Wright v. Commissioner of Correction ( 2021 )

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BILLY WRIGHT v. COMMISSIONER
OF CORRECTION
(AC 43607)
Moll, Alexander and Vertefeuille, Js.
Syllabus
The petitioner, who had previously been convicted of murder, sought a writ
of habeas corpus, claiming that he received ineffective assistance from
his criminal trial counsel, S. The petitioner’s first trial resulted in a
mistrial following a hung jury, and, at the second trial, the jury found
the petitioner guilty. Following a trial, the habeas court granted the
petition for a writ of habeas corpus on the ground that, during the
petitioner’s second trial, S failed to present testimony from G, the peti-
tioner’s girlfriend at the time of the shooting, as an alibi witness. The
court emphasized that there was a hung jury at the petitioner’s first trial
and that, although it was not possible to discern the individual jurors’
credibility assessments, the only evidence contradicting the state’s evi-
dence at the first trial was G’s testimony. The court reasoned that,
therefore, one half of the first jury was unable to conclude that the state
had met its burden of proof in light of G’s testimony, and that G’s
testimony impacted the outcome of the first trial. From the judgment
rendered thereon, the respondent, the Commissioner of Correction, on
the granting of certification, appealed to this court. Held that the habeas
court incorrectly determined that S rendered ineffective assistance by
failing to present an alibi defense: the court’s determination was based
on the improper assumption that the six jurors from the first trial who
did not vote in favor of finding the petitioner guilty were influenced by
G, and that G’s testimony contributed to the jury’s inability to conclude
that the state had met its burden of proof beyond a reasonable doubt;
moreover, although the jury requested playback of G’s testimony, G was
one of seven witnesses whose testimony was reviewed by the jury during
deliberations; accordingly, the court’s finding that S rendered deficient
performance by failing to call G as an alibi witness was inextricably
intertwined with its determination as to the reason for the hung jury in
the petitioner’s first trial, and because the reasons why there was a
hung jury are not ascertainable, it would be guesswork for the court to
attempt to determine such reasons.
Argued May 19—officially released December 7, 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 this court.
Reversed in part; new trial.
Jonathan M. Sousa, deputy assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Adrienne Russo, assistant state’s attor-
ney, for the appellant (respondent).
Adele V. Patterson, senior assistant public defender,
for the appellee (petitioner).
Opinion
ALEXANDER, J. The respondent, the Commissioner
of Correction, appeals from the judgment of the habeas
court granting the petition for a writ of habeas corpus
filed by the petitioner, Billy Wright. On appeal, the
respondent claims that the court incorrectly determined
that the petitioner’s criminal trial counsel had rendered
ineffective assistance by failing to present an alibi
defense. We agree and, accordingly, reverse the judg-
ment of the habeas court.
The petitioner was originally tried in 2010 for the
April 27, 2008 murder of Ronald Bethea in violation of
General Statutes § 53a-54a (a). State v. Wright, 152
Conn. App. 260, 261, 96 A.3d 638 (2014), rev’d, 322 Conn.
270, 140 A.3d 939 (2016).1 The murder occurred outside
of the Cardinal’s Club in New Haven at approximately
1:47 a.m. Id., 262–63. The trial court declared a mistrial
after a hung jury, and a retrial took place in 2011. Id.,
261–62. At the second trial, the jury found the petitioner
guilty of murder, and the court imposed a sentence of
sixty years of imprisonment. Id., 262.
The petitioner initiated this habeas action, and, on
March 1, 2018, he filed an amended petition that con-
tained four counts. Only the first count, in which the
petitioner alleged ineffective assistance of his criminal
trial counsel, Richard Silverstein, for, inter alia, failing
to present an alibi defense at his second criminal trial,
is relevant to this appeal.2 With respect to this claim,
the petitioner alleged that a ‘‘fundamental difference
between the first and second trials was that [Silverstein]
did not pursue an alibi defense and did not produce
evidence which established an alibi defense which had
been produced at the first trial. An inference can be
drawn that, but for trial counsel’s failure to produce an
alibi defense and evidence in support of an alibi defense,
the result of the petitioner’s second trial would have
been different.’’
A trial on the petitioner’s habeas petition was held
on July 12 and August 30, 2018, and January 11 and
February 28, 2019. The petitioner presented multiple
witnesses. Stephanie Gonzalez, the petitioner’s girl-
friend at the time of the shooting and the mother of
his child, testified in a manner consistent with her testi-
mony at the petitioner’s first criminal trial. She stated
that, on the night the victim was shot, she got home
between 11:30 p.m. and 12 a.m. after picking up their
son from her grandmother’s house. When she arrived
home, the petitioner was asleep in their apartment. She
further explained that she slept in the same bed as the
petitioner and woke up a few times when her son woke
up, ‘‘around 3, 4 then around, like, 6, 7 [o’clock] in the
morning.’’ Each time she woke up, the petitioner was
still asleep in their bed. She further testified that she
met with Silverstein about testifying at the petitioner’s
second criminal trial. When she arrived at Silverstein’s
office on the morning she planned to testify, however,
he told her she would not have to testify because ‘‘[h]e
felt like he had a strong case and he didn’t need me
. . . .’’
Attorney Jeffrey Kestenband testified as a criminal
defense expert. In this capacity, he opined ‘‘that reason-
ably competent trial counsel would have called . . .
Gonzalez to testify as an alibi witness at the second
trial.’’ He explained that Gonzalez’ testimony provided
direct evidence that the petitioner had an alibi for the
time of the crime. Further, Kestenband testified that
the lack of a jury verdict in the first trial, as well as the
fact that the jury in the first trial asked to have Gonzalez’
testimony read back during its deliberations, suggested
that at least some jurors credited her testimony. He
emphasized the importance of the hung jury, stating
that ‘‘[i]t was six to six,3 which would tend to suggest
that the state had a hard time proving its case, and
when you also consider the fact that [Gonzalez] not
only provided evidence that, if credited, would have
established that [the petitioner] was not guilty, but that
she was the only witness called by the defense. That is
really important information to consider when deciding
how to defend [the petitioner] at the second trial.’’
(Footnote added.) Kestenband also opined that there
was a reasonable probability that a different outcome
would have occurred in the petitioner’s second trial if
Silverstein had called Gonzalez and presented an alibi
defense. On cross-examination, Kestenband admitted
that it was possible that the jurors from the first trial
did not credit Gonzalez’ testimony, and, instead, found
that the state had not proven its case beyond a reason-
able doubt. However, he also stated that, ‘‘when I con-
sider evidence as an expert and analyze it that way,
I’m not really focusing on possibilities because almost
anything is possible. I’m focused on reasonable proba-
bilities, and while [I] acknowledge that it’s possible, I
find it unlikely that it’s reasonably probable that that
occurred.’’
Silverstein testified that his defense theory was to
show that the police had conducted a flawed and incom-
plete investigation, and he stated that he ‘‘had to change
it up’’ from the defense presented in the first trial
because he was ‘‘not gonna try the same case that didn’t
result in a not guilty.’’ Silverstein also attacked the
state’s identification evidence against the petitioner
during the second criminal trial. He believed that the
jury in the first trial had voted eleven to one or ten to two
in favor of convicting, and stated that he had ordered
the transcripts of the first trial only through closing
arguments, because ‘‘anything after the closing argu-
ment I’m not interested in . . . .’’ After he was
informed that the hung jury actually was divided six
to six, Silverstein said that would not change how he
handled the petitioner’s defense. Silverstein explained
that he did not recall speaking to Gonzalez during the
petitioner’s trial but also testified that he reviewed her
testimony from the first trial and ‘‘didn’t find her credi-
ble and didn’t think she’d do a good job, and I didn’t
think she did a good job during the first case . . . .’’
He believed that, if Gonzalez had been credible at the
first trial, the jury would have returned a not guilty
verdict. He further explained that he listed Gonzalez as
a potential witness, served her with a subpoena, and
informed the trial court that he intended to call her as
a witness in order to keep the prosecutor ‘‘off balance
as much as possible’’ even though he ‘‘had no intention
of doing it . . . .’’
On October 25, 2019, the habeas court issued a memo-
randum of decision granting the petition for a writ of
habeas corpus on the ground that Silverstein rendered
ineffective assistance of counsel when he failed to pres-
ent an alibi defense.4 It concluded that Silverstein ren-
dered deficient performance when he did not call Gonzalez
as an alibi witness and that this deficient performance
prejudiced the petitioner. The court vacated the peti-
tioner’s conviction and remanded the case for a new
criminal trial.
The court discussed the evidence presented at the
petitioner’s first and second trials, stating that there
were ‘‘several notable differences,’’ with one being that
Gonzalez was not called as an alibi witness at the second
trial. The court then addressed the testimony presented
at the habeas trial. It discussed Gonzalez’ testimony
that the petitioner was asleep when she arrived home
and remained there until morning, as well as the fact
that Gonzalez was available to testify at the petitioner’s
second trial and had met with Silverstein the day he
was scheduled to present the defense. The court found
Gonzalez’ testimony to be credible. The court noted
Kestenband’s testimony and found his ‘‘analyses to be
persuasive.’’ The court stated that Kestenband ‘‘con-
cluded that reasonably competent trial counsel would
have called Gonzalez as an alibi witness in the second
trial. The impact that Gonzalez had on the first trial
weighs in favor of calling her to discredit or negate
Denard Lester’s testimony in the second trial.5 According
to Kestenband, it was unreasonable for Silverstein to
not call Gonzalez as an alibi witness because no one
identified the petitioner as the shooter, but more than
one witness placed the petitioner at the [Cardinal’s]
Club. Gonzalez’ testimony would directly contradict the
tenuous identification evidence that placed the peti-
tioner at the club. . . . Thus, it was more important to
call Gonzalez in the second trial when compared to the
first trial.’’ (Footnote added.)
In its decision, the court emphasized the hung jury
in the petitioner’s first trial and the jury’s request for
a playback of Gonzalez’ testimony. The court stated
that, ‘‘[a]lthough it is not possible to discern the individ-
ual jurors’ credibility assessments, the only defense evi-
dence that contradicted the circumstantial evidence
. . . was the alibi supported by Gonzalez. Stated some-
what differently, all twelve jurors in the second trial
found the tenuous circumstantial evidence sufficient to
convict the petitioner, yet one half of the first jury was
not able to conclude that the state had met its burden
of proof in light of the alibi provided by Gonzalez.
Clearly, Gonzalez had an impact on the outcome of
the first trial.’’ (Emphasis added.) The court found
that Silverstein made his assessments about Gonzalez’
testimony ‘‘without the knowledge that the jury was
evenly divided in the first trial. Silverstein’s oblique
assessment of her alibi testimony was premised on Sil-
verstein’s overly myopic view that a hung jury and [a]
mistrial are not a defense victory.’’ The court discussed
the variety of ways the defense can call into question
identification evidence and noted that Silverstein chal-
lenged both the identification evidence and the police
investigation. The court found that ‘‘attacking the identi-
fication procedures themselves or the reliability of eye-
witness identifications may create reasonable doubt,
but not in the manner an alibi witness can.’’ (Emphasis
added.)
The court stated that it ‘‘cannot determine any
rational basis for Silverstein to not present Gonzalez’
alibi testimony, even if the state attempted to show
that she was biased because she was the petitioner’s
girlfriend and mother of their child.’’ The court further
stated that, ‘‘[a]lthough the jury in the first criminal
trial theoretically may have been unable to reach a
unanimous verdict solely because of disagreement as
to the identification evidence, which would require
completely negating or discounting Gonzalez’ testi-
mony, the court does not find such a scenario plausible.
The fact that the jury requested playback of Gonzalez’
testimony underscores that her testimony influenced
the deliberations and contributed to the jury being
unable to conclude that the state had met its burden of
proof beyond a reasonable doubt.’’ (Emphasis added.)
The court concluded that Silverstein rendered inef-
fective assistance of counsel, stating: ‘‘Given all of the
foregoing, the court concludes that [Silverstein] ren-
dered deficient performance by not calling [Gonzalez]
as an alibi witness . . . [and] that this deficient perfor-
mance prejudiced the petitioner. The jury did not hear
alibi evidence that previously had a discernible impact
by contributing to an evenly divided jury and mis-
trial.’’ (Emphasis added.)
On October 31, 2019, the respondent filed a petition
for certification to appeal, which the court granted. On
appeal, the respondent argues that the habeas court
incorrectly determined that the petitioner received inef-
fective assistance of counsel because Silverstein did
not present Gonzalez as an alibi witness. Specifically,
the respondent contends that the court improperly
based its ruling on its determination that one ‘‘half of
the first jury was not able to conclude that the state
had met its burden of proof in light of the alibi provided
by Gonzalez . . . .’’ (Internal quotation marks omit-
ted.) We agree with the respondent and, therefore, we
reverse the judgment of the habeas court with respect
to the claim of ineffective assistance for failure to pres-
ent an alibi defense.
We first set forth the legal principles relevant to our
resolution of this appeal. ‘‘Our standard of review of a
habeas court’s judgment on ineffective assistance of
counsel claims is well settled. In a habeas appeal, this
court cannot disturb the underlying facts found by the
habeas court unless they are clearly erroneous, but our
review of whether the facts as found by the habeas court
constituted a violation of the petitioner’s constitutional
right to effective assistance of counsel is plenary. . . .
‘‘In Strickland v. Washington, [466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States
Supreme Court established that for a petitioner to pre-
vail on a claim of ineffective assistance of counsel, he
must show that counsel’s assistance was so defective
as to require reversal of [the] conviction . . . . That
requires the petitioner to show (1) that counsel’s perfor-
mance was deficient and (2) that the deficient perfor-
mance prejudiced the defense. . . . Unless a [peti-
tioner] makes both showings, it cannot be said that
the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
. . . Because both prongs . . . must be established for
a habeas petitioner to prevail, a court may dismiss a
petitioner’s claim if he fails to meet either prong.’’ (Inter-
nal quotation marks omitted.) Anderson v. Commis-
sioner of Correction, 201 Conn. App. 1, 11–12, 242 A.3d
107, cert. denied, 335 Conn. 983, 242 A.3d 105 (2020).
In the present case, the court erred in concluding
that Silverstein rendered deficient performance when
he did not call the alibi witness because its determina-
tion was based on the improper assumption that six
jurors from the first trial were ‘‘influenced [in] delibera-
tions’’ by the alibi witness and that the alibi testimony
‘‘contributed to the jury being unable to conclude that
the state had met its burden of proof beyond a reason-
able doubt.’’ In concluding that Silverstein’s perfor-
mance was deficient, the court repeatedly referenced
its finding that the alibi witness’ testimony was the
cause of the hung jury at the petitioner’s first trial. The
court determined that one ‘‘half of the first jury was
not able to conclude that the state had met its burden of
proof in light of the alibi provided by Gonzalez. Clearly,
Gonzalez had an impact on the outcome of the first
trial.’’
‘‘It is a settled doctrine in Connecticut that a valid
jury verdict in a criminal case must be unanimous. . . .
A nonunanimous jury therefore cannot render any find-
ing of fact. . . . The jury’s inability to reach a unani-
mous verdict . . . does not shed any light on the jury’s
assessment of the merits of the evidence presented
. . . .’’ (Citations omitted; internal quotation marks
omitted.) State v. Covington, 184 Conn. App. 332, 342,
194 A.3d 1224 (2018), aff’d, 335 Conn. 212, 229 A.3d
1036 (2020).
Furthermore, as this court noted in Dieudonne v.
Commissioner of Correction, 141 Conn. App. 151, 162
n.6, 60 A.3d 385 (2013), appeal dismissed, 316 Conn.
474, 112 A.3d 157 (2015), ‘‘Yeager [v. United States, 557
U.S. 110, 129 S. Ct. 2360, 174 L. Ed 2d 78 (2009)] warns
against guesswork in ascribing reasons why the jury
failed to reach a verdict . . . .’’ (Emphasis omitted.)
Although decided in a different context, Yeager is
instructive on this issue.6 In Yeager, the United States
Supreme Court held that, ‘‘[b]ecause a jury speaks only
through its verdict, its failure to reach a verdict can-
not—by negative implication—yield a piece of informa-
tion that helps puts together the trial puzzle. . . .
Unlike the pleadings, the jury charge, or the evidence
introduced by the parties, there is no way to decipher
what a hung count represents. . . . A host of reasons—
sharp disagreement, confusion about the issues,
exhaustion after a long trial, to name but a few—could
work alone or in tandem to cause a jury to hang. To
ascribe meaning to a hung count would presume an
ability to identify which factor was at play in the jury
room. But that is not reasoned analysis; it is guesswork.’’
(Citations omitted; footnote omitted.) Yeager v. United
States, supra, 121–22; see also United States v. Botti,
722 F. Supp. 2d 207, 212 (D. Conn. 2010) (‘‘[A] hung
count means nothing in [posttrial] analyses. It cannot
be made to mean anything.’’), aff’d, 711 F.3d 299 (2d
Cir. 2013).
Although the habeas court correctly noted that ‘‘it is
not possible to discern the individual jurors’ credibility
assessments,’’ it then incorrectly determined that Gon-
zalez’ testimony had a positive impact on the jury when
it found that ‘‘[t]he jury did not hear alibi evidence that
previously had a discernible impact by contributing
to an evenly divided jury and mistrial.’’ (Emphasis
added.)
Additionally, both the petitioner and the habeas court
emphasized the fact that the jury requested playback
of Gonzalez’ testimony during their deliberations. Gon-
zalez was one of seven witnesses whose testimony was
reviewed by the jury during deliberations. The peti-
tioner cites a number of cases for the proposition that
‘‘a request by a jury may be a significant indicator of
[its] concern about evidence and issues important to
[its] resolution of the case.’’ (Internal quotation marks
omitted.) None of these cases, however, is directly
on point.7
After our thorough review of the record, we conclude
that the habeas court’s finding that Silverstein rendered
deficient performance by failing to call Gonzalez as
an alibi witness was inextricably intertwined with its
determination as to the reason for the hung jury in the
petitioner’s first trial. The reasons why there was a hung
jury are not ascertainable, and, therefore, it would be
‘‘guesswork’’ to attempt to determine such reasons. See
Yeager v. United States, supra, 557 U.S. 122. Accord-
ingly, the judgment of the habeas court must be
reversed insofar as it was predicated on the court’s
improper assumption that one half of the members of
the jury in the first trial voted for an acquittal due to
the alibi testimony.
The judgment is reversed only with respect to the
habeas court’s determination that Silverstein provided
ineffective assistance of counsel by failing to present
an alibi defense and the case is remanded for a new
trial as to that issue; the judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
1
The petitioner filed a direct appeal from the judgment of conviction.
State v. Wright, supra, 152 Conn. App. 260In that appeal, this court reversed
the judgment of conviction and remanded the case for a new trial. Id., 282.
Our Supreme Court granted certification and reversed this court’s decision
and remanded the case with direction to affirm the judgment of conviction.
State v. Wright, 322 Conn. 270, 272, 291, 140 A.3d 939 (2016).
2
Silverstein did not represent the petitioner in his first criminal trial.
3
Kestenband testified that he had reviewed the transcripts of the petition-
er’s first trial. Included in those transcripts was the following statement
made by the court: ‘‘The court has received a note from the jury . . . . It
reads as follows . . . we are unable to reach a unanimous decision, we are
still six guilty, six not guilty.’’ The court then declared a mistrial.
4
The court rejected the petitioner’s remaining claims of ineffective assis-
tance of counsel, a violation of due process, and actual innocence. The
petitioner has not challenged those aspects of the habeas court’s decision.
5
On the night the murder took place, video surveillance showed that,
shortly before the shooting, Lester gave ‘‘ ‘dap,’ ’’ a brief hug and handshake,
to a person who then shot the victim. State v. Wright, supra, 152 Conn.
App. 278. At the petitioner’s first trial, Lester testified that he knew the
petitioner by the name ‘‘ ‘Wild Billy’ ’’ and identified the petitioner as the
person to whom he gave ‘‘ ‘dap . . . .’ ’’ Id., 279. At the petitioner’s second
trial, however, Lester testified that on the night of the murder, the petitioner
was not the individual to whom he gave ‘‘ ‘dap.’ ’’ Id.
6In Yeager v. United States, supra, 557 U.S. 110, the United States Supreme
Court had to determine the legal consequences of a hung jury on some
counts and an acquittal on other counts for the purposes of issue preclusion
and double jeopardy. The court concluded that, for double jeopardy and
issue preclusion purposes, ‘‘courts should scrutinize the jury’s decisions,
not its failures to decide,’’ and held that ‘‘the consideration of hung counts
has no place in the [issue preclusion] analysis.’’ Id., 122.
7
The cases that the petitioner cites for this proposition each involve
appeals based on evidentiary rulings. In State v. Devalda, 306 Conn. 494,
496, 50 A.3d 882 (2012), on appeal, the defendant argued, inter alia, that
the trial court improperly omitted limiting language in its jury instructions
regarding the statutory definition of kidnapping. During deliberations, the
jury in that case sent a note to the court asking it to ‘‘reread the definitions
of the laws,’’ at which point the court repeated the instruction, including
the improper omission. (Internal quotation marks omitted.) Id., 510. Further,
the jury requested playback of witness testimony relating to crucial time
periods relating to the kidnapping charge. Id., 510–11. Our Supreme Court
concluded that it was reasonably possible that the improper instruction had
the effect of misleading the jury. Id., 511. In State v. Miguel C., 305 Conn.
562, 564, 46 A.3d 126 (2012), the defendant appealed his convictions of
sexual assault in the first degree and risk of injury to a child, claiming that
a portion of the complainant’s testimony was improperly admitted and that,
as a result, the verdict was substantially affected. In analyzing the risk of
unfair prejudice to the defendant, our Supreme Court stated that it ‘‘need
not speculate about the prejudicial effect . . . because the jury’s note to
the court during deliberations provides insight into the facts that the jury
considered when it was reaching its verdict. . . . [B]y asking to rehear the
portion of the testimony [that was stricken] . . . the jury evidenced its
belief that the stricken testimony was significant.’’ Id., 577–78.
In State v. Carter, 232 Conn. 537, 538, 656 A.2d 657 (1995), the defendant
appealed from the trial court’s failure to give a self-defense instruction to
the jury. In determining whether the trial court erred when it declined to
give the instruction, our Supreme Court discussed the evidence presented
at trial, as well as the jury’s concern regarding the issue of self-defense, as
evidenced by a note sent by the jury to the court during deliberations in
which it asked if the court had addressed the issue of self-defense in its
charge. Id., 549. The court stated that it has ‘‘recognized that a request by
a jury may be a significant indicator of [its] concern about evidence and
issues important to [its] resolution of the case.’’ Id. The court concluded
that there was sufficient evidence to raise the issue of self-defense, and that
the instruction should have been given to the jury. Id., 549–50. Last, in State
v. Moody, 214 Conn. 616, 617, 627, 573 A.2d 716 (1990), the defendant
appealed his murder conviction, arguing, inter alia, that the trial court erred
in denying his motion in limine and in permitting the state to present irrele-
vant and prejudicial evidence. After it determined that certain evidence had
been admitted in error, our Supreme Court analyzed whether the error was
harmful. Id., 629. During deliberations, the jury sent the court a question
about the evidence that had been admitted in error, and our Supreme Court
determined that the question showed that the jury found the piece of evi-
dence important, that it had been misled by the evidence, and, therefore,
that the error was harmful. Id., 629–30.