Myers v. Commissioner of Correction ( 2022 )

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MYERS v. COMMISSIONER OF CORRECTION—CONCURRENCE
PRESCOTT, J., concurring in part and dissenting in
part. I agree with part II of the majority opinion and,
on the basis of the well reasoned analysis set forth
therein, concur that the trial court properly dismissed
the petition of the petitioner, Ricardo Myers, for a new
trial. I also agree with the majority’s conclusion in part
I B of the opinion that the habeas court properly denied
his actual innocence claim.
I do not, however, agree with the majority’s conclu-
sion in part I A of the opinion that the habeas court
properly determined that the petitioner failed to demon-
strate that his trial counsel provided ineffective assis-
tance of counsel. In my view, the habeas court improp-
erly concluded that the petitioner failed to demonstrate
that his trial counsel’s performance was deficient and
that he suffered prejudice from any alleged deficient
performance. I additionally conclude that the habeas
court abused its discretion by denying the petitioner’s
requests for the issuance of a capias warrant and for
a continuance. Thus, I would reverse the habeas court’s
denial of the petitioner’s request for the issuance of a
capias warrant and remand the case to the habeas court
with direction to grant the petitioner’s request and to
conduct a new trial on the issue of prejudice. Accord-
ingly, I respectfully dissent.
To start, I agree with the majority that the habeas
court properly denied the petitioner’s claim of actual
innocence. As the majority persuasively explained, the
petitioner was required to meet the extremely high bur-
den of establishing that, ‘‘after considering all of th[e]
evidence [adduced at the original criminal trial and the
habeas trial] and the inferences drawn therefrom . . .
no reasonable fact finder would find the petitioner
guilty of the crime’’ for which he was convicted.
(Emphasis added.) Miller v. Commissioner of Correc-
tion, 242 Conn. 745, 747, 700 A.2d 1108 (1997). In the
present case, even if Latrell Rountree had testified at
trial that Gary Pope, as opposed to the petitioner, had
shot Tirrell Drew, Dwight Crooks testified on behalf of
the state that the petitioner had shot Drew. See State
v. Myers, 178 Conn. App. 102, 104, 174 A.3d 197 (2017).
Thus, even if Rountree’s testimony was exculpatory
with respect to the issue of the identity of the shooter,
the state presented conflicting evidence as to that issue,
and the jury reasonably could have discredited Roun-
tree’s testimony in favor of the testimony of Crooks.
The petitioner thus failed to establish that ‘‘no reason-
able fact finder’’ would have concluded that he shot
Drew. See Miller v. Commissioner of Correction,
supra, 747.
I next turn to the petitioner’s claim of ineffective
assistance of trial counsel. The facts and procedural
history are well articulated by the majority, and I do
not disagree with the habeas court’s factual findings
or the majority’s recitation thereof. It is important to
emphasize, however, the relevant facts that put in con-
text the importance of Rountree’s testimony to the peti-
tioner’s case in the underlying criminal trial. As the
majority explained, after the petitioner, Crooks, and
Pope exited the Lazy Lizard club in New Haven during
the early hours of May 18, 2013, an argument ensued
between them and another group of individuals in the
vicinity of the club. State v. Myers, supra, 178 Conn.
App. 103–104. ‘‘The argument escalated to a physical
altercation . . . [resulting in] officers of the New
Haven police stepp[ing] in and caus[ing] the groups to
disperse.’’ Id., 104. The petitioner, Crooks, and Pope
then drove to a second location, after which they once
again encountered the other group. Id. ‘‘Some provoca-
tive remarks were made and the two groups moved
toward each other.’’ Id.
At this point, according to Crooks’ testimony at trial,
Crooks ‘‘heard gunshots, and he turned to see the [peti-
tioner] holding a gun. Two bullets [had] struck and
killed . . . Drew, who was a member of the other
group, and stray bullets [had] injured two bystanders.’’
Id. Six days after the shooting, however, ‘‘Rountree,
while in custody on an unrelated matter, revealed to
the police that he was Drew’s friend and was present
when Drew was shot.’’ Id. ‘‘Rountree identified Pope,’’
not the petitioner, ‘‘as the shooter.’’ (Emphasis
added.) Id.
At trial, the petitioner’s trial counsel made the strate-
gic choice not to raise or pursue a claim of self-defense.
Consequently, the most, if not only, viable theory of
the case that trial counsel could pursue at trial was
that the petitioner was not the shooter. As the majority
states, trial counsel hired a private investigator to locate
Rountree and to serve on him a subpoena ad testifican-
dum. Despite the fact that the private investigator
served the subpoena on Rountree on May 28, 2015,
which required that Rountree appear in court the fol-
lowing day, Rountree failed to appear in court on May
29, 2015. Trial counsel requested that the court issue a
capias warrant to locate Rountree over the weekend
and to secure his attendance at trial the following Mon-
day, June 1, 2015. The court issued a capias warrant,
but a marshal was unable to locate Rountree to serve
the capias warrant on him, and he failed to appear to
testify on June 1, 2015.
After informing the court that the authorities were
unable to locate Rountree, the court asked trial counsel
whether the defense had ‘‘[a]ny additional requests,’’ to
which trial counsel answered, ‘‘[n]o.’’ Instead, and in
lieu of Rountree’s live testimony, trial counsel offered
into evidence Rountree’s recorded statement to the
police, in which he identified Pope as the shooter, under
the residual exception to the hearsay rule. Due to the
narrowness of the residual exception to the hearsay
rule, and in light of the facts that Rountree had provided
his statement to the police while incarcerated in con-
nection with an unrelated matter six days after the
shooting; see State v. Myers, supra, 178 Conn. App. 104;
and that Rountree was not under oath when he provided
the statement to the police, the court determined on
June 1, 2015, that Rountree’s recorded statement was
inadmissible under the residual exception. Specifically,
the court determined, the statement did not satisfy the
requirement of the residual exception that the state-
ment be ‘‘supported by equivalent guarantees of trust-
worthiness and reliability’’ necessary for its admission.
Conn. Code Evid. § 8-9.
After the court concluded that Rountree’s recorded
statement was inadmissible, trial counsel made no addi-
tional effort to secure Rountree’s live testimony. Signifi-
cantly, trial counsel did not request a continuance to
try to locate Rountree and to secure his testimony in
court. Instead, and almost immediately after the court
made its ruling,1 the defense rested without presenting
any additional evidence. Shortly thereafter, the parties
proceeded to closing argument. Despite the court
informing the jury that the evidentiary portion of the
trial likely would last ‘‘five to six days,’’2 the evidentiary
portion of the trial had taken only four full days—May
26, 27, 28 and 29, 2015—with the defense resting on
the beginning of the fifth day of the trial, June 1, 2015,
and closing argument taking place that same day. Dur-
ing the trial, the jury did not hear testimony from any
witness, or see any other evidence, supporting an asser-
tion that Pope, not the petitioner, was the shooter.
Despite failing to present evidence advancing the the-
ory that Pope was the shooter, trial counsel nonetheless
argued during closing argument that Pope, and not the
petitioner, had shot Drew. Specifically, trial counsel
argued, ‘‘[t]here’s another person who has been devel-
oped as a suspect . . . [specifically] Pope, [and] all [of]
the evidence points to the fact that he’’ shot Drew.
Trial counsel, however, failed to identify any specific
evidence that corroborated the petitioner’s alternative
shooter theory. During its rebuttal argument, counsel
for the state easily undermined the petitioner’s alterna-
tive shooter theory by repeatedly asking the jury
whether it had seen any evidence to corroborate that
theory and reciting the evidence that the state had pre-
sented to prove that the petitioner was the shooter,
including Crooks’ eyewitness testimony. The jury sub-
sequently found the petitioner guilty of murder and two
counts of assault in the first degree. See State v. Myers,
supra, 178 Conn. App. 103.
Having set forth the relevant factual context, I briefly
reiterate the legal principles that govern claims of inef-
fective assistance of counsel. The United States
Supreme Court, in Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted
a two part test ‘‘[t]o determine whether a defendant
is entitled to a new trial due to a breakdown in the
adversarial process caused by counsel’s inadequate rep-
resentation . . . . First, the defendant [or petitioner in
the habeas context] must show that counsel’s perfor-
mance was deficient. This requires [a] showing that
counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant
by the [s]ixth [a]mendment [to the United States consti-
tution]. Second, the defendant [or petitioner] must show
that the deficient performance prejudiced [his] defense.
This requires [a] showing that counsel’s errors were so
serious as to deprive the defendant [or petitioner] of a
fair trial, a trial whose result is reliable. Unless [the]
defendant [or petitioner] makes both showings, it can-
not be said that [his] conviction . . . resulted from a
breakdown in the adversary process that renders the
result [of conviction] unreliable.’’ (Internal quotation
marks omitted.) Skakel v. Commissioner of Correction,
329 Conn. 1, 30, 188 A.3d 1 (2018), cert. denied, U.S.
, 139 S. Ct. 788, 202 L. Ed. 2d 569 (2019).
‘‘With respect to the first component of the Strickland
test, the proper standard for attorney performance is
that of reasonably effective assistance. . . . Conse-
quently, to establish deficient performance by counsel,
a [petitioner] must show that, considering all of the
circumstances, counsel’s representation fell below an
objective standard of reasonableness as measured by
prevailing professional norms.’’ (Citation omitted; inter-
nal quotation marks omitted.) Id., 31. ‘‘The first prong
[of the Strickland test] requires a showing that counsel
made errors so serious that counsel was not functioning
as the counsel guaranteed the defendant by the [s]ixth
[a]mendment.’’ (Internal quotation marks omitted.)
Bryant v. Commissioner of Correction, 290 Conn. 502,
537 n.4, 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). ‘‘[T]he [petitioner] must overcome the pre-
sumption that, under the circumstances, the challenged
action [of counsel] might be considered sound trial
strategy.’’ (Internal quotation marks omitted.) Skakel v.
Commissioner of Correction, supra, 329 Conn. 31.
‘‘[A] fair assessment of attorney performance requires
that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.
Because of the difficulties inherent in making the evalu-
ation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reason-
able professional assistance.’’ (Internal quotation marks
omitted.) Meletrich v. Commissioner of Correction, 332
Conn. 615, 627, 212 A.3d 678 (2019). ‘‘[I]n some instances
even an isolated error can support an ineffective-assis-
tance claim if it is sufficiently egregious and prejudicial
. . . [but] it is difficult to establish ineffective assis-
tance when counsel’s overall performance indicates
active and capable advocacy.’’ (Internal quotation
marks omitted.) Doan v. Commissioner of Correction,
193 Conn. App. 263, 284 n.10, 219 A.3d 462, cert. denied,
333 Conn. 944, 219 A.3d 374 (2019).
In People v. Clamuextle, 255 Ill. App. 3d 504, 505, 508,
626 N.E.2d 741, appeal denied, 155 Ill. 2d 567, 633 N.E.2d
8 (1994), the defendant claimed on direct appeal from
his conviction of aggravated battery that he had been
‘‘deprived of the effective assistance of counsel when
his attorney failed to seek a continuance during trial
in order to secure the presence of an alibi witness.’’
The defendant had been charged with aggravated bat-
tery after a victim was stabbed in her apartment build-
ing. Id. The victim identified the defendant as the assail-
ant to her roommate and subsequently to the police.
Id., 505–506. When, however, a police officer inter-
viewed the victim’s roommates on the night of the
attack, none of the roommates could identify the assail-
ant. Id., 506. Further, no weapon or blood was found
in the vicinity of the area of the apartment in which
the attack took place, and the police searches of the
defendant’s apartment uncovered no evidence that he
was involved in the attack. Id. The police found blood-
stains on the defendant’s pants on the night of the
attack, but the victim’s blood was not detected on the
defendant’s pants. Id.
At trial, the defendant called his roommate to testify
on his behalf, and his roommate testified that, five
minutes after the attack allegedly had taken place, she
saw the defendant at the restaurant at which she
worked. Id., 507. The roommate, however, admitted
during cross-examination that her husband and the vic-
tim previously had a romantic affair and, accordingly,
she ‘‘did not get along with’’ the victim. Id. Following
the roommate’s testimony, the defendant’s trial counsel
informed the court that the final defense witness, the
roommate’s coworker, had failed to appear in court
pursuant to a subpoena with which she had been
served.3 Id. The coworker later averred in an affidavit
that, had she appeared at trial, she would have testified
that ‘‘she had seen the defendant at the restaurant . . .
approximately [ten minutes before the attack], at which
time [the pair] engaged in a brief conversation,’’ and
that ‘‘[a]pproximately [ten] to [fifteen] minutes later,
she observed the defendant in the . . . lobby of the
restaurant.’’ Id., 508. The state presented rebuttal evi-
dence, including the testimony of the victim, who con-
firmed the romantic relationship between herself and
the roommate’s husband. Id. Despite the fact that the
court ‘‘stated [that] it would allow . . . the defense
. . . to reopen its case when [the coworker] appeared’’
to testify; id., 507; counsel for the defendant ‘‘deter-
mined that the [coworker] still had not arrived [follow-
ing the victim’s rebuttal testimony] . . . [and] rested
without seeking a continuance to locate [the
coworker].’’ Id., 508.
On appeal, the defendant argued that his trial counsel
‘‘had been ineffective for failing to seek a continuance
when [the coworker failed to] appear [in court] pursu-
ant to a subpoena’’ that had been served on her. Id.,
508. The court, citing Strickland v. Washington, supra,466 U.S. 687, first considered whether ‘‘his counsel’s
representation [of him] fell below an objective standard
of reasonableness’’; People v. Clamuextle, supra, 255
Ill. App. 3d 509; and noted that the ‘‘theory of defense
at trial was that the defendant could not have stabbed
[the victim] in her apartment building at [the purported
time of the attack] . . . because at that time he was
either en route to or already present at . . . [the] res-
taurant.’’ Id. The court stated that, at trial, the ‘‘only
witness to testify . . . about the defendant’s presence
in the restaurant’’; id.; was the roommate, whose ‘‘credi-
bility was damaged . . . on cross-examination . . . .’’
Id. The court noted, ‘‘[t]his [wa]s not a case where the
evidence against the defendant was overwhelming.
. . . The case . . . hinged on whether a jury would
either believe [the victim’s] testimony that the defen-
dant was the assailant, or [the roommate’s] testimony
that at the time of the stabbing the defendant was at
the restaurant . . . .’’ Id., 510. Because the roommate’s
‘‘credibility had been damaged, [the coworker’s] testi-
mony that she, too, saw the defendant at the restaurant
was the key evidence in support of the alibi defense.’’
Id. Specifically, ‘‘[the coworker’s] testimony that she
spoke with the defendant at the restaurant [ten minutes
before the purported time of the attack] and saw him
[in the lobby of the restaurant fifteen] minutes later
would have corroborated [the roommate’s] testimony
[concerning the defendant’s presence at the restaurant]
and bolstered the defendant’s alibi defense.’’ Id., 509–10.
Further, the coworker ‘‘had no . . . obvious reasons
to testify in favor of the defendant,’’ unlike the room-
mate. Id., 511.
The court acknowledged that counsel for the defen-
dant had contended that he ‘‘did not seek a continuance
. . . to locate [the coworker] . . . because he did not
know why she had failed to appear.’’ Id., 510. The court
stated, however, that ‘‘counsel did not need this infor-
mation in order to request a continuance’’ under Illinois
law; id.; because ‘‘[a] motion for a continuance sought
to secure the presence of a witness should be granted
[if]: (1) the defendant was diligent in attempting to
secure the witness for trial; (2) the defendant shows
that the testimony was material and might affect the
jury’s verdict; and (3) the failure to grant the continu-
ance would prejudice the defendant.’’ Id. ‘‘All three
[requirements] were met in this case, [but] defense
counsel [nonetheless] mistakenly believed that he did
not have sufficient information to request a continu-
ance.’’ Id. Thus, the court determined that the failure
of counsel for the defense ‘‘to seek the continuance in
order to locate a material witness did not constitute
trial strategy but . . . instead [was] an objectively
unreasonable error.’’ Id. Because the coworker’s ‘‘testi-
mony in support of the defendant was . . . so
important to the defendant’s alibi defense,’’ the court
determined that ‘‘counsel’s error in not seeking a contin-
uance to locate her undermine[d] confidence in the
outcome of the proceeding.’’ Id., 511.
Other courts, like the court in Clamuextle, have deter-
mined that, under the relevant factual circumstances
of the cases before them, counsel rendered deficient
performance by failing to request a continuance. In
Dunn v. Jess, 981 F.3d 582, 594–95 (7th Cir. 2020), for
example, the United States Court of Appeals for the
Seventh Circuit concluded that a defendant’s trial coun-
sel’s performance was deficient when, inter alia, coun-
sel failed to request a continuance to review certain
expert reports he received shortly before trial, which
contained exculpatory information. See also Woolley v.
Rednour, 702 F.3d 411, 415, 423 (7th Cir. 2012) (coun-
sel’s performance was deficient when counsel failed to
request continuance to take remedial measures after
state untimely disclosed expert opinion on first day of
trial), cert. denied sub nom. Woolley v. Harrington, 571
U.S. 821, 134 S. Ct. 95, 187 L. Ed. 2d (2013); Turpin
v. Bennett, 272 Ga. 57, 57–58, 525 S.E.2d 354 (2000)
(counsel’s performance was deficient when counsel
failed to request continuance to locate new expert wit-
ness or take other remedial measures after defendant’s
initial expert suffered from dementia episode while tes-
tifying at trial); People v. Vera, 277 Ill. App. 3d 130,
138–39, 660 N.E.2d 9 (1995) (counsel’s performance was
deficient when counsel failed to request continuance
to hire interpreter to translate from Spanish to English
contents of audio recording, which allegedly included
exculpatory information), appeal denied, 167 Ill. 2d 567,
667 N.E.2d 1062 (1996).
Having considered the facts of the present case in
light of the foregoing, I disagree with the habeas court’s
determination that trial counsel’s performance was not
deficient. Because, as I have stated, trial counsel elected
not to pursue a claim of self-defense, the most, if not
only, viable theory of the case that trial counsel could
have pursued at trial was that the petitioner was not
the shooter. To successfully pursue this theory, it was
crucial for trial counsel to raise reasonable doubt as to
whether the petitioner was the actual shooter. The only
viable way trial counsel could cast such reasonable
doubt would be to present testimony from at least one
witness that the weapon that caused Drew’s death was
in the hands of a person other than the petitioner at
the time the shots were fired. The state’s case was
extremely strong, unless trial counsel presented before
the jury some evidence that supported this alternative
shooter theory.
Like in People v. Clamuextle, supra, 255 Ill. App. 3d
510, the petitioner’s success at trial depended on
whether the jury believed Crooks’ testimony that the
petitioner was the shooter, or Rountree’s testimony that
Pope was the shooter. Unlike in Clamuextle, however,
Rountree’s testimony would not simply have ‘‘bol-
stered’’ or ‘‘corroborated’’; see id.; the petitioner’s alter-
native shooter theory; Rountree’s testimony would have
been the only evidence that supported the petitioner’s
theory of the case. As the habeas court noted in its
memorandum of decision, ‘‘Rountree was the only per-
son who identified Pope as the shooter, so the [petition-
er’s alternative shooter theory] hinged on [the admis-
sion of] Rountree’s [recorded] statement [or]
testimony.’’ (Emphasis added.)
Given these high stakes, in my view, trial counsel
was obligated to take additional steps to ensure that
Rountree’s testimony identifying Pope as the shooter
was presented before the jury. It was not sufficient for
trial counsel to attempt to have admitted Rountree’s
recorded statement under the residual exception to the
hearsay rule. Section 8-9 of the Connecticut Code of
Evidence, which sets forth the residual exception to
the hearsay rule, ‘‘allows a trial court to admit hearsay
evidence not admissible under any of the established
[hearsay] exceptions’’; (internal quotation marks omit-
ted) State v. Bennett, 324 Conn. 744, 762, 155 A.3d 188(2017); but only ‘‘if the court determines that (1) there
is a reasonable necessity for the admission of the state-
ment, and (2) the statement is supported by equivalent
guarantees of trustworthiness and reliability that are
essential to other evidence admitted under traditional
exceptions to the hearsay rule.’’ Conn. Code Evid. § 8-
9. As this court and our Supreme Court have iterated,
‘‘[t]he residual hearsay [exception] [should be] applied
in the rarest of cases . . . .’’ (Emphasis added; internal
quotation marks omitted.) State v. Bennett, supra, 762;
see also State v. Heredia, 139 Conn. App. 319, 331, 55
A.3d 598 (2012), cert. denied, 307 Conn. 952, 58 A.3d 975(2013). ‘‘[T]he [residual] exception is not to be treated
as a broad license to admit hearsay inadmissible under
other exceptions, and is to be used very rarely and
only in exceptional circumstances.’’ (Emphasis added;
footnote omitted.) State v. Dollinger, 20 Conn. App.
530, 540, 568 A.2d 1058, cert. denied, 215 Conn. 805,
574 A.2d 220 (1990).
Given the circumstances, the probability was slim
that a court would have concluded that ‘‘there [was] a
reasonable necessity for the admission of the statement,
and . . . the statement [was] supported by equivalent
guarantees of trustworthiness and reliability that are
essential to other evidence admitted under traditional
exceptions to the hearsay rule’’; (emphasis added)
Conn. Code Evid. § 8-9; such that the statement should
be admitted under the residual exception. The bitter
reality was that it was highly unlikely that the court
would conclude that Rountree’s recorded statement
was admissible under that narrow exception. After the
court concluded that Rountree’s recorded statement
was inadmissible under the residual exception to the
hearsay rule, trial counsel then had little choice but to
ask the trial court for additional time to find Rountree
and to compel his appearance so that he could testify
before the jury. I can divine no reason, strategic or
otherwise, as to why his trial counsel should not have
taken such a simple step.
In concluding that the petitioner had failed to prove
that his trial counsel’s performance was deficient, the
habeas court relied on the facts that trial counsel hired
a private investigator to serve a subpoena on Rountree,
requested a capias warrant after Rountree failed to
appear at trial, and attempted to enter into evidence
Rountree’s recorded statement under the residual hear-
say exception. By relying on these facts, however, the
habeas court overlooked the reality that, once the trial
court concluded that Rountree’s recorded statement
was inadmissible, the need for Rountree’s live testi-
mony heightened drastically, because, at that point, the
petitioner’s alternative shooter theory entirely ‘‘hinged
on’’ the ability to secure Rountree’s live testimony. Not-
withstanding this critical need, trial counsel made no
effort to secure Rountree’s live testimony—including,
but not limited to, requesting that the trial be continued
a few more days to attempt to locate Rountree. Trial
counsel’s failure to request a continuance, in my view,
was objectively unreasonable, given how vital Roun-
tree’s in-court testimony was to the petitioner’s case
and in light of the heightened need for Rountree’s live
testimony after the court concluded that his recorded
statement was inadmissible.
The majority concludes in its opinion that the peti-
tioner has failed to ‘‘overcome the presumption’’ that
trial counsel’s decision not to request a continuance
was ‘‘ ‘sound trial strategy.’ ’’ See Holloway v. Commis-
sioner of Correction, 145 Conn. App. 353, 365, 77 A.3d
777 (2013). In its view, ‘‘undertaking additional efforts
to locate [Rountree] . . . might have resulted in jurors
becoming unavailable and/or the fading of jurors’ mem-
ories concerning the petitioner’s case.’’ As I have noted,
however, the court explained to the jury during its open-
ing remarks that the parties expected the evidentiary
portion of the trial to last approximately ‘‘five to six
days.’’ The court additionally stated to the jurors, ‘‘[o]f
course that’s only an estimate; the trial may go a little
longer or a little shorter than that.’’ The court concluded
that Rountree’s recorded statement was inadmissible
on the beginning of the fifth day of the trial—after
only four full days of evidence—and the defense rested
almost immediately after the court made its ruling. Once
the defense rested, the parties immediately proceeded
to closing arguments. Thus, the entire evidentiary por-
tion lasted only four days, as opposed to five or six
days as the jury initially had been advised.
Because the court informed the jury that the eviden-
tiary portion of the trial would last five to six days, it
is reasonably likely that at least twelve of the fifteen
jurors would have been available to continue to serve
if trial counsel requested, and the court granted, a con-
tinuance of a few additional days. Had trial counsel
requested such a continuance, the court could have
taken one of the following actions: granted the request
and continued the trial a few days; denied the request,
which the petitioner could have challenged on direct
appeal had he subsequently been convicted; or inquired
of the jurors whether a brief continuance would create
any barriers to the jurors’ continued service. Because,
however, trial counsel never requested a continuance,
the court never asked the jurors whether a continuance
would make it difficult for them to serve. The court
could not deny, or express any concern it had regarding
the ramifications of, a request that trial counsel never
made. Likewise, because trial counsel never requested
a continuance of the trial for a few days, there is no
way of knowing whether undertaking additional efforts
to locate Rountree, as the majority states, ‘‘may well
have been futile . . . .’’ Because, in my view, the peti-
tioner’s trial counsel performed deficiently by failing
to request a continuance to locate Rountree and to
secure his testimony, I conclude that the habeas court
improperly determined that the petitioner failed to meet
its burden of establishing that his trial counsel per-
formed deficiently.
I next turn to the prejudice prong of the Strickland
test—that is, whether trial counsel’s deficient perfor-
mance prejudiced the petitioner’s defense at trial. See
Skakel v. Commissioner of Correction, supra, 329 Conn.
30. In its memorandum of decision, the habeas court
provided the following conclusory statement as to the
prejudice prong of the Strickland test: ‘‘The petitioner
has also not shown how any deficient performance was
prejudicial. Rountree did not testify in the habeas trial
and, even assuming the showing of deficient perfor-
mance has been satisfied, this court lacks an evidentiary
basis to assess the prejudice prong of the Strickland
test.’’ I interpret this statement by the court to mean
that it had evaluated the prejudice prong on the basis
of the evidence before it—or lack thereof, with respect
to Rountree’s testimony—and determined that the peti-
tioner had not met his burden as to prejudice.
In determining that the petitioner had failed to prove
prejudice, the habeas court based its conclusion
entirely on the fact that Rountree did not testify before
the habeas court. The reason, however, that the court
could not consider Rountree’s testimony is because
Rountree failed to appear at the habeas trial and the
court denied the petitioner’s request for the issuance
of a capias warrant and a continuance to secure his
appearance at trial. In my view, the court abused its
discretion in denying the petitioner’s request for the
issuance of a capias warrant and corresponding request
for a continuance.
The following additional procedural history is rele-
vant. After the respondent, the Commissioner of Correc-
tion, filed a return to the petitioner’s amended petition
for a writ of habeas corpus, the petitioner, who was
representing himself, filed two applications for the issu-
ance of subpoenas, including one for Rountree. On Sep-
tember 14, 2020, a subpoena was issued and served on
Rountree. At the time he was served the subpoena,
Rountree was incarcerated.
As the majority explained, ‘‘[i]t was the petitioner’s
belief, based on the information available on the Depart-
ment of Correction’s website, that Rountree would be
released from custody after October 8, 2020,’’ the initial
date of the habeas trial. Accordingly, the petitioner rea-
sonably believed that, because Rountree would be
incarcerated at the time of the habeas trial, Rountree’s
presence and testimony at the habeas trial had been
secured. The petitioner learned in late September, 2020,
however, that Rountree’s release date had been
changed to October 2, 2020. To ensure that Rountree
would appear at the habeas trial to testify, the petitioner
filed, through his standby counsel, a motion dated Sep-
tember 24, 2020, to move the date of the habeas trial
from October 8, 2020, to October 1, 2020. The court
denied the motion without prejudice because the
requested date of October 1, 2020, was ‘‘unavailable
for trial.’’
The habeas trial subsequently occurred on October
7 and 8, 2020, and, on October 8, 2020, the petitioner
attempted to call Rountree to testify. By this date,
Rountree already had been released from incarceration.
Rountree failed to honor his subpoena and to appear
in court to testify. The petitioner thus requested that
the habeas court issue a capias warrant to secure Roun-
tree’s attendance at the habeas trial. In connection with
this request, the petitioner additionally requested that
the habeas trial be continued for the purpose of locating
Rountree and effectuating the capias. The petitioner
initially requested that the trial be continued until the
earlier of the following dates: the date on which in-
person hearings, which at that time had been suspended
pursuant to the coronavirus pandemic, resumed, or the
date on which Rountree was located. The petitioner,
however, later clarified that a continuance of one month
would be sufficient.
The court denied the petitioner’s request for the issu-
ance of a capias warrant and the corresponding request
for a continuance. The court stated that the petitioner
had the opportunity to secure Rountree’s testimony
prior to the habeas trial by way of deposition, interview,
or recorded statement. The court also stated that the
petitioner’s ‘‘last minute request’’ to move the trial date
‘‘could not be accommodated by the court.’’ The court
ultimately concluded that, because Rountree may have
been located in New Jersey at the time of the habeas
trial, Rountree had declined to provide his location to
the petitioner’s private investigator when asked, and
Rountree had indicated to the petitioner’s private inves-
tigator that he had changed his mind about testifying,
it ‘‘[saw] no reasonable basis to grant [the petitioner’s
request for a] capias [warrant]’’ and found ‘‘no reason-
able basis to . . . continue th[e] matter . . . .’’
As our Supreme Court has stated, ‘‘[i]f one is not
warranted in refusing to honor a subpoena and it is clear
to the court that his absence will cause a miscarriage
of justice, the court should issue a capias to compel
attendance. [It is] not, however . . . mandatory for the
court to issue a capias when a witness under subpoena
fails to appear; issuance of a capias is in the discretion
of the court. The court has the authority to decline to
issue a capias when the circumstances do not justify
or require it. . . . In determining whether there has
been an abuse of discretion, the ultimate issue is
whether the court could reasonably conclude as it did.’’
(Footnote omitted; internal quotation marks omitted.)
Greene v. Commissioner of Correction, 330 Conn. 1,
32–33, 190 A.3d 851 (2018), cert. denied sub nom. Greene
v. Semple, U.S. , 139 S. Ct. 1219, 203 L. Ed. 2d
238 (2019).
In my view, the court abused its discretion by denying
the petitioner’s requests for the issuance of a capias
warrant and a corresponding continuance to secure
Rountree’s appearance at the habeas trial for several
reasons. First, Rountree’s expected testimony identi-
fying Pope, rather than the petitioner, as the shooter
was critical to the issue of prejudice. The admission of
this testimony at the habeas trial was essential for the
petitioner to meet his burden as to the prejudice prong
of the Strickland test.4
Second, the petitioner had taken several steps to
ensure Rountree’s attendance at the habeas trial by
requesting that a subpoena be issued for and served on
Rountree. The petitioner believed that Rountree would
be incarcerated at the time of the habeas trial based
on the information available on the Department of Cor-
rection’s website and, accordingly, would testify at the
habeas trial. In accordance with this belief, there was
little need for the petitioner, who was incarcerated and
representing himself, to depose Rountree. Once he
learned that Rountree’s date of release from incarcera-
tion fell before the date of the habeas trial, he wisely
moved to change the date of the habeas trial. Despite
the petitioner’s efforts, Rountree slipped out of the peti-
tioner’s grasp after he was released from incarceration.
Given these circumstances, it was by no fault of the
petitioner that Rountree failed to appear to testify at
the habeas trial. Cf. Greene v. Commissioner, supra,
330 Conn. 32–33 (citing, as reason for concluding that
habeas court did not abuse its discretion when it denied
petitioner’s request for issuance of capias warrant to
secure witness’ appearance at habeas trial, fact that
‘‘the court reasonably could have concluded that the
petitioner was partially responsible for [the witness’]
failure to appear’’ at habeas trial).
Third, the court provided no justification for its deter-
mination that it was unreasonable to delay the habeas
trial for one month. Unlike the petitioner’s criminal
trial, the habeas trial was a bench trial; there were no
jurors who might have become unavailable if the habeas
court granted the petitioner’s requests for a capias war-
rant and a continuance of one month to locate Rountree.
The fact that the marshal service ‘‘potential[ly]’’ may
have faced difficulty locating Rountree echoes the very
reason that the petitioner sought to have the habeas
trial date moved in the first place—because the peti-
tioner was concerned that Rountree’s presence at trial
would be difficult to secure if he was released from
incarceration. The fact that the marshal service ‘‘poten-
tial[ly]’’ may have faced difficulty locating Rountree
likewise demonstrated why the petitioner’s request for
a capias warrant was reasonable—because Rountree
successfully had evaded the subpoena with which he
had been served.
In light of the foregoing, in my view, the habeas court
improperly determined that the performance of the peti-
tioner’s trial counsel was not deficient. Additionally, I
conclude that the habeas court abused its discretion
by denying the petitioner’s request for the issuance of
a capias warrant and the corresponding request for a
continuance to secure Rountree’s appearance at the
habeas trial. Because it abused its discretion and, thus,
did not hear Rountree’s testimony, the court did not
have the opportunity to assess properly the issue of
prejudice—a limitation of the court’s own doing. Thus,
to the extent that the court nonetheless concluded that
the petitioner failed to prove prejudice, I would reverse
that determination. Consequently, I would remand the
case to the habeas court with direction to grant the
petitioner’s request for the issuance of a capias warrant
to secure Rountree’s appearance, and to hold a new
trial on the issue of prejudice.
For these reasons, I respectfully concur and dissent.
1
After the court concluded that Rountree’s recorded statement was inad-
missible, the court asked the parties whether they would like to be heard
as to the court’s proposed jury instructions and, after the parties declined,
summoned the jury to return to the courtroom. After the jury returned to
the courtroom and counsel stipulated to the presence of the jurors, the
defense rested.
2
Specifically, the court stated in its opening remarks to the jury on the
first day of the trial: ‘‘As I’ve told you, the lawyers have informed me they
expect the evidentiary portion of this trial to take approximately five to six
days. Of course that’s only an estimate; the trial may go a little longer or
a little shorter than that. . . . [I]t’s inevitable that there will be some delays
during the trial, unanticipated things always happen.’’ (Emphasis added.)
3
In an affidavit that the defendant filed in connection with a posttrial
motion for judgment notwithstanding the verdict or, alternatively, a new
trial, the coworker averred that she had informed counsel for the defendant
that she was unavailable to appear to testify in court on the date listed on
the subpoena and that she ‘‘mistakenly [had] thought that she was not
supposed to be in court until 1:30 p.m. on’’ the date on which she was
available to appear. People v. Clamuextle, supra, 255 Ill. App. 3d 508. She
further averred that ‘‘she learned that she was supposed to have appeared
in the morning [on the date on which she was available to appear] only
after the case had gone to the jury for deliberation.’’ Id.4
Additionally, Rountree’s testimony—the content of which we have no
way of knowing with certainty—may very well have been relevant to the
issue of trial counsel’s deficient performance. For example, if Rountree
testified that, at the time of the criminal trial, he easily could have been
located, that fact would make stronger the petitioner’s argument that trial
counsel should have requested a continuance of the trial date for a few
days to locate Rountree.