Opinion
TSRCV124004820S
01-11-2018
Ezra BENJAMIN #250838 v. WARDEN, State Prison
UNPUBLISHED OPINION
OPINION
Farley, J.
The petitioner, Ezra Benjamin, seeks habeas corpus relief based on alleged ineffective assistance of trial counsel resulting in his convictions in two cases consolidated for trial in 2002. This petition was filed in 2012, but was preceded by a series of petitions Mr. Benjamin withdrew prior to trial, all alleging ineffective assistance of trial counsel, among other grounds. Mr. Benjamin was convicted in one case of sexual assault in the first degree (General Statutes § 53a-70(a)(1)), assault in the second degree (General Statutes § 53a-60(a)(1)) and unlawful restraint in the first degree (General Statutes § 53a-95). In that case he received a total effective sentence of thirty years to serve. In the second case, Mr. Benjamin was convicted of assault in the second degree (General Statutes § 53a-60(a)(1)) and unlawful restraint in the first degree (General Statutes § 53a-95). He was sentenced to ten years to serve in the second case, to run consecutively to the sentence imposed in the first case, for a total effective sentence of forty years to serve.
Mr. Benjamin alleges that his trial counsel, appointed two months before the trial began, rendered ineffective assistance in three ways. First, he allegedly failed to properly investigate the DNA evidence relied upon by the state to obtain his conviction, including the circumstances under which his own DNA sample was obtained by the state. Second, he claims that the circumstances under which trial counsel was called upon to represent him- an appointment two months prior to trial combined with the state’s late disclosure of DNA evidence and trial counsel’s obligations in another trial proceeding contemporaneously with this one- rendered trial counsel’s assistance presumptively ineffective under U.S. v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Finally, he maintains trial counsel’s cross examination of several witnesses at trial was inadequate.
At the trial of this case Mr. Benjamin, who was self-represented, presented testimony from Anita Vailonis, a criminalist at the state lab who testified at Mr. Benjamin’s criminal trial, Kevin Daly, who is an attorney that responded to a FOIA request from Mr. Benjamin, and Michelle Jones, Mr. Benjamin’s sister. Mr. Benjamin did not testify. The respondent presented testimony from Robert Berke, who was Mr. Benjamin’s criminal defense attorney at the underlying criminal trial. The court has considered all of the testimony at trial and has reviewed and considered all the exhibits introduced into evidence, including a transcript of the entire trial that resulted in Mr. Benjamin’s convictions. The court concludes that Mr. Benjamin has not proven his claims and, therefore, his petition is denied.
I. FACTS
On the night of September 26, 2001, two women were assaulted in Waterbury. They were both abducted and strangled to the point of unconsciousness. The first victim was beaten and struck in the head with a rock. The second was sexually assaulted. Both women had been working as prostitutes that night and had been picked up by their assailant in his car, taken somewhere, exited the car and then been assaulted. The police investigation led to Mr. Benjamin, who was arrested at his home in the early morning hours of September 27, 2001.
Both victims were taken to St. Mary’s Hospital for examination and sexual assault kits were obtained from both of them. After connecting Mr. Benjamin’s car to the assaults, around the time of his arrest, the police had the car towed to their facility for later examination. A search warrant was obtained to search Mr. Benjamin’s residence and his car. Pursuant to that warrant, the police removed items of clothing found in Mr. Benjamin’s apartment. Detective Michael Silva, who was assigned to the Waterbury Police Department’s crime lab and was the lead crime scene investigator at Mr. Benjamin’s home, testified that each item was placed in a separate evidence bag, the bags were sealed and ultimately deposited with the police department’s property division. These items of clothing were not individually photographed at the crime scene, nor were there any observations recorded concerning the presence or lack of blood on the clothing. Before these items were sent to the state laboratory for testing, while they were still in the custody of the police department, the items of clothing were removed from their bags to be photographed by Detective Silva. At that time, he noted the presence of blood on some of these items of clothing. Mr. Benjamin appears to claim that Detective Silva planted the blood found on these clothes. The trial record also reveals that Detective Silva handled the clothing in such a way as to create some risk of cross contamination.
At 2:20 p.m. on September 27, 2001 a warrant was obtained authorizing the police to obtain biological samples from Mr. Benjamin for purposes of blood testing as well as DNA analysis and comparison with the two victims. These samples were obtained at St. Mary’s Hospital by Dr. Stephen Holland. According to Doctor Holland, refreshing his recollection from his report, he did this work between 3:30 p.m. and 4:00 p.m. that day. There was arguably conflicting testimony, however, from Detective Silva and Sargent Eugene Coyle. Neither of these witnesses testified at the habeas trial. At Mr. Benjamin’s criminal trial, Detective Silva testified that after leaving Mr. Benjamin’s home on the initial visit in the early morning of September 27th, he was at the hospital " in the later hours of that morning." His testimony suggests that he may have been present at the hospital when Mr. Benjamin’s samples were obtained, but he also testified that it was another Detective, Lucinda Lopes, who received the kit from Dr. Holland. The significance to Mr. Benjamin is that it is possible to infer that the samples were taken before the warrant was obtained, if it is inferred from Detective Silva’s testimony that all the testing occurred " in the later hours of that morning." It is also possible to infer, however, that Detective Silva was present at the hospital when the victims’ samples were obtained that morning, not when Mr. Benjamin’s samples were obtained later in the day. Sargent Coyle was involved in the initial investigation at both crime scenes and at Mr. Benjamin’s home when he was arrested. He spoke to him briefly at the police station, but had no dealings with him after that. He was not present at the hospital at any time that day. He testified that he did not know when Mr. Benjamin’s sexual assault kit was done, but nevertheless he believed it was done between 9:00 a.m. and 11:00 a.m. that morning. This testimony was elicited by Attorney Berke on cross examination. Sargent Coyle also testified on redirect, however, that the samples were taken after the search warrant was obtained.
Mr. Benjamin claims that Detective Lopes, also with the Waterbury crime lab, gave conflicting testimony as well. The court’s review of that testimony, however, reflects that it was not inconsistent with that of Dr. Holland. Mr. Benjamin’s argument is based upon the contextual events of that day for Detective Lopes, two doctors’ appointments she attended in order to get cleared for upcoming surgery. Mr. Benjamin believes her testimony contradicts Detective Silva’s testimony that it was her who received the evidence obtained by Dr. Holland from Mr. Benjamin. Her first appointment delayed her arrival at work on the morning of September 27th. She arrived between 10:45 a.m. and 11:00 a.m. She then was present during the search of Mr. Benjamin’s home, but left there for her second appointment scheduled for 1:30 p.m. Mr. Benjamin concludes it could not have been Detective Lopes who obtained the samples taken from Mr. Benjamin, although she testified she was there, because there is no evidence that she returned to work after the second appointment. There is evidence, however, that she did return to work after that appointment. Detective Lopes testified that she participated in the examination of Mr. Benjamin’s car, which took place " late in the day on the twenty-seventh, because we went to [Mr. Benjamin’s home] first, then we went to St. Mary’s Hospital for the search warrant on Mr. Benjamin, and then the vehicle."
Attorney Robert Berke was appointed to represent Mr. Benjamin as a special public defender in early August 2002. Mr. Benjamin was represented by other counsel throughout most of the pretrial phase of his case. Although the state gave notice that it would rely on DNA evidence and disclosed DNA reports prior to Attorney Berke’s appointment, the state disclosed two additional forensic reports, one on the eve of trial and one during the trial. A DNA report dated September 25, 2002 was provided on September 30, 2002. The matter was raised with the court on October 2, 2002, but no action was taken so that Attorney Berke could consult with his expert, who was regularly available to him. Attorney Berke did not move to preclude the evidence, but sought additional time to prepare his cross examinations of the witnesses from the state lab. On October 4, 2002, the court determined that it would allow a break in the trial, so that Attorney Berke would have a half day plus a weekend to prepare cross examination of the state’s experts after they testified on direct.
On October 18, 2002, a Friday, the state’s criminalist and DNA expert testified on direct examination. The record reflects that Attorney Berke had been consulting with his own expert and the state lab regarding the forensic biology issues at that point. Cross examination, however, was deferred until the following Monday as previously planned.
On Friday afternoon, another state lab report dated August 9, 2002 surfaced. It was not a DNA report, but was a report by the criminalist identifying evidence of blood and semen on various items of clothing. It appears to have been what prompted the DNA analysis reflected in the September 25, 2002 report disclosed on September 30, 2002. On October 21, 2002, Attorney Berke moved for a mistrial based on the late disclosure. The court, however, continued the trial until October 23, 2002 to allow additional time for Attorney Berke to prepare his cross examination of the state’s criminalist and DNA expert. Attorney Berke conducted thorough and detailed cross examinations of both witnesses on October 23, 2002.
Attorney Berke was working under pressure at the time of Mr. Benjamin’s trial, not only because he had been appointed only two months prior to trial and was dealing with late disclosures from the state, but he was also involved in a trial proceeding in another district during the same period. The jury had been selected in Mr. Benjamin’s case, but Attorney Berke was scheduled to start jury selection on October 3, 2002 in the other case. The court in the other case, however, had indicated it would postpone the start of evidence until Attorney Berke finished the trial in Mr. Benjamin’s case. Evidence in Mr. Benjamin’s case did not begin until October 16, 2002 and the jury returned its verdict on October 29, 2002. Attorney Berke’s other trial began sometime after that. This court concludes, based on the evidence, that this schedule imposed no hardship on Attorney Berke beyond the normal crowded schedule criminal defense attorneys regularly confront. Attorney Berke’s testimony corroborated that conclusion.
Attorney Berke conducted substantive and pointed cross examinations of the state’s witnesses at Mr. Benjamin’s trial, but Mr. Benjamin claims that those examinations failed to satisfy the requirements of the sixth amendment. According to Mr. Benjamin, his defense counsel had an obligation to establish through cross examination that the Waterbury Police Department had planted or fabricated the DNA evidence against him. At the criminal trial, Attorney Berke called Mr. Benjamin’s housemate to testify that the police had removed a phlebotomy kit that belonged to Mr. Benjamin. Attorney Berke also highlighted the fact that no photographs were taken of a drop of blood the police claimed to have found on the passenger side window of Mr. Benjamin’s car. He questioned the propriety of Detective Silva’s conduct in taking Mr. Benjamin’s clothing out of the sealed bags, purportedly to photograph them, and handling those items in such a way as to risk cross contamination. In his closing argument, Attorney Berke questioned the reliability of the DNA evidence by criticizing police procedures in the handling of evidence, suggesting there might well have been cross contamination or other explanations for how Mr. Benjamin’s blood was found on the items of clothing seized from his apartment. Attorney Berke did not directly accuse the police of planting or fabricating evidence, but sought to raise questions in the minds of the jurors as to whether the evidence was suspect. Attorney Berke testified at the habeas trial that although Mr. Benjamin contended the evidence was fabricated, his own judgment was that there was insufficient evidence to establish that contention and Attorney Berke believed there were more fruitful grounds for cross examination of the police witnesses.
Mr. Benjamin claims that the police failed to note that on the property report, but he submitted only one page of the multi-page report at the habeas trial.
Mr. Benjamin also claims that Attorney Berke did not cross examine an eyewitness, Charles Fontano, thoroughly and aggressively enough. Mr. Fontano was in a romantic relationship with one of the victims. He initially testified that he was on Walnut Street in Waterbury when he observed his girlfriend enter Mr. Benjamin’s car. He then corrected himself, without any prompting, to say that he was on Orange Street. He later found his girlfriend on Walnut Street after she had been assaulted. Attorney Berke did not cross examine Mr. Fontano on his initial confusion over which street the victim was on when she entered the car. He did cross examine him, however, on the inconsistency between his testimony at trial and the statement he gave to the police indicating that his girlfriend had been pulled into Mr. Benjamin’s car through the passenger side window. The victim herself testified that she had entered the car voluntarily and not through the window. Attorney Berke testified at the habeas trial, not surprisingly, that as trial counsel he does not pursue every inconsistency in the testimony of a witness. He pursues the ones he considers significant, and not the ones " that are just annoying to a jury." He appears to have followed that practice in this instance.
II. DISCUSSION
A. Applicable Legal Standards
" 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. 694.
" 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. 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). " An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment ... The purpose of the [s]ixth [a]mendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the [c]onstitution." (Citation omitted.) Strickland v. Washington, supra, 466 U.S. 691-92. The defendant has the burden to " affirmatively prove prejudice." Id., 693.
" 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. 686.
In rare instances the court presumes, without analysis, that the prejudice prong is satisfied. In United States v. Cronic, supra, the Court held that such a presumption will apply under " circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." The Court " elaborated on the following three scenarios in which prejudice may be presumed: (1) when counsel is denied to a defendant at a critical stage of the proceeding; (2) when counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing; and (3) when counsel is called upon to render assistance in a situation in which no competent attorney could do so." Davis v. Commissioner of Correction, 319 Conn. 548, 555, 126 A.3d 538 (2015), cert. denied sub nom. Semple v. Davis, 136 S.Ct. 1676, 194 L.Ed.2d 801 (2016). The presumption recognized in Cronic " must be interpreted narrowly and applied rarely." Taylor v. Commissioner of Correction, 324 Conn. 631, 649, 153 A.3d 1264 (2017) citing Vazquez v. Commissioner of Correction, 128 Conn.App. 425, 436-38, 17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011).
B. Petitioner’s Claims of Ineffective Assistance of Counsel
The court first addresses Mr. Benjamin’s claim under United States v. Cronic, supra . The court’s review of the criminal trial transcript reflects not only that Mr. Benjamin had the assistance of counsel throughout the trial, his attorney conducted a diligent and competent defense overall. Mr. Benjamin emphasizes the fact that Attorney Berke was appointed only two months prior to trial, had to contend with the state’s late disclosure of evidence and was also involved in another case at the time of Mr. Benjamin’s trial. Attorney Berke, however, did not testify that he was under inordinate constraints or deprived of an adequate opportunity to prepare for trial. He obtained the continuances he needed in order to prepare Mr. Benjamin’s defense. In United States v. Cronic, the Court declined to apply a presumption of prejudice under much more extreme circumstances. In that case, the court appointed a young real estate attorney with no criminal or trial experience only twenty-five days prior to the trial of a mail fraud case, involving thousands of documents, that the Government had spent four and one-half years investigating. Attorney Berke, in contrast, was a very experienced criminal trial lawyer who had handled many sexual assault cases and clearly had the background and ability to examine, analyze and question the state’s DNA evidence. The constraints on his performance identified by Mr. Benjamin are not unusual for such an experienced practitioner and Attorney Berke managed those constraints appropriately, as experienced practitioners do. The adversarial process did not break down because of Attorney Berke’s late appointment, the state’s late disclosure of evidence and the trial awaiting Attorney Berke at the end of Mr. Benjamin’s trial. See United States v. Smith, 982 F.2d 757 (1992) (counsel’s appointment over the weekend to represent the petitioner at a revocation hearing on Monday did not implicate the Cronic standard). Mr. Benjamin’s claims must be analyzed under Strickland v. Washington, supra .
Mr. Benjamin’s specific claims of ineffective assistance of counsel fail to satisfy either prong of the Strickland analysis. The record reflects that Attorney Berke thoroughly investigated, examined and tested the state’s DNA evidence. He obtained time from the court to prepare his cross examinations both before and after the state’s experts testified on direct examination, he consulted with his own expert, he cross examined the state’s witnesses extensively and he brought in a criminalist from the state lab to explain that trace analyses of the sexual assault kits failed to connect Mr. Benjamin to the victims. His decision not to move to preclude the DNA report disclosed on September 30, 2002 or to seek a continuance of the trial, but instead to request a break in the trial was arguably more effective because he procured an extended period of time to prepare his cross examinations after the state’s witnesses testified on direct. This kind of tactical decision by counsel is well within the range of strategic and tactical decisions defense attorneys make and though they may be questioned, decisions of this nature do not overcome the presumption of competency under Strickland. See, e.g., Moye v. Commissioner of Correction, 168 Conn.App. 207, 221, 145 A.3d 362 (2016) (sequestration of witnesses not of such magnitude that there is no conceivable tactical decision by counsel to forgo right to sequestration), cert. denied, 324 Conn. 905, 153 A.3d 653 (2017), distinguishing Holloway v. Commissioner of Correction, 145 Conn.App. 353, 367, 77 A.3d 777 (2013) (right to have court instruct jury on all elements of offenses of such significant magnitude that there is no conceivable tactical decision to forgo proper instruction). The court finds that the decisions by Attorney Berke do not involve a fundamental right and they do not rise to the level of such magnitude that his tactical decisions were impermissible. To the contrary: Attorney Burke’s tactical decisions were reasonable and based on sound trial strategy.
Similarly, Attorney Berke’s decision to undermine the reliability of the state’s DNA evidence, rather than assert a claim that the police had fabricated or planted evidence, is the kind of decision that cannot support a conclusion that Mr. Benjamin received ineffective assistance of counsel. Attorney Berke knew it was Mr. Benjamin’s view that there was police misconduct. Attorney Berke evaluated the evidence differently and rather than alienate the jury with a sensational claim he could not prove, he sought to expose the improprieties in the handling of evidence before the jury and allow the jury to draw its own conclusions. This was a reasonable strategic decision by counsel. Stephen J.R. v. Commissioner of Correction, 178 Conn.App. 1 (2017); Chace v. Bronson, 19 Conn.App. 674, 680-81, 564 A.2d 303 (1989), cert. denied, 213 Conn. 801 (1989). Through his cross examinations of the police witnesses, Attorney Berke brought out many aspects of the investigation that could have impacted the reliability of the scientific evidence, including the removal of the phlebotomy kit from Mr. Benjamin’s home. His decision not to argue, based on those improprieties, that the police had fabricated or planted evidence in order to convict Mr. Benjamin was a strategic decision entitled to deference by the habeas court. Thompson v. Commissioner of Correction, 131 Conn.App. 671, 27 A.3d 86, cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011).
Arguably, Attorney Berke could have sought to suppress the DNA evidence obtained from Mr. Benjamin based on the limited conflicts that did exist between the testimony of Detective Slavin and Sargent Coyle and that of Dr. Holland and Detective Lopes. This effort, however, had very little chance of success since the trial court would have had to credit the vague and speculative testimony of Detective Slavin and Sargent Coyle on the subject against the more reliable testimony of Dr. Holland based on his review of his contemporaneous record of the examination, as well as Detective Lopes’ testimony that she was the officer who obtained Mr. Benjamin’s samples at the hospital on the afternoon of September 27th. Such a tactic also would have provided the police witnesses an opportunity to better prepare for their trial testimony. See, e.g., Sargent v. Commissioner of Correction, 121 Conn.App. 725, 740-44, 997 A.2d 609, cert. denied, 298 Conn. 903, 3 A.3d 71 (2010) (affirming habeas court’s conclusion trial counsel’s tactical decision not to pursue motion suppress was reasonable, where hearing on motion to suppress would have given police witnesses a " dry run" and be better prepared at trial). Mr. Benjamin did not establish whether Attorney Berke was unaware of these inconsistencies but should have been, or whether he was aware of them but chose not to pursue them by means of a suppression hearing. Attorney Berke barely had a recollection of any issue concerning the timing of the search warrant. Under the circumstances, the court cannot conclude that the lack of a motion to suppress on that basis was anything other than a reasonable tactical decision on the part of counsel.
Finally, Attorney Berke’s decision not to cross examine Mr. Fontano on his initial misstatement concerning what street he was on when he saw his girlfriend enter Mr. Benjamin’s car was a reasonable tactical decision by counsel. See, e.g., David N.J. v. Commissioner of Correction, 170 Conn.App. 862, 880, 156 A.3d 55 (2017) (trial counsel had a very substantial reason not to cross examine because it would reinforce the complainant’s testimony in the jury’s collective mind), cert. denied, 325 Conn. 913, 159 A.3d 231 (2017); Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010) (" The fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance").
C. Prejudice Prong
To the extent that one might question Attorney Berke’s approach to these issues at trial, Mr. Benjamin has nevertheless failed to carry his burden to prove prejudice to satisfy the second prong of the Strickland analysis. Mr. Benjamin failed to present any evidence that a continuance of the trial would have impacted the reliability of the DNA evidence beyond what Attorney Berke was actually able to accomplish at trial. Nor has he established that a motion to suppress based on the timing of the search warrant and the conflicting testimony concerning when Mr. Benjamin’s samples were taken would have resulted in a suppression of the evidence. The better, weightier evidence supported the conclusion that the biological samples taken from Mr. Benjamin were obtained following the issuance of the search warrant. Nor would the late disclosure of DNA evidence have led the trial court to grant a motion to suppress or exclude the DNA evidence. All that was likely, as Attorney Berke testified, is that the court might have granted a continuance of the trial. See General Statutes § 54-86k (giving the court the discretion to grant a continuance where DNA evidence is disclosed less than twenty-one days before trial). Preclusion of DNA evidence under the statute is reserved for " exceptional circumstances" where the state has acted in bad faith. State v. Jackson, 304 Conn. 383, 413, 40 A.3d 290 (2012). Mr. Benjamin failed to produce any evidence of bad faith on the part of the state in withholding DNA evidence. On the contrary, the transcript of the criminal trial proceedings suggests nothing of the kind. Moreover, as discussed above, a continuance of the trial was arguably not as desirable as the outcome actually achieved by Attorney Berke by securing an extended break in the middle of the trial.
Mr. Benjamin also failed to prove that a different result would have been obtained had Attorney Berke made different decisions on how to cross examine the police witnesses and how to best persuade the jury to discount the DNA evidence based on irregularities in the handling of evidence. Nor did he demonstrate that Mr. Fontano’s confusion over which street he was on when his girlfriend entered Mr. Benjamin’s car was of critical significance to his convictions.
III. CONCLUSION
The petitioner has not proven his claims of ineffective assistance of counsel. The petition is denied and judgment shall enter in favor of the respondent.