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Alicea v. Commissioner of Correction
VICTOR ALICEA v. COMMISSIONER
OF CORRECTION
(AC 47929)
Cradle, C. J., and Alvord and Suarez, Js.
Syllabus
The respondent, the Commissioner of Correction, appealed, on the granting
of certification, from the habeas court’s judgment granting in part the peti-
tioner’s petition for a writ of habeas corpus. The respondent claimed that
the court improperly determined that the petitioner’s criminal trial counsel
had rendered ineffective assistance in advising the petitioner not to testify
in support of his claim of self-defense in light of the potential admissibility
into evidence of certain of the petitioner’s prior convictions. Held:
The habeas court improperly granted in part the habeas petition, as the
petitioner failed to demonstrate that his counsel rendered deficient perfor-
mance in advising him not to testify, that advice having been within the
range of reasonable professional assistance based on counsel’s concern that
the petitioner’s testimony might potentially open the door to the admission
of his prior convictions or that the trial court could permit their use as
impeachment evidence.
The habeas court improperly determined that the petitioner was prejudiced
as a result of his counsel’s advice, as the petitioner failed to show, in light
of the strength of the state’s case, that a reasonable probability existed that
the trial’s outcome would have been different had his counsel advised him
that the admissibility of the prior convictions would have been limited had
the petitioner testified, and the petitioner’s testimony would have been, to
some extent, cumulative of the record already established at the trial.
Argued April 22—officially released September 30, 2025
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland, where the petition was withdrawn in part;
thereafter, the case was tried to the court, Bhatt, J.;
judgment granting the petition in part, from which the
respondent, on the granting of certification, appealed
to this court. Reversed in part; judgment directed.

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Alicea v. Commissioner of Correction
Timothy F. Costello, supervisory assistant state’s
attorney, with whom, on the brief, were Anne F. Maho-
ney, state’s attorney, Erin Stack, assistant state’s attor-
ney, and Jennifer M. Fields, deputy assistant state’s
attorney, for the appellant (respondent).
Naomi T. Fetterman, assigned counsel, with whom,
on the brief, was James E. Mortimer, assigned counsel,
for the appellee (petitioner).
Opinion
ALVORD, J. The respondent, the Commissioner of
Correction, appeals from the judgment of the habeas
court granting in part the petition for a writ of habeas
corpus filed by the petitioner, Victor Alicea. On appeal,
the respondent claims that the court incorrectly deter-
mined that the petitioner’s criminal trial counsel had
rendered ineffective assistance with respect to pur-
ported misadvice regarding the admissibility into evi-
dence of the petitioner’s prior convictions were he to
testify in support of his claim of self-defense. We agree
and, accordingly, reverse in part the judgment of the
habeas court.
On the basis of the evidence presented at the petition-
er’s criminal trial, the jury reasonably could have found
the following facts, as set forth by this court in the
petitioner’s direct appeal from his conviction. See State
v. Alicea, 191 Conn. App. 421, 215 A.3d 184 (2019), aff’d,
339 Conn. 385, 260 A.3d 1176 (2021). ‘‘The [petitioner]
and the victim, Tyrone Holmes, worked at Burger King
in the Dayville section of Killingly (restaurant). Holmes
generally worked third shift as a porter, doing mainte-
nance and cleaning at the restaurant. On July 9, 2015,
the [petitioner], who also worked as a porter at the
restaurant, was covering Holmes’ third shift. After mid-
night, Holmes, accompanied by his friend, Robert Falu,
arrived at the closed restaurant to drop off some sup-
plies and to speak with the [petitioner], whom, he had

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heard, had been talking about him. Falu waited in or
around Holmes’ vehicle while Holmes let himself into
the back entrance using his key. Holmes then asked
the [petitioner] to step outside. The [petitioner] and
Holmes went outside, had a brief discussion, and the
[petitioner] 	denied 	having 	talked 	negatively 	about
Holmes. Everything appeared fine to Holmes. Holmes
returned to his vehicle, retrieved some supplies, and
went back into the restaurant.
‘‘Upon returning to the restaurant, Holmes heard the
[petitioner] on his cell phone telling whoever was lis-
tening to get to the restaurant because the [petitioner]
had a problem. Holmes told the [petitioner] that they
did not have a problem, and the [petitioner] walked
away while Holmes was trying to talk to him. Holmes
followed the [petitioner], who went near the fryers, and
the [petitioner] repeatedly told Holmes that he was
trying to save Holmes’ life. Holmes, who was holding
a set of car keys in his hands, tossing them from one
hand to the other, became angry and the two began
arguing. The [petitioner] then pulled Holmes’ head
toward him and cut his throat with a razor blade. Ini-
tially, Holmes thought the [petitioner] had punched him,
and he assumed a fighter’s stance. He then saw that he
was bleeding, however, and he ran from the restaurant.
Some of the altercation was caught on the restaurant’s
video. Once outside, Holmes threw his car keys to Falu
and told him to start the car. The [petitioner], who had
followed Holmes outside, chased him around the car
twice, and said, ‘see what happens when you mess with
me.’ Holmes got into the driver’s seat of the car and
drove away with Falu. After Holmes arrived home,
Holmes’ wife called 911, and she tried to stop the bleed-
ing from Holmes’ neck by applying pressure with a
towel. The [petitioner] also called 911 from the restau-
rant.

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Alicea v. Commissioner of Correction
‘‘Holmes was taken by ambulance to Day Kimball
Hospital in Putnam, where he was examined by Joel
Bogner, an emergency medicine physician, who deter-
mined that Holmes had sustained a neck laceration that
was approximately seven inches long and that the care
he needed was ‘beyond the capabilities of Day Kimball
Hospital . . . .’ Holmes was given morphine sulfate for
pain and then was transferred to Hartford Hospital,
via ambulance, where he underwent surgery for the
laceration to his neck, which included the repair of a
lacerated neck muscle and his left external jugular
vein.’’ Id., 424–26.
The petitioner was arrested and charged with assault
in the first degree in violation of General Statutes § 53a-
59 (a) (1), and assault in the first degree in violation
of § 53a-59 (a) (3). Id., 426. During his criminal trial,
the petitioner was represented by Attorney Matthew S.
Davis. ‘‘The jury found the [petitioner] guilty of both
charges, and, after accepting the verdict, the court
[Seeley, J.] rendered judgment of conviction on both
counts. The [petitioner] also pleaded nolo contendere
to being a persistent dangerous felony offender. The
court merged the conviction of the two assault charges
and sentenced the [petitioner] to a mandatory minimum
term of ten years of incarceration, followed by twelve
years of special parole on the count of intentional
assault as a persistent dangerous felony offender.’’
(Footnote omitted.) Id.
After his conviction was affirmed on direct appeal, 1
the petitioner filed a petition for a writ of habeas corpus.
1 The petitioner appealed from the judgment of conviction, claiming that
‘‘(1) the jury’s verdicts of guilty on both intentional and reckless assault
were legally inconsistent, (2) the court erred in excluding his statement to
the police, given approximately forty-five minutes after the incident at issue,
and (3) the state failed to disprove his claim of self-defense.’’ State v. Alicea,
supra, 191 Conn. App. 424. This court affirmed the judgment of conviction.
See id., 450. The petitioner thereafter petitioned for certification to appeal
to our Supreme Court, and that court granted certification on the issue of
whether this court correctly concluded that the jury’s verdicts were not

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Relevant to the present appeal, the operative petition
alleges that Davis rendered ineffective assistance, inter
alia, by ‘‘fail[ing] to adequately discuss the legal ele-
ments of self-defense, in light of the evidence presented
during the petitioner’s criminal trial, with the petitioner
prior to the petitioner electing to not testify . . . .’’ 2
See footnote 7 of this opinion. The respondent filed a
return, leaving the petitioner to his proof.
The habeas court, Bhatt, J., conducted a trial on July
9, 2024. The petitioner presented his own testimony, as
well as that of Davis and Eric Malarkey, the restaurant
manager.
Malarkey testified that there had been some issues
with the victim’s employment, including showing up
late, but that he had been given a second chance and
had returned to work without issue a few weeks before
the incident. Malarkey told the petitioner that the victim
had complained about the quality of the petitioner’s
work and having to pick up the petitioner’s slack. Malar-
key testified that it was against restaurant policy for
employees who were not working to enter the restau-
rant after hours and that a provision of the employee
handbook 	stating 	that 	policy 	typically 	would 	be
reviewed with each new hire. Malarkey also testified
that he was not aware of any issues regarding employ-
ees entering the back door during off hours.
Davis testified at the habeas trial that the defense
theory was that the petitioner had acted in self-defense
when he was confronted by the victim. Davis testified
legally inconsistent. See State v. Alicea, 339 Conn. 385, 390, 260 A.3d 1176
(2021). Our Supreme Court affirmed the judgment of this court. See id., 402.
2 The petitioner also had alleged that Davis rendered ineffective assistance
in failing to present the testimony of Eric Malarkey, the restaurant manager,
and failing to object to certain comments made by the prosecutor during
closing argument. The habeas court denied both of these claims. The peti-
tioner also had alleged other claims in his petition, which were withdrawn
prior to trial.

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Alicea v. Commissioner of Correction
that he had several discussions with the petitioner
regarding the nature of a self-defense claim and the
risks and exposure of proceeding to trial. Davis testified
that he sought to prove hostility between the victim
and the petitioner as contributing to the petitioner’s
mindset and necessity to defend himself. Davis testified
that he discussed with the petitioner the elements of a
self-defense claim and that ‘‘we absolutely went over
what the claim was, how we felt we could prove it.’’
Davis further testified that he sought to establish the
petitioner’s subjective perception of imminent bodily
harm by presenting evidence that the victim had come
into the restaurant after hours. Davis testified that he
did not perceive difficulty in establishing the subjective
perception of imminent bodily harm without the peti-
tioner’s testimony because he could use the testimony
of other witnesses, including the petitioner’s wife. With
respect to challenging the victim’s testimony that the
petitioner had chased him outside with the razor, Davis
testified that he believed that it was not an issue because
the restaurant’s video, which had been entered into
evidence, contravened the testimony of the victim on
that point. Davis testified that, ‘‘I guess, did we consider
presenting additional evidence . . . I would have to
say yes. We went with strategically what was the best
claim we could make without subjecting [the petitioner]
to repeated and abundan[t] cross-examination.’’
Davis testified that he had a discussion with the peti-
tioner prior to trial regarding whether the petitioner
should testify regarding the claim of self-defense and
that, after the discussion, the petitioner was in agree-
ment not to testify. Davis testified that it was his opinion
that the petitioner ‘‘would not be the best witness’’
because of his ‘‘very severe criminal background, assault-
ive in nature.’’ When asked whether he had a discussion
with the petitioner about what evidence the state would
be able to introduce concerning the petitioner’s criminal

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Alicea v. Commissioner of Correction
history, Davis responded: ‘‘Yes. I know we had that
conversation. Specifically, I don’t know what was actu-
ally said, but we would have covered what we thought
how we expected the state to maneuver if he in fact
did testify.’’ After acknowledging that the victim also
had a ‘‘very long criminal background’’ and that he
introduced evidence of the victim’s criminal back-
ground as extensively as he thought he could, Davis
explained that he perceived the petitioner’s criminal
background to be problematic for his self-defense claim
because he had been convicted of prior assaults.
Although Davis initially testified that he believed the
petitioner had been diagnosed with an impulse control
disorder, he then had his recollection refreshed when
the petitioner’s counsel showed him the report of a
psychological evaluation of the petitioner that had been
conducted in May, 2016, which reflected diagnoses of
post-traumatic stress disorder and bipolar disorder.
When asked what concerns he had regarding cross-
examination of the petitioner, Davis responded: ‘‘Given
the evaluation of what I think his mental state was and
how he would function as a witness, I saw the potential
for more damage to his story than anything else. So, it
was certainly my advice that he consider not testifying
and, in fact, he agreed and we did not testify.’’ When
asked whether he performed a dry run with the peti-
tioner concerning his testimony, Davis responded: ‘‘A
dry run, I’m going to say no. We spent [an] enormous
amount of time preparing for it and going over what
we could. So, our client understood what was going on
and could assist us in his defense.’’
On 	cross-examination, 	the 	respondent’s 	counsel
asked Davis whether, because evidence of the victim’s
violent disposition had been introduced into evidence,
the state would have been able to cross-examine the
petitioner on his own criminal past had he testified.
Davis responded: ‘‘[T]hat was certainly the fear, and

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Alicea v. Commissioner of Correction
the prosecution was particularly zealous in this matter
because they were actually responsible, the same indi-
viduals, for prosecuting [the petitioner] on the prior
assault cases that you are speaking of.’’ Davis testified
that he explained to the petitioner that his criminal
convictions could come out at trial, he went over how
that could impact the petitioner’s self-defense claim,
and the petitioner was canvassed by the court on his
decision not to testify.
The petitioner testified at the habeas trial to the fol-
lowing. He knew the victim as a coworker, and he was
surprised when the victim entered the back door of the
restaurant on the night of the incident. The victim asked
him to come outside to talk with him and, once outside,
asked the petitioner whether he had been ‘‘talking stuff’’
about him. A second man, unknown to the petitioner,
appeared. The petitioner had left a broom in the back
doorway to hold the door open and kicked it away
to make sure that no one entered the restaurant. The
petitioner noticed that the victim’s speech was slurred
and that he seemed to be intoxicated. After telling the
victim to go home, the petitioner reentered the restau-
rant and looked for Malarkey’s phone number. When
he could not find it, he called his wife. The victim also
reentered the restaurant using his key and yelled at the
petitioner. The victim had his keys in his hands, and
cocked his hand back, and the petitioner cut the victim.
At that point, the petitioner feared that he would be
‘‘laid out on the floor’’ and that no one would find him
until the morning. He thought that he could not run
because the second person was waiting outside. After-
ward, the petitioner was worried that he had killed the
victim, and he wanted to save him. He left the razor on
a table, followed the victim outside, and told the second
person to drive the victim to the hospital. The petitioner
then went back inside and called 911.

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Alicea v. Commissioner of Correction
The petitioner testified that he had discussed with
Davis the potential of testifying during the criminal trial
but that ‘‘[Davis] said pretty much, he thinks it’s wise
that I don’t testify because my past will come up, and
I agreed.’’ The petitioner testified that Davis did not talk
with him about which convictions would be admissible
into evidence. The following colloquy occurred between
the petitioner’s habeas counsel and the petitioner:
‘‘Q. Well, if . . . Davis had advised you that there
were limitations in terms of how far, generally, it can
go back in cross-examination—
‘‘A. Did not—
‘‘Q. —of you—
‘‘A. —even mention it.
‘‘Q. Would that have impacted your decision to tes-
tify?
‘‘A. Yeah. If it only stemmed—if it would only stem
to that—yeah. I would have testified.’’
The petitioner testified that Davis did not have any
discussions with him regarding how he would demon-
strate the petitioner’s subjective belief, in the absence
of his testimony, that the victim was about to use deadly
physical force upon him.
During closing argument, the habeas court inquired
whether the parties would like the opportunity to brief
the issue of the admissibility of ‘‘[a] defendant’s prior
assaultive convictions in a self-defense case.’’ Both par-
ties submitted posttrial briefs on July 22, 2024. In the
petitioner’s posttrial brief, he stated: ‘‘The petitioner
does not dispute that . . . it is likely that the trial court
would have admitted two prior convictions for attempted
assault that occurred in 2004, whether as named
offenses or unnamed felonies. On August 26, 2005, the
petitioner was convicted and sentenced on one count

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Alicea v. Commissioner of Correction
of attempted assault in the second degree and one count
of attempted assault in the first degree to concurrent
terms of five years.’’ The petitioner further stated that
‘‘[t]he sole additional conviction that would be conceiv-
ably admissible would be the defendant’s 1999 convic-
tion for larceny in the sixth degree. However, the trial
court would have discretion in excluding evidence of
such a conviction based upon remoteness alone.’’ 3
The respondent argued in his posttrial brief that,
although ‘‘[i]t is unknown exactly what the trial court
would have permitted in the underlying case,’’ it was
possible that the petitioner’s prior convictions could
have been introduced, especially the larceny conviction.
The respondent maintained that ‘‘convictions older than
ten years are occasionally allowed,’’ and, thus, the peti-
tioner’s two felony assault convictions from 2005 poten-
tially could have been used for impeachment. The
habeas court heard supplemental closing argument on
July 31, 2024, during which the court admitted into
evidence as a full exhibit a copy of the petitioner’s
criminal record without objection.
On August 5, 2024, the habeas court issued its memo-
randum of decision, in which it granted in part the
petitioner’s amended petition for a writ of habeas cor-
pus. The court first considered the admissibility of the
petitioner’s prior convictions in order to determine
whether Davis’ advice that the petitioner should not
testify based on his criminal history was accurate. The
3 The petitioner argued that the following convictions and violations of
probation would not have been admitted into evidence: ‘‘(1) 1988 assault
in the first degree; (2) 1992 probation violation; (3) 1987 assault in the first
degree; (4) breach of the peace from 1990 arrest; (5) 1992 possession of
narcotics; (6) 1994 assault on a peace officer; (7) 1998 disorderly conduct;
(8) 1999 possession of narcotics; (9) 2012 breach of the peace; (10) 2013
failure to appear; (11) 2014 breach of the peace; and (12) several probation
violations.’’

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Alicea v. Commissioner of Correction
court first considered the admissibility of the convic-
tions pursuant to § 4-4 of the Connecticut Code of Evi-
dence, 4 which permits the introduction into evidence
of a homicide or assault victim’s violent criminal record
‘‘to prove that the victim was the aggressor, regardless
of whether such character evidence had been communi-
cated to the accused prior to the homicide [or assault].’’
(Internal quotation marks omitted.) State v. Johnson,
351 Conn. 53, 73, 328 A.3d 143 (2025). The court stated
that ‘‘there is no case in Connecticut permitting the
introduction of a defendant’s prior convictions for vio-
lence to prove that the victim was not the initial aggres-
sor’’ and that any such request in this case to introduce
evidence for this purpose would have been a matter of
first impression. (Emphasis in original.) The court then
stated that, even if the convictions would have been
admissible, they remained subject to the trial court’s
gatekeeping function and weighing of their probative
value compared to their prejudicial nature. Finally, the
habeas court noted that ‘‘the issue of the initial aggres-
sor was not before the jury. There was no instruction
provided to the jury on initial aggressor.’’ Accordingly,
the court determined that any advice suggesting that
4 Section 4-4 of the Connecticut Code of Evidence provides in relevant
part: ‘‘(a) Evidence of a trait of character of a person is inadmissible for
the purpose of proving that the person acted in conformity with the character
trait on a particular occasion, except that the following is admissible:
* * *
‘‘(2) . . . Evidence offered by an accused in a homicide or criminal assault
case, after laying a foundation that the accused acted in self-defense, of the
violent character of the victim to prove that the victim was the aggressor, or
by the prosecution to rebut such evidence introduced by the accused. . . .’’
Subsection (b) of § 4-4 delineates the methods by which the character of
the victim may be proved: ‘‘In all cases in which evidence of a trait of
character of a person is admissible to prove that the person acted in confor-
mity with the character trait, proof may be made by testimony as to reputa-
tion or in the form of an opinion. In cases in which the accused in a homicide
or criminal assault case may introduce evidence of the violent character of
the victim, the victim’s character may also be proved by evidence of the
victim’s conviction of a crime of violence.’’

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Alicea v. Commissioner of Correction
the convictions would have been admissible for this
purpose would have been incorrect.
The habeas court then turned to whether the petition-
er’s prior convictions would have been admissible pur-
suant to § 6-7 of the Connecticut Code of Evidence. 5
After considering the prejudice arising from the admis-
sion of the prior convictions of attempted assault in
this prosecution, the probative value of an act of vio-
lence, and the remoteness of the convictions, the habeas
court concluded that ‘‘it is clear that the facts of the
underlying attempted assault convictions would be
inadmissible, and there is a significant question as to
whether either of them would come in as named felon-
ies at all. The two prior convictions at issue were in
2005 and 1999, placing them both more than ten years
in the past. [The petitioner’s] 2005 conviction was used
to charge him as a persistent dangerous felony offender,
a charge to which he submitted a written plea of no
contest. Nevertheless, both [of] his prior convictions
were for attempted assaults, crimes identical to those
charged. However, the record further reveals that the
state filed a notice of intent to introduce evidence of
uncharged misconduct on October 6, 2016, less than a
5 Section 6-7 (a) of the Connecticut Code of Evidence provides: ‘‘For the
purpose of impeaching the credibility of a witness, evidence that a witness
has been convicted of a crime is admissible if the crime was punishable by
imprisonment for more than one year. In determining whether to admit
evidence of a conviction, the court shall consider:
‘‘(1) the extent of the prejudice likely to arise;
‘‘(2) the significance of the particular crime in indicating untruthful-
ness; and
‘‘(3) the remoteness in time of the conviction.’’
Section 6-7 (c) of the Connecticut Code of Evidence provides: ’’If, for
purposes of impeaching the credibility of a witness, evidence is introduced
that the witness has been convicted of a crime, the court shall limit the
evidence to the name of the crime and when and where the conviction was
rendered, except that (1) the court may exclude evidence of the name of
the crime and (2) if the witness denies the conviction, the court may permit
evidence of the punishment imposed.’’

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week before the start of the trial. In that notice, the state
notified the defense that it intended to offer evidence
of an assault [the petitioner] committed on or about
December 20, 1987, and for which he was convicted on
May 20, 1988, some eighteen to nineteen years prior to
this trial. There is no mention of any other misconduct
sought to be introduced. The defense did not file a
motion in limine precluding this evidence, nor an objec-
tion. There was also no hearing on the matter.’’ (Empha-
sis omitted.)
The habeas court concluded that ‘‘[b]ased on prevail-
ing Connecticut cases . . . Davis’ advice that [the peti-
tioner] should not testify because his lengthy prior
record would be admitted at trial and negatively impact
his claim of self-defense is erroneous. Even assuming
that [the trial court] had, in fact, denied the motion in
limine filed by the defense several months prior to the
actual trial,6 given [its] rulings on the admissibility of
6 The petitioner’s criminal file contains a motion in limine, stamped as
having been filed on July 1, 2016, with respect to the petitioner’s prior
criminal record. Therein, the petitioner represented that certain of his felony
convictions were more than ten years old and lacked even minimal probative
value so as to overcome their prejudicial effect. The petitioner further
argued, inter alia, that certain of the convictions were for offenses similar
or identical to that charged in the present case and, thus, would be highly
prejudicial. The motion did not have annexed to it an order. See Practice
Book § 41-6. There is a file entry that appears to be dated July 1, 2016,
stating: ‘‘Motion in limine re [petitioner’s] recorded history.’’ The next line
on the docket sheet states: ‘‘Motion in limine—Denied /s/ Seeley.’’ There is
no transcript dated July 1, 2016.
During supplemental closing argument before the habeas court, the issue
of the file notation was discussed. The petitioner’s counsel stated that the
petitioner’s motion in limine ‘‘wasn’t pursued by . . . Davis.’’ The court
then inquired about the notation in the file that the motion was denied, and
neither counsel could explicate the purported denial of the motion.
In its memorandum of decision, the habeas court referenced the state’s
October 6, 2016 notice of intent to offer evidence of the petitioner’s 1988
assault conviction. The court stated in a footnote: ‘‘The clerk’s file also
reveals a motion in limine filed by the defense dated July 1, 2016, titled,
‘Motion in limine re: defendant’s recorded history.’ This appears to be a
motion seeking to preclude the state from eliciting evidence from its wit-
nesses of [the petitioner’s] criminal history. The clerk’s file indicates a
notation that the motion was denied, but there is no date associated with

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Alicea v. Commissioner of Correction
the victim’s convictions and the binding case law, at
most [the petitioner] would have been impeached by
virtue of his 2005 conviction and at worst it would
have been limited to the fact that he was convicted of
attempted assault in 2005. This one conviction alone is
insufficient to advise a client to not testify and would
not have the devastating impact that 	. 	. 	. 	Davis
believed.’’ (Emphasis omitted; footnote added; footnote
omitted.) The court then credited the petitioner’s testi-
mony that ‘‘had 	. 	. 	. 	Davis advised him that any
impeachment using his prior convictions would have
been limited to the fact of conviction of either a named
or unnamed felony, without getting into the circum-
stances of the incidents, he would have chosen to testify
at the criminal trial.’’
Having found that Davis had rendered deficient per-
formance, the habeas court determined that there was
a reasonable likelihood of a different outcome of the
criminal trial based on the petitioner’s testimony. The
court emphasized that, although the restaurant’s video
captured the interactions between the petitioner and
the victim, the only evidence of the critical information
regarding what was said during the interaction came
from the victim. The petitioner’s wife testified regarding
phone calls with the petitioner both before and after
the incident, during which she testified that he sounded
worried and nervous. She further testified that she
could hear the victim in the background and that he
that denial. The motion itself is devoid of any notation that it was ruled on,
and it is not in any transcript. . . . Davis did not testify that he filed such
a motion, it was heard by the court and then denied. The parties also
agreed during supplemental closing argument that it was not clear what
this referred to.’’
Additionally, in its memorandum of decision, the habeas court stated that
the defense ‘‘did not file a motion in limine precluding this evidence . . . .’’
In a footnote in his reply brief, the respondent suggests that ‘‘[t]o the extent
the habeas court found both that Davis did not file a motion in limine and
that the file contains a motion in limine filed by him, that finding is clearly
erroneous.’’

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sounded angry, loud, and threatening. The victim testi-
fied that he was not there to argue or fight with the
petitioner, he was not the initial aggressor, and he was
de-escalating the situation. The habeas court identified
two issues before the jury—the petitioner’s subjective
belief that his life was in danger and whether that was
objectively reasonable. The court found: ‘‘The jury
needed more than the video to find that [the petitioner]
acted in self-defense. At the critical moment of the
assault, only a very small portion of the victim’s head
can be seen on screen. [The petitioner] is not on screen,
and almost no part of the victim’s body is visible. The
jury cannot tell from the video what the two were saying
to each other, how close they were, whether [the peti-
tioner] was advancing or retreating and other facts per-
tinent to self-defense. [The petitioner’s] testimony in
support of self-defense was critical to explain what is
not shown by the video.
‘‘The only way to put [the petitioner’s] subjective
belief that the victim was about to use deadly physical
force on hi[m] was his own testimony. He gave no
statement that could be admitted in lieu of his testi-
mony. His credible testimony to this court provided a
plausible alternate version of events and credibly
explained his subjective fear that appears to be in har-
mony with the actions seen on the video. He testified
that he was attempting to walk away from the victim
while on the phone with his wife, expressing his fear
to her. This was corroborated by her testimony. He
testified before this court that the victim continued to
pursue him and approach him in an aggressive manner
and that he became afraid when the victim switched
his keys to his dominant right hand and took a fight-
ing stance.
‘‘This is all information the jury needed to hear in
order to properly and effectively evaluate his self-
defense claim. While the jury would have been free to

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disregard his version of events, the court cannot say
that the state’s case was so overwhelming that there is
no reasonable probability of a different outcome. This
was a ‘he said-he said’ case where the jury would have
had to decide whether [the petitioner’s] actions were
justified by evaluating his credibility.’’ The court found
that, but for Davis’ misadvice regarding the scope of
admissibility of the petitioner’s prior convictions, the
petitioner would have testified and that his testimony
creates a reasonable likelihood of a different outcome.
Accordingly, the court granted the petition in part. On
August 9, 2024, the court granted the respondent’s peti-
tion for certification to appeal. This appeal followed.
I
We first set forth guiding principles of law as well
as our standard of review, which are well settled. ‘‘In
Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme
Court established that for a petitioner to prevail on a
claim of ineffective assistance of counsel, he must show
that counsel’s assistance was so defective as to require
reversal of [the] conviction. . . . That requires the peti-
tioner to show (1) that counsel’s performance was defi-
cient and (2) that the deficient performance prejudiced
the defense. . . . To satisfy the performance prong of
the Strickland test, 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 crimi-
nal law. . . . With respect to the prejudice component
of the Strickland test, the petitioner must demonstrate
that counsel’s errors were so serious as to deprive the
[petitioner] of a fair trial, a trial whose result is reliable.
. . . [T]he [petitioner] must show that there is a reason-
able probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been

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different. A reasonable probability is a probability suffi-
cient to undermine confidence in the outcome. . . .
[T]he 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
the habeas court’s factual findings to the pertinent legal
standard, however, presents a mixed question of law
and fact, which is subject to plenary review.’’ (Citation
omitted; internal quotation marks omitted.) Roberto A.
v. Commissioner of Correction, 229 Conn. App. 104,
111–12, 325 A.3d 1192, cert. denied, 350 Conn. 935, 327
A.3d 384 (2024).
We also must set forth the well settled substantive
legal principles underlying a claim of self-defense. ‘‘The
rules governing the respective burdens borne by the
defendant and the state on the justification of self-
defense are grounded in the fact that [u]nder our Penal
Code, self-defense, as defined in [General Statutes]
§ 53a-19 (a) . . . is a defense, rather than an affirma-
tive defense. See General Statutes § 53a-16. Whereas
an affirmative defense requires the defendant to estab-
lish his claim by a preponderance of the evidence, a
properly raised defense places the burden on the state
to disprove the defendant’s claim beyond a reasonable
doubt. See General Statutes § 53a-12. Consequently, a
defendant has no burden of persuasion for a claim of
self-defense; he has only a burden of production. That
is, he merely is required to introduce sufficient evidence
to warrant presenting his claim of self-defense to the
jury. . . . Once the defendant has done so, it becomes
the state’s burden to disprove the defense beyond a
reasonable doubt. General Statutes § 53a-12 (a) . . . .’’
(Emphasis in original; internal quotation marks omit-
ted.) State v. Revels, 313 Conn. 762, 778–79, 99 A.3d
1130 (2014), cert. denied, 574 U.S. 1177, 135 S. Ct. 1451,
191 L. Ed. 2d 404 (2015).

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‘‘The substantive principles governing a defendant’s
claim of self-defense are well settled. Under § 53a-19
(a), a person may justifiably use deadly physical force
in self-defense only if he reasonably believes both that
(1) his attacker is using or about to use deadly physical
force against him, or is inflicting or about to inflict
great bodily harm, and (2) that deadly physical force
is necessary to repel such attack. . . . We repeatedly
have indicated that the test a jury must apply in analyz-
ing the second requirement, i.e., that the defendant rea-
sonably believed that deadly force, as opposed to some
lesser degree of force, was necessary to repel the vic-
tim’s alleged attack, is a subjective-objective one. The
jury must view the situation from the perspective of
the defendant. Section 53a-19 (a) requires, however,
that the defendant’s belief ultimately must be found
to be reasonable.’’ (Internal quotation marks omitted.)
Id., 779.
Finally, the legal principles surrounding the right to
testify are also implicated. ‘‘It is axiomatic that [i]t is
the right of every criminal defendant to testify on his
own behalf . . . and to make that decision after full
consideration with trial counsel. . . . [A]lthough the
due process clause of the [f]ifth [a]mendment may be
understood to grant the accused the right to testify,
the if and when of whether the accused will testify is
primarily a matter of trial strategy to be decided
between the defendant and his attorney. . . . [T]he
presentation of testimonial evidence is a matter of trial
strategy. . . . The failure of defense counsel to call a
potential defense witness does not constitute ineffec-
tive assistance unless there is some showing that the
testimony would have been helpful in establishing the
asserted defense. . . . [T]here is a strong presumption
that the trial strategy employed by a criminal defen-
dant’s counsel is reasonable and is a result of the exer-
cise of professional judgment . . . .’’ (Citations omit-
ted; 	internal 	quotation 	marks 	omitted.) 	Saez 	v.

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Alicea v. Commissioner of Correction
Commissioner of Correction, 168 Conn. App. 241, 247–
48, 145 A.3d 384, cert. denied, 323 Conn. 933, 150 A.3d
685 (2016).
II
The respondent claims on appeal that the habeas
court improperly determined that Davis had rendered
ineffective assistance with respect to purported misad-
vice regarding the admissibility of the petitioner’s prior
convictions if he were to testify in support of his claim
of self-defense. 7 We agree that the habeas court improp-
erly concluded that Davis’ advice necessarily fell below
7 The respondent also claims that the habeas court improperly decided a
claim that the petitioner did not plead in his amended petition. Specifically,
the respondent contends that the petitioner’s allegation that Davis ‘‘fail[ed]
to adequately discuss the legal elements of self-defense, in light of the
evidence presented during the petitioner’s criminal trial, with the petitioner
prior to the petitioner electing to not testify,’’ did not include within it the
issue of whether Davis had misadvised the petitioner on the admissibility
of his prior convictions. We are not persuaded.
‘‘The petition is in the nature of a pleading . . . . [T]he interpretation of
pleadings is always a question of law for the court . . . . Our review of
the [habeas] court’s interpretation of the pleadings therefore is plenary.
. . . [T]he modern trend, which is followed in Connecticut, is to construe
pleadings broadly and realistically, rather than narrowly and technically.
. . . [T]he [petition] must be read in its entirety in such a way as to give
effect to the pleading with reference to the general theory upon which it
proceeded, and do substantial justice between the parties. . . . As long as
the pleadings provide sufficient notice of the facts claimed and the issues
to be tried and do not surprise or prejudice the opposing party, we will
not conclude that the [petition] is insufficient to allow recovery.’’ (Internal
quotation marks omitted.) Roberto A. v. Commissioner of Correction, supra,
229 Conn. App. 109. Reading the relevant claim in the petition broadly and
realistically, we conclude that the issue raised, whether Davis rendered
ineffective assistance by failing to discuss with the petitioner the legal
elements of self-defense in light of the evidence presented during the criminal
trial, included within it the issue of whether Davis’ advice regarding the
admissibility of the petitioner’s convictions was reasonable.
Moreover, the habeas court asked the petitioner’s counsel during closing
argument whether his claim was that Davis ‘‘did not properly advise [the
petitioner] and, had he done so, then [the petitioner] would have testified?’’
The petitioner’s counsel responded in the affirmative, and the court again
clarified: ‘‘[I]f I remember correctly, the testimony from [the petitioner] was,
the only circumstance, I guess, under which he would have testified is, if
. . . Davis had properly explained to him that only certain convictions
would come in.’’ The petitioner’s counsel again responded in the affirmative.

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Alicea v. Commissioner of Correction
the minimal constitutional standard required by the
sixth amendment to the United States constitution. We
also agree that the habeas court improperly concluded
that the petitioner demonstrated a reasonable probabil-
ity that, but for Davis’ advice, the result of the proceed-
ing would have been different.
A
First, the respondent contends that the habeas court
improperly determined that Davis had rendered defi-
cient performance. The respondent argues: ‘‘[T]o the
extent that Davis may have advised the petitioner that
his convictions could be admitted to impeach him, or
that he risked opening the door to discussion of such
convictions, such advice was correct.’’ We conclude
that the petitioner failed to demonstrate that Davis’
advice regarding the petitioner’s decision not to testify
was constitutionally deficient.
The following additional legal principles are relevant.
‘‘Judicial scrutiny of counsel’s performance must be
highly deferential. It is all too tempting for a defendant
to second-guess counsel’s assistance after conviction
or adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved unsuc-
cessful, 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 counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties inher-
ent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within
The respondent’s counsel did not alert the court that he objected to that
construction of the petitioner’s claim. Thus, the habeas court was not placed
on notice of the respondent’s position. See Robles v. Commissioner of
Correction, 169 Conn. App. 751, 763, 153 A.3d 29 (2016), cert. denied, 325
Conn. 901, 157 A.3d 1146 (2017).

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Alicea v. Commissioner of Correction
the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action
might be considered sound trial strategy.’’ (Internal quo-
tation marks omitted.) Miller v. Commissioner of Cor-
rection, 154 Conn. App. 78, 87–88, 105 A.3d 294 (2014),
cert. denied, 315 Conn. 920, 107 A.3d 959 (2015).
The respondent maintains in his brief that this court
must entertain the range of possible reasons that Davis
advised the petitioner not to testify because ‘‘[t]he evi-
dence presented at the habeas trial never established
Davis’ specific rationale for his advice. Davis could not
recall how he advise[d] the petitioner, and . . . [t]he
petitioner never testified as to which mechanism Davis
believed any or all of the convictions would be admissi-
ble.’’ In reviewing the respondent’s claim, we are mind-
ful of the well established proposition that ‘‘a reviewing
court is required not simply to give [counsel] the benefit
of the doubt . . . but to affirmatively entertain the
range of possible reasons . . . counsel may have had
for proceeding as [he or she] did.’’ (Internal quotation
marks omitted.) Coltherst v. Commissioner of Correc-
tion, 208 Conn. App. 470, 478, 264 A.3d 1080 (2021),
cert. denied, 340 Conn. 920, 267 A.3d 857 (2022).
We consider the respondent’s first proffered potential
basis for Davis’ advice that the petitioner’s convictions
could have been admitted into evidence, namely, that
the petitioner, in his testimony, might open the door to
admission of the prior convictions. ‘‘Although [e]vi-
dence that a criminal defendant has been convicted of
crimes on prior occasions generally is not admissible
. . . [w]hen . . . a party opens the door to a subject
that pertains directly to the credibility of the witness,
he does so at his own risk. . . . In such cases, the rule
is that a party who delves into a particular subject
during the examination of a witness cannot object if
the opposing party later questions the witness on the

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Alicea v. Commissioner of Correction
same subject. . . . Even though the rebuttal evidence
would ordinarily be inadmissible on other grounds, the
court may, in its discretion, allow it where the party
initiating inquiry has made unfair use of the evidence.
. 	. 	. 	The doctrine of opening the door cannot, of
course, be subverted into a rule for injection of preju-
dice. 	. 	. 	. 	The trial court must carefully consider
whether the circumstances of the case warrant further
inquiry into the subject matter, and should permit it only
to the extent necessary to remove any unfair prejudice
which might otherwise have ensued from the original
evidence. . . . [I]n making its determination, the trial
court should balance the harm to the state in restricting
the inquiry with the prejudice suffered by the defendant
in allowing the rebuttal.’’ (Internal quotation marks
omitted.) State v. Solomon, 141 Conn. App. 270, 278–79,
60 A.3d 1039, cert. denied, 308 Conn. 939, 66 A.3d
881 (2013).
The respondent maintains that advice based on a
concern that the petitioner inadvertently might respond
to a question in a manner opening the door to his prior
convictions was reasonable. See, e.g., State v. Griggs,
288 Conn. 116, 140, 951 A.2d 531 (2008) (where defen-
dant testified that he had only ‘‘ ‘[a] couple’ ’’ of domes-
tic violence convictions and had never been engaged
in any kind of physical assault, trial court did not abuse
its discretion in concluding that defendant opened door
to evidence of his four domestic violence convictions
involving assaultive or threatening behavior); State v.
Solomon, supra, 141 Conn. App. 281 (where defendant,
on direct examination, attempted to portray himself as
peaceful, nonviolent man, after turning his life around
following one time criminal conviction in 2003, trial
court did not abuse its discretion when it allowed state
to attempt to challenge inference during cross-examina-
tion with evidence of prior assault conviction and facts
related thereto); State v. Phillips, 102 Conn. App. 716,

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Alicea v. Commissioner of Correction
734, 927 A.2d 931 (where defendant testified to unfamil-
iarity with court procedures, court did not abuse its
discretion in permitting state to ask about defendant’s
prior experiences in failing to appear for scheduled
court date), cert. denied, 284 Conn. 923, 933 A.2d 727
(2007).
We agree with the respondent that advice based on
a potential concern that the petitioner might open the
door to admission of his prior convictions falls within
the range of reasonable professional assistance. The
habeas court noted that Davis had concerns about the
petitioner being cross-examined, specifically, ‘‘given the
evaluation and [the petitioner’s] mental state, [Davis]
saw the potential for more damage from testifying.’’ As
the court recognized, Davis testified that the petitioner
had been evaluated and diagnosed with post-traumatic
stress disorder and bipolar disorder.
The petitioner responds that, because Davis did not
do a ‘‘dry run’’ of the petitioner’s testimony, any concern
about opening the door would have been speculative.
We disagree. Although Davis acknowledged that he did
not do a ‘‘dry run,’’ he testified that ‘‘[w]e spent [an]
enormous amount of time preparing for it and going
over what we could. So, our client understood what
was going on and could assist us in his defense.’’ Thus,
we decline to dismiss the concern as speculative.
The respondent also maintains that Davis properly
advised the petitioner that his prior convictions could
be admitted into evidence to impeach him. ‘‘[B]y exer-
cising his fifth amendment right to testify on his own
behalf, it is axiomatic that a defendant opens the door
to comment on his veracity. It is well established that
once an accused takes the [witness] stand and testifies
his credibility is subject to scrutiny and close examina-
tion. . . . A defendant cannot both take the [witness]
stand and be immune from impeachment. . . . An

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Alicea v. Commissioner of Correction
accused who testifies subjects himself to the same rules
and tests which could by law be applied to other wit-
nesses.’’ (Internal quotation marks omitted.) State v.
Ciccio, 77 Conn. App. 368, 387, 823 A.2d 1233, cert.
denied, 265 Conn. 905, 831 A.2d 251 (2003).
‘‘It is well settled that evidence that a criminal defen-
dant has been convicted of crimes on a prior occasion
is not generally admissible. . . . There are, however,
several well recognized exceptions to this rule, one of
which is that [a] criminal defendant who has previously
been convicted of a crime carrying a term of imprison-
ment of more than one year may be impeached by the
state if his credibility is in issue. . . . In its discretion
a trial court may properly admit evidence of prior con-
victions provided that the prejudicial effect of such
evidence does not far outweigh its probative value. . . .
[Our Supreme Court] has identified three factors which
determine whether a prior conviction may be admitted:
(1) the extent of the prejudice likely to arise; (2) the
significance of the commission of the particular crime
in indicating untruthfulness; and (3) its remoteness in
time. . . . A trial court’s decision denying a motion to
exclude a witness’ prior record, offered to attack his
credibility, will be upset only if the court abused its
discretion. . . . Those three factors have been incor-
porated in [the Connecticut] [C]ode of [E]vidence.
Conn. Code Evid. § 6-7 (a). . . .
‘‘There is no doubt that if evidence of a felony convic-
tion is otherwise admissible, the name of the crime is
generally also admissible.’’ (Internal quotation marks
omitted.) State v. Swilling, 180 Conn. App. 624, 656–57,
184 A.3d 773, cert. denied, 328 Conn. 937, 184 A.3d
268 (2018). Section 6-7 (c) of the Connecticut Code of
Evidence provides in relevant part: ‘‘If, for purposes
of impeaching the credibility of a witness, evidence is
introduced that the witness has been convicted of a
crime, the court shall limit the evidence to the name

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Alicea v. Commissioner of Correction
of the crime and when and where the conviction was
rendered, except that (1) the court may exclude evi-
dence of the name of the crime . . . .’’ ‘‘As indicated
in § 6-7, the court has discretion to admit the prior
conviction as an unnamed felony. Factors to consider
include whether the prior crime reflects directly on
credibility and whether the prejudice inherent in the
name of the crime outweighs the probative impeaching
value. . . .
‘‘[I]n 	evaluating 	the 	separate 	ingredients 	to 	be
weighed in the balancing process, there is no way to
quantify them in mathematical terms. . . . Therefore,
[t]he trial court has wide discretion in this balancing
determination 	and 	every 	reasonable 	presumption
should be given in favor of the correctness of the court’s
ruling . . . . Reversal is required only where an abuse
of discretion is manifest or where injustice appears to
have been done. . . . The burden lies with the party
objecting to the admission of evidence of prior convic-
tions to demonstrate the prejudice that is likely to arise
from its admission. 	. 	. 	. 	The test for determining
whether evidence is unduly prejudicial is not whether
it is damaging to the defendant but whether it will
improperly arouse the emotions of the jury. . . .
‘‘[P]rior convictions that are admissible for impeach-
ment purposes may be segregated into two general cate-
gories. First are those crimes that by their very nature
indicate dishonesty or tendency to make false state-
ment. . . . Beyond the obvious violations such as per-
jury or false statement, we have recognized that crimes
involving larcenous intent imply a general disposition
toward dishonesty such that they also fall within this
category. . . . Convictions of this sort obviously bear
heavily on the credibility of one who has been convicted
of them. The probative value of such convictions, there-
fore, may often outweigh any prejudice engendered by
their admission.

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‘‘The second category involves convictions for crimes
that do not reflect directly on the credibility of one who
has been convicted of them. . . . The theory behind
the admissibility of these convictions as evidence of
credibility posits that conviction of a crime demon-
strates a bad general character, a general readiness to
do evil and that such a disposition alone supports an
inference of a readiness to lie in the particular case.
. . .
‘‘Convictions of crimes that fall within this second
category blemish the character of one so convicted. A
juror might reasonably conclude that such a witness
lacks to some degree the moral rectitude from which
a [witness’] oath of honesty derives its credibility. Nev-
ertheless, conviction of a crime not directly reflecting
on credibility clearly lacks the direct probative value
of a criminal conviction indicating dishonesty or a ten-
dency to make false statement. Thus, the balance used
to 	measure 	admissibility 	of 	prior 	convictions 	is
weighted less heavily toward admitting the prior convic-
tion when it involves a crime related only indirectly to
credibility. . . . To avoid unwarranted prejudice to the
witness, when a party seeks to introduce evidence of
a felony that does not directly bear on veracity, a trial
court ordinarily should permit reference only to an
unspecified crime carrying a penalty of greater than
one year that occurred at a certain time and place. . . .
That 	prudent 	course 	[of 	permitting 	evidence 	of
unnamed felony convictions] allows the jury to draw
an inference of dishonesty from the prior conviction
without the extraordinary prejudice that may arise from
naming the specific offense. . . . Ultimately, [t]he trial
court, because of its intimate familiarity with the case,
is in the best position to weigh the relative merits and
dangers of any proffered evidence. . . . This principle
applies with equal force to the admissibility of prior
convictions.’’ (Citations omitted; internal quotation

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Alicea v. Commissioner of Correction
marks omitted.) State v. Swilling, supra, 180 Conn.
App. 657–59.
In the present case, the habeas court determined
that the trial court, at most, would have permitted the
introduction into evidence of a 2005 conviction for
attempted assault and would not have allowed into
evidence the facts underlying that attempted assault.8
On appeal, the respondent argues that ‘‘[t]he trial court’s
exercise of discretion was never as guaranteed as the
habeas court supposed.’’
The respondent identifies cases in which our appel-
late courts have determined that a trial court did not
8 It is unclear why the habeas court determined that only one of the 2005
attempted assault convictions would have been admitted into evidence. The
document entered into evidence before the habeas court indicates that
there were two convictions for attempted assault, both of which indicate
a disposition of guilty on August 26, 2005, and for which the petitioner was
sentenced to concurrent five year terms of incarceration. The petitioner’s
criminal trial took place in October, 2016. In his posttrial brief to the habeas
court, the petitioner identified the two convictions of attempted assault in
2005 and noted that he had been sentenced to a five year term of incarceration
related to those convictions. Thus, the petitioner identified the two 2005
assault convictions as falling within the ‘‘relevant period . . . .’’ See State v.
Swilling, supra, 180 Conn. App. 660 (‘‘[t]he measuring point for a remoteness
determination under § 6-7 of the Connecticut Code of Evidence is the date
of conviction or the date of release from resulting confinement, whichever
is later’’ (internal quotation marks omitted)). The petitioner argued that the
trial court may have admitted the convictions as unnamed felonies to avoid
undue prejudice. In the respondent’s posttrial brief, he characterized the two
assault convictions as ‘‘about eleven years old at the time of the trial . . . .’’
During supplemental closing argument before the habeas court, the peti-
tioner’s counsel stated: ‘‘So, I believe the petitioner and [the respondent]
agree there’s really like three convictions that we’re looking at here . . .
as potentially admissible, and that would be obviously the two attempted
assaults, one of which became the part B, referred to in the part B informa-
tion, that occurred in 2000—convictions that occurred in 2005 for which he
was sentenced to five years. Obviously, he was released within the ten year
window for the purposes of—so, I mean, the question as to whether those
would have come in as named offenses or unnamed felonies I think is a bit
up in the air and unclear, given that the defense’s then motion with respect
to the prior convictions wasn’t pursued by . . . Davis.’’ (Emphasis added.)
In its memorandum of decision, the habeas court stated: ‘‘The two prior
convictions at issue were in 2005 and 1999, placing them both more than ten
years in the past.’’ The respondent does not challenge this finding on appeal.

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abuse its discretion in admitting evidence of prior con-
victions. See, e.g., State v. Muhammad, 91 Conn. App.
392, 400, 881 A.2d 468 (trial court did not abuse its
discretion in admitting evidence of prior convictions of
sexual assault and kidnapping that were approximately
fifteen years old where defendant’s release from con-
finement was within ten year benchmark), cert. denied,
276 Conn. 922, 888 A.2d 90 (2005). ‘‘[A] prior conviction
which is more than ten years old may, under some
circumstances, retain some probative value which is
minimally sufficient to overcome any marginal preju-
dice, and may be admissible, therefore, without a wholly
unreasonable exercise of a trial court’s discretion.’’
(Internal quotation marks omitted.) State v. Ciccio,
supra, 77 Conn. App. 388–89. Although a prior convic-
tion that is more than ten years old and not probative
of veracity is less likely to be admitted into evidence;
see State v. Ortiz, 343 Conn. 566, 588, 275 A.3d 578
(2022) (‘‘unless a conviction ha[s] some special signifi-
cance to untruthfulness, the fact that it [is] more than
ten years old [will] most likely preclude its admission
under our balancing test’’ (internal quotation marks
omitted)); ‘‘[u]ltimately, [t]he trial court, because of its
intimate familiarity with the case, is in the best position
to weigh the relative merits and dangers of any prof-
fered evidence. . . . This principle applies with equal
force to the admissibility of prior convictions.’’ (Internal
quotation marks omitted.) State v. Swilling, supra, 180
Conn. App. 659.
The respondent contends that, ‘‘to the extent that the
habeas court found that Davis should have divined how
the court would have weighed the probative value of
the petitioner’s convictions against their potential for
undue prejudice, he cannot be faulted for pursuing a
more cautious route and anticipating that the court
might have admitted the convictions had the petitioner
testified.’’ We agree with the respondent that, based on

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Alicea v. Commissioner of Correction
the potential for the admissibility of the petitioner’s
prior convictions, primarily in the event that the peti-
tioner opened the door to them, or in the secondary
scenario that the court permitted the convictions as
impeachment evidence, the petitioner has failed to dem-
onstrate that Davis’ advice regarding the decision not
to testify was constitutionally deficient. 9
B
The respondent also argues that the habeas court
erred in finding that the petitioner satisfied the preju-
dice prong of Strickland. ‘‘To prevail on a claim of
ineffective assistance of counsel, a petitioner must
show both deficient performance and prejudice; a fail-
ure to prove either deficient performance or prejudice
is fatal to his or her claim.’’ Meletrich v. Commissioner
of Correction, 178 Conn. App. 266, 284, 174 A.3d 824
(2017), aff’d, 332 Conn. 615, 212 A.3d 678 (2019).
Although we have determined that the habeas court
erred in finding that the petitioner proved deficient
performance, we also conclude that the habeas court
erred in determining that the petitioner was prejudiced
by Davis’ advice.
‘‘Our analysis of the prejudice prong requires us to
determine the probable effect that counsel’s alleged
9 The respondent additionally contends that ‘‘whether the state could
obtain admission of the petitioner’s convictions if he presented violent
conduct by [the victim] was an open question that some courts and commen-
tators have answered affirmatively. . . . Some courts have held that, where
a defendant claims self-defense, his prior convictions may be admissible to
inform whether he was the initial aggressor in the charged offense . . . or,
where the prior offense was sufficiently similar to the charged offense, to
show the defendant’s ‘bent of mind’ in engaging in the charged conduct or
to rebut the claim of self-defense. . . . The respondent acknowledges, how-
ever, that other courts have held that admission of prior convictions for
these purposes may amount to improper propensity evidence.’’ (Citations
omitted; footnote omitted.) We need not address whether Davis’ advice not
to testify reasonably would be supported by a concern that the trial court,
addressing an issue of first impression, would have admitted the petitioner’s
prior convictions to refute any suggestion that the victim was the initial
aggressor.

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defective performance had under the circumstances of
the case before the court. Thus, [t]o satisfy [this] prong,
a claimant must demonstrate that there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.
. . . In assessing prejudice under Strickland, the ques-
tion is not whether a court can be certain counsel’s
performance had no effect on the outcome or whether
it is possible a reasonable doubt might have been estab-
lished if counsel acted differently. . . . Instead, Strick-
land asks whether it is reasonably likely the result
would have been different. . . . This does not require
a showing that counsel’s actions more likely than not
altered the outcome, but the difference between Strick-
land’s prejudice standard and a more-probable-than-
not standard is slight and matters only in the rarest
case. . . . The likelihood of a different result must be
substantial, not just conceivable.’’ (Internal quotation
marks omitted.) Id., 285.
First, the respondent argues that the petitioner’s testi-
mony was cumulative of other evidence presented at
the criminal trial. See, e.g., Madagoski v. Commissioner
of Correction, 104 Conn. App. 768, 776, 936 A.2d 247
(2007) (prejudice was not established when trial coun-
sel did not present witness testimony that would have
been cumulative of other evidence at trial), cert. denied,
286 Conn. 905, 944 A.2d 979 (2008). We agree with the
respondent that the petitioner’s testimony would have
been, to some extent, cumulative of the record already
established at his trial. The jury had before it the audio
recording of the 911 call that the petitioner had placed
from the restaurant. During the call, the petitioner can
be heard reporting that the victim came into the restau-
rant threatening the petitioner’s life, that the petitioner
tried to calm him down, that the victim went to attack
the petitioner, and that the petitioner then attacked him
first. The petitioner reported in the audio recording of

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the 911 call that he cut the victim with a razor that he
uses at work to clean the fryers. The jury also heard
the testimony of the petitioner’s wife that she heard
fear in the petitioner’s voice when he called her after
his conversation with the victim. She testified that he
sounded ‘‘shaky’’ and ‘‘worried.’’ Although the petition-
er’s wife stated that she could not make out what the
victim was saying, she described the victim’s voice as
very loud, angry, and threatening. Last, the restaurant’s
surveillance video depicted the victim following the
petitioner around the restaurant kitchen and appearing
to yell at him.
Second, the decision to have the petitioner testify at
trial must be considered in light of all the evidence that
was before the jury because ‘‘[t]he strength of the state’s
case is a significant factor in determining whether an
alleged error caused prejudice to the petitioner.’’ (Inter-
nal quotation marks omitted.) Dupigney v. Commis-
sioner of Correction, 183 Conn. App. 852, 862, 193 A.3d
1274, cert. denied, 330 Conn. 942, 195 A.3d 1135 (2018).
The jury had before it the video of the encounter.
Therein, after the victim returns to the restaurant, the
petitioner is seen moving around the restaurant, at
times with his back to the victim. The victim can be
seen shifting his keys from hand to hand. The petitioner
then reaches out, grabs the victim by the neck or back
of the head, pulls the victim’s head closer to him, and
cuts his neck with the razor blade. The victim runs
out of the restaurant, bleeding from the neck, and the
petitioner runs after him out the door.
On the basis of the foregoing, we conclude that the
habeas court improperly determined that the petitioner
demonstrated that he was prejudiced. To the contrary,
the petitioner failed to sustain his burden of showing
that a reasonable probability existed that the outcome
of the criminal trial would have been different had Davis

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advised him that the admissibility of his criminal convic-
tions would have been limited had the petitioner testi-
fied.
The judgment is reversed only with respect to the
habeas court’s determination that Matthew Davis pro-
vided ineffective assistance of counsel by misadvising
the petitioner regarding the scope of admissibility of
his prior convictions and the case is remanded to the
habeas court with direction to render judgment denying
the petition as to that claim; the judgment is affirmed
in all other respects.
In this opinion the other judges concurred.