Johnson v. Commissioner of Correction

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CARVAUGHN JOHNSON v. COMMISSIONER
OF CORRECTION
(SC 19856)
Robinson, C. J., and Palmer, McDonald, D’Auria, Kahn and Ecker, Js.
Syllabus
The petitioner, who had been convicted of murder and carrying a pistol
without a permit, sought a writ of habeas corpus, claiming, inter alia,
that his criminal trial counsel, S and B, had rendered ineffective assis-
tance. The petitioner’s first criminal trial resulted in a mistrial when the
jury was unable to reach a verdict. At that trial, a witness, F, testified
that he had been with the victim on the night of the murder. F also
testified consistent with a statement he had made to the police that, on
the night of the murder, he heard a gunshot and then saw the petitioner
running from the crime scene while carrying a gun. At the petitioner’s
second criminal trial, after which the petitioner was convicted, F
recanted his statement to the police and his testimony at the first trial,
and his prior inconsistent statements from the first trial were admitted
into evidence. In the habeas court, the petitioner claimed that S and B
were ineffective insofar as they failed to present an alibi defense through
the testimony of the petitioner’s sister, J, and the petitioner’s friend, A,
which allegedly would have shown that the petitioner was at home with
J and her children and was speaking with A on the telephone at the
time of the murder. The petitioner also claimed that S and B were
ineffective insofar as they failed to present a third-party culpability
defense through the testimony of H, whom the petitioner claimed would
have testified that he had seen F with a gun that was similar to the
murder weapon a few days before the murder. The habeas court granted
the habeas petition, concluding that the failure of S and B to present
both defenses was deficient and that the petitioner was prejudiced by
such deficient performance. The habeas court determined that it was
not reasonable trial strategy for S and B not to have presented the
testimony of J and A, as they had testified credibly at the habeas trial
as to the petitioner’s whereabouts on the night of the shooting and their
testimony would have been helpful to the petitioner’s alibi that he was
home at the time of the shooting. The habeas court also concluded that
H’s testimony was relevant and admissible as third-party culpability
evidence and that it was reasonably likely that the trial court would
have allowed H’s testimony, even if H had invoked his privilege against
self-incrimination. On the granting of certification, the respondent, the
Commissioner of Correction, appealed to the Appellate Court, which
reversed the judgment of the habeas court insofar as the habeas court
concluded that S and B had rendered ineffective assistance as a result
of their failure to present an alibi defense and a third-party culpability
defense, and remanded the case to the habeas court with direction to
deny the habeas petition with respect to those claims. Thereafter, the
petitioner, on the granting of certification, appealed to this court. Held:
1. The Appellate Court incorrectly determined that the petitioner failed to
preserve for review his claim that S and B rendered ineffective assistance
by inadequately investigating J and A as alibi witnesses on the ground
that the petitioner had framed his claim as a failure to present an alibi
defense rather than one of inadequate investigation, and this court’s
review of that claim did not prejudice the respondent: both parties and
the habeas court were aware that the petitioner’s claim that S and B
rendered ineffective assistance by failing to present an alibi defense
included the claim that they allegedly had undertaken an inadequate
investigation, as the petitioner’s claim was premised on the argument
that, if S and B had adequately investigated his alibi defense, they would
have learned that their concerns about its weaknesses were unfounded
and, thus, would have presented the testimony of J and A at the petition-
er’s criminal trial; moreover, both parties questioned S and B extensively
at the habeas trial regarding their investigation into the alibi defense,
the respondent did not object to the petitioner’s argument that his claim
of failure to present the alibi defense was premised on the failure of S and
B to adequately investigate that defense, and there was no meaningful
distinction between the failure to prepare and present, and the failure
to investigate and present.
2. The Appellate Court correctly determined that it was reasonable trial
strategy for S and B not to present J and A as alibi witnesses, and,
accordingly, counsel did not perform deficiently: the alibi defense possi-
bly would have been more harmful than helpful to the petitioner, as it
could have distracted the jury from F’s recantation, introduced issues
of the petitioner’s close proximity to the crime scene at the time of the
murder and his consciousness of guilt, and failed to account definitively
for the petitioner’s whereabouts at the time of the murder; moreover,
it was reasonable for S and B to be concerned that the jury might have
questioned whether J was distracted by the television or by her children
on the night of the murder, as her testimony did not account for the
fact that the petitioner was not in her line of sight at the time of the
murder, and the imprecision in the timing of the murder and the tele-
phone calls between the petitioner and A left open the possibility that
the jury might infer that the petitioner committed the murder and also
participated in the telephone calls, especially in view of the close proxim-
ity of the petitioner’s house to the crime scene; furthermore, the decision
of S and B to cease investigating J’s testimony after determining that it
could be more harmful than helpful was reasonable, and new information
regarding the timing of the murder that S and B learned of by the time
of the second trial called into question the strength of A’s alibi testimony.
3. The petitioner could not prevail on his claim that S and B provided
ineffective assistance of counsel by failing to present a third-party culpa-
bility defense through H’s testimony: S and B did not perform deficiently
in failing to present such a defense, as H’s testimony failed to establish
a sufficient nexus between F and the murder because H never definitively
testified that the gun he saw F possess was the same make as the murder
weapon, there was no clear evidence that F possessed a gun or was at
the crime scene at the time of the murder, and the record was devoid
of any statements by F, the victim, or any other witness that would
implicate F as the shooter, and, even if H’s testimony created some
direct link between F and the murder, that nexus was sufficiently weak
so as to justify the strategic decision by S and B not to offer H’s testimony
on the ground that it would distract the jury from the weakness of
the state’s case and F’s recantation; moreover, the petitioner did not
demonstrate that H would have been unable to successfully invoke his
fifth amendment privilege against self-incrimination, as other pending,
unrelated charges against him involved guns, and there was a possibility
that his testimony that he had attempted to steal a gun, previously
possessed a gun, and recognized F’s gun might have resulted in an
injurious disclosure, and, because the petitioner could not establish that
H’s invocation of his privilege against self-incrimination would have
been rejected, the petitioner could not prove that the failure of S and
B to present the third-party culpability defense through H’s testimony
would have been prejudicial.
Argued September 12, 2018—officially released January 8, 2019
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Cobb, J.; judgment grant-
ing the petition in part, from which the respondent, on
the granting of certification, appealed to the Appellate
Court, Beach, Keller and Mullins, Js., which reversed
in part the judgment of the habeas court and remanded
the case with direction to deny the habeas petition in
part, and the petitioner, on the granting of certification,
appealed to this court. Affirmed.
Damon A. R. Kirschbaum, with whom were Vishal
K. Garg and, on the brief, Desmond M. Ryan, for the
appellant (petitioner).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Adrienne Russo, deputy assistant state’s
attorney, for the appellee (respondent).
Opinion
D’AURIA, J. The petitioner, Carvaughn Johnson,
appeals, upon our grant of certification, from the judg-
ment of the Appellate Court reversing in part the judg-
ment of the habeas court, which granted in part his
petition for a writ of habeas corpus on the ground that
his defense counsel had provided ineffective assistance
by failing (1) to adequately prepare and present an
alibi defense, and (2) to present a third-party culpability
defense. The Appellate Court agreed with the respon-
dent, the Commissioner of Correction, that it was rea-
sonable trial strategy not to present an alibi defense,
that the petitioner’s claim of inadequate investigation
of the alibi defense was unpreserved, and that the peti-
tioner was not prejudiced by counsel’s failure to present
a third-party culpability defense. Because we hold that
it was not deficient performance for defense counsel
not to present the alibi defense and that it was not
deficient performance or prejudicial for defense coun-
sel not to present the third-party culpability defense,
we affirm the judgment of the Appellate Court.
I
A
The jury in the underlying criminal case reasonably
could have found the following facts, as set forth in
this court’s decision in State v. Johnson, 288 Conn. 236,
951 A.2d 1257 (2008), which affirmed the trial court’s
judgment of conviction on direct appeal: ‘‘The [peti-
tioner] shot and killed the sixteen year old victim, Mar-
keith Strong, on the evening of October 10, 2001, in
New Haven. In the weeks prior to that evening, the
[petitioner] and the victim had been at odds with each
other. Approximately three weeks prior to the shooting,
the victim’s teenage sister, L’Kaya Ford [L’Kaya], was
sitting with the victim at the corner of Read and Shepard
Streets when she observed the [petitioner] approach.
The [petitioner] walked toward [L’Kaya] and the victim,
called the victim ‘a punk,’ and threatened to assault
him. The victim said nothing, and the [petitioner]
walked away.
‘‘The victim next encountered the [petitioner] in the
late afternoon of September 29, 2001, and the two
engaged in a dispute over a bicycle. The victim and
Ralph Ford [Ford] were around the intersection of Read
and Shepard Streets, where the victim either was riding
his bicycle or standing near it, when the [petitioner]
stopped him, declared that the bicycle belonged to him
and demanded that the victim give it to him. The victim
refused and informed the [petitioner] that he had found
the bicycle about one month earlier and had fixed it
up. The victim told the [petitioner] that he owned the
bicycle. The [petitioner] asked for the bicycle a second
time, and, when the victim refused, the [petitioner] said,
‘[d]on’t make me do something to you.’ The [petitioner]
then punched the left side of the victim’s head twice,
which caused a small cut near the victim’s left ear.
During this encounter, the [petitioner] may have been
carrying a gun. The [petitioner] then took the bicycle
and rode away.
‘‘After this encounter, the victim, accompanied by
[Ford], returned home, where his family contacted the
New Haven police to report the incident. After speaking
with the victim, the police officers radioed a description
of the [petitioner] and notice of a possible robbery and
larceny. The police did not apprehend any suspect that
day. Over the next few days, the [petitioner] approached
the victim and [L’Kaya] about the police report, asserted
that he was not going to jail, apologized to the victim
and told him not to press charges. Toward the end of
September, the [petitioner] also expressed concern to
his friend, Tashana Milton Toles, about the possible
criminal charges that he faced as a result of the bicycle
incident and specifically remarked to her that he
thought he might be going back to jail.
‘‘On the morning of October 10, the [petitioner]
approached [L’Kaya] while she was waiting for a bus.
The [petitioner], who was driving a black car that
[L’Kaya] described as an Acura or Ford Probe, pulled
the car alongside of her and accused her of being a
snitch. The [petitioner] insulted her, told her he did
not like snitches and that she knew what happened to
‘snitches in the hood.’ That night, the victim, [L’Kaya],
[Ford], and other friends gathered on the corner of
Read and Shepard Streets to celebrate [L’Kaya’s] birth-
day. Some of the group, but not [Ford] or the victim,
were drinking alcohol and smoking marijuana. Around
10 p.m., the victim and [Ford] departed together. The
neighborhood around Read, Shepard, Huntington and
Newhall Streets affords many shortcuts through the
yards of houses that are occupied by neighborhood
residents. On that night, however, [Ford] did not take
his usual shortcut but parted from the victim, who took
the shortcut home.1 [Ford] then continued walking
alone on Read Street and proceeded around the corner
to his house on Newhall Street. Upon arriving at his
house, [Ford] heard a gunshot coming from the back-
yard of the house across the street. [Ford] then entered
his front hallway. [Ford] heard someone running from
the yard across the street and saw the [petitioner] run
into the driveway leading to Ford’s house. [Ford] saw
the [petitioner] carrying a semiautomatic handgun and
entering a black Acura as it exited the driveway. James
Baker, who lived near the crime scene, heard someone
run past his window, jump the fence outside his house
and head into the backyard, toward Huntington Street.
Approximately five minutes later, and around 10:20
p.m., Baker heard a single gunshot coming from behind
his house. LaMont Wilson, who had left the group earlier
than [Ford] and the victim, lived on Read Street and
also heard a gunshot from the direction of his backyard,
sometime between 10 and 10:45 p.m. Baker called the
police at approximately 10:45 p.m. to report the gunshot
but did not initially identify himself because he feared
retaliation from ‘certain individuals’ for contacting the
police. Joanie Joyner, a resident of Huntington Street
and the victim’s next-door neighbor, also heard a loud
‘boom’ from the direction of her backyard and then,
sometime after 11 p.m., saw something in her yard. At
approximately 11:25 p.m., she also called the police.
‘‘The [petitioner] contacted Toles by telephone
between 9:45 and 10 p.m., told her that he was about
five minutes away from her dormitory at Southern Con-
necticut State University, and asked if he could visit
her. Toles agreed. The [petitioner] did not arrive at the
dormitory until 11 p.m., at which time he phoned Toles
from the lobby, and she came down to the lobby to
register him as a visitor at the security desk. The [peti-
tioner] was with a friend, Travis Scott. To enter the
dormitory, the [petitioner] was required to provide iden-
tification at the security desk where security personnel
record the information. The sign-in sheet at Toles’ dor-
mitory indicated that she signed the [petitioner] into
her building at 11:10 p.m. Shortly after they signed in,
a fire alarm required all residents and visitors to evacu-
ate the building. The alarm occurred at approximately
11:30 p.m., and the fire department and university police
responded to the scene. The [petitioner] and Scott
waited with Toles and her roommate until the university
permitted students to reenter the building. They
retrieved their identification from the security desk and
departed. During the investigation, Detective Daryl Bre-
land of the New Haven [P]olice [D]epartment drove
from [Ford’s] house to Toles’ dormitory, recorded the
distance to be about three miles and noted that the trip
took approximately ten minutes.
‘‘Officers Mark Taylor and Brian Pazsak of the New
Haven [P]olice D]epartment were on patrol in the
Newhall and Huntington Street area on the night of
October 10, 2001, and received the dispatch related to
Baker’s and Joyner’s calls. Police responded first to
Baker’s call and investigated the general area, but saw
nothing amiss. After responding to Joyner’s call around
11:35 p.m., the officers found the victim lying face down
in Joyner’s backyard. The victim appeared to be uncon-
scious and bleeding from the mouth. The officers also
found a spent nine millimeter shell casing nearby. New
Haven [F]ire [D]epartment personnel were called but
were unable to resuscitate the victim, who was pro-
nounced dead at the Hospital of Saint Raphael in
New Haven.
‘‘Arkady Katsnelson of the [C]hief [M]edical [E]xam-
iner’s [O]ffice performed an autopsy of the victim on
October 11, 2001, and determined that he had died of
a single gunshot wound to the right side of his face.
Katsnelson concluded that the bullet penetrated the
victim’s face and neck, and completely severed the spi-
nal cord, instantly incapacitating the victim. The [peti-
tioner] was charged with the victim’s murder and
related crimes . . . and subsequently was tried. After
seven days of deliberations, the jury in the [petitioner’s]
first trial was unable to reach a verdict. Therefore, the
trial court, Licari, J., declared a mistrial pursuant to
Practice Book § 42-45.’’ (Footnote added and footnotes
omitted.) Id., 239–44.
After a second trial, the petitioner was convicted of
murder in violation of General Statutes § 53a-54a (a)
and carrying a pistol without a permit in violation of
General Statutes § 29-35. The petitioner was sentenced
to a total effective term of imprisonment of forty-three
years. This court affirmed the judgment of conviction.
Id., 290.
B
Thereafter, the petitioner brought an amended peti-
tion for a writ of habeas corpus, claiming that his
defense counsel, Scott Jones and Beth Merkin, had pro-
vided ineffective assistance and had an actual conflict
of interest. Only the ineffective assistance of counsel
claim is relevant to the present appeal. Regarding the
ineffective assistance of counsel claim, the petitioner
alleged that defense counsel failed (1) to present an
alibi defense through the testimony of his sister, Joyce
Johnson (Joyce), and his friend, Taylor Allen, and (2)
to present a third-party culpability defense through the
testimony of William Holly.
With respect to the alibi defense, the petitioner
claimed that defense counsel had performed deficiently
by failing to adequately prepare and present the testi-
mony of Joyce and Allen. According to the petitioner,
if defense counsel had properly investigated his alibi,
they would have realized that he was home with Joyce
and speaking on the telephone with Allen via his land-
line at the time of the murder. With respect to the third-
party culpability defense, the petitioner claimed that
defense counsel had performed deficiently by failing to
present the testimony of Holly, who would have testi-
fied that a few days before the murder, he saw Ford
with a gun that was similar to the murder weapon.
After a five day trial, the habeas court ruled in favor
of the petitioner with respect to both ineffective assis-
tance of counsel claims but rejected his conflict of
interest claim. In its memorandum of decision, the
habeas court set forth the following additional facts:
‘‘In the petitioner’s first criminal trial, the court declared
a mistrial due to a hung jury. The state presented testi-
mony at the first criminal trial from an eyewitness,
[Ford], who testified consistent with his statements to
the police that he heard a gunshot and saw the petitioner
run out of the backyard across the street carrying a
black gun in his hand. At the first trial, trial counsel
presented a partial alibi defense with testimony indicat-
ing that the petitioner was at Southern Connecticut
State University around 11 p.m. on the night of the
murder. [The defense] did not explain the petitioner’s
whereabouts between 10 and 11 p.m. After the first trial
resulted in a hung jury, a juror indicated that it would
have been helpful for the jury to know where the peti-
tioner was at the time of the shooting [which occurred]
prior to 11 p.m.
‘‘At the petitioner’s second criminal trial, the state’s
key witness, Ford, recanted his prior statement and
testimony that he had seen the petitioner running from
the crime scene with a gun. Instead, Ford testified that
the police forced him to make those statements. Ford’s
prior inconsistent statements at the first criminal trial
were admitted for substantive purposes in the second
criminal trial pursuant to [the doctrine set forth in 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)].
‘‘At the second trial, trial counsel’s defense strategy
was that the state failed to prove the petitioner’s guilt
beyond a reasonable doubt, that Ford was not credible,
and that it was Ford [who] had accidentally shot the
victim, who was Ford’s friend. The petitioner’s trial
attorneys disagreed over whether to present an alibi,
including the petitioner’s whereabouts between 10 and
11 p.m. or a third-party culpability defense; Attorney
Jones wanted to present both defenses and Attorney
Merkin did not. Attorney Merkin prevailed, and trial
counsel did not present either defense at the second
trial.’’ (Footnote omitted.)
Regarding the alibi defense, the habeas court stated:
‘‘The petitioner’s trial counsel were aware of the two
alibi witnesses, Allen and [Joyce], who could testify as
to [the] petitioner’s whereabouts between 10 and 11
p.m. on the evening of the shooting, but disagreed as
to whether . . . an alibi defense should be presented.
They were also aware that the jury in the first trial
wanted to know where the petitioner was between 10
to 11 p.m.’’
The habeas court specifically found that ‘‘[Joyce] and
Allen testified credibly at the habeas trial as to the
petitioner’s whereabouts on the night of the shooting.
[Joyce] testified that the petitioner was home between
5 p.m. and 11 p.m. on the night of the shooting. During
that time, [Joyce] was home with her young son and
was, for the most part, in the living room in the front
of the apartment watching television. From her posi-
tion, she would have been able to see if the petitioner
had left the house during that time. At some point,
[Joyce] was aware that the petitioner and his friend
were at the house and ordered a pizza. The living room
had two large windows facing the driveway, and any
movement outside would have activated the motion
sensor lights in the driveway. If the petitioner had left
through the back door, [Joyce] would have heard him
because that door screeched loudly when [it was]
opened. At approximately 11 p.m., [Joyce] heard a horn
honk outside, and she saw the petitioner leave the house
with Allen.’’
The habeas court also found that ‘‘Allen, who also
testified at the habeas trial credibly, called the petition-
er’s cell phone at 10:20 p.m., and he asked her to call
his home telephone number. Allen immediately hung
up and called the petitioner at home on his landline.
Allen and the petitioner spoke for approximately ten
to fifteen minutes on the petitioner’s home phone. The
petitioner then called Allen again from his home tele-
phone around 10:40 p.m. or 10:45 p.m. Shortly there-
after, Allen drove to the petitioner’s home, picked him
up at approximately 10:50 p.m. or 10:55 p.m. and drove
him to Southern Connecticut State University.’’
The habeas court also found ‘‘that trial counsel [were]
aware of the statements of [Joyce] and Allen, that their
testimony was credible and that production of such
testimony at trial would have been helpful to the
defense.’’ Specifically, it found that ‘‘trial counsel’s deci-
sion to not call the alibi witnesses was not based on
the witnesses’ credibility. Both Attorney Jones and
Attorney Merkin found [Joyce] and Allen to be credible
witnesses. Moreover, the court finds that their testi-
mony would have been helpful to the petitioner’s
defense that he was home at the time of the shooting.
‘‘Attorney Merkin decided to not present [Joyce’s]
testimony because she was related to the petitioner, the
shooting occurred in close proximity to the petitioner’s
home and it was unclear whether the petitioner was in
her direct vision for the entire evening. Attorney Merkin
did not present Allen’s testimony because she believed
that Allen estimated the times of the phone calls, and
the petitioner’s close proximity to the crime scene
would have allowed him to commit the murder despite
receiving and making the phone calls at the times indi-
cated by Allen. Trial counsel acknowledged at the
habeas trial, however, that they failed to investigate
[Joyce’s] ability to provide an alibi at the times when
the petitioner was not in her direct view.
‘‘[Joyce] testified that the motion sensor lights and
the screeching back door would have prevented the
petitioner from leaving the house without [Joyce’s]
knowledge. Moreover, the times of the phone calls
between Allen and the petitioner were seen on Allen’s
caller identification. That evidence, if presented, would
have established that the petitioner was at home using
his landline at the time the shooting occurred. Further,
while Attorney Merkin was concerned that the alibi
defense would place the petitioner in close proximity
to the crime scene, there was already evidence before
the jury that the petitioner was at Southern Connecticut
State University, close to the crime scene, shortly before
11 p.m. on the night of the victim’s murder. In addition,
the evidence from the three alibi witnesses covered the
time period between 10 and 11 p.m., making it highly
unlikely that the petitioner could have committed the
shooting.’’
The habeas court was ‘‘particularly influenced by the
fact that when trial counsel decided not to submit the
petitioner’s alibi, they were aware that the first jury was
conflicted about the petitioner’s guilt, which resulted
in a hung jury, and [counsel] knew that the first jury
wanted to know where the petitioner was at the time
the shooting occurred. While each jury is different, hav-
ing this information in the petitioner’s second criminal
trial was a significant bonus to the defense and should
have been utilized in determining whether to pursue
the alibi defense.’’
Because the habeas court found Joyce and Allen cred-
ible and that their testimony would have been helpful
to the alibi defense, the habeas court concluded that it
was not reasonable trial strategy for defense counsel
not to present their testimony, and, thus, defense coun-
sel performed deficiently. Additionally, the habeas
court found that the petitioner was prejudiced by
defense counsel’s deficient performance.
Regarding the third-party culpability defense, the
habeas court stated in relevant part: ‘‘At the second
criminal trial, the state established that the bullet recov-
ered from the victim was from a Hi-Point nine millimeter
pistol or semiautomatic rifle. At the habeas trial, the
petitioner established that Ford showed Holly a black
handgun that Ford had tucked into the waistband of
his pants on the afternoon of the shooting. Holly
believed that a photograph [he was shown, which had
been admitted into evidence], of the Hi-Point nine milli-
meter pistol used in the shooting looked like the gun
that he saw Ford carrying. The murder weapon and
Ford’s gun both had ridges above the handle, and ridges
were not a common feature on the guns that Holly
had seen.
‘‘The petitioner’s trial attorneys disagreed as to
whether the third-party culpability defense should be
presented to the jury. Attorney Jones believed that Hol-
ly’s testimony should have been presented and Attorney
Merkin did not, even though she admitted that Holly’s
testimony was consistent with the defense theory of
the case, which was that Ford accidentally shot the
victim.2 The court finds the third-party culpability
defense consisting of the facts that (1) Ford had been
the last person seen with the victim, (2) was in close
proximity to the location of the shooting at the time of
the shooting, and (3) had been seen with a gun matching
the description of the murder weapon on the day of
the shooting, were consistent with and relevant to the
defense theory that it was Ford who shot the victim
by accident.
‘‘Both Attorney Jones and Attorney Merkin thought
that they would not be able to present Holly’s testimony
without Ford first admitting that he knew Holly. Trial
counsel believed, incorrectly, that they needed, and did
not have, a foundation to introduce third-party culpabil-
ity evidence—that is, the testimony of Holly—once
[Ford] denied knowing Holly while on the witness stand
at the petitioner’s criminal trial. At the habeas trial,
Attorney Merkin conceded that the presentation of Hol-
ly’s testimony was not contingent upon Ford admitting
that he knew Holly.’’ (Footnote added.)
The habeas court went on to state that ‘‘[t]he standard
for determining whether evidence of third-party culpa-
bility is admissible is whether the presented evidence
is relevant. Here, it was. Holly’s testimony regarding
Ford’s possession of the same type of gun that was
used to kill the victim on the day of the shooting, as
well as other facts pointing to Ford as the shooter,
would have established the necessary factual nexus for
a third-party culpability claim regardless of whether
Ford knew Holly. The court finds that it is reasonably
likely that the trial court would have allowed Holly’s tes-
timony.’’
Regarding the argument that Holly might have
invoked his fifth amendment privilege against self-
incrimination and not testified at the petitioner’s crimi-
nal trial, the habeas court found that Holly’s appointed
counsel at the time, Attorney Thomas Farver, ‘‘had com-
municated to the [trial] court on Holly’s behalf that
Holly would assert his fifth amendment privilege and
refuse to testify if he was called [as a witness due to
pending charges of robbery as well as other charges
against him, and an unrelated murder investigation].
However, both Attorney Farver and Attorney Merkin
testified that they were uncertain that Holly would have
been permitted to invoke his fifth amendment privilege
at the petitioner’s criminal trial due to the fact that
Holly’s pending charges were unrelated to the petition-
er’s case. . . .
‘‘In the present case, Holly’s pending charges were
unrelated to the petitioner’s case, and there is no indica-
tion that Holly’s testimony that he saw Ford with a gun
on the day of the shooting would have exposed him to
any criminal prosecution in the petitioner’s or any other
case. Fear of potential prosecutorial retaliation in an
unrelated case does not constitute sufficient grounds
to invoke the fifth amendment, as it is a mere subjective
belief, not a reality, and the actual testimony would
not have been incriminating in any way. Therefore, the
court finds that it is not reasonably likely that Holly
would have been permitted to invoke his privilege
against self-incrimination in the petitioner’s criminal
case had trial counsel proffered him as a defense wit-
ness to support the third-party culpability defense.’’
(Citations omitted.)
The habeas court determined that because Holly’s
testimony was relevant, and, thus, admissible as third-
party culpability evidence, and not privileged under the
fifth amendment, defense counsel were deficient for
failing to present a third-party culpability defense. The
habeas court further found that the petitioner was preju-
diced by defense counsel’s actions. Accordingly, the
habeas court granted the petitioner’s habeas petition
with respect to the ineffective assistance of counsel
claims.
C
The respondent appealed to the Appellate Court. See
Johnson v. Commissioner of Correction, 166 Conn.
App. 95, 140 A.3d 1087 (2016). The Appellate Court
reversed the habeas court’s judgment in part.3 As to the
alibi defense, the Appellate Court determined that it
was a reasonable, strategic decision not to present an
alibi defense, despite the witnesses’ credibility, in light
of defense counsel’s strategy of focusing on the weak-
nesses in the state’s case instead of muddying the
waters with an alibi defense that raised ‘‘many reason-
able concerns . . . .’’ Id., 141. Such concerns included
placing the petitioner in very close proximity to the
shooting at or near the time of the shooting and allowing
the state to argue consciousness of guilt on the basis
of the petitioner’s having fled from the area of the crime
to Southern Connecticut State University. Id., 137
n.16, 142.
As to the third-party culpability defense, the Appel-
late Court assumed without deciding that defense coun-
sel’s performance was deficient. Id., 117. However, the
Appellate Court determined that the petitioner was not
prejudiced by defense counsel’s deficient performance
because it was speculative as to whether any portion
of Holly’s testimony would have been admissible as
third-party culpability evidence; id., 128; and because
the petitioner had failed to establish that Holly would
not have been entitled to invoke his fifth amendment
right against self-incrimination. Id., 126. The Appellate
Court determined that it was speculative as to whether
the trial court would have viewed the third-party culpa-
bility evidence as having proved a direct connection
between Ford and the murder. Id., 129–30. Specifically,
the Appellate Court reasoned that there was no evi-
dence that Ford was armed with the murder weapon
at the scene of the crime at the time of the shooting.
Id. Regarding Holly’s fifth amendment privilege, the
Appellate Court determined that there was insufficient
evidence in the record to establish that it was perfectly
clear that Holly was not entitled to invoke his fifth
amendment privilege. Id., 122, 126.
Accordingly, the Appellate Court reversed the judg-
ment of the habeas court with respect to the petitioner’s
ineffective assistance of counsel claims and remanded
the case to the habeas court with direction to deny the
petition for a writ of habeas corpus as to those claims.
Id., 142. We granted certification as to whether (1) the
petitioner’s claim that defense counsel performed defi-
ciently by failing to adequately investigate the alibi wit-
nesses was reviewable, (2) defense counsel’s failure to
present an alibi defense constituted deficient perfor-
mance, and (3) the petitioner was prejudiced by defense
counsel’s failure to present a third-party culpability
defense. See Johnson v. Commissioner of Correction,
324 Conn. 904, 152 A.3d 545 (2017).
II
The petitioner claims that the Appellate Court
improperly rejected the habeas court’s conclusion that
defense counsel provided ineffective assistance of
counsel. First, the petitioner claims that the Appellate
Court improperly held that defense counsel’s failure to
present alibi witnesses was reasonable trial strategy.
Second, he claims that the Appellate Court improperly
held that he was not prejudiced by defense counsel’s
failure to present evidence of third-party culpability.
‘‘In reviewing these claims, we are mindful that [t]he
habeas court is afforded broad discretion in making its
factual findings, and those findings will not be disturbed
unless they are clearly erroneous. . . . The application
of the habeas court’s factual findings to the pertinent
legal standard, however, presents a mixed question of
law and fact, which is subject to plenary review.’’ (Inter-
nal quotation marks omitted.) Breton v. Commissioner
of Correction, 325 Conn. 640, 666–67, 159 A.3d 1112
(2017).
‘‘To succeed on a claim of ineffective assistance of
counsel, a habeas petitioner must satisfy the two-
pronged test articulated in Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Strickland requires that a petitioner satisfy both
a performance prong and a prejudice prong. To satisfy
the performance prong, a claimant must demonstrate
that counsel made errors so serious that counsel was
not functioning as the counsel guaranteed . . . by the
[s]ixth [a]mendment. . . . To satisfy the prejudice
prong, a claimant must demonstrate that there is a rea-
sonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different. . . . Although a petitioner can succeed
only if he satisfies both prongs, a reviewing court can
find against a petitioner on either ground.’’ (Citations
omitted; internal quotation marks omitted.) Breton v.
Commissioner of Correction, supra, 325 Conn. 668–69.
Because both of the petitioner’s claims involve
whether defense counsel performed deficiently by fail-
ing to present the testimony of certain witnesses, we
note that the deficient performance prong of Strickland
is based on what an objectively reasonable attorney
would do under the circumstances: ‘‘[T]he defendant
must show that counsel’s representation fell below an
objective standard of reasonableness. . . . The proper
measure of attorney performance remains simply rea-
sonableness under prevailing professional norms. . . .
In any case presenting an ineffectiveness claim, the
performance inquiry must be whether counsel’s assis-
tance was reasonable considering all the circum-
stances.’’ (Citations omitted.) Strickland v.
Washington, supra, 466 U.S. 688; accord Mozell v. Com-
missioner of Correction, 291 Conn. 62, 79–80, 967 A.2d
41 (2009); Bryant v. Commissioner of Correction, 290
Conn. 502, 512–13, 964 A.2d 1186, cert. denied sub nom.
Murphy v. Bryant, 558 U.S. 938, 130 S. Ct. 259, 175 L.
Ed. 2d 242 (2009).
‘‘A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.
Because of the difficulties inherent in making the evalu-
ation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reason-
able professional assistance; that is, the defendant must
overcome the presumption that, under the circum-
stances, 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. . . . [A] reviewing
court is required not simply to give [the trial attorney]
the benefit of the doubt . . . but to affirmatively enter-
tain the range of possible reasons . . . counsel may
have had for proceeding as [he] did . . . .’’ (Citation
omitted; internal quotation marks omitted.) Michael T.
v. Commissioner of Correction, 319 Conn. 623, 632, 126
A.3d 558 (2015).
When faced with the question of whether counsel
performed deficiently by failing to call a certain witness,
the question is whether ‘‘this omission was objectively
reasonable because there was a strategic reason not to
offer such . . . testimony . . . [and] whether reason-
able counsel could have concluded that the benefit of
presenting [the witness’ testimony] . . . was out-
weighed by any damaging effect’’ it might have. (Cita-
tion omitted.) Id., 633–34.
A
The petitioner’s first claim is that, as the habeas court
determined, defense counsel acted deficiently by failing
to investigate and present alibi witnesses. Specifically,
he argues that defense counsel based their decision not
to call alibi witnesses on their erroneous belief that
the petitioner’s alibi defense was weak. The petitioner
contends that if defense counsel had fully investigated
the alibi witnesses’ potential testimony, they would
have realized that their concerns were misplaced, espe-
cially in light of the habeas court’s finding that the alibi
witnesses were credible.
The respondent counters that defense counsel made
a reasonable, strategic decision that was based on a
myriad of concerns, regardless of the alibi witnesses’
credibility. The respondent’s principal contention is
that the Appellate Court properly concluded that it was
a reasonable tactical decision not to distract the jury
from Ford’s recantation by muddying the waters with
an alibi defense that was not airtight and was possibly
more harmful than helpful. We agree with the respon-
dent and the Appellate Court.
1
As an initial matter, we must address the reviewabil-
ity of the inadequate investigation portion of the peti-
tioner’s claim. The Appellate Court held that the
petitioner’s claim of inadequate investigation of the alibi
witnesses was not properly preserved because he
framed his claim as a failure to ‘‘ ‘present’ ’’ alibi wit-
nesses, not as a failure to investigate. Johnson v. Com-
missioner of Correction, supra, 166 Conn. App. 132
n.14. We disagree with the Appellate Court.
The Appellate Court is correct that we review only
claims that were distinctly raised before the habeas
court. See, e.g., Eubanks v. Commissioner of Correc-
tion, 329 Conn. 584, 597–98, 188 A.3d 702 (2018). We
conclude that the petitioner did distinctly raise before
the habeas court his claim that defense counsel failed
to ‘‘properly prepare and present’’ his alibi defense.
Although, in his amended petition for a writ of habeas
corpus, the petitioner phrased his claim as a failure
to ‘‘present’’ the testimony of Joyce and Allen, it is
sufficiently clear from the record that, throughout the
habeas proceedings, the petitioner proceeded on a gen-
eral theory that if defense counsel had adequately inves-
tigated his alibi defense, they would have learned that
their concerns about its weaknesses were unfounded
and, thus, would have presented the alibi witnesses’
testimony at trial. See Broadnax v. New Haven, 270
Conn. 133, 173–74, 851 A.2d 1113 (2004) (‘‘[t]he com-
plaint must be read in its entirety in such a way as to
give effect to the pleading with reference to the general
theory upon which it proceeded, and do substantial
justice between the parties’’ [internal quotation
marks omitted]).
Both parties questioned defense counsel extensively
at the habeas trial regarding their investigation into the
alibi defense. The respondent never objected to the
petitioner’s argument that his claim of failure to present
the alibi defense was premised on defense counsel’s
failure to adequately investigate the defense. The peti-
tioner’s posttrial brief framed his claim as a failure ‘‘to
properly prepare and present [his] alibi defense . . . .’’
He specifically argued in his posttrial brief that defense
counsel’s failure to sufficiently investigate his alibi
defense led to their failure to present alibi witnesses.
In response, the respondent in [his] posttrial brief
argued that defense counsel’s actions constituted rea-
sonable trial strategy, notwithstanding the failure to
investigate Joyce more thoroughly.
We see no meaningful distinction between the
phrases ‘‘failure to prepare and present’’ and ‘‘failure to
investigate and present’’ that renders the investigation
portion of this claim unpreserved. ‘‘Preparation’’ neces-
sarily includes ‘‘investigation.’’ See Skakel v. Commis-
sioner of Correction, 329 Conn. 1, 34, 188 A.3d 1 (2018)
(‘‘[p]retrial investigation, principally because it pro-
vides a basis [on] which most of the defense case must
rest, is, perhaps, the most critical stage of a lawyer’s
preparation’’ [internal quotation marks omitted]); State
v. Komisarjevsky, 302 Conn. 162, 177–78, 25 A.3d 613
(2011) (‘‘[t]he right to prepare a defense for its presenta-
tion at trial is an integral part of a fair trial, and includes
investigation of material facts and access to potential
witnesses’’).
Moreover, we note that underlying a claim of failure
to present a witness are the issues of whether defense
counsel conducted a reasonable investigation and had
an adequate explanation for deciding not to call that
witness. See State v. Talton, 197 Conn. 280, 297, 497
A.2d 35 (1985) (defense counsel will be deemed ineffec-
tive only if they know about a witness, and ‘‘without a
reasonable investigation and without adequate explana-
tion, failed to call the witness at trial’’). In the present
case, the record establishes that the petitioner’s claim
of inadequate presentation was inextricably linked to
his related claim of inadequate preparation. In other
words, the petitioner’s claim was premised on the argu-
ment that, if defense counsel had adequately investi-
gated his alibi defense, they would have learned that
their concerns regarding its weaknesses were
unfounded and, thus, would have presented the alibi
witnesses’ testimony at trial.
Finally, as reflected in its memorandum of decision,
the habeas court understood the petitioner’s claim as
a ‘‘[f]ailure to prepare and present [an] alibi defense.’’
In reciting the relevant law on this issue, the habeas
court specifically stated that ‘‘[d]efense counsel will
be deemed ineffective only when it is shown that a
defendant has 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.’’ (Internal quotation marks
omitted.) The habeas court found that defense counsel
had ‘‘failed to investigate [Joyce’s] ability to provide an
alibi at the times when the petitioner was not in her
direct view.’’
It is clear to us that the habeas court considered
defense counsel’s investigation of Joyce in reaching its
determination that her testimony would have provided
an alibi and should have been presented to the jury.
Thus, all parties and the habeas court were aware that
the petitioner’s claim of failure to present the alibi
defense included his claim that defense counsel had
allegedly undertaken an inadequate investigation.
Therefore, our review of this claim would not prejudice
the respondent. We find that the petitioner adequately
preserved his claim that defense counsel performed
deficiently by failing to adequately prepare and present
his alibi defense.
2
The following additional facts are necessary to our
determination of this claim. At the habeas trial, Joyce
testified that the petitioner was home with her from
approximately 5 to 11 p.m. on the night of the shooting.
She further testified that the petitioner had a female
guest named Camia at the house from between approxi-
mately 6 to 8 p.m. and that he stayed home after she
left. Joyce testified that during the critical time between
10 and 11 p.m., when the murder occurred, the peti-
tioner was home, ‘‘walking around the house’’ ‘‘back
and forth [in between] rooms [and] talking on the
phone,’’ but that he was ‘‘mainly in his room.’’ During
this time, she was in the living room playing with her
children and watching television. She admitted, how-
ever, that the petitioner was not consistently within her
line of sight. She testified that the petitioner left the
house at about 11 p.m. and that he did not leave the
house at any other time between 5 and 10:45 p.m.
because either she would have seen him leave through
the front door, or, if he had left through the back door,
she would have seen the sensor light located in the
driveway go on or would have heard the back door
screech. Joyce testified that she never gave a sworn
statement to the police but did convey all of this infor-
mation to defense counsel’s investigator, Matthew
Whalen, prior to the second trial.
Joyce’s testimony was not offered at the criminal trial
because defense counsel elected not to present an alibi
defense. Attorney Jones testified that he and Attorney
Merkin disagreed about this decision. Attorney Jones
testified that he wanted to present the alibi defense but
Attorney Merkin did not.4 In the end, defense counsel
testified that after hearing Ford recant during the state’s
case-in-chief, Attorney Jones yielded to Attorney Mer-
kin’s decision not to present the alibi defense on the
ground that it was cleaner to have ‘‘the jury just focused
on whether or not the state met its burden of proof
through Ralph Ford,’’ in light of the fact that he was
the sole eyewitness and had recanted on the witness
stand at the second trial. Defense counsel were con-
cerned that the alibi defense would ‘‘[pull] attention
away from [the recantation and] the weaknesses in the
state’s case and . . . [place the] jurors’ focus on the
weaknesses in the alibi.’’
Attorney Merkin testified that Joyce’s testimony was
weak on the basis of various concerns she had: ‘‘[O]ne,
that she’s a family member; two, that this [the alibi]
happened a block away from the shooting; number
three, that he was getting a ride and leaving the area
at 10:45 [p.m., creating possible consciousness of guilt
evidence on the basis of flight]. I didn’t like that because
the jurors could infer that he had maybe done the shoot-
ing and was taking off. Plus, I thought that we had done
a very good job in [the] second trial of attacking Ralph
Ford.’’5 An additional concern, according to Attorney
Merkin, was that Joyce did not come forward and give
a statement to the police.6 Attorney Merkin also testified
that when the defense team initially spoke with Joyce,
she was not as clear and certain about the times when
the petitioner was home,7 or about whether the peti-
tioner was within her range of vision or in the house
the entire night until 10:45 p.m. Attorney Merkin related
that she was concerned that, on cross-examination, the
prosecutor could get Joyce to admit that her attention
had wandered to the television or that she had gone
into another room for a few minutes, allowing for the
inference that the petitioner could have left without
her knowledge.
Although Attorney Jones admitted that he was ‘‘pretty
confident’’ that he and Attorney Merkin never asked
Joyce how she knew the petitioner was in the house
even when she did not see him, he nevertheless testified
that if they had known about the sensor light and
screeching door, ‘‘it wouldn’t have necessarily made or
broke the decision in this regard to present the alibi
defense.’’ He testified that there remained the concern
that Joyce ‘‘could not unequivocally tell you that she
was in the presence of [the petitioner] between 10:20
and even 10:45 p.m. . . . Not continuously . . . .’’
Additionally, although the jury knew that the petition-
er’s home was close to the crime scene, in the absence
of the alibi testimony, there was no evidence in the
record to suggest that the petitioner was home at the
time of the murder,8 and such evidence could have had
the harmful effect of placing him in very close proximity
to the crime scene at the time of the shooting.
As to Allen, she testified at the habeas trial that she
had called the petitioner on his cellular phone between
10 and 10:20 p.m. on the night of the shooting. According
to her, the petitioner answered her call and told her to
call him back on his home phone. She testified that she
called him back on his landline and that they spoke for
approximately ten to fifteen minutes. Allen testified that
they spoke about the petitioner lending her money to
buy supplies for her baby. She further testified that he
then called her from his landline at 10:35 p.m. and that
they spoke for approximately five minutes. Her caller
identification system recorded that the petitioner called
her from his landline at 10:35 p.m., but it did not record
the timing of the prior calls. Allen then picked the peti-
tioner up with her vehicle at his home at approximately
10:50 p.m. and drove him to Southern Connecticut State
University. Allen testified that she related this informa-
tion to Investigator Whalen.
Investigator Whalen testified at the habeas trial that
although Allen told the police that she first had called
the petitioner on his landline at approximately 10:20
p.m. on the night of the shooting, she told him that she
initially called him on his cell phone and then called
him back on his landline between 10 and 10:15 p.m.
Moreover, Investigator Whalen testified that because
the shooting occurred sometime between 10:20 and
10:30 p.m. and because Allen was uncertain as to the
timing of the first two phone calls, there was ‘‘no defini-
tive information from her that a phone call was taking
place during the time that . . . the shots were fired
. . . .’’9
Attorney Jones testified that although he wanted to
present the alibi defense, he was concerned that Allen’s
testimony would place the petitioner in close proximity
to the shooting and that ‘‘the jury could find it plausible
that he could slip out [of his home to commit the mur-
der] in a relatively short time period.’’ Attorney Merkin
testified that, in addition to her general concerns about
alibi defenses; see footnote 4 of this opinion; she was
concerned that Allen was not certain enough about the
timing and length of the first two phone calls. Allen’s
testimony regarding the length of the first call to the
petitioner’s landline was uncertain, fluctuating any-
where between five minutes, ten minutes, and twenty
minutes. Attorney Merkin believed Allen to be ‘‘vulnera-
ble to cross-examination. . . . How do you know how
long you were talking, you know; are you sure it was
10:00? Was it 10:00? Was it 10:20? You say 10:00 or
10:20—you know, things like that that were shifting
variables in her testimony, that concerned me.’’ Like
Attorney Jones, Attorney Merkin also testified that she
was concerned about placing the petitioner in close
proximity to the crime scene and informing the jury
that, soon after the shooting, the petitioner fled from
the area. Attorney Merkin testified that she did not want
the issues of timing, proximity, and flight to distract
the jury’s attention ‘‘away from the questions about
[Ford’s] credibility.’’
In determining whether defense counsel failed to
properly prepare and present Joyce’s and Allen’s alibi
testimony, the following additional legal principles
guide our analysis. Defense counsel will be deemed
ineffective only if they knew of the existence of a wit-
ness and, ‘‘without a reasonable investigation and with-
out 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.’’ State
v. Talton, supra, 197 Conn. 297–98.
‘‘[O]ur habeas corpus jurisprudence reveals several
scenarios in which courts will not second-guess defense
counsel’s decision not to investigate or call certain wit-
nesses or to investigate potential defenses, [including]
. . . when . . . counsel learns of the substance of the
witness’ testimony and determines that calling that wit-
ness is unnecessary or potentially harmful to the case
. . . .’’ Gaines v. Commissioner of Correction, 306
Conn. 664, 681–82, 51 A.3d 948 (2012); see Morquecho
v. Commissioner of Correction, 164 Conn. App. 676,
685, 138 A.3d 424 (2016) (‘‘we note that the petitioner’s
first criminal trial resulted in a hung jury, lending cre-
dence to [defense counsel’s] decision not to present
‘weak witnesses’ who could tarnish the petitioner’s
defense during his second criminal trial’’).
Moreover, ‘‘we acknowledge that counsel need not
track down each and every lead or personally investi-
gate every evidentiary possibility before choosing a
defense and developing it.’’ (Internal quotation marks
omitted.) Gaines v. Commissioner of Correction,
supra, 306 Conn. 683. ‘‘[T]he failure of defense counsel
to call a potential defense witness does not constitute
ineffective assistance unless there is some showing that
the testimony would have been helpful in establishing
the asserted defense.’’ Id., 681. When the failure to call
a witness implicates an alibi defense, an alibi witness’
testimony has been found unhelpful and defense coun-
sel’s actions have been found reasonable when ‘‘the
proffered witnesses would fail to account sufficiently
for a defendant’s location during the time or period in
question . . . .’’ Spearman v. Commissioner of Cor-
rection, 164 Conn. App. 530, 546, 138 A.3d 378, cert.
denied, 321 Conn. 923, 138 A.3d 284 (2016); see also
Morquecho v. Commissioner of Correction, supra, 164
Conn. App. 685 (decision not to call alibi witnesses was
reasonable when ‘‘no witness could establish that the
petitioner was at home during the critical time frame’’).
For example, in Spearman v. Commissioner of Cor-
rection, supra, 164 Conn. App. 533, the petitioner
alleged that his defense counsel had performed defi-
ciently by failing to present alibi witnesses at his crimi-
nal trial. The petitioner in Spearman had been charged
with and convicted of arson for setting fire to a house
located across the street from the house in which he was
staying. Id., 534–35, 546. Alibi witnesses told defense
counsel that the petitioner had been asleep in his room
at the time the fire was set and started. Id., 548, 550–52.
All of the alibi witnesses were believed to be credible
by defense counsel. Id., 546. However, defense counsel
was concerned that the alibi witnesses were vulnerable
on cross-examination because they were all family
members, they could not provide an airtight alibi, and
they would place the petitioner in close proximity to
the crime scene. Defense counsel in Spearman found
the alibi to be weak because although the witnesses
credibly stated that they believed the petitioner to be
in his room asleep, the petitioner had not been in their
line of sight during the relevant time period. Id., 548.
As a result, defense counsel decided not to offer an
alibi defense at trial.
Both the habeas court and the Appellate Court in
Spearman held defense counsel’s decision to be reason-
able trial strategy.10 Id., 552, 561. Specifically, both
courts determined that defense counsel ‘‘reasonably
was concerned about offering the alibi testimony
because none of these witnesses [was] able to provide
an alibi for the petitioner before the fire, and it was
not disputed that the petitioner’s house was in close
proximity to, and easily accessible by the petitioner
from, the site of the arson. In particular, [defense coun-
sel] testified that cross-examination might potentially
have exposed the possibility that the petitioner [c]ould
. . . have woken up and went out the back door and
returned . . . . None of the proffered alibi testimony,
even if believed, established that the petitioner was in
bed . . . either sufficiently prior to, or at the precise
moment, when the fire was started.’’ (Internal quotation
marks omitted.) Id., 562. The Appellate Court in Spear-
man found defense counsel’s decision reasonable even
though the state’s case was relatively weak and rested
primarily on the testimony of one eyewitness of ques-
tionable credibility.
In the present case, defense counsel testified to a
variety of strategic reasons for their decision not to
present an alibi defense. We are required to ‘‘indulge
[the] strong presumption that counsel made all signifi-
cant decisions in the exercise of reasonable profes-
sional judgment.’’ (Internal quotation marks omitted.)
Cullen v. Pinholster, 563 U.S. 170, 196, 131 S. Ct. 1388,
179 L. Ed. 2d 557 (2011). In fact, we are ‘‘required not
simply to give [the] attorneys the benefit of the doubt
. . . but to affirmatively entertain the range of possible
reasons . . . counsel may have had for proceeding as
they did . . . .’’ (Citations omitted; internal quotation
marks omitted.) Id.
In general, defense counsel were concerned that the
alibi defense would distract the jury from Ford’s recan-
tation.11 Defense counsel decided to focus the jury’s
attention on the fact that the state had a weak case and
that the only eyewitness had recanted on the witness
stand, especially in light of the fact that the first trial
ended in a hung jury. Defense counsel wanted the last
thing that the jury heard before it began deliberations
to be the state’s lack of evidence, and not a possibly
problematic alibi defense. Specifically, as to both Joyce
and Allen, defense counsel were concerned that the
alibi defense would place the petitioner in close proxim-
ity to the crime scene and allow the prosecutor to argue
consciousness of guilt on the basis of flight because
both witnesses testified that the petitioner left the area
at approximately 10:50 p.m. As to Joyce in particular,
defense counsel believed that she would be vulnerable
on cross-examination based on her bias as a family
member, the petitioner’s having been outside of her line
of sight when they were in the house together, her
having been potentially too distracted by her children
and the television to notice the petitioner leaving the
house, her failure to give a sworn statement to the
police, and the petitioner’s failure to identify her to the
police as an alibi witness. As to Allen, defense counsel
had concerns that the imprecise timing of the telephone
calls between her and the petitioner, and the shooting,
would allow the jury to infer that the petitioner had
time to both commit the murder and speak with Allen
on the telephone.
The reasons stated by defense counsel are similar to
those found reasonable in Spearman. In both cases,
the alibi witnesses were family, the alibi placed the
petitioner in close proximity to the crime scene, and
the alibi witnesses testified that the petitioner was home
but not within their line of sight. In the present case,
although Joyce testified that she would have known if
the petitioner left the house because of the screeching
back door and sensor lights in the driveway, her testi-
mony did not account for the fact that the petitioner
was not within her line of sight during the time of the
murder. It was reasonable for defense counsel to be
concerned that the jury might have questioned whether
she was distracted by the television or her children that
night.12 Such a concern was justified even if she was
considered a credible witness by the habeas court or
defense counsel.
Additionally, although the jury reasonably could have
concluded that Allen’s testimony established that the
petitioner was speaking with her from his landline at
the time of the murder, the imprecision in the timing
of the calls and the timing of the murder also made it
possible that the jury could have concluded that he
participated in the calls and committed the murder,
especially given the close proximity of his house to the
crime scene. Once again, despite the habeas court’s
finding that Allen’s testimony was credible,13 it was rea-
sonable for defense counsel to be concerned that the
jury might determine that the imprecision in timing left
open the possibility that the petitioner committed the
murder and participated in the telephone calls.
It is important to accord due weight to defense coun-
sel’s concern that the alibi testimony would have placed
the petitioner a mere two blocks from the crime scene
at or near the time of shooting. The petitioner argues
that the alibi defense would not have been risky because
the jury already knew where the petitioner’s house was
located and that at approximately 11 p.m. he was a few
miles away from the crime scene at Southern Connecti-
cut State University. But the alibi evidence, if presented,
would have established that at the time of the shooting,
the petitioner was at or near his home in very close
proximity to the shooting. No other evidence so directly
highlighted the petitioner’s proximity to the scene of the
crime at the time of the shooting. There is a distinction
between being a few miles away from the crime scene
soon after the murder, and being within two blocks of
the crime scene at or near the time of the murder and
then fleeing from the scene shortly thereafter.
As a result, we conclude, as the Appellate Court did
in Spearman, that counsel made a reasonable strategic
decision because ‘‘the proffered witnesses would [have]
fail[ed] to account sufficiently for [the petitioner’s] loca-
tion during the time or period in question . . . .’’ Spear-
man v. Commissioner of Correction, supra, 164 Conn.
App. 546. Even if ‘‘there [was] some showing that the
[alibi] testimony would have been helpful in establish-
ing the asserted [alibi] defense’’; (internal quotation
marks omitted) Gaines v. Commissioner of Correction,
supra, 306 Conn. 681; defense counsel made a strategic
decision that presenting an alibi defense had the poten-
tial to be more harmful than helpful to the petitioner’s
case. See id., 681–82; see also Morquecho v. Commis-
sioner of Correction, supra, 164 Conn. App. 681–85
(defense counsel’s decision not to present alibi was
reasonable strategy when alibi did not definitely place
petitioner home at time of murder and would possibly
distract jury from state’s weak case). Although the
state’s case against the petitioner might not have been
overwhelming and another attorney might have
defended him differently,14 we cannot conclude that
his conviction was a result of constitutionally deficient
counsel under Strickland.
Nevertheless, the petitioner argues that proper inves-
tigation into the testimony of Joyce and Allen would
have enabled defense counsel to address any weak-
nesses in the alibi defense. As to Joyce, he argues that
defense counsel’s concern about his having been out-
side of Joyce’s line of sight when he was in the house
with her would have been ameliorated if defense coun-
sel had learned that Joyce would have known if he
had left the house because she would have heard the
screeching back door or seen the outdoor sensor lights.
At the habeas trial, defense counsel admitted to not
having asked or known about the screeching back door
or the sensor lights. But Attorney Jones also testified
that such knowledge would not have affected the deci-
sion not to present the alibi defense. Screeching door
or not, defense counsel still had concerns regarding (1)
the petitioner’s having been outside of Joyce’s line of
sight, (2) Joyce’s having potentially been too distracted
by her children and the television to notice the peti-
tioner leaving the house, even with the screeching door
and sensor lights, (3) proximity to the crime scene, (4)
consciousness of guilt on the basis of flight, and (5)
bias. Defense counsel ceased investigating only after
they decided that calling Joyce potentially would be
more harmful than helpful to the case. See Gaines v.
Commissioner of Correction, supra, 306 Conn. 681–82.
Such a decision is reasonable, and we will not second-
guess it with the advantage of hindsight.
As to Allen, the petitioner alleges that defense coun-
sel would have presented her testimony if they had
properly investigated the timing of the telephone calls
between her and the petitioner. He contends that
defense counsel were mistaken regarding the timing of
the calls and the shooting. If defense counsel had been
fully aware of Allen’s testimony, the petitioner reasons,
they would have realized that her testimony made it
impossible for him to have time to participate in the
telephone calls with Allen and to leave the house to
commit the murder.
It is true that at the first criminal trial, defense counsel
mistakenly believed that the shooting occurred at
approximately 10:45 p.m. At oral argument before this
court, the petitioner contended that during the second
criminal trial, defense counsel continued to labor under
the misapprehension that the shooting occurred at 10:45
p.m. His contention was based on defense counsel’s
notice of alibi, which stated that the shooting occurred
at 10:45 p.m. The notice of alibi, however, was from
the first criminal trial. Defense counsel testified at the
habeas trial that by the time of the second trial, they
were aware that the shooting occurred between 10:20
and 10:30 p.m., and that Allen had indicated that she
had spoken with the petitioner on the telephone via his
landline sometime between 10 and 10:20 p.m. for an
uncertain length of time and again at 10:35 p.m. Defense
counsel knew of and considered this information when
they decided not to present Allen’s testimony at the
second criminal trial. As a result, the petitioner has not
identified any information that defense counsel failed
to glean from their investigation of Allen.15
Additionally, the petitioner argues that defense coun-
sel’s decision to forgo an alibi defense was not reason-
able because a juror from the first criminal trial
specifically told defense counsel that it would have
been helpful if the jury knew where the petitioner was
between 10 and 11 p.m. on the night of the shooting.
According to the petitioner, his ‘‘whereabouts at the
time of the shooting was the most significant factor in
the jury’s failure to acquit.’’16 This reasoning is flawed
on two accounts. First, although the first jury may have
wanted to know where the petitioner was at the relevant
time, the answer provided by the alibi evidence was
decidedly double-edged because it placed the petitioner
extremely close to the scene of the crime. Second, the
second trial occurred under circumstances that were
markedly different from those of the first trial because
of Ford’s recantation. It was reasonable for defense
counsel to change their strategy accordingly. Defense
counsel made the strategic decision that, despite the
first jury’s having wanted to know the petitioner’s
whereabouts, the alibi evidence had the potential to do
more harm than good at the second trial and should
be sidelined in favor of a less risky strategy that was
based on Ford’s recantation.
For all of the foregoing reasons, we agree with the
Appellate Court that defense counsel made a reasonable
strategic decision not to present an alibi defense that
possibly would have been more harmful than helpful by
distracting the jury from Ford’s recantation, introducing
issues of proximity and consciousness of guilt, and fail-
ing to account definitively for the petitioner’s where-
abouts during the time of the shooting. Because defense
counsel’s performance was not deficient, we conclude
that the petitioner failed to satisfy his burden under the
first prong of Strickland.
B
The petitioner next claims that the Appellate Court
improperly concluded that he was not prejudiced by
defense counsel’s failure to present third-party culpabil-
ity evidence. Specifically, he argues that the Appellate
Court improperly determined that (1) Holly’s testimony
was inadmissible as third-party culpability evidence,
and (2) he had failed to establish that Holly would
not have been allowed to invoke his fifth amendment
privilege against self-incrimination.17 As to whether
there was sufficient evidence to establish third-party
culpability, the petitioner argues that there was substan-
tial evidence connecting Ford to the shooting because
he was the last person to see the victim alive and had
possessed a gun similar to the murder weapon.18 As to
Holly’s fifth amendment privilege, the petitioner argues
that Holly would have provided no valid basis at the
criminal trial for invoking this privilege.
The respondent contends that the Appellate Court
properly determined that Holly’s testimony was inad-
missible and that there was insufficient evidence to
determine whether Holly would have been able to suc-
cessfully invoke his fifth amendment privilege. We
agree with the reasoning of the Appellate Court,
although we believe that the admissibility of Holly’s
testimony is more appropriately considered under the
deficient performance prong of Strickland, whereas the
issue of his fifth amendment privilege should be
reviewed under the prejudice prong. Accordingly, we
affirm the decision of the Appellate Court, albeit on
slightly different grounds.
The following additional facts are necessary to our
determination of this claim. At the underlying criminal
trial, the state offered the testimony of James Stephen-
son, a firearms and tool mark examiner with the state’s
forensic science laboratory. Stephenson testified that
a nine millimeter cartridge casing was found at the
scene of the crime and that a nine millimeter jacketed
bullet was retrieved from the victim’s gunshot wound.
He testified that there was no scientific way to prove
that the bullet was part of the cartridge casing that had
been found at the scene of the crime. Additionally, the
murder weapon had never been recovered. However,
on the basis of the markings on the bullet, he testified
that the bullet had been fired from a gun manufactured
by Hi-Point and that the gun was either a semiautomatic
pistol or a rifle.
At the habeas trial, the petitioner offered the testi-
mony of Gerard Petillo, a firearms expert, who con-
firmed Stephenson’s testimony that Hi-Point guns
create distinctive ballistics evidence. Petillo further tes-
tified regarding unique physical characteristics of Hi-
Point guns, such as the Hi-Point logo and firearm infor-
mation stamped onto the left side of the gun. Neither
expert testified about whether the ridging design near
the handle of a Hi-Point semiautomatic pistol was
unique to pistols manufactured by Hi-Point.
At the habeas trial, Holly testified that he saw the
victim and Ford on the afternoon of the shooting coming
down Newhall Street on bicycles when they stopped
and Ford showed Holly a handgun that he had tucked
into the waistband of his pants. Holly testified that he
tried to grab the gun because he wanted it but that
Ford ran away.
Holly testified that he saw only the handle of the gun,
not the barrel. He described the gun as either a nine
millimeter or .380 caliber black pistol. He testified fur-
ther that he was not sure if the gun was real or fake
and thought it could have been a BB gun. However,
Holly did testify that it ‘‘looked like one of the guns
[he] had before’’ and that he knew guns. When shown
the photograph of a black, Hi-Point nine millimeter
semiautomatic pistol, Holly testified that ‘‘[t]hat might
be it. It looked like the gun’’ that he saw in Ford’s
possession because of the ridges at the top near the
handle but that he had seen other kinds of guns with
ridges in the past. He further testified that he had pro-
vided all of this information to Investigator Whalen.
Despite having provided this information at the
habeas trial, Holly also testified that he had told both
his own attorneys and Investigator Whalen that he was
not willing to testify at the criminal trial. He testified
that he had been advised by counsel to invoke his fifth
amendment privilege against self-incrimination. Never-
theless, he testified that if he had been ordered to testify
by the criminal court, he would have testified. He testi-
fied that he did not recall telling Attorney Farver that
he would not testify at the criminal trial even if the trial
court rejected his claim of a fifth amendment privilege.
Holly testified that his reason for not wanting to testify
was that he was worried that the prosecutor handling
a criminal case then pending against him also was the
prosecutor for the petitioner’s case and would hold any
testimony favorable to the petitioner against him.
Holly testified that although he wanted to invoke his
fifth amendment privilege, he had not been worried at
the time of the criminal trial that he possibly would
incriminate himself if he had been required to take the
witness stand. This claim does not withstand scrutiny.
Holly had multiple criminal cases pending against him
at the time of the petitioner’s criminal trial. Specifically,
Farver testified at the habeas trial that Holly was under
investigation in a murder case and had been ‘‘busted
with the gun’’ involved in that case. Additionally, Attor-
ney Thomas Ullman, a public defender who represented
Holly in connection with other criminal matters, testi-
fied at the habeas trial that he represented Holly at
the time of the petitioner’s criminal trial in relation to
charges of robbery in the first degree and assault on a
police officer. Attorney Ullman also testified that he
had represented Holly in some other matters as well
at that time but that they did not result in a plea or
sentence. On the basis of these other pending criminal
matters, Attorney Ullman stated, he advised Holly not
to speak with Investigator Whalen or to testify at the
petitioner’s criminal trial ‘‘[b]ecause [there was] the
potential that . . . Holly could incriminate himself or
hurt his situation in the pending case’’ in which Attorney
Ullman was representing him.
Attorney Farver testified that Holly had informed him
that he intended to invoke his fifth amendment privi-
lege, but he did not recall Holly’s reasoning for wanting
to do so and believed that even if he did recall Holly’s
reasoning, such information would be privileged. He
further testified that he had told the criminal court at
the hearing on a motion for a new trial that Holly would
be exercising his fifth amendment right because he had
pending charges and did not want to testify. He also
had told the court that although he was not certain
whether Holly could successfully invoke this privilege,
Holly had told him that he would not testify even if
ordered to do so by the court.
At the habeas trial, defense counsel’s description of
Holly’s hypothetical, third-party culpability testimony
differed from Holly’s testimony at the habeas trial. Both
Attorney Jones and Attorney Merkin testified that Holly
had informed them that he had seen Ford with a gun two
or three days before the victim was shot. Specifically,
defense counsel testified that Holly had informed them
that two or three days before the murder, he had seen
Ford, the victim, and another person named Cory
Hunter on the corner of Newhall and Huntington
Streets, and that Ford had ‘‘[e]ither a nine millimeter
or a .380 caliber, black semiautomatic’’ gun. Although
Holly was not sure if the gun was real or fake and did
not know the manufacturer, he told defense counsel
that he had wanted the gun and tried to grab it. Addition-
ally, Attorney Jones testified that Holly did not witness
Ford shoot the victim and that the murder weapon was
never recovered.
On the basis of this information, defense counsel
testified that, at the time of the criminal trial, (1) they
did not believe that there was sufficient evidence to
support a third-party culpability defense, and, (2) as
with the alibi testimony, they did not want to distract
from the weakness of the state’s case and Ford’s recan-
tation.19 Defense counsel were concerned that there was
not a sufficient nexus to establish third-party culpability
because Holly’s testimony did not directly connect Ford
to the murder in any way: Holly’s testimony was about
seeing a gun two or three days prior to the murder, not
on the day of the murder; there were no statements
by Ford about using the gun; Holly could not provide
specific information regarding the gun, such as its man-
ufacturer, make, or model; and no one witnessed Ford
using the gun. However, Attorney Merkin admitted at
the habeas trial that defense counsel did not show Holly
a photograph of a nine millimeter Hi-Point pistol to see
if he could identify it as the kind of gun he saw in
Ford’s waistband.
Attorney Jones also testified that he was aware that
Holly would exercise his fifth amendment right not to
testify, ‘‘[t]o the extent that he could,’’ if called to testify.
He recalled that Holly had been advised not to cooper-
ate and to invoke his fifth amendment privilege. Never-
theless, Attorney Jones testified that this knowledge
did not factor into the decision not to call Holly at the
criminal trial.
Attorney Merkin also testified that Holly’s intention
to invoke his fifth amendment privilege against self-
incrimination was not part of her decision not to call
him as a witness. She was aware, however, of his inten-
tion to invoke the privilege and thought about his intent
to do so prior to making the decision not to call him.
Attorney Merkin further testified that although Holly
never was implicated in the present case, his testimony
regarding his attempt to grab the gun from Ford may
have been self-incriminating.
1
With this factual backdrop in mind, ‘‘the question
of whether [counsel’s] actions fell below an objective
standard of reasonableness turns on whether [the] deci-
sion not to solicit the testimony of . . . [a witness]
to support the [third–party] culpability defense can be
considered sound trial strategy, or whether it consti-
tutes a serious deviation from the actions of an attorney
of ordinary training and skill in criminal law.’’ Bryant
v. Commissioner of Correction, supra, 290 Conn. 513.
To determine whether an objectively reasonable
attorney would decide not to present a third-party cul-
pability defense on the ground of inadmissibility, it is
necessary to review the legal principles underlying such
a defense: ‘‘The admissibility of evidence of [third–
party] culpability is governed by the rules relating to
relevancy. . . . Relevant evidence is evidence having
any tendency to make the existence of any fact that is
material to the determination of the proceeding more
probable or less probable than it would be without the
evidence. . . . Accordingly . . . the proffered evi-
dence [must] establish a direct connection to a third
party, rather than raise merely a bare suspicion regard-
ing a third party . . . . Such evidence is relevant,
exculpatory evidence, rather than merely tenuous evi-
dence of [third–party] culpability [introduced by a
defendant] in an attempt to divert from himself the
evidence of guilt. . . . In other words, evidence that
establishes a direct connection between a third party
and the charged offense is relevant to the central ques-
tion before the jury, namely, whether a reasonable
doubt exists as to whether the defendant committed the
offense. Evidence that would raise only a bare suspicion
that a third party, rather than the defendant, committed
the charged offense would not be relevant to the jury’s
determination. A trial court’s decision, therefore, that
[third–party] culpability evidence proffered by the
defendant is admissible, necessarily entails a determi-
nation that the proffered evidence is relevant to the
jury’s determination of whether a reasonable doubt
exists as to the defendant’s guilt.’’ (Citations omitted;
internal quotation marks omitted.) Id., 514–15.
‘‘Whether a defendant has sufficiently established a
direct connection between a third party and the crime
with which the defendant has been charged is necessar-
ily a fact intensive inquiry. In other cases, this court
has found that proof of a third party’s physical presence
at a crime scene, combined with evidence indicating
that the third party would have had the opportunity to
commit the crime with which the defendant has been
charged, can be a sufficiently direct connection for pur-
poses of third party culpability. . . . Similarly, this
court has found the direct connection threshold satis-
fied for purposes of [third–party] culpability when phys-
ical evidence links a third party to a crime scene and
there is a lack of similar physical evidence linking the
charged defendant to the scene. . . . Finally, this court
has found that statements by a victim that implicate the
purported third party, combined with a lack of physical
evidence linking the defendant to the crime with which
he or she has been charged, can sufficiently establish
a direct connection for [third–party] culpability pur-
poses.’’ (Citations omitted.) State v. Baltas, 311 Conn.
786, 811–12, 91 A.3d 384 (2014).
‘‘It is not ineffective assistance of counsel . . . to
decline to pursue a [third–party] culpability defense
when there is insufficient evidence to support that
defense. See Dunkley v. Commissioner of Correction,
73 Conn. App. 819, 827, 810 A.2d 281 (2002) (no evidence
to support [third–party] claim, in part, because no one
at scene implicated alleged third party), cert. denied,
262 Conn. 953, 818 A.2d 780 (2003); see also Floyd v.
Commissioner of Correction, 99 Conn. App. 526, 531–
32, 914 A.2d 1049 (insufficient evidence to substantiate
[third–party] claim when predicated on alleged testi-
mony of unlocated drug dealers who were also gang
members), cert. denied, 282 Conn. 905, 920 A.2d 308
(2007); Santiago v. Commissioner of Correction, 87
Conn. App. 568, 591–92, 867 A.2d 70 ([third–party] state-
ments did not contain sufficient substance to support
viable [third–party] claim), cert. denied, 273 Conn. 930,
873 A.2d 997 (2005); Alvarez v. Commissioner of Cor-
rection, 79 Conn. App. 847, 851, 832 A.2d 102 (insuffi-
cient evidence to support [third–party] culpability
defense when petitioner called only one witness at
habeas hearing who did not even observe shooting),
cert. denied, 266 Conn. 933, 837 A.2d 804 (2003); Daniel
v. Commissioner of Correction, 57 Conn. App. 651,
684, 751 A.2d 398 (testimony not sufficient to raise
[third–party] culpability defense because supporting
witnesses’ statements were inconsistent), cert. denied,
254 Conn. 918, 759 A.2d 1024 (2000).’’ Bryant v. Com-
missioner of Correction, supra, 290 Conn. 515–16.
In the present case, one of the reasons that defense
counsel decided not to present a third-party culpability
defense was that they did not believe that Holly’s testi-
mony was sufficient to establish a direct connection
between Ford and the shooting but, rather, that it cre-
ated only a mere suspicion that Ford may have acciden-
tally shot the victim. According to defense counsel,
there was no evidence that directly established that
Ford shot the victim, either accidentally or otherwise,
and none was introduced at the criminal trial.20 In the
absence of this nexus, defense counsel believed that
Holly’s testimony was irrelevant and, thus, inad-
missible.
Defense counsel were correct that Holly’s testimony
would have failed to establish a sufficient nexus
between the victim’s murder and Ford. The third-party
culpability evidence would have consisted of the follow-
ing: (1) Ford had been the last person seen with the
victim; (2) Ford had been in close proximity to the
crime scene near the time of the shooting; and (3) Ford
had been seen with a black semiautomatic pistol—man-
ufacturer unknown, possibly fake—two to three days
before the shooting.
Although Holly stated at the habeas trial that the gun
he saw looked similar to the photograph he had been
shown of a nine millimeter Hi-Point semiautomatic pis-
tol, he never definitively testified that the gun he saw
was a nine millimeter Hi-Point semiautomatic pistol.
He testified only that the gun he saw might have been
a nine millimeter Hi-Point pistol on the basis of the fact
that its ridges looked similar. He admitted, however,
that he had seen other guns that have these kinds of
ridges as well. There also was no evidence admitted at
the habeas trial to establish that these ridges were a
unique characteristic of a Hi-Point pistol. Thus, there
was no clear evidence that Ford possessed the mur-
der weapon.
Additionally, as far as defense counsel were aware,21
there was no evidence that Ford had a gun in his posses-
sion at the time of the murder. There also was no evi-
dence that anyone saw Ford shoot the victim or that
Ford was present at the crime scene at the time of
the shooting. Moreover, the record is devoid of any
statements by Ford, the victim, or any other witness
that would implicate Ford as the shooter.
As a result, the third-party culpability evidence at best
created a mere suspicion of, but was too speculative
to establish, a direct connection between Ford and the
murder.22 In the absence of this nexus, Holly’s testimony
was irrelevant and, thus, likely inadmissible.
Even if Holly’s testimony did create some direct link
between Ford and the murder, this nexus was suffi-
ciently weak so as to justify defense counsel’s strategic
decision not to offer Holly’s testimony on the ground
that it would distract the jury from the weakness of the
state’s case and Ford’s recantation. See, e.g., Michael
T. v. Commissioner of Correction, supra, 319 Conn.
634 (‘‘whether reasonable counsel could have con-
cluded that the benefit of presenting [expert witness’
testimony] . . . was outweighed by any damaging
effect’’ that could occur, where testimony could have
provided basis for admission of other evidence poten-
tially harmful to petitioner); Gaines v. Commissioner of
Correction, supra, 306 Conn. 681–82 (it is not deficient
performance not to call witness if ‘‘counsel learns of
the substance of the witness’ testimony and determines
that calling that witness is . . . potentially harmful to
the case’’). Holly’s testimony would have required the
jury essentially to conduct a trial within a trial to deter-
mine whether there was sufficient evidence that Ford
had shot the victim so as to create reasonable doubt
about the petitioner’s guilt. As discussed previously,
the evidence directly connecting Ford to the shooting
was weak enough that it possibly would have served
only to confuse or distract the jury by focusing the jury
on the competing likelihood of whether Ford or the
petitioner committed the murder. After all, the peti-
tioner recently had assaulted and injured the victim and
taken a bicycle from him. He expressed to Toles that
he was concerned that he might be going back to jail
over that incident. In an attempt to focus the jury on
Ford’s recantation and not to muddy the waters,
defense counsel made a reasonable strategic decision
not to present a third-party culpability defense through
Holly’s testimony on the grounds that it was inadmissi-
ble and would distract from Ford’s recantation. Accord-
ingly, defense counsel did not perform deficiently by
failing to present a third-party culpability defense.
Therefore, the petitioner’s claim fails under the first
prong of Strickland.
2
Moreover, even if Holly’s testimony were admissible,
we also conclude that the petitioner failed to establish
that Holly would have been unable to successfully
invoke his fifth amendment privilege against self-
incrimination. Without such evidence, the petitioner
cannot establish prejudice under the second prong of
Strickland.
Under the prejudice prong of Strickland, the peti-
tioner was required to ‘‘demonstrate that there is a
reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different.’’ (Internal quotation marks omitted.)
Breton v. Commissioner of Correction, supra, 325
Conn. 669. It is undisputed that if Holly had been called
at the criminal trial, he would have attempted to invoke
his fifth amendment privilege against self-incrimina-
tion.23 As a result, to prove prejudice, the petitioner
was required to establish that Holly’s invocation of the
privilege would have been rejected.
It is well settled that ‘‘[a] court may not deny a wit-
ness’ invocation of the fifth amendment privilege
against compelled self-incrimination unless it is per-
fectly clear, from a careful consideration of all the cir-
cumstances in the case, that the witness is mistaken,
and that the answer[s] cannot possibly have [a] ten-
dency to incriminate. . . . To sustain the privilege, it
need only be evident from the implications of the ques-
tion, in the setting in which it is asked, that a responsive
answer to the question or an explanation of why it
cannot be answered might be dangerous because injuri-
ous disclosure could result.’’ (Citations omitted; empha-
sis added; internal quotation marks omitted.) Martin
v. Flanagan, 259 Conn. 487, 495, 789 A.2d 979 (2002);
accord In re Keijam T., 226 Conn. 497, 503–504, 628
A.2d 562 (1993).
‘‘The privilege afforded not only extends to answers
that would in themselves support a conviction under a
. . . criminal statute but likewise embraces those
which would furnish a link in the chain of evidence
needed to prosecute the claimant for a . . . crime.
. . . But this protection must be confined to instances
where the witness has reasonable cause to apprehend
danger from a direct answer. . . . To sustain the privi-
lege, it need only be evident from the implications of
the question, in the setting in which it is asked, that a
responsive answer to the question or an explanation of
why it cannot be answered might be dangerous because
injurious disclosure could result. The trial judge in
appraising the claim must be governed as much by his
personal perception of the peculiarities of the case as
by the facts actually in evidence.’’ (Citations omitted;
internal quotation marks omitted.) Hoffman v. United
States, 341 U.S. 479, 486–87, 71 S. Ct. 814, 95 L. Ed.
1118 (1951).
In the present case, there was insufficient evidence
to determine that Holly’s invocation of his fifth amend-
ment privilege would not have been sustained. Holly’s
testimony included an admission that he attempted to
steal a gun, that he had previously possessed a similar
gun, and that he ‘‘knew’’ guns. These statements must
be viewed in light of Holly’s pending armed robbery and
assault charges, and the unrelated murder investigation.
From this limited record, it appears that both the rob-
bery charge and the murder investigation involved guns.
It is unknown from this record what kinds of guns
were at issue in those other matters. It is also unknown
whether these other crimes occurred before or after
the murder in this case. As a result, it is plausible that
Holly’s statement that he previously possessed a similar
gun would implicate him in these other crimes. On this
record, therefore, it is not ‘‘perfectly clear’’ that Holly
would not have been entitled to invoke his fifth amend-
ment privilege. In the absence of such clarity, the crimi-
nal trial court likely would have been precluded from
denying Holly’s invocation of his fifth amendment privi-
lege against compelled self-incrimination.
The petitioner argues that this analysis focuses on
the wrong question. He contends that the question is
not whether Holly actually was entitled to invoke the
privilege, but whether, on the basis of the information
that would have been presented at the criminal trial,
the trial court would have permitted Holly to invoke
the privilege. The petitioner contends, on the basis of
the evidence that would have been available at the time
of the criminal trial, that there would not have been
sufficient evidence to establish that Holly would be
incriminated by his testimony such that the court would
have rejected his invocation of the fifth amendment
privilege.
The petitioner is correct that the question at issue is
not whether Holly actually was entitled to invoke his
fifth amendment privilege against self-incrimination.
The petitioner, however, attempts to place too stringent
of a burden on Holly to establish his right to remain
silent at trial. For Holly to have invoked this privilege
at the underlying criminal trial, he would not have had
to prove that his testimony definitively would have
incriminated him. To invoke the privilege, ‘‘it need only
be evident from the implications of the question, in the
setting in which it is asked, that a responsive answer
to the question or an explanation of why it cannot be
answered might be dangerous because injurious disclo-
sure could result.’’ (Internal quotation marks omitted.)
Martin v. Flanagan, supra, 259 Conn. 495. Thus, the
question is: on the basis of the evidence provided, was
there a possibility that Holly’s testimony might be dan-
gerous to him because injurious disclosure could result?
The testimony of Holly, Attorney Ullman, and Attor-
ney Farver at the habeas trial established that there
was indeed a possibility that Holly’s testimony might
result in an injurious disclosure.24 Specifically, Holly’s
testimony involved his previous possession of guns. At
the time of trial, Holly was charged with armed robbery
involving a gun and was being investigated in connec-
tion with a murder that involved a gun. As a result,
Holly’s testimony that he recognized Ford’s gun because
it looked like a gun that he previously possessed had
the possibility to ‘‘be dangerous because injurious dis-
closure could result.’’ (Internal quotation marks omit-
ted.) Id.
Because of this possibility of danger, a court could
not reject Holly’s invocation of the fifth amendment
privilege because it would not be ‘‘perfectly clear’’ that
he was not entitled to invoke the privilege. It was the
petitioner’s burden under Strickland to establish defi-
cient performance by presenting sufficient evidence to
show that it was perfectly clear that Holly was mistaken
and that the trial court would have rejected his invoca-
tion. As discussed previously, the evidence presented
at the habeas trial was insufficient to establish that it
was ‘‘perfectly clear’’ that Holly was not entitled to
invoke this privilege.
To overcome the shortcomings in the record, the
petitioner emphasizes the fact that Holly testified that
he did not believe that his testimony would incriminate
him. The petitioner contends that, on the basis of this
statement, Holly could not have invoked the privilege
because a witness must have ‘‘reasonable cause to
apprehend danger . . . .’’ Hoffman v. United States,
supra, 341 U.S. 486.
It is true that a witness cannot invoke his fifth amend-
ment privilege as a pretext to avoid answering ques-
tions. The standard, however, for determining whether
a witness may invoke the privilege is not whether the
witness correctly believes that his testimony would be
self-incriminating but, rather, whether there is a possi-
bility of incrimination. See In re Keijam T., supra, 226
Conn. 504. As discussed previously, on the basis of
the limited evidence in the record, there was such a
possibility, and Holly’s counsel had so advised him.
In the absence of the petitioner’s having conclusively
established that Holly could not invoke his fifth amend-
ment privilege against self-incrimination and would
have been required to testify, the petitioner cannot
establish that he was prejudiced by defense counsel’s
failure to present a third-party culpability defense
through Holly’s testimony. See Smith v. Commissioner
of Correction, 141 Conn. App. 626, 634–35, 62 A.3d 554
(no prejudice when witness invoked fifth amendment
privilege), cert. denied, 308 Conn. 947, 67 A.3d 290
(2013); Robinson v. Warden, Docket No. CV-XX-XXXXXXX,
2009 WL 1333799, *4–5 (Conn. Super. April 21, 2009)
(no prejudice where counsel believed witnesses might
have invoked fifth amendment privilege), appeal dis-
missed sub nom. Robinson v. Commissioner of Correc-
tion, 129 Conn. App. 699, 21 A.3d 901, cert. denied, 302
Conn. 921, 28 A.3d 342 (2011); see also Robinson v.
Commissioner of Correction, 129 Conn. App. 699, 704,
21 A.3d 901 (it was strategic decision by counsel not to
call witness when counsel believed that witness might
invoke fifth amendment privilege), cert. denied, 302
Conn. 921, 28 A.3d 342 (2011). Accordingly, the peti-
tioner cannot establish his claim under the second
prong of Strickland.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The jury reasonably could have found these facts regarding Ford’s actions
on the basis of his testimony from the petitioner’s first trial, which culminated
in a hung jury and a mistrial. At the second trial, Ford recanted and testified
that he never saw the petitioner on the night of the shooting but felt pressured
by the police to implicate the petitioner. Ford’s testimony from the first
trial was read into the record at the second trial 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).
2
At the habeas trial, Attorney Merkin testified that the theory of defense
was that ‘‘there was not enough evidence in a single eyewitness [identifica-
tion] case to convict [the petitioner] ‘‘ and that the strategy for presenting
this defense was ‘‘[t]o discredit . . . [Ford] as best we could and kind of
make a claim that—with very weak credibility, that the jury shouldn’t find
that [the petitioner] was the person who committed this crime.’’ As to Ford,
specifically, part of defense counsel’s theory, Merkin testified, ‘‘was that
[Ford] wasn’t in a location where he could see what he claimed to have
seen. Part of it was that he was very coercively, in our view, interrogated
. . . . And part of it was that we had some suspicion or belief that he
was actually involved himself, whether accidentally or otherwise killing
his friend.’’
3
The petitioner has not challenged the habeas court’s rejection of his
conflict of interest claim on appeal.
4
Attorney Merkin testified that she generally preferred not to present an
alibi defense unless it was airtight: ‘‘My belief about alibis is that unless
they are solid, they can get you into trouble. It’s the last thing the jury hears
if you have a good prosecutor who’s a good cross-examiner and can try to
kind of attack either a family member who’s an alibi witness or some other
vulnerability to the alibi. To me, it pulls attention away from the weaknesses
in the state’s case, and it kind of develops jurors’ focus on the weaknesses
in the alibi. So, it’s just been my practice to shy away from alibis unless
they’re solid, and I had some concerns about the alibi in this case.’’
5
Although Attorney Merkin testified that the petitioner’s house was one
block away from the crime scene and Attorney Jones testified that it was
a few blocks away, the evidence offered at the criminal trial established that
the petitioner’s house was approximately two blocks from the crime scene.
6
Detective Breland, who was in charge of the police investigation, testified
at the habeas trial that Joyce did not provide him with information or give
a sworn statement. Moreover, he testified that the petitioner did not tell
him that Joyce had been home with him at the time of the murder. Rather,
according to Detective Breland, the petitioner told him that he did not know
who was home with him on the night of the murder.
7
For example, Attorney Merkin testified that, initially, Joyce informed
the defense team that the petitioner left the house sometime between 11
p.m. and 12 a.m. but then in a later interview stated that he left sometime
between 10:45 and 11 p.m.
8
The only evidence presented at the petitioner’s criminal trial regarding
his whereabouts on the night of the murder was the testimony of Toles that
the petitioner had called her at about 9:45 p.m. from his cell phone, stating
that he was in the area and wanted to stop by her dormitory room at Southern
Connecticut State University. She further testified that the petitioner did
not immediately show up but that he arrived at her dormitory room at about
11 p.m. Southern Connecticut State University is approximately three miles
from the crime scene. Although this evidence placed the petitioner a few
miles from the crime scene after the murder, there was no evidence that
placed him within two blocks of the crime scene at or near the time of the
murder, as Joyce’s testimony would have done.
9
At the criminal trial, Joyner, who lived in the house outside of which
the victim’s body was found, testified that she heard a boom sound sometime
between 10:25 and 10:30 p.m. Additionally, Baker, who lived in the neighbor-
hood close to where the shooting occurred, testified at the criminal trial
that he heard a person run past his window on the side of his house and
into his backyard at about 10:15 p.m. and then heard a gunshot approximately
five minutes later at about 10:20 p.m.
10
The Appellate Court in Spearman held both that defense counsel’s
decision was reasonable trial strategy and that the petitioner was not preju-
diced by defense counsel’s decision. See Spearman v. Commissioner of
Correction, supra, 164 Conn. App. 565.
11
The petitioner argues that defense counsel’s decision not to present an
alibi defense cannot be strategic on the basis of counsel’s not wanting to
distract the jury from Ford’s recantation because defense counsel did not
know about the recantation prior to the start of evidence in the second
trial. The petitioner argues that defense counsel are attempting to retroac-
tively justify their actions. Attorney Merkin, however, testified that she
made the final decision not to offer the alibi defense only after hearing
Ford’s recantation.
Moreover, the habeas court never determined that defense counsel’s
actions were not strategic; rather, it determined that defense counsel’s
strategy was unreasonable. As such, the issue is not whether defense coun-
sel’s decision not to present the alibi defense was strategic but whether it
was a reasonable strategic decision.
12
Joyce never testified that she was tasked with watching the petitioner
or keeping account of his movements on the night of the shooting. Rather,
she testified that the petitioner was not consistently within her line of sight
during the time of the shooting and that she was watching her children and
the television. If she had testified at the underlying criminal trial, the jury
reasonably could have found that her focus had been on her children and
the television.
13
The petitioner contends that if defense counsel believes an alibi witness
to be credible, it is deficient performance not to offer the witness’ testimony
at trial. This argument, however, ignores the fact that even if a witness is
found to be highly credible by counsel or by the habeas court, it may be a
reasonable strategic decision not to offer that witness’ testimony if the
witness would be vulnerable to attack on other grounds, or their testimony
would raise other concerns or leave gaps in a defense. See Michael T. v.
Commissioner of Correction, supra, 319 Conn. 637 (‘‘in making a tactical
decision whether to proffer [highly credible] expert testimony, reasonable
counsel would have recognized that [the witness] would have been vulnera-
ble to attack on various grounds’’). Even though defense counsel found
Joyce and Allen to be credible, defense counsel reasonably believed that the
testimony of Joyce and Allen did not definitively account for the petitioner’s
whereabouts and instead created issues regarding the petitioner’s proximity
to the crime scene and consciousness of guilt. The credibility of Joyce and
Allen did nothing to ameliorate defense counsel’s concerns about these
issues.
14
Attorney Jones and Attorney Merkin testified that they disagreed about
whether their concerns regarding the alibi defense outweighed the benefits
of presenting the alibi defense. This case exemplifies the well established
principle that because no two lawyers will try a case the same way, we
must ‘‘affirmatively entertain the range of possible reasons [for counsel’s
decisions] . . . .’’ (Internal quotation marks omitted.) Michael T. v. Com-
missioner of Correction, supra, 319 Conn. 632. This disagreement between
defense counsel also is further proof that they strategically and thoughtfully
considered the potential benefits and harm of presenting the alibi defense.
Under the circumstances of this case, such consideration is not constitution-
ally deficient.
15
To the extent that the petitioner argued before this court that defense
counsel should have conducted additional investigation by obtaining phone
records to solidify the timing of the telephone calls, he did not raise this
argument in the habeas court and failed to present any evidence at his
habeas trial to establish that the telephone records would have definitively
proved that he was at home talking to Allen on the telephone via his landline
at the precise time of the shooting. Not only did the petitioner fail to offer
any telephone records that showed the timing of the telephone calls, but
he failed to offer any evidence that established the precise time of the
shooting. In the absence of such evidence, and in light of the proximity of
the crime scene to the petitioner’s house, the alibi defense leaves open the
possibility that the petitioner could have left home unnoticed, committed
the crime, and returned home unnoticed in a short span of time.
16
Despite the petitioner’s contention that the jury in his first trial would
have found him not guilty if it had known his whereabouts at the time of
the shooting, it is noteworthy that defense counsel spoke only with a single
juror about her concerns, and that that juror reported that the jury was
divided ten to two in favor of finding the petitioner guilty.
17
The petitioner contends that because these issues are evidentiary in
nature, the Appellate Court should have afforded deference to the habeas
court’s determinations and reviewed the issues under the abuse of discretion
standard. We disagree.
Evidentiary rulings are afforded deference because a trial court has the
inherent discretionary power to control the proceedings before it. See Downs
v. Trias, 306 Conn. 81, 102, 49 A.3d 180 (2012) (‘‘trial court possesses inherent
discretionary powers to control proceedings, exclude evidence, and prevent
occurrences that might unnecessarily prejudice the right of any party to a
fair trial’’ [internal quotation marks omitted]). In the present case, the habeas
court was not exercising its discretion to control the habeas trial. Rather,
the habeas court was asked to determine a legal question—if Holly had
been called at the underlying criminal trial, would the trial court have been
compelled to admit his testimony or exercised its discretion to do so? As
such, the habeas court was called on to review the hypothetical actions of
another court regarding admissibility and privilege, not to make discretion-
ary evidentiary rulings in a trial it was conducting. This court is equally
capable of reviewing this legal question. Accordingly, our review is plenary.
18
The petitioner also argues that the Appellate Court, acting sua sponte,
improperly reached an issue that the parties did not brief: whether Holly’s
testimony was admissible as evidence of third-party culpability. We disagree.
In the petitioner’s brief before the Appellate Court, he specifically argued
that defense counsel were deficient for failing to offer the testimony of
Holly because it provided a sufficient factual nexus connecting Ford to
the murder, which triggered the petitioner’s right to present a third-party
culpability defense. He argued that the habeas court properly determined
that this nexus existed, making Holly’s testimony relevant and, thus, admissi-
ble. Because the petitioner raised this issue before the Appellate Court as
support for upholding the habeas court’s decision, we reject the petitioner’s
argument that the Appellate Court improperly addressed this issue sua
sponte.
19
Defense counsel also testified at the habeas trial that they thought at
the time of the second criminal trial that Ford had to admit to knowing
Holly in order to create a foundation to present Holly’s testimony. Defense
counsel admitted at the habeas trial, however, that no such foundation
was required.
20
Attorney Merkin testified that people in the community did mention to
Investigator Whalen that there was a rumor that Ford had accidentally shot
the victim, but there were no witnesses who were able to testify that they
heard Ford confess or saw Ford shoot the victim.
21
Attorney Merkin, Attorney Jones, and Investigator Whalen consistently
testified that Holly initially told them that he had seen Ford with a gun a
few days before the murder. We are required to review defense counsel’s
performance on the basis of ‘‘counsel’s perspective at the time,’’ not on the
basis of hindsight. Strickland v. Washington, supra, 466 U.S. 689. Defense
counsel testified that on the basis of what Holly told them, they believed
he had seen Ford with a gun two or three days before the shooting, not on
the day of the shooting, as Holly later testified during the habeas trial.
Additionally, even if Holly did see Ford with a gun on the day of the murder,
as he claimed at the habeas trial, no evidence established that Ford continued
to have the gun in his possession later that night at the time of the murder.
22
As further support for defense counsel’s decision not to offer Holly’s
testimony because it was too speculative, it is noteworthy that in denying
defense counsel’s motion for a new trial, the trial court determined that
defense counsel’s argument that Holly’s testimony provided a direct connec-
tion between Ford and the murder was ‘‘pure speculation.’’ Following the
jury’s verdict in the second criminal trial, defense counsel filed a motion
for a new trial on the ground that Holly’s testimony should have been
presented and was exculpatory. Because of Holly’s intention to invoke his
fifth amendment privilege against self-incrimination, the trial court accepted
as true defense counsel’s representation as to his proposed testimony for
purposes of deciding the motion. Even after crediting Holly’s testimony, the
trial court determined that Holly’s testimony would not produce a different
result in a new trial because his testimony raised mere speculation, not a
direct connection, that Ford committed the murder. The petitioner did not
challenge this ruling on direct appeal. If he had done so, the issue would
have been subject to the abuse of discretion standard of review because
the judge who heard the motion for a new trial was the same judge who
presided over the criminal trial. See Jones v. State, 328 Conn. 84, 104–105,
177 A.3d 534 (2018).
23
Although there is a dispute as to whether Holly would have testified if
the trial court had rejected his invocation of the fifth amendment privilege,
there is no dispute that Holly would have attempted to invoke the privilege.
24
The habeas court made no findings regarding the credibility of Attorney
Ullman and Attorney Farver. It did, however, emphasize the fact that Attor-
ney Farver was uncertain as to whether Holly would be able to invoke the
fifth amendment privilege. The habeas court determined that Holly would
have been required to testify because his pending charges were unrelated
to the present case and there was no indication that his statement that he
saw Ford with a gun would have exposed him to criminal liability in these
other unrelated cases.
As the Appellate Court properly and succinctly stated: ‘‘[T]he [habeas]
court took a [too] narrow view of the fifth amendment issue, considering
only whether Holly’s direct observations of Ford likely would have subjected
him to criminal prosecution, rather than whether it was possible that any
questions asked of Holly during his direct or cross-examination could possi-
bly have incriminated him in any other criminal prosecution.’’ (Emphasis
omitted.) Johnson v. Commissioner of Correction, supra, 166 Conn. App.
126.