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        LESLIE RUSSELL v. COMMISSIONER
                OF CORRECTION
                   (AC 34551)
                  Lavine, Bear and West, Js.*
        Argued January 16—officially released May 6, 2014

   (Appeal from Superior Court, judicial district of
               Tolland, T. Santos, J.)
  Gwendolyn S. Bishop, assigned counsel, for the
appellant (petitioner).
   James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Stephen J. Sedensky III, state’s
attorney, and Warren Murray, supervisory assistant
state’s attorney, for the appellee (respondent).
                          Opinion

   WEST, J. The petitioner, Leslie Russell, appeals from
the judgment of the habeas court denying his petition
for a writ of habeas corpus. In this appeal, the petitioner
claims that the court improperly denied his claim of
ineffective assistance of counsel on the basis of his trial
counsel’s failure to object to the victim’s lay testimony
on an ultimate issue in the case. The petitioner specifi-
cally argues that his trial counsel rendered ineffective
assistance by not objecting to the victim’s testimony
identifying the petitioner as the individual depicted in
a surveillance videotape that was recorded inside the
victim’s home. We are not persuaded, and therefore,
affirm the judgment of the habeas court.
   The following facts and procedural history, as set
forth in the petitioner’s direct appeal; State v. Russell,
101 Conn. App. 298, 302, 922 A.2d 191, cert. denied, 284
Conn. 910, 931 A.2d 934 (2007); are relevant to our
review of this claim. ‘‘The [petitioner] and the victim
. . . met some time in 2001 and dated on again, off
again until January, 2003, when the victim finally broke
off the relationship.’’ Id.
  In 2003, the victim experienced two incidents involv-
ing the petitioner, which led the victim to believe that
the petitioner had access to information regarding her
schedule. Consequently, ‘‘she purchased a ‘spy camera’
disguised as a flower pot, which she installed on top
of her refrigerator. . . . The camera faced a clock and
the victim’s wall calendar, on which she recorded many
of her and her children’s planned appointments and
events. On the evening of Friday, January 9, 2004, the
victim went out to dinner with some friends. Her chil-
dren were with their father, as was usual on Fridays,
a fact of which the [petitioner] was aware.
   ‘‘When the victim returned home at about 11 p.m.,
she played the videotaped footage that her camera had
recorded while she was out. The tape showed that
between 10 and 10:40 p.m., an individual, whom the
victim recognized as the [petitioner], had moved
throughout the kitchen and, apparently, elsewhere
within the house. . . . While in the kitchen, the individ-
ual repeatedly looked through the victim’s calendar, and
he removed her telephone from the wall and accessed
information in its caller identification unit. He opened
a set of louvered doors behind which the victim kept
a bag containing discarded mail for recycling. The indi-
vidual looked through the bag, removed some of the
papers from within and tucked them into his waistband
near the small of his back. Although $106 in cash was
secured to the front of the victim’s refrigerator, the
individual did not take it. . . . When the police arrived
. . . [n]o intruder was found, and there were no signs
of forced entry.
  ‘‘On the basis of information supplied by the victim,
a search warrant was obtained for the [petitioner’s]
vehicle and residence. Upon executing that warrant,
the police seized several flashlights, a black knit cap
and a gray hooded sweat jacket with rubber gloves in
the pocket that was hanging on the [petitioner’s] bed-
post. . . . When asked by police whether he had a key
to the victim’s house, the [petitioner] immediately
retrieved from a ring a key that matched a key the
victim had provided.
   ‘‘Thereafter, the [petitioner] was charged with one
count of stalking in the third degree, one count of crimi-
nal violation of a protective order and one count of
burglary in the second degree.’’ (Footnotes omitted.)
Id., 305–307. The matter was consolidated for trial with
another incident involving the petitioner and the victim
that resulted in charges of one count of violating a
protective order and one count of stalking in the third
degree. A jury found the petitioner guilty of two counts
of violating a protective order in violation of General
Statutes § 53a-223, two counts of stalking in the third
degree in violation of General Statutes § 53a-181e (a),
and one count of burglary in the second degree in viola-
tion of General Statutes § 53a-102 (a) (1). On direct
appeal, this court reversed the petitioner’s conviction
of burglary in the second degree and one count of stalk-
ing in the third degree, and remanded the matter to the
trial court with direction to render judgment of not
guilty as to those charges. The judgment was affirmed
in all other respects. Id., 334–35.
   Subsequently, the petitioner filed an amended peti-
tion for a writ of habeas corpus, alleging, inter alia,
ineffective assistance of his trial counsel, Richard
Arconti.1 Following a one day trial, the habeas court
issued a memorandum of decision denying the amended
petition for a writ of habeas corpus. The court deter-
mined that Arconti did not render deficient perfor-
mance because, following a Franks hearing regarding
the admissibility of the videotape; see Franks v. Dela-
ware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667
(1978); he employed a reasonable trial strategy by not
objecting to the victim’s testimony identifying the peti-
tioner as the individual depicted in the footage.2 The
habeas court additionally determined that the petitioner
failed to produce any evidence demonstrating a reason-
able probability that the outcome of the case would
have been different absent Arconti’s alleged deficient
performance. Thereafter, the habeas court granted the
petition for certification to appeal.
  On appeal, the petitioner claims that the habeas court
improperly determined that Arconti’s failure to object to
the victim’s testimony identifying him as the individual
depicted in the surveillance videotape did not constitute
ineffective assistance of counsel. The petitioner con-
tends that Arconti should have objected to this identifi-
cation as an impermissible lay opinion on an ultimate
issue in the case, pursuant to § 7-3 (a) of the Connecticut
Code of Evidence, and that his failure to do so resulted
in prejudice to the petitioner. We disagree.
   ‘‘When reviewing the decision of a habeas court, the
facts found by the habeas court may not be disturbed
unless the findings were clearly erroneous. . . . The
issue, however, of [w]hether the representation a defen-
dant received at trial was constitutionally inadequate
is a mixed question of law and fact. . . . As such, that
question requires plenary review by this court unfet-
tered by the clearly erroneous standard. . . . To suc-
ceed on a claim of ineffective assistance of counsel,
a habeas petitioner must satisfy the two-pronged test
articulated in Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland
requires that a petitioner satisfy both a performance
prong and a prejudice prong.
   ‘‘To satisfy the performance prong, a claimant must
demonstrate that counsel made errors so serious that
counsel was not functioning as the counsel guaranteed
. . . by the [s]ixth [a]mendment [to the United States
constitution]. . . . To satisfy the prejudice 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.
. . . The claim will succeed only if both prongs are
satisfied.’’ (Internal quotation marks omitted.) Moye v.
Commissioner of Correction, 147 Conn. App. 325, 328–
29, 81 A.3d 1222 (2013), cert. granted on other grounds,
311 Conn. 911, 84 A.3d 880 (2014).
   We conclude that the habeas court’s determination
that Arconti rendered effective assistance of counsel
to the petitioner was not improper. We resolve this
claim on the basis of the prejudice prong of the Strick-
land test. See State v. Lameirao, 135 Conn. App. 302,
327, 42 A.3d 414 (‘‘[i]n its analysis, a reviewing court
may look to the performance prong or to the prejudice
prong, and the petitioner’s failure to prove either is
fatal to a [claim of ineffective assistance of counsel]’’
[internal quotation marks omitted]), cert. denied, 305
Conn. 915, 46 A.3d 171 (2012).
   The petitioner failed to meet his burden of demonstra-
ting that, absent Arconti’s alleged deficient perfor-
mance, there was a reasonable probability that he
would not have been convicted of the charges against
him. In reaching this conclusion, we are persuaded by
this court’s analysis with respect to the petitioner’s
sufficiency of the evidence claim raised on direct
appeal. State v. Russell, supra, 101 Conn. App. 332–34;
see also Diaz v. Commissioner of Correction, 125 Conn.
App. 57, 67, 6 A.3d 213 (2010) (‘‘[t]his court’s finding
on direct appeal that the trial court’s statement was
harmless error . . . while not dispositive, is persua-
sive’’ in resolving petitioner’s habeas claim of ineffec-
tive assistance of counsel [citation omitted]), cert.
denied, 299 Conn. 926, 11 A.3d 150 (2011). On direct
appeal, the petitioner claimed that there was insuffi-
cient evidence proving that he was the person depicted
in the videotape. State v. Russell, supra, 332.
   This court rejected the sufficiency claim, citing an
abundance of evidence, aside from the victim’s testi-
mony, identifying the petitioner as the individual
depicted in the surveillance video: ‘‘Apart from the vic-
tim’s testimony, the jury viewed the videotape and was
able to assess for itself whether the individual depicted
therein, on the basis of all of his physical characteristics,
was the [petitioner]. Moreover, substantial circumstan-
tial evidence supported the jury’s finding as to identity.
The individual entered the victim’s home on a Friday
night, a time at which the [petitioner] was aware that
the victim’s children would be with their father. He
seemed familiar with his surroundings, initially check-
ing the room where the victim typically kept a large
dog crated. The police determined that there were no
signs of a forced entry to the victim’s residence; when
they thereafter executed a search warrant at the [peti-
tioner’s] residence, he immediately surrendered a key
to the victim’s residence that she denied ever giving
him. That search warrant also uncovered items of cloth-
ing that matched those worn by the person on the video-
tape. Those items were not in a dresser or closet but
out in the open in the [petitioner’s] bedroom.
  ‘‘Furthermore, the person on the videotape did not
behave as would a garden variety prowler but, rather, as
someone interested in obtaining personal information
about the victim. He ignored a substantial amount of
cash attached to the victim’s refrigerator and neglected
to abscond with any valuables. Instead, the individual
focused his attention on the victim’s calendar, her caller
identification unit and her discarded mail. In the
absence of any viable alternative suspect, it was not
unreasonable or illogical for the jurors to infer that
the [petitioner], who admittedly had parked near the
victim’s residence in the dark, multiple times per week
for the better part of two years, was the individual who
entered the victim’s residence to forage through her
personal belongings.’’ Id., 332–33.
   In light of this court’s holding on direct appeal that
there was ample evidence identifying the petitioner as
the intruder depicted in the videotape, it would be a
significant hurdle for the petitioner to convince us that
there is a reasonable probability that the outcome
would have been different if Arconti had objected to
the victim’s testimony. See Diaz v. Commissioner of
Correction, supra, 125 Conn. App. 67. The record
reflects that the petitioner did not present any evidence
to the habeas court demonstrating a reasonable proba-
bility that the jury would not have found him guilty
absent Arconti’s alleged deficient performance.
  The habeas court quoted the previously mentioned
evidence in support of its conclusion that the petitioner
failed to demonstrate prejudice pursuant to Strickland.
We agree with the habeas court’s determination. Signifi-
cantly, the court stated that ‘‘the jury itself saw the
videotape’’ and therefore was able to assess indepen-
dently whether the petitioner was depicted therein.
(Emphasis in original.) The videotape showed an indi-
vidual who gained entry into the victim’s home without
force, was familiar with his surroundings, and demon-
strated an acute interest in accessing personal informa-
tion about the victim. On the basis of this evidence,
the jury reasonably could have concluded, without the
victim’s testimony, that the petitioner was the intruder.
Because the petitioner failed to produce any evidence
demonstrating a reasonable probability that he would
not have been convicted absent Arconti’s alleged defi-
cient performance, we conclude that the habeas court
did not improperly determine that the petitioner failed
to demonstrate prejudice pursuant to Strickland.3
   The judgment is affirmed.
   In this opinion the other judges concurred.
   * The listing of judges reflects their seniority status on this court as of
the date of oral argument.
   1
     The petitioner additionally claimed ineffective assistance of appellate
counsel, and that his right to due process was violated by prosecutorial
impropriety. Those claims are not presently before this court.
   2
     Arconti testified that he did not object to the victim’s testimony because,
pursuant to the court’s determination that the videotape itself was admissible
on the basis of a Franks hearing; see State v. Ferguson, 260 Conn. 339,
363–64, 796 A.2d 1118 (2002) (describing procedure for Franks hearing); he
believed that the victim’s testimony with respect to the videotape would be
admissible as well. Arconti further testified that he did not object to the
victim’s testimony identifying the petitioner because he believed that it
served to impeach her credibility. Namely, the victim testified that she
recognized the individual in the videotape as the petitioner by his eyes.
Arconti believed that this testimony impeached the victim’s credibility
because the individual’s eyes were obscured by a scarf and hat. The habeas
court determined that Arconti employed a reasonable trial strategy.
   Although we do not reach the performance prong of Strickland, we note
that since the time that this case was litigated in 2004, the legal landscape
has changed with respect to eyewitness identification where the victim
knows the defendant prior to identifying him or her as the perpetrator. See
State v. Wilson, 308 Conn. 412, 453 n.18, 64 A.3d 91 (2013), quoting State
v. Guilbert, 306 Conn. 218, 259–60, 49 A.3d 705 (2012); State v. Guilbert,
306 Conn. 218, 259–60, 49 A.3d 705 (2012) (‘‘although there are exceptions,
identification of a person who is well-known to the eyewitness generally does
not give rise to the same risk of misidentification as does the identification of
a person who is not well-known to the eyewitness’’); State v. Williams, 146
Conn. App. 114, 139, 75 A.3d 668 (trial court did not abuse discretion when
it precluded expert testimony regarding eyewitness identification where
victim knew defendant), cert. granted, 310 Conn. 959, 82 A.3d 626 (2013).
In this case, the victim was well-acquainted with the petitioner.
   3
     In this appeal, the petitioner additionally claims that the habeas court
improperly determined ‘‘that the issue of prejudice concerning the victim’s
opinion testimony with respect to the videotape evidence was res judicata
relying on [this court’s] earlier determination [in State v. Russell, supra, 101
Conn. App. 332–34] that there was sufficient evidence distinct from the
victim’s testimony about the videotape to support the conviction in the
context of the petitioner’s appellate claim of insufficiency of the evidence
to support the verdict.’’ In its memorandum of decision, the habeas court
stated that ‘‘distinct from any application of the two-pronged Strickland
test, the Appellate Court has already determined, based on its review of the
record, that there was sufficient evidence distinct from the victim’s testi-
mony to support the conviction. That determination is res judicata and
binding on this court.’’ (Emphasis altered.)
   The habeas court’s decision makes clear that its discussion of res judicata
is wholly distinct from its analysis of the petitioner’s claim under the Strick-
land test. Because our conclusion is predicated entirely on the habeas
court’s analysis pursuant to the prejudice prong of Strickland, we need
not assess the propriety of its decision as it pertains to the doctrine of
res judicata.
