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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 manslaughter 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 petitioner’s habeas trial and, thus, the habeas trial did not hear testimony regarding 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 selfdefense was premature in the absence of a determination that D’s performance 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 evidence 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 appellee (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’’ (internal 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 petitioner, 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 petitioner’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 sentence 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. Jordan, 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 quotation 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 illegal 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 conviction.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 evidence 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 Clarence Willoughby, who had conducted the police investigation of the shooting. Count three alleged a Brady

violation4

regarding the state’s alleged failure to disclose

potential impeachment evidence pertaining to Willoughby. 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 testimony 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 testified as the petitioner’s expert witness on professional

standards. The court also heard testimony from the

following six witnesses, all of whom allegedly had witnessed 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 petitioner’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 performance 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 determined 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 petitioner’s other claims of ineffective assistance.6 The

habeas court vacated the petitioner’s manslaughter conviction and remanded the matter to the trial court for

further proceedings. Following the granting of his petition 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 principles 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 fourteenth 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 twopronged test articulated in Strickland v. Washington,

[supra, 466 U.S. 687]. Strickland requires that a petitioner satisfy both a performance prong and a prejudice

prong. To satisfy the performance prong, a claimant

must demonstrate that counsel made errors so serious

that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment.’’ (Citations omitted; 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 petitioner’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 constituted a violation of the petitioner’s rights [to the effective 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 plenary review by this court unfettered by the clearly erroneous standard.’’ (Internal quotation marks omitted.)

Gonzalez v. Commissioner of Correction, 308 Conn.

463, 469–70, 68 A.3d 624, cert. denied sub nom. Dzurenda 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 reasonable considering all the circumstances. Prevailing

norms of practice as reflected in American Bar Association standards and the like . . . are guides to determining what is reasonable. . . . Nevertheless, [j]udicial
scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to secondguess 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 eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel’s challenged conduct, and

to evaluate the conduct from counsel’s perspective at

the time. Because of the difficulties inherent in making

the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy. . . .

‘‘Thus, a court deciding an actual ineffectiveness

claim must judge the reasonableness of counsel’s challenged 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 assistance 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 obligation [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 unnecessary. In any ineffectiveness case, a particular decision

not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.

‘‘The reasonableness of counsel’s actions may be

determined or substantially influenced by the [petitioner’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 investigation 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 considerably 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 investigations 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 without adequate explanation, failed to call the witness at

trial. The reasonableness of an investigation must be

evaluated not through hindsight but from the perspective of the attorney when he was conducting it. . . .

Furthermore, [t]he failure of defense counsel to call a

potential defense witness does not constitute ineffective assistance unless there is some showing that the

testimony would have been helpful in establishing the

asserted defense. . . .

‘‘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 reasonably should have discovered during the pretrial investigation.’’ (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 assistance in any given case. Even the best criminal defense

attorneys would not defend a particular client in the

same way.’’ (Internal quotation marks omitted.) Meletrich v. Commissioner of Correction, supra, 332 Conn.

637. The United States Supreme Court has cautioned

that a reviewing court, in considering whether an attorney’s performance fell below a constitutionally acceptable level of competence pursuant to the standards set
forth herein, must ‘‘properly apply the strong presumption 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; emphasis 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. Furthermore, 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 witnesses 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 selfdefense claim necessarily fell below the minimal constitutional standard required by the sixth amendment.

A

We first set forth the well settled substantive principles 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, § 53a19 (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 quotation marks omitted.) Miller v. Commissioner of Correction, 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 omitted; 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 physical 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 assailant struck the first blow before responding. If an assailant 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 production. That is, he merely is required to introduce sufficient evidence to warrant presenting his claim of selfdefense 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 principles indicate, therefore, only the state has a burden

of persuasion regarding a self-defense claim: it must

disprove the claim beyond a reasonable doubt.’’ (Internal 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 argument. The petitioner and the victim, who were acquaintances, 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 Mookie 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 personnel investigating the shooting because he left the

state, which the state claimed evidenced his consciousness of guilt and supported its claim that he did not

act in self-defense.

The defense attacked the state’s case first by challenging the credibility of the state’s witnesses and pointing 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 physical 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, coupled 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, accordingly, his actions were justified as self-defense.

The state rebutted the petitioner’s claim of selfdefense, 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 unreasonable. 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 circumstances necessitates that we begin with a more comprehensive 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 witnesses whom the petitioner offered in support of his

allegations that Polan had not conducted a proper investigation 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 others were all nearby during that initial confrontation

between the petitioner and the victim. Mookie, however, was no longer present when the argument continued 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’ testimony, 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 evidence, 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 afternoon 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, testified that Mookie was not present at the time the shooting occurred. She also denied that she had told O’Donnell 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 petitioner 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 Connecticut 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 transcript 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 crossexamination of Martin, attempted to discredit the veracity 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 probation.

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 testimony 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 petitioner 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 petitioner, 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 reasonably 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 approximately 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 selfdefense. 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 selfdefense 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 killing, 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. Ultimately, 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 firearm, 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 selfdefense 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 ineffective 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 concluded that Polan had not conducted an adequate pretrial investigation, which, according to the court,

resulted in her having failed to discover several additional witnesses that the habeas court concluded would

have helped her raise reasonable doubt regarding selfdefense. 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 evidence in the record and, in fact, suggests that the record

directly contradicts the court’s findings. The respondent 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 witnesses 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 supported 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 apparent 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 investigation of the shooting, and (2) that a proper investigation would have uncovered witnesses whose testimony

would have bolstered in some significant way the peti-
tioner’s claim of self-defense. In considering that testimony, we focus our attention on what evidence the

petitioner produced that directly pertained to Polan’s

investigative efforts, her knowledge or lack of knowledge 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 investigator, 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, nothing 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 presumption of constitutionally adequate performance.

Audrey is Alexis’ mother and the sister of the petitioner 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, approximately ten in total, from where she was inside her

grandmother’s home. She stated that when she ran outside, 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-examination, 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 investigation 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 Jymisha outside, so Polan also may have had this information 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 mentioned 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 selfdefense 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 presence 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 reasonable 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 petitioner 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, therefore, any decision not to call Jones at trial cannot be

attributed to a failure by Polan to investigate the shooting. Jones testified that she spoke with the police about

the incident and gave them a statement. She also testified that she had met with O’Donnell several times prior

to the criminal trial and had provided him with a statement. 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 petitioner, the victim, and Mookie. After that initial argument 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 petitioner leave in his car but return about five minutes

later and resume his argument with the victim and Mookie. She stated that Mookie pulled a gun from his waistband 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’ written 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 Williams 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’Donnell. He was not asked about the substance of his discussion 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 compelling 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 testimony 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 representation 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 selfdefense actually pursued by Polan at trial nor did his

testimony advance any alternative theory of defense

that she could have pursued. Furthermore, it is reasonable 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 witnesses, 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 adequately 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 selfdefense 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 evidence presented at the habeas trial regarding Polan’s

investigative efforts to discover witnesses necessary to

support the petitioner’s assertion that he acted in selfdefense, 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 deficient 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 findings. 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 attributable 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 independently. 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 evidence was ‘‘constitutionally inexcusable’’ and that

proven deficiency ‘‘undermines confidence in the reliability 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 hampers 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 evidence from the trial record in order to determine

whether the conduct complained of might be considered 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 strategy.’’ (Emphasis added; internal quotation marks omitted.) 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’Donnell, about the efforts Polan or he took to locate and

interview witnesses. Although it may be true that O’Donnell’s testimony was of minimal utility because he

asserted that he had virtually no memory of the investigation, 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 investigation, 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 various 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 accomplish them.’’ This would include her investigative strategy. The petitioner had the burden of establishing that

Polan’s investigation fell outside the wide range of professional conduct considered reasonable, but such evidence is lacking here. Judging the reasonableness of

investigative efforts ‘‘depends critically’’ on the information 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’Donnell 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 selfdefense 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 additional 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 petitioner’s self-defense claim because ‘‘it was the reasonableness 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 selfdefense.’’ In other words, Polan did not need to demonstrate 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 performance 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 quotation 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 sentencing exposure through his acquittal on the murder

charge. If the petitioner had been convicted of murder,

he faced a sentence ranging from the mandatory minimum of twenty-five years to a maximum of life in prison.

See General Statutes § 53a-35a (2). Instead, his manslaughter with a firearm conviction carried a lesser

penalty, a five year mandatory minimum with a maximum 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, without resorting to impermissible speculation, the record

contains insufficient evidence from which to gauge

whether Polan employed reasonable efforts to investigate 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 provided deficient performance with respect to the petitioner’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 petition for habeas corpus was also founded on Polan’s

alleged ineffective assistance in failing to pursue a thirdparty 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 attorney, 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 potential 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 culpability 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 governing 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 established 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] culpability 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. Evidence that would raise only a bare suspicion that a

third party, rather than the defendant, committed the

charged offense would not be relevant to the jury’s

determination.’’ (Citations omitted; internal quotation

marks omitted.) Bryant v. Commissioner of Correction, 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 Correction, 73 Conn. App. 819, 826–27, 810 A.2d 281 (2002),

cert. denied, 262 Conn. 953, 818 A.2d 780 (2003). Furthermore, even if a witness’ testimony might have supported 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 performance because inconsistent testimony regarding identity 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 testified 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. Commissioner of Correction, supra, 290 Conn. 515 (evidence of ‘‘direct connection between a third party and

the charged offense’’ necessary for instruction on thirdparty culpability). Instead, she reasonably could have

determined that, even in the absence of an instruction,

she effectively could argue to the jury that an unidentified third person caused the death of the victim rather

than the petitioner. That strategy could have been particularly 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, Stevenson, 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 thirdparty 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 strategy—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 judgment fell outside the wide range considered competent

for constitutional purposes. See O’Neil v. Commissioner 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 demonstrating 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 permitted 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 incarceration 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 testified 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, however, 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 commence, purportedly due to the unavailability of witnesses. ‘‘Decisions concerning 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 inconsistently with a pretrial statement made to O’Donnell. The habeas court, however, 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 immediately 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 ‘‘essentially 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 petitioner 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 exception 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 defensive 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.