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ANGEL GONZALEZ v. COMMISSIONER

OF CORRECTION
(AC 33057)
DiPentima, C. J., and Gruendel and Bear, Js.
Submitted on briefs April 12officially released August 13, 2013

(Appeal from Superior Court, judicial district of

Tolland, Fuger, J.)
Justine F. Miller, assigned counsel, filed a brief for
the appellant (petitioner).
Gail P. Hardy, states attorney, and Mitchell S. Brody
and Angela Macchiarulo, senior assistant states attorneys, filed a brief for the appellee (respondent).

Opinion

DiPENTIMA, C. J. The petitioner, Angel Gonzalez,

appeals following the denial of his petition for certification to appeal from the judgment of the habeas court
denying his amended petition for a writ of habeas corpus. The petitioner claims that the court abused its
discretion when it denied his petition for certification
to appeal and improperly rejected the claim that his
criminal trial counsel provided ineffective assistance.
We disagree, and, accordingly, dismiss the appeal.
The following facts, as set forth in the petitioners
direct appeal to this court, and procedural history are
relevant to this appeal. Two murders occurred on
November 15 and 16, 2003. The petitioner was charged
and convicted of the second murder.
On the evening of November 15, 2003, the first murder
occurred when Smaely Tineo shot and killed Michael
Zuckowski. State v. Gonzalez, 106 Conn. App. 238, 240
41, 941 A.2d 989, cert. denied, 287 Conn. 903, 947 A.2d
343 (2008). Shortly after the shooting, the petitioner,
who worked as a clown and went by the names Clown
and Clowny, was recorded by a restaurants video
camera riding his unicycle in a parking lot across the
street from the murder site. Id., 241. While investigating
the crime, the police learned that Tineo was friends
with the petitioner, and significantly, that Zuckowski
was friends with the victim of the second murder, Lamar
Williams. Id. In the early morning hours of the following
day, November 16, 2003, Williams was in a hallway of
a building on South Marshall Street, engaged in a drug
sale. Id. The second murder occurred when the petitioner, wearing a mask, entered the building and shot
Williams two times. Id. The police arrived on the scene
to find Williams dead from his gunshot wounds. Id. The
petitioner was arrested for this murder and ultimately
tried before a jury. Id.
During the petitioners criminal trial, the states case
included testimony from Charles McClairen, Trevor
Bennett, and Jasenia Rodriguez. Id., 24243, 25455.
McClairen testified that he and the petitioner, whom
he knew as Clown, were incarcerated together. Id.,
242. McClairen testified that in late March or early April,
2003, the petitioner had told him that he had shot a
person on South Marshall Street. Id. Bennett testified
that he and the petitioner, whom he also knew as
Clown, had been cellmates in January, 2004. Id., 243.
Bennett testified that the petitioner admitted to having
killed Williams and told him that Tineo was responsible
for Zuckowskis death. Id. Bennett further testified that
the petitioner had told him that he and Tineo were close,
like brothers Id. The jury also heard testimony from
Rodriguez, a former girlfriend of Williams. Id., 254.
Rodriguez testified that on November 13, 2003, three
days before the second murder, the petitioner con-

fronted her and pushed her against a wall. Id., 25455.

She testified that the petitioner was wearing a clown
mask and that he had told her that Williams was dead.
Id., 255.
After hearing this testimony and considering other
evidence, the jury found the petitioner guilty of murder
in violation of General Statutes 53a-54a. Id., 240.
Thereafter, the petitioner filed a motion for a new trial.
Id., 258. At the hearing on the motion, the petitioner
orally amended his motion and sought relief on the
grounds of newly discovered evidence. Id. This evidence, founded on the sworn statements of four incarcerated individuals, sought to expose an alleged
jailhouse conspiracy to wrongfully inculpate the petitioner. Id., 259. The trial court, Hon. John F. Mulcahy,
Jr., judge trial referee, denied the motion. Id. This court
rejected all of the petitioners claims on appeal, including his claim related to the motion for a new trial, and
affirmed the judgment of conviction. Id., 240.
Following his unsuccessful appeal, the petitioner
filed an amended petition for a writ of habeas corpus,
alleging two counts of ineffective assistance of counsel.
The petitioner alleged that his criminal trial counsel,
John Stawicki, failed to adequately investigate and prepare an appropriate defense for the petitioners trial,
failed to call defense and impeachment witnesses on
behalf of the petitioner, failed to properly cross-examine [the] states witnesses . . . McClairen and . . .
Bennett, and failed to prepare and present discoverable
defense testimony and evidence necessary for a fair
trial.1
The habeas court, Fuger, J., heard testimony from
the petitioner, Stawicki, and the four inmate witnesses
with information regarding the alleged jailhouse conspiracy. Concluding that the petitioner had failed to
meet his evidentiary burden of proof, the court rejected
all of the petitioners claims and denied his amended
petition. Specifically, the court found that Stawickis
decision not to investigate and call the four inmate
witnesses was premised on reasonable trial strategy.
The court then denied the petition for certification to
appeal, and this appeal followed. Additional facts will
be set forth as necessary.
Faced with a habeas courts denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
he must demonstrate that the denial of his petition for
certification constituted an abuse of discretion. . . .
Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas
court should be reversed on its merits. . . .

To prove an abuse of discretion, the petitioner must

demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . .
We examine the petitioners underlying claim of ineffective assistance of counsel in order to determine
whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard
of review of a habeas courts judgment on ineffective
assistance of counsel claims is well settled. In a habeas
appeal, this court cannot disturb the underlying facts
found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by
the habeas court constituted a violation of the petitioners constitutional right to effective assistance of counsel is plenary. (Internal quotation marks omitted.)
Barlow v. Commissioner of Correction, 131 Conn. App.
90, 9394, 26 A.3d 123, cert. denied, 302 Conn. 937, 28
A.3d 989 (2011). The habeas judge, as the trier of facts,
is the sole arbiter of the credibility of witnesses and
the weight to be given to their testimony. (Internal
quotation marks omitted.) Small v. Commissioner of
Correction, 286 Conn. 707, 717, 946 A.2d 1203, cert.
denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.
Ct. 481, 172 L. Ed. 2d 336 (2008).
Furthermore, it is well established that [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. . . . It is axiomatic that the right to counsel is the right to the effective assistance of counsel.
. . . A claim of ineffective assistance of counsel consists of two components: a performance prong and a
prejudice prong. To satisfy the performance prong . . .
the petitioner must demonstrate that his attorneys representation was not reasonably competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. . . . To
satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but
for counsels unprofessional errors, the result of the
proceeding would have been different. . . . The claim
will succeed only if both prongs are satisfied. (Citations omitted; internal quotation marks omitted.)
Gaines v. Commissioner of Correction, 306 Conn. 664,
67778, 51 A.3d 948 (2012).
The following additional findings made by the habeas
court are necessary for our discussion. At the habeas
trial, the petitioner testified that George Flores, a public
defender, initially served as his attorney until a conflict
of interest was discovered during jury selection. Due

to the conflict, Stawicki was appointed and assumed

the responsibilities of counsel. The petitioner testified
that Flores had used an investigator and that Flores
file was given to Stawicki. Further, the petitioner testified that he had told Stawicki of the jailhouse conspiracy.
In addition to hearing this testimony from the petitioner, the court heard testimony from the four inmate
witnesses, and noted the following. Cephas McBean, a
convicted felon, testified that another inmate and former cellmate, Jonathan Ward, had asked him to lie
about the petitioners responsibility in the murder of
Williams. The court found that McBean had no direct
knowledge of the murder. Walter Lawson, Jr., another
convicted felon, also testified that Ward had asked him
to lie about the petitioners responsibility in the murder
of Williams. Another inmate, Anthony McKenzie, testified that he overheard a conversation between Ward
and Bennett in which they were plotting to receive
a more lenient sentence from the state through their
cooperation. Abraham Hannah, also a convicted felon,
indicated that he heard Bennett say that the petitioner
did not shoot anybody. The court found that Lawson,
McKenzie and Hannah were not . . . at the murder
scene and had no direct knowledge or evidence regarding the murder.
The court also heard testimony from Stawicki. Stawicki testified that he spoke with Flores, the prosecutor,
and the investigator after being appointed as counsel.
He testified that the investigation was complete at the
time he assumed responsibility. Stawicki also stated
that the petitioner told him of the jailhouse conspiracy.
Further, Stawicki testified that he was concerned
about getting the jury to believe that Ward, who was a
friend of Williams, was attempting to lay blame for
the crime on someone who did not commit the crime
instead of on the actual perpetrator. Stawicki also testified that he would not have called McBean, Lawson,
McKenzie, and Hannah to testify during the criminal
trial, despite being told of the jailhouse conspiracy,
because doing so could have led the state to call Ward
as a witness. According to Stawicki, had Ward been
called as a witness, he could have testified about his
reasons for wanting to see the petitioner punished,
which consequently, might have led the jury to doubt
the petitioners innocence.
The following legal principles are relevant to our
resolution of this appeal. In any case presenting an
ineffectiveness claim, the performance inquiry must be
whether counsels assistance was reasonable considering all the circumstances. Prevailing norms of practice
as reflected in American Bar Association standards and
the like . . . are guides to determining what is reasonable . . . . Nevertheless, [j]udicial scrutiny of counsels performance must be highly deferential. It is all

too tempting for a defendant to second-guess counsels

assistance after conviction or adverse sentence, and it
is all too easy for a court, examining counsels defense
after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable.
. . . A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsels challenged conduct, and to
evaluate the conduct from counsels perspective at the
time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption
that counsels conduct falls within the wide range of
reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy. . . .
Inasmuch as [c]onstitutionally adequate assistance
of counsel includes competent pretrial investigation;
Siemon v. Stoughton, 184 Conn. 547, 554, 440 A.2d 210
(1981); [e]ffective assistance of counsel imposes an
obligation [on] the attorney to investigate all surrounding circumstances of the case and to explore all
avenues that may potentially lead to facts relevant to
the defense of the case. . . .
Nevertheless, strategic choices made after thorough
investigation of law and facts relevant to plausible
options are virtually unchallengeable; [but] strategic
choices made after less than complete investigation
are reasonable precisely to the extent that reasonable
professional judgments support the limitations on
investigation. In other words, counsel has a duty to
make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision
not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsels judgments.
The reasonableness of counsels actions may be
determined or substantially influenced by the [petitioners] own statements or actions. Counsels actions are
usually based, quite properly, on informed strategic
choices made by the [petitioner] and on information
supplied by the [petitioner]. In particular, what investigation decisions are reasonable depends critically on
such information. For example, when the facts that
support a certain potential line of defense are generally
known to counsel because of what the defendant has
said, the need for further investigation may be considerably diminished or eliminated altogether. And when
a defendant has given counsel reason to believe that
pursuing certain investigations would be fruitless or
even harmful, counsels failure to pursue those investigations may not later be challenged as unreasonable.
(Citations omitted; internal quotation marks omitted.)

Gaines v. Commissioner of Correction, supra, 306

Conn. 67981 (citing supporting case law).
On appeal, the petitioner argues that Stawicki was
deficient by failing to conduct, at the time of trial, an
adequate investigation into the jailhouse conspiracy,
which according to the petitioner, would have led to
the discovery of the four inmate witnesses, who, in
turn, could have been called to impeach two of the
states witnesses, McClairen and Bennett.2 The petitioner further argues that, contrary to the courts determination, this was not reasonable trial strategy. We are
not persuaded.
In its memorandum of decision, the court addressed
Stawickis trial strategy and noted that he was aware
of the jailhouse conspiracy during the trial, but was
concerned that the jurors would not believe that Ward,
a friend of Williams, would conspire with other inmates
to wrongfully charge the petitioner with Williams murder, when doing so would allow the true perpetrator
to escape prosecution. Mindful of the fact that there is
a strong presumption that counsels representation falls
within the wide range of reasonable professional assistance, we are persuaded that the court properly concluded that Stawickis decision not to continue the
investigation of the four inmates was reasonable trial
strategy. Stawicki testified that he had reviewed Flores
complete file, had been made aware of the alleged jailhouse conspiracy, and had been told of Wards motives3
for conspiring against the petitioner. He further testified
that introducing evidence of the jailhouse conspiracy
would have revealed Wards involvement as the organizer, and further, his personal friendship with Williams.
With this information, Stawicki reasoned, a jury could
have determined that Ward, acting as Williams friend,
would have attempted only to conspire against Williams actual murderer. Relying on these inferences,
Stawicki stated that he was concerned that the jury
would credit Wards conspiracy as evidence of the petitioners guilt. See Strickland v. Washington, 466 U.S.
668, 691, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (counsel
need not pursue investigation that would be fruitless
or harmful to defense strategy); see also Gaines v. Commissioner of Correction, supra, 306 Conn. 68182
(same); see id., 682 n.12. In light of these circumstances,
Stawickis strategic assessment of the jurys potential
reaction to the conspiracy evidence was reasonable.
Similarly, his strategic decision not to continue investigating reasonably comported with such an assessment.
See, e.g., Thompson v. Commissioner of Correction,
131 Conn. App. 671, 695, 27 A.3d 86 (counsel not deficient when aware of content of witness testimony and
failed to interview witness because content unhelpful),
cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011).
The petitioner also argues that without further investigation into the conspiracy, and thus, not knowing the

testimony of the inmates, Stawickis decision was necessarily unreasonable. We are not persuaded. In support
of his argument, the petitioner cites Gaines v. Commissioner of Correction, 125 Conn. App. 97, 109, 7 A.3d
395 (2010), affd, 306 Conn. 664, 51 A.3d 948 (2012),
as well as other nonbinding authority. The petitioners
reliance on Gaines is misplaced, as it readily is distinguishable. In Gaines, counsel did not claim that he
made an informed decision not to investigate . . . in
conjunction with a reasonable trial strategy. Gaines
v. Commissioner of Correction, supra, 306 Conn. 683.
Moreover, the facts there revealed that the missing witness whom counsel should have investigated and called
was an alibi witness. Id. Here, by contrast, Stawicki
made an informed decision not to investigate in furtherance of reasonable trial strategy, and the four inmates
were not alibi witnesses. Contrary to the petitioners
argument, our habeas jurisprudence does not reveal
such a rigid rule obligating counsel to know the exact
testimony of a witness as a precondition to making a
reasonable professional decision about his involvement. Under the petitioners theory, the reasonableness
standard pursuant to Strickland effectively would be
eviscerated. We stress that counsel need not track
down each and every lead or personally investigate
every evidentiary possibility before choosing a defense
and developing it. (Internal quotation marks omitted.)
Williams v. Commissioner of Correction, 100 Conn.
App. 94, 103, 917 A.2d 555, cert. denied, 282 Conn. 914,
924 A.2d 140 (2007).
We conclude that the court properly determined that
the petitioner failed to meet his burden of showing
that Stawickis decision not to investigate was deficient
under the performance prong of Strickland. Therefore,
we are not persuaded that the issues raised in the petition for certification to appeal are debatable among
jurists of reason, that a court could resolve the issues
differently, or that the questions raised by the petitioner
deserve encouragement to proceed further. See Simms
v. Warden, supra, 230 Conn. 616. Accordingly, the petitioner has failed to demonstrate that the court abused
its discretion in denying his petition for certification
to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1

In his amended petition, the petitioner also alleged that his trial counsel
was ineffective for failing to object properly to hearsay testimony. This
claim, however, was abandoned at the habeas court and is not the subject
of this appeal.
2
To the extent the petitioner attempts to raise as a separate and distinct
aspect of his claim Stawickis decision not to call the four inmate witnesses,
we conclude that this aspect has not been raised and briefed properly. The
petitioner did not raise the failure to call these witnesses as a distinct aspect
of Stawickis alleged deficiency in his appellate brief. This secondary ground
for deficiency is raised for the first time in his reply brief. It is axiomatic
that a party may not raise an issue for the first time on appeal in its reply
brief. . . . Our practice requires an appellant to raise claims of error in his
original brief, so that the issue as framed by him can be fully responded to

by the appellee in its brief, and so that we can have the full benefit of that
written argument. Although the function of the appellants reply brief is to
respond to the arguments and authority presented in the appellees brief, that
function does not include raising an entirely new claim of error. (Citations
omitted; internal quotation marks omitted.) Crawford v. Commissioner of
Correction, 294 Conn. 165, 197, 982 A.2d 620 (2009). Accordingly, we only
address the petitioners claim as it relates to Stawickis failure to investigate.
3
Stawicki testified that the petitioner had told him that Wards motivation
stemmed merely from his dislike of the petitioner.