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      TOMMIE MARTIN v. COMMISSIONER OF
                CORRECTION
                 (AC 33223)
                   Beach, Sheldon and West, Js.
    Argued October 30, 2014—officially released January 27, 2015

 (Appeal from the Superior Court, judicial district of
               Tolland, T. Santos, J.)
  Tommie Martin, self-represented, the appellant
(petitioner).
   Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Stephen J. Sedensky III, state’s
attorney, and Angela R. Macchiarulo, senior assistant
state’s attorney, for the appellee (respondent).
                          Opinion

   BEACH, J. The petitioner, Tommie Martin, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus. The petitioner
claims on appeal that the habeas court erred in finding
that the his trial counsel did not render ineffective assis-
tance by: (1) not cross-examining a witness about her
prior convictions and money received while in the wit-
ness protection program; (2) not requesting a jury
instruction regarding accomplice testimony; and (3)
calling at trial a defense witness who provided an incul-
patory identification.1 We disagree and affirm the judg-
ment of the habeas court.
   The facts regarding the petitioner’s underlying con-
viction, as recited by this court on direct appeal, are
as follows: ‘‘On January 18, 1999, the [petitioner] was
with an acquaintance, Nicole Harris, and his cousin,
Carlton Martin. With Harris driving, the group stopped
at a gasoline station near Gallo’s Hi–Way Package Store
(Gallo’s) in Danbury. After purchasing gasoline, the
group exited the station and parked in front of Gallo’s.
The [petitioner] and Carlton Martin went into Gallo’s,
while Harris stayed in the parked car. At approximately
the same time, two customers also entered Gallo’s. The
[petitioner] and Carlton Martin returned to the car after
a few moments and rejoined Harris. After circling the
block a few times, the [petitioner] and Carlton Martin
noticed that the attendant, Robert Gallo, was alone in
the store. The [petitioner] told Harris to ‘slow down’
and that Gallo was ‘in there by himself.’ Carlton Martin
told the [petitioner], ‘I have heat on me,’ and the two
men went into the store and attempted to rob Gallo.
The [petitioner] and Carlton Martin were unable to gain
access to the cash register but took a couple of bottles
of liquor from the store. Before leaving the store Carlton
Martin shot Gallo several times in the head, thereby
causing his death.’’ State v. Martin, 100 Conn. App. 742,
743–44, 919 A.2d 508, cert. denied, 282 Conn. 928, 926
A.2d 667 (2007).
   The petitioner was charged with felony murder in
violation of General Statutes § 53a-54c, conspiracy to
commit robbery in the first degree in violation of Gen-
eral Statutes §§ 53a-48 and 53a-134 (a) (2), and robbery
in the first degree in violation of General Statutes § 53a-
134 (a) (2). The petitioner was found guilty as charged
by a jury in 2000 (first trial). That conviction was
reversed by this court and remanded for a new trial.
State v. Martin, 77 Conn. App. 818, 820, 827 A.2d 1
(2003).2 On remand, the petitioner was found guilty as
charged in a second jury trial in 2004 (second trial) and
received a total effective sentence of seventy-five years
incarceration. State v. Martin, supra, 100 Conn. App.
744. The petitioner’s 2004 conviction was affirmed on
appeal. Id., 743.
  The petitioner filed a second amended petition for a
writ of habeas corpus, and the habeas trial took place
on June 22, 2010.3 The habeas court denied the petition
but granted the petitioner certification to appeal. This
appeal followed.
  ‘‘Our review of the judgment of the habeas court is
carefully circumscribed. The underlying historical facts
found by the habeas court may not be disturbed unless
the findings were clearly erroneous. . . . Whether the
representation a [petitioner] received . . . was consti-
tutionally inadequate is a mixed question of law and
fact. . . . As such, that question requires plenary
review by this court unfettered by the clearly erroneous
standard.’’ (Internal quotation marks omitted.) Vivo v.
Commissioner of Correction, 90 Conn. App. 167, 173,
876 A.2d 1216, cert. denied, 275 Conn. 925, 883 A.2d
1253 (2005).
   ‘‘To succeed on a claim of ineffective assistance of
counsel, a habeas petitioner must satisfy the two-
pronged test articulated in Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Strickland requires that a petitioner satisfy both
a performance prong and a prejudice prong.’’ (Internal
quotation marks omitted.) Santaniello v. Commis-
sioner of Correction, 152 Conn. App. 583, 587, 99 A.3d
1195, cert. denied, 314 Conn. 937, 102 A.3d 1115 (2014).
‘‘The first component of the Strickland test, generally
referred to as the performance prong, requires that the
petitioner show that counsel’s representation fell below
an objective standard of reasonableness. . . . In
Strickland, the United States Supreme Court held that
[j]udicial scrutiny of counsel’s performance must be
highly deferential. It is all too tempting for a [petitioner]
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 wide range of reasonable professional assistance;
that is, the [petitioner] must overcome the presumption
that, under the circumstances, the challenged action
might be considered sound trial strategy. . . . [C]oun-
sel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exer-
cise of reasonable professional judgment. . . .
  ‘‘Even if a petitioner shows that counsel’s perfor-
mance was deficient, the second prong, or prejudice
prong, requires that the petitioner show that there is a
reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different.’’ (Internal quotation marks omitted.)
Martinez v. Commissioner of Correction, 147 Conn.
App. 307, 313–14, 82 A.3d 666 (2013), cert. denied, 311
Conn. 917, 85 A.3d 652 (2014).
                              I
   The petitioner first claims that the habeas court erred
in determining that his trial counsel was not ineffective
for failing to impeach or discredit Harris, a state wit-
ness, by confronting her with her criminal record and
the fact that she received money while in the witness
protection program. We disagree.
   During the petitioner’s first trial, Harris was in protec-
tive custody. At the habeas trial, Harris testified that
she had received approximately $1373 for food and
incidental expenses during that time. She also testified
that she had been convicted of larceny in the sixth
degree in March, 1997, and of larceny in the fifth degree
in April, 1997. The petitioner argues that his trial counsel
should have questioned her regarding both the pay-
ments and her criminal record. At the habeas trial, the
petitioner’s trial counsel testified that he knew Harris
had been in protective custody and had received money,
but he thought that receipts showing that she received
funds through the witness protection program had been
introduced at trial and ‘‘spoke’’ for themselves. He also
testified at the habeas trial that testimony at the second
trial reflected that Harris had been staying in a hotel,
paid for by the state, during her time in the witness
protection program. Trial counsel also testified that he
did not think he could have impeached Harris with
one of the convictions. The habeas court found neither
deficient performance nor prejudice in trial counsel’s
cross-examination of Harris.
  Our review of the record indicates that the petition-
er’s trial counsel cross-examined Harris about the fact
that she had been in protective custody and that she
had signed an immunity agreement with the state to
testify in exchange for the state’s not filing criminal
charges against her. Trial counsel also introduced into
evidence the immunity agreement with the state that
Harris had signed. This evidence was sufficient to alert
the jury to potential issues regarding Harris’ credibility.
The habeas court reasonably concluded that evidence
of Harris’ relatively minor convictions seven years
before her testimony at the second trial realistically
had far less bearing on her credibility than the topics
chosen by trial counsel for his cross-examination. We
conclude, on the facts reasonably found by the habeas
court, that trial counsel’s cross-examination did not fall
below an objective standard of reasonableness and,
therefore, his performance was not deficient. We do
not reach the prejudice prong. See Small v. Commis-
sioner of Correction, 286 Conn. 707, 712–13, 946 A.2d
1203 (Strickland test satisfied only if both prongs
found), cert. denied sub nom. Small v. Lantz, 555 U.S.
975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008).
                            II
  The petitioner next claims that his trial counsel was
ineffective for failing to request a jury instruction
regarding accomplice testimony, in reference to the
testimony of Harris. We disagree.
   Harris drove the petitioner and Carlton Martin to and
from Gallo’s. Harris accepted the murder weapon from
Carlton Martin and hid it at her parents’ house. The
habeas court credited Harris’ testimony at the habeas
trial that she did not know about the crimes until after
they were committed. Harris signed an immunity
agreement and was not charged with any crime in rela-
tion to her involvement in exchange for her testimony.
The trial court included in its instructions to the jury
a general instruction to consider carefully the credibility
of all the witnesses’ testimony.4 Trial counsel did not
request that the court instruct the jury specifically that
Harris was an accomplice and that the jury should very
carefully scrutinize her testimony and her motives. Trial
counsel testified at the habeas trial that the petitioner
had denied any involvement in the crime, and, therefore,
he did not consider Harris to be an accomplice.5 The
habeas court found that trial counsel’s decision not to
ask for the accomplice testimony jury instruction was
not indicative of deficient performance and did not
prejudice the petitioner.
   ‘‘Generally, a defendant is not entitled to an instruc-
tion singling out any of the state’s witnesses and high-
lighting his or her possible motive for testifying falsely.
. . . An exception to this rule, however, involves the
credibility of accomplice witnesses. . . . [When] it is
warranted by the evidence, it is the court’s duty to
caution the jury to scrutinize carefully the testimony if
the jury finds that the witness intentionally assisted in
the commission, or if [he or she] assisted or aided or
abetted in the commission, of the offense with which
the defendant is charged. . . . [I]n order for one to be
an accomplice there must be mutuality of intent and
community of unlawful purpose. . . .
   ‘‘With respect to the credibility of accomplices, we
have observed that the inherent unreliability of accom-
plice testimony ordinarily requires a particular caution
to the jury [because] . . . [t]he conditions of character
and interest most inconsistent with a credible witness,
very frequently, but not always, attend an accomplice
when he testifies. When those conditions exist, it is
the duty of the [court] to specially caution the jury.’’
(Internal quotation marks omitted.) State v. Bree, 136
Conn. App. 1, 18, 43 A.3d 793, cert. denied, 305 Conn.
926, 47 A.3d 885 (2012).
  Turning first to the performance prong, we note that
trial counsel had a strategic reason for not requesting an
accomplice testimony instruction: he thought labeling
Harris an accomplice might appear to be inconsistent
with the petitioner’s testimony from the first trial, intro-
duced into evidence in the second trial, that he was not
present during the robbery and murder. ‘‘[T]here is a
strong presumption that the trial strategy employed by
a criminal defendant’s counsel is reasonable and is a
result of the exercise of professional judgment . . . .
It is well established that [a] reviewing court must view
counsel’s conduct with a strong presumption that it
falls within the wide range of reasonable professional
assistance and that a tactic that appears ineffective in
hindsight may have been sound trial strategy at the
time.’’ (Internal quotation marks omitted.) Ramey v.
Commissioner of Correction, 150 Conn. App. 205, 213–
14, 90 A.3d 344, cert. denied, 314 Conn. 902, 99 A.3d
1168 (2014). Although the decision may not have been
optimal, at least there was a rational basis for it. The
habeas court properly determined that counsel’s perfor-
mance in failing to request an accomplice testimony
instruction was not deficient.6
  The prejudice prong of Strickland also was not met.
Harris testified at the second trial that she was driving
the car, she hid the gun, and was in protective custody.
The entire text of the immunity agreement she signed
with the state’s attorney was also read into the record.7
The jury had information available to them concerning
her participation in the incident and her motivation to
testify in favor of the state. There is no reasonable
probability that the outcome of the proceeding would
have been different if the trial counsel had requested,
and the jury had received, the accomplice testimony
instruction. The petitioner has met neither the perfor-
mance prong nor the prejudice prong.
                            III
   Finally, the petitioner claims that his trial counsel
was ineffective in presenting Della Mae Brown as a
witness because she produced inculpatory identifica-
tion evidence. We disagree.
   Della Mae Brown was called as a witness for the state
in the petitioner’s first trial. Her testimony concerned
the identity of two men she observed at Gallo’s on the
date of the murder. Trial counsel called Brown as a
defense witness in the petitioner’s second trial, and
counsel testified at the habeas trial that he believed
that her testimony may have tended to raise reasonable
doubt.8 In her original statement to police officers,
Brown had claimed to recognize one of the men as
‘‘Poo,’’ a childhood friend of one of her children, and
she gave a description of the other man that did not
match the petitioner: a short and light skinned, His-
panic-looking male.9 Brown also testified, at the first
trial, that she later told the police that she had been
mistaken in her identification of Poo after his sister
came to speak to her, and she discovered someone had
thrown an object through her car window. Brown had
not identified the petitioner as one of the men at Gallo’s
on the day of the murder until she testified at the peti-
tioner’s first criminal trial, after she had seen his picture
in the paper. The habeas court found neither deficient
performance nor prejudice in calling Brown as a
defense witness.
   ‘‘It is all too tempting for a [petitioner] 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 omission of counsel
was unreasonable. . . . A fair assessment of attorney
performance requires that every effort be made to elimi-
nate 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 inherent in making
the evaluation, a court must indulge a strong presump-
tion that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the [peti-
tioner] must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy.’’ (Internal quotation marks
omitted.) Smith v. Commissioner of Correction, 148
Conn. App. 517, 526–27, 85 A.3d 1199, cert. denied, 312
Conn. 901, 91 A.3d 908 (2014).
   The habeas court properly determined that trial coun-
sel’s performance was not deficient. Trial counsel had
read the transcripts of the petitioner’s first trial and
made a strategic decision to use Brown’s testimony at
the second trial to undermine the identification of the
petitioner. Although Brown ultimately identified the
petitioner, she previously had identified another indi-
vidual, and her retraction occurred under questionable
circumstances. The petitioner has not overcome the
presumption that, by highlighting these facts, his trial
counsel’s conduct fell within the wide range of reason-
able professional assistance. Therefore, we conclude
that the petitioner has not met his burden to prove
ineffective assistance of counsel.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
    The state claims that the petitioner’s claims should be summarily rejected
because they are all based on inadequate investigation, which the petitioner
did not allege in his habeas petition. We do not agree; we address only the
claims of ineffective assistance raised in the habeas petition.
  2
    The petitioner’s first conviction was reversed because the court improp-
erly took judicial notice of Carlton Martin’s conviction in its instructions to
the jury. See State v. Martin, supra, 77 Conn. App. 822.
  3
    In addition to the claims subject to appeal, the petitioner claimed at the
habeas trial that his trial counsel rendered ineffective assistance by not
adequately impeaching or discrediting a witness, Della Mae Brown. In his
posttrial brief to the habeas court, he abandoned this claim.
  4
    ‘‘[Y]ou must decide which testimony to believe and which testimony not
to believe. . . . In making that decision, you may take into account a number
of factors including the following . . . . Did the witness have an interest
in the outcome of this case or any bias or prejudice concerning any party
or any matter involved in this case.’’
    5
      Trial counsel testified that the petitioner maintained his innocence
throughout the trial, and labeling Harris an accomplice could have created
an inference that he, too, was involved. Finally, trial counsel testified that
he did not think the instruction would have hurt his case, but he also did
not see a way it would have helped it.
    6
      ‘‘Our Supreme Court has identified several factors that are relevant in
determining whether a court properly declined to issue an instruction to
the jury regarding accomplice testimony: whether the witness was charged
with the crimes for which the defendant was tried, whether there was
evidence presented at trial that directly linked the witness to the crimes as
an accomplice, whether the jury was privy to evidence about the witness’
whereabouts during the commission of the crimes, whether the witness was
subject to cross-examination and whether the court issued instructions
regarding the credibility of witnesses generally.’’ State v. Underwood, 142
Conn. App. 666, 675–76, 64 A.3d 1274, cert. denied, 310 Conn. 927, 78 A.3d
146 (2013).
    7
      The jury heard Harris’ testimony and immunity agreement twice, as they
asked to hear it again during deliberations.
    8
      The petitioner agreed at one point in time. At the underlying criminal
trial, the state introduced a letter the petitioner wrote while incarcerated:
‘‘ ‘I’m gonna make sure that lady who identified [another person] is subpoe-
na[ed]. The shit she stated is guaranteed reasonable doubt.’ ’’
    9
      The petitioner is African-American.
