Jordan v. Commissioner of Correction

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BRYAN JORDAN v. COMMISSIONER
OF CORRECTION
(AC 42250)
Lavine, Prescott and Sheldon, Js.
Syllabus
The petitioner, who previously had been convicted of the crimes of man-
slaughter in the first degree with a firearm and carrying a pistol or
revolver without a permit, sought a writ of habeas corpus, claiming that
his trial counsel, D, provided ineffective assistance. He claimed, inter
alia, that D was deficient in failing to adequately investigate and present
available witnesses in support of his claim of self-defense and by failing
to raise the defense of third-party culpability. D died prior to the petition-
er’s habeas trial and, thus, the habeas trial did not hear testimony regard-
ing D’s investigative efforts, trial strategy, or other tactical decisions.
The habeas court rendered judgment granting the habeas petition, from
which the respondent, the Commissioner of Correction, on the granting
of certification, appealed to this court. Held:
1. The habeas court improperly concluded that D provided constitutionally
deficient representation with regard to the petitioner’s self-defense
claim: the petitioner failed to meet his burden of demonstrating that
D’s investigation or decision not to call certain witnesses constituted
deficient performance as he failed to present testimony regarding D’s
investigative efforts and, thus, failed to overcome the strong presumption
that D engaged in an objectively reasonable investigation, and he failed
to present any evidence regarding D’s trial strategy and, thus, failed to
overcome the presumption that any decision not to call certain witnesses
was sound trial strategy; furthermore, the habeas court’s conclusion
that the witnesses who testified at the habeas trial were credible and
could have lent additional support to the petitioner’s claim of self-
defense was premature in the absence of a determination that D’s perfor-
mance was deficient.
2. The habeas court improperly determined that D provided ineffective
assistance because she failed to pursue a third-party culpability defense:
the court failed to consider whether D’s decision might be viewed as a
reasonable strategic decision and the petitioner failed to present evi-
dence that this decision constituted deficient performance; the record
was clear that, although D did not request a third-party culpability
instruction, she did argue to the jury that the victim was killed by a
bullet fired by someone other than the petitioner, and there were a
number of reasons why D may have chosen to present the third-party
culpability defense in this manner.
Argued November 12, 2019—officially released June 9, 2020
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland and tried to the court, Kwak, J.; judgment
granting the petition, from which the respondent, on
the granting of certification, appealed to this court.
Reversed; judgment directed.
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Rebecca A. Barry, supervisory assistant
state’s attorney, for the appellant (respondent).
Daniel J. Krisch, assigned counsel, for the appel-
lee (petitioner).
Opinion
PRESCOTT, J. This appeal highlights the significant
hurdle a habeas corpus petitioner faces in seeking to
prove a claim of ineffective assistance of trial counsel
after trial counsel has died and, thus, is unavailable to
provide evidence of counsel’s strategic decisions
regarding, inter alia, the pursuit of defenses for her
client and calling witnesses in support of those
defenses. The death of the petitioner’s trial counsel
prior to a habeas corpus trial, however, does not absolve
a petitioner of his heavy burden of overcoming the
strong presumption that counsel provided effective
assistance. See Strickland v. Washington, 466 U.S. 668,
689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also
Slevin v. United States, 71 F. Supp. 2d 348, 358 n.9
(S.D.N.Y. 1999) (‘‘[b]ecause the death of a petitioner’s
trial counsel is just as, if not more, likely to prejudice
the respondent, it does not relieve the petitioner of his
heavy burden of proving ineffective assistance’’ (inter-
nal quotation marks omitted)), aff’d, 234 F.3d 1263 (2d
Cir. 2000).
The respondent, the Commissioner of Correction,
appeals from the judgment of the habeas court granting
a petition for a writ of habeas corpus filed by the peti-
tioner, Bryan Jordan. The respondent claims on appeal
that the habeas court improperly determined that the
petitioner’s trial counsel rendered ineffective legal
assistance by failing to investigate adequately and to
present available witnesses in support of the petition-
er’s claim of self-defense and, alternatively, by failing
to raise the defense of third-party culpability. We agree
with the respondent that the habeas court failed to
hold the petitioner to the requisite burden of proof and,
accordingly, reverse the judgment of the habeas court.
In the underlying criminal matter, the petitioner was
charged with murder in violation of General Statutes
§ 53a-54a (a) and carrying a pistol or revolver without
a permit in violation of General Statutes § 29-35. A jury
found the petitioner not guilty of murder, but guilty of
the lesser included offense of manslaughter in the first
degree with a firearm in violation of General Statutes
§ 53a-55a (a). The jury also found the petitioner guilty
of carrying a pistol or revolver without a permit. The
court sentenced the petitioner to a total effective sen-
tence of forty-five years of imprisonment.1
This court briefly summarized the facts underlying
the petitioner’s criminal conviction in its opinion
affirming the judgment of conviction. See State v. Jor-
dan, 117 Conn. App. 160, 161 978 A.2d 150, cert. denied,
294 Conn. 904, 982 A.2d 648 (2009). ‘‘The charges in this
case stem from the shooting death of Curtis Hannons
[(victim)] on September 19, 2005. On the day of the
shooting, the [petitioner], the victim and the victim’s
brother, [Jason Kelly, also known as Mookie] got into
an argument. After the argument was broken up, the
[petitioner] got into his car and left. A few minutes later,
the [petitioner] returned, and another heated discussion
took place with the victim. Several people congregated
near the two and tried to calm down the [petitioner]
and the victim. Three eyewitnesses gave slightly varying
accounts of what happened next. All agreed that they
heard a gunshot and that the [petitioner] then pulled
out a gun and shot the victim once in the head. The
[petitioner] ran away, and the witnesses heard about
six or seven more gunshots. The victim was transported
to a hospital, where he died. The [petitioner] was
arrested in Georgia some time later.’’ (Internal quota-
tion marks omitted.) Id., 161–62.
On direct appeal, this court rejected the petitioner’s
claims that prosecutorial improprieties that occurred
during the state’s closing argument had deprived him
of a fair trial2 and that the trial court improperly had
precluded him from presenting evidence regarding ille-
gal drugs that were found on the victim. Id., 161, 170.
In so concluding, this court indicated that ‘‘the state’s
case [against the petitioner] was strong’’ and ‘‘[t]here
was sufficient testimony for the jury to conclude that
the [petitioner had not been] acting in self-defense
. . . .’’ Id., 170.
The petitioner filed the underlying petition for a writ
of habeas corpus on February 11, 2015, which was his
third habeas petition challenging his manslaughter con-
viction.3 Appointed habeas counsel filed the operative
eight count revised amended petition on September 26,
2017. Count one alleged that the petitioner’s criminal
trial counsel, Diane Polan, had provided ineffective
assistance of counsel by failing to conduct a proper
investigation and by failing to present available evi-
dence supporting the petitioner’s assertion that he had
shot the victim in self-defense. Count two alleged that
Polan also had provided ineffective assistance by failing
to impeach one of the state’s witnesses, Detective Clar-
ence Willoughby, who had conducted the police investi-
gation of the shooting. Count three alleged a Brady
violation4 regarding the state’s alleged failure to disclose
potential impeachment evidence pertaining to Wil-
loughby. Count four alleged ineffective assistance of
counsel by Polan premised on her failure to raise a
third-party culpability defense. Count five alleged that
Polan provided ineffective assistance of counsel with
respect to an issue of alleged juror misconduct. Count
six alleged a second Brady violation, this one premised
on the state’s failure to correct allegedly false testimony
by one of its witnesses. Count seven alleged that Polan
provided ineffective assistance by failing to object to the
prosecutorial impropriety that occurred during closing
argument or to request a curative instruction with
respect to that impropriety. Finally, count eight alleged
that the state improperly failed to disclose evidence
of pending criminal charges against one of the state’s
witnesses. The respondent filed a return that left the
petitioner to his proof on all counts of the petition.5
The habeas court, Kwak, J., conducted a trial on
January 22 and February 5, 2018. Significantly, the
habeas court did not hear any testimony from Polan
regarding her investigative efforts, trial strategy, and
other tactical decisions because she had died prior to
the habeas trial. Rather, the habeas court heard testi-
mony from the petitioner and eight additional witnesses
called on his behalf. Specifically, the petitioner elicited
testimony from Polan’s former private investigator,
Mike O’Donnell, and Attorney Robert McKay, who testi-
fied as the petitioner’s expert witness on professional
standards. The court also heard testimony from the
following six witnesses, all of whom allegedly had wit-
nessed events at or around the time of the shooting,
but whom Polan did not call to testify at the criminal
trial: Alexis Jordan, the petitioner’s niece; the petition-
er’s sisters, Jymisha Freeman and Audrey Jordan;
Flonda Jones, a friend of both the petitioner and the
victim; James Walker, a relative of the victim; and Billy
Wright, an acquaintance of both the petitioner and the
victim. The court also admitted into evidence as full
exhibits copies of the transcripts of the entire criminal
trial. A written statement given by Jones to O’Donnell
prior to the criminal trial also was admitted as a full
exhibit.
Following the habeas trial, both parties submitted
posttrial briefs, and the petitioner filed a posttrial reply
brief. In his posttrial brief, the petitioner withdrew
counts three, five, six, and eight of his petition, electing
to pursue only the remaining four counts, all of which
alleged ineffective assistance by Polan as trial counsel.
The habeas court issued a memorandum of decision
on October 1, 2018, in which it granted the petition for
a writ of habeas corpus on the basis of two of the four
counts of ineffective assistance. Specifically, the habeas
court determined that, with respect to counts one and
four, the petitioner had met his burden of demonstrating
that Polan had rendered constitutionally deficient per-
formance by failing to investigate properly or to present
available evidence in support of the petitioner’s claim
of self-defense and by failing properly to investigate,
raise, or present evidence in support of a third-party
culpability defense. The habeas court further deter-
mined that the petitioner had demonstrated that these
deficiencies in counsel’s performance had prejudiced
him by unduly diminishing his due process right to
establish a defense. The habeas court rejected the peti-
tioner’s other claims of ineffective assistance.6 The
habeas court vacated the petitioner’s manslaughter con-
viction and remanded the matter to the trial court for
further proceedings. Following the granting of his peti-
tion for certification to appeal,7 the respondent filed
the present appeal. Additional facts will be set forth
as needed.
I
We begin our discussion by setting forth guiding prin-
ciples of law as well as our standard of review, which
are well settled. ‘‘A criminal defendant’s right to the
effective assistance of counsel extends through the first
appeal of right and is guaranteed by the sixth and four-
teenth amendments to the United States constitution
and by article first, § 8, of the Connecticut constitution.
. . .8 To succeed on a claim of ineffective assistance
of counsel, a habeas petitioner must satisfy the two-
pronged test articulated in Strickland v. Washington,
[supra, 466 U.S. 687]. Strickland requires that a peti-
tioner 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 guaran-
teed . . . by the [s]ixth [a]mendment.’’ (Citations omit-
ted; footnote added; internal quotation marks omitted.)
Small v. Commissioner of Correction, 286 Conn. 707,
712–13, 946 A.2d 1203, cert. denied sub nom., Small v.
Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336(2008). ‘‘To satisfy the prejudice prong, a claimant must
demonstrate that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of
the proceeding would have been different. . . .
Because both prongs . . . must be established for a
habeas petitioner to prevail, a court may dismiss a peti-
tioner’s claim if he fails to meet either prong.’’ (Internal
quotation marks omitted.) Antwon W. v. Commissioner
of Correction, 172 Conn. App. 843, 849–50, 163 A.3d
1223, cert. denied, 326 Conn. 909, 164 A.3d 680 (2017).
On appeal, ‘‘[a]lthough the underlying historical facts
found by the habeas court may not be disturbed unless
they [are] clearly erroneous, whether those facts consti-
tuted a violation of the petitioner’s rights [to the effec-
tive assistance of counsel] under the sixth amendment
is a mixed determination of law and fact that requires
the application of legal principles to the historical facts
of [the] case. . . . As such, that question requires ple-
nary review by this court unfettered by the clearly erro-
neous standard.’’ (Internal quotation marks omitted.)
Gonzalez v. Commissioner of Correction, 308 Conn.
463, 469–70, 68 A.3d 624, cert. denied sub nom. Dzure-
nda v. Gonzalez, 571 U.S. 1045, 134 S. Ct. 639, 187 L.
Ed. 2d 445 (2013).
Because our resolution of the present case turns on
our review of the performance prong, some additional
explication of that prong is necessary.9 ‘‘In any case
presenting an ineffectiveness claim, the performance
inquiry must be whether counsel’s assistance was rea-
sonable considering all the circumstances. Prevailing
norms of practice as reflected in American Bar Associa-
tion standards and the like . . . are guides to determin-
ing what is reasonable. . . . Nevertheless, [j]udicial
scrutiny of counsel’s performance must be highly defer-
ential. It is all too tempting for a defendant to second-
guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel
was unreasonable. . . . A fair assessment of attorney
performance requires that every effort be made to elimi-
nate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and
to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making
the evaluation, a court must indulge a strong presump-
tion that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the [peti-
tioner] must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy. . . .
‘‘Thus, a court deciding an actual ineffectiveness
claim must judge the reasonableness of counsel’s chal-
lenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct. . . . At the
same time, the court should recognize that counsel is
strongly presumed to have rendered adequate assis-
tance and made all significant decisions in the exercise
of reasonable professional judgment. . . .
‘‘Inasmuch as [c]onstitutionally adequate assistance
of counsel includes competent pretrial investigation
. . . [e]ffective assistance of counsel imposes an obli-
gation [on] the attorney to investigate all surrounding
circumstances of the case and to explore all avenues
that may potentially lead to facts relevant to the defense
of the case. . . .
‘‘Nevertheless, strategic choices made after thorough
investigation of law and facts relevant to plausible
options are virtually unchallengeable; [but] strategic
choices made after less than complete investigation
are reasonable precisely to the extent that reasonable
professional judgments support the limitations on
investigation. In other words, counsel has a duty to
make reasonable investigations or to make a reasonable
decision that makes particular investigations unneces-
sary. In any ineffectiveness case, a particular decision
not to investigate must be directly assessed for reason-
ableness in all the circumstances, applying a heavy mea-
sure of deference to counsel’s judgments.
‘‘The reasonableness of counsel’s actions may be
determined or substantially influenced by the [petition-
er’s] own statements or actions. Counsel’s actions are
usually based, quite properly, on informed strategic
choices made by the [petitioner] and on information
supplied by the [petitioner]. In particular, what investi-
gation decisions are reasonable depends critically on
such information. For example, when the facts that
support a certain potential line of defense are generally
known to counsel because of what the defendant has
said, the need for further investigation may be consider-
ably diminished or eliminated altogether. And when
a defendant has given counsel reason to believe that
pursuing certain investigations would be fruitless or
even harmful, counsel’s failure to pursue those investi-
gations may not later be challenged as unreasonable.
. . .
‘‘Defense 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 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. . . .
Furthermore, [t]he failure of defense counsel to call a
potential defense witness does not constitute ineffec-
tive assistance unless there is some showing that the
testimony would have been helpful in establishing the
asserted defense. . . .
‘‘Finally, our habeas corpus jurisprudence reveals
several scenarios in which courts will not second-guess
defense counsel’s decision not to investigate or call
certain witnesses or to investigate potential defenses,
such as when: (1) counsel learns of the substance of
the witness’ testimony and determines that calling that
witness is unnecessary or potentially harmful to the
case; (2) the defendant provides some information, but
omits any reference to a specific individual who is later
determined to have exculpatory evidence such that
counsel could not reasonably have been expected to
have discovered that witness without having received
further information from his client; or (3) the petitioner
fails to present, at the habeas hearing, evidence or the
testimony of witnesses that he argues counsel reason-
ably should have discovered during the pretrial investi-
gation.’’ (Citations omitted; emphasis added; footnotes
omitted; internal quotation marks omitted.) Gaines v.
Commissioner of Correction, 306 Conn. 664, 679–82,
51 A.3d 948 (2012); see also Meletrich v. Commissioner
of Correction, 332 Conn. 615, 628, 212 A.3d 678 (2019)
(‘‘decision whether to call a particular witness falls into
the realm of trial strategy, which is typically left to the
discretion of trial counsel’’ (internal quotation marks
omitted)).
‘‘[T]here are countless ways to provide effective assis-
tance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the
same way.’’ (Internal quotation marks omitted.) Mele-
trich v. Commissioner of Correction, supra, 332 Conn.
637. The United States Supreme Court has cautioned
that a reviewing court, in considering whether an attor-
ney’s performance fell below a constitutionally accept-
able level of competence pursuant to the standards set
forth herein, must ‘‘properly apply the strong presump-
tion of competence that Strickland mandates’’ and is
‘‘required not simply to give [trial counsel] the benefit
of the doubt . . . but to affirmatively entertain the
range of possible reasons [that] counsel may have had
for proceeding as [she] did.’’ (Citation omitted; empha-
sis added; internal quotation marks omitted.) Cullen v.
Pinholster, 563 U.S. 170, 196, 131 S. Ct. 1388, 179 L. Ed.
2d 557 (2011). This strong presumption of professional
competence extends to counsel’s investigative efforts;
see Thompson v. Commissioner of Correction, 131
Conn. App. 671, 698, 27 A.3d 86, cert. denied, 303 Conn.
902, 31 A.3d 1177 (2011); as well as to choices made
by counsel regarding what defense strategy to pursue.
See Veal v. Warden, 28 Conn. App. 425, 434, 611 A.2d
911, cert. denied, 224 Conn. 902, 615 A.2d 1046 (1992).
With the foregoing legal principles in mind, we turn to
our discussion of the merits of the respondent’s claims
on appeal.
II
The respondent first claims that the habeas court
improperly determined that Polan rendered ineffective
assistance of counsel with respect to the petitioner’s
claim of self-defense. Specifically, the respondent
argues that the habeas court’s determination that Polan
failed to investigate adequately the shooting and to
interview potential witnesses whose testimony could
have supported the petitioner’s self-defense claim was
wholly unsupported by the record presented. Further-
more, the respondent argues that the habeas court
never expressly considered if Polan may have had a
reasonable and strategically sound basis for not calling
certain witnesses, including Jones, as self-defense wit-
nesses during the criminal trial and, to the extent that
a negative answer to that question is implicit in the
court’s ruling, neither the law nor the facts of this case
supports it. We agree that the habeas court improperly
concluded that Polan’s handling of the petitioner’s self-
defense claim necessarily fell below the minimal consti-
tutional standard required by the sixth amendment.
A
We first set forth the well settled substantive princi-
ples underlying a defendant’s claim of self-defense. In
Connecticut, self-defense is codified in General Statutes
§ 53a-19. ‘‘As interpreted by our Supreme Court, § 53a-
19 (a) provides that a person may justifiably use deadly
physical force in self-defense only if he reasonably
believes both that (1) his attacker is using or about to
use deadly physical force against him, or is inflicting
or about to inflict great bodily harm, and (2) that deadly
physical force is necessary to repel such attack.’’
(Emphasis omitted; footnote omitted; internal quota-
tion marks omitted.) Miller v. Commissioner of Correc-
tion, 154 Conn. App. 78, 88–89, 105 A.3d 294 (2014),
cert. denied, 315 Conn. 920, 107 A.3d 959 (2015).
Our self-defense statute nonetheless also provides
that ‘‘a person is not justified in using deadly physical
force if he or she knows that he or she can avoid the
necessity of using such force with complete safety . . .
by retreating.’’ General Statutes § 53a-19 (b) (1). ‘‘Thus,
a defendant who raises a claim of self-defense is
required to retreat in lieu of using deadly physical force
if the state establishes beyond a reasonable doubt that
a completely safe retreat was available and that the
defendant actually was aware of it.’’ State v. Saunders,
267 Conn. 363, 374, 838 A.2d 186, cert. denied, 541 U.S.
1036, 124 S. Ct. 2113, 158 L. Ed. 2d 722 (2004).
Furthermore, ‘‘[a] defendant who acts as an initial
aggressor is not entitled to the protection of the defense
of self-defense . . . [unless] he withdraws from the
[initial] encounter and effectively communicates to
such other person his intent to do so.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Berrios,
187 Conn. App. 661, 715, 203 A.3d 571, cert. denied, 331
Conn. 917, 204 A.3d 1159 (2019); see General Statutes
§ 53a-19 (c). Importantly, ‘‘a person may respond with
physical force to a reasonably perceived threat of physi-
cal force without becoming the initial aggressor and
forfeiting the defense of self-defense. Otherwise, in
order to avoid being labeled the aggressor, a person
would have to stand by meekly and wait until an assail-
ant struck the first blow before responding. If an assail-
ant were intending to employ deadly force or inflict
great bodily harm, such an interpretation of the statute
would be extremely dangerous to one’s health. Such
a bizarre result could not have been intended by the
legislature.’’ State v. Jimenez, 228 Conn. 335, 341, 636
A.2d 782 (1994).10
‘‘[A] defendant has no burden of persuasion for a
claim of self-defense; he has only a burden of produc-
tion. That is, he merely is required to introduce suffi-
cient evidence to warrant presenting his claim of self-
defense to the jury. . . . Once the defendant has done
so, it becomes the state’s burden to disprove the defense
beyond a reasonable doubt. . . . Accordingly, [u]pon
a valid claim of self-defense, a defendant is entitled to
proper jury instructions on the elements of self-defense
so that the jury may ascertain whether the state has
met its burden of proving beyond a reasonable doubt
that the assault was not justified. . . . As these princi-
ples indicate, therefore, only the state has a burden
of persuasion regarding a self-defense claim: it must
disprove the claim beyond a reasonable doubt.’’ (Inter-
nal quotation marks omitted.) Miller v. Commissioner
of Correction, supra, 154 Conn. App. 90–91.
B
We next discuss the state’s and the defense’s theories
of the underlying criminal case, which are necessary
to place our subsequent analysis in its proper context.
At the criminal trial, the state advanced the following
theory of the case to the jury during its closing argu-
ment. The petitioner and the victim, who were acquain-
tances, had become engaged in an argument in an area
outside the housing projects on South Genesee Street.
The victim’s brother, Mookie, initially was involved in
the argument. A number of area residents were present
and observed all or part of the events at issue and
attempted to defuse the situation. Although the initial
argument between the petitioner, the victim, and Moo-
kie ended with the petitioner leaving the area in his
car, he returned shortly afterward and the confrontation
between him and the victim resumed. According to
multiple eyewitnesses, the confrontation ended after a
bystander to the argument fired a shot, at which point
the petitioner drew a gun and fired it at the victim, who
was standing only a few feet in front of him. The victim,
who had attempted to duck or turn away from the
petitioner just prior to the petitioner shooting, was
struck by a bullet that entered his skull just above his
right ear and exited the upper left side of his skull. The
victim fell to the ground only after the petitioner fired
his gun at the victim, and a forensic examination of
the stippling around the wound demonstrated that the
bullet that hit the victim had been fired from close
range. The petitioner not only fled the immediate scene
but also could not be located by law enforcement per-
sonnel investigating the shooting because he left the
state, which the state claimed evidenced his conscious-
ness of guilt and supported its claim that he did not
act in self-defense.
The defense attacked the state’s case first by chal-
lenging the credibility of the state’s witnesses and point-
ing out the numerous factual inconsistencies in their
testimony about the shooting, which the defense argued
created reasonable doubt as to the trustworthiness of
the evidence presented as a whole. The defense also
argued that it was the victim, and not the petitioner,
who had restarted the argument after initially walking
away from the confrontation. Although not disputing
that he had been armed or even that he had fired his
gun, the petitioner asserted that he had fired only out
of fear for his life in response to the first shot fired,
which had hit the ground near his feet. The petitioner
argued that events happened so fast that he never
formed any specific intent to kill or cause serious physi-
cal injury to anyone, including the victim. Further, he
argued on the basis of the autopsy evidence regarding
the trajectory of the bullet that struck the victim, cou-
pled with the fact that no bullets or casings were ever
recovered, that reasonable doubt clearly existed about
whether his bullet had struck the victim rather than a
bullet fired by someone else, perhaps even a ricochet
from the first shot fired. Finally, he argued that he was
not the initial aggressor and that he reasonably believed,
on the basis of his observations, that the victim and
others present were armed and that his own life was
in danger at the time he fired his weapon and, accord-
ingly, his actions were justified as self-defense.
The state rebutted the petitioner’s claim of self-
defense, arguing to the jury that the evidence presented
at trial established beyond a reasonable doubt that the
petitioner’s belief that he needed to use deadly physical
force under the circumstances was objectively unrea-
sonable. The state also asserted that it had established
that the petitioner was the initial aggressor and that he
had failed effectively to retreat from the conflict but,
instead, having briefly left, had returned to continue
the confrontation.
C
Our de novo consideration of whether Polan’s efforts
to prepare and present the petitioner’s self-defense
claim were objectively reasonable under the circum-
stances necessitates that we begin with a more compre-
hensive discussion of the evidence of self-defense that
was before the jury at the criminal trial. Only after
considering the evidence actually presented to the jury
can we properly assess the significance of the evidence
presented by the petitioner at the habeas trial and, in
particular, the testimony provided by those habeas wit-
nesses whom the petitioner offered in support of his
allegations that Polan had not conducted a proper inves-
tigation and improperly had failed to call as a trial
witness at least one eyewitness to the shooting whom
Polan knew of and had subpoenaed for trial.
Roger B. Williams, Sr., was a key witness for the state
at the petitioner’s criminal trial. Williams lived in the
area of the shooting and knew both the victim and the
petitioner. He testified that he was present throughout
the relevant events and saw the petitioner shoot the
victim. During the confrontation that took place shortly
before the first shot was fired, Williams stated that the
petitioner was standing only a few feet in front of the
victim. According to Williams, Wright, Mookie, and oth-
ers were all nearby during that initial confrontation
between the petitioner and the victim. Mookie, how-
ever, was no longer present when the argument contin-
ued and the victim was shot. According to Williams,
both the victim and Wright pulled out their guns before
the petitioner. Next, a shot was fired, ostensibly by
Wright,11 and the petitioner then pulled out a gun,
pointed it at the victim, and fired. Williams testified
that the victim, having seen the petitioner drawing his
gun, ‘‘kinda threw his hands up and turned, turned away
from him.’’ The victim did not fall to the ground until
after the petitioner fired his weapon. Williams’ testi-
mony, if credited by the jury, could have demonstrated
that the victim and others nearby were armed at the
time the victim was shot and that the victim had drawn
a weapon before the petitioner fired a shot. This evi-
dence, if credited, supported the petitioner’s claim that
he feared that deadly force was about to be used against
him and that he had fired only in self-defense. Williams’
testimony also tended to show that the petitioner had
not fired first, and thus that he may have done so in
response to the initial shot fired.
Kimberly Stevenson also was called by the state as
a witness at the petitioner’s criminal trial. The victim
and Stevenson had children together. She testified that
she was looking out her bedroom window at the time
of the shooting. She stated that she had spent the after-
noon leading up to the shooting with the victim and
that she never saw him with a gun during that time.
She said that she only heard the first gunshot and did
not see who fired it. She claimed that, after hearing
that first shot, however, she saw the petitioner pull a
revolver from his pants and fire at the victim’s head.
On cross-examination, Stevenson, like Williams, testi-
fied that Mookie was not present at the time the shoot-
ing occurred. She also denied that she had told O’Don-
nell prior to trial that she had seen Wright with a gun
in his hand at the time the first shot was fired. Similar
to Williams, Stevenson indicated that the victim was
turning away from the petitioner when he was shot.
Although Stevenson’s testimony was damaging to the
petitioner in some ways, she testified consistently with
other witnesses that a shot was fired before the peti-
tioner shot the victim, thereby lending some support
to the defense claim that the petitioner feared for his
life and fired in response to a perceived threat.
Andre Martin, who was a friend of the petitioner and
an eyewitness to the shooting, was called to testify at
the criminal trial by the state but indicated on the stand
that he had no memory of what had transpired at the
time of the shooting. Pursuant to § 6-10 of the Connecti-
cut Code of Evidence and State v. Whelan, 200 Conn.
743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct.
597, 93 L. Ed. 2d 598 (1986), the criminal trial court
admitted into evidence for substantive purposes a tran-
script of a recorded oral statement given by Martin to
the police.12 In that statement, Martin indicated that he
saw the petitioner draw a gun, point it at the victim, and
then fire one shot. Martin’s testimony was particularly
damaging to the defense, but Polan, through her cross-
examination of Martin, attempted to discredit the verac-
ity of Martin’s statement to the police by drawing the
jury’s attention to the fact that the statement was given
while Martin was in custody on charges unrelated to
the present case and facing a charge of violation of pro-
bation.
Two officers who responded to the scene shortly
after the shooting, Matthew Myers and Willie Ponteau,
each testified at trial on behalf of the state. Ponteau,
who lived near the crime scene and was home at the
time of the shooting, heard two gunshots fired in close
succession to one another, which were then followed
by multiple shots. Although Ponteau had no way of
knowing who fired the shots that he heard, his testi-
mony regarding the number of shots and their timing
relative to one another was not inconsistent with the
testimony of other witnesses who indicated that the
petitioner had fired immediately after the initial shot.
Both officers testified that they did not observe any
type of weapon on or near the victim. Ponteau, however,
remembered seeing Stevenson near the body when he
arrived and, on cross-examination by Polan, Ponteau
admitted that he had no knowledge of whether someone
may have removed a gun from the victim before the
police arrived. This testimony did not undermine other
evidence that the victim had been armed, which lent
support to the defense argument that the petitioner
reasonably feared that he was in danger of having
deadly force used against him when he shot the victim.
The petitioner testified on his own behalf in support
of his claim of self-defense. According to the petitioner,
before the first gunshot was fired, he was standing
about five feet away from, and directly in front of, the
victim. The petitioner did not know whether the victim
actually had a gun but had observed him fumbling with
his pocket in a way that suggested he might be armed.
The petitioner also indicated that he believed Mookie
had a gun based on ‘‘the way he was acting.’’ The peti-
tioner testified that he pulled out his handgun only in
response to the first gunshot and fired it in the direction
of the victim because he believed that that was the
direction from which the first shot had been fired.
According to the petitioner, the victim was still standing
after the petitioner fired and started running away from
the scene.
The state, through its cross-examination of the peti-
tioner, was able to undermine the petitioner’s direct
testimony. Specifically with respect to his self-defense
claim, the state was able to undermine the petitioner’s
assertion that he was in fear when he fired at the victim,
getting him to admit that he was familiar with guns, he
often carried one, he had heard gunshots fired near him
in the past and, in fact, he ‘‘had been shot at before.’’
The petitioner also testified on cross-examination that,
on the day of the shooting, he was not always sure
when he was in actual possession of his gun, indicating
that sometimes he left it in the glove compartment of his
vehicle. Although the petitioner never disputed having
a weapon or firing it toward the victim, the jury reason-
ably could have inferred from his testimony that he
may not have had his gun when the argument with the
victim first begun and that he left the argument initially
only to return to his car and retrieve his gun, facts
relevant both to the duty to retreat and to whether the
petitioner was the initial aggressor. Finally, the jury
was provided with testimony from Susan Williams, the
medical examiner who performed the autopsy of the
victim. She provided testimony that the victim had a
one-quarter inch entrance wound on the right side of
his head, approximately two inches above and behind
his right ear, and an approximately three inch exit
wound on the left side of his forehead. She described
the path of the bullet that made the wounds as travelling
‘‘leftward, forward, and slightly upward.’’ She further
explained that stippling around the entrance wound,
which is caused when gunpowder expelled along with
the bullet abrades the skin, indicated that the gun from
which the bullet had come was fired within approxi-
mately two feet of the victim. The evidence concerning
the trajectory and location of the bullet wound provided
a basis for Polan to suggest to the jury that reasonable
doubt existed concerning the source of the bullet that
killed the victim. Specifically, it tended to support an
argument that the bullet could not have come from the
petitioner’s weapon because he was standing directly
in front of the victim when he fired, rather than to the
victim’s right. It was also consistent with the defense
theory that it was the result of a ricochet from the first
shot fired because the bullet entered the right side of
the victim’s skull travelling upward. Of course, both
arguments failed to account for the testimony that the
victim had been turning away from the petitioner when
the petitioner fired or for the presence of the stippling,
which tended to show that the wound had been caused
by a bullet fired directly from a weapon at close range.
Polan, attempting to capitalize on the inconsistent
factual testimony of the state’s own witnesses, began
her closing argument by attempting to persuade the
jury that there was reasonable doubt about what had
occurred, including as to whether the state had proven
that the petitioner intended to kill the victim when he
fired his weapon or whether it was the petitioner’s bullet
that killed the victim. Polan later also advanced the
argument that, even if the petitioner’s bullet had hit
the victim, the petitioner had fired his weapon in self-
defense. Polan emphasized to the jury that as long as
the petitioner had presented some evidence that would
support his claim of self-defense, the burden shifted to
the state to disprove self-defense beyond a reasonable
doubt, which Polan argued the state had failed to do.
She highlighted the petitioner’s testimony that he
believed he was in imminent danger of being shot, and,
in fact, that he initially thought that he had been shot.
She also noted that the state could not demonstrate
that the petitioner’s belief was objectively unreasonable
because all of the state’s witnesses had testified that
someone else had fired a shot before the petitioner
discharged his weapon.
Polan also highlighted Williams’ testimony that the
first shot hit the dirt near the petitioner’s feet. Polan
argued to the jury that the state could not prove that
the petitioner had used unreasonable force under the
circumstances when he fired his gun, stating that it was
undisputed that the petitioner was being shot at, the
petitioner ‘‘had his back against the wall, there was no
way he could get out, and he used deadly force because
deadly force was being used against him.’’ She argued
that although the state could defeat the petitioner’s self-
defense claim if it could prove that the petitioner had
been the initial aggressor, the evidence did not support
such a finding beyond a reasonable doubt. She stated:
‘‘There is no evidence in this case that [the petitioner]
drew his weapon or made any movement [as] if he was
going to draw a weapon before either [the victim] was
reaching for his pocket as [Williams] says or a shot was
fired at [the petitioner’s] feet, that’s the reality.’’
Polan ended her closing argument by summarizing
her theory of the defense, stating: ‘‘This is a tragic kill-
ing, it’s a tragedy that [the victim] is . . . not with us
today but it’s not a murder. It’s not a murder because
the state cannot prove the specific intent to kill beyond
a reasonable doubt and again there is ample evidence
here that [the petitioner] acted in self-defense. He was
shot at [and] didn’t know where the shots were coming
from. It all happened so quickly that he did not form
a specific intent to kill [the victim]. Yes, he shot in
his direction he told you that when he testified here
yesterday but his intent was not to kill [the victim].
[His] intent was to protect himself.’’ After the state’s
rebuttal argument, the court instructed the jury on the
law, which included a detailed and lengthy instruction
on self-defense. See footnote 10 of this opinion. Ulti-
mately, the jury acquitted the petitioner of the murder
charge, but found him guilty of the lesser included
offense of manslaughter in the first degree with a fire-
arm, rejecting the petitioner’s self-defense argument.
By way of summary, and as this court indicated in
deciding the petitioner’s direct criminal appeal, the trial
witnesses gave partially conflicting or inconsistent
accounts of the shooting. Their testimony differed as
to who was present when the victim was shot, where
people were standing with respect to one another, and
who was carrying a weapon. Although the state’s case
against the petitioner was strong, consisting of more
than one eyewitness who observed the petitioner shoot
the victim in the head at close range, sufficient evidence
nonetheless was introduced to the jury through those
same witnesses that, if credited by the jury, could have
supported the petitioner’s claim that he nonetheless
had acted in self-defense. The jury ultimately concluded
in convicting the petitioner of manslaughter in the first
degree with a firearm that the state had disproven self-
defense beyond a reasonable doubt. Nevertheless, our
review of the criminal trial transcripts does not reflect
any evidence from which reasonably to conclude that
Polan either lacked adequate preparation for trial or
was not knowledgeable about the facts of the case. In
fact, Polan made effective use of the available evidence
in her closing argument to the jury.
D
Turning to the habeas proceedings, the habeas court
nevertheless concluded that Polan had provided inef-
fective assistance with respect to the petitioner’s claim
of self-defense. The habeas court based that conclusion
principally on two reasons. First, the habeas court con-
cluded that Polan had not conducted an adequate pre-
trial investigation, which, according to the court,
resulted in her having failed to discover several addi-
tional witnesses that the habeas court concluded would
have helped her raise reasonable doubt regarding self-
defense. In reaching that conclusion, the habeas court
appears to have relied exclusively on the testimony of
the witnesses offered by the petitioner at the habeas
trial, whom the habeas court found to be credible. The
court specifically attributed Polan’s failure to call the
witnesses whom the petitioner presented at the habeas
trial to ‘‘Polan’s deficient investigation.’’ Second, the
habeas court concluded that Polan acted deficiently by
not calling Jones to testify at the criminal trial, although
Polan allegedly knew of Jones and had subpoenaed her
as a witness for trial.
The respondent, however, contends that the habeas
court’s findings regarding the investigation were clearly
erroneous because they were unsupported by any evi-
dence in the record and, in fact, suggests that the record
directly contradicts the court’s findings. The respon-
dent also maintains that, although the court found the
habeas witnesses credible, it failed to consider (1)
whether Polan may have had an objectively reasonable
strategic reason for not seeking out additional wit-
nesses beyond those already identified by the state or
through the efforts of her investigator or (2) whether
knowledge of the habeas witnesses’ testimony would
have caused a reasonably competent defense counsel
to have altered the defense strategy pursued at trial.
We find the respondent’s arguments persuasive, partly
because the habeas court’s conclusions are not sup-
ported by relevant and necessary factual findings
regarding Polan’s investigative efforts and partly
because of the lack of any apparent consideration by
the court of whether a sound strategic reason might
have existed for Polan’s decisions regarding various
witnesses. Furthermore, the court’s conclusions are
legally and logically flawed because they impermissibly
shift the evidentiary burden of persuasion away from
the petitioner and to the respondent.
The flaws in the habeas court’s conclusions are appar-
ent from our review of the habeas trial transcripts. More
specifically, they are apparent from the testimony of
the witnesses on which the court relied in concluding
(1) that Polan had failed to conduct a sufficient investi-
gation of the shooting, and (2) that a proper investiga-
tion would have uncovered witnesses whose testimony
would have bolstered in some significant way the peti-
tioner’s claim of self-defense. In considering that testi-
mony, we focus our attention on what evidence the
petitioner produced that directly pertained to Polan’s
investigative efforts, her knowledge or lack of knowl-
edge of each particular witness, and, with respect to
witnesses who were known or likely known to Polan,
whether she may have had a reasonable strategic reason
for not calling them to testify at the criminal trial.
‘‘Although it is incumbent on a trial counsel to conduct a
prompt investigation of the case and explore all avenues
leading to facts relevant to the merits of the case and
the penalty in the event of conviction . . . counsel
need not track down each and every lead or personally
investigate every evidentiary possibility. . . . In a
habeas corpus proceeding, the petitioner’s burden of
proving that a fundamental unfairness had been done
is not met by speculation . . . but by demonstrable
realities.’’ (Internal quotation marks omitted.) Johnson
v. Commission of Correction, 285 Conn. 556, 583–84,
941 A.2d 248 (2008).
1
The petitioner first called O’Donnell, Polan’s investi-
gator, to testify at the habeas trial. O’Donnell had very
limited memory of his work in this matter. O’Donnell’s
testimony generally was unhelpful in establishing the
petitioner’s habeas claims because O’Donnell was
unable to provide any insight into the extent of Polan’s
efforts to investigate or to locate witnesses in this case,
or to describe the fruits of any discussions that Polan
had with the petitioner. Rather, O’Donnell’s testimony
tended to show that, at a minimum, Polan had taken
the reasonable step of hiring an investigator to look
into aspects of the case. Ultimately, although O’Donnell
had sat with Polan at counsel table throughout the trial,
his testimony was devoid of any insight into Polan’s
decision–making process in this case or her defense
strategy. O’Donnell specifically indicated that he ‘‘never
discussed the witness list with [Polan].’’ Certainly, noth-
ing in his testimony aided the petitioner in proving his
habeas claims.
2
Next, the petitioner presented testimony from three
witnesses—Audrey Jordan, Alexis Jordan, and Jymisha
Freeman—all of whom were closely related to each
other and to the victim, and none of whom actually
witnessed the shooting at issue. Because these three
witnesses provided roughly the same factual testimony
relative to the issue of self-defense, we address them
together. It is important to stress at the outset that the
habeas court made no subsidiary findings regarding
whether Polan or O’Donnell knew of these witnesses,
had spoken to them about the incident, the content of
any conversation the defense may have had with the
witnesses, or whether the witnesses’ versions of events
at that time differed from the version of facts to which
they testified at the habeas trial. It was important for
the petitioner to present these facts, particularly in light
of Polan’s unavailability, in order to overcome the pre-
sumption of constitutionally adequate performance.
Audrey is Alexis’ mother and the sister of the peti-
tioner and Jymisha. She testified at the habeas trial that
she did not see the shooting, but only heard the gunfire
from where she had been lying down inside her mother’s
house. She stated that when she arrived at the scene
of the shooting, she saw Stevenson kneeling over the
victim’s body and placed her hand on Stevenson’s back.
Audrey indicated that an unidentified person whispered
something into Stevenson’s ear, after which Stevenson
went inside her house and brought back a white cloth.
Stevenson used that cloth to pick up and wrap a gun that
was lying within inches of the victim’s body. Stevenson
took the gun inside the house, then returned to her
position beside the victim’s body. Audrey indicated that
she saw Williams at the scene but did not see Jones,
who, as we will discuss later, also testified at the habeas
trial as an eyewitness to the shooting. Audrey observed
several bullet holes in the petitioner’s car, which was
still at the scene.
Alexis testified at the habeas trial that the petitioner
was her uncle. She was eight years old at the time of
the shooting, and testified that she did not witness the
victim being shot. She only heard the gunshots, approxi-
mately ten in total, from where she was inside her
grandmother’s home. She stated that when she ran out-
side, she saw the victim lying on the ground and a gun
lying a few inches from his body. She testified that she
then saw Stevenson go inside the house and retrieve a
cloth of some sort, which Stevenson used to wrap up
the gun and remove it from the scene.
Jymisha Freeman is the petitioner’s sister and Alexis’
aunt. She was only ten or eleven years old at the time
of the shooting, and testified at the habeas trial that
she was with Alexis inside her mother’s house when
she heard more than ten gunshots. She followed Alexis
outside after the gunfire stopped. She was standing
farther back from the body than Alexis and never saw
a gun herself. She testified, when asked on cross-exami-
nation, that she saw Stevenson exit her house with a
towel or cloth, although she did not observe her do
anything with it.
With respect to Polan’s investigative efforts and her
knowledge of these witnesses in particular, it cannot
reasonably be inferred from the testimony of these three
witnesses that Polan failed to conduct a proper investi-
gation or that she was unaware of what they could have
told a jury if they had been called to testify at the
criminal trial. Audrey testified that although she did not
go to the police with her story, she eventually was
interviewed by Detective Willoughby, who took notes
of what she told him. She testified inconsistently about
whether she also had provided a written statement.
Importantly, she indicated that she spoke with both
Polan and O’Donnell about what had happened on the
day of the shooting, and that she was subpoenaed for
trial but later was told that her testimony would not
be needed. The petitioner never asked Audrey to testify
about what she had told Polan or O’Donnell regarding
the shooting. Alexis testified that she never had spoken
with the police or any investigator about the incident,
and could not recall if she ever had spoken to Polan.
Similarly, Jymisha testified that she never spoke to the
police and never spoke to Polan about the shooting.
Audrey may have told Polan and O’Donnell not only
about the details of the shooting but about Alexis’ and
Jymisha’s presence that day and what they may have
observed.
The petitioner, in his habeas trial testimony, also
indicated that he had told Polan that he had seen Jymi-
sha outside, so Polan also may have had this informa-
tion when she spoke with Audrey. We do not know
from this record whether these three witnesses’ names
also appeared in police reports, none of which were
made part of the habeas record, or if they were men-
tioned to Polan or O’Donnell by prosecutors or other
eyewitnesses. In light of the strong, albeit rebuttable,
presumption that trial counsel’s investigative efforts fall
within the necessarily wide range of constitutionally
adequate performance, it is unreasonable to infer that
Polan was unaware of these witnesses given the lack
of evidence on this question.
Moreover, with respect to the petitioner’s self-
defense claim, these witnesses’ testimony did not fill
or implicate any critical or missing evidentiary element
of self-defense. Their testimony, both independently
and by way of corroboration of each other’s testimony,
only tended to demonstrate that a gun had been lying
on the ground very near to the victim’s body after he
was shot, suggesting that it was the victim’s gun and
that he may have had it when he was shot. Williams,
however, who testified on behalf of the state at the
criminal trial and on whose testimony the state relied
in support of its case, testified before the jury that the
victim had drawn a gun prior to being shot by the
petitioner. The habeas testimony regarding the pres-
ence of a gun after the fact was cumulative of, and not
as compelling as, Williams’ testimony, and certainly
could not be considered essential to the defense.
Furthermore, whether the state successfully could
disprove self-defense in this case did not depend on a
determination of whether the victim actually had been
armed, but only on the state disproving beyond a rea-
sonable doubt that the petitioner had both a subjective
and an objectively reasonable belief that the victim, or
someone supporting the victim, was armed and about
to use deadly force against the petitioner. Given Alexis’
and Jymisha’s young ages at the time of the shooting and
the fact that the petitioner was a close family member
to them and to Audrey, if Polan knew of their potential
testimony, a fact that cannot be determined on this
record, Polan reasonably may have made the strategic
decision not to call them. After all, the state’s own
witnesses tended to establish at the criminal trial that
persons other than the petitioner were armed, had
drawn weapons, and had fired once prior to the peti-
tioner firing his own gun. Although Polan’s strategy with
respect to self-defense ultimately proved unsuccessful,
that certainly did not render her strategic choices per
se unreasonable.
3
We turn next to the habeas trial testimony provided
by Jones. She testified at the habeas trial that she was
a friend not only of the petitioner and his family, but
also was friendly with the victim. She claimed that she
was one of many persons present during the argument
that preceded the victim being shot. According to Jones,
during the argument with the victim, the petitioner
stood only two or three feet in front of the victim. She
testified that the victim’s brother, Mookie, was standing
close behind the victim at the time and that he too was
involved in the argument. Jones testified that she never
saw the petitioner leave and come back. Jones indicated
that, as the argument got more and more heated, the
victim reached multiple times for a gun that was tucked
into his waistband, although she stated that he never
drew it. Although Jones at first asserted that she saw
Mookie fire the first shot, in subsequent testimony she
indicated that she inferred it was Mookie who fired the
first shot because she had observed dust or smoke
coming from the gun he was holding immediately after
the first shot was fired. According to Jones, it was not
the first shot that killed the victim but a second shot
that she claimed was fired by someone she did not see.
Jones claimed that when the victim fell to the ground,
his gun fell out of his waistband. Although she testified
that she ran into the building where her sister lived
shortly after the shots were fired, she also testified that
she had observed Stevenson remove the gun from the
scene and wrap it in a white towel.
It is undisputed that Polan was aware of Jones and
had taken her statement about the events and, there-
fore, any decision not to call Jones at trial cannot be
attributed to a failure by Polan to investigate the shoot-
ing. Jones testified that she spoke with the police about
the incident and gave them a statement. She also testi-
fied that she had met with O’Donnell several times prior
to the criminal trial and had provided him with a state-
ment. She claims that she was subpoenaed for trial by
the defense but that ultimately she was told that her
testimony would not be needed. The record is silent
regarding the reason for Polan’s decision. Notably, how-
ever, the pretrial statement that Jones provided to
O’Donnell, which was admitted as an exhibit during the
habeas trial, differed in some ways from the testimony
that Jones provided at the habeas trial.
In her written statement, Jones claimed that she had
observed the initial confrontation between the peti-
tioner, the victim, and Mookie. After that initial argu-
ment ended, but before the petitioner left in his car,
she heard the petitioner ask the victim, ‘‘you going to
confront me with a gun?’’ Jones then observed the peti-
tioner leave in his car but return about five minutes
later and resume his argument with the victim and Moo-
kie. She stated that Mookie pulled a gun from his waist-
band and fired a shot, at which time both the victim
and the petitioner pulled out guns. Finally, she stated
in her written statement that the victim did not fall to
the ground until after the petitioner fired his gun.
Whether to call a particular witness at trial, however,
is a tactical decision for defense counsel, and, to the
extent that the decision ‘‘might be considered sound
trial strategy,’’ it cannot be the basis of a finding of
deficient performance. See Strickland v. Washington,
supra, 466 U.S. 689. Polan’s strategic decision not to
call Jones as a witness at the criminal trial can properly
be evaluated only on the basis of what Polan knew
about Jones’ potential testimony at the time of trial,
not on the basis of the testimony that Jones later gave
at the habeas trial, regardless of whether the habeas
court deemed her later testimony credible. Jones’ writ-
ten statement, like her testimony at the habeas trial,
indicated that she had information that was relevant
to the petitioner’s claim of self-defense.13 There are a
number of plausible reasons, however, why Polan may
have decided that calling Jones to testify was either
unnecessary or inadvisable because, even if she was
believed by the jury, calling her might have opened up
avenues of inquiry that would have hurt the defense’s
case.
First, Jones had a criminal record and was a friend
of the petitioner and, therefore, her testimony would
have been subject to significant impeachment by the
state. Jones’ account of the shooting contradicted that
of other witnesses and the petitioner’s own criminal
trial testimony. For example, Jones claimed that Mookie
was standing close to the victim both during the initial
argument and at the time of the shooting, whereas Wil-
liams had testified at the criminal trial that Mookie was
not present and the petitioner had testified that Mookie
was ‘‘[s]tanding like off in the shadows.’’ Further, and
perhaps most importantly, the statement given by Jones
to O’Donnell clearly indicated that she had heard the
petitioner comment that he was aware that the victim
was armed shortly before he drove off, returning a short
time later. If Jones had stuck to that story at the criminal
trial, as Polan might reasonably have expected, it could
have undermined the petitioner’s claim of self-defense
by suggesting that he had left the scene in order to
arm himself. In sum, after hearing the state’s witnesses,
Polan may have decided that Jones’ testimony was not
critical to her client’s self-defense claim and that the
better strategic choice was to not call her as a witness.
That is precisely the type of trial strategy that Strickland
prohibits us from second-guessing postconviction.
4
Walker, who was a close friend of the victim, also
testified at the habeas trial. He testified that he had
witnessed the confrontation between the petitioner and
the victim, claiming that he had stood about four feet
from the victim during the argument leading up to the
shooting. He testified that he saw the victim ‘‘flashing’’
a gun, but claimed that the gun stayed in the victim’s
waistband and that he never saw the victim ‘‘pull it
out.’’ Walker testified that he did not see who fired the
first few shots because he was turned away but, when
he looked back, he saw the victim on the ground. He
also testified that he observed Mookie firing his weapon
from where he had been standing on a stairway about
ten or fifteen feet behind the victim. Walker further
testified that he saw someone remove a weapon in a
towel. When pressed, however, he said it was Williams
who had done so, not Stevenson, as others had testified.
Walker remembered seeing both Jones and Williams at
the scene of the shooting.
Walker spoke with the police after the shooting but
testified that he had never spoken to Polan or O’Don-
nell. He was not asked about the substance of his discus-
sion with the police, however, and the habeas record
contains no additional details about what he saw or
said. Even so, according to the petitioner’s testimony,
he had discussed Walker with Polan. Further, as noted
with other witnesses, the fact that Walker testified that
he never spoke with any member of the defense team
directly does not mean that Polan had not learned about
Walker or his account of the shooting by reviewing
police reports, interviewing the police, or discussing
the case with prosecutors. Walker’s testimony that the
victim never actually drew his weapon was less compel-
ling for purposes of the petitioner’s self-defense claim
than the testimony of Williams, who claimed that the
victim actually drew his weapon. Given that his testi-
mony also conflicted factually in other respects with
that of other witnesses, even if Polan was aware of
his account, she reasonably might have chosen not to
present his testimony, believing that she would have a
better chance of persuading the jury by relying on the
state’s witnesses.
5
The final eyewitness to the relevant events presented
by the petitioner at the habeas trial was Wright, the
person who Williams testified at the criminal trial was
present at the time of the shooting and was likely the
person who had fired the first shot. Wright did not
testify at the criminal trial. Wright testified at the habeas
trial that he was friendly with both the victim and the
victim’s brother, Mookie. Wright stated that he was in
the vicinity of the shooting when it occurred. Wright
claimed that he saw the victim pull a gun from his
waistband, at which point he decided to leave the scene.
As he was leaving, however, he heard shots being fired.
He denied that he personally had a gun at the time or
that he was responsible for any gunshots that were
fired either before or after the victim was shot.
As with Walker, there was no evidence presented to
the habeas court that would have permitted the court
to find, in contravention of the strong presumption of
reasonable competence, that Polan or her investigator
was either unaware of Wright’s account or that Polan
had failed to investigate him as a potential witness. See
Thompson v. Commissioner of Correction, supra, 131
Conn. App. 698 (presumption of competent representa-
tion includes presumption of adequate investigation).
Wright testified that he spoke with the police and also
with an investigator from the prosecutor’s office. His
name was also provided to Polan by the petitioner.
Assuming that the version of events provided by Wright
at the habeas trial was known to Polan, as were the
accounts of the other habeas witnesses, his testimony
did not add in any significant way to the theory of self-
defense actually pursued by Polan at trial nor did his
testimony advance any alternative theory of defense
that she could have pursued. Furthermore, it is reason-
able to assume that Polan did not think that Wright
would provide credible testimony because he had been
identified by Williams as someone who was armed and
may have fired the first shot.
6
The petitioner also testified on his own behalf at the
habeas trial, as he had at the criminal trial. With respect
to Polan’s investigative efforts, the petitioner stated
only that he had given Polan the names of several wit-
nesses, including Freeman, Jones and Walker. Polan
had told the petitioner that Jones had given the defense
a written statement and that she believed this was a
self-defense case. The petitioner testified that he
believed that his self-defense strategy would have
included calling a number of additional witnesses. The
petitioner, however, provided no testimony that ade-
quately filled in the evidentiary gaps created by Polan’s
unavailability at the habeas trial, including details about
her efforts in reviewing the case file, the discovery
provided by the state, her conversations with witnesses,
and what she may have learned through the efforts of
O’Donnell and others. The petitioner likewise provided
no insight regarding Polan’s strategy at trial.
7
Finally, the petitioner presented expert testimony
from McKay. Although McKay had no direct knowledge
of Polan’s investigation, he nonetheless opined, on the
basis of the habeas witnesses’ testimony that was not
presented at the criminal trial, that Polan ‘‘should have
put more effort’’ into presenting the petitioner’s self-
defense claim to the jury. He testified that if Polan had
presented the testimony of witnesses to establish that
the victim had a gun, this would have strengthened
the self-defense claim of the petitioner. Nevertheless,
because the petitioner himself never claimed that he
saw a gun, meaning the actual presence of a gun was
not relevant to his subjective/objective perception of
danger, whether other people had seen a gun or a gun
actually was present would not have aided his claim of
self-defense. Although he questioned the soundness of
having O’Donnell sit at counsel table throughout the
trial, which resulted in Polan’s inability to call him as an
impeachment witness, McKay’s opinions about Polan’s
investigation amounted to little more than speculation.
McKay admitted on cross-examination that he was
unaware of the actual availability of the witnesses who
testified at the habeas trial, how their stories may have
differed from their accounts at the time of trial, or ‘‘what
kind of baggage’’ those witnesses may have had that
would have weighed against calling them as witnesses
at the criminal trial.
E
Turning to our consideration of the totality of evi-
dence presented at the habeas trial regarding Polan’s
investigative efforts to discover witnesses necessary to
support the petitioner’s assertion that he acted in self-
defense, we cannot agree on the basis of our plenary
review of the record that the petitioner met his burden
of demonstrating that Polan’s investigation in this case
or her decision not to call Jones or other available
witnesses known to her necessarily constituted defi-
cient performance. Our review of the habeas court’s
memorandum reveals that the habeas court made its
finding of an inadequate investigation without reference
to or analysis of the facts regarding the investigative
efforts actually taken or not taken by Polan or her
investigator. In fact, the habeas court does not discuss
those efforts and makes no relevant subordinate find-
ings. Rather, it appears that the habeas court reached
its conclusion of ineffective assistance largely on the
basis of its finding that the ‘‘witnesses who testified at
the habeas trial were credible, both individually and
collectively.’’ The court concluded on the basis of this
credibility determination that it lacked ‘‘confidence in
the outcome of the jury trial.’’
In so concluding, however, the habeas court appears
to have addressed the prejudice prong without having
first made a determination that counsel’s representation
was deficient. Indeed, the habeas court’s finding that
the testimony of the habeas witnesses was credible and
that these witnesses could have lent additional support
to the petitioner’s claim of self-defense, puts the cart
before the horse and does not squarely address the
issue of deficient performance, i.e., whether Polan’s
failure to call these credible witnesses was fairly attrib-
utable to a constitutionally deficient investigation or
whether, if aware of a particular witness, she lacked
any reasonable strategic reason for proceeding in the
manner that she did. Instead, the conclusion that these
witnesses would have been helpful to the petitioner’s
self-defense claim pertains, more directly, to prejudice.
Although a habeas court certainly may reject a claim
of ineffective assistance by addressing whichever prong
of the analysis is easier, in order to conclude that a
habeas petitioner has succeeded with respect to such
a claim, it must engage in an independent consideration
of both prongs, each of which must be satisfied indepen-
dently. See Breton v. Commissioner of Correction, 325
Conn. 640, 669, 159 A.3d 1112 (2017); see also Skakel
v. Commissioner of Correction, 329 Conn. 1, 5, 188 A.3d
1 (2018) (to establish ineffective assistance, petitioner
must establish both that counsel’s failure to secure evi-
dence was ‘‘constitutionally inexcusable’’ and that
proven deficiency ‘‘undermines confidence in the relia-
bility of the petitioner’s conviction’’), cert. denied,
U.S. , 139 S. Ct. 788, 202 L. Ed. 2d 569 (2019). Here,
the habeas court appears to have employed the type
of ‘‘hindsight’’ and after-the-verdict second-guessing of
counsel that Strickland expressly warns against. See
Strickland v. Washington, supra, 466 U.S. 689.
Although ‘‘trial counsel’s testimony is not necessary
to [a] determination that a particular decision might be
considered sound trial strategy’’; Bullock v. Whitley, 53
F.3d 697, 701 (5th Cir. 1995); ‘‘[a] habeas petitioner’s
failure to present trial counsel’s testimony as to the
strategy employed at a petitioner’s criminal trial ham-
pers both the court at the habeas trial and the reviewing
court in their assessments of a trial strategy.’’ Franko
v. Commissioner of Correction, 165 Conn. App. 505,
519, 139 A.3d 798 (2016). In such circumstances, a
habeas court ‘‘must examine all other available evi-
dence from the trial record in order to determine
whether the conduct complained of might be consid-
ered sound trial strategy.’’ (Emphasis added.) Id.As indicated by the United States Court of Appeals
for the Fifth Circuit in Bullock, it is not necessary for
a reviewing court to resolve what strategic decisions
defense counsel actually made, but it is ‘‘required to
presume that the challenged actions were within the
wide range of reasonable professional conduct if, under
the circumstances, it might have been sound trial strat-
egy.’’ (Emphasis added; internal quotation marks omit-
ted.) Bullock v. Whitley, supra, 53 F.3d 701. The peti-
tioner has the burden to overcome that presumption
of reasonable professional conduct; id.; and Polan’s
death did not relieve the petitioner of the substantial
burden of demonstrating that Polan’s representation
was less than constitutionally competent. See Slevin v.
United States, supra, 71 F. Supp. 2d 358 n.9.
Therefore, as the respondent correctly argues, it was
the petitioner’s burden to show that Polan did not
attempt to investigate various witnesses’ accounts of
the shooting. Polan was not available to testify about
the investigation, and the petitioner was unable to elicit
any relevant details from Polan’s investigator, O’Don-
nell, about the efforts Polan or he took to locate and
interview witnesses. Although it may be true that O’Don-
nell’s testimony was of minimal utility because he
asserted that he had virtually no memory of the investi-
gation, this did not shift the burden to the respondent
to prove an adequate investigation. In the absence of
any evidence to overcome the strong presumption that
Polan had engaged in an objectively reasonable investi-
gation, it was improper for the habeas court to have
speculated that the witnesses who testified at the
habeas trial were not known to Polan14 or that she had
elected not to call them on the basis of anything other
than a reasonable strategic choice.
Furthermore, because counsel is presumed to have
acted reasonably in the absence of evidence to the
contrary, without any evidence of Polan’s trial strategy,
the habeas court was required to consider whether
there was any plausible reason for not calling the vari-
ous witnesses. The habeas court’s memorandum is
silent with respect to possible rationales for limiting
the investigation or not calling certain witnesses.
Rather, the habeas court observed that it had ‘‘no
evidence directly from Polan about any of her trial
strategies and the tactical decisions she made to accom-
plish them.’’ This would include her investigative strat-
egy. The petitioner had the burden of establishing that
Polan’s investigation fell outside the wide range of pro-
fessional conduct considered reasonable, but such evi-
dence is lacking here. Judging the reasonableness of
investigative efforts ‘‘depends critically’’ on the informa-
tion that counsel receives from her client. See Gaines
v. Commissioner of Correction, supra, 306 Conn. 681.
Here, the petitioner testified at the habeas trial that he
had made Polan aware of several witnesses, including
Jymisha, Wright, Walker, and Jones. His testimony,
however, offered no insight as to whom Polan or O’Don-
nell actually had interviewed, whether the defense team
had knowledge of witnesses’ potential testimony from
their review of police records or discussions with the
prosecutors or other witnesses, or whether Polan
decided that she effectively had gathered the factual
basis for the defenses she sought to pursue through the
testimony of the state’s trial witnesses.
Polan indisputably pursued a self-defense claim at
trial in the present case. The petitioner concedes that
Polan properly requested and received a jury instruction
on self-defense, and a review of the trial transcript
shows that she spent a portion of her closing argument
attempting to persuade the jury that the petitioner had
fired his weapon in self-defense. Furthermore, the self-
defense case that Polan presented at the criminal trial
was not markedly different than the one the petitioner
advanced at the habeas trial. Polan was able to argue
on the basis of the evidence presented at the criminal
trial, largely through the state’s own witnesses, that the
petitioner fired his weapon toward the victim, whom
he had reason to believe was armed, only after hearing
a gunshot fired by an unknown person. The only addi-
tional information pertaining to self-defense that a jury
could have gleaned from the habeas trial witnesses’
testimony that was not presented at the criminal trial
was that it was highly likely that the victim had, in fact,
been armed at the time he was shot, because multiple
witnesses either saw him with a gun before he was shot
or saw someone remove a gun from near his body after
he was shot. As the respondent persuasively argues,
however, these additional facts, even if presented to
the jury, would only be marginally relevant to the peti-
tioner’s self-defense claim because ‘‘it was the reason-
ableness of the petitioner’s subjective perception of
the situation, as he saw it, not the perception of the
other witnesses, that was relevant to the issue of self-
defense.’’ In other words, Polan did not need to demon-
strate that the victim in fact had a gun, only that the
petitioner reasonably believed him to be armed.
Finally, it must be noted that Polan’s overall perfor-
mance included presenting a defense that resulted in
the petitioner’s acquittal of murder, the most serious
charge he was facing. The United States Supreme Court
has observed that ‘‘while in some instances even an
isolated error can support an ineffective-assistance
claim if it is sufficiently egregious and prejudicial . . .
it is difficult to establish ineffective assistance when
counsel’s overall performance indicates active and
capable advocacy.’’ (Citation omitted; internal quota-
tion marks omitted.) Harrington v. Richter, 562 U.S.
86, 111, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011). It is
hard to label Polan’s efforts on behalf of the petitioner
as ineffective advocacy when those efforts resulted in
a significant reduction in the petitioner’s potential sen-
tencing exposure through his acquittal on the murder
charge. If the petitioner had been convicted of murder,
he faced a sentence ranging from the mandatory mini-
mum of twenty-five years to a maximum of life in prison.
See General Statutes § 53a-35a (2). Instead, his man-
slaughter with a firearm conviction carried a lesser
penalty, a five year mandatory minimum with a maxi-
mum sentence of forty years of incarceration. General
Statutes § 53a-35a (5).
On the basis of our plenary review of the record
presented to the habeas court, we conclude that, with-
out resorting to impermissible speculation, the record
contains insufficient evidence from which to gauge
whether Polan employed reasonable efforts to investi-
gate the shooting to locate relevant witnesses in support
of the petitioner’s self-defense claim or whether she
had strategic reasons for deciding not to call a particular
witness to testify at trial.15 Because the petitioner has
the burden of proof, that evidentiary lacuna must be
resolved in favor of the respondent.
Because we agree with the respondent that the
habeas court improperly determined that Polan pro-
vided deficient performance with respect to the peti-
tioner’s self-defense claim, we need not address the
respondent’s additional argument that the habeas court
also improperly determined that the petitioner proved
prejudice relative to the issue of self-defense. Because,
however, the habeas court’s decision to grant the peti-
tion for habeas corpus was also founded on Polan’s
alleged ineffective assistance in failing to pursue a third-
party culpability defense, we turn to the respondent’s
next claim.
III
The respondent also claims that the habeas court
improperly determined that Polan rendered deficient
performance because she failed to pursue a third-party
culpability defense. Specifically, the respondent claims
that the court improperly relied on its own opinion
regarding the viability of a third-party culpability
defense centered on the victim’s brother, Mookie, rather
than entertaining the possibility that a competent attor-
ney, after careful consideration of the law and available
evidence, reasonably might have disagreed with the
habeas court’s assessment and considered the theory
either too weak to present to a jury or having the poten-
tial to muddy or otherwise undermine the defense that
she chose to pursue, which ultimately resulted in an
acquittal on the most serious charge of murder. We
agree with the respondent that, in light of the record
presented, which, despite not seeking a third-party cul-
pability instruction, includes the undisputed fact that
Polan argued to the jury the possibility that the victim
was killed by a bullet fired by someone other than the
defendant, the habeas court improperly determined that
Polan had provided ineffective assistance with respect
to a third-party culpability defense.
We begin with a brief review of the standards govern-
ing the admissibility of third-party culpability evidence
and the requirements that must be met to obtain an
instruction on third party culpability. ‘‘It is well estab-
lished that a defendant has a right to introduce evidence
that indicates that someone other than the defendant
committed the crime with which the defendant has been
charged. . . . The defendant must, however, present
evidence that directly connects a third party to the
crime. . . . It is not enough to show that another had
the motive to commit the crime . . . nor is it enough
to raise a bare suspicion that some other person may
have committed the crime of which the defendant is
accused. . . .
‘‘The admissibility of evidence of [third-party] culpa-
bility is governed by the rules relating to relevancy.
. . . In other words, evidence that establishes a direct
connection between a third party and the charged
offense is relevant to the central question before the
jury, namely, whether a reasonable doubt exists as to
whether the defendant committed the offense. Evi-
dence 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.’’ (Citations omitted; internal quotation
marks omitted.) Bryant v. Commissioner of Correc-
tion, 290 Conn. 502, 514–15, 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).
‘‘It is not ineffective assistance of counsel . . . to
decline to pursue a [third-party] culpability defense [if]
there is insufficient evidence to support that defense.’’
Id., 515; see also Dunkley v. Commissioner of Correc-
tion, 73 Conn. App. 819, 826–27, 810 A.2d 281 (2002),
cert. denied, 262 Conn. 953, 818 A.2d 780 (2003). Fur-
thermore, even if a witness’ testimony might have sup-
ported a third-party culpability defense, this court on
other occasions has concluded that defense counsel
did not engage in deficient performance by failing to
raise the defense or to call witnesses to testify in
instances in which jurors likely would have found the
testimony unreliable, inconsistent, or unpersuasive in
light of the state’s evidence against the petitioner. See,
e.g., Floyd v. Commissioner of Correction, 99 Conn.
App. 526, 531–32, 914 A.2d 1049 (testimony of drug
dealers/gang members insufficient to render counsel’s
failure to raise third-party culpability claim deficient
performance), cert. denied, 282 Conn. 905, 920 A.2d 308(2007); Daniel v. Commissioner of Correction, 57 Conn.
App. 651, 684, 751 A.2d 398 (failure to raise third-party
culpability defense did not constitute deficient perfor-
mance because inconsistent testimony regarding iden-
tity of third party), cert. denied, 254 Conn. 918, 759 A.2d
1024 (2000).
The following additional facts are relevant to this
claim. At trial, there was uncontested evidence that,
shortly before the petitioner fired his weapon at the
victim, someone nearby, other than the petitioner, had
fired a shot. Williams’ testimony at trial suggested that
the shooter was Wright, although other witnesses testi-
fied that Wright was not present when the first shot
was fired. As previously indicated, Jones had provided
the defense with a statement suggesting that Mookie
had fired the first shot. The medical examiner testified
at trial that the bullet that killed the victim had entered
his skull at a point behind his ear and exited through
his forehead. The evidence was uncontested that the
petitioner was standing directly in front of the victim
just prior to him firing his gun.
Here, although Polan did not request a specific
instruction on third-party culpability, she nevertheless
strongly argued the essence of such a defense to the
jury. Accordingly, we reject any notion that she failed
to pursue the defense outright. In her closing argument,
Polan effectively attempted to shift blame away from
the petitioner and toward a third-party assailant by
arguing to the jury on the basis of the forensic evidence
presented that there was reasonable doubt that the
bullet that killed the victim was fired by the petitioner.
Specifically, she highlighted the fact that the bullet that
killed the victim had entered the skull from behind the
victim’s right ear whereas all the witnesses had placed
the petitioner standing directly in front of the victim at
the time the victim was shot. If the jury believed that
theory, or if it had created reasonable doubt in the jury’s
mind about the identity of the shooter, it could have
resulted in an acquittal irrespective of whether Polan
elected to request an instruction to the jury regarding
third party culpability.
Moreover, there are a number of possible reasons
why Polan may have chosen to present the third-party
culpability defense in the manner that she did, including
choosing to forgo seeking a third-party culpability
instruction from the court. Polan reasonably might have
believed that it would be easier to establish, on the
basis of the forensic evidence, reasonable doubt as to
whether the bullet that killed the victim had been fired
by the petitioner rather than attempting to satisfy the
more rigid requirements necessary for entitlement to a
third-party culpability instruction. See Bryant v. Com-
missioner of Correction, supra, 290 Conn. 515 (evi-
dence of ‘‘direct connection between a third party and
the charged offense’’ necessary for instruction on third-
party culpability). Instead, she reasonably could have
determined that, even in the absence of an instruction,
she effectively could argue to the jury that an unidenti-
fied third person caused the death of the victim rather
than the petitioner. That strategy could have been par-
ticularly compelling in a case like the present one in
which there were conflicting witness accounts of who
was present, who was armed, and who may have fired
a shot.
Polan also reasonably may have believed that the
third-party culpability defense was weaker than the
petitioner’s self-defense claim, and that, even if she
were able to convince the court to give an instruction
on third-party culpability, it may have unnecessarily
distracted the jury from what she believed were more
compelling arguments. The state, after all, had strong
evidence to counter a third-party culpability narrative.
All the witnesses testified that the victim did not fall
to the ground until after the petitioner fired his gun,
suggesting it was his shot, and not the first shot fired,
that struck and killed the victim. Furthermore, Steven-
son, Williams and the petitioner himself testified at the
criminal trial that the victim had begun to turn or move
away from the petitioner at the time the petitioner fired
his gun, which could have explained away the forensic
evidence that was central to the success of any third-
party culpability claim. Thus, although not abandoning
it completely, Polan chose not to make it more of a
focus of her closing argument and risk confusing or
alienating the jury.
Finally, as we have discussed already with respect
to the petitioner’s self-defense claim, specific evidence
of Polan’s reasons for pursuing or not pursuing any
particular defense strategy—something generally
obtained at the habeas trial through the testimony of
trial counsel or someone directly familiar with her strat-
egy—was utterly lacking. Ordinarily, such evidence is
crucial to meet the high hurdle imposed on a petitioner
to show that his counsel’s exercise of professional judg-
ment fell outside the wide range considered competent
for constitutional purposes. See O’Neil v. Commis-
sioner of Correction, 142 Conn. App. 184, 190–91, 63
A.3d 986 (lack of testimony by defense counsel about
strategy was factor in determining petitioner failed to
meet burden of demonstrating deficient performance),
cert. denied, 309 Conn. 901, 68 A.3d 656 (2013). Like the
claim of ineffective assistance regarding self-defense,
because the petitioner bears the burden of demonstra-
ting that counsel’s representation was deficient, the
habeas court was required to consider whether Polan’s
decision not to pursue a formal third-party culpability
instruction might be viewed as a reasonable strategic
decision under the facts and circumstances of this case
as viewed from the position of counsel at the time of
the decision. The habeas court failed to conduct this
inquiry and made no relevant factual findings.
To summarize, we agree with the respondent that the
habeas court, in analyzing whether Polan’s performance
fell outside the wide range of competent performance,
failed affirmatively to entertain whether Polan properly
had weighed the pros and cons of various trial strategies
and chose to defend the petitioner in a manner different
than the strategy the habeas court thought she should
have pursued. Although the death of counsel arguably
made the petitioner’s case more difficult to prove than
it might otherwise have been, that unfortunate reality
does not lessen the petitioner’s significant burden.
Because the petitioner was unable, due to a lack of
evidence, to negate all possibility that Polan engaged
in a reasonable, albeit only partially successful, defense
strategy on the record available, he failed to meet his
burden and the habeas court should have denied his
petition for a writ of habeas corpus.
The judgment is reversed and the case is remanded
with direction to deny the petition for a writ of
habeas corpus.
In this opinion the other judges concurred.
1
Specifically, the court sentenced the petitioner to the maximum permit-
ted sentence of five years of imprisonment on the weapons charge, a class
D felony; see General Statutes §§ 29-37 (b) and 53a-35a (8); which was
ordered to run consecutively to the forty year maximum sentence of incarcer-
ation that the court imposed for the manslaughter charge. See General
Statutes § 53a-35a (5).
2
In particular, this court concluded that the prosecutor improperly had
argued to the jury that the jury could infer the defendant’s intent from the
‘‘extra effort’’ and ‘‘more conscious action’’ it takes to fire a revolver rather
than a semiautomatic pistol because the state’s firearms expert never testi-
fied to those particular facts. State v. Jordan, supra, 117 Conn. App. 166.
This court also concluded that, under the circumstances presented, the
prosecutor’s repetitive use of the rhetorical phrase ‘‘doesn’t it offend your
common sense’’ was improper. Id., 167. Despite those improprieties, how-
ever, this court determined on the basis of our analysis of the various factors
set forth in State v. Williams, 204 Conn. 523, 535–40, 529 A.2d 653 (1987),
that the defendant was not deprived of his right to a fair trial. See State v.
Jordan, supra, 168–70.
3
The habeas court permitted the petitioner to withdraw the two prior
habeas petitions without prejudice, both times just before the start of a trial
on the merits. The petitioner also filed a fourth habeas petition subsequent
to the present petition in which he alleged that the respondent had entered
into, and subsequently breached, an agreement to award him certain earned
risk reduction credits. That fourth petition was dismissed by the habeas
court. See Jordan v. Commissioner of Correction, 190 Conn. App. 557, 558,
211 A.3d 115 (affirming judgment of habeas court on ground that petition
had failed to implicate cognizable liberty interest sufficient to invoke subject
matter jurisdiction of habeas court), cert. denied, 333 Conn. 905, 215 A.3d
159 (2019).
4
See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d
215 (1963).
5
The respondent also raised the defense of abuse of the writ. In support
of that defense, the respondent asserted that the petitioner raised the same
issues in the current habeas petition that he had raised in two prior petitions,
each of which he had withdrawn on the day trial was scheduled to com-
mence, purportedly due to the unavailability of witnesses. ‘‘Decisions con-
cerning abuse of the writ are addressed to the sound discretion of the trial
court.’’ James L. v. Commissioner of Correction, 245 Conn. 132, 143, 712
A.2d 947, 953 (1998); see id., 140 n.8 (noting that successive petitions are
not necessarily abuse of writ but declining to ‘‘delineate how these two
habeas doctrines differ or overlap’’). The respondent did not pursue the
abuse of the writ defense in his posttrial brief, and the habeas court did
not address that defense in its decision on the merits. Because the respondent
has not raised abuse of the writ as an issue on appeal, we deem it abandoned.
6
As part of his preliminary papers on appeal, the petitioner raised as an
alternative ground for affirmance pursuant to Practice Book § 63-4 (a) (1)
that the habeas court also should have granted the petition on the basis of
Polan’s having allowed her chief investigator, O’Donnell, to assist her at
counsel table during the trial. The habeas court had found that Polan’s
decision to allow O’Donnell to sit at counsel table was unreasonable as a
defense strategy and, thus, amounted to deficient performance, because, as
a result of the criminal court’s sequestration order, Polan was precluded
from calling O’Donnell to impeach a witness who testified at trial inconsis-
tently with a pretrial statement made to O’Donnell. The habeas court, how-
ever, concluded that the petitioner had failed to demonstrate that he was
unduly prejudiced by Polan’s decision. Because the petitioner did not brief
this alternative ground for affirmance in his appellee’s brief, we deem it
abandoned. See State v. Rowe, 279 Conn. 139, 143 n.1, 900 A.2d 1276 (2006).
7
The respondent filed a petition for certification to appeal on October
15, 2018. The habeas court initially denied the petition on October 16, 2018,
without explanation. In response to that ruling, the respondent filed a motion
for articulation asking the court to state the basis for its denial of the
petition for certification. In that motion, the respondent sought to excuse
any perceived delay in the filing of the petition by noting that counsel for
the respondent had been out of the country, that counsel was informed by
the clerk’s office that it measured the ten day filing period governing petitions
for certification to appeal as set forth in General Statutes § 52-470 (g) by
counting business days, not calendar days (which would mean the October
15, 2018 petition was timely filed), and that counsel filed the petition immedi-
ately after returning to the office. The habeas court, in response to the
motion for articulation, issued an order on October 25, 2018, vacating its
prior order and granting the respondent’s petition for certification to appeal.
The court explained that, although, in its view, it properly had interpreted
the ten day statutory filing deadline to mean ten calendar days, it nonetheless
had reconsidered its earlier ruling in light of the facts set forth in the
motion for articulation and because the time period for filing a petition
for certification to appeal is not jurisdictional in nature. See Iovieno v.
Commissioner of Correction, 242 Conn. 689, 700, 699 A.2d 1003 (1997)
(holding that whether to entertain untimely petition for certification fell
within court’s discretion, to be exercised after considering reasons for
delay).
8
‘‘[T]he state and federal constitutional standards for review of ineffective
assistance of counsel claims are identical’’ and the rights afforded are ‘‘essen-
tially coextensive’’ in nature and, thus, do not require separate analysis.
(Internal quotation marks omitted.) State v. Drakeford, 261 Conn. 420, 431,
802 A.2d 844 (2002), citing State v. Fernandez, 254 Conn. 637, 652, 758 A.2d
842 (2000), cert. denied, 532 U.S. 913, 121 S. Ct. 1247, 149 L. Ed. 2d 153 (2001).
9
Because we determine on the basis of our plenary review that the peti-
tioner failed to satisfy his burden under the performance prong of Strickland,
it is unnecessary for us to reach the respondent’s claim that the petitioner
also failed to satisfy the prejudice prong. See Antwon W. v. Commissioner
of Correction, supra, 172 Conn. App. 858.
10
The criminal trial court’s detailed instructions to the jury on self-defense
included the following instructions pertaining to the initial aggressor excep-
tion to self-defense as well as the statutory duty to retreat. ‘‘The initial
aggressor is the person who first acts in such a manner that creates a
reasonable belief in another person’s mind that physical force is about to
be used upon that other person. The first person to use physical force is
not necessarily the initial aggressor.
‘‘Before an initial aggressor can . . . use any physical force, the initial
aggressor must withdraw or abandon the conflict in such a way that the
fact of withdrawal is perceived by his opponent so that such opponent is
aware that there is no longer any danger from the original aggression.
‘‘If the initial aggressor so withdraws or abandons the conflict and his
opponent not withstanding continues or threatens the use of physical force,
the initial aggressor may be justified in using physical force to defend himself.
‘‘If you find that the state has proven beyond a reasonable doubt that the
defendant was the initial aggressor and that the defendant did not effectively
withdraw from the encounter or abandon it in such a way that his opponent
knew he was no longer in any danger from the defendant, you shall then
find the defendant was not justified in using any physical force.
***
‘‘[A] person is not justified in using deadly physical force upon another
person if he knows he can avoid the necessity of using such force by
retreating with complete safety. This means that retreat was both completely
safe . . . and available and that the defendant knew it.
‘‘Completely safe means without any injury to him whatsoever. As I have
said, self-defense requires you to focus on the person claiming self-defense,
on what he reasonably believed under the circumstances, and it presents
a question of fact as to whether a retreat with complete safety was available
and whether the defendant knew it.
‘‘The law stresses that self-defense cannot be retaliatory. It must be defen-
sive and not punitive. So you must ask yourself, did the defendant know
he could avoid the use of deadly force by retreating with complete safety?
If so and yet he chose to pursue the use of deadly force then you shall
reject that self-defense claim.’’
11
We note that the state’s theory of the case did not turn on the identity
of who fired the first shot. Williams’ trial testimony implicated Wright without
directly identifying him as the shooter, whereas at least one of the habeas
witnesses indicated that the first shooter was Mookie.
12
Neither the transcript of Martin’s statement nor the tape recording itself,
both of which were admitted as full exhibits at the criminal trial, was
submitted as an exhibit at the habeas trial and, thus, any review of the
contents of Martin’s statement is limited to that portion described on the
record at the criminal trial.
13
Jones’ story corroborated in some respects Williams’ trial testimony
that other participants, including the victim, were armed and that weapons
had been drawn before the victim was shot. Her testimony, if believed, also
helped corroborate the petitioner’s own testimony that he fired because he
feared for his life.
14
Our review of the record would support an inference that Polan was
aware of several of the witnesses. For example, both Jones and Jordan
testified at the habeas trial that they had spoken with Polan or O’Donnell.
15
In Skakel, our Supreme Court concluded that defense counsel provided
ineffective assistance by failing to call an additional alibi witness, who,
unlike the witnesses called at trial to support the defendant’s alibi defense,
was unrelated to the defendant and, thus, a neutral and disinterested witness.
See Skakel v. Commissioner of Correction, supra, 329 Conn. 54. Here, none
of the witnesses presented at the habeas trial could be described as neutral
or disinterested. They were either related to or friends with the petitioner
and/or the victim.