Spearman v. Commissioner of Correction

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 RUFUS SPEARMAN v. COMMISSIONER
OF CORRECTION
(AC 35974)
Alvord, Sheldon and Bear, Js.
Argued September 24, 2015—officially released April 19, 2016

(Appeal from Superior Court, judicial district of
Tolland, T. Santos, J.)
 James B. Streeto, senior assistant public defender,
for the appellant (petitioner).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and David Clifton, deputy assistant
state’s attorney, for the appellee (respondent).
 Opinion

BEAR, J. The petitioner, Rufus Spearman, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus. On appeal, the
petitioner claims that the habeas court erred (1) in
not finding that his trial counsel provided ineffective
assistance, as set forth in count three of his petition,
by failing to call several available alibi witnesses during
the petitioner’s criminal trial and (2) by sustaining cer-
tain evidentiary objections by the respondent, the Com-
missioner of Correction (commissioner), which led to
the court’s granting of the commissioner’s motion to
dismiss counts one and two of the petition for failure
to make out a prima facie case. We disagree and, accord-
ingly, affirm the judgment of the habeas court.
As recited by this court on direct appeal, the facts
which the jury reasonably could have found concerning
the petitioner’s underlying conviction are as follows:
‘‘On the morning of October 23, 1996, a fire occurred
at a three family home located at 16 Clover Place in
New Haven as a result of arson. Earlier that morning,
Katherine Hutchings was walking to a store and wit-
nessed the [petitioner] with Terrance Newton walking
toward the area located between 16 and 18 Clover Place.
The two men were carrying a large object with a handle
that resembled a bucket or jug. Hutchings called out
to the [petitioner] and Newton as they went toward the
back of the houses to ask them why they were up so
early. She continued walking when they did not
respond.
‘‘While walking home from the store, Hutchings heard
a ‘big boom,’ and when she turned the corner she saw
that the house at 16 Clover Place was on fire. She
also saw the [petitioner] and Newton on Clover Place
running toward Truman Street. Newton was wearing a
coat that was on fire. Hutchings saw Newton drop the
coat onto the ground as he ran.
‘‘Edith Hunter, who lived at 18 Clover Place, also
heard a loud sound that she described as ‘a big boom.’
Hunter ran to her front porch and saw Newton stum-
bling and running from the porch of the house that was
on fire wearing or carrying a smoldering coat. Although
Hunter did not see the [petitioner] running from the
house . . .1 she saw the [petitioner] on Clover Place
after the fire started, but before the fire department
arrived.
‘‘At approximately 7:45 a.m., Napoleon Gunn, an off-
duty firefighter, noticed smoke coming from 16 Clover
Place. Gunn shouted to a passerby to call 911 as he
attempted to enter the burning house. The New Haven
fire department responded to the fire immediately.
There was a tremendous volume of fire, which began to
ignite . . . Hunter’s home next door. Lieutenant James
Robinson testified that the volume of the fire in such
a short period of time indicated that it was the work
of an arsonist.
‘‘Lieutenant Thomas Heinz and two firefighters went
into the burning house equipped with bottled oxygen
and air masks. Heinz testified that even through his
oxygen mask, he could detect a strong odor of gasoline
in the house. The men made their way up to the third
floor where a firefighter fell through the floor that had
been weakened by the fire. He was trapped momentarily
until the other firefighters eventually pulled him from
the hole in the floor. The firefighters then were forced
to retreat from the third floor. Heinz also testified that
the use of an accelerant like gasoline increases the risk
posed to firefighters because it accelerates the rate of
burn, causes floors to weaken more quickly when
poured onto them, and causes the flames to explode
and flare when hit with water.
‘‘New Haven Fire Marshal Frank Dellamura also
responded to the fire. He discovered four or five areas
in 16 Clover Place where gasoline had been poured but
did not ignite. Additionally, in three rooms on the first
floor, Dellamura found six or seven plastic milk contain-
ers that were partially melted with scorch marks near
each of them. Dellamura opined that the fire was the
result of an arsonist who had attempted to cause an
explosion and to burn the house down. Dellamura also
opined that because the fire originated in several areas,
it must have been set by more than one person.
‘‘The [petitioner] was charged by information with
arson in the first degree and conspiracy to commit arson
in the first degree. The [petitioner] and Newton were
tried together. The [petitioner] moved for a judgment
of acquittal at the end of the state’s case. The motion
was denied, and the [petitioner] was subsequently con-
victed.’’ (Footnote added.) State v. Spearman, 58 Conn.
App. 467, 468–70, 754 A.2d 802 (2000). On appeal, this
court affirmed the judgment of conviction. Id., 480.
In his amended three count petition for a writ of
habeas corpus filed July 19, 2010,2 the petitioner claimed
in count one that the state had violated his constitu-
tional right to due process by failing to disclose evi-
dence concerning the relationship of the state’s witness,
Hutchings, to the police. In count two, the petitioner
claimed in the alternative that his trial counsel, Michael
Dolan, had rendered ineffective assistance by failing to
obtain that information concerning Hutchings’ relation-
ship with the police that could have been used to
impeach her credibility. In count three, the petitioner
asserted that Dolan had rendered ineffective assistance
by failing to present a viable alibi defense.
The petitioner’s habeas trial began on October 1,
2010, at which time the habeas court, T. Santos, J.,
heard the testimony of Dolan, the petitioner’s uncles,
Jashon Spearman (Jashon), and Stacey Spearman (Sta-
cey), and the petitioner’s cousin, Shane Hawkins. The
trial was continued several times, with the testimony
of the petitioner being heard on June 22, 2012, and it
concluded with the testimony of the petitioner’s cousin,
Yvalesse3 Nelson (Yvalesse), formerly Yvalesse Spear-
man, on July 10, 2012. Numerous exhibits were received
into evidence, including transcripts from the petition-
er’s criminal trial, reports completed by the officials
who had investigated the fire, and photographs of the
front and side of the residential building known as 11
and 15 Clover Place.
Following the presentation of the petitioner’s case,
the commissioner made an oral motion to dismiss
counts one and two pursuant to Practice Book § 15-8,
which the court granted. With respect to the third count
alleging ineffective assistance of counsel for Dolan’s
failure to present an alibi defense, the court, in its mem-
orandum of decision filed June 4, 2013, held that the
petitioner had failed to satisfy either prong of the Strick-
land4 test, and thus denied the habeas petition. The
petitioner then filed a petition for certification to appeal
from the court’s judgment, which the court granted.
This appeal followed. Additional facts will be discussed
as necessary.
I
The petitioner’s first claim on appeal is that the
habeas court erred in concluding that Dolan did not
render ineffective assistance of counsel despite his fail-
ure to call several available alibi witnesses whom he
believed to be credible.
We begin with the standard of review applicable to
this claim. ‘‘The habeas court is afforded broad discre-
tion in making its factual findings, and those findings
will not be disturbed unless they are clearly erroneous.
. . . Historical facts constitute a recital of external
events and the credibility of their narrators. . . .
Accordingly, [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 applica-
tion of the habeas court’s factual findings to the perti-
nent legal standard, however, presents a mixed question
of law and fact, which is subject to plenary review.’’
(Citations omitted; internal quotation marks omitted.)
Gaines v. Commissioner of Correction, 306 Conn. 664,
677, 51 A.3d 948 (2012).
‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings. . . . This right
arises under the sixth and fourteenth amendments to
the United States constitution and article first, § 8, of
the Connecticut constitution. . . . As enunciated in
Strickland v. Washington, [466 U.S. 668, 686, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], [our Supreme Court]
has stated: It is axiomatic that the right to counsel is
the right to the effective assistance of counsel. . . . A
claim of ineffective assistance of counsel consists of
two components: a performance prong and a prejudice
prong. . . . The claim will succeed only if both prongs
are satisfied.’’ (Citations omitted; internal quotation
marks omitted.) Bryant v. Commissioner of Correc-
tion, 290 Conn. 502, 510, 964 A.2d 1186, cert. denied
sub nom. Murphy v. Bryant, 558 U.S. 938, 130 S. Ct.
259, 175 L. Ed. 2d 242 (2009).
A
To prove his or her entitlement to relief pursuant to
Strickland, a petitioner must first satisfy what the
courts refer to as the performance prong; this requires
that the petitioner demonstrate that his or her counsel’s
assistance was, in fact, ineffective in that counsel’s per-
formance was deficient. ‘‘To establish that there was
deficient performance by petitioner’s counsel, the peti-
tioner must show that counsel’s representation fell
below an objective standard of reasonableness. . . . A
reviewing court must view counsel’s conduct with a
strong presumption that it falls within the wide range
of reasonable professional assistance. . . . The range
of competence demanded is reasonably competent, or
within the range of competence displayed by lawyers
with ordinary training and skill in the criminal law.’’
(Citation omitted; internal quotation marks omitted.)
Llera v. Commissioner of Correction, 156 Conn. App.
421, 428–29, 114 A.3d 178, cert. denied, 317 Conn. 907,
114 A.3d 1222 (2015).
‘‘[J]udicial scrutiny of counsel’s performance must
be highly deferential. It is all too tempting for a defen-
dant to second-guess counsel’s assistance after convic-
tion 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 assess-
ment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s chal-
lenged conduct, and to evaluate the conduct from coun-
sel’s perspective 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 [petitioner] must overcome the presumption
that, under the circumstances, the challenged action
might be considered sound trial strategy.’’ (Internal quo-
tation marks omitted.) Mukhtaar v. Commissioner of
Correction, 158 Conn. App. 431, 449, 119 A.3d 607
(2015). In reconstructing the circumstances, ‘‘a
reviewing court is required not simply to give [the trial
attorney] the benefit of the doubt . . . but to affirma-
tively entertain the range of possible reasons . . .
counsel may have had for proceeding as [he] did . . . .’’
(Internal quotation marks omitted.) Michael T. v. Com-
missioner of Correction, 319 Conn. 623, 632, 126 A.3d
558 (2015), quoting Cullen v. Pinholster, 563 U.S. 170,
196, 131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011).5
In the present case, the petitioner argues that the
habeas court erred in determining that Dolan’s failure
to call available and known alibi witnesses did not con-
stitute deficient performance. Examining the substance
of the proffered witnesses’ alibi testimony, the peti-
tioner contends that their accounts render the testi-
mony of the primary state’s witness, Hutchings,
extraordinarily implausible or impossible. The commis-
sioner counters that the habeas court’s determination
was legally correct because none of the proffered alibi
witnesses were entirely neutral or disinterested, their
accounts were contradictory in some respects, and their
testimony left open the possibility that the petitioner
had set the fire and run across the street to his home
before the alibi witnesses first saw him in the home. The
commissioner argues that because the habeas court’s
factual findings are not clearly erroneous, this court
must uphold the habeas court’s determination that
Dolan’s decision was not unreasonable. After our thor-
ough review of the record, we disagree with the peti-
tioner that the habeas court erred in finding that Dolan
lacked a strategic basis sufficient to justify his failure to
present any alibi testimony and, therefore, we conclude
that counsel’s performance was not deficient.
We begin by noting that our review of an attorney’s
performance is especially deferential when his or her
decisions are the result of relevant strategic analysis.
E.g., Michael T. v. Commissioner of Correction, supra,
319 Conn. 632–33. Thus, ‘‘[a]s a general rule, a habeas
petitioner will be able to demonstrate that trial coun-
sel’s decisions were objectively unreasonable only if
there [was] no . . . tactical justification for the course
taken.’’ (Internal quotation marks omitted.) Mozell v.
Commissioner of Correction, 291 Conn. 62, 79, 967 A.2d
41 (2009), citing, inter alia, Eze v. Senkowski, 321 F.3d
110, 129 (2d Cir. 2003) (‘‘the decision not to call a wit-
ness must be grounded in some strategy that advances
the client’s interests’’).
‘‘[T]he presentation of testimonial evidence is a mat-
ter of trial strategy.’’ (Internal quotation marks omitted.)
Jackson v. Commissioner of Correction, 149 Conn.
App. 681, 701, 89 A.3d 426, cert. granted on other
grounds, 313 Conn. 901, 96 A.3d 558 (2014). ‘‘Defense
counsel will be deemed ineffective only when it is
shown that a defendant has informed his attorney of
the existence of the witness and that the attorney . . .
without adequate explanation . . . failed to call the
witness at trial. . . . Furthermore, [t]he failure of
defense counsel to call a potential defense witness does
not constitute ineffective assistance unless there is
some showing that the testimony would have been help-
ful in establishing the asserted defense.’’ (Citation omit-
ted; internal quotation marks omitted.) Gaines v.
Commissioner of Correction, supra, 306 Conn. 681.
‘‘[O]ur habeas corpus jurisprudence reveals several
scenarios in which courts will not second-guess defense
counsel’s decision not to investigate or call certain wit-
nesses or to investigate potential defenses, such as
when . . . counsel learns of the substance of the wit-
ness’ testimony and determines that calling that witness
is unnecessary or potentially harmful to the case
. . . .’’ Id., 681–82. Thus, an attorney’s choice to pursue
a defense that focuses on casting doubt on the state’s
case rather than on calling his or her own witnesses
can be a reasonable choice. See, e.g., Coward v. Com-
missioner of Correction, 143 Conn. App. 789, 801, 70
A.3d 1152, cert. denied, 310 Conn. 905, 75 A.3d 32 (2013);
Stephen S. v. Commissioner of Correction, 134 Conn.
App. 801, 818–21, 40 A.3d 796, cert. denied, 304 Conn.
932, 43 A.3d 660 (2012); see also Harrington v. Richter,
562 U.S. 86, 109, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011)
(‘‘[t]o support a defense argument that the prosecution
has not proved its case it sometimes is better to try to
cast pervasive suspicion of doubt than to strive to prove
a certainty that exonerates’’).
Further, we generally have upheld an attorney’s
choice to call certain witnesses instead of others. See
Morant v. Commissioner of Correction, 117 Conn. App.
279, 304, 979 A.2d 507 (tactical decision not to call alibi
witness where ‘‘she was not a strong witness and other
alibi witnesses were available’’), cert. denied, 294 Conn.
906, 982 A.2d 1080 (2009); Hopkins v. Commissioner
of Correction, 95 Conn. App. 670, 675, 899 A.2d 632
(attorney ‘‘testified that he had thought [the alibi wit-
ness called] would present himself as . . . credible
. . . and, therefore, he did not consider using either of
the two women to bolster [alibi witness’] testimony or
the alibi defense’’), cert. denied, 279 Conn. 911, 902
A.2d 1071 (2006); Faust v. Commissioner of Correction,
85 Conn. App. 719, 722, 858 A.2d 853 (attorney ‘‘made
the strategic decision not to have certain inmates, who
were convicted felons, testify because, in his profes-
sional opinion, both the petitioner and one of the correc-
tional officers were ‘powerful’ witnesses’’), cert. denied,
272 Conn. 909, 863 A.2d 701 (2004).
We recognize, however, that there have been
instances when our Supreme Court and this court have
held that an attorney’s failure to call specific witnesses
was deficient performance. For example, in Bryant v.
Commissioner of Correction, supra, 290 Conn. 504–505,
Bernale Bryant, an African-American man, had been
convicted of murder for pulling the decedent out of a
car and beating him to death. The testimony of four
uncalled witnesses, however, would have supported a
defense that a group of Hispanic men had shot the
decedent. Id., 507–508. Our Supreme Court held that
Bryant’s attorney had rendered deficient performance
when he did not call these four disinterested witnesses
whose testimony, taken as a whole, would have created
a credible third party culpability defense that would
have provided an alternative to the two questionable
eyewitnesses as to ‘‘the most basic elements’’ of the
state’s case. Id., 519–20.
Additionally, in Vazquez v. Commissioner of Correc-
tion, 107 Conn. App. 181, 185–86, 944 A.2d 429 (2008),
the habeas court determined that defense counsel’s per-
formance was deficient for failing to provide to the jury
the credible testimony of Anderson Vazquez and his
girlfriend6 that Vazquez had been asleep in their apart-
ment at the time the crime was committed. On the
commissioner’s appeal, we noted that no evidence dem-
onstrated that defense counsel’s choice was based on
a reasonable exercise of professional judgment;7 rather,
Vazquez’ testimony suggested that defense counsel
failed to prepare the defense because he did not believe
that the robbery victim would appear for trial. Id., 186.
Consequently, we dismissed the commissioner’s appeal.
Id., 187.
In Siano v. Warden, 31 Conn. App. 94, 99–101, 623
A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984
(1993), James Siano’s trial counsel, on cross-examina-
tion obtained admissions undermining the credibility
of the state’s primary witness, an alleged coconspirator
of Siano. Siano’s trial counsel also offered the testimony
of Siano’s mother and sister to support the defense that
Siano’s recent injuries made it unlikely that he could
have committed the crime at issue as alleged by that
coconspirator. Having failed to subpoena either the sur-
geon who treated Siano or his medical records, how-
ever, Siano’s trial counsel was unable to offer either to
provide medical evidence in support of this defense.
Id., 99–102. Under these circumstances, armed with the
testimony of both the surgeon and an attorney offering
expert witness testimony concerning the objective
unreasonableness of Siano’s trial counsel’s choice, the
habeas court discounted Siano’s trial counsel’s prof-
fered reasons for this failure and found that his perfor-
mance was deficient. Id., 103–104.
Affirming the habeas court’s determination that
Siano’s trial counsel had provided ineffective assis-
tance, we stated: ‘‘After examining the testimony as to
the extent of [Siano’s] injuries, the habeas court could
have logically concluded that the testimony would have
provided [Siano’s] claims with credibility, casting signif-
icant doubts on the state’s case. In light of this, we
agree with the habeas court’s finding, supported by the
evidence, that counsel’s failure to call the surgeon was
not a strategic or tactical decision. His alleged strategy
left [Siano] without a key witness and a viable defense.’’
Id., 104–105.
Finally, we turn to the legal principles governing our
review of the proffered testimony of the petitioner’s
alibi witnesses. Our Supreme Court has clarified that
in Connecticut, the crux of the alibi defense is to create
a reasonable doubt as to key elements of the state’s
case. ‘‘[A]lthough an alibi is sometimes spoken of as a
defense, it operates, in this state, to entitle an accused
to an acquittal when he has so far proved his alibi that
upon all the evidence a reasonable doubt of his guilt has
been raised. While the state is bound to prove beyond a
reasonable doubt all the essential elements of the crime
charged, including proof of the presence of the accused
at the scene of the crime, where an alibi is asserted
and relied upon as a defense, the accused is entitled
to have the jury instructed that the evidence offered by
him upon that subject is to be considered by them in
connection with all the rest, in determining whether he
was present, and that if a reasonable doubt upon that
point exists, it is their duty to acquit.’’ (Internal quota-
tion marks omitted.) State v. McKnight, 191 Conn. 564,
584, 469 A.2d 397 (1983). Circumstantial evidence can
be used to support, or disprove, an alibi defense. See
State v. Tutson, 278 Conn. 715, 733, 736–37, 899 A.2d
598 (2006).
As other courts have noted, alibi testimony is fre-
quently the best way to counter eyewitness testimony
of a defendant’s involvement in a crime. See Griffin v.
Warden, 970 F.2d 1355, 1359 (4th Cir. 1992) (‘‘[e]yewit-
ness identification evidence . . . is precisely the sort
of evidence that an alibi defense refutes best’’); State
ex rel. Wearry v. Cain, 161 So. 3d 620, 621–22 (La. 2015)
(same); cf. State v. Jefferson, 67 Conn. App. 249, 264,
786 A.2d 1189 (2001) (‘‘[w]hen a case [would be] nar-
rowed to the [issue of] credibility of [witnesses] . . .
in those circumstances there [is] greater, not less, com-
pelling reason for exploring all avenues which would
shed light on which of the . . . witnesses [is] to be
believed’’ [internal quotation marks omitted]), cert.
denied, 259 Conn. 918, 791 A.2d 566 (2002). Conse-
quently, absent a sufficient tactical reason, the failure
to call an alibi witness can constitute deficient perfor-
mance. See Vazquez v. Commissioner of Correction,
supra, 107 Conn. App. 187; see also, e.g., Mosley v.
Atchison, 689 F.3d 838, 849 (7th Cir. 2012) (failure to
investigate and call alibi witnesses who would place
petitioner across street at time fire started amounted
to deficient performance); Pena-Martinez v. Duncan,
112 Fed. Appx. 113, 114 (2d Cir. 2004) (‘‘[a]lthough a
decision not to call particular witnesses is typically a
question of trial strategy, an unexplained failure to call
credible alibi witnesses cannot be considered reason-
able trial strategy’’); Lopez v. Miller, 915 F. Supp. 2d
373, 428–30 (E.D.N.Y. 2013) (counsel’s performance
deficient where failure to call alibi witnesses based
solely on concerns about perception of bias, proximity
to crime, and vagueness of time). Where the proffered
witnesses would fail to account sufficiently for a defen-
dant’s location during the time or period in question,
however, a failure to present certain alibi witnesses has
been upheld as reasonable under the circumstances.
See Jackson v. Commissioner of Correction, supra, 149
Conn. App. 701 (attorney performance not deficient
when alibi testimony could not account for petitioner’s
whereabouts for one hour period ‘‘immediately before,
during, and after the robbery’’).
The habeas court summarized the proffered alibi and
other witnesses’ testimony as follows: ‘‘Attorney Dolan
testified in the present matter that the petitioner told
him that he did not commit the crimes he was charged
with and that he was asleep across the street from
where the fire occurred. Attorney Dolan utilized a pri-
vate investigator, Daniel Blackman, a retired New
Haven police officer, who interviewed eyewitnesses
and potential alibi witnesses, took statements and pre-
pared a report of his investigation.8 The potential alibi
witnesses were family members of the petitioner. Attor-
ney Dolan testified that he met with some or all of these
potential alibi witnesses and found them to be credible.
The defense strategy eventually formulated by Attorney
Dolan focused on showing that Ms. Hutchings, a fre-
quent police informant whose statement to the police
was the sole link connecting the petitioner to the arson,
was concocting a story to gain good will with the police
and obtain some financial benefit.9 The trial strategy
did not exclude calling alibi witnesses and, therefore,
Attorney Dolan filed a notice of intention to offer an
alibi defense that disclosed that the petitioner was at
11 Clover Place, the Spearman residence across the
street from 16 Clover Place, where the arson occurred,
at the time of the alleged offenses.10
‘‘Attorney Dolan, as well as counsel for [the] codefen-
dant, Newton, effectively utilized cross-examination to
bring out and highlight inconsistencies between Ms.
Hutchings’ trial testimony and her written statement to
the police. Attorney Dolan indicated that he did not call
any of the petitioner’s family members as witnesses
because Ms. Hutchings had not testified well.11 Instead
of putting on separate versions of events (i.e., the state’s
versus the petitioner’s), Attorney Dolan thought it more
prudent to hold the state to its burden of proof and
attack the credibility of the sole witness linking the
petitioner to the offenses. Attorney Dolan also took into
consideration the good cross-examination skills of the
prosecuting attorney and that the petitioner’s witnesses
were family members who, although he found them
credible and anticipated them placing the petitioner in
their residence after the fire was underway across the
street, could not provide an alibi for the time period
in which the fire was set and started aside from the
petitioner being asleep in his room. Thus, concern for
family members’ [possible] bias, the very close proxim-
ity of the petitioner’s residence to the crime scene, and
the inability of family members to provide a firm alibi
led Attorney Dolan to conclude it was strategically bet-
ter to not open the door to cross-examination that high-
lighted the aforementioned concerns. Thus, according
to Attorney Dolan, he made the decision after the state
rested to not call the petitioner’s family members as wit-
nesses.12
‘‘The first witness presented by the petitioner in sup-
port of his claimed alibi defense was Jashon Spearman
. . . . Jashon Spearman testified that he was in the
bathroom getting ready for work, heard an explosion,
and about one minute later exited the bathroom and saw
the petitioner coming out of his room. The petitioner
looked as though he had just woken up and was wearing
clothing that one would sleep in (e.g., shorts or long
johns). According to Jashon Spearman, Yvalesse Nelson
was downstairs and was calling for the petitioner to
move the car. Jashon Spearman testified that he saw
the petitioner run to get the car keys and then go outside
to move the car, which he identified as belonging to
his brother, Stacey Spearman. Jashon Spearman then
went to the upstairs living room window, looked outside
to view the fire and later went downstairs.
‘‘Stacey Spearman . . . was the second family mem-
ber to testify before this court in support of the petition-
er’s claimed alibi. Stacey Spearman testified that he
was in the family room located in the basement when
he heard his niece, Yvalesse Nelson, yelling. He then
went upstairs, saw the fire across the street and heard
Yvalesse Nelson tell the petitioner to move the car.
According to Stacey Spearman, he saw the petitioner
come downstairs after he himself had come up from
the basement. On cross-examination, Stacey Spearman
indicated that he did not go upstairs for several minutes,
perhaps as [many] as seven minutes, before he went
to the first floor to look out the window.
‘‘The next potential alibi witness was Shane Hawkins
. . . . Hawkins testified that he was in the basement
when he heard Yvalesse Nelson scream and yell that
there had been an explosion and for his uncle, Stacey
Spearman, to move his car. Hawkins was aware that
the petitioner had used Stacey Spearman’s car the night
before and, because Yvalesse Nelson did not know that
the petitioner had used the car the previous night and
still had the keys, darted upstairs to let the petitioner
know to move the car. According to Hawkins, he went
up to the first floor and to the outside door, which he
said was unlocked, that led upstairs to the second floor.
Hawkins went upstairs and saw the petitioner, who
appeared sleepy, come out of his room, but did not see
his uncle, Jashon Spearman. Hawkins told the petitioner
that he needed to move the car. The petitioner found
the keys and went downstairs, and Hawkins also went
downstairs and opened the gates so that the petitioner
could pull the car into the driveway.
‘‘The petitioner testified next that he was asleep in
his upstairs bedroom on the morning of the fire.
According to the petitioner, at approximately 8 a.m. he
heard a noise, which he described as sounding like an
explosion and thought it was his television set that he
had left on all night, and which prompted him to reach
for the remote and turn off the television set. The peti-
tioner heard someone yelling his name and for him to
move his grandmother’s car,13 which he had used the
night before and thus still had the keys, and that was
parked in front of the house. He then went to the win-
dow, which faced the front of the house, and saw flames
coming from the house across the street. The petitioner
further testified that he ran downstairs dressed in what-
ever he was wearing at the time he jumped out of bed,14
got in the car and backed it up off the street into the
driveway. He then stayed on the first floor, inside, and
watched the fire and the firefighting efforts with other
family members.15 The petitioner also testified that he
knew Newton’s family and some of its members, but
not Terrance Newton, and that he knew Katherine
Hutchings from her hanging around the neighborhood.
As to discussions with Attorney Dolan about presenting
an alibi defense, the petitioner testified that he and
counsel discussed presenting an alibi defense and call-
ing alibi witnesses, both prior to trial and after the state
rested. Attorney Dolan, according to the petitioner,
informed him that he was not calling alibi witnesses
because he thought the state’s case was weak. Lastly,
the petitioner acknowledged that he had a physical
relationship with a woman who had lived in the house
where the fire was set and that she had problems with
her roommate, who had lived at the same location,
had moved out, but returned periodically to retrieve
her mail.
‘‘The final witness presented by the petitioner was
Yvalesse Nelson . . . . Ms. Nelson testified that at
about 7 a.m. on the day of the offense, she was getting
ready for work and looked out the window. Ms. Nelson
then testified that she saw ‘two males carrying a box,
and they were walking down the street. They were
coming from Truman Street, and they looked pretty
suspicious. I mean, it was seven in the morning. They
were two black males with dark clothing on. They
approached the house across the street. I seen them
because the house is vacant. And they went up to the
second floor, and I seen them pouring something
around with their hands; and then all of a sudden, there
was, boom, an explosion. They started running out.
They ran down Clover Place onto Truman Street; and
when he was running, his coat got caught on the fence.’
. . . Ms. Nelson indicated that she could not identify
the two males and that neither was the petitioner. Ms.
Nelson further testified that she went downstairs to let
Stacey Spearman know that his car needed to be moved.
She described a brief conversation about the car and
the keys being in the petitioner’s possession, which led
her to go upstairs and bang on the outside door, which
she indicated was locked, that led to the upstairs to
wake him up. The petitioner came downstairs appearing
sleepy, went outside and moved the car into the gated
driveway after Stacey Spearman opened the gates.’’
(Citation omitted; emphasis omitted; footnotes altered.)
Following the trial on the amended petition in the
present case, the habeas court did not make any explicit
credibility determinations or engage in an evaluation
of any potential or actual bias on the part of these alibi
witnesses. Rather, it stated that, even assuming that the
witnesses were credible and that there was no bias
whatsoever, the petitioner had not demonstrated defi-
cient performance because ‘‘the contradictions and
inconsistencies between the various renditions of the
events and activities vindicates Attorney Dolan’s con-
cerns about rigorous cross-examination by an experi-
enced and effective prosecutor. Attorney Dolan’s
concerns about these inconsistencies contained within
the petitioner’s family members’ rendition of events
were well founded. Their versions of events would have
done little, if anything, to undermine the state’s case,
as none of the petitioner’s alibi witnesses can account
for his whereabouts, aside from presumptively being
asleep in bed, while the fire was being set, leaving open
the opportunity for the petitioner to have helped set
the fire, run across the street and go upstairs before
the explosion and ensuing fire.’’ Consequently, the court
‘‘agree[d] with Attorney Dolan’s assessment that the
focus of his defense efforts was better concentrated on
attacking the credibility of Ms. Hutchings and showing
her potential financial gain for cooperating yet again
with the police. The petitioner has not shown that the
testimony presented to this court would have been help-
ful in establishing an alibi defense sufficient to raise
reasonable doubt in the jury’s minds. In other words,
this court concludes that Attorney Dolan’s strategy and
the decisions made in furtherance thereof were reason-
able in light of all the circumstances.’’
Neither party contests that Dolan’s decision was a
matter of strategy made at trial, and we can adduce no
basis in the record for a contrary determination. The
issue presented, therefore, is whether this strategic
decision was reasonable. To address this question, we
must consider the choice under all the circumstances
as they existed at the time that Dolan made the decision,
evaluating that choice in light of the legal principles
governing alibi defenses and with a strong presumption
that the choice was reasonable. See Bryant v. Commis-
sioner of Correction, supra, 290 Conn. 512–16.
To address the petitioner’s claim, additional facts
concerning his criminal trial are necessary. At trial,
the state presented numerous witnesses who testified
about the fire and likely arson at 16 Clover Place on
October 16, 1996. Only two witnesses, however, claimed
to see anyone going into or running away from 16 Clover
Place near the time of the fire. The first eyewitness,
Hunter, testified that she had been making breakfast
at approximately 7:45 a.m. in her first floor apartment at
18 Clover Place when she heard the explosion. Running
from her kitchen to the living room and out onto the
porch, she witnessed a man stumble off the porch and
run past her house toward Truman Street. She yelled
at him and was able to get a look at the man when he
looked back; he eventually turned the corner and
headed in the direction of the Truman School. She iden-
tified this man, both in a photographic array subsequent
to the fire and at trial, as Newton. Although testifying
that Yvalesse smiled or laughed in response to her ques-
tions soon after Hunter saw Newton run away, Hunter
also stated that she did not see anyone else at 11 Clover
Place when she saw Yvalesse. Further, she stated that
she did not see the petitioner running off the porch or
down the street with Newton, though she had been
focusing on Newton, and could only affirmatively state
that she saw the petitioner after the fire had started
when he moved a car.
The second eyewitness was Hutchings. On direct
examination, she testified that she needed certain items
for her children and walked to a store soon after 7 a.m.
Turning onto Clover Place from Truman Street, she
noticed both Newton and the petitioner (whom she
knew only as ‘‘Little Man’’)16 carrying a big jug or bucket
into the house. She crossed the street and saw the two
of them enter the side of 16 Clover Place. After seeing
the two men, Hutchings kept walking to the store; upon
discovering her intended destination was closed, she
went to another store, completed her errands, and
headed back along the route from which she came.
Hutchings further testified that, on her return trip,
she was on Washington Avenue and about two houses
from the corner where Washington Avenue meets Clo-
ver Place when she heard an explosion. Turning the
corner, she saw the petitioner and Newton about two
and one-half houses from the corner where she was
standing and running down the street toward Truman
Street. She lost track of Newton when he turned onto
Morris Street and headed in the direction of the Truman
School, and the petitioner when he went between two
brown houses on Clover Place. She then traveled down
Clover Place to Truman Street, which she took to
head home.
After taking her children to school, she passed by
Clover Place roughly twenty minutes later, and although
briefly interacting with the firefighters and police offi-
cers on the scene, she did not have a full conversation
with them at that time. She also stated that she called
on her neighbor, Carrie Crenshaw, and told her what
she had seen. Finally, she testified, both outside of the
jury’s presence and once the jurors were recalled, as
to two allegedly threatening encounters in which the
petitioner and people seemingly acting on his behalf
had pulled up in front of her house and told her to mind
her own business a few days before she began testifying.
She also admitted that she previously had acted as an
informant for a New Haven Police Department officer.
On cross-examination, inquiries were made by both
Dolan and Newton’s attorney, Lawrence Hopkins, as to
several aspects of Hutchings’ testimony.17 Two particu-
lar aspects of the cross-examination of Hutchings merit
further comment. First, in response to Dolan’s questions
about whether she had returned to 16 Clover Place
within two weeks and seen a reward sign posted there,
she responded that she had not. Second, Hutchings
offered conflicting testimony concerning when and how
she turned the corner from Washington Avenue onto
Clover Place after hearing the explosion. During the
state’s direct examination and Dolan’s cross-examina-
tion, her testimony suggested that she turned the corner
almost immediately after the explosion and then paused
there for a few minutes. In response to Hopkins’ cross-
examination, however, Hutchings testified that after
hearing the explosion, she was stunned and waited
three to four minutes before turning the corner onto
Clover Place, where she stopped for another few
minutes while watching the petitioner and Newton run
away from the fire.
Subsequent to Hutchings’ testimony, the state called
several such witnesses, but no other witness offered
testimony as to the petitioner’s location before, during,
or after the fire at 16 Clover Place had started. Four
witnesses, however, testified as to the timing of certain
statements by Hutchings and various aspects of the
investigation into, and the arrest of, the petitioner.
Detective John Bashta testified that, on the day of the
fire, Hutchings told him that she saw what happened
and could help out with the investigation. He testified
that he spoke with her again a few days after the fire,
at which point she informed him that Newton and some-
one named ‘‘Little Man’’ had been involved in the fire,
and two weeks later, when she informed him that ‘‘Little
Man’’ lived on Clover Place across the street from the
fire. He eventually took her official statement, and she
made a positive identification of the petitioner in a
photographic array in December, 1996. He clarified that,
when taking the statement, he had not asked certain
questions concerning which store she originally had
planned to go to on the morning of the fire and whether
she actually had gone inside. He also testified that
reward posters were posted within one day of the fire
at 16 Clover Place.
Dellamura testified that he was with Bashta when
the latter spoke with Hutchings a few days after the fire
when she implicated both Newton and the petitioner in
the arson. He also stated that at some point during the
investigation, he drove down a street parallel to Clover
Place and observed that the petitioner’s residence had
a back door. Crenshaw testified that she was a neighbor
and friend of Hutchings. Crenshaw affirmed that, on
the date of the fire, Hutchings had stopped by her house
that morning and stated that she had observed the par-
ties responsible for the fire, that one of them had a
can, and that she had called out their names, though
Crenshaw did not know them.
Finally, Quincy Freeman, a patrol officer with the
New Haven Police Department, testified that while on
patrol, he saw the petitioner. Knowing about the arrest
warrant charging the petitioner with arson, Officer
Freeman approached the petitioner and asked for iden-
tification. The petitioner gave a fake name, after which
Officer Freeman arrested him.
After the state rested, the court considered, and
denied, motions for acquittal by both defendants. Dolan
called one witness, Carl Baab, who testified as to certain
incidents that had occurred at the nearby Truman
School on the morning of the fire.18
With this context, we consider the petitioner’s claims,
examining the testimony of the habeas witnesses with
the same assumption of credibility and lack of bias
that the habeas court attributed to it. With respect to
Yvalesse, we conclude that the record demonstrates
that Dolan reasonably could have decided not to call
her for a variety of reasons. Her testimony appears to
be inconsistent with that of Hawkins and Stacey in
several important respects. Stacey asserted that he first
headed upstairs from the basement to the first floor of
15 Clover Place to see what was going on after hearing
Yvalesse, his niece, yelling downstairs and that he went
upstairs ‘‘to see what was going on.’’ Yvalesse, on the
other hand, recounted coming downstairs and having
an exchange with Stacey about the car’s location, and
suggesting that they went upstairs together to move
the car.
Similarly, Hawkins testified that, after hearing his
cousin, Yvalesse, yelling down to Stacey about moving
the car, he ran upstairs to the first floor from the base-
ment of 15 Clover Place and out the front door, then
headed upstairs to let the petitioner know that he had
to move the car. Hawkins stated that he was able to
get upstairs immediately because the door leading to
11 Clover Place was unlocked, as it usually was. After
Hawkins told the petitioner that the car needed to be
moved, the petitioner started looking for the keys as
Hawkins went back downstairs to open the gate.19
Yvalesse stated that the door remained locked until
the petitioner came downstairs to move the car, and,
although she mentioned that she was waking up her
cousins, she did not mention seeing Hawkins during
this period.
Further, if Yvalesse had testified at trial, she would
have been exposed to two additional types of impeach-
ment not faced by the other alibi witnesses. First,
Hunter—one of only two witnesses called at trial who
testified that she saw the party or parties responsible
for setting the fire—testified that she saw Yvalesse out-
side on the porch of 15 Clover Place soon after the
explosion. She stated that she yelled to Yvalesse, asking
if Yvalesse had seen what had just occurred and that
Yvalesse had smiled or laughed in response. Yvalesse
challenged these statements in her habeas testimony.
Second, a report prepared by the police during their
investigation contains a statement attributed to an
‘‘Ydalesse Spearman,’’ who is listed as residing at 11
Clover Place. Although the declarant recounts seeing
two men running away immediately following the fire,
there is no indication in the statement that she saw
either of the two men prior to the explosion. Although
Yvalesse testified that several aspects of the statement
were inaccurate and that she did not recall making
it, she also affirmed that she gave a statement to an
‘‘investigator’’ a few days after the fire, but could not
recall the name of the investigator or whom he repre-
sented.
Finally, Yvalesse testified that she saw two people
enter the building at about the same time that Hutchings
arguably would have seen them. She also, both in her
testimony and in her statement taken by the police on
October 29, 1996, affirmed that she saw not one, but
two people running away from 16 Clover Place toward
Truman Street after the explosion. Given that Dolan’s
primary trial strategy was to discredit Hutchings’ testi-
mony, offering evidence corroborating a portion of
Hutchings’ account could have had the opposite effect.
Thus, a review of the record reveals that it was not
unreasonable for Dolan to decide that, on balance, Yva-
lesse’s testimony would have hurt the petitioner.
Jashon testified at the habeas trial that he was awake
and preparing for work on the morning of the explosion.
As he exited his room a minute after hearing the explo-
sion, he saw the petitioner exiting his bedroom, looking
as if he had just awakened. Jashon further testified that
he heard Yvalesse yelling to the petitioner two or three
minutes after the explosion.
Hawkins testified that, hearing Yvalesse yelling
downstairs about the fire, he ran upstairs to the first
floor of 15 Clover Place, out of its front door, then to
the front door of 11 Clover Place, and upstairs to the
second floor apartment. Once inside the second floor
apartment, Hawkins stated, he also saw the petitioner
emerge from his bedroom, looking dressed for bed and
as if he had just awoken. Hawkins testified that it took
a minute or two from hearing Yvalesse yelling down-
stairs for him to reach the outside of the building.
Although Jashon’s testimony on the morning of the
fire would appear to place the defendant in his room
in 11 Clover Place just after the explosion, the timing
of his observations was tied directly to the loud excla-
mations of Yvalesse, in that he heard her yelling for the
defendant to move the car in the immediate aftermath
of the explosion. Therefore, although his testimony, if
believed, could have raised a reasonable doubt as to
whether the petitioner started the fire, it could not have
done so without eliciting the flawed testimony of
Yvalesse, which Dolan reasonably might have sought to
keep away from the jury. Similarly, although Hawkins’
testimony, if believed, might have cast doubt on the
state’s version of the facts, he testified that he had not
heard the explosion, but ran upstairs only after hearing
Yvalesse yelling downstairs. Thus, the presentation of
his testimony would have made it necessary to call
Yvalesse, which Dolan might reasonably have sought
to avoid doing.
After a thorough review of the record, including the
testimony identified by the petitioner, and applying the
relevant legal principles governing our review, we con-
clude that the habeas court did not err in determining
that Dolan did not provide deficient representation by
not calling the defendant’s relatives as alibi witnesses.
The habeas court, which assumed that these relatives
were credible, found substantive inconsistencies in
their testimony. These inconsistencies would have been
subject to, and most likely highlighted on, cross-exami-
nation. See State v. Briggs, 179 Conn. 328, 333, 426 A.2d
298 (1979) (‘‘[w]here a defendant proposes an alibi as
his defense, one permissible method of determining
whether the alibi was fabricated is to inquire into the
specific details and the surrounding circumstances of
the alibi on cross-examination in an attempt to show
inconsistencies in the testimony of the various alibi
witnesses, since the claim of alibi is subject to searching
scrutiny’’), cert. denied, 447 U.S. 912, 100 S. Ct. 3000,
64 L. Ed. 2d 862 (1980). Thus, although another fact
finder, hearing and analyzing Dolan’s testimony, might
have made different findings, a habeas court is afforded
broad discretion in making its factual findings, and the
habeas court in this case was well within its authority
to find that there were substantive testimonial inconsis-
tencies and to accord them the weight that it did. See
Tuccio v. Zehrung, 172 Conn. 350, 354, 374 A.2d 1044
(1977) (‘‘the trier of fact is the judge of . . . the weight
to be accorded to . . . testimony, and this is true
whether there is a contradiction between different wit-
nesses or in the testimony of a single witness’’).20
Additionally, the habeas court found that Dolan rea-
sonably was concerned about offering the alibi testi-
mony because none of these witnesses were able to
provide an alibi for the petitioner before the fire, and
it was not disputed that the petitioner’s house was in
close proximity to, and easily accessible by the peti-
tioner from, the site of the arson. In particular, Dolan
testified that cross-examination might potentially have
exposed the possibility that the petitioner ‘‘[c]ould . . .
have woken up and went out the back door and returned
. . . .’’ Although the alibi witnesses testified that only
the first floor apartment at 15 Clover Place was accessi-
ble by the back door and that there was no way short
of going outside to get between the two apartments,
there was trial testimony from multiple witnesses that
the petitioner lived across the street from the site of
the arson. Further, Hunter’s testimony confirmed that
the petitioner was in the vicinity of the fire shortly after
it had begun when she saw him outside of 11 Clover
Place moving a car before the fire department arrived.
Each of the proposed alibi witnesses’ testimony would
have corroborated the evidence offered by Hunter as
to the petitioner’s proximity to the fire close to the time
that it began. None of the proffered alibi testimony,
even if believed, established that the petitioner was in
bed in 11 Clover Place either sufficiently prior to, or at
the precise moment when, the fire was started. Com-
pare Vazquez v. Commissioner of Correction, supra,
107 Conn. App. 185 (Vazquez’ girlfriend testified that
he was in bed with her at time of crime). Thus, we
conclude that Dolan’s decision not to call the family
members as alibi witnesses, when placed in the context
of the other evidence available to the jury, was not
unreasonable. For this reason, we are not persuaded
that Bryant, Vazquez, or Siano requires a different
result on the facts of this case.
Our courts have upheld an attorney’s choice to use
cross-examination of another witness instead of calling
a witness where cross-examination was sufficient to
draw out the facts to which the uncalled witnesses
would have testified; see Coward v. Commissioner of
Correction, supra, 143 Conn. App. 801; Stephen S. v.
Commissioner of Correction, supra, 134 Conn. App.
818–20; or where there was a valid reason, independent
from whatever beneficial testimony they could offer,
for failing to call those witnesses. See, e.g., Michael
T. v. Commissioner of Correction, supra, 319 Conn.
635–38; Chace v. Bronson, 19 Conn. App. 674, 681, 564
A.2d 303, cert. denied, 213 Conn. 801, 567 A.2d 832
(1989); see also Gaines v. Commissioner of Correction,
supra, 306 Conn. 681–82. In this case, none of the alibi
witnesses knew for certain that the petitioner either
was at home or not at the location that Hutchings’
testimony placed him prior to the start of the fire. Also,
in addition to Hutchings’ placement of the petitioner
outside of his house walking on Clover Place prior to
the fire, Hunter testified at trial that she had seen the
petitioner that morning, outside of 11 Clover Place and
moving the car shortly after the fire began and before
the fire department arrived.21 Thus, as the habeas court
noted, ‘‘the jury heard testimony from a nonfamily mem-
ber about the petitioner’s location shortly after the
fire began.’’
 In reviewing counsel’s performance, we are required
to be ‘‘highly deferential’’ to counsel’s strategies and to
‘‘indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance.’’ (Internal quotation marks omitted.) Mukh-
taar v. Commissioner of Correction, supra, 158 Conn.
App. 449. After reviewing the habeas court’s factual
findings, the record itself, and the law which we must
follow, we are unable to find that the court erred in
concluding that Dolan’s conduct in failing to call the
proposed alibi witnesses in support of the petitioner’s
alibi defense did not constitute deficient performance.22
B
We recognize that to prevail on a claim of ineffective
assistance of counsel pursuant to Strickland, a peti-
tioner must show both that counsel’s performance was
deficient and that such deficient performance preju-
diced his defense; thus, a failure to prove either defi-
cient performance or prejudice is fatal to his or her
claim. Bryant v. Commissioner of Correction, supra,
290 Conn. 510. Although we have determined that the
habeas court did not err in finding that the petitioner
did not prove deficient performance, and thus that his
claim cannot succeed, we also find that even if counsel’s
performance in not calling the four alibi witnesses was
deficient, the habeas court did not err in finding that
his performance did not satisfy the prejudice prong of
Strickland. See Strickland v. Washington, supra, 466
U.S. 691–96.
Our analysis of the prejudice prong requires us to
determine the probable effect that counsel’s alleged
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.’’
(Internal quotation marks omitted.) Bryant v. Commis-
sioner of Correction, supra, 290 Conn. 510. ‘‘In assessing
prejudice under Strickland, the question is not whether
a court can be certain counsel’s performance had no
effect on the outcome or whether it is possible a reason-
able doubt might have been established if counsel acted
differently. . . . Instead, Strickland 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 Strickland’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 conceiv-
able.’’ (Internal quotation marks omitted.) Anderson v.
Commissioner of Correction, 313 Conn. 360, 376, 98
A.3d 23 (2014), cert. denied sub nom. Anderson v. Sem-
ple, U.S. , 135 S. Ct. 1453, 191 L. Ed. 2d 403 (2015).
 ‘‘In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the . . . jury. Some of the factual find-
ings will have been unaffected by the errors, and factual
findings that were affected will have been affected in
different ways. Some errors will have had a pervasive
effect on the inferences to be drawn from the evidence,
altering the entire evidentiary picture, and some will
have had an isolated, trivial effect. Moreover, a verdict
or conclusion only weakly supported by the record is
more likely to have been affected by errors than one
with overwhelming record support. Taking the unaf-
fected findings as a given, and taking due account of
the effect of the errors on the remaining findings, a
court making the prejudice inquiry must ask if the defen-
dant has met the burden of showing that the decision
reached would reasonably likely have been different
absent the errors.’’ Strickland v. Washington, supra,
466 U.S. 695–96. ‘‘[I]n assessing whether there is a sub-
stantial likelihood that the addition of such evidence
would have resulted in a different outcome, we must
consider the cumulative effect of all of the evidence.
See Wong v. Belmontes, 558 U.S. 15, 26, 130 S. Ct. 383,
175 L. Ed. 2d 328 (2009) (‘reviewing court must consider
all the evidence—the good and the bad—when evaluat-
ing prejudice’).’’ (Emphasis omitted.) Anderson v. Com-
missioner of Correction, supra, 313 Conn. 377.
‘‘[T]he ultimate focus of inquiry must be on the funda-
mental fairness of the proceeding whose result is being
challenged. . . . The benchmark for judging any claim
of ineffectiveness must be whether counsel’s conduct
so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having
produced a just result.’’ (Internal quotation marks omit-
ted.) Sanchez v. Commissioner of Correction, 314
Conn. 585, 606–607, 103 A.3d 954 (2014).
In the present case, the petitioner argues that the
habeas court erred in determining that Dolan’s failure
to call the alibi witnesses did not result in prejudice.
In particular, he takes issue with the habeas court’s
and Dolan’s characterization that the alibi offered by
the witnesses would not be a complete alibi. The com-
missioner counters that the petitioner has not demon-
strated prejudice, pointing to the habeas court’s
determinations that none of the testimony accounted
for the petitioner’s location at the exact time the fire
began, which did not exclude the potentiality that the
petitioner could have participated in the setting of the
fire and then run back across the street to his apartment
without being seen, and that the testimony of the poten-
tial alibi witnesses concerning what they saw after the
explosion had occurred and the fire had begun was
inconsistent in a number of places. Consequently, the
commissioner contends, ‘‘[t]he habeas court correctly
concluded that this incomplete and inconsistent testi-
mony ‘would [not] have been helpful in establishing an
alibi defense sufficient to raise reasonable doubt in the
jur[ors’] minds’ and did not ‘[undermine] . . . the out-
come of the criminal jury trial’ . . . .’’ We agree with
the commissioner that the petitioner has failed to dem-
onstrate the requisite prejudice.
With respect to a failure to call alibi witnesses, we
have refused to find prejudice when the alibi defense
is contrary to considerable evidence in the record as
to the petitioner’s location at the relevant time. See
Rodriguez v. Commissioner of Correction, 151 Conn.
App. 232, 238–40, 94 A.3d 722 (no prejudice demon-
strated for failure to investigate alibi defense where
petitioner did not call any of proposed witnesses, and
alibi was contradicted in several material ways by both
evidence at trial and information received separately
by defense counsel), cert. denied, 314 Conn. 910, 100
A.3d 849 (2014).23
In cases where prejudice has been demonstrated, the
courts have focused on both the breadth and the depth
of the impact that the unoffered testimony would have
had on the trial. For instance, in Bryant v. Commis-
sioner of Correction, supra, 290 Conn. 523,24 our
Supreme Court noted that the four witnesses offered
a compelling alternative to the testimony offered at trial.
Appraising this evidence against Bryant, the Supreme
Court noted the failure to call the alternate witnesses
allowed the two primary witnesses against Bryant, who
were of ‘‘dubious credibility’’; id., 525; to connect Bryant
with the testimony of the state’s medical examiner and
left the medical examiner’s testimony uncontested.25
Id., 523–26. Thus, had counsel presented this plausible
alternative supported by neutral, third party witnesses,
it would have called into account ‘‘the most basic ele-
ments of the state’s case in a trial that was largely a
credibility contest.’’ See Gaines v. Commissioner of
Correction, supra, 306 Conn. 692, discussing Bryant v.
Commissioner of Correction, supra, 517–18.
Finally, two recent analyses of the prejudice prong
in cases involving an attorney’s failure to call nonalibi,
nonexpert witnesses require our attention. First, our
Supreme Court’s decision in Sanchez v. Commissioner
of Correction, supra, 314 Conn. 585, provides useful
guidance in weighing the respective factors raised by its
decision in Bryant and in subsequent cases. Following a
trial in which both sides called a considerable number
of witnesses, Jorge Sanchez was convicted of, inter alia,
murder for his participation in a gang related shooting.
Id., 588–98. Reviewing Sanchez’ claim that his attorney
had rendered constitutionally defective assistance by
not calling two further witnesses, the court held that
the strength of the state’s case, the considerable and
numerous problems with Sanchez’ witnesses, and the
intended effect of the proffered testimony—specifi-
cally, discrediting one of the three witnesses—had
already been primarily accomplished at trial and that
this prevented him from demonstrating the necessary
prejudice. Id., 607–13.
Addressing Sanchez’ arguments that his case was
similar to Bryant v. Commissioner of Correction,
supra, 290 Conn. 502, and Gaines v. Commissioner of
Correction, supra, 306 Conn. 664, our Supreme Court
distinguished those cases on the following grounds:
‘‘First and foremost, in each of those cases, the habeas
court expressly found that the proffered witnesses were
compelling and credible. Additionally, those witnesses
were neutral, uninvolved parties who either provided
their accounts contemporaneously with the crime at
issue, or gave a sound and credible reason for not having
done so. Here, in stark contrast, the habeas court found
[the two proffered witnesses] not credible, a finding
that is amply supported by the evidence. . . . Finally,
aside from issues of credibility, the substance and qual-
ity of the testimony offered by the two men differs
significantly from that provided by the witnesses in
Bryant and Gaines: unlike the testimony in those cases,
the testimony of [witnesses here] was not particularly
detailed, and it did not directly concern the ultimate
issues in the case, such as whether the charged crime
actually occurred, whether a third party instead of the
petitioner committed the crime or whether the peti-
tioner could not have committed the crime because he
was elsewhere when it occurred.’’ (Emphasis in origi-
nal.) Sanchez v. Commissioner of Correction, supra,
314 Conn. 617.
Second, in Ayala v. Commissioner of Correction, 159
Conn. App. 608, 609–11, 123 A.3d 447, cert. denied, 319
Conn. 933, 125 A.3d 207 (2015), Victor Ayala had been
convicted of various crimes related to his violent entry
into the home owned by a married couple; this couple,
who testified against Ayala at his underlying trial, had
recanted their allegations against Ayala in signed state-
ments prior to the commencement of trial, but then
testified at trial that their original accounts were cor-
rect. At his habeas trial, Ayala presented two witnesses
who could have testified at his criminal trial as to the
nature and frequency of his habitation in the couple’s
residence. Id., 614–15. On appeal, this court upheld the
habeas court’s determination that the two witnesses
would not have aided Ayala’s defense sufficiently
because: the married couple had known him, had called
the police, had positively identified him, had testified
against him at trial, and although subject to extensive
cross-examination on their own drug use, criminal
activity, and prior recantation, they were believed by
the jury; there was evidence that Ayala had lied to the
police and attempted to disguise his appearance at the
time of arrest; and the habeas testimony of the wit-
nesses and the trial testimony of the couple was mostly
reconcilable. Id., 616–18. We also noted that the habeas
court ‘‘did not explicitly find the testimony of [the two
proffered witnesses] credible.’’ Id., 616.26
In the present case, we begin by noting that the
habeas court, though not making explicit credibility
determinations, stated that it could do so to the petition-
er’s detriment. Further, even assuming the credibility of
the petitioner’s alibi witnesses, the habeas court found
them not to be helpful, as they provided no direct evi-
dence of the petitioner’s location prior to or when the
fire began. As the habeas court was in the best position
to make these determinations, we must accord them
considerable weight. See Sanchez v. Commissioner of
Correction, supra, 314 Conn. 617.
Further, the habeas court reasonably could have con-
cluded on the basis of the record before it that the
testimony of the alibi witnesses would have, at most, a
minimal negative effect on the credibility of Hutchings’
trial testimony for several reasons. First, many of Hutch-
ings’ credibility problems and issues already had been
placed already before the jury, in that both Dolan and
Hopkins highlighted the apparent bias and inconsisten-
cies in Hutchings’ testimony. Second, the petitioner was
known by Hutchings. Third, the testimony of the pro-
posed alibi witnesses did not contradict Hutchings’ tes-
timony that she had seen the petitioner and Newton
carrying a large container into 16 Clover Place about
one hour before the fire began, and that she had spoken
to them at that time.27
Finally, although there was no physical evidence
tying the petitioner to the arson and only one eyewit-
ness, Hutchings, directly tied the petitioner to the arson,
other evidence concerning the guilt of the petitioner,
wholly unaffected by the proposed alibi testimony, was
offered at both the criminal trial and the habeas trial. At
the criminal trial, Hutchings testified that the petitioner
had attempted to intimidate her a few days before she
was to testify at his trial, and a police officer testified
that the petitioner had used a false name when the
officer attempted to arrest him.28 ‘‘Evidence that an
accused has taken some kind of evasive action to avoid
detection for a crime, such as flight, concealment of
evidence, or a false statement, is ordinarily the basis
for a [jury] charge on the inference of consciousness
of guilt.’’ State v. Oliveras, 210 Conn. 751, 759, 557 A.2d
534 (1989). ‘‘[T]he state of mind that is characterized
as guilty consciousness or consciousness of guilt is
strong evidence that a defendant is indeed guilty.’’
(Internal quotation marks omitted.) State v. Robertson,
254 Conn. 739, 761, 760 A.2d 82 (2000). Actions held
to constitute consciousness of guilt evidence include
efforts to intimidate witnesses; id.; and the use of a
false name. See State v. Ali, 92 Conn. App. 427, 435–36,
886 A.2d 449 (2005), cert. denied, 277 Conn. 909, 894
A.2d 990 (2006). The proposed alibi witnesses offered
no testimony during the habeas trial concerning the
alleged threats to Hutchings or about the false name
incident.29
In summary, the petitioner is unable to demonstrate
that the habeas court erred in concluding that he was
not prejudiced by Dolan’s failure to call his relatives
as alibi witnesses. Consequently, as he has failed to
demonstrate either deficient performance or prejudice,
the petitioner’s claim of ineffective assistance of coun-
sel must fail.
II
Next, the petitioner argues that the habeas court
erred in sustaining the commissioner’s objections that
a number of police reports offered at the habeas trial
(specifically, exhibits twenty-two through twenty-
nine)30 were irrelevant and, therefore, in subsequently
granting the commissioner’s motion to dismiss counts
one and two of his petition. He argues that these reports
supported the defense theory that Hutchings received
leniency from the New Haven Police Department and
could have been used to cross-examine her. In response,
the commissioner urges us to affirm the habeas court’s
ruling that these police reports were irrelevant. In par-
ticular, he directs our attention to Gibson v. Commis-
sioner of Correction, 135 Conn. App. 139, 41 A.3d 700,
cert. denied, 305 Conn. 922, 47 A.3d 881 (2012), where
we dismissed an appeal involving the same witness and
similar claims. We agree with the commissioner.
Additional facts are necessary to our resolution of
the petitioner’s claim. At the habeas trial, Dolan was
the first witness called to testify by the petitioner’s first
habeas attorney, Melissa Toddy. During her inquiry into
his preparation and strategy for the trial, Dolan testified
that he learned that Hutchings had been a confidential
informant ‘‘on a number of . . . earlier occasions,’’
though he did not recall getting any other police reports
related to her involvement with the police. Seeking
information concerning past payments that she had
received from the police, he filed various discovery
requests, including the disclosure and production of
‘‘[a]ny and all documents regarding . . . Hutchings’
work as a police informant,’’ and sought to subpoena
a police officer whom he believed was her contact at
the police department. At no point did he receive any
documents related to her activities as a confidential
informant or information concerning her involvement
in either past crimes or complaints that were later
uncorroborated.
Toddy then showed Dolan exhibits twenty-two
through twenty-nine and asked whether he had seen
the reports at issue; he testified that he had not. Follow-
ing the initial objection by the commissioner, Toddy
explained that each of these police reports predated the
petitioner’s arrest, involved situations where Hutchings
either had been arrested for certain incidents or had
reported crimes against third parties that were uncor-
roborated, and, in all of the cases, there were no records
of a conviction. Her ultimate theory was that, if Dolan
had this information, ‘‘he could have inquired in such
a way to show the jury in support of his defense theory
that the witness perhaps received consideration from
the police in that she wasn’t prosecuted sometimes.’’31
On this ground, she argued, the admission of the reports
was required for the court to determine whether the
information that they contained was material and,
therefore, either should have been provided or should
have been discovered and used by Dolan to prepare
his defense.
Articulating further the grounds for his objections,
the commissioner noted that these reports were irrele-
vant because they had nothing to do with the petitioner
and involved unrelated incidents of police conduct.
Explaining why the threshold issue of relevancy had
not been demonstrated, he noted that one cannot
inquire about past arrests that do not result in a convic-
tion and, thus, having this extrinsic information would
be irrelevant because it could not be used. Arguing that
the contents of the reports constituted hearsay and that
parties cannot use extrinsic evidence to impeach, the
commissioner contended that, regardless of whether
Dolan could or could not have discovered the reports
on his own, ‘‘if he can’t ask the questions based on the
reports . . . there can be no relevance to this case
. . . .’’ After hearing the parties’ arguments and
expressing concerns about the relevancy of the docu-
ments, the court sustained the commissioner’s
objection.
We begin by noting that, although the petitioner
argues that dismissal of counts one and two for lack
of a prima facie case was in error, his entire position
is based on the habeas court’s ruling that the reports
were inadmissible because they were irrelevant. There-
fore, we limit our review to the relevancy determi-
nation.32
‘‘All relevant evidence is admissible, except as other-
wise provided by the constitution of the United States,
the constitution of this state, the [Connecticut] Code
[of Evidence] or the General Statutes. Evidence that is
not relevant is inadmissible. . . . Evidence is relevant
if it has any tendency to make the existence of any fact
that is material to the determination of the proceeding
more probable or less probable than it would be without
the evidence. . . . Relevant evidence is evidence that
has a logical tendency to aid the trier in the determina-
tion of an issue. . . . One fact is relevant to another
if in the common course of events the existence of one,
alone or with other facts, renders the existence of the
other either more certain or more probable. . . .
‘‘Evidence is irrelevant or too remote if there is such
a want of open and visible connection between the
evidentiary and principal facts that, all things consid-
ered, the former is not worthy or safe to be admitted
in the proof of the latter. . . . Evidence is not rendered
inadmissible because it is not conclusive. All that is
required is that the evidence tend to support a relevant
fact even to a slight degree, so long as it is not prejudicial
or merely cumulative. . . . Furthermore, [t]he fact that
the [trier of fact] would have . . . to rely on inferences
to make [a] determination does not preclude the admis-
sion of . . . evidence. . . . The trial court [however]
properly could [exclude] evidence where the connec-
tion between the inference and the fact sought to be
established was so tenuous as to require the [trier of
fact] to engage in sheer speculation.’’ (Citation omitted;
internal quotation marks omitted.) Masse v. Perez, 139
Conn. App. 794, 805–806, 58 A.3d 273 (2012), cert.
denied, 308 Conn. 905, 61 A.3d 1098 (2013).
‘‘No precise and universal test of relevancy is fur-
nished by the law, and the question must be determined
in each case according to reason and judicial experi-
ence. . . . The trial judge must consider many factors
in ruling on relevancy. . . . In arriving at its conclu-
sion, the trial court is in the best position to view the
evidence in the context of the entire case, and we will
not intervene unless there is a clear abuse of the court’s
discretion. On appeal, we are limited in our review to
a determination of whether, under the circumstances
of the case, in exercising its broad discretion, the trial
court could legally act as it did, and not whether we,
under the same circumstances, would make the same
ruling.’’ (Internal quotation marks omitted.) State v.
Lewis, 146 Conn. App. 589, 602–603, 79 A.3d 102 (2013),
cert. denied, 311 Conn. 904, 83 A.3d 605 (2014).
The petitioner claims that these reports were relevant
to his claim that there was a Brady violation33 or, in the
alternative, a separate ineffective assistance of counsel
claim pursuant to Strickland.34 ‘‘In Brady, the United
States Supreme Court held that the suppression by the
prosecution of evidence favorable to an accused upon
request violates due process [when] the evidence is
material either [as] to guilt or to punishment, irrespec-
tive of the good faith or bad faith of the prosecution.’’
(Internal quotation marks omitted.) Lapointe v. Com-
missioner of Correction, 316 Conn. 225, 262, 112 A.3d
1 (2015). To prevail on a Brady claim, a party must
demonstrate each of the three following elements: ‘‘The
evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed
by the [s]tate, either [wilfully] or inadvertently; and
prejudice must have ensued. . . . Under the last Brady
prong, the prejudice that the defendant suffered as a
result of the impropriety must have been material to
the case . . . . [T]he evidence will be deemed material
only if there would be a reasonable probability of a
different result if the evidence had been disclosed. . . .
This standard is met if the favorable evidence could
reasonably be taken to put the whole case in such a
different light as to undermine confidence in the ver-
dict.’’ (Citations omitted; internal quotation marks omit-
ted.) Id., 262–63.
‘‘[T]he Brady rule applies not just to exculpatory
evidence, but also to impeachment evidence . . .
which, broadly defined, is evidence having the potential
to alter the jury’s assessment of the credibility of a
significant prosecution witness.’’ (Citations omitted;
internal quotation marks omitted.) Adams v. Commis-
sioner of Correction, 309 Conn. 359, 369–70, 71 A.3d 512
(2013). Thus, our case law has recognized that explicit
agreements or understandings between a witness and
the prosecutor or the police must be disclosed; see,
e.g., id., 370; but ‘‘[a]n unexpressed intention by the
state not to prosecute a witness does not.’’ (Internal
quotation marks omitted.) Elsey v. Commissioner of
Correction, 126 Conn. App. 144, 152, 10 A.3d 578, cert.
denied, 300 Conn. 922, 14 A.3d 1007 (2011).
Pursuant to § 6-6 (b) of the Connecticut Code of Evi-
dence, ‘‘[a] witness may be asked, in good faith, about
specific instances of conduct of the witness, if probative
of the witness’ character for untruthfulness,’’ but extrin-
sic evidence of the specific instances cannot be offered.
Consequently, ‘‘[a] witness may not be impeached for
a prosecution that was nolle prosequi, or a mere arrest,
because there is no conviction . . . but a witness may
be asked if he or she committed the act, provided the
act was indicative of lack of veracity.’’ (Citation omitted;
emphasis omitted.) C. Tait & E. Prescott, Connecticut
Evidence (5th Ed. 2014) § 6.32.3, p. 398.
The petitioner divides these reports into two catego-
ries: reports where leniency allegedly was demon-
strated because Hutchings was arrested, but either no
charges were filed or they were nolled (exhibits twenty-
two, twenty-seven, twenty-eight, and twenty-nine);35
and reports where Hutchings accused another party
of misdeeds and the other party apparently was not
prosecuted (exhibits twenty-three, twenty-four, twenty-
five, and twenty-six).36 These reports, which range from
early 1993 to late 1995, involve alleged crimes wholly
separate from those about which she testified in the
petitioner’s criminal trial and, with the exception of
Hutchings herself, do not involve any other witness or
party from the petitioner’s criminal trial.
Although portions of the submitted reports are
redacted, we note that, apart from these reports, no
other evidence showing any explicit understanding or
agreement with Hutchings on the part of the police or
the prosecutor was offered. Further, for most, though
not all, of the reports, there was also no evidence con-
cerning any actions subsequent to the incidents in the
reports that could explain the reasons why no charges
were brought against Hutchings or against those people
accused by her. Therefore, whatever Hutchings’ subjec-
tive beliefs about the nature of her relationship might
have been,37 the connection between these reports and
a demonstration that she received consideration from
the police is extremely tenuous. Additionally, while rec-
ognizing the discretion of a police officer generally to
determine whether to take action, to warn instead of
to arrest if taking action, and to determine initial
charges, we note that it is prosecutors, not the police,
who wield the discretion ultimately to determine
whether, when, and what charges to pursue. See State
v. Kinchen, 243 Conn. 690, 699, 707 A.2d 1255 (1998);
Massameno v. Statewide Grievance Committee, 234
Conn. 539, 575, 663 A.2d 317 (1995). Finally, as in Gibson
v. Commissioner of Correction, supra, 135 Conn. App.
144–47, the reports were not offered to show that Hutch-
ings was acting as a confidential informant rather than
an eyewitness in this case, and there already was sub-
stantial evidence before the jury of her past activity as
a confidential informant.
Thus, here, as in Gibson v. Commissioner of Correc-
tion, supra, 135 Conn. App. 147–48, the petitioner did
not demonstrate to the habeas court that the evidence
had probative value in any challenge of Hutchings on
cross-examination. On this record, we do not conclude
that the excluded evidence likely would have produced
information that was relevant to the claims before the
court. Accordingly, we conclude that the court properly
sustained the commissioner’s objection. Further, a fail-
ure to find the reports relevant to the materiality prong
of the petitioner’s Brady claim in count one of his
amended petition necessarily renders those reports
irrelevant to demonstrating prejudice as to his Strick-
land claim in count two. See Lapointe v. Commissioner
of Correction, supra, 316 Conn. 266–67 (‘‘the test for
materiality under Brady and the test for prejudice under
Strickland are the same’’). Therefore, as the petitioner’s
arguments that the habeas court erred by dismissing
counts one and two were premised entirely on the
court’s determination that the police reports were irrel-
evant, we cannot conclude that the habeas court’s
action was improper.
The judgment is affirmed.
In this opinion the other judges concurred.
1
This court also stated that the jury reasonably could have found that
Hunter had ‘‘see[n] the [petitioner and Newton] together that morning
. . . .’’ State v. Spearman, 58 Conn. App. 467, 469, 754 A.2d 802 (2000).
After thoroughly reviewing Hunter’s trial testimony, however, we are unable
to find any statement from which the jury reasonably could have made such
a finding, and are unable to ascertain from where this conclusion stemmed.
Reviewing both the closing arguments of the prosecutor in the petitioner’s
original trial and the state’s brief during the petitioner’s direct appeal; State
v. Spearman, Conn. Appellate Court Records & Briefs, February Term, 2000,
State’s Brief pp. 2–3, 11–12; the state at neither point attributed this particular
fact to Hunter. Therefore, finding no support for this statement in the record,
we agree with the petitioner that our previous statement is unsupported,
and we do not attribute it any weight in appraising the petitioner’s claims
in this appeal.
2
The petitioner filed his initial application for a writ of habeas corpus
in 2007, while in custody for the conviction whose legality he presently
challenges, but has since been released from incarceration. We may reach
the merits of the petitioner’s claims, however, ‘‘because he was in custody
at the time he filed the habeas petition and there are collateral consequences
attendant to his conviction.’’ Carpenter v. Commissioner of Correction, 290
Conn. 107, 116 n.6, 961 A.2d 403 (2009); see also Hastings v. Commissioner
of Correction, 82 Conn. App. 600, 603, 847 A.2d 1009 (2004) (discussing
jurisdictional nature of custody requirement in General Statutes § 52-466),
appeal dismissed, 274 Conn. 555, 876 A.2d 1196 (2005).
3
We, like the habeas court, adopt the spelling agreed to by the parties of
this witness’ name.
4
See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984).
5
The admonition in Strickland to avoid reliance on hindsight cuts both
ways, however, as we also cannot rely on hindsight to justify the choices
made by an attorney. See, e.g., Kimmelman v. Morrison, 477 U.S. 365,
386–87, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986); see also Gabaree v. Steele,
792 F.3d 991, 999 (8th Cir. 2015), cert. denied sub nom. Griffith v. Gabaree,
U.S. (84 U.S.L.W. 3358, February 29, 2016); Caldwell v. Lewis, 414
Fed. Appx. 809, 816 (6th Cir. 2011); Madrigal v. Yates, 662 F. Supp. 2d 1162,
1179 (C.D. Cal. 2009). Thus, as articulated by the United States Supreme
Court, ‘‘courts may [neither] indulge post hoc rationalization for counsel’s
decisionmaking that contradicts the available evidence of counsel’s actions
. . . [nor] may they insist counsel confirm every aspect of the strategic
basis for his or her actions.’’ (Citation omitted; internal quotation marks
omitted.) Harrington v. Richter, 562 U.S. 86, 109, 131 S. Ct. 770, 178 L. Ed.
2d 624 (2011).
6
The habeas court in Vazquez admitted that the alibi would have to be
established by Vazquez and his girlfriend, and that both of their interests
in the matter would be subjected to cross-examination, but noted that no
other evidence had been submitted that would suggest that either witness
would be impeachable in any other way. Vazquez v. Commissioner of
Correction, Superior Court, judicial district of Tolland, Docket No. CV-04-
0004441, 2006 WL 3878079, *6 (December 15, 2006), aff’d, 107 Conn. App.
181, 944 A.2d 429 (2008).
7
Vazquez’ defense counsel had passed away and, therefore, was unavail-
able to testify at the habeas trial. Vazquez v. Commissioner of Correction,
supra, 107 Conn. App. 185 n.3.
8
Although the investigator’s report was not entered into evidence during
the habeas trial, Dolan testified about its contents with respect to the general
substance of the alibi that the witnesses would offer.
9
The habeas court stated: ‘‘Attorney Lawrence Hopkins, who represented
codefendant Terrance Newton, argued a motion for a new trial shortly before
Newton and the petitioner were sentenced. The transcript indicates that
exhibit A to the motion for a new trial was a statement by a Priscilla Lassy,
who indicated in that statement that Ms. Hutchings had told her that her
trial testimony was fabricated and motivated by potentially collecting the
twenty-five thousand dollar ($25,000.00) reward offered to resolve the arson
case. . . . The motion for a new trial was denied and the matter proceeded
to sentencing. The petitioner was no longer represented by Attorney Dolan at
sentencing but instead by Attorney Norman Pattis, who also was petitioner’s
appellate counsel.’’ (Citation omitted.)
10
The habeas court stated: ‘‘The notice identifies Jashon Spearman,
Ydalesse Spearman, Edith Hunter, Jay Hunter and Shane Hawkins as alibi
witnesses. All five are also disclosed on the petitioner’s witness list. . . .
The witness list also lists Josh Spearman, Carl Babb, MaryEllen Gunn, Stacey
Spearman, Daniel Blackmon and Detective Joseph Green.’’
11
Dolan could not state, however, what role the testimony of two witnesses
proffered to rehabilitate Hutchings’ testimony played in making this determi-
nation.
12
The habeas court summarized Dolan’s testimony about his strategic
decision not to call the family members as witnesses: ‘‘Attorney Dolan
provided the following rationale: ‘[It was] my fear . . . that the jurors would
potentially compare the two—the two versions and see that maybe [the
petitioner’s] family had a greater motive to protect him and that—and Kather-
ine—and compare that [version to] Katherine Hutchings’ motive for a couple
hundred dollars and say, well, the Spearmans have a greater motive and
maybe water down the proof beyond a reasonable doubt standard and not
hold the state to that—to that high standard, so I was—I made—you know,
made the decision that it was—that we had done enough on cross-examina-
tion and didn’t want to take that risk of—to having the jury water down
the standard of proof beyond a reasonable doubt. And that was only made
after—after the state rested.’ . . . Attorney Dolan reiterated these concerns
and his decision-making process on cross-examination.’’ (Citation omitted.)
13
The habeas court stated: ‘‘The petitioner testified it was his grandmoth-
er’s car. Other witnesses testified the car belonged to Stacey Spearman.’’
14
The habeas court stated: ‘‘ ‘Probably pajama pants or sweatpants or
something. I don’t remember—gym shorts or something.’ . . .’’
15
The habeas court stated: ‘‘Edith Hunter, who lived across the street
from the Spearman residence in a building adjacent to the one that burned
down, testified before the jury that she saw the petitioner for the first time
the morning of the fire when he came out of the house to move the car.
. . . Thus, the jury heard testimony from a nonfamily member about the
petitioner’s location shortly after the fire began.’’
16
Hunter also testified that the petitioner was nicknamed ‘‘Little Man.’’
17
Proceeding first, Hopkins inquired into, inter alia: Hutchings’ past
actions as an informant for the police; the potential conflict in her testimony
that the petitioner had been outside her house a few days before she began
testifying; potential inconsistencies between her statement to the police and
her testimony about when she went to the store and to which store she
went; whether her knowledge of the petitioner and Newton came from
having seen them in the neighborhood; and statements she had made to the
firefighters and parties investigating the fire. Dolan then probed various
aspects of her testimony, including: whether another store might have been
closer and more convenient given that she only had one hour to get certain
items for her children’s field trip; an examination of the route she claimed
to have taken that morning; her recollection of what she had seen on Clover
Place after the fire; her testimony regarding the petitioner’s allegedly having
come by her house and acting in a threatening manner; and her relationship
with the police and her statement to the police on the arson.
18
Baab worked at the Truman School and was there the morning of the
fire. He testified that a man ran up to the door, briefly interacted with him,
and then ran off toward Ella T. Grasso Boulevard. Baab testified that he
previously had had the petitioner as a student, that he had seen the petitioner
periodically since that time, and that he had not recognized the gentleman
at the door.
Though Baab did not testify as to the petitioner’s location at the time of
the fire, his testimony, if credited by the jury, greatly reduced the possibility
that it was the petitioner who ran up to the door of the school. A prior
witness called by the state, Johnnie Robinson, had testified that he lived
on Truman Street. Robinson testified that, immediately prior to seeing smoke
on the morning of the fire, he observed a man run up to the doors of the
school, turn around, and head in the direction of Ella T. Grasso Boulevard.
Robinson affirmed that he had seen this man acting suspiciously earlier that
morning, that this man was approximately the same height as Robinson,
which was six feet tall, and that the man was dressed in what might have
been pajamas. Baab similarly testified that he estimated that the unidentified
man at the door was approximately five feet, ten inches tall, but also noted
that the petitioner was only roughly five feet, five inches in height.
19
Admittedly, it is unclear when Hawkins headed back downstairs, specifi-
cally, whether it was before, simultaneously with, or after the petitioner
had headed downstairs after looking for his keys.
20
We recognize that ‘‘[i]mplied bias may be shown by the relationship of
a witness to a party . . . .’’ State v. Asherman, 193 Conn. 695, 719–20, 478
A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d
814 (1985). Our model jury instructions for criminal jury trials also recognize,
however, that bias is only one of many factors that a trier of fact may rely
upon in making a credibility determination. See Connecticut Criminal Jury
Instructions (4th Ed. 2008) § 2.4-2 (Rev. to November 1, 2008 [modified May
10, 2012], available at http://jud.ct.gov/ji/criminal/part2/2.4-2.htm (last visited
April 4, 2016). As with other issues relevant to a witness’ motive in, or
reason for, testifying, any potential bias of a relative must be considered
by the trier of fact in light of all of the relevant circumstances. Cf. Brethauer
v. Schorer, 81 Conn. 143, 144, 70 A. 592 (1908) (‘‘[t]he testimony of each
[witness] is to be weighed for what it seems to the trier to be worth, in
view of its character, the demeanor of the witness, and the probability
or improbability that what he says is true’’); Connecticut Criminal Jury
Instructions, supra, § 2.4-2 (lodestar of jury’s credibility determination is
‘‘quality of the evidence’’ presented). Thus, an attorney’s failure to call a
family member to testify can amount to ineffective assistance of counsel. See,
e.g., Lopez v. Miller, supra, 915 F. Supp. 2d 428–29, and cases cited therein.
21
Over the course of her testimony, Hunter gave slightly different accounts
for when and where she saw the petitioner for the first time on the morning
of the fire. During Dolan’s cross-examination, she stated that she saw the
petitioner for the first time ‘‘[w]hen he came out the door, out of the house,’’
and that she saw him move a car; she did not recall, however, whether he
returned to his residence afterward. During subsequent cross-examination
by Hopkins, she stated that she did not actually see the petitioner coming
out of the apartment, but, rather, that she saw him only once he was outside
his residence. During further questioning by Dolan, she clarified that she
saw the petitioner ‘‘in front of [the] door’’ to 11 Clover Place. Finally, she
agreed with the state that, under any circumstance, she could not swear
under oath ‘‘that [the petitioner] was inside his house at the time the explo-
sion occurred . . . .’’ It is clear from Dolan’s testimony at the habeas trial
that he also was aware that none of the family members he considered as
alibi witnesses could swear under oath that the petitioner was inside his
house at the time the explosion occurred.
22
Because we find that the record is sufficient to uphold the habeas
court’s determination that Dolan had a reasonable basis not to call the alibi
witnesses, we are not required specifically to examine whether and to what
degree defense counsel can reasonably consider the cross-examination skills
of the prosecutor in determining whether to call a witness. We note, however,
that the petitioner does not assert that the habeas court’s finding that Dolan
considered the skills of the prosecutor in this case was clearly erroneous;
he primarily focuses upon other factual and legal aspects of the habeas
court’s decision in arguing that Dolan’s performance was deficient.
23
In other circumstances, we also have not found prejudice when the alibi
defense was contradicted in material respects by the petitioner’s account or
undercut by his or her actions; see Brown v. Commissioner of Correction,
161 Conn. App. 770, 782–84, 129 A.3d 172 (2015) (although recognizing
weaknesses in accounts and credibility of state’s three eyewitnesses at trial,
no prejudice where petitioner’s statements to attorney as to his location
at time of murder contradicted alibi witness’ account and testimony by
coconspirator that petitioner had instructed him to ‘‘to say that [the peti-
tioner] wasn’t there the night of the shooting’’ created credibility issues for
alibi witness [internal quotation marks omitted]), cert. denied, 320 Conn.
916, A.3d (2016); see also Rodriguez v. Commissioner of Correction,
supra, 151 Conn. App. 238–40; or where the alibi testimony, even if credible,
would leave sufficient time for the petitioner to have committed much or
all of the crime as alleged. See James G. v. Commissioner of Correction,
120 Conn. App. 829, 834–35, 993 A.2d 474 (no showing of prejudice because
‘‘crimes took place over an extended period of time and on multiple occa-
sions’’ such that ‘‘[a]ny effective alibi defense would have had to have
persuaded the jury that the petitioner was absent from the victim’s home
for effectively the entire period during which the crimes were alleged to
have happened’’), cert. denied, 297 Conn. 922, 998 A.2d 168 (2010).
24
We discussed this case in greater depth in part I A of this opinion.
25
As noted by our Supreme Court, the state medical examiner’s testimony
could not conclusively establish Bryant as the cause of the decedent’s death
by blunt force trauma absent the testimony of these two eyewitnesses.
Bryant v. Commissioner of Correction, supra, 290 Conn. 516–17. Addition-
ally, two of the four proffered witnesses ‘‘were . . . trained emergency
medical technicians’’; thus, ‘‘[o]n the basis of their testimony, a jury reason-
ably could have concluded that [the victim] had sustained a gunshot wound
to the left temple area of the head, and that the autopsy performed by the
state’s medical examiner [which did not find a gunshot wound] . . . was
potentially incomplete or inaccurate.’’ Id., 516–17; id., 525–26.
26
Elsewhere, however, this court has accorded the habeas court’s failure
to make an explicit credibility determination less weight. See Dieudonne
v. Commissioner of Correction, 141 Conn. App. 151, 161 n.5, 60 A.3d 385
(2013), appeal dismissed, 316 Conn. 474, 112 A.3d 157 (2015).
27
This is not to say that alibi witnesses’ testimony concerning an accused
party’s presence immediately following a crime cannot be used to support
an alibi in all cases or that circumstantial evidence cannot be used to explain
or bolster his or her alibi. See, e.g., State v. Copas, 252 Conn. 318, 339–40, 746
A.2d 761 (2000) (‘‘[P]roof of a material fact by inference from circumstantial
evidence need not be so conclusive as to exclude every other hypothesis.
It is sufficient if the evidence produces in the mind of the trier a reasonable
belief in the probability of the existence of the material fact.’’ [Internal
quotation marks omitted.]). Such issues, however, concern an issue of the
weight that a fact finder should give the testimony, which is within the sole
province of the habeas court. See Gaines v. Commissioner of Correction,
supra, 306 Conn. 677. Further, although it is conceivable that the alibi
witnesses’ testimony concerning the petitioner’s postexplosion whereabouts
might have impacted either the viability of Hutchings’ preexplosion identifi-
cation of the petitioner or her credibility more generally, such a mere possi-
bility is insufficient to demonstrate prejudice. See Anderson v.
Commissioner of Correction, supra, 313 Conn. 376 (‘‘[t]he likelihood of a
different result must be substantial, not just conceivable’’ [emphasis added;
internal quotation marks omitted]). In this case, however, the petitioner did
not produce a witness for the habeas court who saw him in the home
immediately prior to, or at the time of, the beginning of the fire and explosion.
28
The petitioner, who did not testify in the criminal trial, as was his right,
testified in the habeas trial that he had an outstanding warrant for having
left a halfway house when the officer arrested him. Although this fact might
have explained to the jury his having given a false name to the arresting
officer, it was not offered as evidence at the criminal trial. In the habeas trial,
moreover, the petitioner neither offered any evidence rebutting Hutchings’
allegations that he attempted to intimidate her shortly before she was called
to testify at his criminal trial, nor did he allege in his habeas petition that
Dolan provided ineffective assistance of counsel for failing to call him as
a witness in the criminal trial.
29
Further, testimony concerning a possible motive that the petitioner
might have had for setting the fire was offered during both his criminal and
habeas trials. At the criminal trial, Hunter and Dellamura testified that the
previous tenant of the second floor of 16 Clover Place had moved out, but
had left personal effects such as furniture in the apartment. During the
habeas trial, the petitioner testified that he had had a physical relationship
with Loquita Joiner, a woman who had previously lived at 16 Clover Place;
Joiner had had problems in the past with her roommate; and he knew that,
although the roommate no longer lived there at the time of the fire, she
returned to pick up mail. None of the proposed alibi witnesses offered
testimony at the habeas trial concerning the petitioner’s relationship with
either Joiner or her roommate.
30
Although the relevant headings and certain portions of the text of the
petitioner’s brief suggest that this claim includes exhibit twenty-one, the
majority of the substantive portions of his brief address only those exhibits
we list. We further note that exhibit twenty-one, which consists of a request
for disclosure made during the underlying criminal trial, in fact, was admitted
without objection as a full exhibit.
Additionally, following representations by the commissioner that the alle-
gations in two of the reports were related to an attempted sexual assault
against Hutchings and at least one of these incidents resulted in a conviction,
the habeas court ordered that exhibits twenty-three and twenty-four be
sealed, the sealed exhibits would be retained as a court exhibit for the
purposes of appeal, and redacted copies of these two exhibits would be
submitted. Subsequently, redacted copies of these exhibits were filed and
marked exhibits forty-one and forty-two for identification. We note that the
petitioner does not base his appeal on these aspects of the habeas court’s
decision, and we refer to these two reports as exhibits twenty-three and
twenty-four for the purpose of clarity.
31
Toddy also admitted, however, that due to redacted information it was
unclear in several of these reports what had transpired.
32
Although a subsequent habeas attorney for the petitioner raised other
objections during the habeas court’s consideration of the motion to dismiss
at trial, the petitioner has not pursued these objections on appeal. We,
therefore, consider them abandoned. See Keating v. Ferrandino, 125 Conn.
App. 601, 603–604, 10 A.3d 59 (2010).
33
See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d
215 (1963).
34
The petitioner premises these theories on the argument that if Dolan
could have discovered this evidence, its importance to the cross-examination
of Hutchings would support his claim of ineffective assistance of counsel,
but, if the materials were suppressed, that would support his claim of a
Brady violation.
35
The allegations in these reports involved: criminal mischief where Hutch-
ings allegedly threw a brick through the window of her boyfriend’s car, and
snatched his phone and a jar of pennies, but does not appear to have been
arrested; her apparent arrest following an attempted motor vehicle theft
and a subsequent charge of criminal mischief for kicking the cage in a police
cruiser; stolen and forged checks were returned with the name ‘‘Cathy or
(Cathryn) Hutchings’’; and a breach of the peace where Hutchings and
another woman were arrested for a breach of the peace after fighting in
the street.
36
The three reports to which the petitioner explicitly points involved
allegations of an attempted sexual assault against Hutchings, an attempt to
bribe her to drop these sexual assault charges, and a breach of the peace.
Additionally, the police report marked exhibit twenty-five for identification
involved allegations of a simple assault against Hutchings by one or more
people.
37
We note that in one report, the officer reported that Hutchings allegedly
told him that ‘‘she couldn’t be arrested for her conduct because she is a
drug informant for the narcotics unit.’’