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*********************************************** 
BILLY WRIGHT v. COMMISSIONER

OF CORRECTION

(AC 43607)

Moll, Alexander and Vertefeuille, Js.

Syllabus

The petitioner, who had previously been convicted of murder, sought a writ

of habeas corpus, claiming that he received ineffective assistance from

his criminal trial counsel, S. The petitioner’s first trial resulted in a

mistrial following a hung jury, and, at the second trial, the jury found

the petitioner guilty. Following a trial, the habeas court granted the

petition for a writ of habeas corpus on the ground that, during the

petitioner’s second trial, S failed to present testimony from G, the petitioner’s girlfriend at the time of the shooting, as an alibi witness. The

court emphasized that there was a hung jury at the petitioner’s first trial

and that, although it was not possible to discern the individual jurors’

credibility assessments, the only evidence contradicting the state’s evidence at the first trial was G’s testimony. The court reasoned that,

therefore, one half of the first jury was unable to conclude that the state

had met its burden of proof in light of G’s testimony, and that G’s

testimony impacted the outcome of the first trial. From the judgment

rendered thereon, the respondent, the Commissioner of Correction, on

the granting of certification, appealed to this court. Held that the habeas

court incorrectly determined that S rendered ineffective assistance by

failing to present an alibi defense: the court’s determination was based

on the improper assumption that the six jurors from the first trial who

did not vote in favor of finding the petitioner guilty were influenced by

G, and that G’s testimony contributed to the jury’s inability to conclude

that the state had met its burden of proof beyond a reasonable doubt;

moreover, although the jury requested playback of G’s testimony, G was

one of seven witnesses whose testimony was reviewed by the jury during

deliberations; accordingly, the court’s finding that S rendered deficient

performance by failing to call G as an alibi witness was inextricably

intertwined with its determination as to the reason for the hung jury in

the petitioner’s first trial, and because the reasons why there was a

hung jury are not ascertainable, it would be guesswork for the court to

attempt to determine such reasons.

Argued May 19—officially released December 7, 2021

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 in part; new trial.

Jonathan M. Sousa, deputy assistant state’s attorney,

with whom, on the brief, were Patrick J. Griffin, state’s

attorney, and Adrienne Russo, assistant state’s attorney, for the appellant (respondent).

Adele V. Patterson, senior assistant public defender,

for the appellee (petitioner).
Opinion

ALEXANDER, J. The respondent, the Commissioner

of Correction, appeals from the judgment of the habeas

court granting the petition for a writ of habeas corpus

filed by the petitioner, Billy Wright. On appeal, the

respondent claims that the court incorrectly determined

that the petitioner’s criminal trial counsel had rendered

ineffective assistance by failing to present an alibi

defense. We agree and, accordingly, reverse the judgment of the habeas court.

The petitioner was originally tried in 2010 for the

April 27, 2008 murder of Ronald Bethea in violation of

General Statutes § 53a-54a (a). State v. Wright, 152

Conn. App. 260, 261, 96 A.3d 638 (2014), rev’d, 322 Conn.

270, 140 A.3d 939 (2016).1 The murder occurred outside

of the Cardinal’s Club in New Haven at approximately

1:47 a.m. Id., 262–63. The trial court declared a mistrial

after a hung jury, and a retrial took place in 2011. Id.,

261–62. At the second trial, the jury found the petitioner

guilty of murder, and the court imposed a sentence of

sixty years of imprisonment. Id., 262.

The petitioner initiated this habeas action, and, on

March 1, 2018, he filed an amended petition that contained four counts. Only the first count, in which the

petitioner alleged ineffective assistance of his criminal

trial counsel, Richard Silverstein, for, inter alia, failing

to present an alibi defense at his second criminal trial,

is relevant to this appeal.2 With respect to this claim,

the petitioner alleged that a ‘‘fundamental difference

between the first and second trials was that [Silverstein]

did not pursue an alibi defense and did not produce

evidence which established an alibi defense which had

been produced at the first trial. An inference can be

drawn that, but for trial counsel’s failure to produce an

alibi defense and evidence in support of an alibi defense,

the result of the petitioner’s second trial would have

been different.’’

A trial on the petitioner’s habeas petition was held

on July 12 and August 30, 2018, and January 11 and

February 28, 2019. The petitioner presented multiple

witnesses. Stephanie Gonzalez, the petitioner’s girlfriend at the time of the shooting and the mother of

his child, testified in a manner consistent with her testimony at the petitioner’s first criminal trial. She stated

that, on the night the victim was shot, she got home

between 11:30 p.m. and 12 a.m. after picking up their

son from her grandmother’s house. When she arrived

home, the petitioner was asleep in their apartment. She

further explained that she slept in the same bed as the

petitioner and woke up a few times when her son woke

up, ‘‘around 3, 4 then around, like, 6, 7 [o’clock] in the

morning.’’ Each time she woke up, the petitioner was

still asleep in their bed. She further testified that she

met with Silverstein about testifying at the petitioner’s
second criminal trial. When she arrived at Silverstein’s

office on the morning she planned to testify, however,

he told her she would not have to testify because ‘‘[h]e

felt like he had a strong case and he didn’t need me

. . . .’’

Attorney Jeffrey Kestenband testified as a criminal

defense expert. In this capacity, he opined ‘‘that reasonably competent trial counsel would have called . . .

Gonzalez to testify as an alibi witness at the second

trial.’’ He explained that Gonzalez’ testimony provided

direct evidence that the petitioner had an alibi for the

time of the crime. Further, Kestenband testified that

the lack of a jury verdict in the first trial, as well as the

fact that the jury in the first trial asked to have Gonzalez’

testimony read back during its deliberations, suggested

that at least some jurors credited her testimony. He

emphasized the importance of the hung jury, stating

that ‘‘[i]t was six to six,3 which would tend to suggest

that the state had a hard time proving its case, and

when you also consider the fact that [Gonzalez] not

only provided evidence that, if credited, would have

established that [the petitioner] was not guilty, but that

she was the only witness called by the defense. That is

really important information to consider when deciding

how to defend [the petitioner] at the second trial.’’

(Footnote added.) Kestenband also opined that there

was a reasonable probability that a different outcome

would have occurred in the petitioner’s second trial if

Silverstein had called Gonzalez and presented an alibi

defense. On cross-examination, Kestenband admitted

that it was possible that the jurors from the first trial

did not credit Gonzalez’ testimony, and, instead, found

that the state had not proven its case beyond a reasonable doubt. However, he also stated that, ‘‘when I consider evidence as an expert and analyze it that way,

I’m not really focusing on possibilities because almost

anything is possible. I’m focused on reasonable probabilities, and while [I] acknowledge that it’s possible, I

find it unlikely that it’s reasonably probable that that

occurred.’’

Silverstein testified that his defense theory was to

show that the police had conducted a flawed and incomplete investigation, and he stated that he ‘‘had to change

it up’’ from the defense presented in the first trial

because he was ‘‘not gonna try the same case that didn’t

result in a not guilty.’’ Silverstein also attacked the

state’s identification evidence against the petitioner

during the second criminal trial. He believed that the

jury in the first trial had voted eleven to one or ten to two

in favor of convicting, and stated that he had ordered

the transcripts of the first trial only through closing

arguments, because ‘‘anything after the closing argument I’m not interested in . . . .’’ After he was

informed that the hung jury actually was divided six

to six, Silverstein said that would not change how he

handled the petitioner’s defense. Silverstein explained
that he did not recall speaking to Gonzalez during the

petitioner’s trial but also testified that he reviewed her

testimony from the first trial and ‘‘didn’t find her credible and didn’t think she’d do a good job, and I didn’t

think she did a good job during the first case . . . .’’

He believed that, if Gonzalez had been credible at the

first trial, the jury would have returned a not guilty

verdict. He further explained that he listed Gonzalez as

a potential witness, served her with a subpoena, and

informed the trial court that he intended to call her as

a witness in order to keep the prosecutor ‘‘off balance

as much as possible’’ even though he ‘‘had no intention

of doing it . . . .’’

On October 25, 2019, the habeas court issued a memorandum of decision granting the petition for a writ of

habeas corpus on the ground that Silverstein rendered

ineffective assistance of counsel when he failed to present an alibi defense.4

It concluded that Silverstein rendered deficient performance when he did not call Gonzalez

as an alibi witness and that this deficient performance

prejudiced the petitioner. The court vacated the petitioner’s conviction and remanded the case for a new

criminal trial.

The court discussed the evidence presented at the

petitioner’s first and second trials, stating that there

were ‘‘several notable differences,’’ with one being that

Gonzalez was not called as an alibi witness at the second

trial. The court then addressed the testimony presented

at the habeas trial. It discussed Gonzalez’ testimony

that the petitioner was asleep when she arrived home

and remained there until morning, as well as the fact

that Gonzalez was available to testify at the petitioner’s

second trial and had met with Silverstein the day he

was scheduled to present the defense. The court found

Gonzalez’ testimony to be credible. The court noted

Kestenband’s testimony and found his ‘‘analyses to be

persuasive.’’ The court stated that Kestenband ‘‘concluded that reasonably competent trial counsel would

have called Gonzalez as an alibi witness in the second

trial. The impact that Gonzalez had on the first trial

weighs in favor of calling her to discredit or negate

Denard Lester’s testimony in the second trial.5 According

to Kestenband, it was unreasonable for Silverstein to

not call Gonzalez as an alibi witness because no one

identified the petitioner as the shooter, but more than

one witness placed the petitioner at the [Cardinal’s]

Club. Gonzalez’ testimony would directly contradict the

tenuous identification evidence that placed the petitioner at the club. . . . Thus, it was more important to

call Gonzalez in the second trial when compared to the

first trial.’’ (Footnote added.)

In its decision, the court emphasized the hung jury

in the petitioner’s first trial and the jury’s request for

a playback of Gonzalez’ testimony. The court stated

that, ‘‘[a]lthough it is not possible to discern the individ-
ual jurors’ credibility assessments, the only defense evidence that contradicted the circumstantial evidence

. . . was the alibi supported by Gonzalez. Stated somewhat differently, all twelve jurors in the second trial

found the tenuous circumstantial evidence sufficient to

convict the petitioner, yet one half of the first jury was

not able to conclude that the state had met its burden

of proof in light of the alibi provided by Gonzalez.

Clearly, Gonzalez had an impact on the outcome of

the first trial.’’ (Emphasis added.) The court found

that Silverstein made his assessments about Gonzalez’

testimony ‘‘without the knowledge that the jury was

evenly divided in the first trial. Silverstein’s oblique

assessment of her alibi testimony was premised on Silverstein’s overly myopic view that a hung jury and [a]

mistrial are not a defense victory.’’ The court discussed

the variety of ways the defense can call into question

identification evidence and noted that Silverstein challenged both the identification evidence and the police

investigation. The court found that ‘‘attacking the identification procedures themselves or the reliability of eyewitness identifications may create reasonable doubt,

but not in the manner an alibi witness can.’’ (Emphasis

added.)

The court stated that it ‘‘cannot determine any

rational basis for Silverstein to not present Gonzalez’

alibi testimony, even if the state attempted to show

that she was biased because she was the petitioner’s

girlfriend and mother of their child.’’ The court further

stated that, ‘‘[a]lthough the jury in the first criminal

trial theoretically may have been unable to reach a

unanimous verdict solely because of disagreement as

to the identification evidence, which would require

completely negating or discounting Gonzalez’ testimony, the court does not find such a scenario plausible.

The fact that the jury requested playback of Gonzalez’

testimony underscores that her testimony influenced

the deliberations and contributed to the jury being

unable to conclude that the state had met its burden of

proof beyond a reasonable doubt.’’ (Emphasis added.)

The court concluded that Silverstein rendered ineffective assistance of counsel, stating: ‘‘Given all of the

foregoing, the court concludes that [Silverstein] rendered deficient performance by not calling [Gonzalez]

as an alibi witness . . . [and] that this deficient performance prejudiced the petitioner. The jury did not hear

alibi evidence that previously had a discernible impact

by contributing to an evenly divided jury and mistrial.’’ (Emphasis added.)

On October 31, 2019, the respondent filed a petition

for certification to appeal, which the court granted. On

appeal, the respondent argues that the habeas court

incorrectly determined that the petitioner received ineffective assistance of counsel because Silverstein did

not present Gonzalez as an alibi witness. Specifically,
the respondent contends that the court improperly

based its ruling on its determination that one ‘‘half of

the first jury was not able to conclude that the state

had met its burden of proof in light of the alibi provided

by Gonzalez . . . .’’ (Internal quotation marks omitted.) We agree with the respondent and, therefore, we

reverse the judgment of the habeas court with respect

to the claim of ineffective assistance for failure to present an alibi defense.

We first set forth the legal principles relevant to our

resolution of this appeal. ‘‘Our standard of review of a

habeas court’s judgment on ineffective assistance of

counsel claims is well settled. In a habeas appeal, this

court cannot disturb the underlying facts found by the

habeas court unless they are clearly erroneous, but our

review of whether the facts as found by the habeas court

constituted a violation of the petitioner’s constitutional

right to effective assistance of counsel is plenary. . . .

‘‘In Strickland v. Washington, [466 U.S. 668, 687, 104

S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States

Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he

must show that counsel’s assistance was so defective

as to require reversal of [the] conviction . . . . That

requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that

the conviction . . . resulted from a breakdown in the

adversary process that renders the result unreliable.

. . . 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.) Anderson v. Commissioner of Correction, 201 Conn. App. 1, 11–12, 242 A.3d

107, cert. denied, 335 Conn. 983, 242 A.3d 105 (2020).

In the present case, the court erred in concluding

that Silverstein rendered deficient performance when

he did not call the alibi witness because its determination was based on the improper assumption that six

jurors from the first trial were ‘‘influenced [in] deliberations’’ by the alibi witness and that the alibi testimony

‘‘contributed to the jury being unable to conclude that

the state had met its burden of proof beyond a reasonable doubt.’’ In concluding that Silverstein’s performance was deficient, the court repeatedly referenced

its finding that the alibi witness’ testimony was the

cause of the hung jury at the petitioner’s first trial. The

court determined that one ‘‘half of the first jury was

not able to conclude that the state had met its burden of

proof in light of the alibi provided by Gonzalez. Clearly,

Gonzalez had an impact on the outcome of the first

trial.’’

‘‘It is a settled doctrine in Connecticut that a valid

jury verdict in a criminal case must be unanimous. . . .
A nonunanimous jury therefore cannot render any finding of fact. . . . The jury’s inability to reach a unanimous verdict . . . does not shed any light on the jury’s

assessment of the merits of the evidence presented

. . . .’’ (Citations omitted; internal quotation marks

omitted.) State v. Covington, 184 Conn. App. 332, 342,

194 A.3d 1224 (2018), aff’d, 335 Conn. 212, 229 A.3d

1036 (2020).

Furthermore, as this court noted in Dieudonne v.

Commissioner of Correction, 141 Conn. App. 151, 162

n.6, 60 A.3d 385 (2013), appeal dismissed, 316 Conn.

474, 112 A.3d 157 (2015), ‘‘Yeager [v. United States, 557

U.S. 110, 129 S. Ct. 2360, 174 L. Ed 2d 78 (2009)] warns

against guesswork in ascribing reasons why the jury

failed to reach a verdict . . . .’’ (Emphasis omitted.)

Although decided in a different context, Yeager is

instructive on this issue.6

In Yeager, the United States

Supreme Court held that, ‘‘[b]ecause a jury speaks only

through its verdict, its failure to reach a verdict cannot—by negative implication—yield a piece of information that helps puts together the trial puzzle. . . .

Unlike the pleadings, the jury charge, or the evidence

introduced by the parties, there is no way to decipher

what a hung count represents. . . . A host of reasons—

sharp disagreement, confusion about the issues,

exhaustion after a long trial, to name but a few—could

work alone or in tandem to cause a jury to hang. To

ascribe meaning to a hung count would presume an

ability to identify which factor was at play in the jury

room. But that is not reasoned analysis; it is guesswork.’’

(Citations omitted; footnote omitted.) Yeager v. United

States, supra, 121–22; see also United States v. Botti,

722 F. Supp. 2d 207, 212 (D. Conn. 2010) (‘‘[A] hung

count means nothing in [posttrial] analyses. It cannot

be made to mean anything.’’), aff’d, 711 F.3d 299 (2d

Cir. 2013).

Although the habeas court correctly noted that ‘‘it is

not possible to discern the individual jurors’ credibility

assessments,’’ it then incorrectly determined that Gonzalez’ testimony had a positive impact on the jury when

it found that ‘‘[t]he jury did not hear alibi evidence that

previously had a discernible impact by contributing

to an evenly divided jury and mistrial.’’ (Emphasis

added.)

Additionally, both the petitioner and the habeas court

emphasized the fact that the jury requested playback

of Gonzalez’ testimony during their deliberations. Gonzalez was one of seven witnesses whose testimony was

reviewed by the jury during deliberations. The petitioner cites a number of cases for the proposition that

‘‘a request by a jury may be a significant indicator of

[its] concern about evidence and issues important to

[its] resolution of the case.’’ (Internal quotation marks

omitted.) None of these cases, however, is directly

on point.7
After our thorough review of the record, we conclude

that the habeas court’s finding that Silverstein rendered

deficient performance by failing to call Gonzalez as

an alibi witness was inextricably intertwined with its

determination as to the reason for the hung jury in the

petitioner’s first trial. The reasons why there was a hung

jury are not ascertainable, and, therefore, it would be

‘‘guesswork’’ to attempt to determine such reasons. See

Yeager v. United States, supra, 557 U.S. 122. Accordingly, the judgment of the habeas court must be

reversed insofar as it was predicated on the court’s

improper assumption that one half of the members of

the jury in the first trial voted for an acquittal due to

the alibi testimony.

The judgment is reversed only with respect to the

habeas court’s determination that Silverstein provided

ineffective assistance of counsel by failing to present

an alibi defense and the case is remanded for a new

trial as to that issue; the judgment is affirmed in all

other respects.

In this opinion the other judges concurred.

1 The petitioner filed a direct appeal from the judgment of conviction.

State v. Wright, supra, 152 Conn. App. 260In that appeal, this court reversed

the judgment of conviction and remanded the case for a new trial. Id., 282.

Our Supreme Court granted certification and reversed this court’s decision

and remanded the case with direction to affirm the judgment of conviction.

State v. Wright, 322 Conn. 270, 272, 291, 140 A.3d 939 (2016).

2 Silverstein did not represent the petitioner in his first criminal trial.

3 Kestenband testified that he had reviewed the transcripts of the petitioner’s first trial. Included in those transcripts was the following statement

made by the court: ‘‘The court has received a note from the jury . . . . It

reads as follows . . . we are unable to reach a unanimous decision, we are

still six guilty, six not guilty.’’ The court then declared a mistrial.

4 The court rejected the petitioner’s remaining claims of ineffective assistance of counsel, a violation of due process, and actual innocence. The

petitioner has not challenged those aspects of the habeas court’s decision.

5 On the night the murder took place, video surveillance showed that,

shortly before the shooting, Lester gave ‘‘ ‘dap,’ ’’ a brief hug and handshake,

to a person who then shot the victim. State v. Wright, supra, 152 Conn.

App. 278. At the petitioner’s first trial, Lester testified that he knew the

petitioner by the name ‘‘ ‘Wild Billy’ ’’ and identified the petitioner as the

person to whom he gave ‘‘ ‘dap . . . .’ ’’ Id., 279. At the petitioner’s second

trial, however, Lester testified that on the night of the murder, the petitioner

was not the individual to whom he gave ‘‘ ‘dap.’ ’’ Id.

6

In Yeager v. United States, supra, 557 U.S. 110, the United States Supreme

Court had to determine the legal consequences of a hung jury on some

counts and an acquittal on other counts for the purposes of issue preclusion

and double jeopardy. The court concluded that, for double jeopardy and

issue preclusion purposes, ‘‘courts should scrutinize the jury’s decisions,

not its failures to decide,’’ and held that ‘‘the consideration of hung counts

has no place in the [issue preclusion] analysis.’’ Id., 122.

7 The cases that the petitioner cites for this proposition each involve

appeals based on evidentiary rulings. In State v. Devalda, 306 Conn. 494,

496, 50 A.3d 882 (2012), on appeal, the defendant argued, inter alia, that

the trial court improperly omitted limiting language in its jury instructions

regarding the statutory definition of kidnapping. During deliberations, the

jury in that case sent a note to the court asking it to ‘‘reread the definitions

of the laws,’’ at which point the court repeated the instruction, including

the improper omission. (Internal quotation marks omitted.) Id., 510. Further,

the jury requested playback of witness testimony relating to crucial time

periods relating to the kidnapping charge. Id., 510–11. Our Supreme Court

concluded that it was reasonably possible that the improper instruction had

the effect of misleading the jury. Id., 511. In State v. Miguel C., 305 Conn.

562, 564, 46 A.3d 126 (2012), the defendant appealed his convictions of
sexual assault in the first degree and risk of injury to a child, claiming that

a portion of the complainant’s testimony was improperly admitted and that,

as a result, the verdict was substantially affected. In analyzing the risk of

unfair prejudice to the defendant, our Supreme Court stated that it ‘‘need

not speculate about the prejudicial effect . . . because the jury’s note to

the court during deliberations provides insight into the facts that the jury

considered when it was reaching its verdict. . . . [B]y asking to rehear the

portion of the testimony [that was stricken] . . . the jury evidenced its

belief that the stricken testimony was significant.’’ Id., 577–78.

In State v. Carter, 232 Conn. 537, 538, 656 A.2d 657 (1995), the defendant

appealed from the trial court’s failure to give a self-defense instruction to

the jury. In determining whether the trial court erred when it declined to

give the instruction, our Supreme Court discussed the evidence presented

at trial, as well as the jury’s concern regarding the issue of self-defense, as

evidenced by a note sent by the jury to the court during deliberations in

which it asked if the court had addressed the issue of self-defense in its

charge. Id., 549. The court stated that it has ‘‘recognized that a request by

a jury may be a significant indicator of [its] concern about evidence and

issues important to [its] resolution of the case.’’ Id. The court concluded

that there was sufficient evidence to raise the issue of self-defense, and that

the instruction should have been given to the jury. Id., 549–50. Last, in State

v. Moody, 214 Conn. 616, 617, 627, 573 A.2d 716 (1990), the defendant

appealed his murder conviction, arguing, inter alia, that the trial court erred

in denying his motion in limine and in permitting the state to present irrelevant and prejudicial evidence. After it determined that certain evidence had

been admitted in error, our Supreme Court analyzed whether the error was

harmful. Id., 629. During deliberations, the jury sent the court a question

about the evidence that had been admitted in error, and our Supreme Court

determined that the question showed that the jury found the piece of evidence important, that it had been misled by the evidence, and, therefore,

that the error was harmful. Id., 629–30.