Brown v. Commissioner of Correction

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Brown v. Commissioner of Correction
CLEVELAND BROWN v. COMMISSIONER
OF CORRECTION
(AC 47568)
Cradle, C. J., and Westbrook and Wilson, Js.
Syllabus
The petitioner, who previously had been convicted, after a jury trial, of mur-
der and carrying a pistol without a permit, appealed following the granting
of his petition for certification to appeal from the habeas court’s judgment
denying his petition for a writ of habeas corpus. He claimed, inter alia, that
his criminal trial counsel, F, rendered ineffective assistance by failing to
offer as substantive evidence, pursuant to State v. Whelan (200 Conn. 743),
the prior written statement of a state’s witness, P, that she had provided to
the police, that contradicted her testimony that she had seen the petitioner
shoot the victim. Held:
The habeas court incorrectly concluded that the petitioner did not provide
any legal basis for the admission into evidence of P’s written statement under
Whelan at the criminal trial, as the transcript of that trial showed that the
statement was inconsistent with P’s testimony in significant ways, P admitted
during her testimony that her written statement, in which she did not state
that she saw the petitioner shoot the victim, contradicted her testimony at
trial, and the statement met the Whelan requirements for admissibility.
The habeas court correctly concluded that the petitioner failed to prove that
F rendered deficient performance by not offering P’s written statement
into evidence pursuant to Whelan, as F had made an objectively reasonable,
strategic decision not to offer the statement in light of his concern about
exposing the jury to portions of the statement that corroborated the state’s
case, which would have undermined his defense strategy of relying on his
cross-examination of P to highlight the inconsistencies between her trial
testimony and her prior statement.
The petitioner did not establish that F rendered deficient performance in
failing to demonstrate that it was not possible for P to have witnessed the
shooting, contrary to her testimony at the criminal trial, as F’s conduct
fell within the wide range of reasonable professional assistance because it
was objectively reasonable for him to conclude that the jury had before it
ample evidence from which to determine whether P was able to observe the
petitioner at the time of the shooting, and it was reasonable trial strategy for
F to impeach P by focusing on compelling evidence that she did not witness
the shooting rather than suggesting to the jury that her trial testimony was
not possibly accurate.
Argued December 15, 2025—officially released June 9, 2026
Procedural History
Amended petition for a writ of habeas corpus, brought
to the Superior Court in the judicial district of Tolland

Brown v. Commissioner of Correction
and tried to the court, Bhatt, J.; judgment denying the
petition, from which the petitioner, on the granting of
certification, appealed to this court. Affirmed.
Michael W. Brown, assigned counsel, for the appel-
lant (petitioner).
Rebecca R. Zeuschner, deputy assistant state’s attor-
ney, with whom, on the brief, were Sharmese L. Walcott,
state’s attorney, and Erin Stack, assistant state’s attor-
ney, for the appellee (respondent).
Opinion
WILSON, J. Following the granting of certification
by the habeas court, the petitioner, Cleveland Brown,
appeals from the court’s judgment denying his amended
petition for a writ of habeas corpus. On appeal, the peti-
tioner claims that the court erred in concluding that his
criminal trial counsel did not render ineffective assis-
tance by failing (1) to offer the prior, inconsistent written
statement of a key prosecution witness as substantive
evidence under Whelan,1 and (2) to demonstrate the
factual impossibility of certain of the trial testimony of
that witness. We disagree and, accordingly, affirm the
judgment of the habeas court.
The following facts and procedural history, as reflected
in the record or set forth in the habeas court’s memoran-
dum of decision, are relevant to this appeal. Following
a jury trial, the petitioner was convicted of murder in
violation of General Statutes § 53a-54a (a) and carrying
a pistol without a permit in violation of General Statutes
§ 29-35 (a). The petitioner was sentenced by the trial
court, Dewey, J., to fifty years of incarceration.
On the basis of the evidence presented at the peti-
tioner’s criminal trial, the jury reasonably could have
found that, in the early morning of June 11, 2014, the
petitioner and the victim, Tyrone Taylor, were in the
vicinity of a corner store located at Vine Street and
1See State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied,
479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

Brown v. Commissioner of Correction
Albany Avenue in Hartford. The petitioner was argu-
ing with the victim about the victim selling drugs in the
area. Following the argument, the petitioner walked up
Magnolia Street, and the victim walked up Vine Street.
The petitioner then walked through a shortcut that runs
between Magnolia Street and Vine Street, shot the victim
in the chest, and left the scene. At 2:43 a.m., Officer Greg
Dzierzgowski of the Hartford Police Department was
dispatched to 26 Vine Street after a gunshot detection
system the police utilize indicated that a gunshot had
occurred at that location. Dzierzgowski found the victim,
who was unresponsive, lying in the street. Several items
were located around the victim, including a can of Steel
Reserve beer. The victim died as a result of the injuries
sustained from the shooting.
The petitioner appealed from the judgment of convic-
tion, raising the sole issue of whether “the trial court
failed to ensure that the trial transcript reflected each
individual juror’s oral concurrence with the jury ver-
dict.” State v. Brown, 185 Conn. App. 806, 807, 198
A.3d 687 (2018). This court affirmed the judgment of
conviction. See id., 812.
In 2019, the petitioner, in a self-represented capacity,
brought a petition for a writ of habeas corpus. In Novem-
ber 2023, the petitioner, then represented by counsel,
filed an amended petition. Among the claims raised by
the petitioner was that his criminal trial counsel, John
E. Franckling, did not render effective assistance in
that he failed (1) to introduce into evidence, pursuant to
Whelan, the written statement that Charlotte Poteat had
given to the police,2 and (2) to cross-examine and impeach
Poteat about the impossibility of the accuracy of certain
of her trial testimony, specifically, that she had observed
the petitioner shoot the victim.3 At a trial on February
2The witness’ name is spelled “Poteat” throughout the record; however,
her name is spelled “Poteet” in her sworn statement to the police. In this
opinion, we refer to the witness, as the criminal court did, as “Poteat.”
3In his amended habeas petition, the petitioner also claimed that
Franckling was ineffective for failing (1) “to adequately investigate the
case prior to trial,” (2) “to adequately communicate with the petitioner,”

Brown v. Commissioner of Correction
15, 2024, the habeas court, Bhatt, J., heard testimony
from Franckling and the petitioner and admitted into
evidence various exhibits, including the transcript of the
petitioner’s 2016 criminal trial. On February 23, 2024,
the court issued a memorandum of decision in which it
denied the petitioner’s claims.
Both of the claims raised in this appeal relate to Pote-
at’s testimony at the petitioner’s criminal trial on March
9, 2016, when she appeared as a witness for the state.
Poteat testified that the victim, who she referred to as
“Tek,” was “like family” to her. Poteat knew the peti-
tioner, who she referred to as “C.B.,” for many years
but did not consider him to be a friend. On June 11,
2014, at approximately 2 a.m., Poteat’s friend, who
she referred to as “Jojo,” drove her to the corner store
at Vine Street and Albany Avenue in Hartford. Jojo
parked her car at a bus stop on the corner of Burton
Street and Albany Avenue. Poteat was going to go into
the store but noticed an argument taking place outside
of the store and did not get out of the car at that time.
Soon thereafter, Poteat got out of the car “to be nosy.”
Poteat overheard the petitioner and the victim arguing
“about drugs,” specifically, that the petitioner “didn’t
want [the victim] to commit any transactions in that
area.” The victim “wasn’t backing down,” but the men
went their separate ways when the petitioner walked up
Magnolia Street and the victim walked up Vine Street.
Poteat testified that she saw that the petitioner “looked
back like to make sure that [the victim] was gone up
Vine [Street] . . . .” Poteat then got back into the car and
instructed Jojo to drive to Magnolia Street and Albany
Avenue.4 From the car, which was parked “in the middle
(3) “to properly advise the petitioner on the strengths and weaknesses of
the state’s case,” (4) “to discuss trial strategy with the petitioner,” and
(5) “to communicate and explain the state’s offers.” In this appeal, the
petitioner does not challenge the habeas court’s denial of these claims.
4Poteat testified that Jojo’s car was not parked at the corner of Mag-
nolia Street and Albany Avenue. Poteat stated: “It’s late at night,
there’s . . . really no cars out there. It’s people out there, but there is
barely no cars out there and I’m not parked accurately at the corner.
I’m in like close in the middle of the street. I can see down the street.”

Brown v. Commissioner of Correction
of the road,” Poteat could see down Magnolia Street.
Poteat then observed the petitioner walk “through the
cut,” which she described as “a shortcut that gets you
to Vine Street from Magnolia [Street]” and would take
“no time” to traverse. Once “[the petitioner] made the
cut,” Poteat instructed Jojo to drive in reverse to Vine
Street and Albany Avenue because she thought “that
they’re going to fight.” At Vine Street, Poteat got out
of the car, crossed the street, and stood close behind the
victim. She recalled: “When [the victim] took a sip of
his beer, he stopped and he looked like in the direction
of the cut and [the petitioner] was there. His hand was
raised, [the petitioner’s hand] not [the victim’s hand],
and fire came from his hand. A shot and fire came from
his hand, and I turned around and I . . . left . . . .” Poteat
testified that she was standing approximately twenty
feet from the petitioner at the time of the shooting and
that, after she saw a flash of fire emanate from the gun
in the petitioner’s hand, the petitioner “[n]onchalantly
turned around and he looked at me.” Thereafter, Poteat
returned to the car and went home.
During Poteat’s direct examination, the prosecutor
questioned her about a written statement that she had
provided to Detective Dennis DeMatteo of the Hart-
ford Police Department. Poteat agreed that, in her writ-
ten statement, she stated that she saw the petitioner
approach the victim and, because she did not think any-
thing would happen, she turned around. As she turned,
she heard a gunshot and ran from the scene. Poteat agreed
with the prosecutor that her testimony at trial was dif-
ferent from the facts in her written police statement,
but she explained that the difference was “[b]ecause I
feel like the truth needed to be heard, and I didn’t sleep
that night and I didn’t want to go outside ‘cause I felt
like I just needed to tell the truth.”
On cross-examination, Franckling highlighted more
of the differences between Poteat’s trial testimony and
the facts in her written police statement. For example,
Poteat also testified that, from the middle of the street, “you can see
down the street. The lighting is good. And me being from Hartford all
of my life, I know where the cut is.”

Brown v. Commissioner of Correction
Franckling elicited that Poteat did not remember telling
DeMatteo that the victim had walked into the corner store
after the initial argument ended. When asked whether
her memory was better in 2014 or at the time of trial,
Poteat stated: “It was pretty fresh, and I was and still
[am] shooken up about it.” Franckling elicited that Poteat
did not recall telling DeMatteo that she had observed the
victim remaining in the store or that she had observed
the petitioner leaving the store. She recalled, however,
telling DeMatteo that the petitioner walked up Magnolia
Street. Poteat testified that she did not recall stating
that she had observed the victim walking out of the store
with a can of beer but testified that, when she arrived at
the store, the victim was already standing outside with
the beer in his hand and that the petitioner was outside
of the store.
Further, on cross-examination, Franckling elicited tes-
timony from Poteat that, although she had told DeMat-
teo that she saw the victim exit the store with the beer,
take a sip, and keep walking, she testified at trial that
the victim did not open the beer until he was on Vine
Street, she saw him take a sip of the beer and that he
did not continue walking with the beer. At trial, Poteat
testified that, “[w]here he took his sip at is where he died
at.” Franckling elicited that Poteat did not recall telling
DeMatteo that the victim had taken a sip of beer and
kept walking. Franckling also elicited testimony from
Poteat that, in contrast to her trial testimony that Jojo
did not get out of the car at all, she told DeMatteo that
she and her friend had run back to the car following the
shooting. Poteat testified that she did not recall telling
this to DeMatteo.
After Poteat testified, the state recalled DeMatteo.
Franckling cross-examined DeMatteo with respect to the
inconsistencies between Poteat’s written police state-
ment and her trial testimony. DeMatteo testified that
Poteat had told him that, after she watched the initial
argument between the petitioner and the victim, she
watched the victim walk away. Poteat also told him

Brown v. Commissioner of Correction
that the victim had walked into the corner store on Vine
Street and Albany Avenue. DeMatteo explained that, if
Poteat’s written police statement stated that the victim
had stayed in the store while the petitioner walked away
from the store, then that was what Poteat had told him.
Additionally, DeMatteo recalled Poteat stating that,
when the petitioner left the store, he went up Magnolia
Street and that, after the victim had left the store, he
went up Vine Street. DeMatteo testified that, in the police
statement, Poteat stated that she and her friend had run
back to the car after the shooting but that Poteat did not
mention a person known as Jojo at that time.
With respect to the two ineffective assistance of coun-
sel claims at issue in this appeal, the habeas court stated
in its memorandum of decision: “Franckling cross-exam-
ined Poteat about her ability to see ‘the cut’ due to a bend
in Magnolia Street. He questioned her about inconsisten-
cies between testimony and her statement to [the] police.
While it is true that he did not cross-examine her about
her testimony that she could see the shooting, contrary
to her statement, that inconsistency was already before
the jury because the state asked her about that inconsis-
tency. [The petitioner] has not provided any legal basis for
the admission of the statement as substantive evidence.
[Poteat’s] credibility was impeached by questioning on
both direct and cross. There is no deficient performance
as to any of his claims.” Thereafter, the court granted
the petitioner’s petition for certification to appeal. This
appeal followed.
“[Our] standard of review of a habeas court’s judg-
ment on ineffective assistance of counsel claims is well
settled. In a habeas appeal, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous, but our review of whether the facts
as found by the habeas court constituted a violation of the
petitioner’s constitutional right to effective assistance
of counsel is plenary . . . .
“In Strickland v. Washington, [466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United

Brown v. Commissioner of Correction
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 underlying] conviction . . .
. That requires the petitioner to show (1) that counsel’s
performance was deficient and (2) that the deficient per-
formance prejudiced the defense. . . . Unless a [petitioner]
makes both showings, it cannot be said that the convic-
tion . . . resulted from a breakdown in the adversary
process that renders the result unreliable . . . .
“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 . . . . To satisfy the prejudice
prong, a claimant must demonstrate that there is a rea-
sonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been dif-
ferent . . . . A court can find against a petitioner, with
respect to a claim of ineffective assistance of counsel,
on either the performance prong or the prejudice prong
. . . .” (Citation omitted; internal quotation marks omit-
ted.) Stephen J. R. v. Commissioner of Correction, 178
Conn. App. 1, 7–8, 173 A.3d 984 (2017), cert. denied,
327 Conn. 995, 175 A.3d 1246 (2018).
“We also are mindful that [a] fair assessment of attor-
ney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to recon-
struct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective
at the time. Because of the difficulties inherent in mak-
ing the evaluation, a court must indulge a strong pre-
sumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the
[petitioner] must overcome the presumption that, under
the circumstances, the challenged action might be con-
sidered sound trial strategy. . . . [C]ounsel is strongly
presumed to have rendered adequate assistance and

Brown v. Commissioner of Correction
made all significant decisions in the exercise of reason-
able professional judgment. . . .
“[T]he United States Supreme Court has emphasized
that a reviewing court is required not simply to give
[the trial attorney] the benefit of the doubt . . . but to
affirmatively entertain the range of possible reasons .
. . counsel may have had for proceeding as [he] did . . . .
[S]trategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually
unchallengeable; [but] strategic choices made after less
than complete investigation are reasonable precisely
to the extent that reasonable professional judgments
support the limitations on investigation.” (Citations
omitted; internal quotation marks omitted.) Id., 8–9.
We now turn to the merits of the petitioner’s claims.
I
The petitioner claims that the habeas court erred in
concluding that Franckling did not render ineffective
assistance of counsel by failing to offer into evidence the
written statement that Poteat had provided to the police
as substantive evidence under Whelan at his criminal
trial. The petitioner’s argument is twofold. First, he
asserts that “[t]he habeas court erred by concluding that
there was no legal basis for the Poteat statement to be
admitted into evidence at the petitioner’s criminal trial.”
Second, he contends that the court’s erroneous conclu-
sion led it to “not fully address the significance of trial
counsel’s error . . . .” According to the petitioner, his
ineffective assistance claim has merit because Franck-
ling had no strategic reason for not offering Poteat’s
statement under Whelan. We agree with the petitioner’s
first argument but disagree with his second argument.
We first address the habeas court’s conclusion that
there was no legal basis for Poteat’s police statement to
be admitted into evidence under Whelan at the criminal
trial. “The Whelan rule is an exception to the rule against
hearsay. It permits a nonparty witness’ prior inconsistent
statements to be used for substantive purposes, that is, to

Brown v. Commissioner of Correction
prove the truth of the matters asserted therein, provided
that the following conditions exist: (1) the statement
must be in writing, (2) the statement must be signed by
the declarant, (3) the declarant must possess personal
knowledge of the facts contained therein, and (4) the
declarant must testify at trial and be subject to cross-
examination State v. Whelan, 200 Conn. 743, 753, 513
A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93
L. Ed. 2d 598 (1986); see also Conn. Code Evid. § 8-5 (1).5
The Whelan rule is meant to assure a reasonable degree
of reliability in a proffered statement; to be admissible, a
prior inconsistent statement must have been given under
circumstances ensuring its reliability and trustworthi-
ness. . . . The admission of prior statements under the
rule affords the trier of fact an opportunity to gauge a
witness’ present testimony after such witness is con-
fronted with a prior inconsistent statement. [G]iven the
opportunity for meaningful cross-examination of such a
witness, the witness will be forced either to explain the
discrepancies between the earlier statements and [her]
present testimony, or to deny that the earlier statement
was made at all. . . . After this type of examination, the
jury can draw whatever conclusions concerning the wit-
ness’ testimony that it deems to be appropriate.” (Cita-
tions omitted; footnote added; internal quotation marks
omitted.) State v. Hersey, 78 Conn. App. 141, 148–49,
826 A.2d 1183, cert. denied, 266 Conn. 903, 832 A.2d
65 (2003). “[O]nce the proponent of a prior inconsistent
statement has established that the statement satisfies the
requirements of Whelan, that statement, like statements
5As the commentary to § 8-5 of the Connecticut Code of Evidence
explains, “[§] 8-5 (1) incorporates the rule of State v. Whelan, [supra,
200 Conn. 753], and later developments and clarifications.” Conn. Code
Evid. § 8-5 (1), commentary. Section 8-5 provides in relevant part: “The
following are not excluded by the hearsay rule, provided the declarant
is available for cross-examination at trial: (1) . . . A prior inconsistent
statement of a witness, provided (A) the statement is in writing or oth-
erwise recorded by audiotape, videotape or some other equally reliable
medium, (B) the writing or recording is duly authenticated as that of
the witness, and (C) the witness has personal knowledge of the contents
of the statement. . . .” Conn. Code Evid. § 8-5 (1); see also State v. Ham-
ilton, 352 Conn. 317, 345 n.14, 336 A.3d 1188 (2025).

Brown v. Commissioner of Correction
satisfying the requirements of other hearsay exceptions,
is presumptively admissible.” (Internal quotation marks
omitted.) State v. Trotter, 69 Conn. App. 1, 10, 793 A.2d
1172, cert. denied, 260 Conn. 932, 799 A.2d 297 (2002).
In addition, “[a] statement is admissible as a prior
inconsistent statement . . . only when the trial court
is persuaded that, taking the testimony of the witness
as a whole, the statements are in fact inconsistent. . . .
Inconsistencies may be shown not only by contradictory
statements but also by omissions. In determining whether
an inconsistency exists, the testimony of a witness as
a whole, or the whole impression or effect of what has
been said, must be examined. . . . Inconsistency in effect,
rather than contradiction in express terms, is the test for
admitting a witness’ prior statement . . . and the same
principle governs the case of the forgetful witness. . . .
A statement’s inconsistency may be determined from
the circumstances and is not limited to cases in which
diametrically opposed assertions have been made. Thus,
inconsistencies may be found in changes in position and
they may also be found in denial of recollection.” (Cita-
tion omitted; internal quotation marks omitted.) State v.
Eaton, 59 Conn. App. 252, 263–64, 755 A.2d 973, cert.
denied, 254 Conn. 937, 761 A.2d 763 (2000).
The respondent, the Commissioner of Correction,
argues that the habeas court did not misstate the law
by concluding that there was no legal basis for the admis-
sion of Poteat’s statement as substantive evidence. The
respondent relies on the fact that the content of Pote-
at’s written police statement was never admitted into
evidence at the habeas trial because the court admit-
ted Poteat’s statement only for the limited purpose of
showing that Franckling had it in his possession during
the criminal trial. The respondent argues that, because
Poteat’s statement was not admitted as a full exhibit, its
content may not be considered as evidence that Franck-
ling had performed deficiently. The respondent contends
that the court, therefore, correctly concluded that the
petitioner “ha[d] not provided any legal basis for the

Brown v. Commissioner of Correction
admission of the statement as substantive evidence.”
We do not agree with the respondent.
Our plenary review of the record as a whole reflects
that, although the habeas court admitted Poteat’s
prior statement for the limited purpose of showing that
Franckling had the statement in his possession during
the criminal trial, there was testimony at the habeas
trial as to the content of the statement. The following
colloquy between the petitioner’s counsel and Franckling
occurred during the habeas trial:
“Q. Attorney Franckling, did Ms. Poteat subsequently
testify at trial?
“A. Yes, she did.
“Q. Okay. And did she testify in accordance with the
statement that you had previously reviewed with [the
petitioner]?
“A. No. In part, but no.
“Q. Okay. How significant were the inconsistencies
between her witness statement and her testimony?
“A. . . . I believe in the initial statement she said she
did not see the shooting and she ran off. She heard the
gunshot. Whereas at trial she said she witnessed the
shooting from pretty close distance.”
Moreover, as previously noted in this opinion, the
transcript of the criminal trial, which was admitted
into evidence at the habeas trial, reveals that the prior
statement was inconsistent with Poteat’s trial testi-
mony. Indeed, during the state’s direct examination of
Poteat at the criminal trial, Poteat admitted that her
testimony contradicted her written police statement.
Poteat agreed that, in her written police statement, she
had stated that she saw the petitioner approach the victim
and, because she did not think anything would happen,
she turned around and that, as she turned, heard a gun-
shot and then ran. However, she testified at trial that,
from approximately twenty feet away, she observed the

Brown v. Commissioner of Correction
petitioner shoot the victim before the petitioner looked
directly at her.
Accordingly, based on the record before us and the
legal principles that govern the admissibility of prior
inconsistent statements under Whelan, Poteat’s prior
statement to DeMatteo would appear to qualify as a
prior inconsistent statement admissible as substantive
evidence under Whelan. We have already highlighted
some of the significant ways in which Poteat’s state-
ment to the police was inconsistent with her testimony
at the criminal trial, and the evidence before the habeas
court reflects that (1) the statement was in writing, (2)
the statement was signed by Poteat,6 (3) Poteat had
personal knowledge of the facts in the statement, and
(4) Poteat testified at the criminal trial and was subject
to cross-examination by the defense. Thus, to the extent
the habeas court determined that the petitioner did not
provide any legal basis for the admission of the state-
ment as substantive evidence, such determination was
legally incorrect.
However, our conclusion that the statement would have
been admissible is not dispositive of whether Franckling’s
performance was deficient because he did not offer the
statement into evidence. According to the petitioner, his
ineffective assistance claim has merit because Franckling
had no strategic reason for not offering Poteat’s state-
ment under Whelan. The petitioner argues that Poteat’s
statement was “a classic prior inconsistent statement,
admissible for both substantive and credibility purposes
. . . .” The petitioner argues that “[i]t is immaterial that
Poteat acknowledged giving her prior statement to the
police for purposes of determining whether it was sub-
stantively admissible. The purpose of admitting a state-
ment under Whelan goes beyond simply alerting the jury
to the fact that a prior statement was made. The purpose
of admitting a statement under Whelan is to place the
6DeMatteo testified that written statements are typed for legibility
purposes, shown to the person making the statement so that the person
may review it for accuracy or make any changes, and sworn to and signed
by the person making the statement.

Brown v. Commissioner of Correction
statement before the jury to determine whether it should
credit the prior statement as the truth and reject a wit-
ness’ in-court testimony.”
At the habeas trial, Franckling testified with respect
to his reasons for not offering Poteat’s police statement
under Whelan. First, Franckling testified that he chose
not to offer Poteat’s statement because it was beneficial
from a defense standpoint that the inconsistencies at
issue were elicited by the state on direct examination as a
preemptive strike and, further, he had questioned Poteat
about some of the other inconsistencies. Franckling
believed that the inconsistencies had already been put
before the jury, and, thus, it was not necessary for him to
introduce the statement into evidence. Second, Franck-
ling testified that he did not offer Poteat’s statement
because it contained “a paragraph or two that weren’t in
evidence that I didn’t want to have any chance of getting
in evidence.” Third, Franckling testified that he did not
offer Poteat’s statement into evidence as a Whelan state-
ment because part of her statement, although different
from her testimony, was actually corroborated by other
inculpatory evidence found at the shooting scene, which
the state had presented at trial. Specifically, Franckling
testified that, in the written statement, Poteat stated
that she had observed the victim drink a sip of beer imme-
diately before the petitioner shot him. The state had
presented evidence that, when the police arrived at the
shooting scene, there was a can of Steel Reserve brand
beer lying next to the victim. Finally, Franckling testi-
fied that it was not uncommon for a witness’ testimony
to differ from the initial statements that the witness
provided to the police.
On appeal, the petitioner downplays the reasonable-
ness of the strategic reasons Franckling articulated for
not offering Poteat’s written statement into evidence
under Whelan. The petitioner argues that Franckling
could have asked that the criminal court admit only the
portions of the statement that were inconsistent with
Poteat’s trial testimony. The petitioner also argues that,

Brown v. Commissioner of Correction
even if the entire statement had been admitted, “the sub-
stance of the portions of the statement that Franckling
was concerned about were presented to the jury, and were
even bolstered, without objection by Franckling, by the
testimony of DeMatteo, who indicated that Poteat had
indicated those very things in her written statement.”7
The respondent argues that the petitioner failed to
prove that it was objectively unreasonable for Franck-
ling not to offer Poteat’s written police statement into
evidence during the petitioner’s criminal trial. The
respondent further argues that Franckling’s decision
to cross-examine Poteat on the inconsistencies between
her written police statement and trial testimony, with-
out offering her statement into evidence, is the type of
strategic decision that is virtually unchallengeable in a
habeas action. We agree with the respondent.
We reiterate that “[j]udicial scrutiny of counsel’s per-
formance 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
unsuccessful, to conclude that a particular act or omis-
sion 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
7The petitioner also argues that this court should not be persuaded
by Franckling’s testimony that he was concerned that the evidence of
the beer can tended to corroborate Poteat’s statement. The petitioner
maintains that “[i]t is dubious to attribute this testimony as the actual
strategic reason for Franckling’s decision, given that he only gener-
ally agreed with the respondent’s premise [when questioned about the
beer can by the respondent’s counsel during cross-examination at the
habeas trial].” Moreover, the petitioner relies on the fact that, during
the state’s redirect examination of DeMatteo at the criminal trial, the
prosecutor elicited from DeMatteo that the police had found a can of
Steel Reserve beer next to the victim and that Poteat had included in
her statement that she had observed the victim drinking from a can
of beer. The petitioner argues that Franckling’s failure to object to
this testimony, which he describes as “breathtaking incompetence,”
undermines this strategic reason for failing to introduce the statement
under Whelan.

Brown v. Commissioner of Correction
conduct, and to evaluate the conduct from counsel’s per-
spective at the time. Because of the difficulties inherent
in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within 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. . . . [C]ounsel is strongly
presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable
professional judgment.” (Internal quotation marks omit-
ted.) Franko v. Commissioner of Correction, 165 Conn.
App. 505, 512, 139 A.3d 798 (2016); see also Jordan v.
Commissioner of Correction, 341 Conn. 279, 290, 267
A.3d 120 (2021) (regardless of whether trial counsel
articulates strategic reasons for challenged actions, “the
court must contemplate the possible strategic reasons
that might have supported the challenged action and
then consider whether those reasons were objectively
reasonable” (emphasis added)).
At the habeas trial, Franckling articulated several
reasons why he chose not to offer Poteat’s written state-
ment into evidence under Whelan. The petitioner did not
present any evidence demonstrating that Franckling’s
decision not to offer the statement under Whelan was
objectively unreasonable. We conclude that it was rea-
sonable for Franckling not to offer Poteat’s statement
substantively because he did not want the jury exposed
to the portions therein that corroborated the state’s case,
thereby undermining his defense strategy of challenging
Poteat’s credibility. The petitioner erroneously treats
Franckling’s desire to avoid drawing the jury’s atten-
tion to Poteat’s reference to the victim drinking beer
immediately prior to the shooting as Franckling’s only
rationale for not offering the statement. However, dur-
ing his direct examination at the habeas trial, Franckling
testified that there were about two paragraphs of Poteat’s
statement that he did not want before the jury—not
only the single reference in the statement to the victim’s
being in possession of a beer can immediately before

Brown v. Commissioner of Correction
he was shot. Because Franckling was concerned about
the potentially harmful portions of Poteat’s statement
being substantively admitted into evidence, he made
an objectively reasonable strategic decision not to offer
the statement under Whelan. In light of Franckling’s
reservations about placing parts of the prior statement
before the jury, it was not unreasonable for Franckling
to decide that it was advantageous to the defense to
rely on his cross-examination of Poteat to highlight the
inconsistencies between her trial testimony and her prior
statement. In fact, the petitioner has failed to demon-
strate that there were any inconsistencies that were not
effectively brought to the attention of the jury during
the examination of Poteat by the state and the defense.
Accordingly, although the habeas court erroneously
determined that there was no legal basis on which to
admit Poteat’s police statement into evidence, we are
persuaded that it correctly concluded that the petitioner
failed to satisfy his burden of proving that Franckling
had rendered constitutionally deficient performance by
not offering Poteat’s statement into evidence pursuant
to Whelan.
In light of our conclusion that the petitioner has failed
to demonstrate that Franckling performed deficiently, we
need not reach the merits of his claim that he was preju-
diced by Franckling’s representation. “This court has
repeatedly explained that a court may resolve ineffective
assistance of counsel claims on either the performance
prong or the prejudice prong. See, e.g., Soto v. Com-
missioner of Correction, [215 Conn. App. 113, 120, 281
A.3d 1189 (2022)]. . . . [See also] Quint v. Commissioner
of Correction, 211 Conn. App. 27, 36 n.7, 271 A.3d 681
([i]n light of our determination that the petitioner failed
to establish that [counsel’s] performance was deficient,
we need not address the prejudice prong), cert. denied,
343 Conn. 922, 275 A.3d 211 (2022); Grover v. Com-
missioner of Correction, 183 Conn. App. 804, 818 n.7,
194 A.3d 316 ([w]hen a petitioner has failed to meet the
performance prong of Strickland, we need not reach the
issue of prejudice . . .), cert. denied, 330 Conn. 933, 194

Brown v. Commissioner of Correction
A.3d 1196 (2018).” (Internal quotation marks omitted.)
Walcott v. Commissioner of Correction, 238 Conn. App.
545, 569 n.11, . . . A.3d . . . (2026).
II
Next, the petitioner claims that the habeas court erred
in concluding that his criminal trial counsel did not
render ineffective assistance by failing to demonstrate
the impossibility of the accuracy of certain of Poteat’s
trial testimony. We are not persuaded.
At the petitioner’s criminal trial, there was evidence
that, in June 2014, Vine Street was under construction.
There were several cut-throughs between Vine Street and
Magnolia Street. Dzierzgowski identified cut-throughs
“behind 714 Albany,” “44 Vine Street,” and “40 [Vine
Street], which cuts from Vine Street heading eastbound
to . . . about 125 Magnolia Street.” Detective Jason Lee
of the Hartford Police Department testified that the
cut-through at issue in this case was “a shortcut from
Magnolia Street, which is the street east of Vine Street
. . . through yards, just so that you don’t have to walk
the whole block. So, people . . . cut through a backyard
where there’s a gap in the fence sometimes or no fence at
all and then as a shortcut to Vine Street, but it’s referred
to as a cut-through.” Despite the ongoing construction at
the time of the shooting, an individual could still use the
cut-through to walk from Magnolia Street to Vine Street,
which would take approximately twenty seconds. Like
Dzierzgowski, DeMatteo testified that there was a cut-
through at 44 Vine Street. There was evidence that the
victim’s body was discovered nearby at 26 Vine Street.
We have already set forth Poteat’s testimony about
how the shooting occurred. We reiterate Poteat’s tes-
timony that, when Jojo’s car was parked near Magno-
lia Street, she observed the petitioner walk through a
cut-through between Magnolia Street and Vine Street.
Poteat also testified that, after Jojo drove to Vine Street,

Brown v. Commissioner of Correction
she got out of the car and observed the petitioner, while
standing in a cut-through, shoot the victim.
The petitioner argues that Franckling could have used
evidence presented at the criminal trial to demonstrate
that Poteat’s testimony—that she observed the peti-
tioner shoot the victim—could not possibly be accurate.
Specifically, he relies on DeMatteo’s testimony that, due
to the construction in the area at the time, the closest
cut-through to the scene of the shooting would have been
at 44 Vine Street. The petitioner argues that Franckling
also could have relied on photographs that, at the habeas
trial, had been admitted into evidence by agreement of
the parties as exhibits 9, 10 and 11. In the petitioner’s
view, these photographs “demonstrate the available evi-
dence that Franckling should have used to demonstrate
to the jury that Poteat’s testimony was impossible.”
The petitioner argues that DeMatteo’s testimony in
conjunction with the photographic evidence submitted
at the habeas trial clearly demonstrated that Poteat’s
testimony that she had observed the petitioner shoot
the victim was not possibly accurate.
The petitioner correctly notes that Franckling, during
his cross-examination of Poteat at the criminal trial, had
utilized a map to suggest to the jury that, due to a bend
on Magnolia Street, Poteat would not have been able to
see the petitioner enter the cut-through on Magnolia
Street from her claimed vantage point. The petitioner
contends, however, that Franckling, did not suggest to
the jury, through cross-examination or otherwise, that
the location of the cut-through on Vine Street in rela-
tion to where the victim was found by the police demon-
strates that Poteat’s testimony that she witnessed the
shooting itself was not possibly accurate. The petitioner
claims that there is no imaginable strategic purpose for
Franckling not utilizing the location of the cut-through
to challenge Poteat’s testimony.
Whether Franckling performed deficiently is measured
by the standard of objective reasonableness. “Regarding
ineffectiveness claims relating to the failure to [impeach]

Brown v. Commissioner of Correction
witnesses, [w]hen faced with the question of whether
counsel performed deficiently by failing to [impeach] a
certain witness, the question is whether this omission
was objectively reasonable because there was a strategic
reason not to [impeach] such . . . testimony . . . [and]
whether reasonable counsel could have concluded that
the benefit of [impeaching the witness’ testimony] . . .
was outweighed by any damaging effect it might have.
. . . Moreover, our habeas corpus jurisprudence reveals
several scenarios in which courts will not second-guess
defense counsel’s decision not to [impeach] certain wit-
nesses . . . such as when . . . counsel learns the substance
of the witness’ testimony and determines that [impeach-
ing] that witness is unnecessary or potentially harmful
to the case . . . .” (Citation omitted; internal quotation
marks omitted.) Jordan v. Commissioner of Correction,
supra, 341 Conn. 304.
At the outset of the habeas trial, the petitioner’s attor-
ney stated, in the absence of objection by the respondent,
that exhibits 9, 10 and 11 were “coming in [to evidence]
as full by agreement of the parties.”8 During the habeas
trial, however, the petitioner did not elicit any testimony
about or utilize these exhibits, let alone demonstrate how
they could have been useful to Franckling in his examina-
tion of Poteat. It is thus unclear how these photographic
exhibits support the petitioner’s claim that Franckling
performed deficiently.
In discussing his trial strategy, Franckling testified at
the habeas trial that self-defense was not a viable defense
in this case, nor was this a case of mistaken identity.
Franckling testified that he believed the best strategy
was to challenge the state’s evidence, in part, by bring-
ing to the jury’s attention the inconsistencies between
Poteat’s trial testimony and her police statement. The
evidence reflects that Franckling questioned Poteat about
her ability to see the petitioner enter the cut-through
on Magnolia Street, particularly in light of a bend in
8The exhibit list in the court file refers to these exhibits as photographs
of Vine Street.

Brown v. Commissioner of Correction
Magnolia Street and the presence of houses and trees in
the area. Nevertheless, the petitioner’s counsel asked
Franckling why he had failed to question Poteat “about
her inability to see down Magnolia Street the way that
she claimed she did in her statement . . . .” (Emphasis
added.) The petitioner’s counsel then asked Franckling:
“And why didn’t you ask . . . Poteat any questions regard-
ing the ongoing construction in the area that night?”
Franckling replied, “I don’t know why I would. I mean,
there’s blue construction fencing that’s visible. But the
testimony was that you could get from Magnolia [Street]
to Vine [Street] through the cut.” The petitioner’s coun-
sel, however, did not explicitly ask Franckling to explain
his reasons for not directly questioning Poteat about her
ability to observe the cut-through on Vine Street.
The respondent’s counsel asked Franckling whether the
jury had before it photographs of the crime scene, includ-
ing photographs that depicted the construction fencing.
Franckling stated that such photographs were part of the
evidence before the jury. Moreover, the evidence before
the habeas court reflects that, at the petitioner’s crimi-
nal trial, Dzierzgowski, referring to maps that depicted
the area of the shooting on June 11, 2014, testified with
respect to the location at which the victim was found by
the police and the location of the various cut-throughs
between Magnolia Street and Vine Street. Similarly,
DeMatteo, referring to an aerial photograph, noted the
location of 26 Vine Street, the location at which Poteat
claimed the victim was shot, and he noted the location of
44 Vine Street, the location of the nearest cut-through
from Magnolia Street.
Franckling articulated a reasonable trial strategy.
Moreover, we recognize that, although “trial counsel’s
testimony may identify specific strategic or tactical
reasons counsel had for the challenged action . . . the
habeas court is not confined to consider only those rea-
sons identified. Rather, in all circumstances, the strong
presumption of Strickland that counsel exercised reason-
able professional judgment requires the habeas court to

Brown v. Commissioner of Correction
affirmatively entertain the range of possible reasons that
trial counsel might have had for the challenged action.”
(Emphasis added; internal quotation marks omitted.)
Jordan v. Commissioner of Correction, supra, 341 Conn.
290. On the basis of the evidence presented at the habeas
trial, we are persuaded that Franckling acted within the
wide range of reasonable professional assistance by (1)
concluding that the jury had before it ample evidence
from which to determine whether Poteat was able to
observe the petitioner at the time of the shooting, and
(2) choosing to focus his impeachment efforts on the
inconsistencies between Poteat’s trial testimony and her
police statement. This is particularly so because there
was evidence of the location of the victim on Vine Street,
the nearest cut-through on Vine Street, the existence of
construction fencing on Vine Street at the time of the
shooting, and Poteat’s claimed vantage point on Vine
Street when she observed the petitioner. DeMatteo’s trial
testimony that there was construction on Vine Street at
the time of the shooting, in the absence of other relevant
evidence that suggests that the construction rendered
Poteat’s testimony not possibly accurate, does not lead
us to conclude that it was objectively unreasonable for
Franckling not to take any additional steps to impeach
Poteat’s testimony about the shooting. Franckling’s trial
strategy was reflected in his cross-examinations of Poteat
and DeMatteo, and in his strategy he prioritized the fact
that Poteat had told DeMatteo that she turned away from
the petitioner before the shooting occurred and, thus, did
not witness the shooting. We cannot second-guess this
strategy, for it was reasonable for Franckling to impeach
Poteat by focusing on the compelling evidence that she
did not witness the shooting rather than suggesting to the
jury that her trial testimony was not possibly accurate.
Thus, we agree with the habeas court’s assessment that
Poteat was adequately impeached even in the absence
of additional efforts by Franckling to further call into
question her ability to see the cut-through on Vine Street.
Because we conclude that the petitioner failed in
his burden of demonstrating deficient performance in

Brown v. Commissioner of Correction
connection with this claim, we need not consider the
merits of his claim that he was prejudiced by Franck-
ling’s performance. See, e.g., Walcott v. Commissioner
of Correction, supra, 238 Conn. App. 569 n.11.
The judgment is affirmed.
In this opinion the other judges concurred.