Opinion
TSRCV144005987
08-22-2017
Wilfredo Ramos v. Commissioner of Correction
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
John B. Farley, J.
The petitioner, Wilfred Ramos, seeks habeas corpus relief based on alleged deprivations of due process and alleged ineffective assistance of trial counsel. Mr. Ramos was convicted of murder and tampering with physical evidence, after a jury trial, and given a total effective sentence of 65 years of incarceration. In his petition he alleges that he was deprived of his right to due process by virtue of the prosecutor's allegedly improper comments during the trial (Count One), and also by the prosecutor's failure to disclose alleged material exculpatory evidence pertaining to one of the investigating officer's internal affairs record (Count Two). Count Three alleges ineffective assistance of counsel based on a failure to investigate, raise and pursue the issues associated with the alleged due process violations, as well as several other claimed deficiencies in the defense presented on his behalf. The court concludes that the petitioner has failed to sustain his burden on all claims and, therefore, the court denies the petition.
FACTS
In the early morning hours of October 4, 2011 around 2:30 a.m., Linda Graveline was stabbed to death at her apartment in Waterbury. Immediately after the attack, a neighbor of the victim called the police. Lieutenant Michael Slavin, the on-call supervisor of the detective bureau that night, responded to the scene along with other Waterbury police officers. Lieutenant Slavin and Officer Crea spoke to two neighbors at the scene, Elizabeth Bermudez and Lycell Johnson, who both stated that upon hearing the victim's screams they ran to her apartment and saw the petitioner, whom they identified as the victim's boyfriend " Will, " inside the apartment covered in blood and holding a knife. They fled back to their apartment and called the police. Officer Crea reported that, upon obtaining this information, " [a] broadcast pickup was put out of the suspect Will, over the air as well as blue ink." Officer Crea memorialized these and other facts in a written report dated 10/4/2011 at 4:38 a.m. The cover sheet of the report indicates " No suspects" despite the above-quoted language from the body of the report.
At 3:05 a.m., shortly after the police responded to the scene, an anonymous person later identified as Mr. Ramos called the police department to report the incident as well. He spoke to Detective Baxter and claimed Ms. Graveline had been the victim of an assault with a knife perpetrated by a third party. He also reported that he had been stabbed in the leg when he attempted to intervene. The caller refused an offer of medical assistance. Detective Baxter relayed the substance of the call to Lieutenant Slavin. Though Ramos had provided his general location to Detective Baxter, the police were unable to find him in that vicinity. Following the 3:05 a.m. phone call the police attempted to call the number associated with the call and to identify the caller. The police soon learned that the phone number belonged to a woman who described herself as an ex-girlfriend of the petitioner and she told police the phone belonged to Wilfredo Ramos.
The petitioner's step-sister, Alma Jones, lived at the same address where Ramos resided. She testified that on the night of these events, between 3:30 a.m. and 4:00 a.m. she awoke to find eight police bars outside the house, police officers banging on the doors and windows and an officer yelling " Wilfredo Ramos! Open the door!" She recalls being interviewed by three detectives who were looking for Ramos. Anxious to locate Ramos, at 6:08 a.m. Detective Tirado submitted an " AT& T Exigent Circumstances Form" to obtain information regarding the phone, including information concerning the location of the phone Ramos had used to call the police.
Meanwhile, Ms. Bermudez and Mr. Johnson went to police headquarters to give statements. They also separately reviewed photo arrays and both identified a photograph of Mr. Ramos as the person named Will who they saw in the victim's apartment. Another witness, Teresa Mestey, also signed a photo array identifying the petitioner as " Will Ramos, " the victim's boyfriend, although she did not witness any of the events surrounding the assault. The statements and photo identifications were completed before 7:00 a.m. The photo arrays all identified Ramos as " the suspect." Detective Jackson, who obtained the Bermudez statement and conducted her photo array, testified that it was not typical to use a photo array to identify a victim or a witness. Detective Baxter, who obtained the other two statements and conducted two of the photo arrays confirmed Jackson's testimony that it was not typical to use a photo array to identify a victim or a witness. He also testified, however, that the reference to Ramos as " the suspect" was standard language used in all photo arrays and did not necessarily mean that the police considered Ramos a suspect at this point in the investigation.
At 7:10 a.m. the police received another phone call from Ramos, who did not identify himself, but repeated the story he had related to the police during the 3:05 a.m. phone call. Once again he refused the offer of medical attention and refused to provide his location. On this occasion, however, the police were able to identify the location of the telephone pursuant to the request for information from AT& T. Lieutenant Slavin sent Sergeant Ferucci, Detective Jackson and Officer Crea out to look for Ramos. All three plausibly had reason to believe that Ramos was a potential suspect in the Graveline murder. Detective Jackson had obtained the Bermudez statement and conducted the photo array identifying Ramos as a " suspect." Officer Crea had already prepared a report that referred to Ramos as a " suspect, " although his report also stated there were no suspects. Sergeant Ferucci was the on-call supervisor that night and was leading the investigation. He had witnessed the Bermudez and Johnson statements and was aware of the photo arrays.
The three officers located Ramos on the street and parked their vehicle in such a way as to facilitate a chase if Ramos fled. Officer Crea and Sergeant Ferucci approached Ramos on the street and Ferucci engaged him in a conversation there. Sergeant Ferucci identified himself, asked Ramos to identify himself, advised Ramos the police were conducting an investigation, asked about his injuries and offered to obtain medical assistance for him. Ramos declined medical attention. Sergeant Ferucci then asked Ramos, " How did it happen?" and Ramos responded by telling Ferucci he had been injured in a struggle at the address where Ms. Graveline had been murdered. Sergeant Ferucci testified that his question had been aimed at determining the nature of Ramos's involvement in the incident. While he testified he did not consider Ramos a suspect at that point, Sergeant Ferucci also acknowledged that he would have chased Ramos if he had attempted to run away during their discussion.
At the conclusion of this brief conversation with Ramos on the street, Ramos agreed to accompany the officers to the police station for further discussion. They patted Ramos down, handcuffed him and transported him to the police station. The pat down and use of handcuffs was done for the safety of the officers, not because Ramos was being arrested. He was not arrested at that point. Nothing of substance was discussed during the ride to the police station. When they arrived at the police station, Ramos was placed in an interview room and the handcuffs were removed. Nothing was said to him concerning his freedom to leave the station; the officers left the room and closed the door.
Detectives Tirado and Rivera were assigned to interview Ramos at the police station. They were aware of all the information that had been developed from the witnesses, that Ms. Graveline was deceased, that Ramos had made the two telephone calls and that he had refused medical attention. They testified at a suppression hearing prior to Ramos's criminal trial that, prior to the interview, they were unsure whether Ramos was a suspect or a victim. When they entered the room they saw Ramos was covered in blood. Detective Rivera asked whether he was okay and what had happened to him. Ramos told them he had stabbed himself. The detectives left to retrieve first aid materials and, based on his statement that he had stabbed himself, they decided to advise Ramos of his rights when they returned. They did so, Ramos waived his rights and the detectives proceeded to interview Ramos, ultimately obtaining a confession from him. He was advised of his rights again later in the process and he again confessed that he had stabbed Ms. Graveline during an argument with her.
Ramos testified in support of his petition that the police apprehended him by force on the street and took him to police headquarters against his will. He claims he was placed in an interview room, still in handcuffs, and then subjected to hours of physical abuse and interrogation. He asserts his request for a lawyer was ignored, he was never advised of his rights and he was in no condition to waive his rights because he had been drinking and using drugs for a day and a half before the incident. He maintains he never confessed to the police. He testified to much of this at his criminal trial as well. The court does not find his testimony credible.
At his criminal trial, Ramos sought to suppress his inculpatory statements. He was represented at that trial by Attorney Tashun Bowden-Lewis. At the suppression hearing Attorney Bowden-Lewis sought to preclude the introduction of Ramos's confession on the grounds that he had been subjected to a custodial interrogation while in the interview room at the police department before he was advised of his constitutional rights, and also on the grounds that, following any advisement of rights, his confession had been coerced. The state maintained that Ramos was not in custody before he was advised of his rights and that, prior to that advisement, no questions were posed to Ramos that the police knew or should have known were reasonably likely to elicit an incriminating response. The trial court denied the motion to suppress.
Ramos's claims that his confession was coerced and, alternatively, that he had never given the confession at all, were presented to the jury at trial.
Attorney Bowden-Lewis testified at the trial in this case pursuant to a subpoena issued by the petitioner. She was questioned by petitioner's counsel on several topics that form the basis of Ramos's claim of ineffective assistance of counsel. First, she is faulted for failing to present evidence that the police considered Ramos a suspect at the time of their first encounter with him on the street. Pursuing that line of attack would have, in the petitioner's view, established a foundation to pursue a " two-stage interrogation theory" and would have produced a different outcome on the motion to suppress Ramos's confession. When questioned about these issues, Attorney Bowden-Lewis was unable to provide any explanation for her approach to the suppression issue. She merely stated, " I am not going to second guess what I did; I am going to let you know what I did is what I thought was the best thing we had at the time, and I am not going to change that because it's now three or four years later . . . I stand behind what I did. I did good work. I believe I did good work and that's where it is for me."
Attorney Bowden-Lewis was also questioned about her alleged failure to obtain an internal affairs report concerning Detective Tirado completed the day before Tirado testified at the suppression hearing. The internal affairs investigation arose out of a federal criminal indictment of Tirado on charges of conspiracy to arrange illegal campaign contributions to a candidate for Congress, to conceal those contributions from federal authorities and for making false statements to federal investigators. Detective Tirado was placed on administrative leave at the time of his arrest in July 2012 and the charges were still pending at the time Ramos's criminal trial began in March 2013. On March 25, 2013 an internal affairs report was completed and, based on the charges and the information contained in the federal indictment, Tirado was found to have violated two provisions of the Waterbury Police Department's Duty Manual: failure to obey the law and conduct unbecoming an officer. Disciplinary action was recommended.
Attorney Bowden-Lewis was unaware of the internal affairs report when she questioned Detective Tirado at the suppression hearing on March 26, 2013. The evidence at trial did not establish when or whether the state's attorney prosecuting the case had received the report or become aware of its existence. Attorney Bowden-Lewis, however, was aware of the federal charges against Detective Tirado when he testified and she sought to question him on those allegations at the suppression hearing. She also wished to question him on those issues at trial. The trial court granted the state's motion in limine precluding the defense from questioning Tirado on the charges pending against him, so Attorney Bowden-Lewis was unable to pursue that line of questioning at the suppression hearing. Detective Tirado did not testify at the underlying criminal trial.
Attorney Bowden-Lewis, upon reviewing the internal affairs report at the habeas trial, testified that it would not have affected her defense strategy at trial if she had obtained it because there was no material difference between the contents of the report and what she already knew about the federal charges. Further, she observed, the trial court had already precluded her use of that information.
The facts surrounding the existence of the internal affairs report on Tirado are the foundation for one of the petitioner's due process claims based on the state's failure to disclose the report alleged to constitute exculpatory evidence, as distinguished from Attorney Bowden-Lewis's failure to seek the report.
Attorney Bowden-Lewis did not raise a suppression claim at the criminal trial concerning the legality of the police department's access to information about the phone Ramos was using on the night of the murder, information they used to identify his location and apprehend him. Attorney Bowden-Lewis testified that, in her view, this police conduct was not an issue because the circumstances constituted an emergency, rendering the tactic lawful. Months after the phone information was obtained, the police did obtain a warrant authorizing their access to the information.
After the defense rested at the criminal trial, on rebuttal the state presented Ramos's medical records concerning the treatment of his wounds. Attorney Bowden-Lewis did not object to the introduction of the records, except for one page that reflected the presence of illegal drugs and alcohol in Ramos's system. At the habeas trial petitioner's counsel questioned Attorney Bowden-Lewis on her decision to have this evidence precluded and she explained that she believed evidence of illegal drug use would have hurt Ramos's case with the jury.
Petitioner's counsel questioned Attorney Bowden-Lewis on why she had not pursued a missing witness instruction at trial, based on the state's failure to call Detective Tirado as a witness. She did not recall considering such a request and could articulate no specific reason for deciding not to pursue one, but she speculated that the trial court's ruling precluding the use of the federal charges against Tirado meant that it was pointless to pursue a missing witness instruction.
Finally, Attorney Bowden-Lewis was questioned regarding her failure to object to alleged improper comments by the prosecutor during closing argument. Specifically, the prosecutor commented on the character of the police officers involved in the case, portraying them as courageous in their pursuit investigations like this one, putting their own lives at risk, only to be accused of misconduct in the interrogation process and having to put up with that as part of their job. Ramos suggests the prosecutor was encouraging the jury to believe the testimony of the police officers based only on their status as police officers. Further, the prosecutor also allegedly commented on his own view of the case when he said, unlike other cases, " short of having a videotape of the defendant committed [sic] the murder, this case has everything. You have eyewitnesses, you have forensics, and you have a confession from the defendant." Further, the prosecutor suggested that a shoeprint examiner who testified at trial did not go far enough but that the jury could find nevertheless that only Ramos could have made all of the bloody footprints found at the scene of the murder. Finally, the prosecutor is alleged to have inappropriately sought to inflame the passions of the jury throughout closing argument, by repeatedly using the words " brutal" and " brutally" and by counting to seventeen to describe the number of stab wounds inflicted upon the victim.
The prosecutor's comments are an independent foundation for one of the petitioner's due process claims, in addition to his claim of ineffective assistance of counsel based on Attorney Bowden-Lewis's failure to object to the comments.
Additional facts will be set forth as necessary below.
DISCUSSION
1. Petitioner's Ineffective Assistance of Counsel Claims
A. Applicable Legal Standard
" The sixth and fourteenth amendments to the United States Constitution guarantee criminal defendants the right to have counsel for their defense in state prosecutions . . . Implicit in this guarantee is the right to have effective assistance of counsel." (Emphasis in original; citations omitted.) Skakel v. Commissioner of Correction, 325 Conn. 426, 441, 159 A.3d 109 (2016). " To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). The petitioner has the burden to establish 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." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. at 694.
Article first, § 8 of the Connecticut Constitution affords the same protection as that provided by the United States Constitution. Skakel v. Commissioner of Correction, supra, 431, n.8.
" To satisfy the performance prong . . . the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law." Taylor v. Commissioner of Correction, 324 Conn. 631, 637-38, 153 A.3d 1264 (2017). " It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the 'counsel' guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial." Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008). When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, 466 U.S. at 689.
Under the second prong of the test, the prejudice prong, the petitioner must show that " counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012). The petitioner " must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Internal quotation marks and citations omitted.) Breton v. Commissioner of Correction, 325 Conn. 640, 669, 159 A.3d 1112 (2017).
" Although a petitioner can succeed only if he satisfies both prongs, a reviewing court can find against a petitioner on either ground." (Citations omitted.) Breton v. Commissioner of Correction . See Strickland v. Washington, supra, at 697, 104 S.Ct. 2052 (court need not determine whether counsel's performance was deficient before examining prejudice suffered by defendant). Ultimately, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 466 U.S. at 686.
B. Attorney Bowden-Lewis's Efforts to Suppress Ramos's Confession
The petitioner identifies considerable evidence suggesting that the Waterbury police, despite their testimony to the contrary, considered Ramos a suspect from the early stages of their investigation and certainly by the time they approached him on the street. If so, he maintains, then he was the subject of a custodial interrogation there on the street and then again at the police station, all before he was advised of his rights. After the advisement, he argues, any confession obtained from him is tainted by the interrogations that preceded it. Ramos argues that Attorney Bowden-Lewis failed to thoroughly investigate the question whether he was a suspect when he was questioned on the street. At the suppression hearing, Attorney Bowden-Lewis did not pursue a claim that the police considered Ramos a suspect when they questioned him on the street. Instead she focused her efforts on the questioning that took place at the police station in the interview room before Ramos was advised of his rights. She did not offer any substantive explanation for this approach at the habeas trial, but merely testified that she did what she thought was best, pursued the strongest arguments and was not going to second guess her judgment now.
While it appears there was a substantive basis upon which Attorney Bowden-Lewis could have sought to establish that Ramos was in custody at the time he was questioned on the street, the court concludes that any failure to investigate that theory and her decision not to pursue it cannot satisfy the prejudice prong of the Strickland test. This conclusion follows directly from the Supreme Court's decision on the petitioner's direct appeal.
On appeal from his conviction, Ramos challenged the trial court's ruling on his motion to suppress on the basis that he was subjected to a custodial interrogation at the police station, without being advised of his rights, and also on the unpreserved ground that he had been subjected to an illegal " two stage interrogation." State v. Ramos, 317 Conn. 19, 114 A.3d 1202 (2015). The state did not contest the assertion that Ramos was in custody when he was questioned in the interview room before he was given the Miranda warnings. As the court held, however, a defendant must establish two conditions before invoking a claim that a constitutional violation has occurred. Not only must the defendant have been in custody, he must have been subjected to " interrogation." For these purposes " the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." Id., 30. The police question at issue before the court was the query, " What happened to you?" in the context of a discussion of Ramos's injuries. The court held that question did not satisfy the definition of " interrogation." Id., 30-31.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
When Ramos was questioned on the street, he was asked, " How did it happen?" also in the context of discussing his injuries. Ramos responded by telling police he had been injured in a struggle at the address where Ms. Graveline had been murdered. The court sees no substantive difference between the question Ramos was asked on the street and the question asked in the interview room that was reviewed on appeal from his conviction and found not to constitute " interrogation." There is no basis, therefore, to conclude that pursuit of a custodial interrogation theory regarding the interview on the street would have produced any different result at the suppression hearing. Even if Ramos was a suspect at that point, he was not " interrogated."
The petitioner's argument that Attorney Bowden-Lewis provided ineffective assistance of counsel by not pursuing a " two-stage interrogation theory" also fails to satisfy the prejudice prong. Although Attorney Bowden-Lewis did not raise this issue in the trial court, the claim was raised on appeal. The court did not reach the issue--not because it was unpreserved, but because it lacked the necessary foundation that Ramos had been the subject of a custodial investigation before he received a Miranda warning. Id., 31 n.6. Because the interview on the street also fails to satisfy the " interrogation" requirement, it also could not have provided a foundation for a two-stage interrogation theory and it could not have produced a different result at the suppression hearing.
C. Attorney Bowden-Lewis's Failure to Obtain the Tirado Internal Affairs Report
The petitioner claims that Attorney Bowden-Lewis provided ineffective assistance of counsel by failing to obtain the internal affairs report concerning Detective Tirado that had been approved by the chief of police the day before Tirado testified at the suppression hearing. There was no evidence that Attorney Bowden-Lewis knew there was such a report, or even that an internal investigation was underway. She was aware of the federal charges and intended to impeach Detective Tirado's testimony based on the pendency of the charges. The court granted the state's motion in limine and precluded that line of questioning. The state argued that, because this was a state prosecution and the pending charges were federal, the state was in no position to reward Detective Tirado for favorable testimony and thus the federal charges were not a legitimate basis upon which to impeach his credibility. The court granted the motion on that basis. Ramos argues that the pending disciplinary action casts a different light on this subject, because it is conceivable that the police department might reward Tirado for favorable testimony by going easier on him in the disciplinary matter. The court accepts the logic of that distinction, but it is not enough to warrant habeas relief.
Even assuming Attorney Bowden-Lewis knew or should have known about the internal affairs investigation--and the court finds that the petitioner failed to prove that--Detective Tirado did not testify at trial and the alleged lost opportunity to impeach his credibility in that proceeding is of no significance. His credibility was not an issue before the jury. Tirado did testify at the suppression hearing regarding the questioning of Ramos at the police station, but so did Detective Rivera. In order to satisfy his burden of proof at the habeas trial to establish that his impeachment of Tirado with the internal affairs report would have produced a different result from the suppression hearing, the petitioner had to also cast sufficient doubt on Rivera's corroborating testimony. The petitioner offers only a bald assertion that Rivera also had an incentive to testify falsely " in order to cover up any misconduct on the part of a fellow officer." Other than that broad, critical stereotype of police officers, there is nothing to suggest that the failure to obtain the internal affairs report on Tirado significantly undermines the integrity of Rivera's testimony at the suppression hearing. The court concludes that Ramos has failed to satisfy the prejudice prong of the Strickland test on this issue.
It is also noteworthy that the trial court was aware of the federal charges pending against Tirado, even though the court did not know about the internal affairs report.
D. Attorney Bowden-Lewis's Failure to Challenge the Legality of the Police Department's Access to the Petitioner's Cell Phone Location.
The petitioner claims that the Waterbury Police Department illegally obtained access to cell phone information disclosing his present location and, thus, was able to detain and interrogate him. Attorney Bowden-Lewis did not assert this claim at trial and the petitioner maintains that his confession would have been suppressed had she done so. Ramos argues that the procurement of his location from AT& T by asking the company, without a court order, to " ping" his cell phone violated General Statutes § 54-47aa and, further, the statutory violation was a ground for suppressing all information obtained as a result of his detention and questioning. Attorney Bowden-Lewis testified that she did not perceive this to be an issue because the procedure is employed routinely by the police in emergency situations and she believed it was legal.
Given the rapid developments in technology and in the law as it concerns the privacy of cell phone information, it is important to place this issue in the appropriate context. This activity occurred in October 2011. § 54-47aa, as it stood at that time, only dealt with historical data, not prospective information or what the statute now refers to as " geo-location data." See State v. Brown, Superior Court, judicial district of New Haven, Docket No. CR-10-0261382 (December 10, 2015) (61 Conn.L.Rptr. 450, ) (2015 WL 9809750). Little evidence was introduced concerning the technical aspects of how the phone company obtained the data, but it is clear that it revealed Ramos's current location and enabled the police to find him in real time.
In 2011, § 54-47aa did not address the question of exigent circumstances, it did not authorize law enforcement officials to obtain information directly from a service provider when such circumstances were present and it did not speak to the issue of prospective information and geo-location data. Yet, the evidence at trial was that, at least in 2011, it was a routine practice to do so and that service providers just demanded the submission of an " exigent circumstances form" before they would provide the requested information. The legislature amended the statute in 2016 and essentially codified this practice.
How the rapidly developing technology fits into longstanding legal principles embedded in the constitution has been the subject of much conflict and discussion. As a matter of constitutional law, the Second Circuit Court of Appeals recently held that exigent circumstances justified pinging the phone of a murder suspect where the suspect was also believed to be the leader of a drug ring, the victim was one of his associates and the operation was the subject of an ongoing undercover investigation. Applying an objective test, the court concluded that exigent circumstances justified pinging the suspect's phone because it was reasonable to be concerned that the safety of undercover officers was at risk. United States v. Caraballo, 831 F.3d 95 (2d Cir. 2016). The court recognized that there was a split of authority over the question whether any expectation of privacy attached to cell phone data, historical or otherwise, and that the Sixth Circuit has held that " individuals have no reasonable expectation of privacy in the real-time GPS location of their cell phones." Id., 102 citing United States v. Skinner, 690 F.3d 772 (6th Cir. 2012). The court did not decide that issue, but observed " the fact that both an undecided question of whether an underlying privacy interest existed in this case, and that plausible arguments could be made that here the officers acted in a way that was objectively consistent with the law and therefore that suppression is not justified, properly affect our analysis of whether exigency existed in the case before us." Id. The Supreme Court has yet to squarely address this subject, beyond observing that technology is overwhelming the law in this area, significant unresolved issues may require the development of new legal paradigms by courts and by legislatures and, in the meantime, " the best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated." United States v. Jones, 565 U.S. 400, 430, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (Alito, J, concurring). Even the case relied upon by the petitioner, State v. Smith, 156 Conn.App. 537, 560, 113 A.3d 103 (2015) recognizes there is a debate and the law is unsettled in this area. In that case the court opted not " to wade into the depths of the fourth amendment and its state counterpart . . . [and] weigh in on this debate." Id.
In Jones, Justice Alito observed that states had not adopted legislation regulating the use of GPS tracking technology for law enforcement purposes. Connecticut addressed that issue in the context of telephone and internet records in 2016 when the legislature amended § 54-47aa. The petitioner's argument suggests that by failing to address prospective data or geo-location data prior to 2016, the statute implicitly prohibited the police from obtaining such data, even when there were exigent circumstances. It is a plausible reading of the statute, even when viewed in the rapidly changing context within which these issues arise. It is just as plausible, and likely more so, to view these newly developed technological capabilities as unregulated at that time, except to the extent that fourth amendment principles could be applied to a particular case.
This case does not present an opportunity to resolve these issues on their merits. The question here is whether Attorney Bowden-Lewis should have recognized and pursued this previously unresolved issue on behalf of Ramos. The failure to recognize and pursue such issues does not constitute ineffective assistance of counsel, particularly under circumstances such as these. " [F]ailure to advance novel legal theories or arguments does not constitute ineffective performance . . . Nor is counsel required to 'change then-existing law' to provide effective representation . . . Counsel instead performs effectively when he elects to maneuver within the existing law, declining to present untested legal theories." (Citations omitted; internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 461-62, 880 A.2d 160 (2005), cert. denied, sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006). Even today, the law is unsettled on these issues, except that the legislature has now amended § 54-47aa to address the issue of pinging a cell phone. Indeed, the amended statute authorizes law enforcement authorities to obtain geo-location information directly from service providers where a law enforcement officer states under oath: " (1) That facts exist upon which to base a belief that the data sought is relevant and material to an ongoing criminal investigation; (2) a belief that exigent circumstances exist; and (3) the facts supporting the belief that exigent circumstances exist." " Exigent circumstances" is defined in the statute as " an emergency involving danger of serious physical injury to or death of a person." In this case there were two eyewitnesses, neighbors of the victim familiar with Ramos and who saw Ramos standing over the victim, covered in blood and holding a bloody knife. Given the brutality of the crime, the safety of those two witnesses alone would most likely have established the required exigent circumstances, let alone the fact that the police knew Ramos himself had been injured and, despite his protestations to the contrary, may have been in need of medical assistance. See United States v. Caraballo, supra .
The petitioner has not established that Attorney Bowden-Lewis's representation fell below an objective standard of reasonableness where she failed to identify and pursue a novel, unresolved issue in an area of law and technology that has undergone rapid and significant change, outpacing the ability of all courts, including the Supreme Court, to adapt.
E. Attorney Bowden-Lewis's Decision Not to Place Evidence of the Petitioner's Intoxication into Evidence.
The petitioner alleges that Attorney Bowden-Lewis provided ineffective assistance of counsel by failing to present evidence of his intoxication and otherwise pursue an intoxication defense. At his criminal trial, the state offered a copy of Ramos's medical records reflecting the treatment he received at the hospital on the day of his arrest, to refute Ramos's claim that, before he had been taken to the hospital, he had been " beaten senseless" during the questioning by Detectives Tirado and Rivera. Attorney Bowden-Lewis successfully sought the redaction of a portion of the records reflecting the results of toxicology tests indicating the presence of cocaine and alcohol in his system. At the habeas trial Ramos testified that he wanted the jury to know he had been drinking and taking drugs for a day and a half leading up to the homicide, so that they would believe his claim that he had not knowingly and voluntarily waived his fifth amendment rights while being questioned by the police. That testimony was not elicited by Attorney Bowden-Lewis at the criminal trial. There Ramos testified that, in fact, he had never been advised of his first amendment rights and had never actually confessed to the murder despite the severe beatings he allegedly endured while being questioned. Presenting a theory that Ramos's waiver of his rights was ineffective due to his intoxication would have been inconsistent with that testimony. At the habeas trial Attorney Bowden-Lewis further explained that she sought the redaction from the medical records based on her judgment that evidence of Ramos's illegal drug use might hurt his case before the jury.
The petitioner did not pursue his allegation that Attorney Bowden-Lewis should have pursued an intoxication defense, which would have been inconsistent with his defense and testimony at trial that, although he was present at the time of the murder, it was a third person who committed the murder.
Under the circumstances of this case, Attorney Bowden-Lewis's decision to keep out evidence of the petitioner's intoxication was a matter of trial strategy and, thus, insulated from habeas review. Ramey v. Commissioner of Correction, 150 Conn.App. 205, 213-15, 90 A.3d 344, cert. denied, 314 Conn. 902, 99 A.3d 1168 (2014) (counsel's decision to not raise issue of intoxication to the jury found to be reasonable trial strategy). Moreover, the petitioner did not present evidence at the habeas trial to prove that his level of intoxication on the day in question would have raised a serious concern such that it would have been inconsistent with a knowing and voluntary waiver of his rights. He did not offer a copy of the hospital records in question, nor did he present any expert testimony concerning the toxicology results to support his claim that he was too impaired to knowingly and voluntarily waive his rights. Detective Rivera testified at the criminal trial that Ramos did not appear to be intoxicated when he was at the police station. Thus, the court finds, even assuming Attorney Bowden-Lewis's performance was deficient in this respect, that the petitioner has not proven that he was prejudiced by that. Id., 214-15.
F. Attorney Bowden-Lewis's Failure to Request a Missing Witness Instruction Based on Detective Tirado's Failure to Testify at Trial
The petitioner claims that Attorney Bowden-Lewis should have made a " missing witness" argument to the jury based on Detective Tirado's failure to testify at the criminal trial. The petition asserts that, had she done so, it " would have undermined the reliability of the [petitioner's] alleged confession." There were two detectives present throughout Ramos's interrogation, Detective Tirado and Detective Rivera. Detective Rivera did testify at trial and denied any improper conduct on his part or on the part of Tirado during the questioning of Ramos. The petitioner does not claim that Tirado would have contradicted that testimony, but instead claims that, had Tirado testified, the defense would have been able to establish that both he and Rivera had a motive to lie because of the internal affairs matter pending as to Tirado.
The court has already found that the petitioner failed to prove that Attorney Bowden-Lewis knew or should have known that the internal affairs report existed at the time of trial. The court has also concluded that, particularly in light of Detective Rivera's testimony, the petitioner cannot establish prejudice based on the fact that Attorney Bowden-Lewis was unaware of that report. There is no factual foundation for a claim that Attorney Bowden-Lewis's representation was ineffective because of her failure to make a missing witness argument based on facts that were unknown to her, i.e. the contents of the internal affairs report, absent a finding that her representation was deficient due to her failure to obtain that report. The court has already concluded otherwise. It is unclear what argument the petitioner proposes Attorney Bowden-Lewis should have made, based on the record as it stood at the time of closing arguments in the criminal trial. It also bears reiterating that even if Tirado could have been impeached with the internal affairs report, there is no evidentiary foundation upon which the court can conclude that Rivera could similarly have been impeached with that report. The petitioner has failed to satisfy either prong of the Strickland test on this claim.
G. Attorney Bowden-Lewis's Failure to Object to the Prosecutor's Closing Argument
The petitioner maintains that Attorney Bowden Lewis should have objected to several arguments made by the prosecutor at his trial. The court concludes that any deficiency in Attorney Bowden-Lewis's performance in this regard fails to satisfy the prejudice prong for the reasons set forth in Section II.B below.
II. Petitioner's Due Process Claims
A. Applicable Legal Standards
The petitioner has advanced two claims that he was deprived of due process in the course of the state's prosecution. First, he claims that the prosecutor made improper arguments to the jury and, second, he claims that the state's failure to disclose the Tirado internal affairs report deprived him of material exculpatory evidence in violation of the requirement of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The respondent has not advanced a defense of procedural default based on the petitioner's failure to raise these issues at trial or on appeal. Consequently, the petitioner may pursue these issues as he would have in the event that he had appealed directly on his due process claims and the court must decide the merits of these issues. Day v. Comm'r of Corr., 151 Conn.App. 754, 758-60, 96 A.3d 600, cert. denied, 314 Conn. 936, 102 A.3d 1113 (2014); Ankerman v. Commissioner of Correction, 104 Conn.App. 649, 654-55, 935 A.2d 208, cert. denied, 285 Conn. 916, 943 A.2d 474 (2007).
" In analyzing claims of prosecutorial impropriety, [courts] engage in a two-step analytical process . . . The two steps are separate and distinct . . . We first examine whether prosecutorial impropriety occurred . . . Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial . . . In other words, an impropriety is an impropriety, regardless of its ultimate effect on the fairness of the trial. Whether that impropriety was harmful and thus caused or contributed to a due process violation involves a separate and distinct inquiry." State v. Fauci, 282 Conn. 23, 32-34, 917 A.2d 978 (2007).
The petitioner's claim that the state suppressed exculpatory evidence is governed by Brady v. Maryland, supra, 373 U.S. 83. " To establish a Brady violation, the petitioner bears the heavy burden of proving that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the [petitioner], and (3) it was material [either to guilt or to punishment]." (Internal quotation marks and citations omitted.) Stevenson v. Commissioner of Correction, 165 Conn.App. 355, 364-65, 139 A.3d 718, cert. denied, 322 Conn. 903, 138 A.3d 933 (2016).
B. Prosecutor's Closing Arguments
The petitioner cites five arguments and comments made to the jury by the prosecutor, Terence Mariani, and asserts they constituted prosecutorial misconduct. In the respondent's post-trial brief, no effort is made to defend the propriety of those arguments and comments. Instead, the respondent merely asserts that they had no measurable impact on the jury's verdict. This court agrees that several of the cited comments and arguments were improper. The court concludes, however, that they do not amount to a due process violation.
The entirety of the respondent's argument on this issue was that " given the overwhelming amount and nature of evidence presented by the State, as well as the overall strength of the State's case, it is unlikely that any of the comments that the Petitioner deemed objectionable, had any measurable impact on the jury's decision to convict."
i. Boosting the Credibility of Police Officers
The petitioner maintained at his criminal trial that his confession had been coerced by the police. Detective Rivera, who was one of the interviewing officers, and Lieutenant Slavin, who was their supervisor and was in the interview room for a brief period, both denied that any misconduct occurred during the course of Ramos's interrogation. While addressing that issue in his closing argument, the prosecutor argued as follows:
These are police officers, like Lieutenant Slavin, who was on his way home at 2:30 in the morning when he hears a call come over the radio. And instead of going home to whatever he has waiting for him, he turns the car around, goes to 24 Vine Street where people are living for $300 a week--a month, and runs in there. By himself, no doubt. And those are the same police officers that we're supposed to believe beat the defendant until he said what they wanted him to say. I guess it's part of the job to put up with that, but think about Mike Slavin turning around and running into that building. Those are the kind of people that are in here testifying.
This was improper argument on the part of the prosecutor because it called upon the jury to place more weight on the testimony of the police officers due to the " kind of people" they are. State v. Thompson, 266 Conn. 440, 469, 832 A.2d 626 (2003) (" It is improper to suggest that the jury should accord greater weight to the testimony of police officers on account of their occupational status"), that is, people who willfully risk their lives in their line of work. State v. Williams, 41 Conn.App. 180, 187-88, 674 A.2d 1372, cert. denied, 237 Conn. 925, 677 A.2d 950 (1996). It also amounted to improper testimony by the prosecutor that being falsely accused of misconduct is just " part of the job" of a police officer. State v. Jordan, 314 Conn. 89, 109-12, 101 A.3d 179 (2014).
ii. Prosecutor Offering His Own View of the Case
The petitioner also complains that the prosecutor offered the jury his own view of the case, first by comparing the strength of this case to the strength of other cases and also by expressing his disagreement with his own expert shoeprint examiner, who testified she was unable to scientifically conclude that the bloody shoeprints leaving the victim's apartment could only have been made by one person. The court concludes that the former was improper and the latter was not.
The prosecutor argued as follows to the jury:
You know sometimes you might have a case where there's good forensics, but you don't have an eyewitness, or you have an eyewitness and there's no forensics, or you don't have a confession and you have to rely on other things. I mean short of having a videotape of the defendant committed [sic] the murder, this case has everything. You have eyewitnesses, you have forensics, and you have a confession from the defendant.
Jurors do not have cases, prosecutors do. The prosecutor's argument was aimed at giving the jury the benefit of his knowledge and experience as a prosecutor, to let them know this case was exceptionally strong compared to many other cases. He invited them to rely on his expertise to conclude that the petitioner was guilty, because rarely is the evidence against other guilty defendants as strong as the evidence in this case. That was improper. State v. Bermudez, 274 Conn. 581, 600, 876 A.2d 1162 (2005) (improper for prosecutor to comment about experience successfully convicting defendants).
The petitioner also complains that the prosecutor contradicted the testimony of his own shoeprint expert during his closing argument and urged the jury to do the same. He did do that, but there was other evidence underlying his argument. The shoeprint examiner was able to connect bloody shoeprints leaving the scene as belonging to the petitioner's shoes. She was able to identify several shoeprints with certainty. As the prints became further away from victim, there was less detail for her to rely upon to make the comparison because the blood was wearing off the shoes, and she was unable to offer the same degree of certainty. She also testified, however, that she did not find evidence of a second set of shoeprints. The prosecutor argued to the jury: " You look at those footprints. I couldn't get the shoe print examiner to go along with me, but look at a picture of those footprints and tell me if that doesn't look like one person, like when you watch somebody walk through the snow." This argument was supported in the record by the testimony of another witness, the crime scene technician who gathered evidence at the scene and photographed the shoeprints. He testified, based on his observations, " it appears as though there is only one set of shoeprints at the scene" and " While I am not a shoeprint examiner I could tell that the shoeprints here appear to be similar to each other and there only appear to be one set of shoeprints heading from Ms. Graveline's apartment down the communal hallway." With that testimony in the record, without objection, the prosecutor was within his rights to argue that the jury could conclude there was only one set of shoeprints at the scene, despite the shoeprint examiner's inability to say so with reasonable scientific certainty.
iii. Inflaming the Passions of the Jury
The petitioner claims it was improper for the prosecutor to repeatedly characterize the crime as " brutal" and to count to seventeen while describing the number of stab wounds inflicted upon the victim. The petitioner claims these were improper appeals to sympathy for the victim and an attempt to arouse the passions of the jury. These arguments were not improper. The crime was brutal. There is no other way to describe it. State v. Andrews, 313 Conn. 266, 300-01, 96 A.3d 1199 (2014) (" A prosecutor is not precluded from using descriptive language that portrays the nature and enormity of the crime when supported by the evidence"). By counting out the stab wounds the prosecutor sought to convince the jury that Ramos acted with intent to cause Ms. Graveline's death. Indeed, the court properly instructed the jury that " The type and number of wounds inflicted may be used as evidence of the perpetrator's intent and from such evidence an inference may be drawn that there was an intent to cause a death." Counting to seventeen was a rhetorical device presumably intended to illustrate to the jury how much time the perpetrator had to stop stabbing the victim, if he did not intend to kill her. State v. Daye, 159 Conn.App. 831, 849-50, 123 A.3d 894, cert. denied, 319 Conn. 949, 125 A.3d 529 (2015).
iv. Due Process Analysis
Having established that there were two improper arguments employed by the prosecutor, the court must determine whether they were so harmful as to deprive the petitioner of a fair trial. " [T]he touchstone of due process analysis in cases of alleged [harmful] prosecutorial [impropriety] is the fairness of the trial, and not the culpability of the prosecutor . . . The issue is whether the prosecutor's [actions at trial] so infected [it] with unfairness as to make the resulting conviction a denial of due process . . . In determining whether the defendant was denied a fair trial . . . we must view the prosecutor's [actions] in the context of the entire trial . . .
" [I]t is not the prosecutor's conduct alone that guides our inquiry, but, rather, the fairness of the trial as a whole . . . We are mindful throughout this inquiry, however, of the unique responsibilities of the prosecutor in our judicial system. A prosecutor is not only an officer of the court, like every other attorney, but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent . . . By reason of his [or her] office, [the prosecutor] usually exercises great influence upon jurors. [The prosecutor's] conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because he [or she] represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice or resentment. If the accused be guilty, he [or she] should [nonetheless] be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe . . .
" . . . In determining whether prosecutorial [impropriety] was so serious as to amount to a denial of due process, [the Supreme Court], in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state's case . . .
" Regardless of whether the defendant has objected to an incident of [impropriety], a reviewing court must apply [these] factors to the entire trial, because there is no way to determine whether the defendant was deprived of his right to a fair trial unless the [impropriety] is viewed in light of the entire trial . . . Because the inquiry must involve the entire trial, all incidents of [impropriety] must be viewed in relation to one another and within the context of the entire trial. The object of the inquiry before a reviewing court in claims involving prosecutorial [impropriety], therefore, is always and only the fairness of the entire trial, and not the specific incidents of [impropriety] themselves." (Internal citations and quotation marks omitted.) State v. Fauci, 282 Conn. 23, 32-34, 917 A.2d 978 (2007).
Defense counsel did not invite these improper arguments and the prosecutor's argument encouraging the jury to give the testimony of police officers greater weight was central to the question whether Ramos had knowingly and voluntarily confessed to the crime. The prosecutor's effort to convince the jury to convict Ramos based on his own professional view that this was a particularly strong case went straight to the heart of the jury's overall task. Notably, however, there are no claimed improprieties that occurred during any part of the trial other than closing argument. It also appears that the prosecutor's argument regarding the police witnesses was an unartful attempt to stop short of boosting their credibility--it was not a blatant and direct violation of the. prosecutor's duties in this regard. Similarly, it was proper for the prosecutor to point out that the state had a strong case built on each of the various categories of evidence one might look for. It was just improper to fortify that argument by layering into it the prosecutor's own professional experience. Further, there were instructions from the court that mitigated the impact of the prosecutor's arguments, even though the court did not specifically reference those arguments. The court instructed the jury it was not to afford any greater weight to the testimony of police officers based simply on their status as such, and the court twice advised the jury that it was inappropriate for counsel to express personal opinions concerning the strength of the case.
Significantly, while it may have been improper argument to the jury, the prosecutor's observations concerning the strength of the state's case were not inaccurate. Responding to the victim's screams, two eyewitnesses rushed to the scene and, when the apartment door opened, they saw Ramos standing over the body, covered in blood and holding the murder weapon later found discarded in the woods. Ramos fled the scene, ostensibly to search for the real killer, rather than calling for help. There was no evidence, other than his own testimony, to support his claim that the murder was committed by an unknown third party. Police later determined the murder weapon belonged to Ramos. There was extensive forensic evidence connecting Ramos to the victim, the weapon and the scene. And, of course, there was Ramos's confession. Whatever impact the prosecutor's argument had on the jury, the state's case was so strong this court cannot conclude that " the trial as a whole was fundamentally unfair and that the impropriety so infected the trial with unfairness as to make the conviction a denial of due process." (Internal citations and punctuation omitted.) State v. Jordan, 132 Conn.App. 817, 828, 33 A.3d 307 (2012).
The petitioner argues that, even if the prosecutor's improper arguments do not rise to the level of a due process violation in this specific case, the petition should be granted nevertheless, pursuant to the court's supervisory authority over the administration of justice. See State v. Wilson, 308 Conn. 412, 454-56, 64 A.3d 91 (2013). The petitioner notes that the prosecutor in this case, Terence Mariani, has previously had a conviction overturned pursuant to an exercise of such supervisory authority, shortly after the verdict in the petitioner's case, in State v. Santiago, 143 Conn.App. 26, 66 A.3d 520 (2013). Since the Santiago case, there have been at least two other appellate decisions wherein the court has found that Attorney Mariani has engaged in prosecutorial improprieties. State v. Jordan, 314 Conn. 89, 101 A.3d 179 (2014); State v. O'Brien-Veader, 318 Conn. 514, 122 A.3d 555 (2015). In each of those cases, however, no due process violation was found and the court declined to exercise its supervisory authority, " notwithstanding Attorney Mariani's choice of an advocacy style that renders him a prosecutorial Icarus flying near the sun of reversible impropriety." State v. O'Brien-Veader, supra, 318 Conn. 551 n.24. In State v. Warholic, 278 Conn. 354, 405, 897 A.2d 569 (2006), another case involving Attorney Mariani, the court observed that " [s]uch a sanction generally is appropriate . . . only when the [prosecutor's] conduct is so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal."
To this court it appears that the alleged improprieties in this case would not warrant the exercise of the appellate courts' supervisory authority, based on the cited cases. This court, however, questions whether it has such supervisory authority in any event. Supervisory authority is a special power held by the appellate courts. See State v. Elson, 311 Conn. 726, 764 91 A.3d 862 (2014). While a habeas court may share some attributes with an appellate court, such as in this case where the petitioner's due process claims were not subject to a procedural default defense, the habeas court is not in a position of authority over trial courts in general. Any request for the exercise of such authority in this case would have to be made in the context of an appeal from this decision.
C. Brady Violation
The petitioner argues that the state's failure to disclose the internal affairs report concerning Detective Tirado before he testified violated the petitioner's right to due process. He maintains that, had he been able to impeach Detective Tirado with that report at the suppression hearing, there is a reasonable probability that the trial court would have credited the petitioner's account of events over that of Detective Tirado and suppressed his confession. Absent the confession, he argues, there is a reasonable probability that the jury would have found him not guilty. The court disagrees.
The petitioner's claim that the state suppressed exculpatory evidence is governed by Brady v. Maryland, supra, 373 U.S. 83. " To establish a Brady violation, the petitioner bears the heavy burden of proving that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the [petitioner], and (3) it was material [either to guilt or to punishment]." (Internal quotation marks and citations omitted.) Stevenson v. Commissioner of Correction, 165 Conn.App. 355, 364-65, 139 A.3d 718, cert. denied, 322 Conn. 903, 138 A.3d 933 (2016). " The [s]tate's duty of disclosure is imposed not only upon its prosecutor, but also on the [s]tate as a whole, including its investigative agencies." Demers v. State, 209 Conn. 143, 150-51, 547 A.2d 28 (1988). " Evidence that is not disclosed is suppressed for Brady purposes even when it is known only to the police investigators and not to the prosecutor . . . In addition, evidence is favorable if it is either exculpatory or impeaching." (Citation omitted; internal quotation marks omitted.) Morant v. Commissioner of Correction, 117 Conn.App. 279, 285, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009).
Because the police department knew of the internal affairs report and did not disclose the information, the petitioner has satisfied the first element of Brady . Further, the suppressed evidence would have been favorable to the petitioner's defense. Knowledge that Tirado was facing potential disciplinary action would have aided the petitioner's attempt to impeach his testimony. On the requirement of materiality, however, the petitioner's claim falls short.
Evidence is material if " there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). " A reasonable probability is a probability sufficient to undermine confidence in the outcome . . . [A] showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence . . . A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict . . . One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Accordingly, the focus is not whether, based upon a threshold standard, the result of the trial would have been different if the evidence had been admitted. We instead concentrate on the overall fairness of the trial and whether nondisclosure of the evidence was so unfair as to undermine our confidence in the jury's verdict." (Internal quotation marks and citations omitted.) State v. Wilcox, 254 Conn. 441, 453-54, 758 A.2d 824 (2000) overruled on other grounds by Hinds v. Commissioner of Correction, 321 Conn. 56, 136 A.3d 596 (2016).
" In evaluating the reasonable probability standard, we should be aware of what adverse effect the nondisclosure may have had on the defendant's preparation or presentation of his case and that we should act with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have [otherwise] taken . . . On the other hand, we must also recognize that the mere possibility that an item of undisclosed evidence might have helped the defense or might have affected the outcome of the trial, however, does not establish materiality in the constitutional sense." (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 546, 747 A.2d 487 (2000).
In this case, the internal affairs report, assuming it would have been admissible, would nevertheless have added very little to the defense. The petitioner asserts that the pendency of the internal affairs proceeding motivated Tirado to provide testimony favorable to the prosecution, beyond the police department's usual institutional interest and his own personal interest in seeing the arrest result in a conviction. Whatever validity there might be to that theory, the lost opportunity to impeach Tirado in that way does not come close to undermining confidence in the outcome of the trial. Specifically with respect to the suppression hearing, Tirado's testimony that nothing untoward occurred during Ramos's interview was corroborated by Detective Ramirez, who was present for the entire interview. " Courts have found that improperly withheld impeachment evidence is not material where the testimony of the witness who might have been impeached is strongly corroborated by additional evidence supporting a guilty verdict." (Citation omitted.) Quintana v. Commissioner of Correction, 55 Conn.App. 426, 439, 739 A.2d 701, cert. denied, 252 Conn. 904, 743 A.2d 614 (1999). It is most unlikely that the court would have precluded evidence of Ramos's confession because one of the interviewing police officers was the subject of an unrelated internal affairs investigation. Moreover, aside from Ramos's confession, the evidence at trial of his guilt was, as the respondent characterizes it, overwhelming. Responding to the victim's screams, two eyewitnesses rushed to the scene and, when the apartment door opened, they saw Ramos standing over the body, covered in blood and holding the murder weapon later found discarded in the woods. He fled the scene, ostensibly to search for the real killer, rather than calling for help. There was no evidence, other than his own testimony, to support his claim that the murder was committed by an unknown third party. Despite the improper suppression of the internal affairs report, the court concludes there is not a reasonable probability that, had the report been disclosed, the result would have been different.
CONCLUSION
The court concludes that the petitioner has failed to sustain his burden to prove that his defense counsel rendered ineffective assistance of counsel and has failed to establish that his criminal trial was tainted by a due process violation. The court, therefore, denies the petition and renders judgment in favor of the respondent.