Horn v. Commissioner of Correction , 321 Conn. 767 ( 2016 )

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VERNON HORN v. COMMISSIONER OF CORRECTION
(SC 19364)
Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa and Robinson, Js.
Argued February 22—officially released June 28, 2016
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Michael Dearington, state’s
attorney, Eugene R. Calistro, Jr., senior assistant state’s
attorney, and Erika L. Brookman, assistant state’s
attorney, for the appellant (respondent).
Richard A. Reeve, with whom was Allison M. Near,
for the appellee (petitioner).
Opinion
ESPINOSA, J. The issue that we must resolve in this
appeal is whether the habeas court properly granted
the petition for a writ of habeas corpus filed by the
petitioner, Vernon Horn. After a joint jury trial with
his codefendant, Marquis Jackson, the petitioner was
convicted of ten offenses1 in connection with a robbery
and murder he committed in 1999 in New Haven. Fol-
lowing the petitioner’s direct appeal, the Appellate
Court affirmed the judgment of conviction. State v.
Jackson, 73 Conn. App. 338, 341, 808 A.2d 388, cert.
denied, 262 Conn. 929, 930, 814 A.2d 381 (2002). There-
after, the petitioner filed a petition for a writ of habeas
corpus in which he claimed, among other things, that he
was deprived of his sixth amendment right to effective
assistance of counsel during his trial because his coun-
sel had failed to conduct an adequate pretrial investiga-
tion and had failed to adequately present a defense at
trial.2 After a trial, the habeas court agreed with the
petitioner’s claim, granted his petition for a writ of
habeas corpus and ordered that the petitioner’s convic-
tion be set aside. The respondent, the Commissioner
of Correction, then filed this appeal from the judgment
of the habeas court.3 We conclude that the habeas court
improperly granted the petitioner’s petition for a writ
of habeas corpus. Accordingly, we reverse the judgment
of the habeas court.
The jury in the underlying criminal trial reasonably
could have found the following facts, as set forth by
the Appellate Court in its opinion addressing the peti-
tioner’s direct appeal from the judgment of conviction.
‘‘On January 24, 1999, at approximately 3:30 a.m., Jack-
son and [the petitioner], along with Steven Brown,
entered the Dixwell Deli [deli] on Dixwell Avenue in
New Haven, wearing masks and carrying handguns. As
[the petitioner] entered the deli, he fired five or six
shots from a nine millimeter pistol. One bullet struck
Caprice Hardy, a customer, and killed him. A second
bullet struck Abby Yousif, an owner of the deli, in the
shoulder. Brown and Jackson followed [the petitioner]
into the deli.
‘‘Jackson then went behind the counter and
attempted to open the cash register. [The petitioner]
and Brown went to the deli’s back room where they
found Vernon Butler, an off-duty employee, and Warren
Henderson, a homeless man who helped out around
the store. Butler was hit on his head with the butt of
a gun, searched for money and taken to the front of
the store by [the petitioner] to open the cash register.
When Butler could not open the register, Jackson took
the cash that Yousif had in his pockets. Butler’s [cell
phone] was also stolen. The [cell phone] was subse-
quently used the day after the robbery by Marcus Pear-
son, who had obtained it from [the petitioner].
‘‘During the course of the robbery, two customers,
one of whom was Kend[e]ll Thompson, entered the deli.
Upon entering, each individual was forced to the ground
at gunpoint and ordered to turn over whatever money
they possessed.
‘‘In the back room, Brown [rifled] through Hender-
son’s pockets, looking for any money that he may have
had. Finding no money on Henderson’s person, Brown
searched the cigar boxes in the back room to see if
there was any cash hidden there. After searching the
back room, Brown returned to the front of the deli,
where [the petitioner] was shouting orders by the door
and Jackson was still behind the counter near the cash
register. Upon hearing the sound of sirens, Jackson,
[the petitioner] and Brown fled the scene.
‘‘The police processed the crime scene and found
latent fingerprints on a cigar box in the back room. The
prints matched Brown’s fingerprints on file with the
Bridgeport [P]olice [D]epartment. When interviewed by
the New Haven police, Brown admitted his participation
in the January 24, 1999 robbery and identified Jackson
and [the petitioner] as the other individuals involved.
Jackson and [the petitioner] were arrested and tried
jointly. Jackson was found guilty of eight of the ten
counts on which he was charged and sentenced to a
total effective sentence of forty-five years imprison-
ment. [The petitioner] was found guilty of all ten counts
on which he was charged and sentenced to a total
effective sentence of seventy years imprisonment.’’
(Footnotes omitted.) State v. Jackson, supra, 73 Conn.
App. 342–43. The petitioner appealed from the judgment
of conviction, and the Appellate Court affirmed the
judgment. Id., 341.
Thereafter, the petitioner filed a petition for a writ
of habeas corpus, in which he claimed, among other
things, that his trial counsel, Leo Ahern, had failed to
provide effective assistance at trial. Specifically, he
raised the following two claims that are relevant to this
appeal. First, he claimed that Ahern did not adequately
investigate the state’s theory that the petitioner was in
possession of the cell phone that had been stolen during
the course of the robbery and, if Ahern had investigated,
he would have discovered witnesses who would have
contradicted the state’s theory. Second, he claimed that
Ahern did not adequately investigate Brown’s testimony
that the petitioner had been with him before, during
and after the robbery and murder and that, if Ahern
had investigated, he would have discovered evidence
that contradicted that testimony. In addition to these
ineffective assistance of counsel claims, the petitioner
claimed that he was deprived of his constitutional due
process right to a fair trial because key state’s witnesses
perjured themselves during trial and that he was actu-
ally innocent. The habeas court conducted a trial on
the petition for a writ of habeas corpus over the course
of eight days.
After trial, the habeas court concluded that Ahern
had failed to provide effective counsel to the petitioner
when he failed to discover the evidence that under-
mined Brown’s testimony that the petitioner had been
with him before, during and after the robbery and mur-
der, but it concluded that that failure was not prejudicial
because the new evidence did not provide a complete
alibi to the petitioner. In addition, the habeas court
rejected the petitioner’s constitutional and actual inno-
cence claims. The habeas court also concluded, how-
ever, that, contrary to the state’s theory at trial, the
testimony of the new witnesses at the habeas trial
regarding the stolen cell phone established that the cell
phone could not have been in the petitioner’s posses-
sion the day after the murder.4 The habeas court further
concluded that Ahern’s failure to obtain this informa-
tion before the criminal trial was deficient performance
and that the deficient performance had prejudiced the
petitioner’s defense. Accordingly, the court granted the
petitioner’s petition for a writ of habeas corpus and
ordered that his conviction be set aside.
On appeal, the respondent concedes that Ahern pro-
vided ineffective assistance of counsel by failing to ade-
quately investigate who was in possession of the stolen
cell phone in the days following the robbery and mur-
der, but contends that the habeas court incorrectly
determined that Ahern’s deficient performance was
prejudicial to the petitioner. The petitioner disputes this
claim and claims as alternative grounds for affirmance
that the habeas court improperly determined that: (1)
he was not prejudiced by Ahern’s failure to investigate
and discover the evidence that undermined Brown’s
testimony concerning the petitioner’s whereabouts
before, during and after the robbery and murder; (2)
the state’s use of perjured testimony did not deprive
the petitioner of his constitutional due process right to
a fair trial; and (3) the petitioner had failed to establish
his claim of actual innocence. We agree with the respon-
dent’s claim and reject the petitioner’s alternative
grounds for affirmance.
Before addressing the parties’ specific claims, we
set forth the standard of review governing ineffective
assistance of counsel 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. . . . 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. . . .
‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings [pursuant to Strick-
land v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984)]. . . . This right arises under
the sixth and fourteenth amendments to the United
States constitution and article first, § 8, of the Connecti-
cut constitution. . . . As enunciated in Strickland v.
Washington, supra, 687, this court has stated: It is axi-
omatic that the right to counsel is the right to the effec-
tive assistance of counsel. . . . 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 dem-
onstrate that his attorney’s representation was not rea-
sonably competent or within the range of competence
displayed by lawyers with ordinary training and skill in
the criminal law.’’ (Citations omitted; internal quotation
marks omitted.) Bryant v. Commissioner of Correc-
tion, 290 Conn. 502, 509–10, 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).
‘‘An error by counsel, even if professionally unreason-
able, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the
judgment. . . . To satisfy the second prong of Strick-
land, that his counsel’s deficient performance preju-
diced his defense, the petitioner must establish that, as
a result of his trial counsel’s deficient performance,
there remains a probability sufficient to undermine con-
fidence in the verdict that resulted in his appeal. . . .
The second prong is thus satisfied if the petitioner can
demonstrate that there is a reasonable probability that,
but for that ineffectiveness, the outcome would have
been different.’’ (Citations omitted; internal quotation
marks omitted.) Id., 522. ‘‘In making this determination,
a court hearing an ineffectiveness claim [based on coun-
sel’s failure to investigate] must consider the totality
of the evidence before the judge or the jury. . . . Some
errors will have had a pervasive effect on the inferences
to be drawn from the evidence, altering the entire evi-
dentiary picture, and some will have had an isolated,
trivial effect. Moreover, a verdict or conclusion only
weakly supported by the record is more likely to have
been affected by errors than one with overwhelming
record support.’’ Strickland v. Washington, supra, 466
U.S. 695–96.
I
We first address the respondent’s claim that the
habeas court incorrectly determined that Ahern’s fail-
ure to adequately investigate who was in possession of
the stolen cell phone was prejudicial under Strickland.
We agree.
The following additional facts and procedural history
are relevant to this claim.5 As we have indicated, Butler’s
cell phone was stolen during the robbery. At the peti-
tioner’s criminal trial, the state presented records from
Omnipoint Communications regarding calls made from
the cell phone after it was stolen. Those records showed
that the following five calls had been made from the
cell phone: (1) a call to a Bridgeport number on January
24, 1999, at 4:14 a.m. (first call); (2) a call to a Bridgeport
number on January 24, 1999, at 10:48 p.m. (second call);
(3) a call to a Bridgeport number on January 25, 1999,
at 10:40 a.m. (third call); (4) a call to a New Haven
number on January 25, 1999, at 11:07 a.m. (fourth call);
and (5) a call to a Bridgeport number on January 25,
1999, at 2:32 p.m. (fifth call). Brown testified at the
criminal trial that he had made the first call to Willie
Sadler while he, Jackson and the petitioner were driving
back to Bridgeport after the robbery, that he made the
second call to a female acquaintance and that he made
the third call to a drug dealing associate. Brown further
testified that, after making the third call, he gave the
cell phone to the petitioner, and he never saw it again.
Brown and the petitioner were on Stratford Avenue in
Bridgeport at the time. Brown denied that he or Sadler
made the fourth call. Brown also denied that he made
the fifth call.
Pearson, who was an acquaintance of the petitioner’s
and who was at the deli shortly before the robbery,
testified at the criminal trial that, at approximately 11
a.m. on the morning of January 25, 1999, Shalonda Jen-
kins, whom Pearson knew only as ‘‘Yogi,’’ and the peti-
tioner came to his house in New Haven. During their
visit, Pearson borrowed a cell phone from the petitioner
and used it to make the fourth call to Crystal Sykes.6
Pearson’s testimony on this point, however, was some-
what equivocal. He did not recall making the fourth call
to Sykes when the police first questioned him. At some
point, however, Pearson apparently came to believe
that the police had cell phone records that showed that
the fourth call had been made from his house.7 It was
not until the police told Pearson that Sykes had told
them that he called her and showed Pearson the cell
phone records indicating that the fourth call had been
made to the residence where Sykes worked that Pear-
son remembered making the call. Pearson also testified
that he believed that the police suspected him of being
involved in the robbery and murder.
At the habeas trial, the petitioner called Pearson,
Sykes, Sadler, William Newkirk, who was Sykes’ boy-
friend at the time of the robbery and murder, and Leroy
Dease, a detective with the New Haven Police Depart-
ment, as witnesses on this issue. Sykes testified that,
in January, 1999, she was working at a residence at 59
Ivy Street in West Haven taking care of an incapacitated
couple.8 Counsel for the petitioner questioned Sykes
about a statement that she had made to the New Haven
Police Department on February 2, 1999. Sykes agreed
that she had stated that she did not recall receiving a
telephone call from Pearson while working at the 59
Ivy Street address, but she also stated that there was
a ‘‘good possibility’’ that Pearson may have called her
at ‘‘around eleven o’clock’’ on January 25, 1999. She
initially thought, however, that the call had been made
at 11 p.m. Sykes also testified at the habeas trial that
she did not know who made the fourth call or if she
received the call, and that was what she had tried to
tell the police during the investigation. On cross-exami-
nation, Sykes testified that Pearson had called her sev-
eral times at the 59 Ivy Street address. She further
testified that she had ‘‘always admitted that [she] had
gotten the call.’’ It was possible, however, that the call
might have been from someone looking for Newkirk.
Ultimately, the habeas court interrupted the examina-
tion of Sykes, stating that ‘‘[y]ou are not going to get
any clarity on this particular . . . issue . . . .’’
Newkirk testified at the habeas trial that the police
told him that Sadler had called him from a cell phone
that had been stolen during a robbery and murder.9
Newkirk contacted Sadler and encouraged him to tell
the police who had made the calls from the cell phone.
On March 3, 1999, Newkirk called Dease and told him
that Sadler was ready to talk about the calls from the
cell phone. The next day, Newkirk and Sadler met with
Dease at Sadler’s residence in Bridgeport. Newkirk tes-
tified that he told Sadler to tell Dease ‘‘who got that
phone from where he called my cell phone from.’’10
According to Newkirk, Sadler told Dease that Brown
had allowed Sadler to use the cell phone. Newkirk also
testified that Sadler had occasionally called him on the
telephone at the 59 Ivy Street address in West Haven,
because Newkirk’s cell phone did not work in that loca-
tion. On cross-examination, Newkirk testified that he
never told Dease that Sadler had made the fourth call
to him. Newkirk also testified that he had received a
telephone call from Sadler at the 59 Ivy Street address
when Sadler was ‘‘trying to find [him].’’ He did not
testify as to the date and time of that call.
Dease testified that, on March 4, 1999, when he went
to Sadler’s residence in Bridgeport to meet with Sadler
and Newkirk, Sadler told Dease at that point that Brown
had made the first and fifth calls to Sadler. Dease did
not recall asking Newkirk at any time if Sadler made
the fourth call to him, and Dease agreed with the state-
ment that Newkirk ‘‘was not on his radar screen’’ as
being the recipient of any of the cell phone calls.
Pearson testified at the habeas trial that, contrary to
his testimony at the criminal trial, he did not see a cell
phone in the petitioner’s possession on the morning of
January 25, 1999, that he did not borrow a cell phone
from the petitioner and that he did not call Sykes. Pear-
son testified that he lied at the criminal trial because
the police told him that, if he had not borrowed the
cell phone from the petitioner, he must have stolen it
during the robbery. Pearson was afraid that, if he
refused to testify that he had borrowed the cell phone
from the petitioner, he would go to jail and lose custody
of his children for a crime that he did not commit. On
cross-examination, Pearson testified that, during the
week of January 23 through February 2, 1999, Sykes
had called him ‘‘almost every day if not every other
day’’ to arrange for marijuana purchases.
Sadler testified at the habeas trial that Brown had
made the first and fifth calls to him. Sadler also testified
that he knew Newkirk and that he had been to the 59
Ivy Street residence with Newkirk. During his examina-
tion of Sadler, counsel for the petitioner requested that
Sadler’s statement to the New Haven Police Depart-
ment, given on March 5, 1999, the day after Sadler met
with Newkirk and Dease in Bridgeport, be admitted as
a prior inconsistent statement. In that statement, Sadler
denied having made the fourth call.
In addition to the testimony of these five witnesses,
the petitioner presented in written form testimony that
Jenkins had given at Jackson’s habeas trial. Jenkins
was unavailable to testify at the petitioner’s habeas
trial because she had died in the interim. Jenkins had
testified at Jackson’s habeas trial that, on the morning
of January 25, 1999, she walked to her grandmother’s
house on Shelton Avenue in New Haven. The petitioner,
who was Jenkins’ cousin, was in their grandmother’s
house and asked Jenkins to take a walk with him. After
approximately twenty minutes, Jenkins and the peti-
tioner started walking to Pearson’s house at 12 Eliza-
beth Street in New Haven. Jenkins testified that the
time was ‘‘between 9 and 10 [a.m.]. Around about that
time. Because it was in the morning.’’ The walk took
approximately fifteen minutes. They rang the doorbell
at Pearson’s house, and Pearson’s mother answered the
door. When Pearson came to the door, he did not leave
the house, but stood in the doorway. Jenkins did not
see the petitioner give a cell phone to Pearson and did
not see a cell phone in the petitioner’s possession. After
leaving Pearson’s house, Jenkins and the petitioner
returned to their grandmother’s house. Although the
petitioner was her cousin, Jenkins testified that she
never gave this information to the police or to the peti-
tioner’s attorney at the time of the criminal trial.11 Jen-
kins testified that she was not aware at the time of the
petitioner’s criminal trial that he had been arrested and
charged with the robbery and murder.
The habeas court concluded that this evidence ‘‘leads
to only one conclusion as to the whereabouts of the
cell phone over the two days. The cell phone was taken
by Brown to Bridgeport on January 24, 1999, where it
remained. The cell phone never came back to New
Haven. . . . Therefore . . . Pearson never got the cell
phone from the petitioner and never used it to call . . .
Sykes as he testified at the criminal trial. Rather . . .
Sadler got the phone from Brown and called . . .
Newkirk at the residence of . . . Sykes. This evidence
was elicited from Newkirk at the habeas trial.’’ In sup-
port of this conclusion, the habeas court appears to
have relied heavily on the timing of the calls. Specifi-
cally, the habeas court found it ‘‘implausible’’ that
Brown could have used the cell phone in Bridgeport at
10:40 a.m. on January 25, 1999, then given the cell phone
to the petitioner, who, twenty-six minutes later, loaned
it to Pearson at his residence in New Haven so that he
could call Sykes, and then returned to Bridgeport where
he gave the cell phone to Brown so that Brown could
make the fifth call to Sadler at 2:32 p.m. As we have
indicated, the habeas court concluded that the failure
to present the new evidence at the criminal trial consti-
tuted ineffective assistance of counsel and undermined
the court’s confidence in the jury verdict.
We conclude that, contrary to the habeas court’s
determinations, the new evidence relating to the use
of the cell phone in the days after it was stolen neither
conclusively established that Pearson, after borrowing
the cell phone from the petitioner, could not have made
the fourth call nor gave rise to a reasonable probability
that the verdict would have been different if that evi-
dence had been presented at the criminal trial.12 As the
habeas court itself recognized, Sykes’ testimony on the
issue of whether she had received the fourth call from
Pearson was hopelessly unclear. With respect to New-
kirk’s testimony, although the habeas court stated that
evidence that Sadler received the cell phone from
Brown and made the fourth call to Newkirk ‘‘was elic-
ited from Newkirk,’’ Newkirk testified that the police
had told him that Sadler had used the cell phone to
call him. Newkirk also gave hearsay testimony that
Sadler had stated at the March 4, 1999 meeting with
Dease that he had used the cell phone to call the tele-
phone at the 59 Ivy Street address, but Sadler denied
having made the fourth call in his statement to the
police on March 5, 1999. Moreover, Dease testified that
he did not recall asking Newkirk whether Sadler had
made the fourth call to him and that Newkirk ‘‘was not
on [his] radar screen’’ as being a possible recipient of
the call during the meeting with Newkirk and Sadler.
Thus, even if Newkirk believed that he was testifying
truthfully, the most reasonable explanation for this con-
flicting evidence is that Newkirk was simply confused
about the evidence regarding the stolen cell phone and
what had transpired at the March 4, 1999 meeting.13
Moreover, although Newkirk testified that Sadler had
occasionally called him at Sykes’ place of work, he did
not testify as to the dates or times of those calls.
With respect to Sadler’s testimony that Brown had
made the first and fifth calls to him and that he knew
Newkirk had been to the 59 Ivy Street address, this
testimony, although consistent with the petitioner’s the-
ory that the cell phone was continuously in Bridgeport
and that Sadler had made the fourth call, certainly does
not compel such a conclusion.
As to Jenkins’ testimony at Jackson’s habeas trial
that the petitioner had been with her for approximately
thirty-five minutes before they arrived at Pearson’s
house on the morning of January 24, 1999, and that she
did not see the petitioner give the cell phone to Pearson,
the habeas court in the present case had no opportunity
to personally assess Jenkins’ credibility because the
testimony was in written form. We note, however, that
this testimony was given more than twelve years after
the incident in question and that her memory of certain
details was incorrect. Indeed, the transcript of Jenkins’
testimony at Jackson’s habeas trial reveals that she
testified implausibly that she was not even aware that
the petitioner had been arrested and charged with the
crimes, in direct contradiction to Ahern’s testimony at
the habeas trial, confirmed by the criminal trial tran-
script, that Jenkins had been present at the petitioner’s
criminal trial. See footnote 11 of this opinion. Accord-
ingly, we conclude that the jury would not have been
compelled to believe this testimony. Indeed, neither
the habeas court nor the petitioner relies on Jenkins’
testimony that the petitioner was with her for thirty-
five minutes before they arrived at Pearson’s house.
Rather, they rely solely on Jenkins’ testimony that she
did not see the petitioner give the stolen cell phone to
Pearson. With respect to that testimony, even if cred-
ited, it would not compel the conclusion that the event
did not happen.
Finally, as to Pearson’s recantation of his testimony
at the criminal trial, we previously have recognized that
‘‘courts universally view recantation evidence with a
healthy dose of skepticism.’’ Gould v. Commissioner
of Correction, 301 Conn. 544, 568, 22 A.3d 1196 (2011).
The sole basis for the habeas court’s determination that
Pearson’s testimony at the petitioner’s criminal trial
was false was ‘‘the evidence presented by the other
witnesses’’ at the habeas trial. As we have explained,
however, although the testimony of the other witnesses
may have been consistent with the petitioner’s theory
that Brown had continuous possession of the stolen
cell phone over the course of the five calls, the testi-
mony was far from conclusive on the issue.
We conclude, therefore, that, far from compelling
the conclusion that, contrary to Brown’s and Pearson’s
testimony at the criminal trial, the stolen cell phone
was continuously in Bridgeport in the days following
the robbery and murder and Pearson could not have
made the fourth call, the new evidence was extremely
weak and confusing. Indeed, even if entirely credited,
the testimony of Sykes, Newkirk, Sadler and Dease at
the habeas trial merely left open the possibility that
Sadler had made the fourth call.14 Although Jenkins’
testimony that the petitioner was with her for thirty-
five minutes before they arrived at Pearson’s house, if
credited, would be very difficult to reconcile with the
state’s theory that Brown gave the cell phone to the
petitioner in Bridgeport shortly after 10:40 a.m. on Janu-
ary 25, 1999, we have concluded that the jury reasonably
could have refused to credit that testimony.
Moreover, the jury at the criminal trial was aware
that, if Brown’s and Pearson’s testimony was true, the
following events had to have occurred within a twenty-
six minute window on the morning of January 25, 1999:15
Brown gave the cell phone to the petitioner at Stratford
Avenue in Bridgeport; the petitioner went to his car;
the petitioner drove to Jenkins’ location and found her;16
Jenkins got in the petitioner’s car; the petitioner drove
from Jenkins’ location to Pearson’s residence in New
Haven; Pearson learned that the petitioner was carrying
a cell phone; Pearson asked to borrow the cell phone
(even though he testified at the criminal trial that he
had a telephone in his house); and Pearson called Sykes.
In addition, Pearson’s testimony at the criminal trial as
to whether he had made the fourth call was equivocal,
and the jury was aware that he had a motive to lie.
Thus, the only impact of the new evidence presented
at the habeas trial would have been to cast additional
doubt on what was already, as the habeas court itself
stated, an ‘‘implausible scenario.’’17 ‘‘[W]here the [new]
evidence merely furnishes an additional basis on which
to challenge [previously admitted evidence, the credibil-
ity of which] has already been shown to be questionable
. . . the [new] evidence may properly be viewed as
cumulative, and hence not material, and not worthy of
a new trial.’’ United States v. Persico, 645 F.3d 85, 111
(2d Cir. 2011), cert. denied, U.S. , 132 S. Ct. 1637,
182 L. Ed. 2d 246 (2012); see also Orsini v. Manson, 5
Conn. App. 277, 281, 498 A.2d 114 (cumulative evidence
is not material in constitutional sense), cert. dismissed,
197 Conn. 815, 499 A.2d 804 (1985). Accordingly, we
conclude that, if the jury at the criminal trial concluded
that the petitioner had possession of the stolen cell
phone, there is no reasonable possibility that the new
evidence would have affected that conclusion.
We further note that the evidence that the petitioner
had possession of the stolen cell phone was not the
only evidence presented at the criminal trial that con-
nected him to the crimes. Accordingly, even if we were
to assume that there is a reasonable probability that
the new evidence could have persuaded the jury at the
criminal trial that the petitioner was not in possession
of the cell phone, there still would have been sufficient
evidence to convict him. Specifically, Brown testified
that he, Jackson and the petitioner robbed the deli in the
manner previously set forth in this opinion.18 Shaquan
Pallet testified that he had arrived at the deli in a taxi
with the murder victim, Hardy. As he and Hardy were
entering the deli, he saw the petitioner and Jackson,
both of whom he knew, standing outside and smoking
a substance that smelled like embalming fluid. A third
person was visible but unidentifiable. Inside the deli,
Hardy purchased some cigarettes, gave several to Pallet
and then Hardy indicated that he intended to remain
at the deli. As Pallet left the deli, he saw the petitioner
and Jackson just outside with ‘‘skellies’’ on their heads.
Fearing that he was going to be robbed, Pallet walked
to the taxi and was driven away.19
Thompson testified that he was in the deli when he
was confronted by a black male wearing a ski mask
who pointed a gun at his head, ordered him to the floor
and took $1 from him. When the person went to the
back of the deli, Thompson ran out of the deli to his
car and ‘‘took off.’’ Thompson was able to select a
photograph of the petitioner as the person who had held
a gun to his head. Thompson selected the photograph
because the person’s yellowish eyes and his mouth
resembled those of the person who had robbed him,
but he told the police that he was not 100 percent sure
of the identification.20
Regina Wolfinger testified that she was sitting in a
car outside the deli when she saw a black male run out
of the deli and get into a car, which took off quickly.
Thereafter, two black males, possibly wearing black
hats, came out of the store, stood near an ice machine,
and then ‘‘took off . . . .’’ Wolfinger subsequently
selected a photograph of the petitioner as resembling
one of those men. She testified that her level of certainty
was about 75 percent. The petitioner makes no claim
that any of these eyewitnesses had a motive to falsely
identify him as having been involved in the robbery
and murder.
Saliem Al-Dubai, who worked at the deli, testified at
the criminal trial that the petitioner, whom Al-Dubai
knew as a regular customer, was in the deli at approxi-
mately 2:45 to 2:55 a.m. on January 24, 1999, and bought
a soda and two loose cigarettes. Pearson came into the
deli at approximately the same time and ordered some
food. At approximately 3:05 to 3:10 a.m., Al-Dubai and
Pearson left the deli and got into a vehicle driven by a
person identified only as Naji. At that time, Al-Dubai
saw the petitioner cross the street and engage in a
whispered conversation with Pearson through the open
rear door of the vehicle.
Pearson testified at the criminal trial that he arrived
at the deli between 2:30 and 2:45 a.m. on January 24,
1999. He ordered two cheeseburgers and, after receiving
the food, left the deli with Al-Dubai and Naji. As he
entered Naji’s vehicle, the petitioner came over and
spoke to him. At approximately 3:15 a.m., Naji dropped
Pearson off near his residence, which was approxi-
mately three blocks from the deli. As Pearson was eating
the cheeseburgers, Zanetta Berryman, with whom Pear-
son was involved, called him. The call was interrupted
and, when Berryman called Pearson back, she told him
that the petitioner was with her and he had hung up
the phone. Berryman asked Pearson to meet her at the
deli. It was then approximately 3:30 a.m. When Pearson
arrived at the deli approximately twenty minutes later,
the corner was blocked off and he saw ambulances
and police vehicles. He also saw Berryman and the
petitioner. A policeman told Pearson that there were
two dead bodies inside the deli. Eventually, Pearson
talked to the petitioner and Berryman for five to ten
minutes and then he and Berryman returned to his
house.
None of the new evidence relating to the use of the
cell phone directly casts doubt on the testimony of any
of these witnesses placing the petitioner at the deli
before, during and after the robbery. We therefore con-
clude that, contrary to the determination of the habeas
court, the new evidence regarding the location and use
of the stolen cell phone in the days following the rob-
bery and murder does not undermine confidence in the
petitioner’s guilty verdict and, therefore, Ahern’s failure
to investigate the issue before trial was not prejudicial
under Strickland. See Bryant v. Commissioner of Cor-
rection, supra, 290 Conn. 522 (‘‘[t]o satisfy the second
prong of Strickland, that his counsel’s deficient perfor-
mance prejudiced his defense, the petitioner must
establish that, as a result of his trial counsel’s deficient
performance, there remains a probability sufficient to
undermine confidence in the verdict that resulted in
his appeal’’ [internal quotation marks omitted]).
II
We next address the petitioner’s claim that the judg-
ment of the habeas court may be affirmed on the alterna-
tive ground that Ahern’s failure to investigate and
discover the evidence that undermined Brown’s testi-
mony concerning the petitioner’s whereabouts before,
during and after the robbery and murder was prejudicial
under the second prong of Strickland. We disagree.
The following additional facts and procedural history
are relevant to this claim. Brown testified at the criminal
trial that he met the petitioner and Jackson in Bridge-
port on the night of the robbery and murder.21 Brown
could not remember the specific time that they met,
but ‘‘it was late in the night.’’ After they met, they
smoked some marijuana and then drove to New Haven.
After arriving in New Haven, the three men drove
around ‘‘for a minute’’ and then Jackson, who was driv-
ing, stopped to talk to a woman. She did not get into
their car. Brown, Jackson and the petitioner then drove
to the deli and parked around the corner from the deli
in the middle of the block. They got out of the car
and Jackson and the petitioner smoked something that
looked like a cigar and smelled like a Magic Marker.
Brown saw a taxi pull up in front of the deli. Two people
got out of the taxi and entered the deli, and one of them
then came out. During the period that they were outside
the deli, Brown never saw the petitioner speak to a
person sitting in a vehicle.
Brown testified that, at that point, Jackson and the
petitioner indicated that they were going to rob the deli.
One of them handed a scarf to Brown, who tied it around
his face. Jackson and the petitioner then covered their
faces with their ‘‘skellies,’’ which Brown testified were
ski masks. See footnote 19 of this opinion. Either the
petitioner or Jackson handed a gun to Brown, but he
could not remember who. Jackson and the petitioner
also had guns. After the three men entered the deli, the
petitioner fired a rapid series of gunshots. A person
who was standing at the counter of the deli was hit by
the gunfire and ran to the back of the deli. The person
behind the counter ducked down. After the firing
stopped, Jackson jumped over the counter and
attempted to open the cash register. Brown and the
petitioner went to the back of the deli, where Brown
had seen someone run into a room and shut the door.
The petitioner opened the door and saw a male lying
on the floor and another male sitting in a chair. Brown
checked the pockets of the person on the floor and
then searched some cigar boxes for money. Meanwhile,
the petitioner grabbed the person in the chair and
brought him to the front of the deli. When Brown left
the back room, he saw the petitioner in front of the
counter and Jackson behind the counter.
The three men then heard a siren and exited the deli.
Brown and Jackson got back into their car and the
petitioner left the area, saying that he would return.
Brown and Jackson waited in their car for approxi-
mately fifteen minutes, at which time the petitioner
returned to the car and they left. Brown saw no police
and heard no sirens during that time. As they were
driving back to Bridgeport, Brown saw the stolen cell
phone on an armrest in the car and used it to call Sadler.
Jackson and the petitioner dropped Brown off on War-
den Avenue in Bridgeport. Brown still had possession
of the cell phone at that time. Brown next saw the
petitioner on January 25, 1999, on Stratford Avenue in
Bridgeport, sometime after he made the third call to a
drug dealing associate at 10:40 a.m. He gave the stolen
cell phone to the petitioner at that time.
Brown admitted at the criminal trial that he had lied
to the police during their investigation of the robbery
and murder. He further testified that he had pleaded
guilty to conspiracy to commit manslaughter as the
result of his involvement in the robbery and murder.22
He had not yet been sentenced, but the state had agreed
to a maximum sentence of twenty-five years imprison-
ment, suspended after eighteen years, and Brown had
the right to argue for a lesser sentence.
Adrienne Debarros, an acquaintance of the petitioner,
testified at the criminal trial that she was at the Alley
Cat Club (club) in New Haven from approximately 10
or 11 p.m. on January 23, 1999, until it closed at approxi-
mately 1:45 to 2 a.m. on January 24, 1999. Debarros
saw the petitioner and Jackson outside the club after
it closed. Latiesha Smith was also at the club from
approximately 10 or 11 p.m. on January 23 to approxi-
mately 1:45 to 2 a.m. on January 24. She testified that
she saw Jackson in the club shortly after she arrived
and conversed with him at closing time, when she told
him to meet her at her house. She arrived home at
approximately 2:30 a.m., and Jackson arrived shortly
thereafter. He spent the rest of the night with her and
left late the next morning.
Berryman testified at the criminal trial that she was
at a party on South Genesee Street in New Haven from
approximately 11 p.m. on January 23 to 2 a.m. January
24, 1999. At some point after 2 a.m., she was outside
smoking a cigarette when Jackson and the petitioner
drove by. They stopped, and Berryman asked them for a
ride to Pearson’s house. Berryman asked the petitioner
whether the car was stolen or a ‘‘base head rental
. . . .’’ She testified that she asked the question
‘‘[b]ecause of the type of person that he is.’’ Berryman
saw no guns or masks and no one except Jackson and
petitioner in the car. The three of them drove to the
deli, where the petitioner gave change to Jackson so
that he could make a call from a pay telephone. The
petitioner went into the deli and came out about five
minutes later with some items that he had purchased.
Jackson returned to the car and the petitioner drove
the three of them to John Crenshaw’s house. Berryman
testified that it would take ‘‘[a]bout a minute’’ to run
from Crenshaw’s house to the deli.
Berryman asked if she could use the bathroom and
she and the petitioner exited the car. They entered
the house, where Berryman saw several people playing
cards. Berryman entered the bathroom, where she
remained for approximately fifteen minutes.23 When she
came out, she called several times for the petitioner,
who did not respond. Someone went to the front door
and called for the petitioner, who eventually came into
the house and rejoined Berryman. Berryman then asked
if she could use a telephone to call Pearson, who had
paged her. The petitioner obtained a cordless telephone
and gave it to Berryman, who called Pearson. At that
point, the petitioner hung up the telephone. Berryman
called Pearson again and asked him to meet her at
the deli. While Berryman was on the telephone with
Pearson, the petitioner told her that he had seen Pear-
son at the deli earlier. When Berryman asked him why
he had not relayed that information, he ignored her.24
Berryman and the petitioner then left Crenshaw’s
house to return to the deli. At that point, the car that
Jackson had been driving was gone. As they were about
to enter the deli, a policeman came to the door and
told Berryman and the petitioner that they could not
come in because there were two dead bodies inside.25
The police officer was the only official at the scene. He
asked Berryman and the petitioner to stay there and
asked for their names and addresses. The petitioner
was initially reluctant to identify himself because he
was on parole. Berryman told him not to be stupid, and
the petitioner told her that she was ‘‘an alibi anyway.’’
Berryman ultimately convinced the petitioner to give
his name to the police.
Berryman knew Yousif and she was very upset when
told that he was dead. The petitioner, however, seemed
indifferent, responding with such statements as, ‘‘F—
him, he ain’t nobody.’’ While they waited in front of the
deli, ‘‘many’’ police officers arrived, the area was taped
off, and Yousif and Hardy were removed by ambulance.
Pearson showed up across the street, but Berryman
could not go to meet him because she was inside the
area cordoned off with crime tape and the police were
not letting people cross the tape. Eventually, she was
allowed to leave and she went with Pearson to his
house.
Crenshaw testified at the criminal trial that he owned
a house at 235 West Ivy Street in New Haven and that
Jackson rented a room in the house. Crenshaw saw the
petitioner at the house at some point on the night of
January 23, 1999, or early morning of January 24, but
he could not recall the specific time. The petitioner
asked Crenshaw for a cigarette and to use the tele-
phone, and Crenshaw agreed.
Officer Mark Francia of the New Haven Police
Department testified that he arrived at the deli approxi-
mately one to one and one-half minutes after the 3:32
a.m. 911 call. After ascertaining that two persons had
been shot, he called the dispatcher to request two ambu-
lances and two emergency units. Numerous police offi-
cers arrived at the deli shortly thereafter.
Officer Michael Ferraro of the New Haven Police
Department testified at the criminal trial that he arrived
at the scene of the robbery and murder approximately
twenty to twenty-five minutes after receiving a radio
transmission about the shooting, or at 3:52 a.m. at the
earliest. At that point, the victims had already been
transported to the hospital. Approximately ten to
twenty minutes after arriving at the scene, he spoke to
the petitioner and Berryman.
The petitioner presented the following testimony at
the habeas trial. Kenneth Ransome testified that he was
acquainted with the petitioner and Jackson and that he
believed that he had seen them inside the club in the
early morning hours of January 24, 1999. The club
closed sometime between 1:30 and 1:40 a.m. and the
crowd remained outside for thirty to forty-five minutes
after closing. Ransome saw Jackson and the petitioner
in the crowd during that time, and recalled speaking
to Jackson. Ransome then drove to the Athenian Diner
(diner) in New Haven, which was approximately a fif-
teen minute drive from the club. He saw the petitioner
and Jackson sitting in a car in the parking lot of the
diner and again had a brief conversation with Jackson.
Ransome believed that it was then approximately 2:30
or 2:45 a.m. Shamar Madden, who was acquainted with
the petitioner, also testified that he saw the petitioner
and Jackson outside the club after it closed sometime
between 1:45 and 2 a.m. Madden left the club between
2:20 and 2:30 a.m. and went to the diner, where he saw
the petitioner and Jackson.
The petitioner also presented as an exhibit the report
of Officer Diane Gonzalez of the New Haven Police
Department regarding her involvement in the investiga-
tion of the crime scene. Gonzalez reported that she
arrived at the deli at 3:39 a.m. on January 24, 1999. She
helped cordon off the crime scene with tape and was
then directed to make a list of the vehicles in the imme-
diate area and their license plate numbers. The license
plate number of the car that the petitioner and Jackson
were driving that night was not included in Gonzalez’
report, and Gonzalez did not report seeing any African-
American males sitting in any of the vehicles in the
vicinity of the deli.
The petitioner contended to the habeas court that
Ransome’s and Madden’s testimony established that,
contrary to Brown’s testimony, the petitioner and Jack-
son could not have been in Bridgeport with Brown in
the hours before the robbery and murder. He further
contended that Gonzalez’ report established that, con-
trary to Brown’s testimony, the car that Jackson and
the petitioner were using that night could not have
been parked around the corner from the deli for fifteen
minutes after the robbery and murder, with Brown and
Jackson sitting in it.
The habeas court concluded that Ahern’s failure to
investigate and present these witnesses at the criminal
trial was not prejudicial. To support this conclusion,
the court relied on the Appellate Court’s decision in
Jackson’s appeal from the habeas court’s denial of his
petition for a writ of habeas corpus, in which the Appel-
late Court concluded that the failure of Jackson’s attor-
ney to present this evidence at the criminal trial was
not ineffective assistance of counsel because it did not
provide the petitioner with an alibi for the precise time
that the robbery and murder occurred. Jackson v. Com-
missioner of Correction, 149 Conn. App. 681, 701–702,
89 A.3d 426 (2014), appeal dismissed, 321 Conn. 765,
A.3d (2016).
The petitioner now claims that the habeas court failed
to consider the fact that, even if the new evidence did
not establish the petitioner’s whereabouts at the precise
time of the robbery and murder, it indicated that the
petitioner was in New Haven between 2 and 3 a.m. on
January 24, 1999, thereby discrediting Brown’s testi-
mony that the petitioner and Jackson had driven from
Bridgeport to New Haven immediately before they
robbed the deli. He further contends that Gonzalez’
report discredited Brown’s testimony that, after the rob-
bery, Brown and Jackson sat in a car around the corner
from the deli for fifteen minutes waiting for the peti-
tioner to rejoin them.
We conclude that there is no reasonable probability
that this new evidence would have resulted in a different
verdict because there was testimony presented at the
criminal trial that cast doubt on the state’s theories.
Specifically, even if the state’s theory that the petitioner
and Jackson would have had time between the time
that they were seen by Debarros and Smith at the club
at approximately 1:45 to 2:00 a.m. and the time of the
robbery and murder at approximately 3:30 a.m., to drive
to Bridgeport, meet up with Brown, smoke some mari-
juana, drive back to New Haven, meet up and converse
with the unidentified woman, drive to the deli, smoke
some drugs outside the deli and then rob the deli was
plausible if considered in isolation, this theory was con-
tradicted by the testimony of several individuals. This
testimony included: Berryman’s testimony that the peti-
tioner and Jackson were with her continuously from
the time that they picked her up at South Genesee Street
in New Haven at some point after 2 a.m. until they went
to the deli and then to Crenshaw’s house between 3
and 3:15 a.m.; Al-Dubai’s testimony that the petitioner
was inside the deli at approximately 2:45 a.m.; and Pear-
son’s testimony that he spoke to the petitioner outside
the deli at approximately 3:15 a.m. In addition, Brown’s
testimony at the criminal trial, that he and Jackson were
sitting in a car around the corner from the deli for
approximately fifteen minutes after the robbery and
murder, they left the scene when the petitioner rejoined
them and that he made the first call at 4:14 a.m. while
he was driving with the petitioner and Jackson back
to Bridgeport, would have been extremely difficult to
reconcile with Berryman’s testimony that, after she and
the petitioner returned to the deli from Crenshaw’s
house, numerous police and emergency vehicles con-
verged on the scene, Francia’s testimony that he called
for two ambulances and two emergency vehicles and
that numerous police officers responded to the 911 call,
and Ferraro’s testimony that he interviewed Berryman
and the petitioner at the scene approximately thirty to
forty-five minutes after the robbery and murder.
Accordingly, the new alibi evidence presented at the
habeas trial was merely cumulative of evidence pre-
sented at the criminal trial that cast doubt on the state’s
theory based on Brown’s testimony.26 We therefore con-
clude that the habeas court properly determined that
Ahern’s deficient performance was not prejudicial
under the second prong of Strickland because the peti-
tioner failed to establish that there is a reasonable prob-
ability that, if the jury had heard the new evidence
regarding the events preceding and following the rob-
bery and murder, its verdict would have been different.
United States v. Persico, supra, 645 F.3d 111 (evidence
that furnishes additional basis to challenge evidence
that is already questionable is not material); Orsini v.
Manson, supra, 5 Conn. App. 281 (cumulative evidence
is not material in constitutional sense).
III
We next address the petitioner’s claim that the judg-
ment of the habeas court may be affirmed on the alterna-
tive ground that the state’s use of perjured testimony
at the criminal trial deprived him of his constitutional
due process right to a fair trial under both the state
and federal constitutions. We disagree.
This court has not yet addressed the question of
whether the state’s unknowing use of perjured testi-
mony violates due process principles.27 See Gould v.
Commissioner of Correction, supra, 301 Conn. 570 n.18.
Although ‘‘[a] majority of the federal circuit courts
require a knowing use of perjured testimony by the
prosecution to find a violation of due process’’; (internal
quotation marks omitted) id.; the United States Court
of Appeals for the Second Circuit has held that, ‘‘when
false testimony is provided by a government witness
without the prosecution’s knowledge, due process is
violated . . . if the testimony was material and the
court [is left] with a firm belief that but for the perjured
testimony, the defendant would most likely not have
been convicted.’’ (Footnote omitted; internal quotation
marks omitted.) Ortega v. Duncan, 333 F.3d 102, 108
(2d Cir. 2003).
In the present case, the petitioner contends that both
Pearson and Brown perjured themselves at his criminal
trial. He further contends that this court should adopt
the Ortega standard under both the federal and state
constitutions. We need not decide that question, how-
ever, because, even if we were to adopt the Ortega
standard, the petitioner cannot prevail under that stan-
dard. First, the petitioner has not established conclu-
sively that Brown and Pearson committed perjury at
the criminal trial.28 Second, we have concluded in parts
I and II of this opinion that evidence presented at the
criminal trial cast serious doubt on Pearson’s and
Brown’s testimony and, even without that testimony,
there was still sufficient evidence to support the guilty
verdict. Accordingly, we conclude that the habeas court
properly determined that there is no reasonable proba-
bility that, but for Pearson’s and Brown’s testimony at
the criminal trial, the petitioner would not have been
convicted and, therefore, the petitioner was not
deprived of his constitutional due process right to a
fair trial.
IV
Finally, we address the petitioner’s claim that the
judgment of the habeas court may be affirmed on the
alternative ground that he established his claim of
actual innocence. We disagree.
To obtain habeas relief on the basis of a freestanding
claim of actual innocence, the petitioner must satisfy
a two part test. ‘‘First, taking into account both the
evidence produced in the original criminal trial and the
evidence produced in the habeas hearing, the petitioner
must persuade the habeas court by clear and convincing
evidence, as that standard is properly understood and
applied in the context of such a claim, that the petitioner
is actually innocent of the crime of which he stands
convicted. Second, the petitioner must establish that,
after considering all of that evidence and the inference
drawn therefrom . . . no reasonable fact finder would
find the petitioner guilty.’’ (Internal quotation marks
omitted.) Gould v. Commissioner of Correction, supra,
301 Conn. 557–58.
‘‘Actual innocence is not demonstrated merely by
showing that there was insufficient evidence to prove
guilty beyond a reasonable doubt.’’ Id., 560–61. ‘‘Rather,
actual innocence is demonstrated by affirmative proof
that the petitioner did not commit the crime.’’ Id., 561.
‘‘Affirmative proof of actual innocence is that which
might tend to establish that the petitioner could not
have committed the crime even though it is unknown
who committed the crime, that a third party committed
the crime or that no crime actually occurred.’’ (Empha-
sis in original.) Id., 563.
‘‘Discrediting the evidence on which the conviction
rested does not revive the presumption of innocence.
To disturb a long settled and properly obtained judg-
ment of conviction, and thus put the state to the task
of reproving its case many years later, the petitioners
must affirmatively demonstrate that they are in fact
innocent.’’ (Emphasis in original.) Id., 567. Neverthe-
less, we have recognized that, ‘‘[u]nder circumstances
where new, irrefutable evidence is produced that so
completely eviscerates the prosecution’s case such that
the state would have no evidence to go forward with
upon retrial, perhaps a functional equivalent to actual
innocence might credibly be claimed.’’ Id., 568.
In the present case, the petitioner claims that the
new evidence presented at the habeas trial shows that
Brown’s and Pearson’s testimony at the criminal trial
was false. He further claims that, if the only evidence
before the jury had been Berryman’s testimony, it would
have been ‘‘nearly impossible’’ for the petitioner to com-
mit the robbery and murder within the period that he
was not in Berryman’s presence while she remained in
the bathroom at Crenshaw’s house. Specifically, the
petitioner claims that he would have had only from 3:22
to 3:32 a.m. to: ‘‘(1) leave Berryman at [Crenshaw’s
house]; (2) run to the [d]eli; (3) meet Jackson and
Brown; (4) put on a ski mask from some unknown
location; (5) change his clothes, or at least his coat; [6]
grab a gun (or guns) from some unknown location; [7]
enter the [d]eli and remain inside for [five to seven]
minutes; [8] leave the [d]eli; and [9] run back to [Cren-
shaw’s house] just in time to respond calmly to Ber-
ryman’s request to borrow a phone.’’
This claim assumes, however, that the approximate
times given by the various witnesses were precise
times.29 Specifically, the petitioner points to Pearson’s
testimony that he spoke to the petitioner outside the
deli at 3:15 a.m., Berryman’s testimony that the peti-
tioner then went to Crenshaw’s house, Berryman’s testi-
mony that she was in the bathroom for fifteen minutes,30
and Pearson’s and Berryman’s testimony that the peti-
tioner was with her when she called Pearson at 3:30
a.m. All of these times, however, were approximate.
Thus, even if we were to agree that it would have been
impossible for the petitioner to commit the robbery
and murder within a ten minute window, which we do
not, the jury reasonably could have concluded that the
petitioner had from 3:10 to 3:35 a.m., or possibly even
longer, to leave Crenshaw’s house, commit the crimes,
and then return to Crenshaw’s house. Moreover, the
petitioner points to nothing in the evidence that would
establish that he could not have been carrying a ski
mask or a gun during the entire period in question.
Thus, we do not agree that it would have been impos-
sible for the petitioner to run from Crenshaw’s house
to the deli—which Berryman testified would take
approximately one minute—rob the deli and run back
to Crenshaw’s house within the relevant window of
time. Accordingly, even if we were to assume that the
petitioner was not required to present affirmative evi-
dence to establish his actual innocence, this is not a case
in which the petitioner has ‘‘so completely eviscerate[d]
the prosecution’s case . . . that the state would have
no evidence to go forward with upon retrial . . . .’’
Gould v. Commissioner of Correction, supra, 301 Conn.
568. Accordingly, we conclude that the habeas court
properly concluded that the petitioner did not establish
that he was actually innocent.
The judgment of the habeas court is reversed and
the case is remanded to that court with direction to deny
the petitioner’s petition for a writ of habeas corpus.
In this opinion the other justices concurred.
1
The petitioner was convicted of one count of felony murder in violation
of General Statutes § 53a-54c, one count of assault in the first degree in
violation of General Statutes § 53a-59, three counts of robbery in the first
degree in violation of General Statutes § 53a-134 (a) (2), two counts of
attempt to commit robbery in the first degree in violation of General Statutes
§§ 53a-49 and 53a-134 (a) (2), one count of conspiracy to commit robbery
in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a)
(2), one count of burglary in the first degree in violation of General Statutes
(Rev. to 1999) § 53a-101 (a) (2), and one count of carrying a pistol without
a permit in violation of General Statutes (Rev. to 1999) § 29-35 (a). State v.
Jackson, 73 Conn. App. 338, 341, 808 A.2d 388, cert. denied, 262 Conn. 929,
930, 814 A.2d 381 (2002).
2
For purposes of this appeal, the relevant pleading is the petitioner’s fifth
amended writ of habeas corpus.
3
After the habeas court granted the respondent’s request for permission
to appeal from the judgment of the habeas court, the respondent appealed
to the Appellate Court and we transferred the appeal to this court pursuant
to General Statutes § 51-199 (c) and Practice Book § 65-1.
4
The habeas court also concluded that Ahern should have sought informa-
tion from the company that provided telephone services for the stolen cell
phone regarding the origination of the calls made from the cell phone after
it was stolen. The petitioner does not dispute, however, that he made no such
claim in his petition for a writ of habeas corpus and that such information
was no longer available when Ahern took on the petitioner as a client.
Accordingly, to the extent that the habeas court determined that this consti-
tuted deficient performance and prejudiced the petitioner, we conclude that
any such determination was improper.
5
Unfortunately, because the testimony of the various witnesses at the
original criminal trial was confusing and contradictory, it is impossible to
construct a single narrative from that testimony while doing justice to the
petitioner’s claim that there is a reasonable possibility that the result of that
trial would have been different but for Ahern’s defective counsel. Accord-
ingly, we are required to recite the testimony of each individual witness at
some length.
6
Sykes married William Newkirk after the criminal trial and before the
habeas trial, and changed her last name to Newkirk. To distinguish her from
Newkirk, we refer to her in this opinion as Sykes.
7
Pearson was apparently confused on this point. As we have indicated,
the cell phone records did not reveal the exact locations from which the
calls originated. See footnote 4 of this opinion.
8
There is no explanation in the record as to why the cell phone records
indicate that the fourth call was made to a New Haven telephone number,
when the telephone number was for the 59 Ivy Street address in West Haven.
9
When counsel for the petitioner asked Newkirk, ‘‘[b]ut that’s what
dragged you into this case is you got a call from . . . Sadler on that cell
phone that the police told you had been taken in the . . . robbery/murder?’’
Newkirk answered, ‘‘Yes.’’ Newkirk had just testified, however, that ‘‘the
detectives told me’’ that Sadler had called Newkirk from the cell phone. We
are unaware of any other evidence that would support the conclusion that
the police believed that the fourth call was from Sadler to Newkirk. We
also note that Newkirk never testified at the habeas trial that he had an
independent recollection of receiving the fourth call from Sadler.
10
There was no call from the stolen cell phone to Newkirk’s cell phone.
Accordingly, Newkirk either misspoke or he misunderstood the nature of
the evidence that the police had obtained regarding the cell phone.
11
Ahern testified at the habeas trial that he had intended to call Jenkins
as a witness at the petitioner’s criminal trial. Jenkins had attended a portion
of the trial, but on the day that Ahern intended to call her, she was not
present and Ahern was unable to locate her. This testimony is corroborated
by the criminal trial transcript. Ahern did not request a continuance and
rested his case without calling Jenkins as a witness. Although Ahern testified
at the habeas trial that Jenkins had information about the petitioner’s interac-
tion with Pearson on January 25, 1999, he did not indicate what that informa-
tion was or how he obtained it. Ahern represented to the trial court at the
criminal trial, however, that Jenkins would testify that she did not see a
cell phone while she was at Pearson’s house on the morning of January
25, 1999.
12
Although we must accord deference to the habeas court’s credibility
assessments; see Lapointe v. Commissioner of Correction, 316 Conn. 225,
268, 112 A.3d 1 (2015) (‘‘we ordinarily accord deference to credibility deter-
minations that are made on the basis of [the] firsthand observation of [a
witness’] conduct, demeanor and attitude’’ [internal quotation marks omit-
ted]); there is no requirement that we defer to the habeas court’s legal
determination that new evidence is so compelling that a reasonable juror
could not fail to credit it. Cf. Levesque v. Bristol Hospital, Inc., 286 Conn.
234, 249, 943 A.2d 430 (2008) (issue of fact ‘‘becomes a conclusion of law
. . . when the mind of a fair and reasonable [person] could reach only one
conclusion’’ [internal quotation marks omitted]). Nor are we required to
defer to the trial court’s legal determination that there is a reasonable
probability that newly discovered evidence would have resulted in a different
verdict if credited by the jury, i.e., that it undermines confidence in the
verdict. Cf. Lapointe v. Commissioner of Correction, supra, 297–98 (‘‘the
issue of materiality presents a mixed question of law and fact, with the trial
court serving as the fact finder’’).
13
Specifically, Newkirk testified at the habeas trial that the police had
told him before the March 4, 1999 meeting in Bridgeport that Sadler had
called him from the stolen cell phone. With this belief in mind, he may have
simply misunderstood when Sadler, who previously had denied knowing
who had made the first and fifth calls, admitted to Dease that he had received
those calls from Brown, and understood Sadler to be admitting that he had
received the stolen cell phone from Brown. The petitioner points to no
evidence other than Newkirk’s testimony that would support the conclusion
that Sadler told Dease that he received the cell phone from Brown so that
he could make the fourth call. Indeed, if there is any such evidence, we can
perceive no reason why the petitioner would not have confronted Sadler
with that evidence at the habeas trial.
14
The jury could have believed Newkirk’s testimony that Sadler had told
Dease that he made the fourth call—or at least believed that Newkirk truly
believed that Sadler had made that statement—without being compelled to
conclude that Sadler actually made the call. There was significant confusion
regarding the calls made from the stolen cell phone. The jury also could
have believed that Sadler called Newkirk occasionally at the 59 Ivy Street
address without believing that Sadler made the fourth call to Newkirk.
15
Brown testified at the criminal trial that he made the third call at 10:40
a.m. on January 25, 1999, and that he then gave the cell phone to the
petitioner on Stratford Avenue in Bridgeport. Pearson testified that the
petitioner loaned the cell phone to Pearson at Pearson’s house in New Haven
that same morning and that he used the cell phone to make the fourth call,
which was at 11:07 a.m. The cell phone records reveal that the third call
lasted one minute. Thus, these events would have had to occur between
10:41 a.m. and 11:07 a.m.
The parties have cited no evidence in the record regarding the time
required to drive from Bridgeport to New Haven. We take judicial notice
that the distance between the cities is approximately twenty miles and the
average driving time in good traffic conditions is twenty-five to thirty
minutes. See Google Maps (2016), available at https://www.google.com/
maps/dir/Bridgeport,+CT/New+Haven,+CT (last visited June 14, 2016).
16
Pearson testified at the criminal trial that the petitioner and Jenkins
arrived at his house together. There is no evidence that Jenkins was with
the petitioner in Bridgeport or that the petitioner communicated with Jenkins
on the morning of January 25, 1999, about meeting and going to Pearson’s
house. Thus, it is logical to assume that the petitioner would have had to
have gone to Jenkins’ location, inform her or be informed of the plan, and
then go to Pearson’s residence.
17
The petitioner contends that, ‘‘[h]aving utterly failed to develop and
present the available evidence to challenge the state’s cell phone story . . .
Ahern was forced to concede the accuracy of the testimony of Pearson’’
when Ahern argued to the jury at the criminal trial that Pearson used the
stolen cell phone. Ahern did not concede, however, that the petitioner gave
the cell phone to Pearson. Rather, Ahern was attempting to imply that
Pearson implicated the petitioner because Pearson himself had taken the
cell phone from the deli. Although there was little evidence to support that
theory, there was also little evidence to support the theory that Sadler used
the cell phone to call Newkirk.
18
The details of Brown’s testimony are set forth in part II of this opinion.
19
When the police interviewed Pallet after the robbery and murder, they
showed him an array of eight photographs that included photographs of
Jackson and the petitioner and asked him if he saw anyone who had been
outside the deli before the robbery. Pallet pushed the photographs of the
petitioner and Jackson aside and said ‘‘take it for what it is . . . .’’ Pallet
was later arrested on various charges. When Pallet was brought to the police
station, Dease again interviewed him and showed him the photographic
array. At that point, Pallet again chose the photographs of Jackson and the
petitioner and signed them.
The petitioner points out that Pallet testified that the petitioner was
wearing a distinctive jacket when Pallet saw him outside the deli, and that
none of the victims of the crime described such a jacket. The fact that
none of the victims remembered the jacket does not conclusively establish,
however, that the petitioner was not wearing it. The petitioner also contends
that Pallet’s testimony that the petitioner was wearing a ‘‘skellie,’’ which
the petitioner contends is a stocking-type covering without openings for the
eyes and mouth, was inconsistent with other testimony that the perpetrators
wore masks with such openings. Pallet never saw the head covering that
the petitioner was wearing when it was pulled over his face, however, and
Brown testified at the criminal trial that the petitioner was wearing a ‘‘skel-
lie,’’ which he described as a ski mask.
20
The petitioner contends that, on cross-examination, Thompson retracted
his testimony identifying the petitioner as the person who had held a gun to
his head. We disagree. On direct examination at the criminal trial, Thompson
stated that the eyes of the person in the photograph that he selected looked
‘‘familiar’’ and he believed that the photograph was of the person who had
held a gun to his head, but he could not be 100 percent sure. On cross-
examination, when Ahern asked Thompson whether the reason that he
chose the photograph of the petitioner was ‘‘because of the eyes,’’ Thompson
replied, ‘‘Yes.’’ Ahern immediately followed up that question by asking
Thompson: ‘‘You were not picking out that photograph to tell . . . Dease
that this is the man who did it, correct?’’ Thompson again agreed. Accord-
ingly, it is reasonable to conclude that Thompson merely intended to testify
on cross-examination that the petitioner’s photograph looked like the perpe-
trator, but Thompson could not be entirely sure that he was the perpetrator.
21
As we have indicated, the robbery and murder took place shortly before
3:32 a.m. on January 24, 1999.
22
We note that conspiracy to commit manslaughter is not a cognizable
offense. State v. Greene, 274 Conn. 134, 164, 874 A.2d 750 (2005) (‘‘conspiracy
to commit manslaughter in the first degree with a firearm is not a cognizable
crime because it requires a logical impossibility, namely, that the actor . . .
[agree and] intend that an unintended death result’’ [internal quotation marks
omitted]), cert. denied, 548 U.S. 926, 126 S. Ct. 2981, 165 L. Ed. 2d 988 (2006).
23
Berryman also stated several times that she was not sure exactly how
long she remained in the bathroom, but that it was ‘‘a while’’ or ‘‘quite a
while . . . .’’
24
The evidence presented at the criminal trial reflects that there was some
rivalry between Pearson and the petitioner for Berryman’s attentions, and
that Berryman had been annoyed by and resisted the petitioner’s advances.
This would explain the petitioner’s apparent attempts to prevent Berryman
from meeting up with Pearson on the night in question.
25
As we have indicated, Yousif had been shot, but he was not, in fact, dead.
26
If the jury had disbelieved Brown’s testimony regarding the events that
preceded and followed the robbery and murder, it still could have believed
the eyewitnesses who identified the petitioner as a participant in the crimes.
See part I of this opinion. In addition, while the record admittedly reveals
no reason why Brown would have testified truthfully about his, the petition-
er’s and Jackson’s participation in the crimes, while lying about their actions
before and after the crimes, the jury was not required to reject all of Brown’s
testimony simply because it disbelieved a portion of it. State v. Meehan,
260 Conn. 372, 381, 796 A.2d 1191 (2002) (‘‘[i]t is axiomatic that evidentiary
inconsistencies are for the jury to resolve, and it is within the province of
the jury to believe all or only part of a witness’ testimony’’).
27
The petitioner makes no claim that the state knowingly used perjured
testimony at his criminal trial.
28
As we have explained, although the habeas court concluded that Pear-
son’s testimony at the criminal trial was false ‘‘based upon the evidence
presented by the other witnesses’’ at the habeas trial, the testimony of
those witnesses did not establish conclusively that, contrary to Pearson’s
testimony, he did not make the fourth call to Sykes. See part I of this opinion.
As we have also explained, courts view recantation testimony with great
skepticism. Gould v. Commissioner of Correction, supra, 301 Conn. 568.
29
We assume for purposes of this portion of the opinion that the jury would
have rejected Pearson’s and Brown’s testimony if the evidence presented at
the habeas trial had been presented at the criminal trial because, even if
that were the case, the petitioner cannot prevail on his claim that it would
have been impossible for him to commit the crimes under Berryman’s
account of the events on the night in question.
30
The petitioner does not cite where in the record Berryman stated that
she may have been in the bathroom for as little as ten minutes. Our review
of the record reveals that she testified that, although she was not certain
how long she was in the bathroom, it was approximately fifteen minutes.