Johnson v. Commissioner of Correction

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 CARVAUGHN JOHNSON v. COMMISSIONER
OF CORRECTION
(AC 36185)
Beach, Keller and Mullins, Js.
Argued December 10, 2015—officially released June 14, 2016

(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Adrienne Maciulewski, deputy
assistant state’s attorney, for the appellant
(respondent).
Damon A. R. Kirschbaum, with whom, on the brief,
was Vishal K. Garg, for the appellee (petitioner).
 Opinion

KELLER, J. Upon a grant of certification to appeal,
the respondent, the Commissioner of Correction,
appeals from the judgment of the habeas court granting
in part the amended petition for a writ of habeas corpus
filed by the petitioner, Carvaughn Johnson. The respon-
dent claims that the court improperly concluded that
the petitioner proved a violation of his right to a fair
trial because he did not receive effective assistance
from his trial counsel. We agree with the respondent
and, accordingly, reverse in part the judgment of the
habeas court.
The following procedural history underlies this
appeal. Following a jury trial, the petitioner was con-
victed of murder in violation of General Statutes § 53a-
54a (a) and carrying a pistol without a permit in viola-
tion of General Statutes § 29-35. The petitioner was
sentenced to a total effective term of imprisonment of
forty-three years. The petitioner brought a direct appeal
to our Supreme Court, which affirmed the judgment of
conviction. State v. Johnson, 288 Conn. 236, 951 A.2d
1257 (2008). Our Supreme Court set forth the facts
that reasonably could have been found by the jury in
returning its verdict: ‘‘The [petitioner] shot and killed
the sixteen year old victim, Markeith Strong, on the
evening of October 10, 2001, in New Haven. In the weeks
prior to that evening, the [petitioner] and the victim
had been at odds with each other. Approximately three
weeks prior to the shooting, the victim’s teenage sister,
L’Kaya Ford, was sitting with the victim at the corner
of Read and Shepard Streets when she observed the
[petitioner] approach.1 The [petitioner] walked toward
Ford and the victim, called the victim ‘a punk,’ and
threatened to assault him. The victim said nothing, and
the [petitioner] walked away.
‘‘The victim next encountered the [petitioner] in the
late afternoon of September 29, 2001, and the two
engaged in a dispute over a bicycle. The victim and
Ralph Ford2 were around the intersection of Read and
Shepard Streets, where the victim either was riding
his bicycle or standing near it, when the [petitioner]
stopped him, declared that the bicycle belonged to him
and demanded that the victim give it to him. The victim
refused and informed the [petitioner] that he had found
the bicycle about one month earlier and had fixed it
up. The victim told the [petitioner] that he owned the
bicycle. The [petitioner] asked for the bicycle a second
time, and, when the victim refused, the [petitioner] said,
‘[d]on’t make me do something to you.’ The [petitioner]
then punched the left side of the victim’s head twice,
which caused a small cut near the victim’s left ear.
During this encounter, the [petitioner] may have been
carrying a gun.3 The [petitioner] then took the bicycle
and rode away.
 ‘‘After this encounter, the victim, accompanied by
Ralph Ford, returned home, where his family contacted
the New Haven police to report the incident. After
speaking with the victim, the police officers radioed a
description of the [petitioner] and notice of a possible
robbery and larceny. The police did not apprehend any
suspect that day. Over the next few days, the [petitioner]
approached the victim and L’Kaya Ford about the police
report, asserted that he was not going to jail, apologized
to the victim and told him not to press charges. Toward
the end of September, the [petitioner] also expressed
concern to his friend, Tashana Milton Toles, about the
possible criminal charges that he faced as a result of
the bicycle incident and specifically remarked to her
that he thought he might be going back to jail.
‘‘On the morning of October 10, the [petitioner]
approached L’Kaya Ford while she was waiting for a
bus. The [petitioner], who was driving a black car that
L’Kaya Ford described as an Acura or Ford Probe,
pulled the car alongside of her and accused her of being
a snitch. The [petitioner] insulted her, told her he did
not like snitches and that she knew what happened to
‘snitches in the hood.’ That night, the victim, L’Kaya
Ford, Ralph Ford, and other friends gathered on the
corner of Read and Shepard Streets to celebrate L’Kaya
Ford’s birthday. Some of the group, but not Ralph Ford
or the victim, were drinking alcohol and smoking mari-
juana. Around 10 p.m., the victim and Ralph Ford
departed together. The neighborhood around Read,
Shepard, Huntington and Newhall Streets affords many
shortcuts through the yards of houses that are occupied
by neighborhood residents. On that night, however,
Ralph Ford did not take his usual shortcut but parted
from the victim, who took the shortcut home. Ralph
Ford then continued walking alone on Read Street and
proceeded around the corner to his house on Newhall
Street.4 Upon arriving at his house, Ralph Ford heard
a gunshot coming from the backyard of the house across
the street. Ralph Ford then entered his front hallway.
Ralph Ford heard someone running from the yard
across the street and saw the [petitioner] run into the
driveway leading to Ford’s house.5 Ralph Ford saw the
[petitioner] carrying a semiautomatic handgun and
entering a black Acura as it exited the driveway.6 James
Baker, who lived near the crime scene, heard someone
run past his window, jump the fence outside his house
and head into the backyard, toward Huntington Street.
Approximately five minutes later, and around 10:20
p.m., Baker heard a single gunshot coming from behind
his house. LaMont Wilson, who had left the group earlier
than Ralph Ford and the victim, lived on Read Street
and also heard a gunshot from the direction of his
backyard, sometime between 10 and 10:45 p.m. Baker
called the police at approximately 10:45 p.m. to report
the gunshot but did not initially identify himself because
he feared retaliation from ‘certain individuals’ for con-
tacting the police. Joanie Joyner, a resident of Hunting-
ton Street and the victim’s next-door neighbor, also
heard a loud ‘boom’ from the direction of her backyard
and then, sometime after 11 p.m., saw something in
her yard. At approximately 11:25 p.m., she also called
the police.
‘‘The [petitioner] contacted Toles by telephone
between 9:45 and 10 p.m., told her that he was about
five minutes away from her dormitory at Southern Con-
necticut State University, and asked if he could visit
her. Toles agreed. The [petitioner] did not arrive at the
dormitory until 11 p.m., at which time he phoned Toles
from the lobby, and she came down to the lobby to
register him as a visitor at the security desk.7 The [peti-
tioner] was with a friend, Travis Scott.8 To enter the
dormitory, the [petitioner] was required to provide iden-
tification at the security desk where security personnel
record the information. The sign-in sheet at Toles’ dor-
mitory indicated that she signed the [petitioner] into
her building at 11:10 p.m. Shortly after they signed in,
a fire alarm required all residents and visitors to evacu-
ate the building. The alarm occurred at approximately
11:30 p.m., and the fire department and university police
responded to the scene. The [petitioner] and Scott
waited with Toles and her roommate until the university
permitted students to reenter the building. They
retrieved their identification from the security desk and
departed. During the investigation, Detective Daryl Bre-
land of the New Haven police department drove from
Ralph Ford’s house to Toles’ dormitory, recorded the
distance to be about three miles and noted that the trip
took approximately ten minutes.
‘‘Officers Mark Taylor and Brian Pazsak of the New
Haven police department were on patrol in the Newhall
and Huntington Street area on the night of October 10,
2001, and received the dispatch related to Baker’s and
Joyner’s calls. Police responded first to Baker’s call and
investigated the general area, but saw nothing amiss.
After responding to Joyner’s call around 11:35 p.m., the
officers found the victim lying face down in Joyner’s
backyard. The victim appeared to be unconscious and
bleeding from the mouth. The officers also found a
spent nine millimeter shell casing nearby. New Haven
fire department personnel were called but were unable
to resuscitate the victim, who was pronounced dead at
the Hospital of Saint Raphael in New Haven.
‘‘Arkady Katsnelson of the chief medical examiner’s
office performed an autopsy of the victim on October
11, 2001, and determined that he had died of a single
gunshot wound to the right side of his face.9 Katsnelson
concluded that the bullet penetrated the victim’s face
and neck, and completely severed the spinal cord,
instantly incapacitating the victim.’’ (Footnotes in origi-
nal.) Id., 239–43.
Thereafter, the petitioner brought an amended peti-
tion for a writ of habeas corpus in which he raised two
types of claims. In the first count of his petition, the
petitioner alleged that his right to conflict free trial
counsel had been violated because his trial counsel,
Scott Jones and Beth Merkin, had an actual conflict of
interest that adversely affected their performance. In
the second count of his petition, the petitioner alleged
a violation of his right to the effective assistance of
counsel. The second count involved trial counsel’s fail-
ure to present (1) a third party culpability defense and
(2) an alibi defense that explained his whereabouts at
the time of the shooting. With respect to the third party
culpability defense, the petitioner alleged that his trial
counsel had ‘‘failed to adequately cross-examine Ralph
Ford about . . . his possession of a pistol that was
consistent with the pistol that discharged the bullet that
killed the victim in the days before the shooting; and
. . . about his prior statement that he did not see any-
thing on the night of the shooting, and that he felt
pressure from the police, the victim’s family, and his
family to implicate the petitioner in the shooting . . . .’’
Also, the petitioner alleged that his trial counsel had
‘‘failed to present the testimony of William Holly about
Ralph Ford’s possession of a pistol that was consistent
with the pistol that discharged the bullet that killed the
victim in the days before the shooting . . . [and] they
failed to present the testimony of . . . Matthew
Whalen [an investigator for the public defender’s office]
about William Holly’s statement that he saw Ralph Ford
in possession of a pistol that was consistent with the
pistol that discharged the bullet that killed the victim
in the days before the shooting . . . .’’10 With respect
to the alibi defense, the petitioner alleged that his trial
counsel had ‘‘failed to present the testimony of Joyce
Johnson, the petitioner’s sister, about the petitioner’s
presence at their home at the time of the shooting; and
. . . they failed to present the testimony of Taylor Allen
about the petitioner’s presence at his home at the time
of the shooting.’’
The respondent denied that the petitioner’s right to
conflict free representation had been violated or that
he had been denied his right to effective representation
at trial. Additionally, the respondent raised the special
defense of procedural default with respect to both
counts of the petition for a writ of habeas corpus. In
a reply to the respondent’s return, the petitioner denied
the special defense.
Over the course of five days, the habeas court held
an evidentiary hearing with respect to the claims set
forth in the petition. In addition to other evidence, the
petitioner presented testimony from Jones; Merkin;
Holly; Thomas Farver, former counsel for Holly;
Whalen; Johnson; Allen; Gerard Petillo, a firearms
examiner and shooting incident reconstruction consul-
tant; and Thomas Ullmann, public defender for the New
Haven judicial district who supervised Jones and Mer-
kin in their trial representation of the petitioner. The
respondent presented testimony from Marc Caporale
and Breland, former detectives with the New Haven
Police Department who had been involved in the investi-
gation into the victim’s death. At a separate, subsequent
hearing, the court heard lengthy closing arguments,
which was followed by the parties’ submission of post-
trial briefs.
In a thorough memorandum of decision, the habeas
court ruled in favor of the respondent with respect
to the conflict of interest claim. With respect to the
ineffective assistance claim, the court determined that
the petitioner’s right to the effective representation of
counsel had been violated by counsel’s failure to pre-
sent a third party culpability claim and by counsel’s
failure to present an alibi defense.
The habeas court set forth the following findings of
fact: ‘‘In the petitioner’s first criminal trial, the court
declared a mistrial due to a hung jury. The state pre-
sented testimony at the first criminal trial from an eye-
witness, Ralph Ford, who testified consistent with his
statements to the police that he heard a gunshot and
saw the petitioner run out of the backyard across the
street carrying a black gun in his hand. At the first
trial, trial counsel presented a partial alibi defense with
testimony indicating that the petitioner was at Southern
Connecticut State University around 11 p.m. on the
night of the murder. [The defense] did not explain the
petitioner’s whereabouts between 10 and 11 p.m. After
the first trial resulted in a hung jury, a juror indicated
that it would have been helpful for the jury to know
where the petitioner was at the time of the shooting
[which occurred] prior to 11 p.m.
‘‘At the petitioner’s second criminal trial, the state’s
key witness, Ford, recanted his prior statement and
testimony that he had seen the petitioner running from
the crime scene with a gun. Instead, Ford testified that
the police forced him to make those statements. Ford’s
prior inconsistent statements at the first criminal trial
were admitted for substantive purposes in the second
criminal trial pursuant to [the doctrine set forth in State
v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied,
479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986)].
‘‘At the second trial, trial counsel’s defense strategy
was that the state failed to prove the petitioner’s guilt
beyond a reasonable doubt, that Ford was not credible,
and that it was Ford that had accidentally shot the
victim, who was Ford’s friend. The petitioner’s trial
attorneys disagreed over whether to present an alibi,
including the petitioner’s whereabouts between 10 and
11 p.m. or a third party culpability defense; Attorney
Jones wanted to present both defenses and Attorney
Merkin did not. Attorney Merkin prevailed and trial
counsel did not present either defense at the second
trial.’’ (Footnote omitted.)
 In addressing the aspect of the petitioner’s ineffective
assistance of counsel claim that involved the failure of
his trial counsel to present evidence in support of a
third party culpability defense, the court set forth rele-
vant legal principles and stated in relevant part: ‘‘The
petitioner claims that trial counsel were ineffective for
failing to call Holly or Inspector Whalen as witnesses
to support the theory that Ford accidentally committed
the murder, or investigate whether Holly could identify
a photograph of the pistol as being the weapon he saw
Ford in possession of [on] the day of the shooting. . . .
‘‘At the second criminal trial, the state established
that the bullet recovered from the victim was from a
Hi-Point nine millimeter pistol or semiautomatic rifle.
At the habeas trial, the petitioner established that Ford
showed Holly a black handgun that Ford had tucked
into the waistband of his pants on the afternoon of the
shooting. Holly believed that a photograph of the Hi-
Point nine millimeter pistol used in the shooting looked
like the gun that he saw Ford carrying. The murder
weapon and Ford’s gun both had ridges above the han-
dle, and ridges were not a common feature on the guns
that Holly had seen.
‘‘The petitioner’s trial attorneys disagreed as to
whether the third party culpability defense should be
presented to the jury. Attorney Jones believed that Hol-
ly’s testimony should have been presented and Attorney
Merkin did not, even though she admitted that Holly’s
testimony was consistent with the defense theory of
the case, which was that Ford accidentally shot the
victim. The court finds the third party culpability
defense consisting of the facts that (1) Ford had been
the last person seen with the victim, (2) was in close
proximity to the location of the shooting at the time of
the shooting, and (3) had been seen with a gun matching
the description of the murder weapon on the day of
the shooting, were consistent with and relevant to the
defense theory that it was Ford who shot the victim
by accident.
‘‘Both Attorney Jones and Attorney Merkin thought
that they would not be able to present Holly’s testimony
without Ford first admitting that he knew Holly. Trial
counsel believed, incorrectly, that they needed, and did
not have, a foundation to introduce third party culpabil-
ity evidence—that is, the testimony of Holly—once
Ralph Ford denied knowing Holly while on the witness
stand at the petitioner’s criminal trial. At the habeas
trial, Attorney Merkin conceded that the presentation
of Holly’s testimony was not contingent upon Ford
admitting that he knew Holly. The issue with presenting
testimony supporting a third party culpability defense
is not about presenting a foundation for admitting the
evidence; it is about the petitioner’s constitutional right
to present a defense and relevant evidence in support
of that defense. . . .
 ‘‘[T]he standard for determining whether evidence
of third party culpability is admissible is whether the
presented evidence is relevant. Here, it was. Holly’s
testimony regarding Ford’s possession of the same type
of gun that was used to kill the victim on the day of
the shooting, as well as other facts pointing to Ford
as the shooter, would have established the necessary
factual nexus for a third party culpability claim regard-
less of whether Ford knew Holly. The court finds it
reasonably likely that the trial court would have allowed
Holly’s testimony.
‘‘The [respondent] argues that Attorney Farver com-
municated to the court on Holly’s behalf that Holly
would assert his fifth amendment privilege and refuse
to testify if he was called [as a witness]. However, both
Attorney Farver and Attorney Merkin testified that they
were uncertain that Holly would have been permitted to
invoke his fifth amendment privilege at the petitioner’s
criminal trial due to the fact that Holly’s pending
charges were unrelated to the petitioner’s case. At the
criminal trial, Farver reported to the court: ‘I met with
Mr. Holly this morning and discussed with him his rights
and whether to testify or not to testify if called upon
to do so. I explained to him, if he, well, first of all, let
me say that he does not wish to testify. It is his position
at this point as he expressed to me that he, first of
all, would exercise a fifth amendment right, although
I candidly don’t know how far the testimony or the
inquiry would be going [or] whether he has such a right.
Quite honestly, I know that he has pending charges of
his own here in the courthouse. I don’t believe those
are related to this case. However, he would first of all
have to assert a fifth amendment right. The court may
choose to find that he does not have a fifth amendment
right as to this particular information that is being
sought. If the court were to rule in that fashion and
order him to testify, I have explained to him that he
could be found in contempt of court if he continues to
decline to testify; he has indicated to me that his posi-
tion would still be that he would refuse to testify
because he has pending charges and he does not want
to testify.’ . . .
‘‘In the present case, Holly’s pending charges were
unrelated to the petitioner’s case, and there is no indica-
tion that Holly’s testimony that he saw Ford with a gun
on the day of the shooting would have exposed him to
any criminal prosecution in the petitioner’s or any other
case. Fear of potential prosecutorial retaliation in an
unrelated case does not constitute sufficient grounds
to invoke the fifth amendment, as it is a mere subjective
belief, not a reality, and the actual testimony would
not have been incriminating in any way. Therefore, the
court finds that it is not reasonably likely that Holly
would have been permitted to invoke his privilege
against self-incrimination in the petitioner’s criminal
case had trial counsel proffered him as a defense wit-
ness to support the third party culpability defense. . . .
‘‘In the present case, the court finds that trial counsel
was deficient for not pursuing the petitioner’s third
party culpability defense because it was supported by
a neutral, credible witness, and the evidence was rele-
vant to the central issue of whether a reasonable doubt
existed as to whether the petitioner committed the
crime. . . . [I]n light of all of the circumstances here,
particularly the recanted testimony of Ford, whose tes-
timony served as the state’s primary evidence, and the
facts pointing to Ford’s culpability, trial counsel’s fail-
ure to . . . present the third party culpability defense
fell below an objective standard of reasonableness, and
therefore constitutes deficient performance pursuant
to [Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984)].
‘‘The court also further finds that trial counsel’s fail-
ure to present the third party culpability defense preju-
diced the petitioner because there is a reasonable
probability that the outcome of the proceedings would
have been different had the defense been presented to
the jury. As a result, the court finds that the petitioner
has satisfied the prejudice prong of Strickland as to
this claim.’’ (Citations omitted.)
In addressing the aspect of the petitioner’s ineffective
assistance of counsel claim that involved the failure of
his trial counsel to present evidence in support of an
alibi defense that involved the testimony of Johnson
and Allen to explain his whereabouts at the time of the
shooting, the court set forth relevant legal principles
and stated in relevant part: ‘‘The petitioner claims that
trial counsel were ineffective for failing to call Johnson
and Allen as witnesses to testify that he was home at
the time of the shooting in support of an alibi defense.
The court agrees with the petitioner on this claim. . . .
‘‘The petitioner’s trial counsel [was] aware of the two
alibi witnesses, Allen and Johnson, who could testify
as to [the] petitioner’s whereabouts between 10 and 11
p.m. on the evening of the shooting, but disagreed as
to whether an alibi defense should be presented. They
were also aware that the jury in the first trial wanted
to know where the petitioner was between 10 to 11
p.m. Attorney Jones wanted to present the alibi defense
because he believed the witnesses were credible and
their testimony explained the petitioner’s whereabouts
at the time of the shooting in response to the first jury’s
concerns as to where the petitioner was between 10
and 11 p.m. Attorney Merkin does not like alibi defenses
generally, and her practice was not to present an alibi
defense unless it was rock solid. Attorney Jones con-
ceded to Attorney Merkin’s decision to not present the
alibi defense because she was more senior to him.
‘‘At the second criminal trial, James Baker, a Read
Street resident, testified that at 10:20 p.m., he heard a
gunshot. Baker did not call the police until 10:45 p.m.
Prior to the petitioner’s first criminal trial, Attorney
Merkin had inaccurate information about the time of
the shooting. She mistakenly believed that the shooting
occurred at 10:45 p.m. Counsel’s notice of alibi, dated
July 29, 2003, inaccurately reported that Baker called
the police at 10:45 p.m., immediately after the shooting
occurred. It was only when Baker testified at the peti-
tioner’s first criminal trial that counsel became aware
that the correct time of the shooting was 10:20 p.m.
‘‘Johnson and Allen testified credibly at the habeas
trial as to the petitioner’s whereabouts on the night of
the shooting. Johnson testified that the petitioner was
home between 5 and 11 p.m. on the night of the shooting.
During that time, Johnson was home with her young
son and was for the most part in the living room in the
front of the apartment watching television. From her
position, she would have been able to see if the peti-
tioner had left the house during that time. At some
point, Johnson was aware that the petitioner and his
friend were at the house and ordered a pizza. The living
room had two large windows facing the driveway, and
any movement outside would have activated the motion
sensor lights in the driveway. If the petitioner had left
through the back door, Johnson would have heard him
because that door screeched loudly when [it was]
opened. At approximately 11 p.m., Johnson heard a
horn honk outside, and she saw the petitioner leave
the house with Allen.
‘‘Allen, who also testified at the habeas trial credibly,
called the petitioner’s cell phone at 10:20 p.m., and he
asked her to call his home telephone number. Allen
immediately hung up and called the petitioner at home
on his landline. Allen and the petitioner spoke for
approximately ten to fifteen minutes on the petitioner’s
home phone. The petitioner then called Allen again from
his home telephone around 10:40 p.m. or 10:45 p.m.
Shortly thereafter, Allen drove to the petitioner’s home,
picked him up at approximately 10:50 p.m. or 10:55 p.m.
and drove him to Southern Connecticut State Univer-
sity.11 The court finds that the testimony of Allen and
Johnson would have been helpful to the petitioner’s
defense.
‘‘Inspector Whalen testified that he interviewed Allen
and Johnson. Johnson informed him that the petitioner
was at home with a friend on the night of the shooting
and someone picked the petitioner up between 10:45
p.m. and 11 p.m. Allen told Inspector Whalen that she
called the petitioner at his home at 10:20 p.m., and she
picked the petitioner up around 10:35 p.m. or 10:40 p.m.
to drive him to Southern Connecticut State University.
At the time of his interview with Allen, Inspector
Whalen was aware of the fact that the victim was shot
at 10:20 p.m. Inspector Whalen reported the information
he received from Johnson and Allen to the petitioner’s
trial counsel.
‘‘Trial counsel also had the partial alibi presented at
the first criminal trial of Toles, who testified that the
petitioner arrived at the Southern Connecticut State
University to visit her at approximately 11:10 p.m. on
the night of the shooting.
‘‘The court finds that trial counsel was aware of the
statements of Johnson and Allen, that their testimony
was credible and that production of such testimony at
trial would have been helpful to the defense. . . .
‘‘[H]ere, trial counsel’s decision to not call the alibi
witnesses was not based on the witnesses’ credibility.
Both Attorney Jones and Attorney Merkin found John-
son and Allen to be credible witnesses. Moreover, the
court finds that their testimony would have been helpful
to the petitioner’s defense that he was home at the time
of the shooting.
‘‘Attorney Merkin decided to not present Johnson’s
testimony because she was related to the petitioner, the
shooting occurred in close proximity to the petitioner’s
home and it was unclear whether the petitioner was in
her direct vision for the entire evening. Attorney Merkin
did not present Allen’s testimony because she believed
that Allen estimated the times of the phone calls, and
the petitioner’s close proximity to the crime scene
would have allowed him to commit the murder despite
receiving and making the phone calls at the times indi-
cated by Allen. Trial counsel acknowledged at the
habeas trial, however, that they failed to investigate
Johnson’s ability to provide an alibi at the times when
the petitioner was not in her direct view. Johnson testi-
fied that the motion sensor lights and the screeching
back door would have prevented the petitioner from
leaving the house without Johnson’s knowledge. More-
over, the times of the phone calls between Allen and
the petitioner were seen on Allen’s caller identification.
That evidence, if presented, would have established
that the petitioner was at home using his landline at
the time the shooting occurred. Further, while Attorney
Merkin was concerned that the alibi defense would
place the petitioner in close proximity to the crime
scene, there was already evidence before the jury that
the petitioner was at Southern Connecticut State Uni-
versity, close to the crime scene, shortly before 11 p.m.
on the night of the victim’s murder. In addition, the
evidence from the three alibi witnesses covered the
time period between 10 and 11 p.m., making it highly
unlikely that the petitioner could have committed the
shooting.
‘‘The court is particularly influenced by the fact that
when trial counsel decided not to submit the petitioner’s
alibi, they were aware that the first jury was conflicted
about the petitioner’s guilt, which resulted in a hung
jury, and [counsel] knew that the first jury wanted to
know where the petitioner was at the time the shooting
occurred. While each jury is different, having this infor-
mation in the petitioner’s second criminal trial was a
significant bonus to the defense and should have been
utilized in determining whether to pursue the alibi
defense.
‘‘Pursuant to the foregoing, the court finds that in
light of the circumstances in this case, and the credible
evidence presented, it was not objectively reasonable
for trial counsel to not present the alibi witnesses. The
court had the opportunity to hear and to evaluate the
two witnesses, and found their testimony to be credible
and compelling and [that the testimony] would have
been helpful to the petitioner’s case. . . . Trial counsel
also found the alibi witnesses to be credible, and that
their testimony would have been helpful to the petition-
er’s defense. Accordingly, the court concludes that the
petitioner has met his burden to prove that counsel’s
conduct was constitutionally deficient under the perfor-
mance prong of Strickland.
‘‘The court also finds that trial counsel’s failure to
call the alibi witnesses prejudiced the petitioner
because there is a reasonable probability that the out-
come of the proceedings would have been different had
it not been for the deficient performance. The court
finds that the testimony from Johnson and Allen likely
would have affected the verdict, especially in light of
the weakness of the state’s case and the fact that the
jurors at the first criminal trial that resulted in a hung
jury were interested in where the petitioner was at the
time of the shooting. As a result, the court finds that
the petitioner has satisfied the prejudice prong of
Strickland as to this claim.’’ (Citations omitted; foot-
note added.)
The court denied the petition with respect to the
conflict of interest claim, and granted the petition with
respect to the ineffective assistance of counsel claim.
The court vacated the judgment of conviction and
returned the case to the trial court for further proceed-
ings. Later, the court granted the respondent’s petition
for certification to appeal, and this appeal by the respon-
dent followed.
The habeas court’s memorandum of decision reflects
that it considered and analyzed separately each of the
two grounds alleged in the petitioner’s claim in which
he alleged that he had received ineffective assistance
from his trial counsel. The court determined that the
petitioner had satisfied his burden under Strickland
with respect to his claim that counsel had failed to
present certain evidence in support of a third party
culpability defense and with respect to his claim that
counsel had failed to present an alibi defense that
explained his whereabouts at the time of the shooting.
Because the habeas court’s judgment rests upon either
of these grounds, it is the respondent’s burden on appeal
to demonstrate that the habeas court erroneously ruled
as it did with respect to both grounds.
‘‘When reviewing the decision of a habeas court, the
facts found by the habeas court may not be disturbed
unless the findings were clearly erroneous. . . . The
issue, however, of [w]hether the representation [that]
a defendant received at trial was constitutionally inade-
quate is a mixed question of law and fact. . . . As such,
that question requires plenary review by [a reviewing
court] unfettered by the clearly erroneous standard.
. . .
‘‘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. . . . It is axiomatic that
the right to counsel is the right to the effective assis-
tance of counsel. . . .
‘‘As enunciated in Strickland v. Washington, [supra,
466 U.S. 687] . . . [a] claim of ineffective assistance of
counsel consists of two components: a performance
prong and a prejudice prong. To satisfy the performance
prong . . . the petitioner must demonstrate that his
attorney’s representation was not reasonably compe-
tent or within the range of competence displayed by
lawyers with ordinary training and skill in the criminal
law. . . . To satisfy the prejudice prong, a claimant
must demonstrate that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. . . . A
court can find against a petitioner, with respect to a
claim of ineffective assistance of counsel, on either
the performance prong or the prejudice prong . . . .’’
(Citations omitted; internal quotation marks omitted.)
Michael T. v. Commissioner of Correction, 319 Conn.
623, 631–32, 126 A.3d 558 (2015).
I
First, we consider the respondent’s claim that the
habeas court erroneously concluded that the petitioner
was deprived of his right to effective assistance of coun-
sel by his counsel’s failure to present testimony from
Holly in support of a third party culpability defense. As
discussed previously in this opinion, this evidence is
centered on the testimony of Holly. We agree with
the respondent.
The respondent challenges the court’s decision with
respect to the third party culpability defense on several
grounds. With regard to the court’s evaluation of the
performance of trial counsel, the respondent argues
that it did not afford adequate consideration to the
evidence that defense counsel’s failure to present Hol-
ly’s testimony in support of the third party culpability
defense was the result of reasonable trial strategy rather
than deficient representation. In this respect, the
respondent focuses on evidence presented at the
habeas trial that supported a finding that defense coun-
sel, in crafting a sound trial strategy, did not want to
divert the jury’s attention from the weaknesses in the
state’s case, particularly, the significance of Ford’s
recantation. With respect to the prejudice prong of
Strickland, the respondent argues: ‘‘[I]n evaluating prej-
udice from the defense team’s decision not to call Holly
to the [witness] stand at the criminal trial, the habeas
court erred in concluding that the petitioner met his
burden of establishing that Holly’s testimony carried
no possibility of self-incrimination and that, therefore,
Holly’s fifth amendment privilege would not have been
an impediment to his testimony.’’ The respondent
argues that the court erroneously concluded that there
was a reasonable likelihood that the outcome of the
trial would have been different if the evidence at issue
had been presented by the defense.
Assuming but not deciding that defense counsel’s
failure to attempt to present evidence from Holly in
support of a third party culpability defense was the
result of representation that was not reasonably compe-
tent, we nonetheless conclude, under the prejudice
prong of Strickland, that the petitioner failed to demon-
strate that there is a reasonable probability that, but
for counsel’s alleged errors, the result of the proceeding
would have been different.
We turn to the findings of the habeas court as well
as some of the pertinent evidence that was not in dis-
pute. The habeas court found, and the record reflects,
that when the issue of Holly’s testimony was first raised
at the time of the criminal trial at a posttrial hearing on
the petitioner’s motion for a new trial, Holly’s counsel,
Farver, communicated to the court that Holly did not
wish to testify, that he intended to exercise his fifth
amendment right to remain silent and that, even if the
court ordered him to testify, he would decline to do
so. Farver communicated to the court that his client’s
position was based upon the fact that he had criminal
charges pending against him.
At the habeas trial, Holly testified that at the time of
the petitioner’s trial, he was incarcerated in Connecticut
and had a case pending in the New Haven courthouse,
in which proceeding he was represented by Ullmann.
Holly testified that with respect to his testifying at the
petitioner’s criminal trial, Ullmann and Farver had
advised him to invoke his right to remain silent. Holly
testified that, later, Farver was appointed to represent
him in connection with his potential involvement in the
petitioner’s trial. Holly testified that he communicated
to Ullmann and Farver that he would not testify. He
testified, however, that, if he had been ordered to do
so, he would have testified consistent with the testi-
mony that he provided before the habeas court in the
present case because, if a court determined that he
could not invoke his right to remain silent, he would
not have had a choice in the matter. Holly explained
that one of the reasons why he did not want to testify
was because he feared that the prosecutor, who was
involved in the petitioner’s trial and in a then pending
investigation of Holly for the crime of murder, would
retaliate against him. He stated, however, that he did
not believe that his testimony in the petitioner’s case
would incriminate him.
At the habeas trial, Ullmann testified that he repre-
sented Holly between 2002 and 2005, the time period
which encompassed the petitioner’s second criminal
trial. He testified that he represented Holly with respect
to a variety of charges that, following a plea negotiation,
resulted in a conviction of robbery in the first degree
and assault on a peace officer. Also, he testified that,
at times relevant, he was representing Holly with
respect to ‘‘some other [legal] issues,’’ as well. Ullmann
testified that he became aware that Holly had informa-
tion that might be relevant to the petitioner’s case and
that members of the petitioner’s defense team wanted
to speak with Holly, at which time Ullmann informed
Whalen that he was representing Holly in relation to a
pending murder investigation and that he had advised
Holly not to speak with him. Ullmann testified that he
understood the information to involve Holly’s observa-
tion of a potential killer who was armed.
Ullmann testified that, later, he arranged for Farver to
represent Holly solely with respect to Holly’s potential
involvement in the petitioner’s trial, but that he contin-
ued to represent Holly with respect to his pending
charges as well as the murder investigation. With
respect to his concern about Holly’s cooperation with
the petitioner’s defense and the importance of providing
the petitioner with representation concerning that
issue, he stated: ‘‘I’m obviously representing somebody
who’s facing serious criminal charges, who’s being
investigated for something else, and I’m [given] this
information about [the desire of the petitioner’s trial
attorneys] to put him on the [witness] stand in relation
to some gun. I’m not letting them talk to him.’’ Ullmann
continued, ‘‘there’s the potential that William Holly
could incriminate himself or hurt his situation in the
pending case that . . . I was representing him on.’’
Additionally, Ullmann explained that he was motivated
by a concern that Holly’s cooperation with the defense
or his testimony in the petitioner’s case could subject
him to retaliation by the prosecutor with respect to his
‘‘very serious’’ pending criminal matters.
At the habeas trial, Farver testified that, during con-
versations with Holly concerning his involvement in the
petitioner’s trial, Holly unequivocally stated to him that
he intended to invoke his right to remain silent and
that, even if he were ordered to testify, he would decline
to do so. Farver testified that he was unsure whether,
at the time that he represented Holly, he was awaiting
sentencing on charges to which he had pleaded guilty.
Moreover, he believed that, at that time, Holly was being
investigated for murder. Farver recalled that this mur-
der investigation was related to the fact that Holly ‘‘had
given a statement possibly [as a] primary or aiding and
abetting a conspiracy that he was in a car, not the
shooter, but he was busted with the gun.’’ Farver testi-
fied that he did not form an opinion with respect to
whether Holly could avail himself of his fifth amend-
ment privilege in the petitioner’s case.
In its findings, the habeas court did not discuss the
significance of Farver’s testimony, which was consis-
tent with his representations at the time of the petition-
er’s second criminal trial, that Holly had represented
to him that he would not testify even if he was ordered
to do so. The habeas court, implicitly accepted as true
Holly’s testimony that he would have testified at the
petitioner’s trial if the court had rejected his invocation
of his fifth amendment privilege, and resolved the fifth
amendment issue by concluding that ‘‘there is no indica-
tion that Holly’s testimony that he saw Ford with a gun
on the day of the shooting would have exposed him to
any criminal prosecution in the petitioner’s [case] or
any other case.’’ The court also reasoned that Holly’s
fear of prosecutorial retaliation was not a valid ground
upon which to invoke the fifth amendment privilege.
The evidence amply supported the court’s finding
that Holly had manifested his intention of invoking his
fifth amendment right to remain silent if he was called
as a witness at the petitioner’s trial. The relevant legal
principles related to the invocation of that right are
well settled in our case law. ‘‘A court may not deny a
witness’ invocation of the fifth amendment privilege
against compelled self-incrimination unless it is per-
fectly clear, from a careful consideration of all the cir-
cumstances in the case, that the witness is mistaken,
and that the answer[s] cannot possibly have [a] ten-
dency to incriminate. . . . To sustain the privilege, it
need only be evident from the implications of the ques-
tion, in the setting in which it is asked, that a responsive
answer to the question or an explanation of why it
cannot be answered might be dangerous because injuri-
ous disclosure could result. . . . In appraising a fifth
amendment claim by a witness, a judge must be gov-
erned as much by his personal perception of the peculi-
arities of the case as by the facts actually in
evidence. . . .
‘‘[T]he right to one’s privilege against prosecution
that could result from the testimony sought does not
depend upon the likelihood of prosecution but upon
the possibility of prosecution. . . . [T]he trial court
[is] obligated to assess only whether a possibility of
future prosecution [exists], or could arise, by virtue
of the proffered testimony in light of existing law.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) In re Keijam T., 226 Conn. 497,
503–504, 628 A.2d 562 (1993). ‘‘The privilege afforded
[by the fifth amendment] not only extends to answers
that would in themselves support a conviction . . . but
likewise embraces those which would furnish a link
in the chain of evidence needed to prosecute the claim-
ant for a . . . crime.’’ (Emphasis added.) Hoffman v.
United States, 341 U.S. 479, 486, 71 S. Ct. 814, 95 L. Ed.
1118 (1951); see also Malloy v. Hogan, 378 U.S. 1, 12–13,
84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); State v. Valeriano,
191 Conn. 659, 666, 468 A.2d 936 (1983), cert. denied,
466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984);
State v. Ayuso, 105 Conn. App. 305, 314, 937 A.2d 1211,
cert. denied, 286 Conn. 911, 944 A.2d 983 (2008).
The respondent argues, and we agree, that the record
before the habeas court precluded a careful consider-
ation of all of the circumstances surrounding Holly’s
invocation of his fifth amendment privilege. Under
Strickland, it was the petitioner’s burden to prove that
he was prejudiced by the deficient performance of his
trial counsel. In the context of the present claim, that
burden necessarily entailed demonstrating that Holly
would have been unable to assert a fifth amendment
privilege with respect to questions concerning his
observations of Ford on the day of the shooting. Yet,
the record presented before the habeas court does not
reveal many details surrounding the serious legal mat-
ters that he faced at the time of the petitioner’s second
criminal trial. These matters included the robbery in
the first degree and assault of a police officer charges
to which he had pleaded guilty, as well as a pending
investigation for murder.
Moreover, despite the scant information available to
the trial court, the undisputed evidence concerning Hol-
ly’s circumstances that was presented to the habeas
court supported a conclusion that Holly’s testimony
about his interaction with Ford possibly incriminated
Holly in criminal activity, regardless of whether such
criminal activity was related directly to the petitioner’s
case or the incident at issue therein. As set forth pre-
viously, there was evidence that, at times relevant, Holly
was the subject of an investigation for a murder that
involved the use of a gun. The evidence suggested that
he had pleaded guilty to charges of robbery in the first
degree and assault of a police officer, but that the pro-
ceedings related to such charges had not concluded.
At the habeas trial, the petitioner relied on Holly’s
testimony to demonstrate that he was prejudiced by
trial counsel’s failure to present such testimony at his
criminal trial. In his posttrial brief before the habeas
court, the petitioner drew the attention of the habeas
court to Holly’s interaction with Ford, his observations
of the gun in Ford’s possession, and his attempt to gain
possession of the gun. Following his direct examination
at the habeas trial, the petitioner’s counsel asked Holly:
‘‘If you had testified, been brought to court and been
ordered by the court to testify, would you have testified
in the same manner then as you did today?’’ Holly
replied, ‘‘Yes.’’
A review of Holly’s testimony at the habeas trial
readily reveals that he was asked questions that not
merely called for him to describe his observations of
and interaction with Ford on the day of the victim’s
murder, but that called for him to explain his familiarity
with guns. Holly’s examination at the habeas trial
reveals the type of inquiry that he would have been
subjected to at the petitioner’s criminal trial and, thus,
sheds light on the issue before us. At the habeas trial,
Holly testified in relevant part that he observed Ford
and the victim on the day of the shooting, when he was
either sixteen or seventeen years of age. During his
direct examination, the following colloquy occurred
between Holly and the petitioner’s counsel:
‘‘Q. . . . Did [Ford] show you a weapon?
‘‘A. Yes. I tried to take it from him.
‘‘Q. What kind of a weapon did he show you?
‘‘A. It was, like, an all black .380 or a nine millimeter.
‘‘Q. Was it a pistol?
‘‘A. Yes.
‘‘Q. Was it a handgun?
‘‘A. A handgun.
‘‘Q. And you said it was either a nine millimeter or
a .380?
‘‘A. Yes.
‘‘Q. And then what did you do when they showed or
when Ralph Ford showed it to you?
‘‘A. I asked to see it, for them to put it in my hand.
And then he took off running.’’
Thereafter, the petitioner’s counsel showed Holly a
photograph of a gun and asked him to compare it with
the one that he had observed in Ford’s possession. Holly
testified that the gun depicted in the photograph was
similar to the one that Ford had showed him that day.
During cross-examination, the respondent’s counsel
asked Holly why he remembered his encounter with
Ford. Holly replied that he remembered seeing Ford
and the victim ‘‘because I tried to get the gun from
them. I wanted that gun.’’ Holly testified during cross-
examination that Ford had showed him the gun, which
was tucked into his waistband, by lifting his shirt. Holly
stated that he told Ford to put the gun in his hand. He
testified that he ‘‘tried to grab’’ Ford, who pulled away
from him. When the respondent’s counsel asked Holly
about the appearance of the gun, Holly stated: ‘‘I know
guns. Yes, it was black. . . . I’d seen the clip of the
gun. That’s how I knew it was either a .380 or a nine
millimeter.’’ (Emphasis added.) When asked whether
he had seen other young men in the Newhallville neigh-
borhood with guns, Holly went on to testify: ‘‘If you were
in the streets, you’re going to see people with guns.’’
During redirect examination, Holly was asked once
again to compare a photograph of a gun with the gun
he had observed. Holly stated: ‘‘The gun Ralph Ford
showed me looked like one of the guns I had before.
That’s why I thought it was real. That’s why I tried to
take it.’’ When asked during further examination by the
respondent’s counsel about the characteristics of the
gun in the photograph, Holly testified that he had seen
similar guns, and that one of the characteristics of the
gun in the photograph was uncommon. Specifically,
Holly testified that he observed ridges on the top of the
gun in Ford’s possession, above the handle, which he
considered to be an uncommon feature of the guns that
he had seen.
At the habeas trial, the petitioner did not attempt to
demonstrate that, if Holly had invoked his fifth amend-
ment privilege at the time of the criminal trial, his testi-
mony at the criminal trial would have been different
from his testimony at the habeas trial. The petitioner,
who bore the burden of proving deficient performance
and prejudice in connection with trial counsel’s failure
to present Holly’s testimony, appears to have relied on
the entirety of Holly’s testimony at the habeas trial
to sustain his burden of proof. Thus, Holly’s habeas
testimony was presented as the type of inquiry to which
Holly would have been subjected at the petitioner’s
trial. On the basis of that inquiry, as well as the evidence
of the criminal issues that Holly faced at the time of
the trial, it is reasonable to conclude that Holly would
have been asked to provide answers that possibly would
have furnished a link in the chain of evidence needed
to prosecute him for one or more crimes.
The inquiries at issue called upon Holly to describe
the basis of his ability to accurately characterize the
gun in Ford’s possession. In doing so at the habeas trial,
Holly revealed that he wanted to gain possession of the
gun on the day of the shooting, he attempted forcibly
to gain possession of the gun on the day of the shooting,
he was very familiar with guns, and he had possessed
one or more guns prior to the day of the shooting.
Against this evidentiary background, Ullmann’s belief,
that any inquiry about guns directed at Holly posed a
danger to his penal interests, was eminently supported
by the questions and answers that comprised Holly’s
examination at the habeas trial. Moreover, as Ullmann
expressed, concerns that Holly’s testimony possibly
would have exposed him to criminal prosecution were
magnified in the present case in light of the fact that
he was already the subject of criminal prosecution in
the New Haven judicial district by the same prosecutor
that was prosecuting the charges against the petitioner.
Although it appears that the habeas court thoroughly
considered the evidence before it, it also appears from
the analysis set forth in the court’s memorandum of
decision that the court took a narrow view of the fifth
amendment issue, considering only whether Holly’s
direct observations of Ford likely would have subjected
him to criminal prosecution, rather than whether it was
possible that any questions asked of Holly during his
direct or cross-examination could possibly have incrim-
inated him in any other criminal prosecution. In light
of the foregoing, we conclude that the court erred in
its determination that Holly could not assert his fifth
amendment privilege. It is not perfectly clear from all
of the circumstances that Holly’s testimony could not
possibly have tended to incriminate him and, thus, pos-
sibly subject him to prosecution. Because the record
reveals that it was likely that the court would have
honored Holly’s invocation of his fifth amendment privi-
lege with respect to inquiries concerning his interaction
with Ford on the day of the shooting, the petitioner
cannot rely on Holly’s testimony at the habeas trial, or
any substantive portion thereof, to demonstrate harm.
In analyzing this claim, we have accepted as true the
habeas court’s unchallenged finding that Holly would
have testified at the petitioner’s criminal trial if he had
been ordered to do so. Assuming, arguendo, that coun-
sel’s failure to present Holly’s testimony was not the
result of sound professional judgment, we conclude
that such failure was not prejudicial to the petitioner.
As we have explained in our analysis of this claim, it
is speculative that the court, at the petitioner’s criminal
trial, would not have honored Holly’s invocation of his
privilege against self-incrimination with respect to
inquiries concerning his interaction with Ford on the
day of the shooting. On the scant record before us
concerning Holly’s pending matters at the time of the
criminal trial, any attempt by this court to determine
what portions of Holly’s testimony, if any, would not
have been subject to a specific claim of privilege and
would have come before the jury would be speculative
in nature.12
Moreover, setting aside any issues related to Holly’s
privilege against self-incrimination, it is purely specula-
tive that any portions of Holly’s testimony would have
been admissible as evidence of third party culpability.
With respect to the admissibility of third party culpabil-
ity evidence, our Supreme Court has stated: ‘‘The admis-
sibility of evidence of third party culpability is governed
by the rules relating to relevancy. . . . Relevant evi-
dence is evidence having any tendency to make the
existence of any fact that is material to the determina-
tion of the proceeding more probable or less probable
than it would be without the evidence. . . . Accord-
ingly, in explaining the requirement that the proffered
evidence establish a direct connection to a third party,
rather than raise merely a bare suspicion regarding a
third party, we have stated [that] [s]uch evidence is
relevant, exculpatory evidence, rather than merely tenu-
ous evidence of third party culpability [introduced by
a defendant] in an attempt to divert from himself the
evidence of guilt. . . . In other words, evidence that
establishes a direct connection between a third party
and the charged offense is relevant to the central ques-
tion before the jury, namely, whether a reasonable
doubt exists as to whether the defendant committed the
offense. Evidence that would raise only a bare suspicion
that a third party, rather than the defendant, committed
the charged offense would not be relevant to the jury’s
determination. A trial court’s decision, therefore, that
third party culpability evidence proffered by the defen-
dant is admissible, necessarily entails a determination
that the proffered evidence is relevant to the jury’s
determination of whether a reasonable doubt exists as
to the defendant’s guilt. . . .
‘‘Whether a defendant has sufficiently established a
direct connection between a third party and the crime
with which the defendant has been charged is necessar-
ily a fact intensive inquiry. In other cases, this court
has found that proof of a third party’s physical presence
at a crime scene, combined with evidence indicating
that the third party would have had the opportunity to
commit the crime with which the defendant has been
charged, can be a sufficiently direct connection for pur-
poses of third party culpability. . . . Similarly, this
court has found the direct connection threshold satis-
fied for purposes of third party culpability when physi-
cal evidence links a third party to a crime scene and
there is a lack of similar physical evidence linking the
charged defendant to the scene. . . . Finally, this court
has found that statements by a victim that implicate the
purported third party, combined with a lack of physical
evidence linking the defendant to the crime with which
he or she has been charged, can sufficiently establish a
direct connection for third party culpability purposes.’’
(Citations omitted; internal quotation marks omitted.)
State v. Baltas, 311 Conn. 786, 810–12, 91 A.3d 384
(2014).
In the present case, the petitioner did not present
any evidence that Ford was armed at the time of the
shooting, physical evidence that tied Ford to the shoot-
ing scene, or a statement by the victim implicating Ford.
Although the petitioner may have attempted to use Hol-
ly’s testimony in an attempt to demonstrate that Ford
was culpable for shooting the victim accidentally, there
was no evidence that Ford had a motive to shoot the
victim. In the absence of additional evidence tying Ford
to the shooting, it is speculative whether the trial court
would have viewed Holly’s testimony as proving a direct
connection between Ford and the shooting, or whether
it would have been viewed as evidence that supported
a mere suspicion that he was implicated in the shooting.
Under Strickland, the petitioner failed in his burden
of demonstrating that his trial counsel’s failure to
attempt to present Holly’s testimony was prejudicial in
that there was a reasonable probability that, absent
such failure, the outcome of the trial would have
been different.13
II
Next, we consider the respondent’s claim that the
habeas court erroneously concluded that the petitioner
was deprived of his right to the effective assistance of
counsel by his counsel’s failure to present evidence in
support of an alibi defense that involved the testimony
of Johnson and Allen to explain his whereabouts at the
time of the shooting.14 We agree with the respondent
that the petitioner failed to demonstrate that counsel’s
strategic decision not to present the evidence at issue
reflected deficient performance.
The respondent challenges the court’s decision with
respect to this aspect of the petitioner’s ineffective
assistance of counsel claim on a variety of grounds.
The respondent argues that the court did not afford
adequate consideration to evidence that defense coun-
sel did not present the alibi evidence as part of an
objectively reasonable overall trial strategy that was
opposed to diverting the jury’s attention away from the
weaknesses of the state’s case and, in particular, the
significance of Ford’s recantation at the time of the
petitioner’s second trial. Likewise, the respondent
argues that the court did not afford adequate consider-
ation to evidence that, apart from their overall trial
strategy, defense counsel had specific concerns about
the strength of the alibi evidence as well as its potential
favorability to the state’s case. Additionally, the respon-
dent argues that the court erroneously concluded that
there was a reasonable probability that, if the alibi evi-
dence at issue had been presented to the jury, the result
of the proceeding would have been different. Following
a careful consideration of the claim, we agree with the
respondent that the petitioner failed to demonstrate
that counsel’s strategic decision not to present the evi-
dence at issue constituted deficient performance under
the Strickland standard.
As stated previously in this opinion, to prevail under
Strickland, ‘‘the petitioner must demonstrate that his
attorney’s representation was not reasonably compe-
tent or within the range of competence displayed by
lawyers with ordinary training and skill in the criminal
law.’’ (Internal quotation marks omitted.) Michael T. v.
Commissioner of Correction, supra, 319 Conn. 631.
‘‘With respect to the performance prong of Strickland,
we are mindful that [j]udicial scrutiny of counsel’s per-
formance must be highly deferential. It is all too tempt-
ing for a defendant to second-guess counsel’s assistance
after conviction or adverse sentence, and it is all too
easy for a court, examining counsel’s defense after it
has proved unsuccessful, to conclude that a particular
act or omission of counsel was unreasonable. . . . A
fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of coun-
sel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court
must indulge a strong presumption that counsel’s con-
duct falls within the wide range of reasonable profes-
sional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the
challenged action might be considered sound trial strat-
egy. . . . There are countless ways to provide effective
assistance in any given case. Even the best criminal
defense attorneys would not defend a particular client
in the same way. . . .
‘‘Similarly, the United States Supreme Court has
emphasized that a reviewing court is required not sim-
ply to give [the trial attorney] the benefit of the doubt
. . . but to affirmatively entertain the range of possible
reasons . . . counsel may have had for proceeding as
[he] did . . . . [S]trategic choices made after thorough
investigation of law and facts relevant to plausible
options are virtually unchallengeable; [but] strategic
choices made after less than complete investigation
are reasonable precisely to the extent that reasonable
professional judgments support the limitations on
investigation.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Id., 632–33.
‘‘Although courts may not indulge post hoc rational-
ization for counsel’s decisionmaking that contradicts
the available evidence of counsel’s actions . . . neither
may they insist counsel confirm every aspect of the
strategic basis for his or her actions. There is a strong
presumption that counsel’s attention to certain issues
to the exclusion of others reflects trial tactics rather
than sheer neglect. . . . After an adverse verdict at
trial even the most experienced counsel may find it
difficult to resist asking whether a different strategy
might have been better, and, in the course of that reflec-
tion, to magnify their own responsibility for an unfavor-
able outcome. Strickland, however, calls for an inquiry
into the objective reasonableness of counsel’s perfor-
mance, not counsel’s subjective state of mind.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Harrington v. Richter, 562 U.S. 86, 109–10, 131 S. Ct.
770, 178 L. Ed. 2d 624 (2011). The presumption that
counsel has acted reasonably may be overcome by a
showing that there was no conceivable tactical justifica-
tion for counsel’s strategy. See, e.g., Holloway v. Com-
missioner of Correction, 145 Conn. App. 353, 367, 77
A.3d 777 (2013).
At the habeas trial, Merkin testified that the defense
strategy was to discredit Ford’s credibility and to chal-
lenge the strength of the state’s case, particularly with
respect to the state’s evidence identifying the petitioner
as the shooter. Merkin testified that the defense
attempted to challenge Ford’s earlier statements to the
police, in which he implicated the petitioner, as being
inherently unreliable. Merkin explained: ‘‘Part of our
theory was that [Ford] wasn’t in a location where he
could see what he claimed to have seen. Part of it was
that he was very coercively, in our view, interrogated
by the lead detective in the case in the middle of the
night, and therefore the information he gave was not
reliable. And part of it was that we had some suspicion
or belief that he was actually involved himself, whether
accidentally or otherwise killing his friend.’’ Merkin
acknowledged, however, that defense counsel had not
developed enough evidence to support the latter part
of the defense strategy. Consistent with Merkin’s testi-
mony, the court found that Merkin ‘‘does not like alibi
defenses generally, and her practice was not to present
an alibi defense unless it was rock solid.’’15
The court found that, through defense investigation,
defense counsel became aware of the potential trial
testimony of Johnson and Allen, and that defense coun-
sel had found Johnson and Allen to be credible wit-
nesses. The court observed that Merkin decided not to
present the testimony of Johnson because she did not
believe it was strong evidence. In this regard, the court
referred to Merkin’s opinions that Johnson was not a
disinterested witness because she was the petitioner’s
sister, Johnson’s testimony supported a finding that the
petitioner was close to the crime scene at the time
that the shooting occurred, and it was unclear from
Johnson’s testimony whether the petitioner was able
directly to observe the petitioner at all times relevant.
With respect to Allen, the court referred to Merkin’s
opinions that Allen’s testimony was not strong because
she merely had estimated the timing of the telephone
calls involving the petitioner, and that the testimony
was potentially more favorable to the state’s case, par-
ticularly in light of the fact that the evidence would
have placed the petitioner in close proximity to the
crime scene at the time that the shooting occurred.16
Consistent with the testimony of Merkin and Jones,
the court recognized that trial counsel’s failure to pre-
sent the testimony of Johnson and Allen was not inad-
vertent, but the result of a considered trial strategy. In
general terms, the strategy was designed to focus the
jury’s attention on weaknesses in the state’s case, par-
ticularly the fact that Ford had recanted his earlier
statements in which he had identified the petitioner as
being present at the scene of the crime with a gun. In
this general sense, defense counsel did not want the
jury to focus on possible weaknesses in its alibi defense
or to afford the prosecutor an opportunity to draw the
jury’s attention away from the state’s case. In specific
terms, defense counsel also expressed concerns that
were directly related to potential issues with the
strength of the potential testimony of Johnson and
Allen, as well as concerns that their testimony, if found
to be credible by the jury, had the potential to assist
the state by demonstrating that, at or around the time
of the shooting, the petitioner was at his residence, just
two blocks away from the crime scene.
The court, however, did not view defense counsel’s
general strategic decision to be reasonable because, as
it found, the alibi testimony at issue ‘‘would have been
helpful to the petitioner’s defense that he was at home
at the time of the shooting.’’ The court did not appear
to afford any deference to defense counsel’s concern
that presenting the alibi defense would have diverted
the jury’s attention away from the weaknesses of the
state’s case, particularly in light of the fact that Merkin
believed that the defense had done a ‘‘very good job’’
in undermining Ford’s identification of the petitioner.
Additionally, rather than evaluating whether there
existed conceivable tactical justifications for counsel’s
assessment of the alibi evidence, the court set forth a
number of reasons as to why it did not share trial coun-
sel’s concerns about the strength of the alibi testimony.
For example, the court, relying on Johnson’s testimony,
determined that she was able to provide a strong alibi
for the petitioner despite the fact that the petitioner
was not in her direct view at times relevant.17 The court
determined that any confusion concerning the timing
of calls made between Allen and the petitioner could
have been resolved by means of evidence obtained from
the caller identification feature on Allen’s telephone.18
Moreover, the court determined that counsel’s concern
that the alibi evidence would have placed the petitioner
close to the crime scene at the time of the shooting
was unfounded because there was what it considered to
be evidence of a similar nature before the jury, namely,
evidence that the petitioner was at Southern Connecti-
cut State University shortly before 11 p.m. on the night
of the shooting.19
Affording plenary review to the issue, we conclude
that the representation that the defendant was afforded
was constitutionally adequate. The petitioner has failed
to sustain his evidentiary burden of demonstrating that,
under all of the circumstances, defense counsel’s strate-
gic decision not to present the alibi defense was not
objectively reasonable. Here, defense counsel
described at length the reasons underlying their deci-
sion not to present the alibi evidence, and the court
found that the decision was not the product of neglect,
but strategy. It is not the role of a reviewing court to
second-guess the myriad of considerations that underlie
a trial strategy in an attempt to determine with the
benefit of hindsight whether it would have made the
exact same strategic decisions. Rather, a reviewing
court must determine whether, at the time of trial, con-
ceivable justifications existed for the tactical decisions
that were made by counsel.
‘‘Our review of an attorney’s performance is espe-
cially deferential when his or her decisions are the result
of relevant strategic analysis. . . . Thus, [a]s a general
rule, a habeas petitioner will be able to demonstrate that
trial counsel’s decisions were objectively unreasonable
only if there [was] no . . . tactical justification for the
course taken. . . .
‘‘[T]he presentation of testimonial evidence is a mat-
ter of trial strategy. . . . Defense counsel will be
deemed ineffective only when it is shown that a defen-
dant has informed his attorney of the existence of a
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 ineffec-
tive assistance unless there is some showing that the
testimony would have been helpful in establishing the
asserted defense. . . .
‘‘[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 . . . .
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.’’ (Citations omitted; internal quotation marks
omitted.) Spearman v. Commissioner of Correction,
164 Conn. App. 530, 541, A.3d (2016). As the
United States Supreme Court has observed, ‘‘To 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.’’ Harrington v. Richter, supra, 562
U.S. 109.
The petitioner failed to demonstrate that defense
counsel’s general strategy to keep the jury’s focus on
weaknesses in the state’s case, instead of diverting
focus to an alibi defense, was unreasonable under the
circumstances. This is particularly true in light of the
weakness in the state’s case following Ford’s recanta-
tion. Moreover, even if the petitioner could demonstrate
that such a general strategic decision was unreasonable,
in the present case, defense counsel raised many rea-
sonable concerns about the overall strength of the alibi
evidence, including its potential to benefit the state’s
case by placing the petitioner near the scene of the
crime at the time that it was committed. The petitioner
has failed to demonstrate that, as a whole, these specific
reasons related to defense counsel’s evaluation and
assessment of the alibi evidence did not reflect sound
professional judgment.20 The fact that this was not the
only reasonable trial strategy that was available to coun-
sel, or that it ultimately was not successful, is not dis-
positive of the issue of whether the strategy employed
was objectively reasonable. Employing the strong pre-
sumption that counsel’s conduct reflected reasonable
representation, as we must, we conclude that the peti-
tioner failed to satisfy his burden under Strickland’s
first prong.
The judgment is reversed only with respect to the
count alleging ineffective assistance of counsel and the
case is remanded to the habeas court with direction to
deny the petition for a writ of habeas corpus on that
count. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
‘‘The record reveals that the area of New Haven where most of the
pertinent events occurred is called Newhallville and is a block-shaped area
formed around the intersections of Read, Shepard, Huntington and Newhall
Streets.’’ State v. Johnson, supra, 288 Conn. 239 n.4.
2
‘‘L’Kaya Ford and Ralph Ford are not related.’’ State v. Johnson, supra,
288 Conn. 239 n.5.
3
‘‘The victim told police investigating the incident that the [petitioner]
did not have a weapon. A witness, Dwana Wilson, however, saw the encoun-
ter from across the street and testified that she had witnessed the [petitioner]
holding a black handgun and pointing it at the victim.’’ State v. Johnson,
supra, 288 Conn. 239 n.6.
4
‘‘Ralph Ford did not explain why he did not remain with the victim and
take the usual shortcut home that night, other than indicating that he liked
to walk on Read Street.’’ State v. Johnson, supra, 288 Conn. 241 n.7.
5
‘‘Ralph Ford, the state’s key identification witness, recanted his testimony
from the [petitioner’s] first trial at the [petitioner’s] retrial, but his prior
inconsistent statements were used to impeach him at the second trial and
admitted as substantive evidence . . . .’’ State v. Johnson, supra, 288 Conn.
241 n.8.
6
‘‘At trial, Toles testified that, earlier that day, she had seen the [petitioner]
in a cranberry colored car that she believed was a Dodge Intrepid. The
[petitioner] was a passenger in the car and was accompanied by two other
people.’’ State v. Johnson, supra, 288 Conn. 241 n.9.
7
‘‘There was conflicting testimony at trial about the clothes that the
[petitioner] was seen wearing on the night the victim was shot. Toles
observed him around 11 p.m. wearing ‘[a] black T-shirt, some blue jeans, a
black leather coat, and black Jordan sneakers.’ Ralph Ford’s testimony from
the [petitioner’s] first trial was read into evidence at the second trial, and
he testified that, when he saw the [petitioner] running across Huntington
Street from the direction of the gunshot, the [petitioner] was wearing blue
jeans, a grey hooded sweatshirt with orange stripes on the sleeves, and
black boots.’’ State v. Johnson, supra, 288 Conn. 242 n.10.
8
‘‘Toles did not see what car, if any, the [petitioner] and Scott arrived in
that evening.’’ State v. Johnson, supra, 288 Conn. 242 n.11.
9
‘‘The police, relying on information received and the identifications made
by Ralph Ford and L’Kaya Ford, secured a search warrant for the [petition-
er’s] residence and seized a .45 caliber handgun. Ballistics testing confirmed
that the gun seized from the [petitioner’s] home was not the gun used to
kill the victim. The parties stipulated at trial that there was no record of a
permit in the defendant’s name to carry a handgun. The police also seized
a pair of black, high-top sneakers from the [petitioner’s] home but did not
find a gray sweatshirt with orange stripes or blue jeans.’’ State v. Johnson,
supra, 288 Conn. 243 n.12.
10
Also, the petitioner alleged that counsel rendered deficient representa-
tion in that they had failed to present testimony of a Jermaine Diggs, who
was not called as a witness at the habeas trial. The habeas court determined
that the petitioner abandoned this aspect of his claim of ineffective
assistance.
11
Allen testified that she was driving a van when she picked up the peti-
tioner.
12
The petitioner presented Holly’s testimony before the habeas court as
evidence of prejudice. Before this court, the petitioner observes that, at the
time of the criminal trial, the court could have ordered Holly to testify while
restricting direct and cross-examination of him in such a manner as to
protect his right against self-incrimination. Thus, the petitioner argues that
Holly’s testimony at the criminal trial ‘‘could have been limited to the sole
issue of his having seen Ford with a gun similar to that used to kill the
victim near the time of the shooting.’’ The petitioner argues that Holly ‘‘would
have been required to answer questions about having seen Ford with a gun
and asking him to describe the gun, even if he would have been permitted
to invoke the privilege in response to questions about trying to take the
gun.’’ The petitioner’s argument in this regard is based on his assertion that
‘‘it is perfectly clear from all of the facts presented at the habeas trial that
answers from Holly to questions calling for information about his having
seen a gun and a description of that gun could not possibly have any tendency
to incriminate him.’’
Holly was not called as a witness at the petitioner’s criminal trial and, at
the habeas trial, Holly testified without invoking his privilege against self-
incrimination. A hearing concerning what inquiries, if any, would have been
precluded by the exercise of Holly’s privilege did not occur in this case.
Thus, the petitioner invites this court to speculate with respect to the portion
of that testimony that the petitioner would have been compelled to provide
consistent with the invocation of his privilege. A court’s evaluation of
whether to preclude the exercise of the fundamental constitutional right
at issue is inherently fact-bound. ‘‘To sustain the privilege [against self-
incrimination], it need only be evident from the implications of the question,
in the context in which it is asked, that a responsive answer to the question
or an explanation of why it cannot be answered might be dangerous because
injurious disclosure could result. . . . Conversely, before refusing to allow
the privilege, the trial court must find that the answers to any questions
proposed cannot possibly have a tendency to incriminate. . . . The privilege
against self-incrimination depends on the mere possibility of prosecution.’’
(Citations omitted; internal quotation marks omitted.) State v. Cecarelli, 32
Conn. App. 811, 819, 631 A.2d 862 (1993). We reject the petitioner’s argument.
In the absence of a factual record that provides far greater information
concerning the matters pending against Holly at the time of the criminal
trial, it is not perfectly clear that any testimony from Holly in which he
described his interaction with Ford and his observations of Ford’s gun could
not possibly have any tendency to incriminate him. If it would have been
feasible and likely for the court to have limited the inquiries of Holly in
the manner suggested by the petitioner, it was the petitioner’s burden to
demonstrate this fact before the habeas court on the basis of adequate facts.
We reiterate that it was the petitioner’s burden to create a factual record
to demonstrate that Holly would not have been permitted to exercise his
privilege against self-incrimination with respect to evidence helpful to the
petitioner.
13
As discussed previously in this opinion, the petitioner relies on Holly’s
testimony before the habeas court to demonstrate that, under Strickland,
he was prejudiced by counsel’s failure to present Holly’s testimony at his
criminal trial. Alternatively, the petitioner argues that this court ‘‘should
hold that [he] need not prove prejudice because [his] trial counsel’s failure
to present evidence of third party culpability through . . . Holly was an
adverse effect of counsel’s conflict of interest.’’
This conflict of interest claim was raised before and rejected on its merits
by the habeas court. In relevant part, the court stated: ‘‘[T]he petitioner
alleges that trial counsel had a duty to present Holly and Inspector Whalen
as witnesses to testify at the second trial as to Holly’s statement that he
saw Ford in possession of a pistol matching the description of the murder
weapon [on] the day of the shooting. The petitioner further claims that trial
counsel failed to present this testimony because Attorney Ullmann, the head
of the New Haven public defender’s office and trial counsel’s supervisor,
represented Holly in an unrelated [matter] and advised Holly not to cooperate
with the petitioner’s defense. This, he claims, constituted a conflict of
interest.
***
‘‘At the time of the petitioner’s second criminal trial, Holly had a criminal
matter pending that was unrelated to the petitioner’s case. Attorney Ullmann
represented Holly in that matter. Inspector Whalen contacted Holly on behalf
of the petitioner’s defense, and Holly informed him that he had seen Ford
with a handgun with a description similar to the murder weapon. Attorney
Ullmann advised Holly not to testify at the petitioner’s criminal trial because
the same prosecutor was handling both the petitioner’s case and Holly’s
pending case, and he did not want the prosecutor to retaliate against Holly
in his case for assisting the petitioner’s defense. Attorney Ullmann subse-
quently appointed a private attorney, Attorney Farver, to represent Holly
with respect to Holly’s involvement in the petitioner’s case. Both Attorney
Jones’ and Attorney Merkin’s decision not to call Holly as a witness at the
petitioner’s trial was not impacted by the fact that Attorney Ullmann was
their supervisor, and had advised Holly not to testify. . . .
‘‘[A]n actual conflict of interest does not arise in the present case solely
because trial counsel and Attorney Ullmann worked in the same government
office while representing parties with adverse interests. Further, the court
finds no specific instances in which the petitioner’s interests have been
adversely affected by trial counsel’s representation. Attorney Ullmann
appointed a private attorney to represent Holly with respect to the petition-
er’s case to avoid any potential conflict, and both Attorney Jones and Attor-
ney Merkin testified that Attorney Ullmann’s status as their supervisor or
[his] position as to Holly’s testimony did not impact their decision not to
call him as a witness in the petitioner’s second trial. Accordingly, the peti-
tioner has failed to prove his actual conflict of interest claim.’’
In arguing before this court that a conflict of interest actually existed that
obviated the requirement that he prove that he was prejudiced by defense
counsel’s failure to present Holly’s testimony, the petitioner argues that the
habeas court erred in its critical finding that Ullmann did not have any
adverse effect on defense counsel’s representation of him, and that Ullmann
did not impact their decision not to present Holly’s testimony. The petition-
er’s argument with respect to an actual conflict of interest on the part of
defense counsel is not persuasive. Before this court, the petitioner calls into
question the factual determinations of the habeas court with respect to
defense counsel’s loyalties and their decision-making concerning Holly. His
arguments fail because the court’s unambiguous factual findings in this
regard are amply supported by the testimony presented at the habeas trial.
14
In his brief before this court, the petitioner asserts that the judgment
of the habeas court may be supported by the fact that defense counsel
‘‘failed to adequately investigate the strength of the petitioner’s alibi.’’ He
argues that ‘‘trial counsel failed to adequately investigate the strength of
the alibi witnesses’’ and ‘‘had no reasonable basis to stop investigating before
discovering [relevant] facts’’ related to their testimony. The petitioner argued
that, had defense counsel questioned Johnson adequately, they would have
learned that he could not have left his residence without alerting her that
he was doing so.
The petitioner’s arguments that are based upon an inadequate investiga-
tion are not properly before us. In his amended petition for a writ of habeas
corpus, the pleading that framed the issues before the court, the petitioner
did not set forth allegations related to deficiencies in defense counsel’s
investigation of the alibi witnesses. Rather, he alleged that defense counsel
had ‘‘failed to present’’ the testimony of Johnson and Allen. Moreover, the
habeas court’s memorandum of decision does not reflect that the court
considered on its merits any claim related to inadequate investigation of
the witnesses at issue. The court stated among its many findings that, at
the habeas trial, defense counsel ‘‘acknowledged . . . that they failed to
investigate Johnson’s ability to provide an alibi at the times when the peti-
tioner was not in her direct view.’’ There is nothing in the court’s decision
to reflect, however, that the court based its decision on that isolated finding
or any theory of the case related to defense counsel’s investigation. Consis-
tent with the grounds set forth in the amended petition for a writ of habeas
corpus, the court stated that the issue before it was the petitioner’s claim
‘‘that trial counsel were ineffective for failing to call Johnson and Allen as
witnesses to testify that he was at home at the time of the shooting in
support of an alibi defense.’’
This is not one of the rare cases in which, in the absence of an amendment
to the operative pleadings, a lower court has considered, or granted relief,
on the basis of a technically unpleaded claim that was actually litigated at
trial. See Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 575,
715 A.2d 46 (1998). ‘‘It is well settled that [t]he petition for a writ of habeas
corpus is essentially a pleading and, as such, it should conform generally
to a complaint in a civil action. . . . The principle that a [petitioner] may
rely only upon what he has alleged is basic. . . . It is fundamental in our
law that the right of a [petitioner] to recover is limited to the allegations
of his complaint. . . . While the habeas court has considerable discretion
to frame a remedy that is commensurate with the scope of the established
constitutional violations . . . it does not have the discretion to look beyond
the pleadings and trial evidence to decide claims not raised. . . . This court
is not bound to consider claimed errors unless it appears on the record that
the question was distinctly raised . . . and was ruled upon and decided by
the court adversely to the [petitioner’s] claim. . . . This court is not com-
pelled to consider issues neither alleged in the habeas petition nor consid-
ered at the habeas proceeding . . . .’’ (Citation omitted; internal quotation
marks omitted.) Greene v. Commissioner of Correction, 131 Conn. App.
820, 822, 29 A.3d 171 (2011), cert. denied, 303 Conn. 936, 36 A.3d 695 (2012);
see also Johnson v. Commissioner of Correction, 285 Conn. 556, 580, 941
A.2d 248 (2008). In conformity with this principle of appellate review, we
decline to address on their merits any arguments related to the alleged
deficient performance of defense counsel in failing to properly investigate
the strength of the alibi witnesses’ potential testimony.
15
In this regard, Merkin testified: ‘‘It was my belief . . . from years of
doing this type of work . . . that unless they are solid, [alibis] can get you
into trouble. It’s the last thing the jury hears if you have a good prosecutor
who’s a good cross-examiner and can try to kind of attack either a family
member who’s an alibi witness or some other vulnerability to the alibi. To
me, it pulls attention away from the weaknesses in the state’s case, and it
kind of develops jurors’ focus on the weaknesses in the alibi. So, it’s just
been my practice to shy away from alibis unless they’re solid, and I had
some concerns about the alibi in this case.’’
Similarly, Merkin stated: ‘‘I know that there’s a difference of opinion on
this . . . . My opinion is that if you put alibi evidence on which has vulnera-
bilities, after the state’s sole eyewitness testifies . . . the last piece of the
case that the jury is left with is a weak or possibly problematic alibi, and
it draws the jury’s attention away from the weaknesses in the state’s case.
Jurors aren’t supposed to shift burdens and things of that sort, but it’s my
opinion that . . . if they’re presented with alibi evidence that’s not solid,
their focus kind of gets taken away from the weaknesses in the state’s case.’’
16
Defense counsel did not testify that they disbelieved Johnson or Allen.
Merkin testified that she had a wide range of concerns with respect to
presenting the testimony of Johnson and Allen in support of an alibi defense.
Merkin explained that Johnson was not a disinterested witness, but a family
member of the petitioner; the alibi evidence would have demonstrated that
the petitioner was close to the scene of the shooting at the time that the
shooting occurred; and she believed that Johnson’s testimony was not strong
because Johnson had not informed the police about the petitioner’s where-
abouts. Merkin also explained that Johnson was not always consistent with
respect to when she had observed the petitioner leave the residence, and
that she did not believe that Johnson’s version of events would withstand
a thorough cross-examination because it would have been relatively easy
for a skilled prosecutor to draw the jury’s attention to the fact that she did
not directly observe the petitioner at all times relevant. She stated that the
fact that Johnson was unable to testify that she directly had observed the
petitioner in her residence at the time of the shooting was a deficiency in
the alibi.
Merkin explained that because of uncertainties in Allen’s testimony, she
was not satisfied that it would have precluded the jury from finding that
the petitioner committed the shooting and, in any event, it demonstrated
that he was in close proximity to the crime scene at the time of the shooting.
Moreover, Merkin believed that Allen’s testimony was not favorable to the
extent that it essentially demonstrated that the petitioner had asked Allen
to drive him away from the general area of the crime scene at a late hour
of the day. With respect to this last observation, Merkin testified that she
had concerns that such evidence would have permitted the state to seek
an instruction concerning evidence of flight and consciousness of guilt, to
the petitioner’s detriment. She stated: ‘‘I didn’t like that because the jurors
could infer that he had maybe done the shooting and was taking off
[with Allen].’’
Repeatedly, Merkin indicated that she deemed the fact that the alibi
evidence would have placed the petitioner near the scene of the shooting
to be an important factor that mitigated against presenting the evidence at
issue. Despite her reservations about alibi defenses, Merkin testified that if
the alibi evidence had placed the petitioner farther away from the scene of
the crime she would not have ‘‘struggled’’ with the decision whether to
present the evidence. Merkin testified that if Johnson and Allen could have
supported an alibi that was ‘‘connected to a location miles away from the
crime . . . the balance for me would have tipped in favor of putting that
defense on in front of this jury.’’
In his testimony before the habeas court, Jones discussed the general
defense strategy of focusing on the weakness of Ford’s identification of the
petitioner. Jones shared some of Merkin’s concerns with respect to the
strength of the alibi evidence, particularly the concern that the evidence
did not provide a rock-solid alibi that, if believed, precluded a finding that
the petitioner could have committed the crime. Jones observed that the
alibi evidence would have placed the petitioner at his home, which was
located mere blocks from the crime scene. Jones expressed his concern
that, even if the alibi evidence had been presented to the jury, the jury could
have found it plausible that the petitioner had the opportunity to commit
the crime. Jones, like Merkin, wrestled with the issue of whether it was a
good strategy to divert the jury’s attention to an alibi defense, but he indicated
that he favored presenting the alibi evidence. Despite this disagreement
with her as to trial strategy, he viewed Merkin as an excellent trial attorney
and agreed with her overall assessment of the weaknesses in the state’s case.
17
In this regard, the court appears to have relied on Johnson’s testimony
that, even if she was not able to directly view the petitioner, she would
have been able to determine if he had left the residence because she would
have heard the kitchen door open and would have noticed if the motion-
activated light outside of her residence had been activated by his movement.
The court found, and the evidence reflects, that defense counsel did not
investigate Johnson’s testimony in this regard. Even if defense counsel had
been aware of this explanation from her, however, it would not have been
unreasonable for counsel, in the exercise of sound professional judgment,
to determine that the evidence was not persuasive in nature.
18
Although the court appears to have determined that the defense could
have presented evidence of this nature with respect to all calls made between
the petitioner and Allen on the night of the shooting, Allen testified that the
caller identification system on her telephone contained information about
the telephone calls that the petitioner made to her. Allen testified that the
system did not have information about the timing of the telephone calls
that she allegedly had made to the petitioner closer to the suspected time
of the shooting. Thus, the evidence presented at the habeas trial did not
undermine the sound strategic reasons articulated by Merkin for not pre-
senting Allen’s testimony.
19
There was evidence that the shooting occurred between 10:20 and 10:30
p.m. There was evidence that the petitioner’s residence was within two
blocks of the crime scene and that it took the petitioner several minutes
to drive to Southern Connecticut State University from his residence. Thus,
the evidence showing that the petitioner was at Southern Connecticut State
University shortly before 11 p.m. is not as potentially incriminating as the
alibi evidence that would have placed the petitioner at his residence, just
two blocks from the crime scene, at a time that was much closer to the
suspected time of the shooting.
20
Although the court did not refer to it when assessing the reasonableness
of defense counsel’s strategic decision not to present Johnson’s testimony,
we note that an excerpt from one of the police incident reports that was
introduced as an exhibit during the habeas trial reflects that, on the day
following the shooting, the petitioner, after signing a waiver of rights form,
told the police that he was home at his residence on Butler Street the night
before, but he ‘‘could not remember who was home or saw him.’’