October 16, 2018
petition for writ of habeas corpus, brought to the Superior
Court in the judicial district of Tolland and tried to the
court, Oliver, J.; judgment denying the petition,
from which the petitioner, on the granting of certification,
appealed to this court. Affirmed.
Fernandes Lage, assigned counsel, for the appellant
Mitchell S. Brody, senior assistant state's attorney,
with whom, on the brief, were Maureen Platt, state's
attorney, and Marc C. Ramia, senior assistant state's
attorney, for the appellee (respondent).
Lavine, Alvord and Moll, Js.
petitioner, Sojournal Hodges, appeals from the judgment of
the habeas court denying his petition for a writ of habeas
corpus. On appeal, the petitioner claims that the court (1)
improperly rejected his claim that his trial counsel, Donald
J. Cretella, Jr., rendered ineffective assistance and (2)
abused its discretion by precluding the petitioner's
expert from testifying at the habeas trial. We affirm the
judgment of the habeas court.
petitioner was charged with attempt to commit robbery in the
first degree with a firearm as an accessory in violation of
General Statutes §§ 53a-8, 53a-49, and 53a-134 (a)
(4), and conspiracy to commit robbery in the first degree
with a firearm in violation of General Statutes §§
53a-48 and 53a-134 (a) (4). The petitioner informed Cretella
that he was present at the scene. Cretella pursued a mere
presence defense during the petitioner's criminal trial
and attacked allegations of the petitioner's involvement
in the events forming the basis for the charges. Following a
jury trial, the petitioner was convicted of both charges, and
the trial court, Prescott, J., sentenced the
petitioner to seven years incarceration, followed by five
years special parole.
following facts, which the jury reasonably could have found
concerning the petitioner's underlying offenses, are
relevant to this appeal. On June 28, 2012, at approximately
8:15 a.m., the petitioner and an unidentified man walked into
Hernandez Grocery in Waterbury (store). The petitioner wore
one grey glove and covered his face with a red hoodie that
had a white patch. The unidentified man wore a black hoodie
and asked Josean Campos, a store employee, for a single
cigarette. Upon discovering that the store did not sell loose
cigarettes, the two men left the store and stopped on the
sidewalk. The petitioner followed the unidentified man back
into the store. The unidentified man placed his right hand on
the store counter, while holding a pistol on its side, and
demanded that Campos give him "all the money."
Campos noticed that the pistol lacked an ammunition clip and
stated that he would not do so. The unidentified man stated
that he was "just joking" and left the store with
the petitioner following him. Campos contacted the police,
who, on the basis of Campos' physical description of the
petitioner and his clothes, detained the petitioner. A crime
scene technician collected a surveillance video from the
store, which was admitted as a full exhibit in the
petitioner's underlying criminal trial.
his conviction, the petitioner brought a petition for a writ
of habeas corpus, in which he alleged that Cretella was
ineffective, inter alia, for failing to investigate and
pursue a valid defense and failing to consult with experts.
The habeas court, Oliver, J., denied the petition
for a writ of habeas corpus on all counts. The petitioner
then filed a petition for certification to appeal from the
court's judgment, which the court granted. This appeal
followed. Additional facts will be set forth as necessary.
petitioner claims that the court improperly determined that
Cretella did not render ineffective assistance by (a)
allegedly failing to present a competent defense and (b)
declining to consult with and retain an expert witness in
video forensics. We disagree.
begin by setting forth the applicable standard of review.
"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. . . . The application of historical
facts to questions of law that is necessary to determine
whether the petitioner has demonstrated prejudice under
Strickland [v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], however, is
a mixed question of law and fact subject to our plenary
review." (Citation omitted; 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).
enunciated in Strickland v. Washington,
[supra, 466 U.S. 687');">466 U.S. 687, ] this court has stated: 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 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.
. . . The claim will succeed only if both prongs are
satisfied." (Internal quotation marks omitted.)
Bry-ant v. Commissioner of Correction, 290 Conn.
502, 510, 964 A.2d 1186, cert, denied sub nom. Murphy
v. Bryant, 558 U.S. 938, 130 S.Ct. 259, 175
L.Ed.2d 242 (2009).
court must indulge a strong presumption that counsel's
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. .
. . [C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise
of reasonable professional judgment." (Internal
quotation marks omitted.) Goodrum v.
Commissioner of Correction, 63 Conn.App. 297,
300-301, 776 A.2d 461, cert, denied, 258 Conn. 902, 782 A.2d
Petitioner argues that Cretella rendered ineffective
assistance by pursuing a flawed defense theory of mere
presence. He contends, with twenty-twenty hindsight, that
Cretella failed to contest his presence at the store despite
the claim that it was difficult to identify him from the
video. He argues that Cretella failed to move to suppress
Campos' out-of-court and in-court identifications of the
petitioner and that he posed questions to Campos ...