same effect was unlikely to have increased its exculpatory value.
Attorney Gaudreau's strategy was to cast doubt on the extent of the petitioner's involvement through cross-examination of witnesses and to leave the state to its proof rather than actively present a defense. "[S]trategic choices made after thorough investigation of [the] law and facts relevant to plausible options are virtually unchallengeable . . . [T]he [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . Furthermore, a court will not second guess the tactics and strategy chosen by trial counsel after reasonable investigation and research." (Citations omitted; internal quotation marks omitted.) Copas v. Warden, 30 Conn.App. 677, 689-90, 621 A.2d 1378, cert. denied, 226 Conn. 901, 625 A.2d 1374 (1993).
It was the petitioner's insistence that he testify, against the advice of his attorney that opened the door to the harmful rebuttal testimony that neither Eric nor Christine Burns ever hired, paid or dealt with anyone else for the work done on their house. Moreover, as it turned out, whether the petitioner was actually there installing the materials was not a dispositive issue; the jury found him guilty of "offering to make" home improvements without being properly registered. The petitioner has presented no evidence that would materially have countered that which the state presented, and, therefore, his attorney was not deficient in not presenting the evidence at trial. He has also failed to demonstrate how he was prejudiced even if deficient performance were to be presumed, and this claim is unavailing.
The petitioner next claims that attorney Gaudreau was ineffective in failing to conduct adequate discovery. The only evidence presented in this regard was that attorney Gaudreau was "surprised" at trial when Christine Burns testified that she had seen the petitioner performing installation work at her home. Attorney Gaudreau testified that he did not expect this testimony because the petitioner had informed him otherwise, and that he did not have an opportunity to depose Burns prior to trial. Even if deficient performance were to be presumed, however, the petitioner cannot demonstrate that he was prejudiced thereby. Whether the petitioner actually installed or performed work on the Burns' home was not integral to the jury's determination that he had "offered" or "arranged for" the installation, and even if Christine Burns had not testified to this effect the jury's verdict was not likely to have been different. Thus, the petitioner has failed to demonstrate ineffective assistance of counsel on this basis.
Finally, the petitioner argues that his attorney was ineffective in failing to file a motion to dismiss prior to trial or file a motion for a bill of particulars. In this regard the petitioner submitted a document entitled "Why the New Britain case should be dismissed," which he faxed to attorney Gaudreau several days prior to trial. A review of the document, which is a mixture of legal authority and the petitioner's own analysis thereof, does not suggest a materially different defense than that presented at trial, to wit: that the petitioner had not entered any home improvement contract and, therefore, was not required to be registered as a home improvement contractor. The petitioner stresses the absence of a written contract specifically mentioning actual installation, a fact attorney Gaudreau did advance, unsuccessfully, at trial. The petitioner cites legal authority for his conclusions, namely O'Donnell v. Rindfleisch, 13 Conn.App. 194, 535 A.2d 824, cert. denied, 207 Conn. 805, 540 A.2d 373 (1988), and SFP Tisca v. Robin Hill Farms, Inc., 244 Conn. 721, 711 A.2d 1175 (1998); both of which are unavailing. The petitioner has also failed to specify how filing a motion for a bill of particulars was deficient in this case, or would have led to a different result. Therefore, he has failed to demonstrate either deficient performance or resulting prejudice from the failure to file pretrial motions, and his ineffective assistance claim must fail.
O'Donnell held that a subcontractor hired by a registered general contractor need not be registered under the home improvement act, but the petitioner does not contend, nor is there any evidence, that he was a subcontractor. SFP Tisca only briefly commented on the status of Tisca as a retailer, rather than a home improvement contractor, in upholding the trial court's conclusion that it did not require registration under the home improvement act. This, however, was a factual determination made by the factfinder that no contract, oral or written, existed for the installation of materials. See SFP Tisca v. Robin Hill Farms, Inc., supra, 244 Conn. 731 ("It properly belongs to the finder of fact to assess the credibility of witnesses"). It would not, therefore, have provided a valid basis on which to file a motion to dismiss.
2. Choice of Defenses
The petitioner next contends that his attorney failed to prepare and present an effective defense. This claim is readily refuted by attorney Gaudreau's credible testimony that he had extensive discussions with the petitioner regarding the defense to be used, which was that the petitioner had contracted with the Burnses to provide materials only, and not to perform or arrange any installation work. The petitioner agreed this was the trial strategy, and the record bears out that attorney Gaudreau zealously presented this defense at trial. "[S]trategic choices made after thorough investigation of [the] law and facts relevant to plausible options are virtually unchallengeable . . . [T]he [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (Citation omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 222 Conn. 87, 96, 608 A.2d 667 (1992). There is no apparent deficiency in attorney Gaudreau's presentation of a defense.
The petitioner also asserts that his attorney should have raised two other defenses: first, that the substitute information filed July 16, 2002 violated the statute of limitations for prosecuting violations of § 20-427(b)(3) and (5); second, that his oral offer did not constitute a contract and, therefore, could not be a violation of the home improvement act. The latter claim is easily disposed of, as "[t]he existence of a home improvement contract was not an essential element of either of the crimes with which the [petitioner] stood charged." State v. Koslik, supra, 80 Conn.App. 746, 763. A reading of § 20-427 does not indicate that a contract is required before violating subsections (b)(3) or (b)(5); all that is required is that the petitioner falsely represent himself as a registered home improvement contractor without being registered, or make an offer to perform or arrange home improvements without being registered, respectively. This claim has no merit.
With respect to the statute of limitations for violation of § 20-427, which is either a class A or class B misdemeanor depending on the value of the home improvement involved, prosecution must be commenced within one year of the date of the offense. General Statutes § 54-193(b). Attorney Gaudreau testified that he did not feel the statute of limitations was an issue in the petitioner's case, and that that defense would not be successful. This court agrees.
"The timely issuance of [an] arrest warrant toll[s] the statute of limitations in the absence of an evidentiary showing of unreasonable delay in its service upon [a] defendant." State v. Crawford, 202 Conn. 443, 452, 521 A.2d 1034 (1987), see also State v. Kruelski, 41 Conn.App. 476, 484-85, 677 A.2d 951, cert. denied, 238 Conn. 903, 677 A.2d 1376 (1996). A warrant for the petitioner's arrest was issued on January 8, 2002, and he was arrested on January 17, 2002. The earliest relevant date for conviction under either subsection of § 20-427(b) was January 20, 2001. Therefore, the prosecution was commenced within the relevant limitations period. Moreover, "[i]t is not essential in a criminal prosecution that the crime be proved to have been committed on the precise date alleged, it being competent ordinarily for the prosecution to prove the commission of the crime charged at any time prior to the date of the complaint and within the period fixed by the Statute of Limitations . . . Thus, it is entirely proper for a court to permit an amendment or a substitute information merely to amplify or to correct the time of the commission of the offense when time is not a material ingredient of the crime charged . . . State v. Ramos, 176 Conn. 275, 276-77, 407 A.2d 952 (1978)." (Internal quotation marks omitted.) State v. Grant, 83 Conn.App. 90, 101, 848 A.2d 549, cert. denied, 270 Conn. 913, 853 A.2d 529 (2004). Here, the substitute information changed the relevant date from February 8, 2001 to January 20, 2001. Because time was not an element of the crime charged, there was no impropriety in correcting the date once it became clear after discovery, as attorney Beizer testified, that the appropriate date was January 20. Thus, attorney Gaudreau's conclusion that the statute of limitations would not have been successful was not deficient, and the petitioner's ineffective assistance claim is without merit.
To the extent the petitioner's claim might be construed as one that his counsel was ineffective for failing to request a continuance to effectively investigate the new dates when the substitute information was filed, as his brief suggests, he has failed to present any evidence indicating that a continuance would have been beneficial or led to a different result and, therefore, has failed to demonstrate prejudice. Cf. Jeffrey v. Commissioner of Correction, 36 Conn.App. 216, 227, 650 A.2d 602 (1994) (failure of attorney to request continuance to locate witnesses not ineffective assistance without showing that continuance would have been successful in uncovering beneficial evidence).
The petitioner finally claims that his attorney's chosen defense was ineffective and contrary to law, and that he failed to defend against the charge of falsely representing himself as a home improvement contractor entirely. The evidence, however, suggests that the petitioner fully agreed with the chosen defense at the time of trial, and had extensive discussions with his attorney as to what the defense should be. That the defense proved unsuccessful is not itself grounds for a finding of ineffective assistance. See Bryant v. Commissioner of Correction, 290 Conn. 502, 512-13, 964 A.2d 1186 (2009) (petitioner "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy"). Moreover, the petitioner fails to suggest an alternative defense that would have been more successful. The petitioner decided to take the case to trial, and, against the advice of his attorney, took the stand, which on balance tended to undermine their chosen defense rather than add to it. Attorney Gaudreau's strategy was not only accepted by the petitioner, but was sound given the evidence he had to contend with, and this court cannot discern any deficiencies in his performance with respect to the trial strategy employed. The petitioner suggests that he should have introduced evidence that Przybyla performed all the work, but attorney Gaudreau testified that the fact that Przybyla did not work with any other suppliers and the petitioner did not work with any other contractors was "transparent" and would only have hurt the petitioner's case, a conclusion with which this court agrees. The petitioner has not presented any evidence that would fill the "gaps" attorney Gaudreau recognized existed in the defense; that is, the absence of a contract or any evidence of dealings between the Burnses and Przybyla or any other contractors for the installation of the materials. In short, the petitioner has not suggested any feasible defenses not used that would effectively counter the evidence against him. This claim, also, lacks merit.
The petitioner's reliance on Meadows v. Higgins, 249 Conn. 155, 733 A.2d 172 (1999), and Caulkins v. Petrillo, 200 Conn. 713, 513 A.2d 43 (1986), is misplaced. Those cases involved the attempted foreclosure of mechanic's liens by home improvement contractors against homeowners; although the focal issues of the case dealt with the requirement that home improvement contracts be in writing, this was a requirement for recovery on mechanic's liens and has no bearing on a criminal prosecution arising out of violations of the home improvement act.
3. Failure to object and cross-examination of witnesses
The petitioner next claims attorney Gaudreau was ineffective in that he failed to object to certain testimony and failed to properly cross-examine state's witnesses. He first argues that attorney Gaudreau should have objected to the testimony of Pamela Brown, an investigator in the Attorney General's office, who testified about the home improvement act generally and her prior knowledge of Richard Koslik through other investigations of him regarding home improvement violations. Attorney Gaudreau testified that he did not object because he did not find that the testimony would impact the jury, and that he generally felt juries were capable of recognizing that the judge's instructions control, and to not rely on a witness' interpretation of the law.
"[T]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency." Mitchell v. Commissioner of Correction, 109 Conn.App. 758, 768, 953 A.2d 685, cert. denied, 289 Conn. 950, 961 A.2d 417 (2008). The only arguably objectionable testimony from Brown that attorney Gaudreau did not actually object to was her statement that she knew the petitioner because she had "investigated other criminal and civil cases involving Mr. Koslik and his business." She did not testify as to the nature of those acts, however, nor whether the petitioner had been found guilty of the acts; the question was more of a preliminary nature demonstrating her familiarity with the petitioner and it is speculative whether it would even be precluded as evidence of prior misconduct. It was stated in an offhand manner in response to the broad question "how do you know [the petitioner?]" and attorney Gaudreau could have failed to object simply to avoid drawing attention to it. In any event, this court finds that there was no prejudice to the petitioner from the failure to object to this comment, which was brief, isolated and not likely to have made much of a difference in the minds of the jury as to the petitioner's ultimate guilt.
The petitioner next attacks attorney Gaudreau's cross-examination of Brown in introducing as exhibits documents produced during her investigation of the Burns' complaint. What this argument fails to recognize, however, is that much of the substance of those documents was elicited from her testimony on direct examination anyway, and that the purpose of the offer was to demonstrate several non-negligible discrepancies and errors in Brown's reports and investigation that cast doubt on her thoroughness and credibility generally. Attorney Gaudreau demonstrated that Brown's report stated that there was no notice of cancellation given to the Burnses, but that the contract actually did include a notice of cancellation — thereby undermining both Brown's and Christine Burns' testimony. He also brought out that she had mistakenly determined that the petitioner listed a registration number on the contract when it was, in fact, the date. He elicited that her sole source of information was conversations with the Burnses and the contract documents, and that she had no personal knowledge of what the petitioner did. He got Brown to agree that "if you don't do installation you're not covered by the home improvement act"; which, while it might not be an accurate statement of the law at best inured to the benefit of the petitioner and at worst impeached Brown's knowledge of the act. He did object to direct examination questions such as "why was [the petitioner's] registration suspended" and "why generally are registrations suspended," both of which objections were sustained. Any unfavorable answers on cross were either already in evidence or were cumulative. In short, there is no evidence of any deficiency in his cross-examination of Brown, nor does this court find any prejudice to have resulted from this or his failure to object to Brown's testimony even if deficient performance were to be presumed.
Secondly, attorney Gaudreau effectively attacked Christine Burns' credibility by drawing out her uncertainties regarding dates and the discussions she had with the petitioner. He also successfully objected to attorney Beizer's questioning regarding her understanding of the contract; the court ruled that she could testify as to discussions she had with the petitioner but not what her understanding of the contract was. He was also able to elicit an admission from her that the written contract was the "final deal [she] struck with [the petitioner]" and to "throw out all the other things because what people say over a three-year period you may not remember correctly." To the extent that his cross-examination elicited harmful testimony that the petitioner actually performed installation of certain items, this information largely came in on direct examination anyway, and attorney Gaudreau credibly testified that he did not expect these answers because the petitioner had assured him he performed no installation. Finally, he ably impeached her testimony that the petitioner kept asking for more money from her by questioning her as to the May 6, 2001 contract in which the petitioner actually deducted amounts due under the contract. In short, there is no indication that any of attorney Gaudreau's cross-examination was inadequate, and the petitioner has failed to demonstrate either deficient performance or resulting prejudice.
4. Failure to Preserve Appellate Issues
The petitioner next contends that his counsel was ineffective in failing to preserve issues for appeal. Insofar as this includes allegations that attorney Gaudreau failed to object to the court's charge to the jury, the appellate court, despite a lack of objection, considered the propriety of the charge on appeal anyway under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and determined that although the court erred in omitting the word "improvement" from the definition of "contractor," the error was harmless in the overall context of the charge. The petitioner, therefore, inherently is unable to establish that he was prejudiced by his attorney's failure to object even if it constituted deficient performance.
The petitioner also alleges that his attorney failed to preserve the issue of prior bad acts evidence being introduced through Brown's testimony. As noted above, the petitioner has failed to establish that this testimony, while arguably objectionable, materially prejudiced his defense even if it were presumed that the failure to object was deficient. For the same reasons, he cannot demonstrate prejudice resulting from the failure to preserve the issue for appellate review.
The court also notes the wide latitude given discretionary trial court decisions by the Appellate Court: "The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court . . . [E]very reasonable presumption should be given in favor of the trial court's ruling . . . [T]he trial court's decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done." (Internal quotation marks omitted.) State v. Peloso, 109 Conn.App. 477, 506-07, 952 A.2d 825 (2008).
5. Miscellaneous Claims
The petitioner alleges a veritable laundry list of other deficiencies in attorney Gaudreau's performance, most of which were unsubstantiated by evidence at trial. To the extent these claims were not pursued or argued they are deemed abandoned. See Wooten v. Commissioner of Correction, 104 Conn.App. 793, 801, 936 A.2d 263 (2007), cert. denied, 289 Conn. 911, 957 A.2d 858 (2008).
For example, the petitioner contends Gaudreau should have submitted evidence of payments to Mark Tracy showing Przybyla as the general contractor and that he was a licensed electrician; however, he has failed to submit either piece of evidence at this trial. He also raised allegations of jury tampering, failure to present impeachment information as to state's witnesses, breach of attorney-client confidentiality, failure to present an alibi defense, and failure to seek a mistrial. No evidence or argument was presented with respect to these allegations.
B. Conflict of Interest CT Page 9020
The petitioner's second and final surviving claim is that his attorney labored under a conflict of interest. The exact nature of the claimed conflict is unclear, but it appears that the petitioner is alleging an actual conflict because his attorney accepted payment in the form of checks written out to the petitioner by the petitioner's former clients, thus exposing the attorney to potential criminal liability. He alleges that the attorney general's office threatened attorney Gaudreau with prosecution unless he agreed to put on a "minimal token defense" and assist in the petitioner's conviction.
A conflict of interest may arise from "that which impedes [counsel's] paramount duty of loyalty to his client [such that] an attorney may be considered to be laboring under an impaired duty of loyalty, and thereby be subject to conflicting interests, because of interests or factors personal to him that are inconsistent, diverse or otherwise discordant with [the interests] of his client . . . Conflicts of interest . . . may arise between the defendant and the defense counsel. The key here should be the presence of a specific concern that would divide counsel's loyalties . . . Typically, . . . courts have looked to cases in which a representation fully devoted to [the] defendant's interest is likely to produce an adverse consequence unique to the individual case. Thus, the paradigm case is that in which the lawyer representing the defendant fears opening himself up to a criminal prosecution because he is under investigation for an offense relating to the same events." (Citations omitted; internal quotation marks omitted.) Barnes v. Commissioner of Correction, 99 Conn.App. 203, 217, 913 A.2d 460, cert. denied, 281 Conn. 921, 918 A.2d 272 (2007).
"Prejudice is presumed only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance . . . Once a defendant has established that there is an actual conflict, he must show that a lapse of representation . . . resulted from the conflict . . . To prove a lapse of representation, a defendant must demonstrate that some plausible alternative defense strategy or tactic might have been pursued but was not and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests." (Citations omitted; internal quotation marks omitted.) State v. Vega, 259 Conn. 374, 387, 788 A.2d 1221, cert. denied, 537 U.S. 836, 123 S.Ct. 152, 154 L.Ed.2d 56 (2002).
The only evidence submitted by the petitioner to establish the claimed conflict was a check written by Deborah Winters to the petitioner for five thousand dollars on November 21, 2001, endorsed by both the petitioner and attorney Gaudreau. Attorney Gaudreau had also represented the petitioner on certain matters arising from transactions the petitioner had conducted with Winters and her husband regarding improvements to their home. Attorney Gaudreau credibly testified that this was the petitioner's preferred method of payment, whereby he would sign a check over to attorney Gaudreau for services rendered and attorney Gaudreau would cash it, keep whatever was owed him and return the balance to the petitioner. Attorney Gaudreau did so on several occasions but later refused to accept payment in this fashion. He credibly testified that he had never been threatened or even notified of any investigation into this or any other conduct by the attorney general's office. Attorney Beizer also credibly testified that neither he nor, to his knowledge, any other person in the attorney general's office had threatened attorney Gaudreau with prosecution, and that as far as he knew there was no basis whatsoever for doing so.
The record is devoid of any indication of factors that would "divide counsel's loyalties" or of evidence that counsel refused to present certain evidence for fear that he would become vulnerable to prosecution. There is nothing illegal or even particularly unethical about accepting a negotiated instrument drawn on a third party's bank account as payment; per the petitioner's own allegations and an uncertified warrant for the petitioner's arrest dated August 15, 2002 for the transactions with the Winters, at the time the check was drawn he had not yet been accused of any wrongdoing in connection with his dealings with the Winters. Attorney Gaudreau credibly testified that nobody had ever discussed these checks with him. The only evidence of any conflict is the petitioner's own speculation, which falls far short of establishing any sort of conflicting interest, let alone one that could conceivably have hampered attorney Gaudreau's representation of the petitioner. The petitioner's claim, therefore, is unavailing.
CONCLUSION
Having failed to demonstrate that he received ineffective assistance of counsel, the petitioner's petition for a writ of habeas corpus is denied. Judgment shall enter in favor of the respondent. Should the petitioner wish to appeal, the clerk shall prepare a judgment file within thirty days.