Skakel v. Commissioner of Correction

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MICHAEL SKAKEL v. COMMISSIONER
OF CORRECTION
(SC 19251)
Palmer, Zarella, Eveleigh, McDonald, Espinosa,
Robinson and Vertefeuille, Js.*
Argued February 24—officially released December 30, 2016*
Susann E. Gill, supervisory assistant state’s attorney,
with whom were James A. Killen, senior assistant
state’s attorney, and, on the brief, Kevin T. Kane, chief
state’s attorney, John C. Smriga, state’s attorney, Leo-
nard C. Boyle, deputy chief state’s attorney for opera-
tions, and Jonathan C. Benedict, former state’s attor-
ney, for the appellant-cross appellee (respondent).
Hubert J. Santos, with whom was Jessica M. Walker,
for the appellee-cross appellant (petitioner).
Opinion
ZARELLA, J. In 2002, a jury found the petitioner,
Michael Skakel, guilty of the 1975 murder of his neigh-
bor, Martha Moxley (victim). After previous unsuccess-
ful attempts to overturn his conviction, including two
appeals to this court, the petitioner filed the habeas
petition that is the subject of this appeal. In that petition,
he principally claimed that his criminal trial counsel
provided such inadequate representation that he was
denied his constitutional right to have the effective
assistance of counsel for his defense. The habeas court
agreed with the petitioner on some of his claims and
rendered judgment granting the petition. The respon-
dent, the Commissioner of Correction, has appealed
from the habeas court’s judgment. Because we con-
clude that the petitioner’s trial counsel rendered consti-
tutionally adequate representation, we reverse the
judgment of the habeas court and remand the case to
that court with direction to render judgment denying
the petition.1
I
FACTUAL BACKGROUND AND HABEAS
COURT PROCEEDINGS
The facts relating to the petitioner’s criminal convic-
tion, as the jury reasonably could have found them, are
set forth in detail in this court’s decision on his direct
appeal. See State v. Skakel, 276 Conn. 633, 640–53, 888
A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166
L. Ed. 2d 428 (2006). Our discussion here highlights the
facts most relevant to the present proceedings and is
based on our recitation of the facts in the petitioner’s
direct appeal, as supplemented by the record from the
petitioner’s criminal trial and the habeas proceedings.
A
State’s Case Against the Petitioner
On October 31, 1975, the body of the fifteen year old
victim was found lying face down under a large pine
tree on her family’s Greenwich estate. Id., 642. She had
numerous injuries to her head and neck, and her pants
were unbuttoned and pulled down, along with her
underwear, below her knees, although the medical
examiner found no evidence of semen present in her
pubic region. Id., 642–43. She had been attacked else-
where on the Moxley property, near the driveway, and
then dragged to the pine tree where she was later found.
See id., 642. Police found broken pieces of a golf club
nearby on the Moxley property. Id. An autopsy revealed
that she had been attacked with the golf club, and
authorities believe that it broke apart during the assault
and that part of the club’s shaft was used to stab the
victim. Id., 644.
The victim had last been seen alive at about 9:30 p.m.
the night before, October 30, 1975; see id., 641; which
was the night before Halloween, commonly known as
‘‘mischief night . . . .’’ (Internal quotation marks omit-
ted.) Id., 640. The victim’s mother had reported her
missing in the early morning hours of October 31, after
the victim failed to return home the previous night.2
Id., 641–42. The medical examiner could not establish
a precise time of death, but he believed that the victim
more likely was murdered closer to when she was last
seen alive at around 9:30 p.m. on October 30, than when
her body was found at about noon the next day. Id.,
643. He testified, however, that the findings from the
autopsy were consistent with a broad time span, includ-
ing from 9:30 p.m. on October 30, to 1 a.m. on Octo-
ber 31.
The petitioner, who was also fifteen at the time of
the murder, lived with his father and six siblings in a
home across the street from the victim.3 See id., 640
and n.4. The petitioner and some of his siblings, includ-
ing his older brother, Thomas Skakel, had been seen
with the victim at various times on the night of October
30, 1975. Id., 640–41. That night, the petitioner had gone
out to dinner with his siblings and the family’s recently
hired live-in tutor, Kenneth Littleton. Id. 640. They
returned to the Skakel home at about 9 p.m. Id. The
petitioner, the victim, other Skakel siblings and neigh-
borhood friends spent some time in the Skakel driveway
until about 9:30 p.m., when the petitioner’s older brother
used a family car to drive a cousin, James Terrien,4 to
his home, where they planned to watch a television
show. Id., 641. The petitioner told the police a few
weeks after the murder that he also had gone along to
the Terrien house to watch the show. Id., 645. He further
claimed that, upon returning to his home at about 10:30
or 11 p.m., he went inside his home and did not leave
for the rest of the night. Id.Despite their efforts in the years after the murder,
including extensive investigations into whether Thomas
Skakel or Littleton was involved, the police were unable
to connect anyone to the murder and did not make any
arrests. See id., 639.
Nearly twenty-five years after the murder, however,
the state charged the petitioner after a grand jury inves-
tigation. Id. The state’s case against the petitioner con-
sisted primarily of circumstantial evidence and nume-
rous, incriminating statements made by the petitioner
himself. See generally id., 639–52.
The state presented testimony from witnesses who
testified that the petitioner had made statements in the
years after the murder implicating himself in the crime.
A few years after the murder, the petitioner’s family sent
him to the Elan School in Maine (Elan), a residential
treatment facility for troubled adolescents. See id., 646.
One of his fellow residents at Elan, Dorothy Rogers,
testified that the petitioner told her that his family had
sent him to the school because they were afraid he had
committed the murder and wanted him away from the
investigation in Greenwich. Id., 647–48. Another resi-
dent, Gregory Coleman, relayed that the petitioner once
confided in him while they were at the school that he
had killed a girl with a golf club in a wooded area, that
the golf club broke apart during the attack, and that he
had returned to the scene later and masturbated over
the girl’s body. Id., 648. Two other residents, Elizabeth
Arnold and Alice Dunn, testified that, in another
instance, the petitioner had been questioned during a
group therapy session about his involvement in the
murder, and he told the group that he or one of his
brothers might have committed the crime. See id., 648–
49. Arnold recalled that the petitioner also had told the
group that, on the night of the murder, ‘‘[h]e was very
drunk and had some sort of a black-out,’’ that he had
discovered that ‘‘his brother had fool[ed] around with
his girlfriend,’’ and that he was not in ‘‘his normal state’’
that night. (Internal quotation marks omitted.) Id., 649.
With respect to motive, the state argued at trial that
the petitioner had become enraged after seeing the vic-
tim flirting with his older brother, Thomas Skakel, on
the night she was last seen alive. See id., 651–52. Friends
who knew the petitioner and the victim around the time
of the murder confirmed that the petitioner had feelings
for the victim and had grown resentful of Thomas Ska-
kel, who had developed a flirtatious relationship with
the victim. Id., 651. Friends of the victim also testified
that, on the night the victim was last seen alive, they
saw the victim engaging in flirtatious horseplay with
Thomas Skakel near the Skakels’ driveway, shortly after
others had left for the Terrien home, and they did not
see her again after that. Id., 641, 651–52. Although the
petitioner had told the police that he went along to the
Terrien home, the state presented testimony from a
neighborhood friend who testified that the petitioner
had stayed at the Skakel property. Id., 645 and n.9.
The state also presented evidence that the petitioner
had lied to the police about his activities on the night
of the murder. Several years after leaving Elan, he sepa-
rately told two people that, on the night the victim was
last seen alive, after returning home from watching
television at the Terrien home, he had left his house,
climbed a tree on the victim’s property, and mastur-
bated while watching the victim through her bedroom
window, contradicting his statements to the police that
he had remained inside all night and suggesting that he
had seen the victim after returning from the Terrien
home sometime after 11 p.m.5 Id., 645, 649–50. The
petitioner reiterated many of these details in a recorded
statement that he gave to an author helping the peti-
tioner as a ghost writer for an autobiography. See id.,650–51. In that recording, the petitioner described his
actions on the night of the murder in detail, in contradic-
tion to his earlier statements to others that he could
not remember what had happened that night. See id.He stated that, after returning from watching television
at the Terrien home, he could not sleep and was sexually
aroused, so he ‘‘snuck out’’ of his house and, after trying
to spy on a woman who lived in the neighborhood,
eventually went looking to ‘‘go get a kiss from [the
victim].’’ (Internal quotation marks omitted.) Id., 650.
He climbed a tree on the the victim’s property and
masturbated for about thirty seconds while trying to
look into her bedroom window. Id. He climbed down
the tree and walked toward his home. Id. While crossing
the victim’s yard near her driveway, he claimed that
he threw rocks toward the victim’s driveway area and
yelled, ‘‘[w]ho’s in there?’’ Id., 651. He also shouted,
‘‘come on motherfucker, I’ll kick your ass.’’ He also
stated that, the following morning, when the victim’s
mother came to his home looking for her, he had ‘‘a
feeling of panic’’ because he was afraid he had been
seen in the tree the night before. (Internal quotation
marks omitted.) Id.B
The Petitioner’s Defense
The petitioner retained Attorney Michael Sherman to
represent him in his criminal proceedings. At the time
of the trial, Sherman had practiced in the area of crimi-
nal law for more than thirty years, both as a defense
attorney and as a prosecutor. To prepare his defense,
Sherman enlisted the help of at least three associate
attorneys and received advice from other experienced
criminal defense attorneys.6 He also retained three pri-
vate investigation firms and consulted with expert wit-
nesses to assist in gathering evidence in support of the
petitioner’s defense.
Sherman’s strategy for defending the petitioner at
trial was threefold: (1) establish an alibi for the time
when the murder most likely occurred; (2) discredit
witnesses claiming that the petitioner had made state-
ments implicating himself in the murder; and (3) present
evidence showing that another person, the live-in tutor,
Littleton, might have committed the murder. See id.,652–53.
With respect to the alibi defense, Sherman presented
evidence to show that the murder most likely occurred
at about 10 p.m. on October 30, 1975, when, the peti-
tioner claims, he was at the Terrien house watching a
television show. As we explained in our decision on the
petitioner’s direct appeal, there was evidence presented
that ‘‘residents in the neighborhood heard [dogs barking
and voices] between 9:30 and 10 p.m. on October 30,
1975, near the Moxley property. [The victim’s mother]
testified that, around that time, she heard a commotion
coming from the general direction of the area where
the victim’s body subsequently was discovered. She
recalled hearing dogs barking and what sounded like
excited young voices. [A neighbor] testified that her
dog began to bark incessantly shortly after 9:30 p.m.
[One of the petitioner’s brothers] also recalled hearing
dogs barking at approximately 10 p.m. that night.’’ Id.,643 n.7. In addition, Sherman ‘‘adduced testimony from
. . . a forensic pathologist . . . who concluded that
the time of the victim’s death most likely was around
10 p.m. on October 30, 1975. [His] testimony was bol-
stered by the testimony of several people . . . [who
stated] that they had heard dogs barking in the vicinity
of the crime scene at approximately that time.’’ Id.,652 n.14.
To establish the petitioner’s whereabouts from
approximately 9:30 to 10 p.m. on October 30, 1975,
Sherman called a number of witnesses who testified
that, during that time frame, the petitioner was with
them at the Terrien home, which was nearly a twenty
minute drive from the victim’s home. See id., 652 and
n.14. These witnesses included the petitioner’s cousin,
Terrien, and one of the petitioner’s older brothers, Rush-
ton Skakel, Jr., who had gone to the Terrien home. They
testified at the criminal trial that the petitioner had
left the Skakel home with them at about 9:30 p.m. on
October 30, and had ridden with them in a vehicle to
the Terrien home where they watched a television
show. They further testified that the petitioner and oth-
ers did not return to the Skakel home until approxi-
mately 11 p.m. that night.7
Sherman also sought to discredit the testimony from
Elan residents who claimed that they had heard the
petitioner incriminate himself. Sherman cross-exam-
ined the state’s witnesses to impeach their credibility
and cast doubt on their testimony, and also presented
testimony from several other Elan residents who knew
the petitioner while he was an Elan resident. These
other residents testified to the brutal and abusive treat-
ment of residents, including the petitioner. The wit-
nesses explained that school staff frequently accused
the petitioner of the murder and urged him to admit
his involvement. When he refused to take responsibility,
he was paddled, assaulted in a boxing ring, and forced
to wear a sign that had written on it something to the
effect of ‘‘please confront me on the murder of my
friend, Martha Moxley . . . .’’ These witnesses also
stated that the petitioner denied involvement in the
victim’s murder, and, when the abuse continued, he
parried their accusations by stating that he either did
not know or could not recall what happened; they never
heard the petitioner confess to the crime.
Finally, Sherman sought to bolster the petitioner’s
defense by implicating another person in the crime.
Sherman explained at the habeas trial that he did not
want to use a ‘‘buffet table of alleged suspects,’’ so he
chose to focus on one person, Littleton. As we explained
in our decision in the petitioner’s direct appeal, ‘‘Little-
ton . . . had been hired as a part-time tutor by the
Skakel family, had taken up residence at the Skakel
home on October 30, 1975, the day that the victim was
last seen alive, and had slept there with the Skakel
children that night. Littleton testified [at the petitioner’s
criminal trial] that, after returning home from dinner
at 9 p.m., he remained at the house all night, stepping
outside briefly at approximately 9:30 p.m. only to inves-
tigate a disturbance. In addition, testimony adduced by
[Sherman] revealed that Littleton, who began to mani-
fest serious psychiatric and behavioral problems in the
years following the murder, may have made a statement,
several years after the killing, in which he implicated
himself in the crime. Littleton emphatically denied that
he had anything to do with the victim’s death, however.’’
(Footnote omitted.) State v. Skakel, supra, 276 Conn.
652–53.
At the conclusion of the petitioner’s criminal trial,
the jury found the petitioner guilty of murder. Id., 653.
The trial court rendered judgment in accordance with
the jury’s verdict and sentenced the petitioner to a
period of incarceration of twenty years to life. Id. The
petitioner appealed from the judgment of conviction to
this court, raising six separate grounds for reversing
his conviction; id., 639–40; and this court affirmed the
judgment. Id., 770. The petitioner later filed a petition
for a new trial on the basis of newly discovered evidence
and other claims, but the trial court denied the petition,
and this court upheld the trial court’s denial of the new
trial petition. See Skakel v. State, 295 Conn. 447, 452,
991 A.2d 414 (2010).
C
Habeas Petition
Nearly eight years after his conviction, and after his
prior unsuccessful challenges to his conviction, the peti-
tioner filed the habeas petition at issue in the present
case. He claimed, among other things, that Sherman
rendered constitutionally ineffective assistance in
numerous respects, depriving him of his right to the
effective assistance of counsel. He also claimed that
Sherman had a conflict of interest in representing him.
After a hearing, the habeas court granted the petition.
The court agreed with some of the petitioner’s ineffec-
tive assistance claims, concluding that Sherman was
ineffective on three grounds: (1) by failing to fully inves-
tigate and implicate the petitioner’s brother, Thomas
Skakel, in the murder; (2) by failing to investigate and
present an additional alibi witness, Denis Ossorio, who
the petitioner claims saw him at the Terrien house on
the night of October 30, 1975; and (3) by failing to call
three additional witnesses to impeach the credibility of
Gary Coleman, who claimed that the petitioner impli-
cated himself in the murder while he was a resident at
Elan. The habeas court also concluded that Sherman
had acted deficiently in certain other respects but that
none of those deficiencies, when considered separately,
prejudiced the petitioner. Finally, the habeas court
rejected the petitioner’s conflict of interest claim.
This appeal followed. Collectively, the parties have
raised eleven separate issues for our resolution, each
concerning whether Sherman provided effective assis-
tance. On appeal, the respondent raises three issues,
arguing that the habeas court incorrectly concluded
that Sherman was ineffective by (1) failing to implicate
Thomas Skakel, (2) failing to call an additional alibi
witness, and (3) failing to call witnesses to impeach
Coleman’s testimony. For his part, the petitioner has
raised seven alternative grounds for affirming the
habeas court’s judgment, each attacking a different
aspect of Sherman’s representation. Finally, the peti-
tioner filed a cross appeal, claiming that the habeas
court improperly rejected his conflict of interest claim,
which we treat as an additional alternative ground for
affirming the habeas court’s judgment.
We first address the respondent’s three claims.
Because we conclude that the habeas court’s conclu-
sions as to each of those claims must be rejected, we
also address each of the petitioner’s alternative grounds
for affirmance and his separate conflict of interest
claim. Additional historical and procedural facts rele-
vant to our resolution of each claim will be set forth
as necessary.
II
THE RESPONDENT’S CLAIMS ON APPEAL
A
Standard of Review for Claims of Ineffective
Assistance of Counsel
The sixth and fourteenth amendments to the United
States constitution guarantee criminal defendants the
right to have counsel for their defense in state prosecu-
tions. This guarantee is essential to ensuring a fair trial.
See, e.g., Powell v. Alabama, 287 U.S. 45, 70, 53 S. Ct.
55, 77 L. Ed. 158 (1932). As the United States Supreme
Court has explained, ‘‘[t]he right to counsel plays a
crucial role in the adversarial system embodied in the
[s]ixth [a]mendment, [because] access to counsel’s skill
and knowledge is necessary to accord defendants the
ample opportunity to meet the case of the prosecution
to which they are entitled.’’ (Internal quotation marks
omitted.) Strickland v. Washington, 466 U.S. 668, 685,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Implicit in this
guarantee is the right to have effective assistance of
counsel.8 Id., 686.
In Strickland, the United States Supreme Court set
forth a two part standard for deciding whether a defen-
dant can prevail on a claim that defense counsel ren-
dered constitutionally ineffective representation: ‘‘The
benchmark for judging any claim of ineffectiveness
must be whether counsel’s conduct so undermined the
proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just
result.’’ Id. ‘‘A convicted defendant’s claim that coun-
sel’s assistance was so defective as to require reversal
of a conviction . . . has two components. First, the
defendant must show that counsel’s performance 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. Second, the defendant must show that
the deficient performance prejudiced the defense. This
requires [a] showing that counsel’s errors were so seri-
ous as to deprive the defendant of a fair trial, a trial
whose result is reliable. Unless a defendant makes both
showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversary process
that renders the result unreliable.’’ Id., 687. Although
the standard is composed of two components, a court
need not address both if the defendant makes an insuffi-
cient showing as to either one. Id., 697. Moreover,
‘‘Strickland does not guarantee perfect representation,
only a reasonably competent attorney. . . . Represen-
tation is constitutionally ineffective only if it so under-
mined the proper functioning of the adversarial process
that the defendant was denied a fair trial.’’ (Citations
omitted; internal quotation marks omitted.) Harrington
v. Richter, 562 U.S. 86, 110, 131 S. Ct. 770, 178 L. Ed.
2d 624 (2011), quoting Strickland v. Washington, supra,466 U.S. 686.
1
Performance Component
As to Strickland’s first component, ‘‘the defendant
must show that counsel’s representation fell below an
objective standard of reasonableness.’’ Strickland v.
Washington, supra, 466 U.S. 688. ‘‘[T]he performance
inquiry must be whether counsel’s assistance was rea-
sonable considering all the circumstances.’’ Id. ‘‘Judicial
scrutiny of counsel’s performance must be highly defer-
ential. It is all too tempting for a defendant to second-
guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel
was unreasonable. . . . A fair assessment of attorney
performance requires that every effort be made to elimi-
nate 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.’’ (Citation omitted.) Id., 689.
Strickland directs courts assessing counsel’s perfor-
mance to be deferential to counsel’s strategic decisions
and to apply a strong presumption that such decisions
are reasonable. ‘‘Because of the difficulties inherent in
making [this] evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might
be considered sound trial strategy. . . . There are
countless ways to provide effective assistance in any
given case. Even the best criminal defense attorneys
would not defend a particular client in the same way.’’
(Citation omitted; internal quotation marks omitted.)
Id. ‘‘Thus, a court deciding an actual ineffectiveness
claim must judge the reasonableness of counsel’s chal-
lenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct. . . . At the
same time, the court should recognize that counsel is
strongly presumed to have rendered adequate assis-
tance and [to have] made all significant decisions in the
exercise of reasonable professional judgment.’’ Id., 690.
This deference applies equally to claims alleging that
counsel unreasonably chose not to pursue possible
defenses or to present certain evidence. ‘‘[S]trategic
choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchal-
lengeable; and strategic choices made after less than
complete investigation are reasonable precisely to the
extent that reasonable professional judgments support
the limitations on investigation. In other words, counsel
has a duty to make reasonable investigations or to make
a reasonable decision that makes particular investiga-
tions unnecessary. In any ineffectiveness case, a partic-
ular decision not to investigate must be directly
assessed for reasonableness in all the circumstances,
[with application of] a heavy measure of deference to
counsel’s judgments.’’ Id., 690–91.
2
Prejudice Component
With respect to the second component, even if coun-
sel performs deficiently, a defendant is entitled to relief
from his conviction only if he can prove that his coun-
sel’s unreasonable errors or omissions prejudiced his
defense. ‘‘An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judg-
ment of a criminal proceeding if the error had no effect
on the judgment. . . . The purpose of the [s]ixth
[a]mendment guarantee of counsel is to ensure that a
defendant has the assistance necessary to justify reli-
ance on the outcome of the proceeding. Accordingly,
any deficiencies in counsel’s performance must be prej-
udicial to the defense in order to constitute ineffective
assistance under the [c]onstitution.’’ (Citation omitted.)
Id., 691–92.
In assessing a claim of prejudice, courts must con-
sider the impact of counsel’s errors in light of all the
evidence presented at the original trial. ‘‘[A] court hear-
ing an ineffectiveness claim must consider the totality
of the evidence before the judge or jury. . . . Some
errors will have had a pervasive effect on the inferences
to be drawn from the evidence, altering the entire 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. Taking the unaffected findings as a
given, and taking due account of the effect of the errors
on the remaining findings, a court making the prejudice
inquiry must ask if the defendant has met the burden
of showing that the decision reached would reasonably
likely have been different absent the errors.’’ Id., 695–96.
The defendant has the burden to ‘‘affirmatively prove
prejudice.’’ Id., 693. ‘‘It is not enough for the defendant
to show that the errors had some conceivable effect
on the outcome of the proceeding. Virtually every act
or omission of counsel would meet that test . . . and
not every error that conceivably could have influenced
the outcome undermines the reliability of the result of
the proceeding.’’ (Citation omitted.) Id. ‘‘On the other
hand . . . a defendant need not show that counsel’s
deficient conduct more likely than not altered the out-
come in the case.’’ Id. ‘‘The defendant must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the
outcome.’’ Id., 694. Put another way, ‘‘the question is
whether there is a reasonable probability that, absent
the errors, the [fact finder] would have had a reasonable
doubt respecting guilt.’’ Id., 695. ‘‘This does not require
a showing that counsel’s actions ‘more likely than not
altered the outcome,’ but the difference between Strick-
land’s prejudice standard and a more-probable-than-
not standard is slight and matters ‘only in the rarest
case.’ . . . The likelihood of a different result must be
substantial, not just conceivable.’’ (Citation omitted.)
Harrington v. Richter, supra, 562 U.S. 111–12, quoting
Strickland v. Washington, supra, 466 U.S. 693, 697.
3
Standard of Review in Habeas Appeals
In reviewing the habeas court’s decision as to an
ineffective assistance claim, we defer to the habeas
court’s findings of historical fact concerning the repre-
sentation but exercise plenary review over its conclu-
sions about whether, based on those findings, counsel’s
performance was deficient and prejudicial. See, e.g.,
Gonzalez v. Commissioner of Correction, 308 Conn.
463, 469–70, 68 A.3d 624 (2013) (‘‘[a]lthough the underly-
ing historical facts found by the habeas court may not be
disturbed unless they were clearly erroneous, whether
those facts constituted a violation of the petitioner’s
rights under the sixth amendment is a mixed determina-
tion of law and fact that requires . . . plenary review
by this court unfettered by the clearly erroneous stan-
dard’’ [internal quotation marks omitted]).
B
Failure To Implicate Thomas Skakel in the Murder
The respondent first claims that the habeas court
incorrectly concluded that Sherman’s performance was
ineffective insofar as Sherman chose to pursue a third-
party culpability defense focused on Littleton rather
than on Thomas Skakel. We agree with the respondent
and conclude that Sherman’s decision not to pursue a
defense implicating Thomas Skakel was a reasonable
strategic decision made after adequate investigation.
The petitioner did not establish that Sherman had
access to admissible evidence to support a defense
implicating Thomas Skakel. Moreover, even if Sherman
had such evidence, he reasonably chose not to pursue
this defense because doing so might have harmed the
petitioner’s defense by supporting aspects of the
state’s case.
1
Additional Background
We begin by reviewing the information then available
to Sherman concerning his decision to raise a defense
implicating Littleton and not Thomas Skakel. Sherman
chose to focus the third-party defense on only one sus-
pect. He explained during the habeas trial that he does
not advocate putting out a ‘‘buffet table of alleged sus-
pects,’’ but, rather, prefers focusing a third-party culpa-
bility defense on only one suspect. Although he con-
sidered implicating Thomas Skakel, he ultimately chose
Littleton because he did not think there was enough
evidence to connect Thomas Skakel to the murder and
believed that there was a greater chance of creating
reasonable doubt by implicating Littleton.
Sherman detailed the evidence he intended to present
about Littleton’s possible involvement in a pretrial
motion seeking the court’s permission to raise a defense
implicating Littleton. In the motion, Sherman explained
that he intended to present testimony showing that
physical evidence connected Littleton to the crime
scene and that Littleton may have confessed to the
crime. According to Henry Lee, a forensic scientist and
former state criminalist, two hairs found at the crime
scene were microscopically similar to head hairs from
Littleton. Sherman also intended to present evidence
that Littleton may have admitted his involvement in the
crime to his former wife, Mary Baker. With Baker’s
cooperation, investigators had recorded conversations
between Littleton and Baker. In those conversations,
Baker and Littleton discussed prior occasions when
Littleton may have told Baker that he had murdered
the victim and that, during the attack, the victim
‘‘wouldn’t die’’ after being hit with the golf club, so he
‘‘had to stab her through the neck.’’
In the pretrial motion, Sherman explained that he
also planned to show that Littleton had lied to the police
in his initial statement about his activities on the night
the victim was last seen alive, October 30, 1975, and
later had changed his account about his activities that
night on several occasions. Littleton initially told police
that he had returned to the Skakel house at about 9
p.m. after having dinner with the Skakel children at the
Belle Haven Club and that he had not left the house
again that night. He also reported that did not see or
hear anything suspicious. About two months later, how-
ever, he changed his account and acknowledged that
he had not stayed inside all night but had left the house
at about 9:15 or 9:30 p.m., and walked around the Skakel
property. The pretrial motion noted that this was about
the time police believed the victim was leaving the
Skakel property and returning to her home across
the street.
Finally, Sherman planned to present evidence show-
ing that Littleton’s behavior changed ‘‘ ‘markedly’ ’’ after
the murder. According to Sherman, investigators exten-
sively documented records and other evidence cata-
loguing how Littleton was convicted of committing
numerous crimes and had engaged in other ‘‘uncharged
misconduct’’ in the months and years after the murder.
Sherman also intended to present evidence of a tele-
phone conversation years after the murder between
Littleton and the victim’s father, during which Littleton
referred to the murder as their ‘‘mutual tragedy . . . .’’
(Internal quotation marks omitted.)
The trial court allowed Sherman to present a defense
implicating Littleton, and Sherman presented evidence
at trial concerning Littleton’s potential involvement in
the murder. See, e.g., State v. West, 274 Conn. 605,
626, 877 A.2d 787 (trial court has discretion to decide
whether to admit third-party culpability evidence at
trial), cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L.
Ed. 2d 601 (2005). Because the jury ultimately found
the petitioner guilty of the victim’s murder, it necessar-
ily must have rejected this defense.9
In his claim for habeas relief, the petitioner argued
that Sherman was ineffective for not implicating
Thomas Skakel in the murder, either instead of, or in
addition to, implicating Littleton. Both Thomas Skakel
and Littleton had previously been suspects in the mur-
der and were extensively investigated by the police. The
petitioner claimed that the evidence against Thomas
Skakel was strong enough that, if Sherman had pre-
sented a defense implicating Thomas Skakel, a jury
likely would have found the petitioner not guilty.
The habeas court agreed with the petitioner and con-
cluded that Sherman’s strategic decision not to pursue
a defense implicating Thomas Skakel in the murder
had deprived the petitioner of effective assistance of
counsel. The habeas court acknowledged that Sher-
man’s choice to present a third-party culpability defense
directed at only one suspect might be a reasonable
strategy but nevertheless determined that Sherman’s
decision to pursue Littleton instead of Thomas Skakel
was unreasonable. According to the habeas court, Sher-
man had strong evidence in his possession that could
have supported an assertion that Thomas Skakel had
murdered the victim, and Sherman’s failure to do so
was both deficient and prejudicial.
The habeas court found that Sherman had evidence
available indicating that Thomas Skakel had lied to the
police about his activities on the night the victim was
last seen alive. The police first interviewed Thomas
Skakel in the days after the murder. He told them that,
after returning from dinner at the Belle Haven Club on
the night of October 30, 1975, he sat in a vehicle owned
by the Skakels and parked in the Skakels’ driveway with
the petitioner and some friends, including the victim. At
about 9:15 p.m., Thomas Skakel’s older brother, Rush-
ton Skakel, Jr., said he needed the car to take Terrien
back to Terrien’s house, and that Thomas Skakel and
others, including the victim, exited the vehicle. Thomas
Skakel told the police that, after the vehicle left, he
spoke to the victim for a few moments and then went
up to his room to complete a homework assignment
until about 10:15 p.m., when he joined Littleton to watch
part of a television show. The habeas court noted, how-
ever, that Sherman had evidence available to him dem-
onstrating that Thomas Skakel was not assigned any
homework of the kind that he had described. In addi-
tion, several years after the murder, in the 1990s,
Thomas Skakel allegedly told a different story to an
investigative firm known as Sutton Associates, which
had been retained by the Skakel family’s attorneys to
further investigate the murder. According to a report
supposedly authored by Sutton Associates (Sutton
Report), Thomas Skakel stated that, after getting out
of the vehicle that night, he and the victim spent some
time talking and then both went to an area elsewhere
on the Skakel property where they had a consensual
sexual encounter. Thomas Skakel allegedly told Sutton
Associates that he had fondled the victim’s breasts and
vagina, and that he did not remove her bra but had
unbuttoned her pants and lowered them slightly. He
further explained that they fondled each other’s genitals
until each reached orgasm and that, afterward, the vic-
tim buttoned her pants and walked across the Skakel
property toward her house. Thomas Skakel apparently
reported that the encounter began at around 9:30 p.m.
and ended at about 9:50 p.m. He claimed that, after the
victim left, he went back inside his home and joined
Littleton to watch television. The habeas court found
the timing of the supposed encounter significant
because the petitioner had argued at his criminal trial
that the murder likely occurred sometime between 9:30
and 10 p.m., on the basis of evidence that some type
of commotion had occurred during that time.
The habeas court also observed that Sherman could
have argued that Thomas Skakel’s story of his sexual
encounter with the victim was consistent with some of
the evidence found at the crime scene. According to
testimony presented at the petitioner’s criminal trial,
the victim was found with her pants unbuttoned and
with her pants and underwear pulled down below her
knees. Testimony at the criminal trial indicated that
they might have been pulled down before the assault
began because blood spatter was found on the inside
of the pants. The victim also had no defensive wounds
or foreign DNA under her fingernails. According to the
habeas court, Sherman could have used these facts to
argue that the unbuttoning of her pants was consensual,
giving credibility to Thomas Skakel’s supposed claim
of a consensual sexual encounter with the victim.
On the basis of this evidence, the habeas court
explained that Sherman could have argued that ‘‘what
may have started as a consensual encounter between
the victim and [Thomas] Skakel may have turned terri-
bly bad.’’ Although there was no direct evidence to
establish that Thomas Skakel had attacked the victim
during their meeting, the habeas court nevertheless
noted that Sherman might have been able to rely on
circumstantial evidence to imply that Thomas Skakel
could have become violent. The habeas court cited to
evidence that Thomas Skakel had romantic feelings for
the victim and that she may have rebuffed his overtures.
The court also noted that Sherman had a copy of an
early suspect profile report from a Houston, Texas med-
ical examiner, prepared at the request of police investi-
gators. That report contained an opinion that ‘‘[the]
attacker was someone known to her . . . who has a
probable unstable personality, homosexually inclined,
[and] either panicked following what may have started
out as a prank, or became so angry upon being rejected
that he engaged in an ‘overkill.’ ’’ Finally, the habeas
court found that Sherman had ‘‘substantial background
evidence available to him of [Thomas] Skakel’s mental
and emotional instability, and his penchant for vio-
lent outbursts.’’
The habeas court acknowledged, however, that much
of the evidence that it had identified to implicate
Thomas Skakel might not have been admissible at the
petitioner’s criminal trial. Most of the habeas court’s
conclusions concerning the evidence against Thomas
Skakel were based on the Sutton Report and informa-
tion contained in early police reports, both of which
the habeas court acknowledged would, in all likelihood,
not have been admissible. Nevertheless, the habeas
court explained that they provided Sherman with ‘‘an
investigative gateway’’ to ‘‘seek and obtain admissible
evidence on the [subject or subjects] covered.’’ Notably,
however, the habeas court did not explain or make
any findings about how Sherman could have obtained
admissible evidence or precisely what that evidence
would have been.
On the basis of its review of the evidence available
to Sherman, the habeas court determined that he had
rendered ineffective assistance of counsel to the peti-
tioner. With respect to the performance component of
Strickland, the court concluded that Sherman’s choice
to pursue Littleton instead of Thomas Skakel was unrea-
sonable and thus deficient: ‘‘[G]iven the strength of
evidence regarding [Thomas] Skakel’s direct involve-
ment with the victim at the likely time of her death,
consciousness of guilt evidence concerning [Thomas]
Skakel’s activities on the evening in question, the cir-
cumstantial evidence of his sexual interest in the victim,
and [Thomas] Skakel’s history of emotional instability,
[Sherman’s] failure to pursue a third-party claim against
[Thomas] Skakel cannot be justified on the basis of
deference to strategic decision making. If . . . Sher-
man was, in fact, committed to the notion that only one
third-party culpability defense should be asserted, a
proposition [the habeas] court believes may well be
within [Sherman’s] informed discretion, he unreason-
ably chose a third party against whom there was scant
evidence and ignored a third party against whom there
was a plethora of evidence.’’10 As to the prejudice com-
ponent of Strickland, the habeas court further con-
cluded that this deficiency prejudiced the petitioner’s
defense because, if Sherman had presented a defense
implicating Thomas Skakel, the jury likely would have
had a reasonable doubt about the petitioner’s guilt.
2
Analysis
We take as the starting point of our analysis the
‘‘strong presumption’’ that counsel’s strategic deci-
sions—including whether to pursue a third-party culpa-
bility defense—are an ‘‘exercise of reasonable pro-
fessional judgment.’’ Strickland v. Washington, supra,466 U.S. 689, 690. Because of this presumption, deci-
sions made by counsel after adequate investigation are
‘‘virtually unchallengeable . . . .’’ Id., 690. The peti-
tioner has the burden to overcome this strong presump-
tion of competence by demonstrating that there was
no objectively reasonable justification for counsel’s
decision: ‘‘As a general rule, a habeas petitioner will be
able to demonstrate that trial counsel’s decisions were
objectively unreasonable only if there [was] no . . .
tactical justification for the course taken.’’ (Internal
quotation marks omitted.) Mozell v. Commissioner of
Correction, 291 Conn. 62, 79, 967 A.2d 41 (2009). Coun-
sel’s decision need not have been the best decision, or
even a good one; it need only fall within the wide range
of reasonable decisions that a defense attorney in coun-
sel’s position might make. See, e.g., Harrington v. Rich-
ter, supra, 562 U.S. 110; Strickland v. Washington,
supra, 689. Thus, as long as there is some reasonable
basis for counsel’s decision, we may not second-guess
counsel’s choice after that defense has proven a failure,
and we must defer to counsel’s exercise of professional
judgment. Strickland v. Washington, supra, 689–91.
Applying these principles to the present case, we
conclude that Sherman’s decision to implicate Littleton
instead of Thomas Skakel was reasonable and, there-
fore, not constitutionally deficient for at least two
reasons.
i
Lack of Admissible Evidence
Implicating Thomas Skakel
First, we agree with the respondent that Sherman
did not have admissible evidence available to him to
present a third-party defense implicating Thomas Ska-
kel. To raise a third-party culpability defense, defense
counsel must be able to present evidence at trial that
directly links the third party suspect to the crime
alleged. E.g., State v. Hernandez, 224 Conn. 196, 202,
618 A.2d 494 (1992) (‘‘The defendant must . . . present
evidence that directly connects a third party to the
crime with which the defendant has been charged
. . . . It is not enough to show that another had the
motive to commit the crime . . . nor is it enough to
raise a bare suspicion that some other person may have
committed the crime of which the defendant is
accused.’’ [Citations omitted; internal quotation marks
omitted.]). To prove that Sherman was deficient for
failing to implicate Thomas Skakel, the petitioner thus
needed to show that Sherman had admissible evidence
available to him to support that defense at trial. See,
e.g., Bryant v. Commissioner of Correction, 290 Conn.
502, 515, 964 A.2d 1186 (defense counsel cannot be
deemed deficient for failing to present third-party
defense when there is insufficient evidence to support
it), cert. denied sub nom. Murphy v. Bryant, 558 U.S.
938, 130 S. Ct. 259, 175 L. Ed. 2d 242 (2009); see also
Floyd v. Commissioner of Correction, 99 Conn. App.
526, 532, 914 A.2d 1049 (rejecting ineffective assistance
claim when ‘‘the petitioner failed to prove that the wit-
nesses were available to testify at trial, what they would
have testified about or that their testimony would have
had a favorable impact on the outcome of the trial’’),
cert. denied, 282 Conn. 905, 920 A.2d 308 (2007). The
petitioner failed to meet this burden.
To have any hope of directly linking Thomas Skakel
to the murder, Sherman first needed admissible evi-
dence that confirmed that Thomas Skakel had a sexual
encounter with the victim on the night of October 30,
1975. Sherman also needed evidence to establish details
about how the encounter unfolded, including the time
it occurred, and that Thomas Skakel had unbuttoned
and pulled the victim’s pants down during their meeting.
Evidence of the time the encounter took place—
between 9:30 and 9:50 p.m.—would be needed to place
Thomas Skakel with the victim at or around the time
the petitioner had claimed she was murdered—between
9:30 and 10 p.m.11 Evidence showing that Thomas Ska-
kel unbuttoned and pulled the victim’s pants down
would be necessary to establish the tenuous connection
the habeas court noted between Thomas Skakel’s
alleged description of their encounter and the crime
scene evidence. Without these details, there could be
no possibility of implicating Thomas Skakel because
Sherman would have been able to prove only that
Thomas Skakel was the last person to have seen the
victim alive—a fact made known at trial and hardly
enough to directly connect him to the victim’s murder.12
See Mukhtaar v. Commissioner of Correction, 158
Conn. App. 431, 448–50, 119 A.3d 607 (2015) (counsel
was not ineffective for declining to present third-party
defense when evidence showed only that third party
was present at crime scene).
The record before the habeas court fails to demon-
strate that Sherman had access to admissible evidence
to prove these details at the petitioner’s criminal trial.
The details about Thomas Skakel’s encounter with the
victim, as the habeas court relayed them, come from
the Sutton Report, which describes an interview during
which Thomas Skakel allegedly discussed the encoun-
ter. The habeas court acknowledged, however, that the
Sutton Report likely would not have been admissible
at the petitioner’s trial; indeed, the report itself would
have constituted double hearsay and possibly have been
privileged. Sherman also could not have introduced the
details of the encounter through Thomas Skakel
because his counsel told Sherman before trial that, if
called as a witness, Thomas Skakel would assert his
privilege against self-incrimination and decline to tes-
tify. Thomas Skakel was not called as a witness at either
the criminal trial or the habeas trial, and, thus, the
record is devoid of proof that Thomas Skakel would
have testified at the criminal trial and, if he did, what
the substance of his testimony would have been.
The habeas court found that counsel could have pre-
sented evidence about the encounter through one of
the petitioner’s attorneys, but this finding is not sup-
ported by the record. Evidence presented at the habeas
trial shows that, just one week before the beginning
of the petitioner’s criminal trial, Sherman and Jason
Throne, another attorney representing the petitioner,
met with Thomas Skakel and his attorney. The habeas
court found that, at this meeting, Thomas Skakel
recounted the specifics of his sexual encounter with
the victim to Sherman and Throne. Based on this deter-
mination, the habeas court concluded that Throne could
have withdrawn as the petitioner’s counsel—just days
before trial—and could have testified as a witness about
what Thomas Skakel had said at that meeting.
This finding is unsupported by the evidence in the
record, however, because Throne testified at the habeas
trial that he had no recollection of any discussion by
Thomas Skakel during their meeting about his sexual
contact with the victim.13 ‘‘[A] finding of fact is clearly
erroneous when there is no evidence in the record to
support it . . . .’’ (Internal quotation marks omitted.)
Orcutt v. Commissioner of Correction, 284 Conn. 724,
742, 937 A.2d 656 (2007). In the present case, Throne
recalled that Thomas Skakel said only that he had seen
the victim later on the evening of October 30, 1975, but
Thorne could not recall whether Thomas Skakel made
any mention of the time that meeting occurred. Nor did
Throne recall Thomas Skakel’s discussing any sexual
contact between him and the victim.14 The habeas
record thus contains no other evidence on which the
habeas court could properly base any findings about
what Throne’s testimony would have been if he had
been called as a witness at the petitioner’s criminal trial
in 2002.15 Any finding concerning the details that Throne
could have relayed to the jury about Thomas Skakel’s
alleged encounter with the victim would therefore be
entirely speculative and inconsistent with the evidence
actually presented at the habeas trial. The petitioner,
as the party with the burden of proof at the habeas
trial, was required to prove that Sherman would have
had access to admissible evidence to support this the-
ory. When the petitioner’s claim rests on the argument
that counsel should have called a certain witness to
establish a defense, the petitioner must present to the
habeas court what the substance of the witness’ testi-
mony would have been. See, e.g., Thomas v. Commis-
sioner of Correction, 141 Conn. App. 465, 472, 62 A.3d
534, cert. denied, 308 Conn. 939, 66 A.3d 881 (2013).
Consequently, if the petitioner intended to rest the
strength of his claim on the notion that Throne could
have provided significant details to support a third-
party culpability defense implicating Thomas Skakel, it
fell on the petitioner to proffer evidence to show what
Throne’s testimony at the criminal trial would have
been. Because Throne’s testimony at the habeas trial
failed to establish what he would have testified to if he
had been called to testify at the petitioner’s criminal
trial, the petitioner failed to meet this burden.
Thus, there is no reasonable basis to conclude that
Sherman had admissible evidence available to him con-
cerning the details of Thomas Skakel’s alleged sexual
contact with the victim.16 Without this significant
threshold evidence, Sherman would not have been per-
mitted to implicate Thomas Skakel at the petitioner’s
criminal trial and, therefore, could not have been found
to be ineffective for failing to do so. See, e.g., Bryant
v. Commissioner of Correction, supra, 290 Conn. 515(‘‘[i]t is not ineffective assistance of counsel . . . to
decline to pursue a [third-party] culpability defense
when there is insufficient evidence to support that
defense’’).
ii
Sherman Reasonably Could Have Chosen
Not To Implicate Thomas Skakel
Second, even if we were to assume, for the sake
of argument, that Sherman had access to admissible
evidence detailing Thomas Skakel’s alleged sexual
encounter with the victim, we nevertheless would con-
clude that Sherman reasonably could have chosen to
forgo a defense implicating Thomas Skakel because of
a lack of stronger evidence to tie him to the crime,
especially in light of the possible risks associated with
presenting the evidence needed to support such a
defense.
The evidence available to Sherman, as reviewed by
the habeas court, might place Thomas Skakel with the
victim around the time the petitioner claims she was
murdered, but it does not establish that their meeting
turned violent. Witnesses who saw Thomas Skakel with
the victim shortly before the alleged sexual encounter
took place characterized Thomas Skakel’s interactions
with the victim as ‘‘playful’’ and ‘‘flirtatious . . . .’’ Per-
haps Sherman might have tried to cast doubt on Thomas
Skakel’s claim of an entirely consensual encounter by
referring to evidence that the victim had previously
rebuffed his flirtatious advances, or could have argued
that Thomas Skakel had something to hide given that
he had concealed from the police his story of a sexual
encounter with the victim. But to connect Thomas Ska-
kel to the murder, one would have to speculate that,
despite evidence that the victim was openly and play-
fully flirting with him, and might even have allowed
him to unbutton her pants, he nevertheless became so
enraged that he retrieved a golf club and beat her to
death.17 Additionally, unlike with Littleton and the peti-
tioner, there is no evidence that Thomas Skakel has ever
claimed involvement in the victim’s murder. Moreover,
Sherman had no forensic evidence linking Thomas Ska-
kel to the murder, unlike in the case of Littleton, whose
hair was determined to be similar to hairs found around
the victim’s body. And unlike with the petitioner—who
admitted to wandering around the the victim’s property
and being in the area of the crime scene on October
30, 1975—there is no evidence to place Thomas Skakel
at the scene where the victim was attacked or where
her body was found.
Instead of choosing to ask the jury to make the leap
over this evidentiary lacuna as a means of finding rea-
sonable doubt, defense counsel in Sherman’s position
reasonably could have concluded that it was better to
pursue a suspect who had at least arguably implicated
himself in the crime. Counsel might reasonably have
feared that blaming Thomas Skakel, the petitioner’s
own brother, without any stronger evidence linking him
directly to the murder could cause the jury to doubt
the credibility of the defense case generally, or could
appear desperate.
This concern appears all the more reasonable in light
of the significant risks associated with implicating
Thomas Skakel. See, e.g., Crocker v. Commissioner of
Correction, 126 Conn. App. 110, 131–32, 10 A.3d 1079(declining to second-guess counsel’s decision not to
present certain evidence when that evidence might have
also inculpated petitioner), cert. denied, 300 Conn. 919,
14 A.3d 333 (2011); see also Harrington v. Richter,
supra, 562 U.S. 108–109 (counsel’s representation was
not unreasonable when counsel elected not to use evi-
dence that might have harmed petitioner’s case);
Greiner v. Wells, 417 F.3d 305, 324 (2d Cir. 2005) (‘‘[w]e
cannot fault [defense counsel] for refusing to introduce
evidence of [third-party culpability] in light of its ‘signifi-
cant potential downside’ . . . [namely] that it would
have opened the door to a prosecution line of inquiry
harmful to the defense’’ [citation omitted]), cert. denied
sub nom. Wells v. Ercole, 546 U.S. 1184, 126 S. Ct. 1363,
164 L. Ed. 2d 72 (2006). Evidence confirming a sexual
encounter between Thomas Skakel and the victim on
the night of October 30, 1975, would have also strength-
ened the state’s case against the petitioner by providing
the state with additional evidence of the petitioner’s
motive to commit the crime, such as jealously, and by
corroborating details in some of the petitioner’s own
self-incriminating statements. The state’s evidence con-
cerning the petitioner’s confessions, together with the
petitioner’s statements about his activities that night,
were the state’s primary evidence of guilt. Sherman’s
principal defense against this evidence was to discredit
it. Introducing evidence that might corroborate some of
the petitioner’s incriminating statements thus presented
the risk of strengthening the state’s case.
The state’s theory of motive centered on evidence
that the petitioner had been infatuated with the victim
and implied that he had become upset with her relation-
ship with Thomas Skakel, leading him to attack her in
a jealous rage. See State v. Skakel, supra, 276 Conn.
651–52. The state possessed evidence, made known to
the defense through pretrial discovery, establishing that
the petitioner had made statements claiming that, on
the night the victim was last seen alive, he had discov-
ered that Thomas Skakel had a sexual encounter with
the victim, and that the petitioner had blacked out and
could not remember what happened that night. For
example, a June 23, 2000 police report indicated that
a witness who knew the petitioner from Elan told the
police that, during a group session, the subject of the
victim’s murder came up and the petitioner ‘‘announced
that his brother [Thomas Skakel] had fucked his girl-
friend’’ and that he ‘‘had been running around outside,
that he was drunk, had blacked out and that the next
morning he woke up and [the victim] was dead.’’ The
state had additional evidence demonstrating that the
petitioner had made similar statements to another per-
son on a separate occasion, specifically, that he had
killed a girl that he liked with a golf club after dis-
covering that his brother ‘‘Tommy’’ had a sexual
encounter with her.18
Presenting evidence that Thomas Skakel had admit-
ted to engaging in a consensual sexual encounter with
the victim would have significantly bolstered the state’s
evidence of motive and added credibility to the state’s
case by corroborating evidence of the petitioner’s own
incriminating statements. Without admissible evidence
of Thomas Skakel’s supposed statements, the state did
not have evidence to confirm a sexual encounter
between Thomas Skakel and the victim on the night of
October 30, 1975. The state thus had to rely on the
petitioner’s self-incriminatory statements, together
with evidence from eyewitnesses who had seen Thomas
Skakel and the victim engaging in flirtatious horseplay,
to establish its theory of motive. Evidence confirming
a sexual encounter would undoubtedly have been more
compelling and corroborative than evidence of flirting.19
In concluding that Sherman provided inadequate rep-
resentation for not implicating Thomas Skakel, the
habeas court did not examine the possible risks of doing
so; it focused instead on the potential arguments coun-
sel might have made to implicate Thomas Skakel and
the potential benefits of such a defense. But tactical
decisions of this kind require consideration of both the
potential benefits and the potential risks of pursuing
a particular strategy. Strickland 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.’’ Strickland v. Wash-
ington, supra, 466 U.S. 689. Courts reviewing a defense
attorney’s decision, years after it was made and after
it proved unsuccessful, must take a highly deferential
approach and examine all of the circumstances sur-
rounding counsel’s choice to ensure that there is no
reasonable basis for counsel’s choice before second-
guessing it. See id.Applying this deferential approach, we conclude, con-
trary to the habeas court, that Sherman’s performance
was not deficient and thus could not have deprived the
petitioner of a constitutionally adequate defense. Given
the perils of implicating Thomas Skakel and the lack of
admissible evidence supporting this defense, a defense
attorney in Sherman’s shoes reasonably could have con-
cluded that implicating Thomas Skakel was simply not
worth the risks, at least not without stronger evidence
to directly link him to the murder. There were risks
and benefits to implicating either Thomas Skakel or
Littleton. Certainly, the case against Littleton also had
its own drawbacks. Although the strength of the evi-
dence concerning Littleton’s supposed admissions was
uncertain, at best, the trial court nevertheless con-
cluded that there was enough evidence to connect Lit-
tleton to the murder and allowed Sherman to present
a third-party culpability defense implicating Littleton.
And, in deciding to implicate Littleton, Sherman knew
that he would be able to cross-examine Littleton before
the jury, permitting the jury to assess Littleton’s credi-
bility in person. Implicating Thomas Skakel, by con-
trast, would give the jury no similar opportunity to
observe Thomas Skakel’s demeanor in court, under
examination. Rather, under the petitioner’s theory, the
key facts supporting a defense implicating Thomas Ska-
kel would be presented through hearsay testimony from
a former attorney who represented the petitioner. In
hindsight, we know that Sherman’s choice to implicate
Littleton was not a winning strategy. But, viewing the
evidence from the point of view of a reasonable defense
attorney at the time Sherman formulated his strategy,
it was not unreasonable for counsel in Sherman’s posi-
tion to have concluded that highlighting Littleton’s own
doubts about his involvement was a more prudent
option for sowing reasonable doubt. We thus need not
address the issue of prejudice under Strickland’s sec-
ond prong and conclude that the petitioner failed to
meet his burden of proving ineffectiveness on this basis.
C
Failure To Identify and Call
Additional Alibi Witness
The respondent next claims that the habeas court
incorrectly concluded that Sherman’s representation
was ineffective insofar as he failed to present testimony
from an independent alibi witness, Dennis Ossorio. We
agree with the respondent that Sherman’s performance
in this regard was not ineffective.
1
Additional Background
The petitioner’s claim of an alibi was strongly con-
tested by the state at his criminal trial. At trial, the
petitioner argued that the murder likely occurred
between 9:30 and 10 p.m. on October 30, 1975, at a time
when he claimed to be at Terrien’s home. The habeas
court described the trial evidence concerning the peti-
tioner’s alibi as follows. On the evening of October 30,
‘‘the petitioner, with his siblings Rushton [Skakel], Jr.,
Thomas [Skakel], John [Skakel], Julie [Skakel], David
[Skakel] and Stephen [Skakel], their cousin . . . Ter-
rien . . . [Julie Skakel’s] friend Andrea Shakespeare,
and the family tutor . . . Littleton, left the Skakel resi-
dence in [the Greenwich neighborhood of] Belle Haven
for dinner at the Belle Haven Club at approximately 6:15
p.m. and returned to the Skakel home shortly before 9
p.m. . . . [Meanwhile, before] 9 p.m., the victim had
been out with her friend, Helen Ix, in the neighborhood
enjoying the activities of ‘mischief night.’ Shortly after
the group returned from the Belle Haven Club, the vic-
tim and Ix came to the Skakel residence, and, soon
thereafter, the petitioner, a friend, Geoffrey Byrnes, the
victim, and Ix entered [a car] to talk and listen to music.
They were soon joined in the car by [Thomas] Skakel.
Soon thereafter, at approximately 9:15 p.m., Rushton
[Skakel], Jr., John Skakel . . . and Terrien came to the
car and indicated they needed to use it to take Terrien
to his home, approximately twenty minutes away. It
[was] undisputed that, when Terrien, Rushton [Skakel],
Jr., and John Skakel entered the [car], [Thomas] Skakel,
Ix, Byrnes and the victim alighted from it, and that Ix
and Byrnes shortly [thereafter] left for their respective
homes, leaving [Thomas] Skakel and the victim standing
together in the Skakel driveway. Whether the petitioner
remained in the [car] en route to the Terrien home or got
out of the car at the Skakel residence was significantly
contested at trial because this issue related directly to
the petitioner’s alibi defense. [The petitioner] claimed,
in sum, that he could not have committed the crime
because the victim was murdered between 9:30 and 10
p.m. while he was still at . . . Terrien’s home. While
Terrien, Rushton [Skakel], Jr., and John [Skakel] indi-
cated that the petitioner went with them to the Terrien
home, Ix testified that she could not remember. Her
testimony on this point was significantly contested. On
direct [examination], she indicated her uncertainty. On
[cross-examination] by . . . Sherman, she stated that
she thought the petitioner was in the car as it left but she
was not positive. After Ix testified, the state presented
testimony from Shakespeare that the petitioner was at
the Skakel home after the [car] departed. And, in rebut-
tal, the state presented testimony from Julie Skakel
relevant to whether . . . the petitioner had left in the
[car]. When Julie Skakel testified at trial to an uncertain
memory of the events of the evening, the state was able
to use . . . pursuant to State v. Whelan, 200 Conn. 743,
753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct.
597, 93 L. Ed. 2d 598 (1986), the fact that she had
testified at earlier hearings that, at approximately 9:20
p.m., she saw a figure darting by just outside the house
to whom she called out: ‘Michael, come back here.’
Even though Julie Skakel testified that she did not know
who the darting figure was, the jury was given the clear
indication that, at least at that moment on October 30,
1975, she must have thought it was the petitioner. The
state also adduced evidence that, at the same point in
time, Julie [Skakel] was unable to state whether any
cars remained in the driveway. The import of this evi-
dence was the suggestion that, since Julie Skakel
thought she saw the petitioner dart past the house at
a point in time after the [car] had left the area, he did
not, in fact, go to the Terrien residence. From the state’s
perspective, [Julie Skakel’s] testimony could be harmo-
nized with [Shakespeare’s], who, as noted, testified to
her belief that the petitioner had not gone to the Terrien
home on the evening in question.
‘‘The contest regarding whether the petitioner had
left the area in the [car] continued with the testimony of
Terrien, Rushton [Skakel], Jr., and Georgeann Dowdle,
Terrien’s sister. While Terrien and Rushton [Skakel], Jr.,
testified that the petitioner was present in the Terrien
home, Dowdle could only say that she heard the Skakel
cousins’ voices because she was in a different room
and only within hearing range. She did say, however,
that she had earlier told the police that the petitioner
was there that evening. . . . Dowdle [also] testified
before the grand jury in 1998 that she had been in the
company of her ‘beau’ at the Terrien residence when
the Skakel cousins were there.’’
‘‘Even though . . . Sherman was privy to . . . Dow-
dle’s testimony before trial from his access to the tran-
script of her grand jury testimony, he did not . . .
attempt to learn the identity of Dowdle’s ‘beau.’ During
closing arguments, both the state and [Sherman]
pointed to trial evidence on the disputed question of
whether the petitioner was away from Belle Haven
between the hours of approximately 9:15 and 11:15 p.m.
In [its] challenge to the petitioner’s alibi claim, [the
state] . . . argued that all the alibi witnesses were
related to the petitioner, a point that was echoed by
the court in its charge regarding the credibility of wit-
nesses and in the specific context of the petitioner’s
alibi claim.’’ (Footnote omitted.)
In his habeas petition, the petitioner claimed that
Sherman was deficient insofar as he did not identify
and present the testimony of Dowdle’s ‘‘beau,’’ who
may have been able to provide additional information
about who was at the Terrien home on the night of
October 30, 1975. In support of his habeas claim, the
petitioner presented the testimony of Ossorio, the
‘‘beau’’ referenced by Dowdle, who testified that he had
seen the petitioner at the Terrien home. The habeas
court gave the following description of Ossorio’s habeas
trial testimony: ‘‘Ossorio, [who was] seventy-two years
old [at the time of the habeas trial], testified that, in
1975, he, as a psychologist, was operating a program
for women. He indicated that he then had a personal
connection to Dowdle and that he had been at the
Terrien home in the evening hours of October 30, vis-
iting with Dowdle and her daughter. He testified that,
while there, he had visited with the Skakel brothers,
including the petitioner, and Terrien, while they were
watching [Monty Python’s Flying Circus (Monty
Python)] on television. He indicated that he was in and
out of the room where the others were watching Monty
Python while Dowdle was putting her daughter to bed.
Finally, he indicated that he left the Terrien residence
at about midnight and was not sure whether the Skakels
had left before him. Thus, Ossorio’s testimony sup-
ported the petitioner’s claim that, during the likely time
of the murder, the petitioner was away from [the] Belle
Haven [neighborhood], as he indicated.’’
The habeas court found that ‘‘Ossorio was a disinter-
ested and credible witness with a clear recollection of
seeing the petitioner at the Terrien home on the evening
in question. He testified credibly that not only was he
present in the home with Dowdle and that he saw the
petitioner there, but that he lived in the area throughout
the time of the trial and would have readily been avail-
able to testify if asked. He indicated that, while he was
aware of the general parameters of the state’s claim
against the petitioner, he did not pay close attention to
the trial, and he did not come forward because he was
unaware of the significance of the particular informa-
tion he possessed. He indicated that he had not been
contacted by . . . Sherman or by the state in conjunc-
tion with the investigation or trial. To the court, Ossorio
was a powerful witness in support of the petitioner’s
alibi claim.’’
The habeas court concluded that Sherman’s perfor-
mance was deficient insofar as he did not identify Osso-
rio and present Ossorio’s testimony at the petitioner’s
criminal trial. According to the habeas court, ‘‘[e]ven
though . . . Sherman testified at the habeas [trial] that
the petitioner had never informed him of Ossorio’s pres-
ence and, indeed . . . had never heard Ossorio’s name
until shortly before the habeas [trial], he was on notice
from Dowdle’s grand jury testimony that she was in the
company of another person at the Terrien home, and
she had identified this person as her ‘beau.’ . . . Had
. . . Sherman read and considered Dowdle’s grand jury
testimony, which was made available to him before
the trial, he would have learned of the presence of an
unrelated person in the Terrien household. And, had
. . . Sherman made reasonable inquiry, he would have
discovered Ossorio and gleaned that Ossorio was pre-
pared to testify that the petitioner was present at the
Terrien home during the evening in question. He would
have learned, as well, that Ossorio was a disinterested
and credible witness.’’ The court added that Sherman’s
failure to identify and call Ossorio as a witness could
not be attributed to a strategic decision because the
petitioner had asserted an alibi defense about which
other family members had testified, and, therefore,
‘‘Sherman’s failure to follow up on information available
to him in support of that defense, that there was an
unrelated and identifiable person in the Terrien home
in addition to Skakel relations, was deficient because
[Sherman] knew or should have known of the presence
of an unrelated person in the Terrien home under the
particular circumstances of this case.’’
The habeas court also concluded that Sherman’s fail-
ure to present Ossorio’s testimony prejudiced the peti-
tioner’s alibi defense because there was a reasonable
probability that, if the jury had heard his testimony
together with the petitioner’s other evidence suggesting
that the victim may have been killed when the petitioner
was allegedly present at the Terrien home, it would
have found the petitioner not guilty.
The respondent argues that Sherman’s performance
should not be deemed deficient because of Sherman’s
failure to attribute significance to a passing reference
to Dowdle’s ‘‘beau’’ in a transcript in light of the informa-
tion known to Sherman at the time. Specifically, the
respondent argues that the information Sherman
learned of during his investigation indicated that Rush-
ton Skakel, Jr., John Skakel, and their cousin Terrien
were the only people who claimed to have watched
television with the petitioner at the Terrien home and
who could verify his presence there, and, despite Sher-
man’s repeated inquires, none of them indicated to Sher-
man that anyone else was with them or could verify
the petitioner’s presence at the Terrien home that eve-
ning. The respondent also argues that, even if Sherman’s
performance was deficient insofar as he failed to inves-
tigate and to call Ossorio as a witness, the petitioner has
failed to show prejudice because Ossorio’s testimony,
even if credible, provides only a partial alibi. According
to the respondent, the physical evidence indicates that
the victim may have been murdered after the time when
the petitioner would have returned from the Terrien
home, that some of the petitioner’s own incriminating
statements indicate that he saw her later in the evening,
and that the petitioner’s evidence of a commotion in
the neighborhood is hardly persuasive given that it was
mischief night and teenagers were out around the neigh-
borhood.20 The respondent also notes that several
aspects of Ossorio’s testimony were inconsistent with
other testimony in the case, which might have led a
jury to discredit Ossorio, notwithstanding the habeas
court’s conclusion that he was a credible witness. We
agree that Sherman’s performance was not deficient by
virtue of his failure to identify and call Ossorio as a
witness, and we do not consider whether that alleged
deficiency prejudiced the petitioner.
2
Analysis
The petitioner’s claim is one of inadequate investiga-
tion. The petitioner asserts that Sherman’s performance
was deficient because he unreasonably failed to investi-
gate the identity of Dowdle’s ‘‘beau’’ and consequently
did not learn of his potentially exculpatory testimony
and call him as a witness. To establish deficiency for
failure to identify and call a witness in support of a
defense, a petitioner generally must show that his attor-
ney was informed of the existence of the witness, the
substance of the testimony the witness might have to
offer, and that the testimony would likely be helpful.
See, e.g., State v. Talton, 197 Conn. 280, 297–98, 497 A.2d
35 (1985) (‘‘[A petitioner claiming ineffective assistance
for failure to call a witness must show that he] informed
his attorney of the existence of the witness and that
the attorney, without a reasonable investigation and
without adequate explanation, failed to call the witness
at trial. The reasonableness of an investigation must be
evaluated not through hindsight but from the perspec-
tive of the attorney when he was conducting it.’’).
Sherman’s failure to identify and call Dowdle’s ‘‘beau’’
as an alibi witness was not unreasonable under the
circumstances. There is no evidence that Sherman was
aware, at any time prior to the petitioner’s criminal
trial, of Ossorio’s existence or that he might have helpful
information to give in support of the petitioner’s alibi
defense. As part of his work to develop the petitioner’s
alibi claim, Sherman undertook an investigation to iden-
tify potential witnesses who were with the petitioner
at the Terrien home on the night of October 30, 1975,
and who could verify the petitioner’s presence there.21
Sherman testified at the habeas trial that he had specifi-
cally asked his client ‘‘on many occasions’’ who else
was at the Terrien home watching television on the
night of October 30, but the petitioner did not tell Sher-
man that Ossorio was present at the Terrien home that
night, or that Ossorio might be able to support the
petitioner’s alibi claim.22 In addition, no one else who
claimed to have been watching television with the peti-
tioner at the Terrien home that night had ever men-
tioned that Ossorio was also there, either to inves-
tigators or to Sherman. Three others were supposedly
with the petitioner watching television that night—
Rushton Skakel, Jr., John Skakel, and their cousin, Ter-
rien. Sherman interviewed each of them when preparing
for trial, but Sherman testified at the habeas hearing
that none of them mentioned Ossorio or suggested that
Ossorio was with them that night. They had also been
interviewed by the police in the weeks after the murder,
but reports of interviews naming those present at the
Terrien home that night similarly contain no mention
of Ossorio or that anyone else was watching television
with them. Indeed, even at the criminal trial, when Rush-
ton Skakel, Jr., was specifically asked who else was in
the room watching television beside himself, the only
persons he named were Terrien and his brothers, John
Skakel and the petitioner. If Ossorio had come in and
out of the room where the others were watching the
television show and spoke with them, as he claimed,
he certainly would have been observed by them; yet,
none of them mentioned him to investigators or to Sher-
man. Nor did Dowdle tell Sherman about the possibility
that anyone else beside Rushton Skakel, Jr., John Ska-
kel, and Terrien could corroborate the petitioner’s pres-
ence at the Terrien home. Indeed, Sherman was asked
at the habeas trial: ‘‘Did [the petitioner] or any of his
brothers or his cousin [Terrien] or his cousin [Dowdle]
ever tell you that there was a man watching [television]
with them at the [Terrien] house that night?’’ Sherman
responded: ‘‘No.’’ Sherman was then asked: ‘‘Did they
ever give you any indication that there was anybody at
the house who could corroborate the alibi?’’ Sherman
answered: ‘‘Other than the family members, no.’’23 In
sum, neither the petitioner, nor Rushton Skakel, Jr.,
John Skakel, or Terrien, who told Sherman that they
were with the petitioner at the Terrien home, ever sug-
gested to Sherman the possibility that there was anyone
else who might have verified the petitioner’s presence
at the Terrien home that night, despite Sherman’s inquir-
ies; to the contrary, the information that Sherman
received indicated that Rushton Skakel, Jr., John Ska-
kel, and Terrien were the only witnesses who could
claim to have seen the petitioner at the Terrien home
that night.
As a result, the only way Sherman could possibly
have discovered Ossorio was through the singular refer-
ence in the grand jury transcript to Dowdle’s ‘‘beau.’’
When Dowdle was asked during the grand jury proceed-
ings whether she recalled seeing her brother, Terrien,
on the night of October 30, 1975, she responded: ‘‘I’m
not sure that I saw him. I think I heard him. I was in
my mother’s library, which [is] off the living room, and
I was in there with my beau at the time, and I didn’t
really venture out.’’ She said nothing else about him to
the grand jury. She also testified, however, that she
heard voices of the Skakel brothers, but could not be
sure who the voices belonged to and could not recall
who was there, apparently because she had not left the
library. Dowdle’s passing reference is the only refer-
ence to her ‘‘beau’’ in the materials that were available
to Sherman before trial. The petitioner has not identi-
fied any other mention of her ‘‘beau’’ during the grand
jury proceedings or in any of the hundreds of pages of
materials disclosed by the state to the defense prior to
the petitioner’s criminal trial.
Sherman was not present during the grand jury pro-
ceedings but had access to the transcripts and testified
at the habeas trial that he had reviewed them. Sherman
testified at the habeas trial that, in light of Dowdle’s
grand jury testimony and the information from the peti-
tioner, Rushton Skakel, Jr., John Skakel, and Terrien,
he ‘‘had no reason to suspect that [the ‘‘beau’’], in fact,
would be helpful’’ in establishing whether the petitioner
was at the Terrien home on the night of October 30,
1975, even if Ossorio had been present somewhere
inside the Terrien home.
Sherman did not act unreasonably in failing to attri-
bute significance to or to further investigate this singu-
lar reference. Dowdle’s single mention of her ‘‘beau’’
itself cast doubt on the likelihood that he might have
seen who was at the Terrien home that night. Her testi-
mony strongly suggested that, because she was together
with her ‘‘beau’’ in the library and did not venture out
or see Terrien or the Skakels, neither did her ‘‘beau.’’24
Sherman thus could reasonably have concluded that
her ‘‘beau’’ had also not seen any of the Skakels at the
Terrien home that night and that, more than twenty
years after the night in question, the ‘‘beau,’’ having
never been interviewed or come forward, likely would
have no reliable memory of who was at the Terrien
residence that evening.
The reasonableness of this conclusion is reinforced
by the fact that neither the petitioner nor anyone else
who was watching television at the Terrien home that
night had ever mentioned the ‘‘beau’’ as being present,
either to police investigators or to Sherman. Sherman’s
conclusion that Dowdle’s ‘‘beau’’ had not seen the peti-
tioner at the Terrien home that night was not specula-
tion; it was the conclusion most consistent with infor-
mation provided to Sherman by the petitioner, Terrien,
Rushton Skakel, Jr., and John Skakel. Considered
together with all of the information available to Sher-
man before trial, Dowdle’s reference to her ‘‘beau’’
would seem unlikely to lead to helpful information.
When assessing the reasonableness of counsel’s investi-
gation, we must apply ‘‘a heavy measure of deference
to counsel’s judgements’’ and uphold counsel’s deci-
sions as long as they find some reasonable basis in the
record. Strickland v. Washington, supra, 466 U.S. 691.
Although it is possible that some defense attorneys
might have discerned some import from this reference
and pursued it, despite the information received from
their clients, ‘‘the right to counsel is the right to effective
assistance, and not the right to perfect representation.’’
Michael T. v. Commissioner of Correction, 307 Conn.
84, 101, 52 A.3d 655 (2012). Counsel has not performed
deficiently simply for failing to unearth every possible
lead in a case. See, e.g.,Yarborough v. Gentry, 540 U.S.
1, 8, 124 S. Ct. 1, 157 L. Ed. 2d 1 (2003) (‘‘[E]ven if an
omission is inadvertent, relief is not automatic. The
[s]ixth [a]mendment guarantees reasonable compe-
tence, not perfect advocacy judged with the benefit of
hindsight.’’); cf. Gaines v. Commissioner of Correction,
306 Conn. 664, 681–87, 51 A.3d 948 (2012).
In these circumstances, we conclude that it was not
unreasonable for Sherman either to overlook or disre-
gard any potential significance of this singular reference
in the grand jury transcripts in light of the information
Sherman had learned from the petitioner and others
during his investigation, which indicated that no one
else beside Rushton Skakel, Jr., John Skakel, and Ter-
rien were with the petitioner watching television at the
Terrien home on the night in question. See Strickland
v. Washington, supra, 466 U.S. 691 (‘‘when a defendant
has given counsel reason to believe that pursuing cer-
tain investigations will be fruitless . . . counsel’s fail-
ure to pursue those investigations may not later be
challenged as unreasonable’’).
Our conclusion is consistent with the decisions of
several federal courts that an attorney’s performance
is not deficient as a result of the attorney’s failure to
identify and interview witnesses when the defendant
has not given their names and addresses to counsel
or advised counsel that the witnesses might possess
potentially exculpatory information. For example, in
United States v. Farr, 297 F.3d 651 (7th Cir. 2002), in
which the defendant claimed that his attorney’s perfor-
mance was deficient because he failed to locate and
interview several witnesses, even though the defendant
had not given his attorney their names and addresses
or advised him of specific exculpatory information they
might possess, the court concluded: ‘‘A defense attorney
is not obligated to track down each and every possible
witness or to personally investigate every conceivable
lead. . . . An ineffective assistance of counsel claim
cannot rest [on] counsel’s alleged failure to engage in a
scavenger hunt for potentially exculpatory information
with no detailed instruction on what this information
may be or where it might be found.’’ (Citation omitted.)
Id., 658.
The Eighth Circuit Court of Appeals reached the same
conclusion in Battle v. Delo, 19 F.3d 1547, 1555 (8th
Cir. 1994), amended on other grounds, 64 F.3d 347 (8th
Cir. 1995), cert. denied sub nom. Battle v. Bowersox,
517 U.S. 1235, 116 S. Ct. 1881, 135 L. Ed. 2d 176 (1996).
In Battle, the court determined that counsel’s failure to
call a potential witness when the witness was listed
once in the police reports by her first name and once by
her first name and incorrect last name did not constitute
deficient performance. Id. The court reasoned that the
petitioner did not provide counsel with the name of
the potential witness before trial, did nothing to help
counsel locate those who could assist in his defense,
and there was no evidence that counsel had notice
of the identity of the witness. Id.; see also Harris v.
Bowersox, 184 F.3d 744, 756–57 (8th Cir. 1999) (failure
to call eyewitness when name of witness was listed in
police report by first name, age, and by first and incor-
rect last name did not constitute deficient performance
under Battle when counsel was not made aware of
existence of witness before trial), cert. denied, 528 U.S.
1097, 120 S. Ct. 840, 145 L. Ed. 2d 706 (2000).
Like the defendants or the petitioners in these federal
cases, the petitioner in the present case and his family
members not only failed to provide Sherman with
Ossorio’s name, but never suggested that they saw Dow-
dle’s unnamed ‘‘beau’’ at the Terrien home or that the
unnamed ‘‘beau’’ could provide testimony that would
have corroborated his alibi. See, e.g., Toccaline v. Com-
missioner of Correction, 80 Conn. App. 792, 817, 837
A.2d 849 (counsel’s performance was not deficient as
result of his failure to investigate possible witness when
client did not mention witness to counsel), cert. denied,
268 Conn. 907, 845 A.2d 413, cert. denied sub nom.
Toccaline v. Lantz, 543 U.S. 854, 125 S. Ct. 301, 160 L.
Ed. 2d 90 (2004).
Correspondingly, in cases in which courts have deter-
mined that counsel’s performance was deficient for fail-
ing to investigate a potential alibi witness, counsel had
been provided with the witness’ identity and had reason
to believe that the witness might have helpful informa-
tion to give. Thus, this court determined in Gaines v.
Commissioner of Correction, supra, 306 Conn. 664, that
defense counsel’s performance was deficient because
the petitioner gave counsel the names of the potential
witness as one of only two persons in the area where
the crime occurred that the petitioner knew, which
could have been significant in light of the petitioner’s
inability to explain where he was at the time of the
shooting. In other words, it would have been logical
for counsel to determine whether the petitioner was
with the potential witness, who was named by the peti-
tioner, when the murder had occurred. See id., 683–87;
see also Mosley v. Atchison, 689 F.3d 838, 849 (7th Cir.
2012) (failure to investigate and call two alibi witnesses
known to counsel who would place petitioner across
street at time fire started amounted to deficient perfor-
mance); Vazquez v. Commissioner of Correction, 107
Conn. App. 181, 185–87, 944 A.2d 429 (2008) (failure to
call alibi witnesses known to counsel who would testify
that petitioner was asleep in his apartment at time of
armed robbery amounted to deficient performance).
In the present case, the incredibly limited information
available to Sherman about Dowdle’s ‘‘beau’’ indicated
that he likely would be of little help to the petitioner’s
defense, especially considering that neither the peti-
tioner nor anyone who was allegedly watching televi-
sion with the petitioner at the Terrien home mentioned
his presence there.25
Furthermore, the dissent relies on, among other
cases, a Second Circuit case, namely, Pavel v. Hollins,
261 F.3d 219 (2d Cir. 2001), which, according to the
dissent, demonstrates that the petitioner in the present
case is entitled to relief. The dissent quotes the case at
length but omits with ellipses the portion of the decision
in which the court explains that defense counsel in that
case was specifically made aware, in advance of trial,
both of the identity of the witness and the important
information the witness had to give—facts that distin-
guish Pavel from the present case. See id., 220
(‘‘[Defense counsel] was familiar with the basic con-
tours of [the witness’] testimony before the trial—pre-
sumably because he had spoken about the matter with
[his client]. But [defense counsel] never [followed up]
on what he learned of [the witness’] putative testimony
with [the witness] herself . . . .’’). If the petitioner,
Rushton Skakel, Jr., John Skakel, or Terrien had told
Sherman that Ossorio was with them and had seen the
petitioner at the Terrien home on the night of October
30, 1975, Pavel might be more analogous to the present
case. Of course, the information available to Sherman
from those allegedly with the petitioner at the Terrien
home that night indicated that no one else was with
them and that Dowdle’s ‘‘beau’’ thus had not seen the
petitioner that night and could not corroborate his alibi.
We therefore find Pavel—and for similar reasons the
remaining case law on which the dissent relies—to be
inapposite to the factual circumstances of the pre-
sent case.
In sum, given the strong presumption that counsel
has rendered adequate assistance, and relying on the
well established principle that ‘‘[a] fair assessment of
attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to recon-
struct the circumstances of counsel’s challenged con-
duct, and to evaluate the conduct from counsel’s per-
spective at the time’’; (internal quotation marks omit-
ted) Johnson v. Commissioner of Correction, 285 Conn.
556, 577, 941 A.2d 248 (2008); we conclude that the
habeas court incorrectly determined that Sherman’s
performance was deficient under the first prong of
Strickland. We thus need not address the issue of
prejudice.
D
Failure To Call Witnesses To Impeach
Gregory Coleman’s Testimony
The habeas court also faulted Sherman for failing to
locate, investigate, and call three witnesses who might
have impeached the testimony of Coleman concerning
one of the petitioner’s confessions. The respondent
argues that this conclusion was incorrect because Sher-
man’s performance did not fall below an objective stan-
dard of reasonableness. We agree with the respondent
that Sherman’s performance was not deficient and
therefore not ineffective. Although Coleman provided
evidence that the petitioner had confessed to murdering
the victim, Sherman acted reasonably in concluding
that he could sufficiently attack Coleman’s credibility
directly through cross-examination and without the
need to pursue additional witnesses.
1
Additional Background
Coleman testified for the state at a number of pretrial
hearings in the petitioner’s criminal case, including
before the grand jury, at the petitioner’s juvenile trans-
fer hearing, and again for two days at the petitioner’s
probable cause hearing. He testified that the petitioner
had explicitly confessed to murdering the victim. Cole-
man died about one year before the petitioner’s criminal
trial, and, thus, he did not testify before the jury. Instead,
the state had his probable cause hearing testimony read
into the record at the criminal trial.
At the probable cause hearing, Coleman testified that
he had been a resident at Elan when the petitioner was
also a resident there. While there, he was assigned to
guard the petitioner one evening because the petitioner
had tried to escape from the facility. Coleman testified
that, during that evening, the petitioner told him that
he was going to get away with murder because he was
a member of the ‘‘Kennedy’’ family. Coleman asked the
petitioner what he meant, and, according to Coleman,
the petitioner explained that ‘‘he had made advances
[toward] this girl where he lives and that she spurned
his advances and that he drove her skull in with a golf
club.’’ Coleman also claimed that the petitioner told
him that the attack occurred in a wooded area, the golf
club had broken during the attack, and that, two days
after the murder, he ‘‘had gone back to the body and
masturbated on [it].’’ Coleman also recalled another
occasion at Elan when the petitioner was in a group
therapy session, the subject of murder was brought up,
and the petitioner was instructed to repeat the words
‘‘I am sorry’’ as a means of ‘‘get[ting] in touch’’ with his
feelings of guilt.
Sherman cross-examined Coleman at the probable
cause hearing and obtained a number of admissions
from Coleman that raised questions concerning the
truthfulness of his testimony about the petitioner’s con-
fession and his credibility as a witness generally.
Coleman admitted under questioning that his testi-
mony at the probable cause hearing was different from
his testimony at prior hearings and that his recollection
about the petitioner’s confession had changed. At the
prior grand jury hearing, Coleman testified that the peti-
tioner had personally confessed to him five or six times.
At the probable cause hearing, however, Coleman
claimed that the petitioner confessed only twice—once
when Coleman was guarding the petitioner, and another
time when the petitioner was instructed to apologize
for the murder during a group therapy session, which
Coleman thought was akin to a confession. At the earlier
grand jury hearing, Coleman also testified that the peti-
tioner said that he had used a driver type of golf club
to attack the victim. But, during the probable cause
hearing, Coleman testified that the petitioner had not
said anything about the type of club used and claimed
that it was just Coleman’s ‘‘impression’’ that the peti-
tioner had used a driver based on the petitioner’s state-
ment to Coleman that he ‘‘drove’’ the victim’s skull in.26
And, as another example, Coleman told the grand jury
that the petitioner had confessed while he and the peti-
tioner were talking about their families and why they
had been sent to Elan. But, at the probable cause hear-
ing, Coleman denied that he had been talking to the
petitioner when the petitioner confessed. Instead, Cole-
man related that he had neither met nor spoken with
the petitioner before he confessed, and he claimed that
the petitioner’s comment about getting away with mur-
der because he was a part of the ‘‘Kennedy’’ family was
the first thing the petitioner ever said to him.
Coleman blamed the changes in his story on a ‘‘[l]apse
of memory.’’ Under questioning, Coleman acknowl-
edged that his recollection was ‘‘questionable’’ at times
because his conversation with the petitioner had
occurred more than twenty years before and because
he had heavily abused illegal drugs for many years in
the interim. He admitted that he was high on heroin
when he testified before the grand jury, having injected
himself with the drug at his hotel about one hour before
he testified. On the second day of his probable cause
testimony, Coleman also disclosed under questioning
that he had been ill from opiate withdrawal on the first
day of his probable cause testimony and, afterward,
had to be taken to the hospital for methadone treatment.
He also admitted to having last used heroin just two
days before he testified at the probable cause hearing.
Sherman also questioned Coleman about his delay in
coming forward with the petitioner’s confession.
Although Coleman claimed that the petitioner con-
fessed sometime in 1978, Coleman said he did not
remember telling anyone about the confession until
twenty years later. Coleman explained that, sometime
in 1998, he was with his wife watching a ‘‘tabloid’’ televi-
sion show about the murder when he remembered the
petitioner’s confession from twenty years before and
told his wife about it. He did not call the police after
remembering but, instead, called a national television
network after seeing yet another television program
about the case, and, when he did not reach anyone at
the network, he called a local television station. Cole-
man was interviewed by the local station about his role
in the case before he gave his probable cause testimony.
He also testified that he had watched three separate
television programs about the case before testifying at
the probable cause hearing and admitted that he could
not be sure that his memory was unaffected by the
content of the programs. When Sherman asked if any-
one else could verify his claims about a confession,
Coleman said that someone else had guarded the peti-
tioner with him when the petitioner confessed. He gave
the names of three individuals who might have been
the other person there—John Simpson, Alton Everette
James, or Cliff Grubin—although Coleman said that he
could not remember who was there and did not know
whether the other person had even heard the petition-
er’s confession.
With respect to Coleman’s character for truthfulness,
generally, Sherman elicited admissions from Coleman
that he was a frequent user of illicit drugs, had been
convicted of committing multiple crimes, and had even
served prison time in New York. Coleman also acknowl-
edged that, after investigators for the state contacted
him about his story, he asked them to help with criminal
charges he had in New York and for financial assistance
from the state, although he said he never received
either.
The petitioner’s counsel elicited testimony during the
habeas trial that Sherman, in preparing for the petition-
er’s criminal trial, directed his investigator to look for
Simpson, James, and Grubin, but the investigator was
not able to locate or contact them before the criminal
trial, and thus Sherman did not learn the content of any
testimony they might have been able to provide. Neither
the petitioner nor the respondent asked the investigator
at the habeas trial about the extent of the efforts he
used to find these witnesses; the investigator testified
only that he was directed to locate them, he made efforts
to do so, was unable to find them, and that no further
efforts were made after that. Despite not finding the
witnesses, Sherman testified during the habeas trial that
he did not believe that their testimony would have made
a difference, even if it would have been favorable to
the petitioner. According to the habeas court, Sherman
felt that ‘‘he so completely destroyed Coleman’s credi-
bility on cross-examination that he believed no reason-
able jury would credit [Coleman’s] tale.’’
At the petitioner’s criminal trial, the court allowed
Coleman’s probable cause hearing testimony, including
Sherman’s cross-examination of Coleman, to be read
into the record before the jury. Sherman relied on his
cross-examination of Coleman as the means of
attacking the credibility of his claim that the petitioner
had confessed. Neither the state nor Sherman presented
testimony at the criminal trial from any of the three
individuals who Coleman thought might have been the
person guarding the petitioner when the petitioner con-
fessed. To support Coleman’s credibility, however, the
state presented testimony at trial from Coleman’s
widow, who testified that Coleman had twice told her
that someone named ‘‘Mike Skakel’’ from Elan had con-
fessed to murder. She claimed that Coleman first told
her about the confession when they were dating in 1986,
and then again in 1998 when Coleman saw the ‘‘tabloid’’
television show about the murder.
Also, during the criminal trial, another witness came
forward for the first time and claimed that Coleman
told her about the petitioner’s confession sometime in
1979. The state called her as a rebuttal witness. The
witness testified that, while she and Coleman were both
residents at Elan, Coleman told her that another resi-
dent, the petitioner, told Coleman he was related to the
Kennedy family and had murdered a girl with a golf
club. She also testified that she thought Coleman was
one of the ‘‘good people’’ at Elan, that she had shared
secrets with him, and that, to her knowledge, he had
kept those secrets in confidence. She also testified that
it was common knowledge among Elan residents that
the petitioner was there because he had murdered
someone.
In his habeas petition, the petitioner claimed that
Sherman’s representation was ineffective insofar as he
failed to locate, interview, and call as witnesses the
three individuals named by Coleman—Simpson, James,
and Grubin. According to the petitioner, Sherman
unreasonably relied on his cross-examination to dis-
credit Coleman’s testimony, and he argued that Sher-
man was required to call these three individuals as
witnesses to contradict Coleman’s story. The petitioner
also claimed that Sherman’s lapse prejudiced his
defense because, if the jury had heard the testimony
of these individuals, there is a reasonable probability
that it would have discredited Coleman’s testimony and
found the petitioner not guilty.
In support of his claim, the petitioner presented testi-
mony from the three individuals, which had been given
during an earlier posttrial hearing. Each had testified
that they had not heard the petitioner ever confess to
the murder.
Notably, Simpson recalled having guarded the peti-
tioner with Coleman one evening but disputed Cole-
man’s claim that the petitioner had confessed while
being guarded. Simpson explained that, while guarding
the petitioner that night, he was busy drafting reports
while Coleman watched the petitioner. At some point
during the evening, Coleman exclaimed that the peti-
tioner admitted to having killed a girl. Simpson asked
the petitioner if it was true, but the petitioner denied
it. Simpson asked Coleman why he thought the peti-
tioner had confessed. Coleman explained that he had
asked the petitioner if he killed a girl, apparently in
response to rumors about the petitioner’s involvement
in a murder, but the petitioner did not deny responsibil-
ity and had smiled with a ‘‘shit eating grin . . . .’’ When
Simpson pressed Coleman about his claim that the peti-
tioner confessed, Coleman said that was the petitioner’s
‘‘reaction, the fact that he didn’t say no’’ in response to
Coleman’s question. Simpson acknowledged, however,
that he had not paid attention to any of Coleman’s
conversation with the petitioner until Coleman
exclaimed that the petitioner confessed. He also testi-
fied that he is deaf in his left ear and that Coleman and
the petitioner had been to his left.
Simpson also recalled a separate occasion when,
shortly after leaving Elan in 1980, he was speaking with
the petitioner about the murder and asked him if he
had killed the victim. According to Simpson, the peti-
tioner said ‘‘[n]o, I didn’t do it,’’ and explained that he
had been ‘‘drinking and partying that night’’ and that
‘‘[t]here were . . . times that I may not . . . remem-
ber . . . but I certainly don’t remember doing anything
like that.’’
The habeas court agreed with the petitioner and con-
cluded that Sherman’s representation was ineffective
in that he failed to find and call as witnesses the three
people who Coleman thought might have been with him
when the petitioner confessed. Although the habeas
court acknowledged the strength of Sherman’s cross-
examination, it nevertheless concluded that ‘‘Sherman’s
decision not to pursue Simpson, James, and Grubin
reflected a significant and impactful lack of judgment.’’
The habeas court also concluded that Sherman’s defi-
cient performance prejudiced the petitioner’s defense:
‘‘Sherman’s failure to investigate and present the testi-
mony of [the three individuals] left the core of Cole-
man’s testimony only tangentially challenged. . . .
With [their] testimony . . . there is a reasonable likeli-
hood that Coleman’s testimony would have been dis-
credited, substantially weakening the state’s prosecu-
tion. In the absence of credible testimony from Coleman
tying the petitioner to the murder, there is a reasonable
likelihood that the outcome of the trial would have
been different.’’
2
Analysis
Sherman did not succeed in locating the three poten-
tial witnesses named by Coleman, and so he used his
cross-examination of Coleman from the probable cause
hearing as the means of impeaching Coleman’s testi-
mony. The petitioner has, however, failed to prove that
Sherman’s efforts to locate the three individuals were
unreasonable and that Sherman’s decision to use his
cross-examination of Coleman in the absence of the
witnesses’ testimony was deficient.
The law governing ineffective assistance of counsel
claims gives counsel substantial discretion to decide
how to present a defense; this discretion includes
determining which evidence to present and which wit-
nesses to call to support the defense. See, e.g., Bryant
v. Commissioner of Correction, supra, 290 Conn. 521.
Counsel’s decisions must be based on reasonable inves-
tigations, but ‘‘counsel need not track down each and
every lead or personally investigate every evidentiary
possibility before choosing a defense and developing
it.’’ (Internal quotation marks omitted.) Gaines v. Com-
missioner of Correction, supra, 306 Conn. 683. Under
Strickland, ‘‘strategic choices made after less than com-
plete investigation are reasonable precisely to the
extent that reasonable professional judgments support
the limitations on investigation. In other words, counsel
has a duty to make reasonable investigations or to make
a reasonable decision that makes particular investiga-
tions unnecessary. In any ineffectiveness case, a partic-
ular decision not to investigate must be directly
assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s
judgments.’’ Strickland v. Washington, supra, 466 U.S.
690–91. In addition, in assessing counsel’s decisions
about how to present a defense, ‘‘every effort [must]
be made to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s chal-
lenged conduct, and to evaluate the conduct from coun-
sel’s perspective at the time.’’ Id., 689.
In the present case, the petitioner and the habeas
court faulted Sherman for proceeding to trial without
first locating any of the witnesses named by Coleman.
The evidence presented at the habeas trial indicates,
however, that Sherman did try to find them. Sherman,
his associate Throne, and his investigator each testified
that efforts were made to find these witnesses. The
record lacks details, however, as to the extent of the
investigation. The petitioner’s counsel asked the investi-
gator at the habeas trial whether he searched for the
witnesses and whether he found them, but presented
no evidence about what efforts the investigator made.
Without that evidence, we cannot assess the reason-
ableness of counsel’s investigation. There is, however,
some evidence in the record indicating that the wit-
nesses were extremely difficult to find, suggesting that
Sherman’s failure to locate them prior to the petitioner’s
criminal trial very well might not be the result of a poor
search but due to the difficulty in locating those wit-
nesses.27
The petitioner had the burden to present evidence
demonstrating that Sherman’s investigation was consti-
tutionally inadequate. In the absence of this evidence,
we must presume that Sherman performed compe-
tently. See id., 688–91. Without any evidence to establish
that Sherman’s efforts on behalf of the petitioner were
unreasonably deficient, the petitioner has not met his
burden of establishing that Sherman had failed to con-
duct a reasonable investigation.28
Moreover, because Sherman could not locate the wit-
nesses before the petitioner’s criminal trial, his decision
to use his cross-examination of Coleman as the means
to attack Coleman’s credibility was reasonable.
Because Coleman died before the criminal trial, Sher-
man would have known that any presentation of Cole-
man’s assertions to the jury would be through his prior
testimony from the probable cause hearing and would
include his cross-examination. Sherman’s cross-exami-
nation was strong and highlighted numerous, significant
admissions from Coleman that raised questions about
the truth of his claims and his credibility generally.
Under questioning by Sherman, Coleman admitted
that he changed his story about what the petitioner
had told him in several respects: that his memory was
questionable and might have been affected by drug use;
that he had been under the influence of heroin at a prior
hearing and suffering from withdrawal at the probable
cause hearing; that he did not tell anyone about the
petitioner’s confession until after seeing a television
show about the case decades later; that his first call to
report the confession was to a television network and
not to the police; that he could not be sure that what
he saw on television had not influenced his memory;
that he had asked the state for special treatment with
pending criminal cases and for money in connection
with his testimony; and that he was a convicted felon
who had served time in prison. Coleman’s admissions
during cross-examination permitted Sherman to persua-
sively argue that Coleman was not a credible witness,
that his story could not be trusted, and that he might
have invented his claims after hearing about the case
on television as a means to obtain attention, profit, or
leniency with regard to pending criminal matters.
In addition, Sherman also would have known that,
because of Coleman’s death, his cross-examination
would be presented to the jury as it happened at the
probable cause hearing, without the state having any
additional opportunity to alter its examination of Cole-
man to blunt the impact of his admissions or to block
certain testimony through new objections to Sherman’s
questions. We also note that, unlike in other cases,
in which we have found ineffectiveness for failure to
present witnesses, Sherman’s inability to locate the
potential witnesses prior to trial did not prevent him
from challenging Coleman’s testimony. In cases in
which we have found ineffectiveness, counsel’s failure
to locate or call certain witnesses has been deemed
deficient when counsel’s failure left a petitioner without
the means to present certain defenses. For example,
in Bryant v. Commissioner of Correction, supra, 290
Conn. 508–509, 517–18, counsel’s failure to call certain
witnesses known to counsel deprived the petitioner in
that case of a ‘‘plausible’’ third-party culpability defense.
And, in Gaines v. Commissioner of Correction, supra,
306 Conn. 673–74, 685–87, the petitioner gave counsel
names of the only people he knew in the area where
the crime was committed, but counsel did not interview
them or present their testimony, and this failure
deprived the petitioner of an alibi defense at trial. In
the present case, by contrast, Sherman’s use of his
cross-examination, in light of his inability to locate
Simpson, James, and Grubin, did not leave Coleman’s
testimony unimpeached—counsel had a strong means
to impeach Coleman though critical admissions made
by Coleman himself.
On the basis of the evidence in the habeas record, the
petitioner has failed to prove that Sherman’s inability to
locate the potential witnesses was the result of profes-
sional incompetence and thus has not shown that his
performance under the circumstances was unreason-
able. We therefore disagree with the habeas court that
Sherman’s performance was constitutionally deficient
in this regard.
III
THE PETITIONER’S ALTERNATIVE GROUNDS
FOR AFFIRMING THE HABEAS
COURT’S JUDGMENT
We have determined that the habeas court incorrectly
concluded that Sherman’s representation was ineffec-
tive for the three reasons identified previously. Conse-
quently, we next must consider whether the habeas
court’s judgment may be affirmed on one of the alterna-
tive grounds urged by the petitioner. The petitioner
has offered seven alternative grounds, claiming that
Sherman rendered ineffective assistance for reasons in
addition to those that we have already discussed. He
has also claimed that he is entitled to habeas relief
because Sherman had a conflict of interest in represent-
ing him. We conclude that none of these alternative
grounds entitles the petitioner to habeas relief.
A
Alternative Grounds Relating to Third-Party
Culpability Defense
The first alternative ground offered by the petitioner
relates to his third-party culpability defense. The peti-
tioner claims that, even if Sherman was not constitu-
tionally required to implicate Thomas Skakel, Sherman
should have done a better job in implicating Littleton
and also should have implicated two other individuals.
We reject these arguments.
1
Sherman’s Handling of the Defense
Implicating Littleton
The petitioner claims that Sherman mishandled the
defense implicating Littleton. His claim is based on a
composite drawing created in the days after the murder
and used at trial. The petitioner argues that the drawing
depicts a person seen about one block away from the
crime scene around 10 p.m. on October 30, 1975, at or
around the time when the petitioner claims the murder
likely occurred. According to the petitioner, the person
depicted in the drawing resembles Littleton. Although
the drawing was referenced in police reports that Sher-
man reviewed before trial, he did not specifically ask the
state to produce it. The petitioner argues that Sherman
should have obtained a copy of the drawing from the
state before trial and used it to bolster his defense
implicating Littleton by arguing that Littleton was spot-
ted near the crime scene at about 10 p.m. that night,
contradicting Littleton’s claim that he was inside watch-
ing television at that time. Sherman’s failure to do so,
the petitioner contends, was constitutionally deficient
performance that prejudiced his defense.
The habeas court rejected the petitioner’s claim. It
determined that Sherman’s performance was deficient
but concluded that any deficiency did not cause any
prejudice to the petitioner. According to the habeas
court, the issue raised concerning the drawing was
‘‘somewhat of a nonstarter’’ because the drawing does
not depict the person seen later at 10 p.m. but depicts
someone seen earlier in the evening who had been
cleared by the police of any involvement in the murder.
Because the drawing was not of the person seen at 10
p.m., the habeas court concluded that it would be of
no help in determining whether Littleton was the person
seen walking in the area of the crime scene that night.
After reviewing the parties’ briefs and the portions
of the record pertaining to this claim, we agree with
the habeas court’s conclusion that the petitioner failed
to establish prejudice. The habeas court explained that
the police reports referencing the drawing strongly indi-
cated that it depicted a local resident who was not
involved in the victim’s murder. Sherman thus reason-
ably could have decided that expending additional
resources to track down the drawing would not be
worth the effort. Moreover, as the habeas court con-
cluded, even if Sherman’s performance was deficient
by virtue of his failure to obtain and use the drawing
at trial, we agree that the drawing would not have
helped the petitioner’s defense for the reasons
advanced by the habeas court. Because the petitioner
has failed to show any prejudice, his claim cannot suc-
ceed, and we need not also consider whether the habeas
court properly determined that Sherman performed
deficiently. See Strickland v. Washington, supra, 466
U.S. 697 (‘‘[T]here is no reason for a court deciding
an ineffective assistance claim . . . to address both
components of the inquiry if the [petitioner] makes an
insufficient showing on one. . . . If it is easier to dis-
pose of an ineffectiveness claim on the ground of lack
of sufficient prejudice . . . that course should be
followed.’’).
2
Sherman’s Failure To Investigate Additional
Third-Party Suspects
The petitioner also raised a claim that Sherman’s
performance was ineffective insofar as he failed to
investigate a tip received before trial that someone
named Gitano ‘‘Tony’’ Bryant might have known who
killed the victim. The information from Bryant also
formed the basis of a claim the petitioner made in his
new trial petition. See Skakel v. State, supra, 295 Conn.
465. The facts concerning Bryant’s information are set
forth in detail in our decision in the petitioner’s appeal
from the denial of his motion for new trial. Id., 468–77.
For present purposes, it suffices to say that, after the
petitioner’s criminal trial, Bryant gave a statement to
the petitioner’s investigators in which he claimed to
have been in Greenwich the evening of October 30,
1975, and that two of his friends who were with him
that night later confessed to him that they were respon-
sible for the victim’s murder. See id., 472. The petitioner
claimed during the proceedings on his motion for a new
trial that Bryant’s story was newly discovered evidence,
not known to the defense before trial. Id., 465. The trial
court rejected the petitioner’s claims based on Bryant’s
story; see id., 473–77; and we affirmed. Id., 522.
At the habeas trial, the petitioner contradicted his
earlier position, claiming instead that Bryant’s story
was not new information but was known to Sherman
before the petitioner’s criminal trial. Accord-ing to testi-
mony presented for the first time at the habeas trial,
one of the victim’s childhood friends, Marjorie Walker
Hauer, called Sherman in the weeks before the criminal
trial and alerted him to something she had heard from
her brother, who was a friend of Bryant’s. Hauer
explained that her brother had told her that Bryant
claimed to have been in Greenwich on the evening of
October 30, 1975, with two friends, and that his friends
admitted to Bryant that they killed the victim. Hauer
testified that Sherman responded that he was aware of
the story and that it was not credible, although Sherman
could not recall this conversation when he testified at
the habeas trial.
The habeas court credited Hauer’s testimony and
found that Sherman knew of the tip and performed
deficiently when he failed to investigate it. Neverthe-
less, the habeas court concluded that Sherman’s lapse
did not prejudice the petitioner because, even if he had
investigated, his efforts would not have provided any
benefit to the defense. The court first explained that
Sherman might not have been able to obtain any useful
information from Bryant before the petitioner’s criminal
trial, noting that Bryant had later refused to repeat his
story when placed under oath. The habeas court next
concluded that, even if Bryant had given Sherman some
information before trial, it likely would not have been
enough to assert a third-party culpability claim against
the two individuals whom Bryant named because the
petitioner failed to prove that Sherman would have
had enough evidence to directly connect those two
individuals to the murder. Finally, the habeas court also
concluded that, even if a jury heard Bryant’s claims, it
was unlikely to give them any credit. Bryant’s claims
were not meaningfully corroborated by other evidence
and were, in fact, inconsistent with other evidence.
Bryant also had a reputation for deceit.
Assuming without deciding that the habeas court cor-
rectly concluded that Sherman’s representation was
deficient, we agree with the habeas court that the peti-
tioner failed to prove prejudice for the reasons given
by that court. In addition to those reasons, we also
observe that Bryant’s statement to the petitioner’s
investigators likely would not have been admissible at
trial, let alone sufficient to form the basis for a third-
party culpability claim. See Skakel v. State, supra, 295
Conn. 523–24 (Zarella, J., concurring) (explaining why
Bryant’s out-of-court statements were inadmissible
hearsay). We therefore agree with the habeas court’s
conclusion that, even if Sherman had pursued the tip
he received, ‘‘it likely would not have been helpful to
the petitioner.’’ Because the petitioner has failed to
show any prejudice from this alleged lapse, we reject
this alternative ground for affirmance.
B
Sherman’s Handling of the Evidence About Why
the Petitioner Was Placed at Elan
For his next alternative ground for affirmance, the
petitioner claims that Sherman’s representation was
ineffective insofar as he failed to rebut the state’s argu-
ment that the petitioner’s family sent him to Elan
because they thought he might be responsible for the
victim’s murder and thus wanted to keep him out of
the Greenwich area and away from investigators. The
petitioner claims that he was sent to Elan, not because
of anything to do with the murder, but because of his
poor grades in school and because he was charged with
driving under the influence in New York. The petitioner
argues that Sherman should have objected to the admis-
sion of evidence about why he was sent to Elan or,
alternatively, presented evidence showing that he was
sent to Elan for reasons entirely unrelated to the vic-
tim’s murder. He argues that Sherman’s failure to do
either was unreasonable and prejudicial. We disagree.
The petitioner enrolled at Elan in 1978, about three
years after the murder, when the petitioner was about
seventeen or eighteen years old. It was at Elan that the
petitioner purportedly made a number of inculpatory
statements about the victim’s murder, including his
statement to Coleman that he had drove the victim’s
skull in with a golf club because she had spurned his
advances.
At the petitioner’s criminal trial, the state presented
evidence about why the petitioner had been sent to
Elan. The state first asked the petitioner’s father, Rush-
ton Skakel, Sr., about his placement there. Sherman
objected to the state’s question on the ground that it
sought irrelevant information and inadmissible miscon-
duct evidence, but the trial court overruled the objec-
tion. Nevertheless, Rushton Skakel, Sr., who was
apparently suffering from dementia at the time of trial,
could not remember the reason. The state later pre-
sented evidence from other Elan residents who claimed
that the petitioner told them why he was sent to Elan.
One witness, Rogers, testified that, while at Elan, the
petitioner told her that his family might have placed
him there because they were afraid he committed a
murder in Greenwich and were trying to hide him from
the local police. Another witness, Coleman, who had
testified that the petitioner confessed to killing a girl
with a golf club, also testified that the petitioner had
told him that he was sent to Elan because of the murder.
For his part, Sherman elicited testimony from the
petitioner’s sister, Julie Skakel, that the petitioner was
enrolled at Elan because of problems he had in other
schools that he attended. She explained that the peti-
tioner had been diagnosed with dyslexia, had trouble
listening in school, and that his inability to pay attention
was perceived as a behavioral problem. She further
testified that the petitioner had a ‘‘turbulent’’ relation-
ship with their father at the time, and was abusing
alcohol and illegal drugs, and had been dismissed from
several other schools before going to Elan.
In its closing argument, the state acknowledged that
the petitioner’s behavior and substance abuse problems
might have contributed to his enrollment at Elan, but
the state also offered an additional reason. It argued that
the petitioner’s own statements to Rogers and Coleman
established that he might have been sent there in part
because of his role in the murder, providing additional
evidence of his guilt.
The petitioner claims that Sherman’s representation
was ineffective in that he failed to defend against the
state’s evidence on this issue. The petitioner first argues
that Sherman should have objected to the state’s offer-
ing of evidence about why the petitioner was sent to
Elan. He also argues that, in the absence of any such
objection, Sherman should have presented information
contained in a Greenwich police report indicating that
the petitioner was sent to the school after being charged
with driving under the influence (DUI) in New York.
The report was based on information received from
the Windham, New York police, and explained that the
petitioner ‘‘was driving on a local road, at which time
he was signaled by a standing police officer investigat-
ing an accident to stop, at which time [the petitioner]
attempted to run down the police officer, fled the scene,
was chased and eventually hit a telephone pole.’’ After
appearing in court, the petitioner pleaded guilty to
motor vehicle charges and, ‘‘later that afternoon, [an
airplane] arrived at the local airport, and [the petitioner]
was handcuffed and taken by two attendants and a
[physician] to [Elan] in Maine.’’ The petitioner claims
that Sherman should have used the information in this
report to argue that the petitioner was sent to Elan
solely because of his school problems and his DUI
charge, and not because of any alleged involvement in
the murder.
The habeas court determined that Sherman’s failure
to object to or to use the police reports constituted
deficient performance but concluded that Sherman’s
deficient performance did not prejudice the petitioner
because the reasons for the petitioner’s placement at
Elan were, at best, tangential to the question of the
petitioner’s guilt.29
We conclude, contrary to the habeas court, that the
petitioner failed to prove that Sherman’s performance
was deficient. First, Sherman did object when the state
sought testimony on this subject, but the objection was
overruled. And it was after this objection was overruled
that the state elicited testimony from the Elan witnesses
about the petitioner’s own statements concerning the
reasons he was sent to Elan. Second, as to Sherman’s
failure to present evidence about the petitioner’s DUI
charge, Sherman reasonably could have concluded that
opening the door to the circumstances surrounding that
charge would not be worth the risks. We do not know
precisely why Sherman chose not to present evidence
concerning the DUI charge because the petitioner’s
habeas counsel did not directly ask Sherman about it
at the habeas trial.30 Counsel did ask him why he chose
not to put on other witnesses, including the Skakel
family attorney, who might have explained the reasons
that the petitioner was sent to Elan. Sherman responded
that he was concerned about ‘‘opening doors’’ that
might allow the state to introduce otherwise inadmissi-
ble misconduct evidence, including evidence that the
petitioner suffered from psychiatric problems and had a
history of cruelty toward animals. Counsel in Sherman’s
position reasonably could have concluded that intro-
ducing information from the police report about the
DUI charge would present a similar risk. It likely would
have permitted the state to put the report into evidence
and to further inquire about its contents, thus putting
before the jury evidence that the petitioner had once
tried to run down a police officer with his vehicle.
Because Sherman was able to elicit testimony that the
petitioner’s performance and behavior in school led to
his enrollment at Elan, it would not be unreasonable for
defense counsel to avoid presenting additional evidence
on this topic that might invite the state to present other-
wise inadmissible and potentially prejudicial miscon-
duct evidence. We therefore conclude that the peti-
tioner failed to prove deficient performance and do not
address whether the habeas court correctly determined
that the petitioner did not suffer prejudice from Sher-
man’s failure to present evidence concerning the peti-
tioner’s DUI charge.
C
Sherman’s Failure To Use Expert Testimony Regarding
the Coercive Environment at Elan
The petitioner next claims that Sherman unreason-
ably failed to present expert testimony to explain how
the coercive environment at Elan rendered any state-
ments to other residents about his involvement in the
murder unreliable. Testimony adduced at the petition-
er’s criminal trial established that, after the petitioner
tried to escape from Elan, he was subjected to a ‘‘general
meeting’’ before the other residents at which the facility
director confronted the petitioner about the murder
and at which other residents were allowed to scream
and curse at him. This meeting lasted several hours.
The petitioner was later placed in a boxing ring, pum-
meled by other residents, and paddled by the director
while being asked about the murder in front of other
residents. The petitioner initially denied involvement
in the victim’s murder, but, after being subjected to
repeated verbal and physical attacks, the petitioner
cried and responded that he could not remember what
had happened or that he might have been involved but
did not remember, at which time the attacks would
cease. As we noted previously, in addition to these
statements made in a group setting, the petitioner also
privately made inculpatory statements to certain other
residents, including two separate admissions that he
had killed the victim.
According to the petitioner, Sherman should have
called an expert witness to explain to the jury that
the psychological pressure and physical punishment
imposed by the Elan staff forced the petitioner to adopt
a compromise strategy, whereby he gave up denying
involvement and instead claimed to have no memory
of the murder, as a means to stop his adverse treatment
by Elan staff and other residents. The petitioner also
argues that Sherman should have presented expert testi-
mony to cast doubt on the reliability of the testimony
from Elan residents who claimed that the petitioner
admitted his involvement in the murder.
To support his claim, the petitioner presented testi-
mony from an expert at the habeas trial, Richard Ofshe,
a psychologist, who testified that the coercive treatment
at Elan likely forced the petitioner to stop denying
involvement in the murder when he was confronted
about it in group sessions as a means to avoid further
punishment. Ofshe acknowledged, however, that his
theory about the effect of Elan’s coercive methods on
the truthfulness of the petitioner’s statements in group
settings could not explain why he voluntarily made
explicit confessions to other residents, like Coleman,
in private settings.
The habeas court concluded that Sherman’s represen-
tation was deficient insofar as he failed to present
expert testimony on these topics but found that the
petitioner was not prejudiced by Sherman’s omissions.
The habeas court determined that Ofshe’s testimony
might have helped explain why the petitioner claimed
a lack of memory about the victim’s murder in group
settings but that his testimony would not have meaning-
fully assisted the jury in assessing the reliability of the
testimony concerning the petitioner’s inculpatory state-
ments made in private settings.
After considering the arguments of the parties and
reviewing the relevant portions of the record, we agree,
on the basis of the reasons given by the habeas court,
with its determination that any expert testimony about
the coercive nature of Elan’s treatment of the petitioner
would not have meaningfully assisted the petitioner’s
defense at trial. Certainly, there are situations in which
expert testimony might be required to present a consti-
tutionally adequate defense; see, e.g., Michael T. v.
Commissioner of Correction, supra, 307 Conn. 100–101;
but this case is not one of them. Expert testimony on
this subject would have been of little additional value
because there already was sufficient evidence before
the jury about Elan’s coercive methods. The jury was
given firsthand accounts from other residents about the
severe and even violent manner in which Elan’s director
and other residents treated the petitioner when con-
fronted about the murder. Even the state readily con-
ceded in its closing argument at the petitioner’s criminal
trial that Elan had a ‘‘concentration camp type atmo-
sphere’’ that was ‘‘equivalent to the lower circles of
hell.’’ Expert testimony is not necessary to explain to
a jury the commonsense notion that a person being
accused of committing murder while being subjected
to psychological and physical abuse might stop denying
involvement in the crime and feign ignorance solely as
a means to stop the abuse.
In addition, the importance of the evidence concern-
ing the petitioner’s statements during group sessions
was limited, at best. During those sessions, the peti-
tioner, while being psychologically and physically
abused, did not confess to the murder but said only
that he could not remember what had happened. Even
the state acknowledged during closing argument that
‘‘it is perfectly clear [that] the [petitioner] admitted
nothing in that awful general meeting.’’ The more
important evidence against the petitioner was the testi-
mony that he had privately confessed to other residents.
And we agree with the habeas court’s conclusion that
Ofshe’s testimony ‘‘would not have been of particular
use’’ in attacking the credibility of other Elan residents,
including Coleman, who testified that the petitioner had
made inculpatory statements to them in private settings
rather than in coercive group settings. Indeed, hearing
from an expert that the petitioner’s private admissions
were not consistent with the expert’s coercion theory
might have hurt the petitioner’s defense. We therefore
conclude that the habeas court correctly determined
that the petitioner failed to prove prejudice, and we do
not consider whether Sherman’s performance in this
regard was deficient.
D
Sherman’s Performance During Jury Selection
The petitioner argues that Sherman also rendered
ineffective assistance by not challenging a potentially
biased juror who served on the jury at the petitioner’s
criminal trial. The petitioner claims that Sherman
should have challenged the selection of a certain juror,
referred to as B.W.,31 because (1) he was a police officer,
(2) he knew one of the detectives who originally investi-
gated the victim’s murder, namely, James Lunney, (3)
he thought that the testimony of Lee, who testified
for the state, would carry ‘‘some weight’’ based on his
reputation, and (4) Sherman had once cross-examined
B.W.’s wife in a previous case and had successfully
obtained accelerated rehabilitation for a client accused
of assaulting B.W. over B.W.’s objection. In support of
his claim, the petitioner’s habeas counsel submitted
B.W.’s answers to questions during jury selection and
questioned Sherman about his decision not to challenge
B.W., but did not call B.W. as a witness during the
habeas trial.
The habeas court determined that Sherman’s repre-
sentation was deficient insofar as he did not challenge
B.W. for cause or, if that failed, for not using a preemp-
tory challenge, because no reasonably competent
defense attorney would have accepted B.W. as a juror.
Nevertheless, the habeas court concluded that the peti-
tioner failed to prove that he was prejudiced thereby.
According to the habeas court, B.W.’s responses to
Sherman’s questions during jury selection indicated that
his profession, familiarity with one of the state’s wit-
nesses, knowledge of Lee’s reputation, and past encoun-
ters with Sherman would not impact his impartiality
or prevent him from considering the testimony of all
witnesses in the same, impartial manner.
We disagree with the habeas court’s determination
that Sherman’s failure to challenge B.W. as a juror was
constitutionally deficient. Counsel’s choice in selecting
jurors is a strategic decision entitled to great deference
under Strickland. See, e.g., Beverly v. Commissioner
of Correction, 101 Conn. App. 248, 252, 922 A.2d 178,
cert. denied, 283 Conn. 907, 927 A.2d 916 (2007). Choos-
ing a jury is as much an art as it is a science, and it
requires counsel to rely on intuition in addition to the
substance of the potential juror’s answers to questions.
See, e.g., Lugo v. LaValley, 601 Fed. Appx. 46, 49 (2d
Cir.) (jury selection necessarily depends on counsel’s
‘‘assessment of juror demeanor and credibility’’), cert.
denied, U.S. , 136 S. Ct. 110, 193 L. Ed. 2d 89(2015); see also Strickland v. Washington, supra, 466
U.S. 693 (characterizing criminal defense as ‘‘an art’’).
Counsel is in a better position than a reviewing court
to assess potential juror bias because, unlike the court,
counsel was present at voir dire and able to gauge the
juror’s demeanor and sincerity in his responses. We
therefore strongly presume that Sherman’s decision not
to challenge B.W. was reasonable.
The petitioner has not overcome this presumption.
Just as any competent defense counsel would do, Sher-
man questioned B.W. at length about potential indica-
tors of bias. Although there were certainly aspects of
B.W.’s answers that might lead some defense attorneys
to assert a challenge, his answers to Sherman’s ques-
tions provided a valid basis for Sherman to conclude
that B.W. would nevertheless judge the case impartially.
When Sherman asked about whether B.W.’s profes-
sion as a police officer would impact his judgment, B.W.
responded that he would be fair and consider all the
evidence. He acknowledged that some defense attor-
neys might be hesitant to select a police officer but
explained that his experience in law enforcement had
taught him that there are ‘‘always two sides to a story’’
and that, when responding to a report of a crime, one
must listen to ‘‘both sides . . . .’’ He also stated that
he understood that both the state and defendants make
mistakes. Moreover, he explained that he would find
the petitioner not guilty if the state did not prove the
petitioner’s guilt beyond a reasonable doubt and was
not troubled about what his fellow officers might think
if he voted not guilty because he would explain to them,
‘‘you weren’t in the courtroom, you didn’t hear all the
evidence . . . .’’
With repsect to his familiarity with Detective Lunney,
B.W. stated that he had known Lunney for about five
years and that they met because they were members
of the same motorcycle club. According to B.W., Lunney
never discussed the investigation or any of the evidence
in the case with him. B.W. represented that he would
evaluate Lunney’s testimony just as any other witness’
testimony and denied that knowing Lunney would
impact his decision.
Likewise, with Lee, although B.W. thought his reputa-
tion ‘‘carries some weight,’’ he agreed that he would
evaluate Lee’s testimony based on its content rather
than on Lee’s reputation. He had never dealt with Lee
in connection with a case but might have seen him give
a lecture once. He agreed that the state’s decision to
call Lee as a witness did not alone indicate that its case
was a strong one. In fact, B.W. explained that he could
not remember which side Lee was testifying for until
Sherman indicated that Lee was testifying for the state.
Finally, with respect to B.W.’s prior encounters with
Sherman, B.W. acknowledged that he had known Sher-
man for about ten or eleven years, ever since Sherman
represented a client charged with assaulting B.W. He
recalled that Sherman helped his client get accelerated
rehabilitation; B.W. acknowledged, however, that he
had no bad feelings toward Sherman as a result of
the case. B.W. also recalled that Sherman had cross-
examined his wife and that she had been nervous about
possibly being ‘‘intimated’’ or ‘‘grilled’’ because Sher-
man was a good attorney. B.W. explained, however,
that his wife was neither intimidated nor upset with
Sherman’s cross-examination of her. In sum, B.W. testi-
fied to having no misgivings about serving as a juror
in the case, and he represented that he would fairly
consider the evidence presented by both sides and
would vote to acquit if the state failed to prove its case
beyond a reasonable doubt.
Sherman’s performance was not objectively unrea-
sonable by virtue of his failure to challenge B.W. as a
juror. Sherman questioned B.W. about potential
grounds for bias, and B.W.’s candid responses indicated
a thoughtful understanding of the role of a juror and the
importance of impartially considering all the evidence
presented in court before returning a verdict. Sherman
was familiar with B.W. and had an opportunity to
observe his demeanor in court. Certainly, some defense
attorneys would have challenged B.W. as a juror, but
we do not think that Sherman was constitutionally
required to do so. Even the habeas court acknowledged
that B.W.’s answers indicated a lack of any actual bias.
Although it relied on that conclusion to determine that
the petitioner failed to prove any prejudice, we think
this conclusion also demonstrates that Sherman’s deci-
sion not to challenge B.W. as a juror was not without
a reasonable basis. Simply put, counsel’s performance
should not be deemed constitutionally deficient when
he accepted a juror he reasonably believed would be
unbiased. See, e.g., Beverly v. Commissioner of Correc-
tion, supra, 101 Conn. App. 252 (refusing to ‘‘second-
guess’’ counsel’s professional judgment to accept jurors
on basis of their answers to questions about potential
bias); see also Lugo v. LaValley, supra, 601 Fed. Appx.
49 (when no juror bias is shown, court is not precluded
from recognizing counsel’s acceptance of juror as rea-
sonable, strategic decision).
In any event, it is clear that the petitioner also cannot
prevail on this alternative ground because he has pre-
sented no evidence of prejudice. The petitioner argues
that he has shown prejudice because Sherman’s failure
to challenge led to the seating of a biased juror. We
disagree. Juror bias may be actual or conclusively pre-
sumed. See, e.g., State v. Kokoszka, 123 Conn. 161, 164–
65, 193 A. 210 (1937). The petitioner has presented no
evidence to prove any actual bias; the record is in fact
to the contrary. The petitioner argues that we may pre-
sume that B.W. was biased given his answers to Sher-
man’s questions, but there is no basis in the record to
presume bias in this case. Bias will be presumed only
when the juror has a close relationship with one of the
parties, has an interest in the outcome of the case, had
conferred with one of the parties about the merits of
the case, or had formed an opinion about its merits.
See, e.g., id., 164; see also Lugo v. LaValley, supra, 601
Fed. Appx. 49–50 (in case alleging ineffective assistance
in jury selection, bias will be presumed only if juror is
related to party or was victim of alleged crime). The
petitioner has not proven any of these grounds for
applying a presumption of bias in the present case. He
therefore has failed to establish that Sherman’s decision
caused his defense any prejudice.
E
Sherman’s Closing Argument
The petitioner next argues that Sherman’s closing
argument was constitutionally deficient and prejudiced
his defense. The habeas court agreed that Sherman’s
closing argument was deficient, concluding that it was
‘‘disjointed, unfocused,’’ that Sherman did not respond
to certain aspects of the state’s case, and that Sherman
unreasonably made arguments that drew objections
from the state. The habeas court nevertheless con-
cluded that any deficiency in the closing argument did
not prejudice the petitioner because the trial court had
instructed the jury that it was obligated to focus on the
evidence when deciding guilt, and the habeas court
presumed that the jury followed the trial court’s instruc-
tions. We disagree that Sherman’s closing argument was
constitutionally deficient.
Courts must be highly deferential when reviewing
a claim that a closing argument was constitutionally
ineffective. ‘‘[C]ounsel has wide latitude in deciding
how best to represent a client, and deference to coun-
sel’s tactical decisions in his closing presentation is
particularly important because of the broad range of
legitimate defense strategy at that stage. Closing argu-
ments should sharpen and clarify the issues for resolu-
tion by the trier of fact . . . but which issues to
sharpen and how best to clarify them are questions with
many reasonable answers.’’ (Citation omitted; internal
quotation marks omitted.) Yarborough v. Gentry, supra,540 U.S. 5–6. ‘‘Even if some arguments would unques-
tionably have supported the defense, it does not follow
that counsel was incompetent for failing to include
them. Focusing on a small number of key points may
be more persuasive than a shotgun approach.’’ Id., 7.
We believe that the habeas court acknowledged but
ultimately failed to apply this deference in its analysis.
Our review of Sherman’s closing argument convinces
us that it did not fall outside of the broad range of
permissible arguments that counsel might make. Sher-
man was allotted ninety minutes of argument to cover
fifteen days of testimony and evidence. In addition,
because the state had given its closing statement imme-
diately before Sherman, he could not simply give a
scripted argument but needed to work in a rebuttal to
the state’s argument with no additional time to prepare
it. Despite these constraints, Sherman’s closing argu-
ment amply covered the evidence concerning the key
issues in the case.
Sherman began his argument by summarizing the
essence of the defense, emphasizing that the petitioner
did not commit the crime and had never confessed. He
attacked the state’s case as a desire for a conviction in
search of evidence rather than a search for the truth,
noting that the state had gone through a number of prior
suspects before settling on the petitioner. Sherman also
noted that the defense, in response to the state’s case,
had not tried to present a ‘‘boutique’’ defense using
‘‘high tech delivery’’ or ‘‘fancy theories.’’ He emphasized
that the state had not presented evidence to prove its
claim that that the petitioner was ‘‘disturbed’’ or to
demonstrate that he had become ‘‘a demonic killer one
night on Halloween.’’ He also contended that much of
the testimony presented by the state’s witnesses raised
more questions than answers.
Sherman then turned to a critique of the physical and
forensic evidence presented. He began by noting that
the state had not presented any forensic or physical
evidence to tie the petitioner to the murder. He
reminded the jury that Lee acknowledged that there
was no direct evidence to connect the petitioner to the
crime, even though the killer would have been in close
contact with the victim and likely would have been
covered in blood after the assault. Sherman also
recounted testimony demonstrating that the state was
still testing forensic evidence just days before the trial
began, and he argued that the state was apparently still
trying to determine who was responsible for the crime,
even though it already had put the petitioner on trial.
Sherman candidly added that, although he did not know
who committed the murder, the state’s continued last
minute forensic testing demonstrated that the state still
did not know either. He noted that, although there was
no physical evidence connecting the petitioner to the
crime, Lee had explained that two hairs were found
that potentially connected Littleton to the crime scene.
With respect to the golf club used in the attack, which
came from a set of golf clubs in the Skakel home, Sher-
man reminded the jury of testimony from one of the
investigators that it was reported that golf clubs were
often left outside all about the Skakel property. He
reminded the jury that one of the police investigators
admitted that the state’s physical evidence against the
petitioner was ‘‘zilch.’’ As an aside, he added that that
same investigator had once tried to obtain an arrest
warrant for Thomas Skakel for the murder.
Sherman next addressed the state’s argument that
the petitioner had a motive to murder the victim. He
attacked the state’s theory that the petitioner murdered
the victim after she rebuffed his romantic advances,
pointing out that entries in the victim’s diary and wit-
nesses who knew the petitioner and the victim at the
time established that the petitioner’s feelings for the
victim were that of an ordinary teenager, not a jealous
murderer. Sherman also criticized the state for pulling
its motive argument from theories pushed by a celebrity
book written about the case for money and by tab-
loid magazines.
Sherman next pivoted to Littleton. Sherman acknowl-
edged he did not know whether Littleton had committed
the crime but used uncertain evidence about whether
Littleton had ever confessed to show that ‘‘a confession
ain’t always a confession’’ and that the evidence against
the petitioner was no better than that against Littleton.
He recounted evidence that the state had spent signifi-
cant time trying to pin the crime on Littleton and argued
that the state’s attempts to secure a confession from
Littleton laid bare the lengths to which the state would
go to ‘‘get somebody to say, ‘I did it.’ ’’ He also compared
Littleton’s uncertain confession to those that the peti-
tioner supposedly made, arguing that Littleton’s alleged
confessions were no ‘‘less compelling’’ and no ‘‘less
persuasive’’ than the ‘‘garbage’’ presented against the
petitioner from Coleman and other witnesses who
claimed the petitioner had made incriminating state-
ments. Sherman then reminded the jury that Littleton
himself admitted on the stand that he had told his for-
mer wife that he stabbed the victim in the neck.
Sherman then attacked the state’s evidence with
respect to the time of death. He criticized the state’s
experts for being unable to pin down a more narrow
time frame for the victim’s death and reviewed testi-
mony from a number of witnesses, including the vic-
tim’s mother, that there was a commotion and incessant
barking by dogs sometime between 9:30 and 10 p.m.
on October 30, 1975. He recalled testimony from the
victim’s mother that, around that time, she also thought
she may have heard the victim’s voice. To bolster the
testimony from these witnesses, Sherman recounted
the testimony of a medical examiner, who originally
worked in connection with the state’s investigation of
the case and testified that the murder likely occurred
about 10 p.m.
Tying the defense theory of the time of death to the
petitioner’s alibi, Sherman next reviewed the testimony
establishing that the petitioner had gone to the Terrien
home at about 9:30 p.m. and did not return until around
11 p.m., placing him out of the neighborhood during the
time period he claimed that the murder had occurred.
Sherman gave the jury reasons to credit the petitioner’s
alibi witnesses and explained why witnesses who
thought that the petitioner had not gone to the Terrien
home were mistaken in their recollection.
Sherman turned to attacking the state’s theory that
the Skakel family and possibly its attorneys had tried
to cover up the petitioner’s involvement in the murder
and invent an alibi. The weekend following the murder,
Littleton had taken many of the Skakel siblings to the
family’s vacation home in New York. The state argued
that the purpose was to remove the petitioner from the
investigation and insinuated that, during that trip, the
Skakel family developed the petitioner’s alibi story. But
Sherman reminded the jury that Littleton testified that
he, rather than the Skakel family or its attorneys, had
brought up the idea of taking the Skakel siblings out
of town. He noted that police investigators initially had
concluded that the petitioner was among those who
went to the Terrien home. And Sherman also recounted
how some of the Skakel siblings had candidly testified
that they could not remember precisely who had gone
to the Terrien home, indicating that, if there was a
Skakel family conspiracy, it was ‘‘the worst run conspir-
acy [he had] ever seen.’’
Turning to the subject of the petitioner’s confessions,
Sherman went through each, detailing at length the
reasons that each was not credible. For example, he
noted that many of the witnesses had delayed decades
in reporting the confessions, that some of the details
they claimed the petitioner relayed to them were incon-
sistent with the evidence, that one witness recanted,
that one admitted his recollection was questionable,
and that many of them had questionable motives for
coming forward, including the potential of receiving
reward money. He recounted Coleman’s history of drug
use, including his drug use at the time he testified, as
well as his criminal history. And he reminded the jury
of the cruelty that the petitioner experienced at Elan
to demonstrate why anything the petitioner said while
he was there was wholly unreliable. Sherman also noted
that, despite the harsh treatment of the petitioner at
Elan, witnesses who were with the petitioner at Elan
testified that he had continually denied any involvement
in the murder.
On the subject of the petitioner’s statements about
his activities later on the night of October 30, 1975,
including his claim of masturbating in a tree, Sherman
rebutted the state’s argument that the petitioner had
changed his story about the tree in which he was sitting
in order to potentially explain the presence of any DNA
that might be found at the crime scene. He first
explained why the petitioner did not initially tell the
police about his activities during the initial investiga-
tion, indicating that the petitioner concealed his activi-
ties because he was afraid that his father would hear
about them. He also recounted testimony from wit-
nesses demonstrating that, once the petitioner revealed
his activities that night, he was consistent with his story
about which tree he was sitting in. Sherman explained
that the argument that the petitioner had changed his
story about which tree he was sitting in was based
entirely on an assumption made by a witness about
which tree the petitioner was referring to when he told
his story on one particular occasion.
Sherman concluded by reminding the jury that the
state had believed that other suspects committed the
murder and spent years trying to build cases against
them, and that the state finally settled on the petitioner,
despite having no physical evidence to tie the petitioner
to the crime. Sherman stressed that the state’s case
consisted solely of questionable claims that the peti-
tioner had confessed. He characterized the state’s evi-
dence as ‘‘not acceptable’’ for supporting a conviction
because there were simply ‘‘too many questions’’ still
surrounding the case. He cautioned the jurors that there
were few times they would ever make a decision as
consequential as deciding the petitioner’s guilt and that
they should not find the petitioner guilty on the basis
of such little reliable evidence.
Sherman might not have had time to review all of
the evidence presented in his closing argument, but he
succeeded in addressing the critical evidence support-
ing his defense and responded to the key arguments
raised by the state. The habeas court, in concluding that
Sherman’s argument was professionally incompetent,
acknowledged that counsel is afforded substantial def-
erence in formulating a closing argument given the
broad range of options counsel has for argument and
the constraints under which it is made, but we conclude
that the habeas court did not apply that deference in
its review of the petitioner’s claim.
The habeas court characterized Sherman’s closing
argument as ‘‘disjointed’’ and ‘‘unfocused,’’ but we do
not share that view. To the contrary, Sherman organized
his discussion of the evidence around the central topics
of the petitioner’s defense, focusing on his alibi, the
competing evidence against Littleton, and the lack of
credibility of the confession witnesses. Sherman also
addressed other aspects of the state’s case, including
its theory of a family cover-up and the petitioner’s
alleged motive.
The habeas court faulted Sherman for his ‘‘failure to
provide the jury a road map to an understanding of the
state’s burden of proof’’ and the concept of reasonable
doubt, but we disagree that Sherman was incompetent
in this regard. There is no requirement that defense
counsel explain these concepts during closing argu-
ment. And counsel might reasonably conclude that
doing so would be a poor use of limited argument time
considering that the court provides its own detailed
instructions about the concept of reasonable doubt to
the jury. See Yarborough v. Gentry, supra, 540 U.S. 10(‘‘[t]o be sure, [counsel] did not insist that the existence
of a reasonable doubt would require the jury to acquit—
but he could count on the judge’s charge to remind [the
jury] of that requirement’’ [emphasis omitted]). More-
over, before Sherman gave his closing argument, the
state had already acknowledged, in its initial closing
argument, its burden to prove all allegations in the infor-
mation beyond a reasonable doubt.
The habeas court also determined that Sherman’s
representation was ineffective insofar as he ‘‘fail[ed]
to explain the relevance of the third-party culpability
evidence [against Littleton] to the issue of reasonable
doubt,’’ but that assessment is belied by the record.
As we already explained, Sherman used the evidence
against Littleton to explain that the evidence against
the petitioner was no better. He also used it to discredit
the integrity of the state’s investigation by pointing out
the investigators’ role in attempting to extract a confes-
sion from Littleton. See footnote 9 of this opinion. He
argued that the state’s conduct vis-a`-vis Littleton dem-
onstrated that even the state could not be sure who
committed the crime, and he urged the jury that there
were simply too many questions outstanding to permit
a guilty verdict. As the United States Supreme Court
has observed, urging the jury that no one, not even the
state, could be sure about who killed the victim is ‘‘the
very essence of a [reasonable doubt] argument.’’ Yarb-
orough v. Gentry, supra, 540 U.S. 10.
The habeas court criticized Sherman for admitting
that he did not know whether Littleton murdered the
victim and for expressing some sympathy for Littleton,
but such a tactic hardly bespeaks incompetence. Given
the uncertainty surrounding Littleton’s confession,
counsel reasonably could have decided that blaming
and degrading Littleton might have caused the jury to
discredit the defense. Sherman did not act unreasonably
in deciding that the better course was to candidly
acknowledge the uncertainty surrounding Littleton’s
guilt and then to argue that the same uncertainty
clouded the evidence against the petitioner. See id.,10–11 (counsel was not ineffective for acknowledging
that he did not know truth about what occurred and
arguing that no one else could be sure either). By doing
so, he set up Littleton as a sympathetic victim of the
state’s desire to convict someone of the muder and then
attempted to portray his client as another of the state’s
failed suspects.
The habeas court also determined that Sherman had
failed to rebut the state’s argument that the petitioner
used his story about masturbating in a tree to possibly
explain the presence of DNA if it were ever found,
but, again, this is not supported by the record. As we
explained, Sherman confronted this claim directly by
arguing that the evidence on which the state relied
to demonstrate that he altered his story was in fact
nonexistent and based solely on unsupported
assumptions.
The habeas court next observed that Sherman did
not directly address the state’s argument that the peti-
tioner’s family sent him to Elan to remove him from
the police investigation. Although this determination is
supported by the record, we disagree that it amounts
to incompetence. Sherman can hardly be faulted for
not spending valuable argument time addressing an
issue that even the habeas court separately had con-
cluded was ‘‘tangential to the main issues in the case.’’
And Sherman indirectly addressed this throughout his
closing argument when he argued that the state’s theory
of a Skakel family cover-up, which involved the pur-
ported invention of an alibi and concealment of evi-
dence, simply was not supported by the testimony in
the case.
Finally, the habeas court faulted Sherman for making
improper comments during closing argument that
caused the trial court to caution the jury to disregard
the comments. For example, during his closing argu-
ment, the trial court twice interposed that the jury
should disregard certain remarks Sherman had made.
In addition, the state filed a motion after closing argu-
ments, asking for additional curative instructions,
which the trial court granted. According to the trial
court, Sherman had stated that he did not know who
murdered the victim, and the trial court instructed the
jury to disregard that remark because it represented
counsel’s personal opinion. The trial court also
instructed the jury to disregard Sherman’s remark that
the petitioner did not know who committed the murder
because the petitioner had not actually testified, but
the court further instructed the jury that it could draw
no adverse inference from the petitioner’s decision not
to testify. Finally, the state asserted that Sherman had
implied during his closing argument that the state
attempted to conceal evidence by raising objections
and failing to produce certain witnesses. The court
instructed the jury that it should rely on its own recollec-
tion about whether Sherman made those arguments,
and, to the extent he did, those arguments should not
be considered during deliberations.
We disagree with the habeas court that these com-
ments, which were made during a long and detailed
closing argument, amount to professional incompe-
tence. Although drawing objections of this type during
a closing argument might not get counsel an ‘‘A’’ for
trial advocacy, our task is not to ‘‘grade counsel’s perfor-
mance’’ but to determine whether counsel’s actions fell
below the acceptable range of professional perfor-
mance. Strickland v. Washington, supra, 466 U.S. 697.
Attorneys commonly ask questions and make com-
ments during a trial that draw objections from the
opposing party, and those objections are often sus-
tained and can lead to curative instructions. In our
view, Sherman’s comments, while legally objectionable,
demonstrated strong advocacy on Sherman’s part and
reflected mistakes that a reasonable attorney might
make, not ineffective assistance.
F
Sherman’s Failure To Attempt To Suppress an
Audio Recording of the Petitioner’s
Statements to His Ghost Writer
At the petitioner’s criminal trial, the state entered
into evidence an audio recording of the petitioner nar-
rating his activities on the night of October 30, 1975,
to his ghost writer, Richard Hoffman. Hoffman was
helping the petitioner write an autobiography, which
would include a chapter about the victim’s murder.
While the grand jury investigation was still pending, the
state learned of the arrangement between the petitioner
and Hoffman, including the intended chapter on the
murder. At the state’s request, the grand jury subpoe-
naed Hoffman to testify before the grand jury and to
bring with him any materials in his possession relating
to the petitioner’s autobiography project, including any
audio recordings. Detective Frank Garr went to Hoff-
man’s residence to serve him with the subpoena.
Although the subpoena only required Hoffman to
appear and bring materials with him to the grand jury
proceeding, Garr asked Hoffman to immediately turn
over the materials in his possession that were requested
in the subpoena. According to Hoffman, Garr told him
he could do it ‘‘the easy way’’ by handing over the
materials, or ‘‘the hard way,’’ apparently by forcing Garr
to get a warrant allowing Garr to seize them immedi-
ately. Hoffman testified at the habeas trial that, despite
Garr’s statement about the easy way or the hard way, he
thought his entire discussion with Garr was otherwise
amicable, and he turned over to Garr the materials,
including the audio recordings later used by the state.
Hoffman testified that he believed that he was required
to turn them over because of the subpoena.
The petitioner claimed in his habeas petition that
Sherman should have tried to have the audio recordings
suppressed because they were the product of an illegal
seizure. According to the petitioner, Hoffman and the
petitioner had signed an agreement making the
recordings the sole property of the petitioner and pre-
venting Hoffman from disclosing information relating to
the autobiography project. Thus, the petitioner claimed
that he had an expectation of privacy in the recordings,
which would have provided Sherman standing to chal-
lenge their illegal seizure by Garr. He also asserted that,
if Sherman had moved for suppression, the trial court
likely would have granted the motion, thereby pre-
venting the state from using the recordings as evidence
at the petitioner’s criminal trial. If the recordings had
been suppressed, the petitioner asserted, there is a rea-
sonable likelihood that the outcome of the trial would
have been different.
The habeas court agreed that Sherman should have
tried to suppress the recordings but concluded that
the petitioner had failed to prove prejudice. The court
determined that Garr’s seizure of the recordings was
unlawful because he had ‘‘intimidated and coerced Hoff-
man’’ into surrendering the recordings immediately.
The habeas court also concluded that, even though the
recordings were seized from Hoffman, the petitioner
would have had standing to challenge their seizure
because of the confidentiality and ownership agree-
ment giving the petitioner sole ownership of them. Nev-
ertheless, because the petitioner had not shown that
the recordings would, in fact, have been suppressed,
the habeas court found no prejudice. The habeas court
determined that neither the petitioner’s confidentiality
agreement nor Garr’s unlawful seizure would have pre-
vented the grand jury from obtaining the recordings
through its subpoena power, which would have led to
their discovery and use by the state.
We do not address whether Sherman’s representation
was deficient insofar as he did not seek to suppress
the recordings because we agree with the habeas court
that, even if Sherman had sought their supression, the
petitioner has not demonstrated that Sherman’s effort
would have succeeded, and, therefore, the petitioner
has failed to show prejudice.32 The petitioner, citing
the exclusionary rule, claims that Sherman would have
succeeded in suppressing the recordings because they
were illegally seized and, therefore, would have been
excluded from evidence. But, even if we accept the
habeas court’s determination that Garr’s seizure of the
recordings was unlawful, it is clear that a court would
not suppress them because they would inevitably have
been obtained by the grand jury pursuant to its sub-
poena power. The petitioner has not cited any authority
to show that unlawful police activity nullifies a preex-
isting grand jury subpoena; relevant authority is to the
contrary.33 See, e.g., United States v. Vilar, 729 F.3d 62,
85 (2d Cir. 2013) (government can use subpoena to
establish inevitable discovery exception to exclusion-
ary rule), cert. denied, U.S. , 134 S. Ct. 2684, 189
L. Ed. 2d 230 (2014). The petitioner has not demon-
strated that either he or Hoffman would have been able
to quash the subpoena. The grand jury subpoena was
issued before the allegedly unlawful police activity
occurred, and the recordings sought were relevant to
the grand jury’s investigation. Irrespective of Garr’s
actions, the subpoena required Hoffman to appear
before the grand jury and to turn over relevant materials
in his possession, including the recordings. And there
is no basis for concluding that the petitioner’s private
confidentiality and ownership agreement with Hoffman
could prevent the grand jury from obtaining the evi-
dence. Consequently, we agree with the habeas court
that the recordings would have been admitted into evi-
dence, even if Sherman had moved to suppress them.
The petitioner has failed to show that Sherman’s omis-
sion caused him any harm and, therefore, cannot satisfy
his burden of demonstrating prejudice.34
IV
CONFLICT OF INTEREST CLAIM
Finally, we address the petitioner’s separate claim
that he was denied his sixth amendment right to counsel
because his fee arrangement with Sherman presented
a conflict of interest that prevented Sherman from prop-
erly representing the petitioner. The habeas court
rejected this claim, and we agree with the habeas court’s
resolution of this claim.35
The habeas court found the following facts relevant
to this claim. The petitioner originally agreed to pay
Sherman an hourly rate for his services and to cover
all expenses incurred for the defense. Several years
after Sherman began representing the petitioner, and
about five months before trial, the petitioner and Sher-
man changed their billing agreement to a flat fee
arrangement. In entering into this arrangement, the peti-
tioner was represented by different counsel. Under the
arrangement, Sherman was paid a flat fee to cover all
outstanding amounts then owed to him and for his
future services. Sherman was required to pay for any
expenses incurred for the defense out of the flat fee
payment that he was to receive from the petitioner.
Sherman treated the funds as having been earned and
transferred them to his firm’s general operating
account. Unbeknownst to the petitioner at that time,
Sherman was behind in income tax payments to the
Internal Revenue Service (IRS). The habeas court deter-
mined that Sherman’s placement of the funds in the
firm account, instead of a client funds account, put the
funds at risk of being seized by the IRS, but the IRS
never seized the funds.
The habeas court determined that the flat fee
agreement and Sherman’s handling of the funds created
a ‘‘substantial risk’’ that Sherman would be burdened by
a conflict of interest. First, the habeas court determined
that the possibility that the IRS could seize the funds
might prevent Sherman from paying defense expenses.
Second, the habeas court determined that the up-front
payment to Sherman created an incentive for him to
minimize defense expenses, including expenses for
expert witnesses and investigations, so that he could
retain more of the funds to help pay his tax debt. Never-
theless, the habeas court determined that the petitioner
could not prevail on his conflict of interest claim
because he had not presented any evidence to demon-
strate that the potential conflicts had any adverse
impact on his defense.
After considering the briefs, the record, and the
habeas court’s decision, we conclude that the petition-
er’s claim must be rejected because, irrespective of
whether Sherman was burdened by a potential conflict
of interest, the habeas court correctly determined that
the petitioner presented no evidence to establish preju-
dice.36 To demonstrate that a conflict of interest denied
a petitioner the effective assistance of counsel, he must
show both that a potential conflict of interest existed
and that his defense was adversely impacted on the
basis of that conflict.37 We agree with the habeas court
that the record contains no evidence that either claimed
conflict caused the petitioner any harm. The IRS did
not seize the funds and thus did not prevent their use
for defense costs. And, although the petitioner claimed
that Sherman had an incentive to avoid incurring addi-
tional expenses so that he could keep a greater share
of the funds to pay his tax debt, the petitioner has
presented no evidence to show that Sherman diverted
funds for the defense to cover his tax debt, or that this
concern caused Sherman to otherwise alter his defense
strategy. Consequently, we agree with the habeas court
that the petitioner’s conflict of interest claim fails.
The judgment is reversed and the case is remanded
with direction to render judgment denying the
habeas petition.
In this opinion EVELEIGH, ESPINOSA and VERTE-
FEUILLE, Js., concurred.
* This appeal originally was argued before a panel of this court consisting
of Justices Palmer, Zarella, McDonald, Espinosa, Robinson and Vertefeuille.
Thereafter, Justice Eveleigh was added to the panel. Justice Eveleigh read
the briefs and appendices, and listened to a recording of oral argument
prior to participating in this decision.
* December 30, 2016, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The dissent reaches a contrary conclusion. Not comfortable relying on
the facts as presented during the habeas trial, or the law governing ineffective
assistance of counsel claims, the dissent attempts to distract the reader
from both by characterizing the majority’s analysis as ‘‘so blatantly one-
sided as to call into question the basic fairness and objectivity of [that]
analysis and [the majority’s] conclusion,’’ while at the same time misstating
the majority’s views. We will not rely on similar tactics.
2
The victim’s mother acknowledged that it was possible that the victim
came home for a little while at about 9:30 p.m. on October 30, 1975, and
then left again that night without her mother realizing that she had been in
the house, athough the victim’s mother could not recall whether the victim
had done that previously.
3
The petitioner’s mother was deceased at the time.
4
James Terrien also went by the name of James Dowdle. After being
adopted by his stepfather, George Terrien, he used his stepfather’s last name
during his youth. Thus, throughout the criminal trial, most witnesses who
had known him during that time referred to him as Jimmy Terrien, even
though he was using his birth name of Dowdle by the time of the criminal
trial and testified under the name of James Dowdle. We hereinafter refer
to him as James Terrien, as the habeas court did.
5
There was also evidence presented at the petitioner’s criminal trial that
one of the petitioner’s brothers, John Skakel, heard someone in the mudroom
of the Skakel home at about 11:30 p.m. on October 30, 1975. During their
investigation, police investigators found other golf clubs from the set to
which the murder weapon belonged in a barrel in the Skakel mudroom.
6
The attorneys with whom Sherman consulted included, among others,
F. Lee Bailey, William F. Dow III, Richard Emanuel, David S. Golub, David
T. Grudberg, and Barry Scheck.
7
Another one of the petitioner’s brothers, John Skakel, testified that he
had also gone to the Terrien home that night but that he could not recall many
details about the evening when he testified at the criminal trial, including who
exactly had gone to the Terrien home from the Skakel home. The court
admitted into evidence, as a record of past recollection, a statement that
John Skakel had given to the police in 1975, in which he explained that the
petitioner had also gone to the Terrien home.
8
The right to the effective assistance of counsel is also guaranteed by
article first, § 8, of the Connecticut constitution. This section provides the
same protection as the federal constitution, and the federal standard for
judging effective assistance claims applies to any such claims under the
state constitution. See, e.g., State v. Arroyo, 284 Conn. 597, 643, 935 A.2d
975 (2007).
9
The jury must have discredited evidence that Littleton might have con-
fessed. At the petitioner’s criminal trial, Littleton testified during cross-
examination by Sherman that Littleton had previously told his former wife,
Mary Baker, that he had stabbed the victim in the neck. The state, however,
presented evidence through Baker that Littleton had never actually con-
fessed to her that he committed the crime. She testified that she had been
cooperating with investigators and had told Littleton that he had confessed
to her during a drunken blackout in an attempt to elicit incriminating state-
ments from him while investigators recorded the conversation between
them.
The habeas court made no findings about whether Sherman was aware
before trial of Baker’s claim that she had made up Littleton’s admissions.
Notably, however, even Littleton did not know until after the petitioner’s
criminal trial had started that Baker apparently invented Littleton’s supposed
admissions or that his conversations with her were recorded.
10
We are hard-pressed to understand what the ‘‘plethora’’ of evidence was
in light of the habeas court’s concession that the evidence presented to
implicate Thomas Skakel would not have been admissible at the petitioner’s
criminal trial but would simply have provided ‘‘an investigative gateway’’
to possibly discovering admissible evidence. The admissible evidence that
Sherman supposedly could have found was not presented at the habeas trial.
11
Although the petitioner relied on this time of death during his criminal
trial, the state argued at the trial that the time of death could have been
later. Among other evidence, the state relied on testimony from the medical
examiner indicating that the time of death could have been as late as 5 a.m.
on October 31, 1975, and that a time of death of 1 a.m. would be just as
consistent with the medical evidence as a time of death at 10 p.m. on
October 30.
12
Of course, even if Sherman had evidence of these details, it is far from
certain that the trial court would have allowed Sherman to raise a third-
party defense, or that Sherman could be faulted for failing to pursue it,
given that there is no evidence that their encounter, if it occurred, was
anything but consensual. Cf. Mukhtaar v. Commissioner of Correction, 158
Conn. App. 431, 448–50, 119 A.3d 607 (2015).
13
Sherman testified at the habeas trial that Thomas Skakel mentioned
having sexual contact with the victim but that he did not provide any specific
details of the encounter, and Sherman could not recall any mention of the
time it allegedly took place. For example, Sherman testified that Thomas
Skakel had ‘‘basically repeated’’ the information in the Sutton Report during
their meeting, but, when Sherman was asked whether Thomas Skakel had
told Sherman ‘‘that [Thomas Skakel and the victim] engage[d] in sexual
conduct, as reflected in the Sutton Report,’’ Sherman answered, ‘‘I don’t
think he was as specific as [the Sutton Report], only that there was some
sexual conduct.’’ Even if we assume that Sherman’s memory is more accurate
than Throne’s, the most that Sherman or Throne could have testified to was
that Thomas Skakel admitted to having sexual contact with the victim on
October 30, 1975, but without any details about when, where, or how it
unfolded—details that, as we have mentioned, would have been necessary
to establish the tenuous link, which the habeas court observed, between
Thomas Skakel’s statements in the Sutton Report and the crime scene
evidence.
Nevertheless, Sherman’s testimony about his own memory of an event
that occurred eleven years beforehand cannot, itself, be used as proof of
what Throne would have known and recalled about that event, or what the
substance of Throne’s testimony concerning that event would have been if
Throne had been called as a witness at the petitioner’s criminal trial. The
petitioner does not argue that Sherman should have withdrawn from repre-
senting the petitioner one week before his criminal trial so that Sherman
could testify about his meeting with Thomas Skakel.
14
At the habeas trial, the petitioner’s habeas counsel asked Throne
whether Thomas Skakel had discussed his alleged sexual encounter with the
victim during Sherman and Throne’s meeting with Thomas Skakel. Throne
replied: ‘‘I don’t recall during that meeting talking about the, you know, the
[sexual] contact. I am aware, obviously, from other reports of what, you
know, had taken place, but I don’t recall as I sit here today actually discussing
that in detail when we were with [Thomas Skakel] at that time.’’ When asked
to clarify what other reports he was speaking of, Throne explained: ‘‘The
information—or I believe, you know, it was reported that—I think they
described it as mutual masturbation, so I believe we were aware of that
information, but I can’t recall . . . discussing that specifically with [Thomas
Skakel] at that time at that meeting.’’
Sherman testified at the habeas trial that Throne had taken notes during
their meeting with Thomas Skakel and that he believed that Throne may
still have had the notes, but no such notes were entered into evidence at
the habeas trial; nor did the petitioner’s habeas counsel ask Throne whether
he had taken notes during that meeting, whether he still had them, or whether
they might refresh his recollection.
15
The habeas court briefly surmised that one of the investigators for
Sutton Associates might have been able to testify about the details of Thomas
Skakel’s encounter with the victim on the basis of the interview between
Thomas Skakel and Sutton Associates, but this assumption is nothing more
than speculation.
Prior to trial, Sutton Associates invoked the attorney-client privilege and
attorney work product privilege, thereby declining to testify about the con-
tent of its communications with Thomas Skakel. Even if we assume that
Sherman could somehow have defeated a claim of privilege by Sutton Associ-
ates, the record is silent about the content of the testimony that a Sutton
Associates investigator might have provided. No one from Sutton Associates
testified about the content of Thomas Skakel’s communications with Sutton
Associates in any proceeding in this case.
Without additional evidence, we cannot assume that someone who inter-
viewed Thomas Skakel would have been available to testify at the petitioner’s
criminal trial and that they would have testified in pure conformity with
the alleged content of the Sutton Report. That report was not authenticated
by anyone from Sutton Associates and was apparently drafted several years
before the petitioner’s criminal trial. See, e.g., Johnson v. Commissioner
of Correction, 285 Conn. 556, 584, 941 A.2d 248 (2008) (‘‘[i]n a habeas corpus
proceeding, the petitioner’s burden of proving that a fundamental unfairness
had been done is not met by speculation . . . but by demonstrable realities’’
[internal quotation marks omitted]); see also Lewis v. Commissioner of
Correction, 89 Conn. App. 850, 860–61, 877 A.2d 11 (petitioner could not
establish content of missing witness’ testimony through seven year old
statement when witness did not testify at habeas trial and petitioner pre-
sented no evidence that witness would have testified at criminal trial), cert.
denied, 275 Conn. 905, 882 A.2d 672 (2005).
The dissent suggests that Sherman also could have called Emanuel Mar-
golis, Thomas Skakel’s attorney, who was also present at the meeting with
Thomas Skakel, Sherman, and Throne, to testify about what Thomas Skakel
had said during that meeting. This is entirely speculative. The petitioner did
not present any evidence of what Margolis might have testified to if he had
been called as a witness at the petitioner’s criminal trial—Margolis passed
away before the habeas trial—and the habeas court made no findings about
whether Margolis would have been available or willing to testify, or what
the substance of his testimony might have been. There is, therefore, no
basis in the record for concluding that Margolis could have testified about
the details of Thomas Skakel’s encounter with the victim if Margolis had
been called to testify at the petitioner’s criminal trial. See, e.g., Johnson v.
Commissioner of Correction, supra, 285 Conn. 584; Lewis v. Commissioner
of Correction, supra, 89 Conn. App. 860–61.
16
The habeas court itself also surmised that Sherman could have argued
that Thomas Skakel suffered from psychological problems and had a violent
temper, but, as the habeas court acknowledged, the petitioner did not present
any evidence to support these assertions at the habeas trial that would
have been admissible at the petitioner’s criminal trial. Any reliance on this
evidence would similarly be speculative. See, e.g., Lewis v. Commissioner
of Correction, 89 Conn. App. 850, 860–61, 877 A.2d 11, cert. denied, 275
Conn. 905, 882 A.2d 672 (2005).
17
Moreover, Littleton told the police during their investigation, and later
testified at the petitioner’s criminal trial, that he watched television with
Thomas Skakel on the night of October 30, 1975, beginning at about 10:15
p.m., within twenty to thirty minutes after the time the petitioner now
asserts that Thomas Skakel might have killed the victim. Littleton was clear,
however, that, when he saw Thomas Skakel at about 10:15 p.m., Thomas
Skakel was wearing the same clothes he had on earlier that evening, there
was nothing suspicious about him, and there was no blood on his clothing.
This information renders the petitioner’s claim implicating Thomas Skakel,
which rests on the assertion that he committed the murder between approxi-
mately 9:45 and 10 p.m. that night, all the more speculative.
18
The notion that the petitioner might have murdered the victim after
discovering that she had engaged in sexual activity with Thomas Skakel
had also been raised in the media after the Sutton Report was leaked to media
sources several years before the grand jury had convened to investigate the
murder.
For example, before the grand jury convened in 1998 to investigate the
victim’s murder, retired Los Angeles Police Detective Mark Fuhrman pub-
lished a book about the crime and implicated the petitioner. Sherman testi-
fied at the habeas trial that he had read this book before the petitioner’s
criminal trial.
In the book, Fuhrman argues that the petitioner most likely killed the
victim after discovering a sexual encounter between the victim and Thomas
Skakel. M. Furhman, Murder in Greenwich (1998) pp. 197, 215. In support,
the book includes the following quote, which it attributes to the Sutton
Report: ‘‘We have found considerable evidence to show [that the petitioner]
had been involved in a relationship with [the victim]. According to one
source, [the petitioner] and [Thomas Skakel] even fought over her. Along
the blurry lines of teenage romance, [the petitioner] was even known to be
[the victim’s] boyfriend for some time. Coupled with our extensive knowl-
edge of just how vehemently they fought with each other, this information
suggests [that the petitioner] had more than ample reason to [be] extremely
upset when [Thomas Skakel] was carrying on with [the victim] by the side
of the house just before 9:30 p.m.’’ (Internal quotation marks omitted.) Id.,
p. 215. The book further quotes the Sutton Report as stating: ‘‘We know
practically nothing of how [the petitioner] reacted to all this, and it is a
glaring omission. For certainly, he had a reaction, and it may have been
extreme.’’ (Internal quotation marks omitted.) Id., p. 216.
19
The petitioner argues that the testimony concerning his self-incriminat-
ing statements lacked credibility. Given the jury’s verdict, however, the jury
likely found them credible. Providing the jury with additional evidence
corroborating these statements would have further bolstered their credibility
to the jury.
20
The state had argued at the petitioner’s criminal trial, and the trial court
instructed the jury, that it could find the petitioner guilty of the murder,
even if it found that he went to the Terrien home, if it credited the state’s
evidence concerning the time of death rather than the defendant’s.
21
In addition to attempting to identify witnesses who were with the peti-
tioner at the Terrien home, Sherman also identified and ultimately presented
evidence at the criminal trial aimed at showing that the victim was murdered
when the petitioner was allegedly at the Terrien home. That evidence
included expert testimony from a forensic pathologist and testimony from
witnesses who heard dogs barking and voices in the neighborhood sometime
between 9:30 and 10 p.m. on October 30, 1975. See, e.g., State v. Skakel,
supra, 276 Conn. 643 n.7; id., 652 n.14.
22
The petitioner testified at the habeas trial that he gave Sherman the
names of two persons, Ossorio and Ian Kean, who purportedly were boy-
friends of Dowdle and could verify the petitioner’s presence at the Terrien
residence on the night of the murder, but the habeas court rejected this
testimony when it referred in its memorandum of decision to the ‘‘failure
of the petitioner to bring [Ossorio] to . . . Sherman’s attention.’’ The habeas
court thus appears to have believed Sherman’s testimony that he had asked
the petitioner ‘‘[o]n many occasions’’ who else was at the Terrien house
watching television and that he did not recall the petitioner ever telling him
that Ossorio was there. The petitioner has not challenged the habeas court’s
conclusion as clearly erroneous on appeal. In addition, the petitioner did
not call Terrien, Rushton Skakel, Jr., or John Skakel to testify at the habeas
trial about whether they had recalled whether Ossorio was at the Terrien
home, or whether they had ever had told Sherman that Ossorio might have
been there that night.
23
Sherman’s associate, Throne, also testified at the habeas trial that neither
the petitioner nor anyone else who claimed to have been with the petitioner
at the Terrien house that night had mentioned the presence of Ossorio or
any other nonfamily member at the Terrien home.
24
The record indicates that the Terrien home was ‘‘a large estate’’ and
that the library of the home was ‘‘in another section of the house’’ from
where Terrien was watching television that night.
25
The petitioner argues generally in an introductory section of his brief
that counsel has a duty to investigate. He also argues that counsel’s duty
to investigate is not governed solely by the information provided by a client
because counsel has an independent duty to explore potential defenses and
favorable witnesses. In this regard, the petitioner cites Rompilla v. Beard,
545 U.S. 374, 377, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005), for the proposition
that ‘‘the United States Supreme Court firmly and explicitly established . . .
that [an] attorney must go beyond what his client advises him in order to
comply with the requirements of effective representation guaranteed by the
sixth amendment.’’ Rompilla, however, was not a case involving counsel’s
failure to investigate an alibi witness or, for that matter, any type of witness,
and, thus, is not applicable in the present context. In Rompilla, the petition-
er’s attorneys made limited efforts to obtain additional mitigation evidence
concerning the petitioner’s childhood after he advised them that his child-
hood was ‘‘unexceptional . . . .’’ Id., 379. Evidence in the habeas proceed-
ing, however, established that, if the petitioner’s counsel had reviewed a
file in the prosecution’s possession concerning a prior conviction, which
the prosecution intended to use to establish an aggravating factor, counsel
would have uncovered leads that would have led to substantial evidence
that the petitioner had a terrible childhood, which could have been presented
as mitigation evidence. See id., 383–84. The court in Rompilla thus deter-
mined that counsel was ineffective because, ‘‘once counsel had an obligation
to examine the file, counsel had to make reasonable efforts to learn its
contents; and once having done so, [counsel] could not reasonably have
ignored mitigation evidence or red flags simply because they were unex-
pected.’’ Id., 391 n.8. Accordingly, Rompilla stands for the proposition that
counsel has a duty to review information he knows the prosecution has
and intends to introduce at trial, and that case is not directly applicable to
counsel’s duty to investigate potential alibi witnesses. See id., 377; see also
Hannon v. Secretary, Dept. of Corrections, 562 F.3d 1146, 1155 (11th Cir.)
(‘‘Rompilla requires ‘reasonable efforts to obtain and review material coun-
sel knows the prosecution will probably rely on as evidence’ ’’), cert. denied
sub nom. Hannon v. McNeil, 558 U.S. 997, 130 S. Ct. 504, 175 L. Ed. 2d
358 (2009).
26
The club used in the murder was not a driver.
27
Sherman’s investigator testified at the habeas trial that he had been told
by the investigator who found the witnesses after trial that it was one of
the most difficult assignments he had ever conducted. One of the witnesses
was out of the country during the relevant time period and another had the
same name as thousands of individuals.
28
In its memorandum of decision, the habeas court appears to have pre-
sumed that Sherman did not make any effort to pursue the witnesses that
Coleman named, but that presumption is unsupported by the record at the
habeas trial; the evidence is in fact to the contrary. The only evidence in
the habeas record relating to whether Sherman pursued these witnesses
indicates that he did make efforts to look for them, although we do not
know what those efforts were. Even if the habeas court had discredited
this testimony, it was not at liberty to reach an opposite finding without
some evidence from the petitioner to show that Sherman had, in fact, decided
not to look for them. See State v. Hart, 221 Conn. 595, 605, 605 A.2d 1366(1992) (‘‘[w]e have consistently stated . . . that [a fact finder] may not
infer the opposite of a witness’ testimony solely from its disbelief of that
testimony’’). Thus, even if the habeas court discredited the uncontradicted
testimony of Sherman, Throne, and the investigator, it would be left without
any evidence concerning whether Sherman searched for these witnesses
and would be able to conclude only that the petitioner had not sustained
his burden of proof.
29
The habeas court also noted that Sherman could have used police reports
to rebut another aspect of the state’s argument at trial. According to the
habeas court, the state argued at the petitioner’s criminal trial that Elan staff
members must have learned about the petitioner’s potential involvement in
the murder through the petitioner or his family because the police never
had contact with Elan staff. The habeas court noted that some of the police
reports indicate that investigators had spoken with Elan staff about the
petitioner’s presence there and determined that Sherman should have used
these reports to rebut the state’s argument that these contacts never
occurred. We disagree, however, because the state did not argue that the
police had no contact with Elan staff. Instead, the state argued that the
police did not disclose any details about the investigation or the petitioner’s
potential involvement to Elan staff. This argument was supported by testi-
mony from one of the police investigators, who testified that the police had
not shared any details of their investigation with Elan staff and that the
petitioner was not considered a suspect at the time he was at Elan.
30
There were no questions posed to Sherman concerning the police report
referencing the DUI charge, likely because the petitioner did not include
a claim in his habeas petition about Sherman’s handling of the evidence
concerning why the petitioner was sent to Elan. During the habeas trial,
habeas counsel nevertheless asked Sherman why he had not presented
testimony from other witnesses to rebut the state’s evidence that the peti-
tioner was sent to Elan because of the murder, but did not specifically ask
him about why he chose not to present evidence concerning the DUI charge.
The respondent’s counsel asked follow-up questions about witnesses that
Sherman could have called, but also did not discuss the police report. After
the habeas trial, the habeas court found the police report referencing the
DUI charge when reviewing documents in the record and inquired of counsel
whether it related to any of the claims in the habeas petition. The court
ultimately determined that the petitioner had failed to plead a claim concern-
ing Sherman’s handling of evidence relating to the petitioner’s enrollment
at Elan but that the issue was properly before the court because both the
petitioner’s counsel and the respondent’s counsel had asked questions on
this issue during the habeas trial.
31
To protect the identities and privacy interests of jurors, we refer to
B.W. by his first and last initials. See, e.g., State v. Peeler, 267 Conn. 611,
620 n.9, 841 A.2d 181 (2004).
32
We do note, however, that the habeas court’s determination that the
petitioner failed to show that Sherman could have successfully suppressed
the recordings calls into question the habeas court’s determination that
Sherman nevertheless was required to seek suppression of them in the first
place. If the efforts were unlikely to succeed, then Sherman might reasonably
have determined that attempting to suppress the recordings was not worth
the resources that would have been expended in doing so.
33
Courts have questioned whether the government can rely on a subpoena
to establish the inevitable discovery exception to the exclusionary rule
when, unlike in the present case, the subpoena was issued after the illegal
police activity occurred and may have been based on information discovered
through the illegal activity. See, e.g., United States v. Vilar, 729 F.3d 62, 85
(2d Cir. 2013), cert. denied, U.S. , 134 S. Ct. 2684, 189 L. Ed. 2d 230(2014). There is no dispute in the present case that the grand jury subpoena
was issued before Garr seized the recordings from Hoffman.
34
In seeking a new trial on the basis of Sherman’s purportedly deficient
performance, the petitioner also asserts that, even if any one of his claims
of prejudice alone is not sufficient to meet his burden, we should aggregate
the harm caused by Sherman’s errors to find that those errors, considered
together, prejudiced the petitioner. We do not consider this argument, how-
ever, because, even if we did recognize the cumulative error theory, as
the petitioner asserts—a question that we have not previously addressed
directly—the petitioner still cannot prevail on his claims.
With respect to most of the petitioner’s ineffective assistance claims, we
have determined that the petitioner failed to prove the first element of the
Strickland standard, namely, that Sherman performed deficiently. See parts
II B and C, and III B, D and E of this opinion. Because the petitioner did
not prove that Sherman committed any error in the context of these claims,
the claims necessarily must be rejected, and there is no need to address
whether the alleged errors, considered together, caused the petitioner
prejudice.
With respect to the other ineffective assistance claims presented by the
petitioner, we have not considered Sherman’s performance because it was
evident from the record and the habeas court’s decision that, even if Sherman
had performed deficiently, any alleged error caused no harm to the petition-
er’s defense. See parts III A, C and F of this opinion. Accordingly, there is
no harm to aggregate when considering prejudice for these claims.
For example, the petitioner claimed that Sherman should have located
and used a drawing of someone allegedly seen in the neighborhood of the
crime scene on the night of October 30, 1975. But the habeas court deter-
mined that the drawing would have been of ‘‘no use’’ to the petitioner in
implicating Littleton because police reports established that the drawing
almost certainly depicted a local resident who had been seen in the neighbor-
hood much earlier in the evening and who had nothing to do with the
victim’s murder. The petitioner also claimed that Sherman should have
implicated two other individuals in the murder on the basis of information
conveyed by Bryant, but the habeas court determined that the trial court
would not have permitted the petitioner to raise a defense at trial based on
Bryant’s information, so the jury would never have heard this evidence.
With respect to the petitioner’s claim that Sherman should have presented
expert testimony about the coercive nature of Elan’s group meetings, the
habeas court determined that this testimony ‘‘would not have been of particu-
lar use’’ in assessing the credibility of the evidence of the petitioner’s private
confessions to other residents of Elan, and the state conceded that the
petitioner never confessed during any of the group meetings. Finally, with
respect to the recordings seized from Hoffman, the habeas court concluded
that the trial court would not have suppressed them, meaning that they
would have been admitted into evidence at trial regardless of whether
Sherman had sought to exclude them. Because each of these alleged errors
had no impact on the outcome of the trial, there is no harm to aggregate
when considering the prejudice stemming from these alleged errors.
35
The petitioner raised this claim in his cross appeal, but we instead treat
it as an alternative ground for affirmance because the petitioner was not
aggrieved by the decision of the habeas court. The habeas court vacated
his conviction and ordered a new trial on other grounds, and that is precisely
the same relief he seeks in connection with his conflict of interest claim.
See Sekor v. Board of Education, 240 Conn. 119, 121 n.2, 689 A.2d 1112(1997); see also State v. Preston, 286 Conn. 367, 373 n.4, 944 A.2d 27 (2008)
(issue raised by nonaggrieved appellant treated as alternative ground for
affirmance).
36
We doubt that the petitioner established the existence of a conflict of
interest sufficient to demonstrate a sixth amendment violation, substantially
for the reasons advanced by the respondent’s expert witness, Attorney Mark
Dubois, during the habeas trial. As we explained, the IRS did not seize any
of the funds that might have been needed for defense expenses, so no
conflict ever materialized on that basis. With respect to the petitioner’s
claim that the flat fee agreement encouraged Sherman to avoid investing
in the defense, the petitioner has provided no authority holding that this
potential incentive amounts to a conflict of interest. Indeed, every billing
arrangement between counsel and a client has some potential to create
diverging interests between them. The petitioner presented no evidence to
demonstrate that Sherman was actually conflicted because of this potential
incentive not to spend funds on the defense. Nevertheless, we need not
decide whether Sherman was burdened by a conflict because, even if he
was, it is clear that the petitioner has not shown any prejudice.
37
The respondent argues that the habeas court applied an incorrect stan-
dard for determining prejudice in connection with a conflict of interest
claim of this kind in light of the United States Supreme Court’s decision in
Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002).
The habeas court applied a less demanding prejudice standard from Cuyler
v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), but the
respondent argues that, in light of Mickens, the standard set forth in Cuyler
applies only to cases in which counsel represents more than one defendant
and not to other types of conflicts, including when counsel has a personal
conflict that burdens his representation of a client. In cases of personal
conflicts, the respondent argues that the Strickland prejudice standard
should control under Mickens. We need not address this argument, however,
because it is clear that the petitioner’s claim fails even under the less
demanding standard set forth in Cuyler, which we have previously applied
to similar claims. See, e.g., Phillips v. Warden, 220 Conn. 112, 133, 595 A.2d
1356 (1991).