Jordan v. Commissioner of Correction ( 2022 )

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BRYAN JORDAN v. COMMISSIONER
OF CORRECTION
(SC 20485)
Robinson, C. J., and McDonald, D’Auria,
Kahn, Ecker and Keller, Js.
Syllabus
The petitioner, who had been convicted of manslaughter in the first degree
with a firearm in connection with the shooting death of the victim,
sought a writ of habeas corpus, claiming that his criminal trial counsel,
P, had provided ineffective assistance insofar as she failed to conduct
a proper investigation, to present available evidence supporting his self-
defense claim, and to raise a third-party culpability defense. On the day
of the shooting, the petitioner was arguing with the victim. Certain
individuals who witnessed the incident agreed that an initial gunshot
was fired by someone other than the petitioner or the victim. Several
witnesses then saw the petitioner pull out a gun and fire in the direction
of the victim. The petitioner fled the scene, and the witnesses heard
more gunshots. At the habeas trial, the habeas court heard testimony
from the petitioner, as well as eight witnesses, including six individuals,
A, X, Y, J, W and R, who witnessed the events surrounding the shooting
but who were not called by P to testify during the petitioner’s criminal
trial. A was the petitioner’s sister, X was A’s daughter and the petitioner’s
niece, Y was the sister to A and the petitioner, J was a friend of the
petitioner and the victim, W was a close friend of the victim, and R was
an acquaintance of both the petitioner and the victim. The court did
not hear testimony from P because she had died prior to the habeas
trial. The habeas court rendered judgment granting the habeas petition,
reasoning that P’s failure to call A, X, Y, J, W and R to testify at the
petitioner’s criminal trial prejudiced him by unduly diminishing his con-
stitutional right to present a defense. On the granting of certification,
the respondent appealed to the Appellate Court, which reversed the
habeas court’s judgment, concluding that the petitioner had not provided
sufficient evidence to rebut the strong presumption that P had exercised
her reasonable, professional judgment. On the granting of certification,
the petitioner appealed to this court. Held:
1. This court clarified that, in cases such as the present one, in which the
attorney who allegedly provided ineffective assistance is unavailable to
testify at the petitioner’s habeas trial, the framework of the inquiry into
counsel’s performance is not altered merely because of that unavailabil-
ity, and the Appellate Court in the present case placed undue emphasis
on the petitioner’s failure to present P’s testimony, as the petitioner’s
claim regarding P’s performance turned on the objective reasonableness
of the possible strategic reasons that P might have had rather than on
P’s subjective state of mind; moreover, this court’s plenary review of
the petitioner’s ineffective assistance claims required it to examine the
record of his criminal trial in the absence of P’s testimony, as that record
served as an informative window through which this court could identify
P’s possible strategic reasons and consider the objective reasonableness
of those reasons, and such an approach was consistent with that taken
in Connecticut and federal case law; furthermore, a habeas court’s
inquiry into the reasonableness of counsel’s actions is not limited to a
review of the criminal trial record, although the habeas court’s evaluation
of counsel’s performance should begin with a thorough review of that
record, as a court’s conclusion is strong when it is based in evidence
divined from the record, and when the criminal trial record does not
reveal the reasons for counsel’s decisions, the habeas court is required
to affirmatively entertain other possible reasons and to rely on the
presumption of reasonable, professional assistance.
2. The petitioner could not prevail on his claim that P’s performance was
constitutionally deficient on the ground that she had failed to adequately
investigate and to call six eyewitnesses whose testimony would have
supported his self-defense claim: P’s failure to investigate X and Y was
objectively reasonable, as P reasonably might have declined to investi-
gate them given that their potential bias as close family to the petitioner
might have undermined their credibility, that they were young at the
time of the shooting, and that their testimony did not directly support
a claim of self-defense; moreover, P’s decision not to call A and J was
objectively reasonable, as A’s testimony did not directly support a claim
of self-defense, P reasonably could have concluded that A’s bias as the
petitioner’s sister might have undermined her credibility such that the
damaging effect of her testimony would have outweighed its benefit,
and the criminal trial record strongly supported the possibility that P
made a strategic decision not to call J so that P would have a stronger
basis on which to attack the sufficiency of the state’s evidence regarding
the requisite intent to commit murder, even though such a decision
might have weakened the petitioner’s self-defense claim; furthermore,
irrespective of P’s performance with respect to W and R, her failure to
investigate or to call them as witnesses did not prejudice the petitioner,
as this court could not conclude that there was a reasonable probability
that the result of the petitioner’s criminal trial would have been different
if P had called W or R to testify in light of the facts that their testimony
that the victim had a gun at the scene was duplicative of the testimony
of the state’s key witnesses at the petitioner’s criminal trial, that W’s
testimony would have contradicted the petitioner’s criminal trial testi-
mony regarding a critical fact, and that R observed the shooting from
a distance and could not identify the individuals who were present at
the scene.
3. There was no merit to the petitioner’s claim that P’s performance was
constitutionally deficient on the ground that P had unreasonably failed
to raise a third-party culpability defense as a result of her inadequate
investigation and decision not to call J and W as witnesses at the criminal
trial; although J’s and W’s testimony that the victim’s brother, K, fired
his gun and the medical examiner’s testimony regarding the path through
which the bullet travelled after entering the victim’s body may have
supported an inference that the fatal gunshot was fired by K, not the
petitioner, P reasonably may have believed that the third-party culpabil-
ity defense was weaker than the petitioner’s self-defense claim because
the state had strong evidence to counter a third-party culpability narra-
tive, as all of the witnesses testified that the victim did not fall to the
ground until after the petitioner fired his gun, suggesting it was the
petitioner’s shot, and not the first shot fired, that struck and killed
the victim.
Argued May 3—officially released November 5, 2021*
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland and tried to the court, Kwak, J.; judgment
granting the petition, from which the respondent, on
the granting of certification, appealed to the Appellate
Court, Lavine, Prescott and Sheldon, Js., which reversed
the habeas court’s judgment and remanded the case
with direction to deny the petition, and the petitioner,
on the granting of certification, appealed to this court.
Affirmed.
Daniel J. Krisch, assigned counsel, for the appellant
(petitioner).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Rebecca A. Barry, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
McDONALD, J. This certified appeal requires us to
consider how a habeas petitioner may satisfy his burden
to establish a claim of ineffective assistance of counsel
under Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), when the allegedly
ineffective counsel has died prior to the habeas trial.
The petitioner, Bryan Jordan, was engaged in an argu-
ment with the victim, Curtis Hannons, when an initial
gunshot fired from elsewhere prompted the petitioner
to pull out his gun and fire it once at the victim’s head.
The petitioner was convicted of manslaughter in the
first degree, in addition to another crime, and sentenced
to forty-five years of imprisonment, and he thereafter
filed a petition for a writ of habeas corpus on the basis
of ineffective assistance of his trial counsel. The habeas
court granted the petition for a writ of habeas corpus,
reasoning that trial counsel’s failure to call six addi-
tional eyewitnesses to testify at the underlying criminal
trial prejudiced the petitioner’s defense. The Appellate
Court subsequently reversed the habeas court’s judg-
ment on the ground that the petitioner, as a conse-
quence of his trial counsel’s death, had not provided
sufficient evidence to rebut the strong presumption that
his trial counsel had exercised her reasonable profes-
sional judgment. Jordan v. Commissioner of Correc-
tion, 197 Conn. App. 822, 871–72, 234 A.3d 78 (2020).
On appeal to this court, the petitioner claims that the
Appellate Court’s standard places an insurmountable
obstacle in the path of a habeas petitioner whose trial
counsel is unavailable to testify. For the following rea-
sons, we clarify the applicable standard and conclude
that the petitioner has failed to satisfy the Strickland
test with respect to either claim of ineffective assistance
of counsel.
The Appellate Court’s decision affirming the petition-
er’s conviction on direct appeal sets forth the facts and
procedural history; State v. Jordan, 117 Conn. App. 160,
161–62, 978 A.2d 150, cert. denied, 294 Conn. 904, 982
A.2d 648 (2009); which we summarize in relevant part.
On the day of the shooting, the petitioner was in an
argument with the victim and the victim’s brother, Jason
Kelly. The argument ended when the petitioner got into
his car and drove away. A few minutes later, the peti-
tioner returned, and another heated discussion took
place between the petitioner and the victim. Several
people congregated around the petitioner and the vic-
tim, attempting to calm them down.
The eyewitnesses gave varying accounts of precisely
what happened next. All agreed, however, that an initial
gunshot was fired by someone other than the petitioner
or the victim. Several witnesses then saw the petitioner
pull out a gun and fire it once in the direction of the
victim’s head. The petitioner fled on foot, and the wit-
nesses heard several more gunshots. The victim was
transported to a hospital, where he died.
The petitioner was arrested and charged with murder
in violation of General Statutes § 53a-54a (a), as well
as several lesser included offenses.1 The petitioner
asserted a claim of self-defense. Id., 170. The jury ulti-
mately found the petitioner not guilty of murder but
guilty of manslaughter in the first degree with a firearm
in violation of General Statutes § 53a-55a (a). Id., 162.
The trial court sentenced the petitioner to the maximum
permitted sentence of forty years of imprisonment with
respect to this charge. Jordan v. Commissioner of Cor-
rection, supra, 197 Conn. App. 824 n.1. The Appellate
Court affirmed the petitioner’s conviction on direct
appeal. State v. Jordan, supra, 117 Conn. App. 172.
The Appellate Court’s decision reversing the habeas
court’s judgment in the present case sets forth addi-
tional facts and procedural history pertaining to the
habeas proceeding; Jordan v. Commissioner of Correc-
tion, supra, 197 Conn. App. 824–28; which we summa-
rize in relevant part. The petitioner filed the present
amended petition for a writ of habeas corpus against
the respondent, the Commissioner of Correction, in
2015. The petition raised, in relevant part, two claims
of ineffective assistance of trial counsel in violation of
the United States and Connecticut constitutions. Specif-
ically, the petitioner first alleged that his criminal trial
counsel, Diane Polan, failed to conduct a proper investi-
gation and failed to present available evidence support-
ing his self-defense claim. The petitioner also alleged
that Polan failed to raise a third-party culpability defense
as a result of the same improper investigation and fail-
ure to present available evidence.
The habeas court, Kwak, J., conducted a trial and
heard testimony from the petitioner, as well as eight
witnesses called on his behalf, including Polan’s private
investigator, an attorney testifying as an expert on pro-
fessional standards, and six individuals who witnessed
the events surrounding the shooting but were not called
by Polan to testify during the criminal trial. The court
did not hear testimony from Polan because she had
died prior to the habeas trial. The court subsequently
granted the petition for a writ of habeas corpus on the
basis of both claims of ineffective assistance of counsel.
Specifically, the court determined that ‘‘the petitioner
had met his burden of demonstrating that Polan had
rendered constitutionally deficient performance by fail-
ing to investigate properly or to present available evi-
dence in support of the petitioner’s claim of self-defense
and by failing properly to investigate, raise, or present
evidence in support of a third-party culpability defense.’’
Id., 828. The court further determined that the petitioner
had met his burden of demonstrating that Polan’s defi-
cient performance ‘‘had prejudiced him by unduly dimin-
ishing his due process right to establish a defense.’’ Id.The Appellate Court reversed the judgment of the
habeas court with respect to both claims of ineffective
assistance of counsel. Id., 872. The court emphasized
that, because Polan was unavailable to testify at the
habeas trial, the petitioner had not met his burden of
establishing how her investigative efforts were inade-
quate. Id., 848. Likewise, the court reasoned that the
petitioner had not met his burden of disproving the
objective reasonableness of any strategic reasons Polan
might have had for her decisions regarding the investi-
gation, which witnesses to call, and the potential third-
party culpability defense. Id. The court then considered
the testimony of the habeas witnesses at length and
concluded that the petitioner failed to demonstrate that
Polan’s performance had been deficient with respect
to either claim of constitutionally ineffective assistance.
Id., 860, 871.
Thereafter, the petitioner filed a petition for certifica-
tion to appeal, which we granted, limited to the follow-
ing issue: ‘‘Did the Appellate Court properly reverse the
habeas court’s determination that the performance of
the petitioner’s criminal trial counsel fell outside the
range of competent counsel under Strickland v. Wash-
ington, [supra, 466 U.S. 668]?’’ Jordan v. Commissioner
of Correction, 335 Conn. 931, 236 A.3d 218 (2020).
On appeal, the petitioner contends that the Appellate
Court applied an incorrect standard to his claims of
ineffective assistance of counsel. Specifically, the peti-
tioner contends that the habeas court required him to
negate every ‘‘ ‘plausible’ ’’ reason Polan might have had
for her failure to investigate and call six witnesses with
respect to his self-defense claim, as well as her failure
to raise a third-party culpability defense that would
have been supported by those same witnesses. With
respect to his first claim of ineffective assistance, the
petitioner asserts that Polan’s failure to investigate the
six witnesses who observed the events surrounding the
shooting and to call them to support his self-defense
claim constituted objectively unreasonable representa-
tion. With respect to his second claim of ineffective
assistance, the petitioner asserts that Polan’s failure to
investigate and to call the same witnesses, as well as
her failure to raise a claim of third-party culpability
supported by those witnesses, was objectively unrea-
sonable. The respondent disagrees, contending that the
Appellate Court properly applied the strong presump-
tion of reasonable competence and concluded that the
petitioner had failed to meet his heavy burden of over-
coming that presumption with respect to either claim
of constitutionally ineffective assistance.
I
We begin with the standard of review and principles
of law that govern the petitioner’s claims. ‘‘The habeas
court is afforded broad discretion in making its factual
findings, and those findings will not be disturbed unless
they are clearly erroneous. . . . [In addition], [t]he
habeas judge, as the trier of facts, is the sole arbiter of
the credibility of witnesses and the weight to be given
to their testimony. . . . The application of the habeas
court’s factual findings to the pertinent legal standard,
however, presents a mixed question of law and fact,
which is subject to plenary review.’’ (Citations omitted;
internal quotation marks omitted.) Gaines v. Commis-
sioner of Correction, 306 Conn. 664, 677, 51 A.3d 948(2012).
The sixth and fourteenth amendments to the United
States constitution, as well as article first, § 8, of the
Connecticut constitution, guarantee a criminal defen-
dant the assistance of counsel for his or her defense.
See U.S. Const., amend. VI; Conn. Const., art. I, § 8. ‘‘It
is axiomatic that the right to counsel is the right to the
effective assistance of counsel. . . . A claim of ineffec-
tive assistance of counsel consists of two components:
a performance prong and a prejudice prong. To satisfy
the performance prong, a claimant must demonstrate
that counsel made errors so serious that counsel was
not functioning as the counsel guaranteed . . . by the
[s]ixth [a]mendment.’’ (Citation omitted; internal quota-
tion marks omitted.) Ledbetter v. Commissioner of Cor-
rection, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert.
denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126
S. Ct. 1368, 164 L. Ed. 2d 77 (2006). ’’When a [habeas
petitioner] complains of the ineffectiveness of [trial]
counsel’s assistance, the [petitioner] must show that
counsel’s representation fell below an objective stan-
dard of reasonableness.’’ Strickland v. Washington,
supra, 466 U.S. 687–88. ‘‘In other words, the petitioner
must demonstrate that [trial counsel’s] [performance]
was not reasonably competent or within the range of
competence displayed by lawyers with ordinary training
and skill in the criminal law.’’ (Internal quotation marks
omitted.) Ledbetter v. Commissioner of Correction,
supra, 460. Moreover, ‘‘the performance inquiry must
be whether counsel’s assistance was reasonable consid-
ering all the circumstances.’’ Strickland v. Washington,
supra, 688.
‘‘To satisfy the prejudice prong, a claimant must dem-
onstrate that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.’’ (Internal quota-
tion marks omitted.) Ledbetter v. Commissioner of Cor-
rection, supra, 275 Conn. 458. ‘‘[T]he question is whether
there is a reasonable probability that, [without] the
errors, the [fact finder] would have had a reasonable
doubt respecting [the petitioner’s] guilt.’’ Strickland v.
Washington, supra, 466 U.S. 695. ‘‘A reasonable proba-
bility is a probability sufficient to undermine confidence
in the outcome.’’ Id., 694. ‘‘In making this determination,
a court hearing an ineffectiveness claim must consider
the totality of the evidence before the judge or jury.
. . . Some errors will have had a pervasive effect on
the inferences to be drawn from the evidence, altering
the entire evidentiary picture, and some will have had
an isolated, trivial effect.’’ Id., 695–96. ‘‘[T]he ultimate
focus of inquiry must be on the fundamental fairness
of the proceeding whose result is being challenged.’’
Id., 696. ‘‘Although a petitioner can succeed only if he
satisfies both prongs, a reviewing court can find against
a petitioner on either ground.’’ (Internal quotation marks
omitted.) Johnson v. Commissioner of Correction, 330
Conn. 520, 538, 198 A.3d 52 (2019).
Our analysis of the petitioner’s claims focuses largely
on Polan’s performance. The United States Supreme
Court has elaborated further principles that inform this
prong of the Strickland test. ‘‘Judicial scrutiny of coun-
sel’s performance must be highly deferential. It is all
too tempting for a [petitioner] to second-guess [trial]
counsel’s assistance after conviction . . . 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 [petitioner] must over-
come the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy.’’ (Citation omitted; emphasis added; internal
quotation marks omitted.) Strickland v. Washington,
supra, 466 U.S. 689.
In a typical habeas trial for a claim of ineffective
assistance, the petitioner’s criminal trial counsel would
testify about whether the challenged action was part
of a strategic decision or litigation tactic, rather than
a result of inadvertence or ‘‘sheer neglect.’’ (Internal
quotation marks omitted.) Harrington v. Richter, 562
U.S. 86, 109, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011);
see, e.g., id. (‘‘[t]here is a ‘strong presumption’ that
counsel’s attention to certain issues to the exclusion of
others reflects trial tactics rather than ‘sheer neglect’ ’’);
Henry v. Scully, 918 F. Supp. 693, 715 (S.D.N.Y. 1995)
(‘‘[n]ormally, before finding counsel inadequate, an evi-
dentiary hearing would be held’’ to determine whether
counsel’s action was ‘‘strategic, that is, that it repre-
sented a conscious decision on counsel’s part’’), aff’d,
78 F.3d 51 (2d Cir. 1996); Spearman v. Commissioner
of Correction, 164 Conn. App. 530, 553, 138 A.3d 378(noting that petitioner conceded that trial counsel’s
decision was ‘‘a matter of strategy made at trial’’ and
then considering ‘‘whether this strategic decision was
reasonable’’), cert. denied, 321 Conn. 923, 138 A.3d 284(2016). Assuming the habeas court finds testimony
regarding trial counsel’s strategy credible, the petitioner
would then attempt to overcome the strong presump-
tion that the asserted strategy was objectively reason-
able. See, e.g., Harrington v. Richter, supra, 104; Strick-
land v. Washington, supra, 466 U.S. 689.
Neither this court nor the United States Supreme
Court has considered how a habeas petitioner may sat-
isfy his or her burden under Strickland when the alleg-
edly ineffective trial counsel has died or is otherwise
unavailable to testify at the habeas trial. However, based
on the nature of the performance prong of Strickland,
we begin by noting that the framework of that inquiry
is not significantly altered by the unavailability of the
allegedly ineffective counsel. As the United States
Supreme Court has observed, Strickland ‘‘calls for an
inquiry into the objective reasonableness of counsel’s
performance, not counsel’s subjective state of mind.’’
(Emphasis added.) Harrington v. Richter, supra, 562
U.S. 110. As a result, the habeas court cannot ‘‘insist
counsel confirm every aspect of the strategic basis for
his or her actions.’’ Id., 109. Likewise, trial counsel’s
testimony may identify specific strategic or tactical rea-
sons counsel had for the challenged action, but the
habeas court is not confined to consider only those
reasons identified. Rather, in all circumstances, the
strong presumption of Strickland that counsel exer-
cised reasonable professional judgment requires the
habeas court ‘‘to affirmatively entertain the range of
possible reasons’’ trial counsel might have had for the
challenged action. (Internal quotation marks omitted.)
Cullen v. Pinholster, 563 U.S. 170, 196, 131 S. Ct. 1388,
179 L. Ed. 2d 557 (2011). Given the court’s obligation
affirmatively to contemplate possible strategic reasons
for the challenged action, the strategic reasons identi-
fied by counsel’s habeas testimony do not necessarily
restrict or resolve the Strickland inquiry. Accordingly,
when trial counsel is not available to testify, the absence
of such testimony does not alter the relevant inquiry.
In that circumstance, as always, the court must contem-
plate the possible strategic reasons that might have
supported the challenged action and then consider
whether those reasons were objectively reasonable.
See, e.g., id.; Strickland v. Washington, supra, 466
U.S. 689.
In applying Strickland and its progeny to the context
of unavailable counsel, the Appellate Court in this case
placed undue emphasis on the petitioner’s failure to
present testimony by his deceased attorney, reasoning
that this failure was effectively fatal to his claim: ‘‘[S]pe-
cific evidence of Polan’s reasons for pursuing or not
pursuing any particular defense strategy—something
generally obtained at the habeas trial through the testi-
mony of trial counsel or someone directly familiar with
her strategy—was utterly lacking. Ordinarily, such evi-
dence is crucial to meet the high hurdle imposed on a
petitioner to show that his counsel’s exercise of profes-
sional judgment fell outside the wide range considered
competent for constitutional purposes.’’ Jordan v. Com-
missioner of Correction, supra, 197 Conn. App. 870–71;
see also id., 871 (‘‘the petitioner was unable, due to a
lack of evidence, to negate all possibility that Polan
engaged in a reasonable . . . defense strategy’’ (empha-
sis added)). As we noted, however, the performance
prong of Strickland ‘‘calls for an inquiry into the objec-
tive reasonableness of counsel’s performance, not
counsel’s subjective state of mind.’’ Harrington v. Rich-
ter, supra, 562 U.S. 110. In other words, the petitioner’s
claim turned on the objective reasonableness of the
possible strategic reasons Polan might have had and
that the habeas court was required affirmatively to con-
sider. Evidence regarding whether Polan actually, sub-
jectively made the challenged decisions based on those
reasons—evidence that was lacking by virtue of Polan’s
death, and that the Appellate Court indicated was ‘‘cru-
cial’’ to the petitioner’s claim; Jordan v. Commissioner
of Correction, supra, 871—would not have addressed
the relevant inquiry, which was objective reasonable-
ness. As the petitioner in this case persuasively con-
tends, requiring every habeas petitioner, whose alleg-
edly ineffective trial counsel is unavailable to testify
at the habeas trial, to provide evidence of counsel’s
subjective state of mind would undoubtedly and imper-
missibly heighten the petitioner’s burden under Strick-
land.
In sum, our plenary review requires us, first, affirma-
tively to contemplate the possible strategic reasons that
might have supported Polan’s decisions regarding
investigating witnesses, calling witnesses, and present-
ing third-party culpability, and, second, to consider
whether those reasons were objectively reasonable.2
See, e.g., Cullen v. Pinholster, supra, 563 U.S. 196;
Strickland v. Washington, supra, 466 U.S. 689. In order
affirmatively to contemplate possible strategic reasons
for Polan’s actions, we begin by examining the record
of the petitioner’s criminal trial. See, e.g., Franko v.
Commissioner of Correction, 165 Conn. App. 505, 519–
20, 139 A.3d 798 (2016). In the absence of testimony by
trial counsel, the record of the underlying proceeding
serves as an informative window into the representation
alleged to have been ineffective, allowing the reviewing
court to identify possible strategic reasons, consider the
objective reasonableness of those reasons, and firmly
ground its ultimate conclusion.
This approach is consistent with the Connecticut
cases and federal court cases that have considered this
circumstance. For example, in Franko, a habeas peti-
tioner claimed ineffective assistance regarding a jury
instruction issue, and trial counsel was unavailable to
testify at the habeas proceeding. Id., 509, 515. The
Appellate Court reasoned that, ‘‘[l]acking the ability to
determine directly the reasons for trial counsel’s
actions, courts must examine all other available evi-
dence from the trial record in order to determine
whether the conduct complained of might be consid-
ered sound trial strategy.’’ Id., 519. In doing so, the court
found objectively reasonable, strategic reasons for trial
counsel’s actions contained in the transcript of his clos-
ing argument. Id., 522–24. In addition, in Bullock v.
Whitley, 53 F.3d 697 (5th Cir. 1995), a habeas petitioner
claimed ineffective assistance regarding trial counsel’s
preparation for an alternative defense. Id., 700. The
Fifth Circuit emphasized that, although trial counsel
was deceased at the time of the habeas trial, his testi-
mony was ‘‘not necessary to [the court’s] determination
that [counsel’s] decision might be considered sound
trial strategy.’’ Id., 701. After reviewing the criminal
trial record, the court concluded that trial counsel was
prepared and made objectively reasonable decisions
regarding a difficult case. See id., 701 n.11 (‘‘[a]lthough
there was no opportunity to obtain [trial counsel’s] testi-
mony regarding his motivations, our review of the
record has left us with the distinct impression that
[counsel] did the best he could with what he had’’).
Finally, in Henry v. Scully, supra, 918 F. Supp. 693, a
habeas petitioner claimed ineffective assistance
because his criminal trial counsel failed to request a
jury instruction that a codefendant’s confession could
be used only against the codefendant and not against
the petitioner. Id., 714. In granting the habeas petition,
the United States District Court for the Southern Dis-
trict of New York reasoned that, even accepting that
the criminal trial record supported the argument that
trial counsel’s decisions were based on a strategy of
presenting a joint defense for the two codefendants,
such strategy was not objectively reasonable under
Strickland. Id., 715. These cases demonstrate that, irre-
spective of the merits of a habeas petition, in the
absence of trial counsel’s testimony, a reviewing court
finds the strongest foundation for the outcome of the
petition in the record of the underlying proceeding.
Regardless of the availability of trial counsel to testify
at the habeas proceeding, the habeas court’s inquiry into
the reasonableness of counsel’s actions is not limited
to a review of the criminal trial record. See Cullen v.
Pinholster, supra, 563 U.S. 196 (court must ‘‘affirma-
tively entertain the range of possible reasons’’ counsel
might have had for challenged action (internal quotation
marks omitted)); Moye v. Commissioner of Correction,
168 Conn. App. 207, 222, 145 A.3d 362 (2016) (trial
counsel’s action was objectively reasonable despite
record containing ‘‘little or no circumstantial evidence
from which the habeas court could have divined’’ coun-
sel’s reasons), cert. denied, 324 Conn. 905, 153 A.3d 653(2017). We emphasize, however, that a habeas court’s
evaluation of an ineffective assistance claim in a circum-
stance of unavailable trial counsel ought to begin with
a thorough review of the record of the underlying pro-
ceeding because, as the cases that have considered this
circumstance demonstrate, the court’s conclusion is
surely strongest when it is based in evidence divined
from that record. See, e.g., Bullock v. Whitley, supra,53 F.3d 701; Henry v. Scully, supra, 918 F. Supp. 715;
Franko v. Commissioner of Correction, supra, 165
Conn. App. 520. Grounding the court’s reasoning in the
record maintains the ideal balance between the court’s
responsibility affirmatively to entertain possible strate-
gic reasons and its obligation to avoid ‘‘[indulging] post
hoc rationalization for counsel’s [decision-making] that
contradicts the available evidence of counsel’s actions
. . . .’’ (Emphasis added; internal quotation marks
omitted.) Harrington v. Richter, supra, 562 U.S. 109;
see also Franko v. Commissioner of Correction, supra,
520 (reviewing court ‘‘should not speculate as to trial
counsel’s reasons for making [litigation] decisions’’).
Likewise, beginning the court’s analysis with a thorough
review of the record best maintains the original Strick-
land burdens in the absence of counsel’s testimony,
without unfairly prejudicing either the petitioner or the
respondent. Compare Slevin v. United States, 71 F.
Supp. 2d 348, 358 n.9 (S.D.N.Y. 1999) (recognizing that
‘‘the death of a petitioner’s trial counsel is just as, if
not more, likely to prejudice the respondent’’), aff’d,
234 F.3d 1263 (2d Cir. 2000), with Jordan v. Commis-
sioner of Correction, supra, 197 Conn. App. 871 (recog-
nizing that ‘‘the death of counsel . . . made the peti-
tioner’s case more difficult to prove than it might
otherwise have been’’). That said, we recognize that the
record of the underlying proceeding may not always
reveal the reasons for counsel’s decisions, in which
case the court will be required affirmatively to entertain
other possible reasons and to rely on the presumption
of reasonable professional assistance. See Moye v. Com-
missioner of Correction, supra, 222.
II
We now turn to the petitioner’s claim of ineffective
assistance of counsel with respect to his self-defense
claim. Specifically, the petitioner contends that Polan’s
performance was constitutionally deficient because she
failed to adequately investigate and to call six witnesses
whose testimony would have supported his self-defense
claim. The respondent disagrees, contending that the
petitioner cannot overcome Strickland’s strong pre-
sumption of reasonable competence because decisions
about which witnesses to call are quintessential trial
strategy decisions entitled to great deference.
The substantive principles governing a self-defense
claim are well settled. ‘‘Pursuant to [General Statutes]
§ 53a-19 (a) . . . a person may justifiably use deadly
physical force in self-defense only if he reasonably
believes both that (1) his attacker is using or about to
use deadly physical force against him, or is inflicting
or about to inflict great bodily harm, and (2) that deadly
physical force is necessary to repel such attack.’’ (Foot-
note omitted; internal quotation marks omitted.) State
v. Saunders, 267 Conn. 363, 372–73, 838 A.2d 186, cert.
denied, 541 U.S. 1036, 124 S. Ct. 2113, 158 L. Ed. 2d
722 (2004). We repeatedly have stated that the second
requirement is ‘‘subjective-objective,’’ meaning that it
requires the jury to ‘‘make two separate affirmative
determinations . . . . First, the jury must determine
whether, on the basis of all of the evidence presented,
the defendant in fact had believed that he had needed
to use deadly physical force, as opposed to some lesser
degree of force, in order to repel the victim’s alleged
attack. . . . If . . . the jury determines that the defen-
dant in fact had believed that the use of deadly force
was necessary, the jury must make a further determina-
tion as to whether that belief was reasonable, from the
perspective of a reasonable person in the defendant’s
circumstances. . . . Thus, if a jury determines that the
defendant’s honest belief that he had needed to use
deadly force, instead of some lesser degree of force,
was not a reasonable belief, the defendant is not entitled
to the protection of § 53a-19.’’3 (Internal quotation
marks omitted.) Id., 373–74.
A
The following additional facts and procedural history
are relevant to our resolution of this claim, reflecting
our examination of the petitioner’s underlying criminal
trial record to divine possible strategic reasons that
might have supported Polan’s investigative and trial
decisions. In the petitioner’s criminal trial, the state
relied on several eyewitnesses. Relevant to this appeal,
one eyewitness, Roger B. Williams, Sr., lived in the
neighborhood where the shooting took place, knew
both the petitioner and the victim, and testified that he
was present for the entire incident. Jordan v. Commis-
sioner of Correction, supra, 197 Conn. App. 840. Wil-
liams testified that the victim drew his gun during the
argument, before the petitioner drew his. Id., 841. Wil-
liams also indicated that one of the petitioner’s habeas
witnesses had fired the initial gunshot, at which point
the petitioner drew a gun and fired it at the victim’s
head. Id. In addition, the state called Kimberly Steven-
son, the victim’s girlfriend and the mother of their chil-
dren, who witnessed the shooting from her bedroom
window. Id. She testified that, although she heard the
initial gunshot, she did not see who fired it, and that
the petitioner subsequently drew a gun and fired it at
the victim’s head. Id. Stevenson also testified that she
had not seen the victim with a gun during the afternoon
leading up to the shooting. Id. Williams and Stevenson
both testified that Kelly, the victim’s brother, was not
present at the shooting. Id., 841–42. At the state’s
request, the trial court admitted a recorded statement,
given by a third eyewitness to the police while he was
in custody on unrelated charges, that generally corrobo-
rated Williams’ and Stevenson’s accounts. Id., 842. Finally,
the state called two police officers who responded to
the scene shortly after the shooting; id., 843; and a
detective who testified about his efforts to investigate
the shooting and to locate the petitioner. Id., 826.
The petitioner testified on his own behalf at his crimi-
nal trial. Specifically, he testified that he did not know
whether the victim had a gun, but he had ‘‘observed
[the victim] fumbling with his pocket in a way that
suggested he might be armed.’’ Id., 843. The petitioner
testified that he likewise believed that Kelly had a gun.
Id. He further testified that he drew his gun only in
response to the first gunshot and that he fired in the
direction of the victim because he believed the first
gunshot had been fired from that direction. Id. On cross-
examination, the petitioner testified that he was not in
constant possession of his gun throughout the day and
that he sometimes left his gun in the glove compartment
of his car. Id., 844. Finally, the medical examiner who
performed the autopsy of the victim testified regarding
the nature, location, and trajectory of the victim’s bullet
wound. Id.Polan’s cross-examination of the state’s witnesses
as well as her closing argument demonstrate that her
overall trial strategy was based on three related theories
of the case. First, Polan highlighted the reasonable
doubt that the bullet from the petitioner’s gun was the
one that actually killed the victim, relying on the eyewit-
ness’ testimony that the petitioner had been standing
directly in front of the victim and the medical examin-
er’s testimony regarding the leftward and upward path
of the bullet wound. Id., 844–45. Second, Polan high-
lighted the reasonable doubt that the petitioner ever
developed the specific intent required for the various
charges, relying on the eyewitness’ conflicting accounts
about what had happened, as well as the consistent
testimony about the rapid pace of events. Id., 845–46.
Third, Polan presented evidence in support of the peti-
tioner’s self-defense claim, relying on the eyewitness’
testimony regarding the initial gunshot, the possibility
that the victim and others in the vicinity were armed,
and the fact that the petitioner did not fire until fired
at. Id. Polan ended her closing argument by focusing
on the second and third theories: ‘‘This is a tragic killing,
it’s a tragedy that [the victim] is . . . not with us today,
but it’s not a murder. It’s not a murder because the
state cannot prove the specific intent to kill beyond a
reasonable doubt, and, again, there is ample evidence
here that [the petitioner] acted in self-defense. He was
shot at [and] didn’t know where the shots were coming
from. It all happened so quickly that he did not form
a specific intent to kill [the victim]. Yes, he shot in [the
victim’s] direction; he told you that when he testified
here yesterday, but his intent was not to kill [the victim].
[The petitioner’s] intent was to protect himself.’’ (Inter-
nal quotation marks omitted.) Id., 846.
We next consider the record of the habeas trial, begin-
ning with the six witnesses whom, the petitioner con-
tends, Polan should have called to testify about the
events surrounding the shooting. Three witnesses were
closely related to the petitioner and to each other:
Audrey Jordan, the petitioner’s sister; Alexis Jordan,
Audrey’s daughter and the petitioner’s niece; and Jymi-
sha Freeman, sister to Audrey and the petitioner.
Audrey testified that she was inside her mother’s house
when she heard gunshots. She went outside, saw a body
on the ground, and walked forward to hug Stevenson
where she knelt beside the victim’s body. Audrey testi-
fied that she observed Stevenson jump up, run inside
her nearby house, and come back to the scene with a
towel. Stevenson used the towel to pick up a gun lying
inches from the victim’s body, carried it back inside
her house, and then returned to the scene without the
gun or the towel. Audrey also testified that she spoke
with the state’s detective and Polan about what she had
observed.
Alexis was about eight years old and Jymisha was
about eleven years old at the time of the incident. Both
witnesses testified that they were inside the same house
as Audrey when they heard gunshots and went outside.
Alexis saw the victim’s body and a gun lying a few
inches from it; Jymisha could not identify the victim,
and she did not see a gun from her farther distance.
Alexis corroborated Audrey’s testimony that Stevenson
wrapped a gun in a cloth and carried it from near the
victim’s body into her house. Likewise, Jymisha testified
that she saw Stevenson at the scene with a white towel
or cloth in her hand. Neither witness spoke with Polan,
her private investigator, or the police about the incident.
Flonda Jones also testified at the habeas trial; she
had provided a written statement to Polan’s private
investigator dated approximately nine months after the
incident, which was admitted into evidence at the
habeas trial. She was a friend of both the petitioner and
the victim, and she witnessed the two confrontations
between them, including the shooting. Jones stated that,
as the petitioner was leaving the first confrontation and
walking to his car, he said to the victim: ‘‘You going to
confront me with a gun.’’ She stated that the petitioner
subsequently returned, and the victim resumed his argu-
ment with the petitioner. Throughout this confronta-
tion, Jones observed the victim reaching for a gun in his
waistband multiple times. In both her written statement
and her testimony at the habeas trial, Jones stated that
Kelly fired the initial gunshot from where he stood next
to and slightly behind the victim.
Then, according to Jones’ written statement, the vic-
tim and the petitioner both pulled guns from their waist-
bands. The petitioner fired his gun, the victim fell to
the ground, and the petitioner began running away.
Jones’ testimony at the habeas trial diverges from her
written statement with respect to who fired the gunshot
that killed the victim. When confronted with her written
statement on cross-examination, however, Jones testi-
fied that the written statement ‘‘sounds about right.’’
She further testified that she saw a gun fall out of the
victim’s waistband when he fell. Jones also corrobo-
rated Audrey’s and Alexis’ testimony that Stevenson
wrapped the gun in a cloth and carried it into her house.
Jones testified that she spoke with the police and
Polan’s private investigator about the incident and that
she was subpoenaed for the petitioner’s criminal trial
but not called to testify.
James Walker, a close friend of the victim, also testi-
fied at the habeas trial. Walker was Kelly’s cousin, and
he indicated that he, Kelly, and the victim grew up
together. Walker testified that he saw the ‘‘heated dis-
cussion’’ between the petitioner and the victim and
observed the victim ‘‘flashing’’ the gun at his waistband
but that the victim never actually drew his weapon. He
testified that he saw Kelly standing behind the victim
on the steps of a nearby building throughout the con-
frontation. Walker testified that he turned away from
the petitioner and the victim and then heard a gunshot.
When he turned back around, he saw that the victim
was on the ground and that Kelly was firing his gun
from his place on the steps. Walker testified that he
fled but returned a few minutes later to see Stevenson
and Williams next to the victim’s body. He saw Williams
remove something wrapped in a towel from the scene,
but he did not know what. Walker testified that he
spoke with the state’s detective about what he had
observed, but he did not speak with Polan or her private
investigator. Finally, in response to questions seeking
to impeach his credibility, Walker testified that he did
not intend to testify in support of the petitioner because
he was ‘‘loyal’’ to the victim.
The sixth witness to testify at the habeas trial was
Billy Wright. He indicated that he knew both the peti-
tioner and the victim. He was seventeen at the time of
the incident, and he testified that he was at a playground
when he saw the victim on a nearby porch talking to
someone he could not identify. Wright testified that he
saw the victim pull a gun from his waistband, at which
point he decided to leave the playground to get away
from the incident. He heard gunshots as he was leaving,
but he did not see who fired them because his back
was turned, and he did not see anything else from the
incident or anyone else whom he recognized. Wright
denied Williams’ testimony from the petitioner’s crimi-
nal trial that Wright had a gun during the incident and
that he fired the initial gunshot. He also testified that
he spoke with the state’s detective about the incident.
The habeas court found all six of these witnesses credi-
ble.
The petitioner testified at the habeas trial regarding
Polan’s trial preparation. He testified that he told Polan
the names of certain witnesses to the incident, including
Jymisha, Jones, Walker, and Wright, and that Polan
had subpoenaed Audrey. Polan informed the petitioner
about Jones’ written statement and explained that,
given Jones’ anticipated testimony, she intended to
raise a self-defense claim. Specifically, the petitioner
testified that, ‘‘[w]hen I elected to go to trial, I went to
the trial under the premise that we were—it was a self-
defense case based on the testimony of [Jones].’’ The
petitioner also testified that he asked Polan why she
did not call Jones, but he could not recall the reason
Polan provided. He further testified that, when Polan
indicated to the petitioner that he would testify, he
asked her, ‘‘why won’t you call the witnesses, and she
just said concentrate on what we’re doing,’’ which, at
that time, had been preparing for the petitioner’s own
testimony. In addition, Mike O’Donnell, the private
investigator who worked with Polan on the petitioner’s
criminal trial, testified at the habeas trial. O’Donnell
testified that he ‘‘never discussed the witness list with
[Polan]’’ and otherwise remembered almost nothing
from his work on the petitioner’s case, including any
conversations with Jones.
B
In this appeal, the petitioner contends that, given the
totality of the record from the underlying criminal trial
and the habeas trial, it is clear that Polan had failed to
conduct a proper investigation into the six witnesses
to the incident. The petitioner further contends that
Polan should have called those witnesses to support
his self-defense claim. The petitioner asserts that those
eyewitnesses were crucial to his self-defense claim
because they would have established that the victim
had a gun and was exhibiting threatening behavior
toward him.
Because the petitioner’s claims specifically challenge
Polan’s failure to investigate and to call certain wit-
nesses, we note that we have articulated further princi-
ples, as has the United States Supreme Court, that
inform our review of these specific challenged actions
under Strickland. In the investigation context, ‘‘[i]nas-
much as [c]onstitutionally adequate assistance of coun-
sel includes competent pretrial investigation . . .
[e]ffective assistance of counsel imposes an obligation
[on] the attorney to investigate all surrounding circum-
stances of the case and to explore all avenues that may
potentially lead to facts relevant to the defense of the
case.’’ (Citation omitted; internal quotation marks omit-
ted.) Gaines v. Commissioner of Correction, supra,
306 Conn. 680; see also Skakel v. Commissioner of
Correction, 329 Conn. 1, 34, 188 A.3d 1 (2018), cert.
denied, U.S. , 139 S. Ct. 788, 202 L. Ed. 2d 569(2019). ‘‘[S]trategic choices made after thorough investi-
gation of law and facts relevant to plausible options are
virtually unchallengeable; and strategic choices made
after less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation.’’
Strickland v. Washington, supra, 466 U.S. 690–91; see
also Skakel v. Commissioner of Correction, supra, 32.
Regarding ineffectiveness claims relating to the failure
to call witnesses, ‘‘[w]hen faced with the question of
whether counsel performed deficiently by failing to call
a certain witness, the question is whether this omission
was objectively reasonable because there was a strate-
gic reason not to offer such . . . testimony . . . [and]
whether reasonable counsel could have concluded that
the benefit of presenting [the witness’ testimony] . . .
was outweighed by any damaging effect it might have.’’
(Internal quotation marks omitted.) Johnson v. Com-
missioner of Correction, supra, 330 Conn. 539. More-
over, ‘‘our 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 the substance of the witness’
testimony and determines that calling that witness is
unnecessary or potentially harmful to the case . . . .’’
(Footnotes omitted.) Gaines v. Commissioner of Cor-
rection, supra, 681–82.
On the basis of our review of the criminal and habeas
trial records, we conclude that there were objectively
reasonable, strategic reasons Polan might have had for
her limited investigation and her decisions not to call
certain habeas witnesses. Regarding Audrey, given that
the habeas court credited her testimony that Polan sub-
poenaed her for the petitioner’s criminal trial, it may
reasonably be inferred that Polan knew the substance
of Audrey’s anticipated testimony. It may also reason-
ably be inferred that Polan knew that Audrey was the
petitioner’s sister. It is not unduly speculative and does
not constitute impermissible post hoc rationalization
to entertain the possibility that Polan concluded that
Audrey’s bias might have undermined her credibility
enough that the damaging effect of her testimony would
have outweighed its benefit. Under Cullen, it is our
obligation to entertain reasonably possible reasons that
may explain trial counsel’s decisions, and it is not
unduly speculative and does not constitute impermissi-
ble post hoc rationalization to entertain the possibility
that Polan concluded that Audrey’s bias might have
undermined her credibility enough that the damaging
effect of her testimony would have outweighed its bene-
fit. Experienced trial lawyers know that simpler is often
better and sometimes will decide not to call a witness
because, in counsel’s estimation, the marginal value to
be gained from the expected testimony is not worth
the risk that the jury will become distracted, confused
or even doubtful about the theory of defense following
an effective cross-examination of the witness. We can-
not conclude that such a decision would have been
objectively unreasonable. Indeed, we have previously
recognized that counsel’s decision not to call a witness
based on counsel’s concern about the witness’ potential
bias as a family member of the habeas petitioner was
objectively reasonable. See Johnson v. Commissioner
of Correction, supra, 330 Conn. 552. We noted that this
concern ‘‘was justified even if [the witness] was consid-
ered . . . credible . . . by the habeas court . . . .’’
Id. Moreover, given that Polan knew of Audrey, her
decision not to call her at trial is ‘‘virtually unchallenge-
able . . . .’’ Strickland v. Washington, supra, 466
U.S. 690.
Regarding Alexis and Jymisha, nothing in the record
supports an inference that Polan knew the substance
of their anticipated testimony; rather, given that the
habeas court credited their testimony that they never
spoke with Polan or her investigator, it may reasonably
be inferred that Polan did not contact either of them
to learn the substance of their anticipated testimony.4
Accordingly, Polan’s decision not to investigate them
will be considered objectively reasonable ‘‘to the extent
that reasonable professional judgments support the lim-
itations on [Polan’s] investigation.’’ Id., 691. However,
as with Audrey, it may reasonably be inferred that Polan
knew that Alexis and Jymisha were close family to the
petitioner. It would have been reasonable for Polan to
conclude that, as with the petitioner’s sister, Audrey,
their bias might have undermined their credibility. We
cannot conclude that such a decision would have been
objectively unreasonable. See, e.g., Johnson v. Com-
missioner of Correction, supra, 330 Conn. 552. Polan
also reasonably might have declined to investigate
Alexis and Jymisha given their young ages—eight and
eleven years old, respectively, at the time of the shoot-
ing—which Polan likely would have learned from the
petitioner or Audrey when they were first brought to
Polan’s attention.
We also emphasize, as the Appellate Court noted,
that Alexis, Jymisha, and Audrey’s testimony did not
directly support a claim of self-defense. See Jordan v.
Commissioner of Correction, supra, 197 Conn. App.
853. Their testimony tended to demonstrate only that
a gun had been lying on the ground near the victim’s
body after he was shot, suggesting that it was the vic-
tim’s gun and that he may have had it when he was
shot. Id. Williams, the state’s key eyewitness from the
criminal trial, testified before the jury that the victim
had drawn a gun prior to being shot. Thus, Polan reason-
ably could have concluded that Alexis, Jymisha, and
Audrey’s testimony was cumulative of, and not as com-
pelling as, Williams’ testimony. Consequently, we can-
not conclude that any limitation on Polan’s investigation
of these witnesses would have been objectively unrea-
sonable.
Turning to Polan’s failure to call Jones at the criminal
trial, we note that Jones’ written statement to Polan’s
private investigator, as well as her credible testimony
that Polan subpoenaed her for the petitioner’s criminal
trial, strongly supports the inference that Polan knew
the substance of Jones’ anticipated testimony. See id.,
855. The criminal trial record reveals an objectively
reasonable reason Polan might have had to decline to
call Jones: Although Jones’ testimony would have sup-
ported the petitioner’s self-defense claim, it also would
have undermined Polan’s efforts to inject reasonable
doubt into the state’s case regarding the petitioner’s
intent. Specifically, Jones’ statement recited the peti-
tioner’s words to the victim, as the petitioner was leav-
ing the first confrontation, ‘‘[y]ou going to confront me
with a gun.’’ Jones and the state’s key eyewitness from
the criminal trial, Williams, consistently described how
the petitioner returned a few minutes after the end
of the first confrontation, at which point the second
confrontation and eventual shooting occurred. In addi-
tion, the criminal trial record contains testimony from
the petitioner that he did not have possession of his
gun at all times and that he sometimes left it in his car.
Together, this evidence would have strongly sup-
ported the state’s argument that the petitioner pos-
sessed the requisite intent for murder because he left
the first confrontation in order to acquire his gun and
to resume his argument with the victim while armed.
Without Jones’ statement that the petitioner said, ‘‘[y]ou
going to confront me with a gun’’ as he was leaving the
first confrontation, the state’s argument lacked direct
evidence that the petitioner possessed the requisite
intent for murder. In other words, the criminal trial
record strongly supports the possibility that Polan
decided not to call Jones so that she would have a
stronger basis from which to attack the sufficiency of
the state’s evidence regarding the requisite intent to
commit murder, even though such a decision might
have weakened the petitioner’s self-defense claim.5 The
jury ultimately found the petitioner not guilty of murder
but guilty of the lesser included offense of manslaughter
in the first degree with a firearm. Thus, it is reasonable
to conclude that Polan’s decisions, including her deci-
sion not to call Jones, contributed to the jury’s decision
to find the petitioner not guilty of the more serious
charge. See, e.g., Harrington v. Richter, supra, 562 U.S.
111 (‘‘while in some instances even an isolated error
can support an [ineffective assistance] claim if it is
sufficiently egregious and prejudicial . . . it is difficult
to establish ineffective assistance when counsel’s over-
all performance indicates active and capable advocacy’’
(citation omitted; internal quotation marks omitted)).
As the Appellate Court noted, ‘‘[i]t is hard to label
Polan’s efforts on behalf of the petitioner as ineffective
advocacy when those efforts resulted in a significant
reduction in the petitioner’s potential sentencing expo-
sure through his acquittal on the murder charge. If the
petitioner had been convicted of murder, he faced a
sentence ranging from the mandatory minimum of
twenty-five years to a maximum of life in prison. See
General Statutes § 53a-35a (2). Instead, his manslaugh-
ter with a firearm conviction carried a lesser penalty,
a five year mandatory minimum with a maximum sen-
tence of forty years of incarceration. General Statutes
§ 53a-35a (5).’’ Jordan v. Commissioner of Correction,
supra, 197 Conn. App. 865.
We cannot conclude that the decision not to call
Jones was objectively unreasonable. Given the strong
support in the criminal trial record, this was a strategic
decision made by Polan that, ‘‘although not entirely
immune from review,’’ is ‘‘entitled to substantial defer-
ence by the court.’’ Skakel v. Commissioner of Correc-
tion, supra, 329 Conn. 31. This is precisely a circum-
stance in which the court should not ‘‘second-guess
defense counsel’s decision not to . . . call certain wit-
nesses’’ because counsel ‘‘[learned] the substance of
the witness’ testimony and determin[ed] that calling
that witness [was] unnecessary or potentially harmful
to the case . . . .’’ (Footnotes omitted.) Gaines v. Com-
missioner of Correction, supra, 306 Conn. 681–82. As
with Polan’s decision not to call Audrey, this was a
‘‘strategic [choice] made after thorough investigation
. . . [that is] virtually unchallengeable . . . .’’ Strick-
land v. Washington, supra, 466 U.S. 690. Moreover,
counsel’s decision regarding which defense theory to
emphasize—attacking the sufficiency of the evidence
supporting the state’s case or buttressing a statutory
defense—is a quintessential decision of trial strategy
and professional judgment that Strickland considers to
be objectively reasonable. ‘‘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.’’ Id., 689. Accord-
ingly, we conclude that Polan’s decision not to call
Jones did not constitute constitutionally deficient per-
formance.
Regarding Walker and Wright, nothing in the record
supports an inference that Polan knew the substance
of their anticipated testimony. Given that the habeas
court credited their testimony, it may reasonably be
inferred that Polan did not contact either of them to
learn the substance of their anticipated testimony.
Accordingly, Polan’s decision not to investigate them
will be considered objectively reasonable ‘‘to the extent
that reasonable professional judgments support the lim-
itations on [Polan’s] investigation.’’ Strickland v. Wash-
ington, supra, 466 U.S. 691. Moreover, and unlike with
the previous four witnesses, nothing in the record
points to any particular reasons that appear to have
supported Polan’s decisions not to investigate them.6
However, we need not speculate why Polan might not
have investigated Walker and Wright or determine
whether such decision could be objectively reasonable
despite the lack of support in the criminal trial record.
Irrespective of the performance prong, we conclude
that the petitioner cannot satisfy the prejudice prong
of the Strickland test with respect to these witnesses.
‘‘Although a petitioner can succeed only if he satisfies
both prongs [of the Strickland test], a reviewing court
can find against a petitioner on either ground.’’ (Internal
quotation marks omitted.) Johnson v. Commissioner
of Correction, supra, 330 Conn. 538. Considering the
totality of the evidence before the jury, we cannot con-
clude that there is a reasonable probability that the
result of the petitioner’s criminal trial would have been
different if Polan had called Walker or Wright to testify.
See, e.g., Ledbetter v. Commissioner of Correction,
supra, 275 Conn. 458. Regarding Walker, who was a
close friend of the victim, we begin by noting that his
testimony that the victim had a gun was duplicative of
the testimony of the state’s key eyewitness, Williams.
In fact, Polan reasonably could have determined that
Walker’s testimony that the victim never actually drew
his gun would have been less compelling for purposes
of the petitioner’s self-defense claim than Williams’ tes-
timony, given that Williams claimed that the victim actu-
ally drew his gun. Jordan v. Commissioner of Correc-
tion, supra, 197 Conn. App. 857–58; see also Meletrich
v. Commissioner of Correction, 332 Conn. 615, 628,
212 A.3d 678 (2019). Additionally, although Walker’s
testimony would have supplied credible evidence by
a hostile witness that the victim had a gun and was
exhibiting threatening behavior toward the petitioner,
his testimony also contained a crucial fact that would
have undercut its persuasive effect. Specifically, Walk-
er’s testimony that he saw the victim ‘‘ ‘flashing’ ’’ his
gun; (emphasis added) Jordan v. Commissioner of Cor-
rection, supra, 857; would have contradicted the peti-
tioner’s criminal trial testimony that he did not see the
victim’s gun and did not know whether the victim actu-
ally had a gun. See id., 843. This testimony concerned
the critical factual dispute of whether the petitioner
reasonably believed that the victim was about to fire
his gun at him, which was central to his self-defense
claim. Because the petitioner’s testimony and Walker’s
testimony on this critical fact were inconsistent, how-
ever, we cannot conclude that there is a reasonable
probability that Walker’s testimony would have altered
the outcome of the criminal trial. Rather, there was
a real possibility that the jury would have found the
petitioner, Walker, or both less credible because of the
discrepancy concerning this central issue.
Regarding Wright, his testimony would have sup-
ported the petitioner’s self-defense claim only to the
extent that the jury credited his testimony that the vic-
tim had a gun at the scene. However, this was consistent
with testimony by the state’s key eyewitness, Williams,
that the victim drew his gun before the petitioner drew
his. Id., 841. Given that Wright testified that he observed
the shooting from such a distance, his testimony con-
tained little additional evidence that would have sup-
ported the petitioner’s self-defense claim. He did not
see any of the other witnesses around the victim, and
he could not even identify the petitioner as the person
with whom the victim was conversing. Moreover, at
the criminal trial, Williams had identified Wright as the
person who fired the initial gunshot. Id. Because of
Williams’ testimony at the criminal trial, coupled with
Wright’s habeas testimony regarding his distant obser-
vation of the shooting and his weak recall of the other
individuals present, we cannot conclude that there is
a reasonable probability that Wright’s testimony would
have altered the outcome of the criminal trial. In sum,
to the extent that Polan performed deficiently by failing
to call Walker or Wright, the effect of such failure is best
characterized as ‘‘isolated’’; Strickland v. Washington,
supra, 466 U.S. 696; it did not have ‘‘a pervasive effect
on the inferences to be drawn from the evidence’’; id.,695–96; or ‘‘[alter] the entire evidentiary picture . . . .’’
Id., 696. Our confidence in the outcome is not under-
mined by Walker’s or Wright’s habeas testimony.
In sum, we conclude that Polan’s failure to investigate
Alexis and Jymisha was objectively reasonable. We like-
wise conclude that Polan’s decisions not to call Audrey
and Jones were objectively reasonable. We also con-
clude that, irrespective of Polan’s performance, her fail-
ure to investigate or call Walker or Wright did not preju-
dice the petitioner. Consequently, the petitioner has not
satisfied the Strickland test with respect to Polan’s
representation in connection with his self-defense
claim.
III
We next consider the petitioner’s claim of ineffective
assistance with respect to Polan’s failure to raise a third-
party culpability defense. Specifically, the petitioner
contends that Polan’s performance was constitutionally
deficient because, as a result of her inadequate investi-
gation and decisions not to call Jones and Walker, Polan
unreasonably failed to raise a third-party culpability
defense. The petitioner asserts that Jones’ and Walker’s
testimony that Kelly fired his gun, combined with the
testimony by the medical examiner regarding the left-
ward and upward path of the victim’s bullet wound,
supports a strong inference that the fatal gunshot was
fired by Kelly, not the petitioner. The respondent dis-
agrees, contending that Polan reasonably decided that
it was ‘‘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. We agree
with the respondent.
We first review the standards governing the third-
party culpability defense. ‘‘It is well established that a
defendant has a right to introduce evidence that indi-
cates that someone other than the defendant committed
the crime with which the defendant has been charged.
. . . The defendant must, however, present evidence
that directly connects a third party to the crime. . . .
It is not enough to show that another had the motive
to commit the crime . . . nor is it enough to raise a
bare suspicion that some other person may have com-
mitted the crime of which the defendant is accused.’’
(Internal quotation marks omitted.) Bryant v. Commis-
sioner of Correction, 290 Conn. 502, 514, 964 A.2d 1186,
cert. denied sub nom. Murphy v. Bryant, 558 U.S. 938,
130 S. Ct. 259, 175 L. Ed. 2d 242 (2009). ‘‘It is not ineffec-
tive assistance of counsel . . . to decline to pursue a
[third-party] culpability defense when there is insuffi-
cient evidence to support that defense.’’ Id., 515.
Polan did not request, and the criminal trial court did
not provide, a third-party culpability jury instruction.
Jordan v. Commissioner of Correction, supra, 197
Conn. App. 869. The criminal trial record, however,
demonstrates that one of Polan’s defense strategies was
to highlight the reasonable doubt in the state’s case by
explaining to the jury, particularly on the basis of the
forensic evidence presented by the medical examiner,
that the bullet that killed the victim could not have been
fired by the petitioner. Id. It is not unduly speculative
to conclude that Polan might have determined that this
was the better approach to a theory of third-party culpa-
bility because it would not have involved the more
rigorous requirements a jury instruction on the defense
would have imposed. See Harrington v. Richter, supra,562 U.S. 109; see also Bryant v. Commissioner of Cor-
rection, supra, 290 Conn. 514 (defendant must directly
connect third party to crime). Polan reasonably may
have believed that the third-party culpability defense
was weaker than the petitioner’s self-defense claim
because the state had strong evidence to counter a
third-party culpability narrative. For example, all the
witnesses testified that the victim did not fall to the
ground until after the petitioner fired his gun, suggesting
it was his shot, and not the first shot fired, that struck
and killed the victim.7 Thus, although not abandoning
it completely, Polan chose not to make it more of a
focus of her closing argument and risk confusing or
alienating the jury. Moreover, third-party culpability
was only one of several defense strategies Polan pur-
sued. As we emphasized with respect to the petitioner’s
self-defense claim, Polan’s decisions regarding which
defense strategies to emphasize throughout the trial
involved the exercise of her professional judgment and
were not objectively unreasonable. See Strickland v.
Washington, supra, 466 U.S. 689.
The petitioner nevertheless contends that this case
is factually analogous to Bryant v. Commissioner of
Correction, supra, 290 Conn. 502, in which we held
that counsel’s ‘‘decision not to present the [third-party]
culpability defense fell below an objective standard of
reasonableness, and, therefore, constituted deficient
performance under the principles enunciated in Strick-
land.’’ Id., 520. The petitioner asserts that, as in Bryant,
the credible and highly persuasive testimony of two of
the habeas witnesses—one of whom was neutral, the
other of whom was hostile—supported a third-party
culpability defense. See id., 517. The petitioner further
asserts that, as in Bryant, this testimony was ‘‘exceed-
ingly important’’ because both cases involved ‘‘a credi-
bility contest . . . .’’ (Internal quotation marks omit-
ted.) Id., 518.
Bryant is distinguishable, however, because we
noted in that case that the explanations offered by coun-
sel for his decision not to call the third-party culpability
witnesses were objectively unreasonable based on the
governing law and the criminal trial record. Id., 521–22
and n.15. As divined from the criminal trial record in
the present case, the strategic reason for Polan’s deci-
sion not to pursue an express third-party culpability
defense is much stronger than the reasons proffered
by counsel in Bryant. In addition, the arguments raised
by the petitioner regarding Bryant and third-party cul-
pability emphasize the crucial nature of Jones’ and
Walker’s testimony and the prejudicial effect of Polan’s
decision not to call them or to raise an express third-
party culpability defense. Although these arguments
inform the prejudice prong of the Strickland test, they
do not address the performance prong or our conclu-
sion that the criminal trial record supports Polan’s rea-
sonable decisions regarding which defense strategies to
pursue throughout the trial. Accordingly, the petitioner
has not satisfied the Strickland test with respect to
Polan’s representation in connection with his third-
party culpability claim.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* November 5, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
In addition, the petitioner was charged with carrying a pistol or revolver
without a permit in violation of General Statutes § 29-35. State v. Jordan,
supra, 117 Conn. App. 162. The jury found the petitioner guilty of this crime,
and the trial court sentenced the petitioner to the maximum permitted
sentence of five years of imprisonment, to run consecutively to the sentence
imposed for the first degree manslaughter conviction. Jordan v. Commis-
sioner of Correction, supra, 197 Conn. App. 824 n.1.
2
The petitioner contends that the Appellate Court applied an incorrect
standard by requiring him to negate all ‘‘plausible’’ reasons for Polan’s
actions, rather than the ‘‘possible’’ reasons for her actions. (Emphasis
altered; internal quotation marks omitted.) Specifically, the petitioner asserts
that possibility designates a quantitative assessment falling between proba-
bility and impossibility, whereas plausibility is a qualitative assessment of
superficiality. We note, however, that the Appellate Court used those terms
interchangeably throughout its opinion. See Jordan v. Commissioner of
Correction, supra, 197 Conn. App. 856 (‘‘[t]here are a number of plausible
reasons’’ for Polan’s actions); id., 869 (‘‘there are a number of possible
reasons’’ for Polan’s actions). In addition, the United States Supreme Court
also has used those terms interchangeably throughout its ineffective assis-
tance jurisprudence. See, e.g., Cullen v. Pinholster, supra, 563 U.S. 196(court must ‘‘affirmatively entertain the range of possible reasons’’ for coun-
sel’s actions (internal quotation marks omitted)); Strickland v. Washington,
supra, 466 U.S. 690 (actions taken ‘‘after thorough investigation of law and
facts relevant to plausible options’’ are objectively reasonable). For purposes
of our disposition of this case, we eschew use of the term ‘‘plausibility’’ in
favor of the term ‘‘possibility.’’
3
In concluding that the petitioner failed to satisfy the prejudice prong of
the Strickland test with regard to the habeas witnesses’ testimony that the
victim had a gun, the Appellate Court emphasized that this evidence ‘‘would
only be marginally relevant to the petitioner’s self-defense claim because it
was the reasonableness of the petitioner’s subjective perception of the
situation, as he saw it, not the perception of the other witnesses, that was
relevant to the issue of self-defense. In other words, Polan did not need to
demonstrate that the victim in fact had a gun, only that the petitioner
reasonably believed [that he was] armed.’’ (Emphasis omitted; internal quota-
tion marks omitted.) Jordan v. Commissioner of Correction, supra, 197
Conn. 865. However, as the petitioner persuasively contends, the witnesses’
testimony that the victim actually had a gun would have corroborated his
belief that the victim had a gun, which would have been relevant to the
reasonableness element of his self-defense claim. See, e.g., State v. Saunders,
supra, 267 Conn. 373–74.
4
The Appellate Court speculated that Polan knew the substance of Alexis’
and Jymisha’s anticipated testimony because Audrey ‘‘may have told Polan
and O’Donnell . . . what they may have observed.’’ Jordan v. Commis-
sioner of Correction, supra, 197 Conn. App. 852. However, Audrey’s habeas
testimony did not indicate that she communicated such information to Polan
or to her private investigator. We need not so speculate because the record
supports our conclusion that Polan might have declined to learn the sub-
stance of Alexis’ and Jymisha’s testimony because of their young ages and
family relation to the petitioner.
5
The Appellate Court listed other ‘‘plausible’’ reasons why Polan might
have decided not to call Jones that find no support in the criminal trial
record. Specifically, the court reasoned that Jones ‘‘had a criminal record,’’
although the habeas record contains no further details, and that Jones was
a friend of the petitioner, which ignores her testimony that she was also a
friend of the victim and that she was therefore a neutral witness. Jordan
v. Commissioner of Correction, supra, 197 Conn. App. 856. As the petitioner
notes, the court provided no basis in the criminal trial record for its inference
that these were among the possible reasons Polan might have had. Given
that there is an objectively reasonable, strategic basis for Polan’s decision
not to call Jones that finds substantial support in the criminal trial record,
we need not speculate further.
6
The Appellate Court speculated that Polan both knew the substance of
Walker’s testimony and determined that ‘‘she would have a better chance
of persuading the jury by relying on the state’s witnesses’’ because of factual
inconsistencies between Walker’s testimony and Williams’ testimony. Jor-
dan v. Commissioner of Correction, supra, 197 Conn. 858. This reasoning,
however, appears to contradict Polan’s emphasis of the factual inconsisten-
cies in the testimony of the various eyewitness as part of her strategy to
highlight the reasonable doubt in the state’s case. See id., 845 (‘‘Polan,
attempting to capitalize on the inconsistent factual testimony of the state’s
own witnesses, began her closing argument by attempting to persuade the
jury that there was reasonable doubt about what had occurred’’); see also
Harrington v. Richter, supra, 562 U.S. 109 (court should not ‘‘indulge post
hoc rationalization for counsel’s [decision-making] that contradicts the
available evidence of counsel’s actions’’ (emphasis added; internal quotation
marks omitted)). Given that the petitioner’s claim with respect to Walker’s
testimony fails on the prejudice prong of the Strickland test, we decline to
speculate outside the record regarding why Polan did not investigate or
call Walker.
7
Additionally, as the Appellate Court explained, Stevenson, Williams and
the petitioner himself testified at the criminal trial that the victim had begun
to turn away from the petitioner at the time the petitioner fired his gun,
which could have explained away the forensic evidence that was central to
the success of any third-party culpability claim. See Jordan v. Commissioner
of Correction, supra, 197 Conn. App. 870. This further supports the conclu-
sion that Polan reasonably may have determined that it would not have been
the strongest defense strategy to request a third-party culpability instruction.