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CARVAUGHN JOHNSON v. COMMISSIONER

OF CORRECTION

(AC 36185)

Beach, Keller and Mullins, Js.

Argued December 10, 2015—officially released June 14, 2016

(Appeal from Superior Court, judicial district of

Tolland, Cobb, J.)

James A. Killen, senior assistant state’s attorney,

with whom, on the brief, were Michael Dearington,

state’s attorney, and Adrienne Maciulewski, deputy

assistant state’s attorney, for the appellant

(respondent).

Damon A. R. Kirschbaum, with whom, on the brief,

was Vishal K. Garg, for the appellee (petitioner).
Opinion

KELLER, J. Upon a grant of certification to appeal,

the respondent, the Commissioner of Correction,

appeals from the judgment of the habeas court granting

in part the amended petition for a writ of habeas corpus

filed by the petitioner, Carvaughn Johnson. The respondent claims that the court improperly concluded that

the petitioner proved a violation of his right to a fair

trial because he did not receive effective assistance

from his trial counsel. We agree with the respondent

and, accordingly, reverse in part the judgment of the

habeas court.

The following procedural history underlies this

appeal. Following a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a54a (a) and carrying a pistol without a permit in violation of General Statutes § 29-35. The petitioner was

sentenced to a total effective term of imprisonment of

forty-three years. The petitioner brought a direct appeal

to our Supreme Court, which affirmed the judgment of

conviction. State v. Johnson, 288 Conn. 236, 951 A.2d

1257 (2008). Our Supreme Court set forth the facts

that reasonably could have been found by the jury in

returning its verdict: ‘‘The [petitioner] shot and killed

the sixteen year old victim, Markeith Strong, on the

evening of October 10, 2001, in New Haven. In the weeks

prior to that evening, the [petitioner] and the victim

had been at odds with each other. Approximately three

weeks prior to the shooting, the victim’s teenage sister,

L’Kaya Ford, was sitting with the victim at the corner

of Read and Shepard Streets when she observed the

[petitioner] approach.1 The [petitioner] walked toward

Ford and the victim, called the victim ‘a punk,’ and

threatened to assault him. The victim said nothing, and

the [petitioner] walked away.

‘‘The victim next encountered the [petitioner] in the

late afternoon of September 29, 2001, and the two

engaged in a dispute over a bicycle. The victim and

Ralph Ford2 were around the intersection of Read and

Shepard Streets, where the victim either was riding

his bicycle or standing near it, when the [petitioner]

stopped him, declared that the bicycle belonged to him

and demanded that the victim give it to him. The victim

refused and informed the [petitioner] that he had found

the bicycle about one month earlier and had fixed it

up. The victim told the [petitioner] that he owned the

bicycle. The [petitioner] asked for the bicycle a second

time, and, when the victim refused, the [petitioner] said,

‘[d]on’t make me do something to you.’ The [petitioner]

then punched the left side of the victim’s head twice,

which caused a small cut near the victim’s left ear.

During this encounter, the [petitioner] may have been

carrying a gun.3 The [petitioner] then took the bicycle

and rode away.
‘‘After this encounter, the victim, accompanied by

Ralph Ford, returned home, where his family contacted

the New Haven police to report the incident. After

speaking with the victim, the police officers radioed a

description of the [petitioner] and notice of a possible

robbery and larceny. The police did not apprehend any

suspectthat day. Overthe nextfew days, the [petitioner]

approached the victim and L’Kaya Ford about the police

report, asserted that he was not going to jail, apologized

to the victim and told him not to press charges. Toward

the end of September, the [petitioner] also expressed

concern to his friend, Tashana Milton Toles, about the

possible criminal charges that he faced as a result of

the bicycle incident and specifically remarked to her

that he thought he might be going back to jail.

‘‘On the morning of October 10, the [petitioner]

approached L’Kaya Ford while she was waiting for a

bus. The [petitioner], who was driving a black car that

L’Kaya Ford described as an Acura or Ford Probe,

pulled the car alongside of her and accused her of being

a snitch. The [petitioner] insulted her, told her he did

not like snitches and that she knew what happened to

‘snitches in the hood.’ That night, the victim, L’Kaya

Ford, Ralph Ford, and other friends gathered on the

corner of Read and Shepard Streets to celebrate L’Kaya

Ford’s birthday. Some of the group, but not Ralph Ford

or the victim, were drinking alcohol and smoking marijuana. Around 10 p.m., the victim and Ralph Ford

departed together. The neighborhood around Read,

Shepard, Huntington and Newhall Streets affords many

shortcuts through the yards of houses that are occupied

by neighborhood residents. On that night, however,

Ralph Ford did not take his usual shortcut but parted

from the victim, who took the shortcut home. Ralph

Ford then continued walking alone on Read Street and

proceeded around the corner to his house on Newhall

Street.4 Upon arriving at his house, Ralph Ford heard

a gunshot coming from the backyard ofthe house across

the street. Ralph Ford then entered his front hallway.

Ralph Ford heard someone running from the yard

across the street and saw the [petitioner] run into the

driveway leading to Ford’s house.5 Ralph Ford saw the

[petitioner] carrying a semiautomatic handgun and

entering a black Acura as it exited the driveway.6

James

Baker, who lived near the crime scene, heard someone

run past his window, jump the fence outside his house

and head into the backyard, toward Huntington Street.

Approximately five minutes later, and around 10:20

p.m., Baker heard a single gunshot coming from behind

his house. LaMont Wilson, who had left the group earlier

than Ralph Ford and the victim, lived on Read Street

and also heard a gunshot from the direction of his

backyard, sometime between 10 and 10:45 p.m. Baker

called the police at approximately 10:45 p.m. to report

the gunshot but did not initially identify himself because

he feared retaliation from ‘certain individuals’ for con-
tacting the police. Joanie Joyner, a resident of Huntington Street and the victim’s next-door neighbor, also

heard a loud ‘boom’ from the direction of her backyard

and then, sometime after 11 p.m., saw something in

her yard. At approximately 11:25 p.m., she also called

the police.

‘‘The [petitioner] contacted Toles by telephone

between 9:45 and 10 p.m., told her that he was about

five minutes away from her dormitory at Southern Connecticut State University, and asked if he could visit

her. Toles agreed. The [petitioner] did not arrive at the

dormitory until 11 p.m., at which time he phoned Toles

from the lobby, and she came down to the lobby to

register him as a visitor at the security desk.7 The [petitioner] was with a friend, Travis Scott.8 To enter the

dormitory, the [petitioner] was required to provide identification at the security desk where security personnel

record the information. The sign-in sheet at Toles’ dormitory indicated that she signed the [petitioner] into

her building at 11:10 p.m. Shortly after they signed in,

a fire alarm required all residents and visitors to evacuate the building. The alarm occurred at approximately

11:30 p.m., and the fire department and university police

responded to the scene. The [petitioner] and Scott

waited with Toles and herroommate until the university

permitted students to reenter the building. They

retrieved their identification from the security desk and

departed. During the investigation, Detective Daryl Breland of the New Haven police department drove from

Ralph Ford’s house to Toles’ dormitory, recorded the

distance to be about three miles and noted that the trip

took approximately ten minutes.

‘‘Officers Mark Taylor and Brian Pazsak of the New

Haven police department were on patrol in the Newhall

and Huntington Street area on the night of October 10,

2001, and received the dispatch related to Baker’s and

Joyner’s calls. Police responded first to Baker’s call and

investigated the general area, but saw nothing amiss.

After responding to Joyner’s call around 11:35 p.m., the

officers found the victim lying face down in Joyner’s

backyard. The victim appeared to be unconscious and

bleeding from the mouth. The officers also found a

spent nine millimeter shell casing nearby. New Haven

fire department personnel were called but were unable

to resuscitate the victim, who was pronounced dead at

the Hospital of Saint Raphael in New Haven.

‘‘Arkady Katsnelson of the chief medical examiner’s

office performed an autopsy of the victim on October

11, 2001, and determined that he had died of a single

gunshot wound to the right side of his face.9 Katsnelson

concluded that the bullet penetrated the victim’s face

and neck, and completely severed the spinal cord,

instantly incapacitating the victim.’’ (Footnotes in original.) Id., 239–43.

Thereafter, the petitioner brought an amended peti-
tion for a writ of habeas corpus in which he raised two

types of claims. In the first count of his petition, the

petitioner alleged that his right to conflict free trial

counsel had been violated because his trial counsel,

Scott Jones and Beth Merkin, had an actual conflict of

interest that adversely affected their performance. In

the second count of his petition, the petitioner alleged

a violation of his right to the effective assistance of

counsel. The second count involved trial counsel’s failure to present (1) a third party culpability defense and

(2) an alibi defense that explained his whereabouts at

the time of the shooting. With respect to the third party

culpability defense, the petitioner alleged that his trial

counsel had ‘‘failed to adequately cross-examine Ralph

Ford about . . . his possession of a pistol that was

consistent with the pistol that discharged the bullet that

killed the victim in the days before the shooting; and

. . . about his prior statement that he did not see anything on the night of the shooting, and that he felt

pressure from the police, the victim’s family, and his

family to implicate the petitioner in the shooting . . . .’’

Also, the petitioner alleged that his trial counsel had

‘‘failed to present the testimony of William Holly about

Ralph Ford’s possession of a pistol that was consistent

with the pistol that discharged the bullet that killed the

victim in the days before the shooting . . . [and] they

failed to present the testimony of . . . Matthew

Whalen [an investigator for the public defender’s office]

about William Holly’s statement that he saw Ralph Ford

in possession of a pistol that was consistent with the

pistol that discharged the bullet that killed the victim

in the days before the shooting . . . .’’10 With respect

to the alibi defense, the petitioner alleged that his trial

counsel had ‘‘failed to present the testimony of Joyce

Johnson, the petitioner’s sister, about the petitioner’s

presence at their home at the time of the shooting; and

. . . they failed to present the testimony of Taylor Allen

about the petitioner’s presence at his home at the time

of the shooting.’’

The respondent denied that the petitioner’s right to

conflict free representation had been violated or that

he had been denied his right to effective representation

at trial. Additionally, the respondent raised the special

defense of procedural default with respect to both

counts of the petition for a writ of habeas corpus. In

a reply to the respondent’s return, the petitioner denied

the special defense.

Over the course of five days, the habeas court held

an evidentiary hearing with respect to the claims set

forth in the petition. In addition to other evidence, the

petitioner presented testimony from Jones; Merkin;

Holly; Thomas Farver, former counsel for Holly;

Whalen; Johnson; Allen; Gerard Petillo, a firearms

examiner and shooting incident reconstruction consultant; and Thomas Ullmann, public defender for the New

Haven judicial district who supervised Jones and Mer-
kin in their trial representation of the petitioner. The

respondent presented testimony from Marc Caporale

and Breland, former detectives with the New Haven

Police Department who had been involved in the investigation into the victim’s death. At a separate, subsequent

hearing, the court heard lengthy closing arguments,

which was followed by the parties’ submission of posttrial briefs.

In a thorough memorandum of decision, the habeas

court ruled in favor of the respondent with respect

to the conflict of interest claim. With respect to the

ineffective assistance claim, the court determined that

the petitioner’s right to the effective representation of

counsel had been violated by counsel’s failure to present a third party culpability claim and by counsel’s

failure to present an alibi defense.

The habeas court set forth the following findings of

fact: ‘‘In the petitioner’s first criminal trial, the court

declared a mistrial due to a hung jury. The state presented testimony at the first criminal trial from an eyewitness, Ralph Ford, who testified consistent with his

statements to the police that he heard a gunshot and

saw the petitioner run out of the backyard across the

street carrying a black gun in his hand. At the first

trial, trial counsel presented a partial alibi defense with

testimony indicating that the petitioner was at Southern

Connecticut State University around 11 p.m. on the

night of the murder. [The defense] did not explain the

petitioner’s whereabouts between 10 and 11 p.m. After

the first trial resulted in a hung jury, a juror indicated

that it would have been helpful for the jury to know

where the petitioner was at the time of the shooting

[which occurred] prior to 11 p.m.

‘‘At the petitioner’s second criminal trial, the state’s

key witness, Ford, recanted his prior statement and

testimony that he had seen the petitioner running from

the crime scene with a gun. Instead, Ford testified that

the police forced him to make those statements. Ford’s

prior inconsistent statements at the first criminal trial

were admitted for substantive purposes in the second

criminal trial pursuant to [the doctrine set forth in State

v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied,

479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986)].

‘‘At the second trial, trial counsel’s defense strategy

was that the state failed to prove the petitioner’s guilt

beyond a reasonable doubt, that Ford was not credible,

and that it was Ford that had accidentally shot the

victim, who was Ford’s friend. The petitioner’s trial

attorneys disagreed over whether to present an alibi,

including the petitioner’s whereabouts between 10 and

11 p.m. or a third party culpability defense; Attorney

Jones wanted to present both defenses and Attorney

Merkin did not. Attorney Merkin prevailed and trial

counsel did not present either defense at the second

trial.’’ (Footnote omitted.)
In addressing the aspect of the petitioner’s ineffective

assistance of counsel claim that involved the failure of

his trial counsel to present evidence in support of a

third party culpability defense, the court set forth relevant legal principles and stated in relevant part: ‘‘The

petitioner claims that trial counsel were ineffective for

failing to call Holly or Inspector Whalen as witnesses

to support the theory that Ford accidentally committed

the murder, or investigate whether Holly could identify

a photograph of the pistol as being the weapon he saw

Ford in possession of [on] the day of the shooting. . . .

‘‘At the second criminal trial, the state established

that the bullet recovered from the victim was from a

Hi-Point nine millimeter pistol or semiautomatic rifle.

At the habeas trial, the petitioner established that Ford

showed Holly a black handgun that Ford had tucked

into the waistband of his pants on the afternoon of the

shooting. Holly believed that a photograph of the HiPoint nine millimeter pistol used in the shooting looked

like the gun that he saw Ford carrying. The murder

weapon and Ford’s gun both had ridges above the handle, and ridges were not a common feature on the guns

that Holly had seen.

‘‘The petitioner’s trial attorneys disagreed as to

whether the third party culpability defense should be

presented to the jury. Attorney Jones believed that Holly’s testimony should have been presented and Attorney

Merkin did not, even though she admitted that Holly’s

testimony was consistent with the defense theory of

the case, which was that Ford accidentally shot the

victim. The court finds the third party culpability

defense consisting of the facts that (1) Ford had been

the last person seen with the victim, (2) was in close

proximity to the location of the shooting at the time of

the shooting, and (3) had been seen with a gun matching

the description of the murder weapon on the day of

the shooting, were consistent with and relevant to the

defense theory that it was Ford who shot the victim

by accident.

‘‘Both Attorney Jones and Attorney Merkin thought

that they would not be able to present Holly’s testimony

without Ford first admitting that he knew Holly. Trial

counsel believed, incorrectly, that they needed, and did

not have, a foundation to introduce third party culpability evidence—that is, the testimony of Holly—once

Ralph Ford denied knowing Holly while on the witness

stand at the petitioner’s criminal trial. At the habeas

trial, Attorney Merkin conceded that the presentation

of Holly’s testimony was not contingent upon Ford

admitting that he knew Holly. The issue with presenting

testimony supporting a third party culpability defense

is not about presenting a foundation for admitting the

evidence; it is about the petitioner’s constitutional right

to present a defense and relevant evidence in support

of that defense. . . .
‘‘[T]he standard for determining whether evidence

of third party culpability is admissible is whether the

presented evidence is relevant. Here, it was. Holly’s

testimony regarding Ford’s possession of the same type

of gun that was used to kill the victim on the day of

the shooting, as well as other facts pointing to Ford

as the shooter, would have established the necessary

factual nexus for a third party culpability claim regardless of whether Ford knew Holly. The court finds it

reasonably likely that the trial court would have allowed

Holly’s testimony.

‘‘The [respondent] argues that Attorney Farver communicated to the court on Holly’s behalf that Holly

would assert his fifth amendment privilege and refuse

to testify if he was called [as a witness]. However, both

Attorney Farver and Attorney Merkin testified that they

were uncertain that Holly would have been permitted to

invoke his fifth amendment privilege at the petitioner’s

criminal trial due to the fact that Holly’s pending

charges were unrelated to the petitioner’s case. At the

criminal trial, Farver reported to the court: ‘I met with

Mr. Holly this morning and discussed with him his rights

and whether to testify or not to testify if called upon

to do so. I explained to him, if he, well, first of all, let

me say that he does not wish to testify. It is his position

at this point as he expressed to me that he, first of

all, would exercise a fifth amendment right, although

I candidly don’t know how far the testimony or the

inquiry would be going [or] whether he has such a right.

Quite honestly, I know that he has pending charges of

his own here in the courthouse. I don’t believe those

are related to this case. However, he would first of all

have to assert a fifth amendment right. The court may

choose to find that he does not have a fifth amendment

right as to this particular information that is being

sought. If the court were to rule in that fashion and

order him to testify, I have explained to him that he

could be found in contempt of court if he continues to

decline to testify; he has indicated to me that his position would still be that he would refuse to testify

because he has pending charges and he does not want

to testify.’ . . .

‘‘In the present case, Holly’s pending charges were

unrelated to the petitioner’s case, and there is no indication that Holly’s testimony that he saw Ford with a gun

on the day of the shooting would have exposed him to

any criminal prosecution in the petitioner’s or any other

case. Fear of potential prosecutorial retaliation in an

unrelated case does not constitute sufficient grounds

to invoke the fifth amendment, as it is a mere subjective

belief, not a reality, and the actual testimony would

not have been incriminating in any way. Therefore, the

court finds that it is not reasonably likely that Holly

would have been permitted to invoke his privilege

against self-incrimination in the petitioner’s criminal
case had trial counsel proffered him as a defense witness to support the third party culpability defense. . . .

‘‘In the present case, the court finds that trial counsel

was deficient for not pursuing the petitioner’s third

party culpability defense because it was supported by

a neutral, credible witness, and the evidence was relevant to the central issue of whether a reasonable doubt

existed as to whether the petitioner committed the

crime. . . . [I]n light of all of the circumstances here,

particularly the recanted testimony of Ford, whose testimony served as the state’s primary evidence, and the

facts pointing to Ford’s culpability, trial counsel’s failure to . . . present the third party culpability defense

fell below an objective standard of reasonableness, and

therefore constitutes deficient performance pursuant

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

Ct. 2052, 80 L. Ed. 2d 674 (1984)].

‘‘The court also further finds that trial counsel’s failure to present the third party culpability defense prejudiced the petitioner because there is a reasonable

probability that the outcome of the proceedings would

have been different had the defense been presented to

the jury. As a result, the court finds that the petitioner

has satisfied the prejudice prong of Strickland as to

this claim.’’ (Citations omitted.)

In addressing the aspect of the petitioner’s ineffective

assistance of counsel claim that involved the failure of

his trial counsel to present evidence in support of an

alibi defense that involved the testimony of Johnson

and Allen to explain his whereabouts at the time of the

shooting, the court set forth relevant legal principles

and stated in relevant part: ‘‘The petitioner claims that

trial counsel were ineffective for failing to call Johnson

and Allen as witnesses to testify that he was home at

the time of the shooting in support of an alibi defense.

The court agrees with the petitioner on this claim. . . .

‘‘The petitioner’s trial counsel [was] aware of the two

alibi witnesses, Allen and Johnson, who could testify

as to [the] petitioner’s whereabouts between 10 and 11

p.m. on the evening of the shooting, but disagreed as

to whether an alibi defense should be presented. They

were also aware that the jury in the first trial wanted

to know where the petitioner was between 10 to 11

p.m. Attorney Jones wanted to present the alibi defense

because he believed the witnesses were credible and

their testimony explained the petitioner’s whereabouts

at the time of the shooting in response to the first jury’s

concerns as to where the petitioner was between 10

and 11 p.m. Attorney Merkin does not like alibi defenses

generally, and her practice was not to present an alibi

defense unless it was rock solid. Attorney Jones conceded to Attorney Merkin’s decision to not present the

alibi defense because she was more senior to him.

‘‘At the second criminal trial, James Baker, a Read
Street resident, testified that at 10:20 p.m., he heard a

gunshot. Baker did not call the police until 10:45 p.m.

Prior to the petitioner’s first criminal trial, Attorney

Merkin had inaccurate information about the time of

the shooting. She mistakenly believed that the shooting

occurred at 10:45 p.m. Counsel’s notice of alibi, dated

July 29, 2003, inaccurately reported that Baker called

the police at 10:45 p.m., immediately after the shooting

occurred. It was only when Baker testified at the petitioner’s first criminal trial that counsel became aware

that the correct time of the shooting was 10:20 p.m.

‘‘Johnson and Allen testified credibly at the habeas

trial as to the petitioner’s whereabouts on the night of

the shooting. Johnson testified that the petitioner was

home between 5 and 11 p.m. on the night ofthe shooting.

During that time, Johnson was home with her young

son and was for the most part in the living room in the

front of the apartment watching television. From her

position, she would have been able to see if the petitioner had left the house during that time. At some

point, Johnson was aware that the petitioner and his

friend were at the house and ordered a pizza. The living

room had two large windows facing the driveway, and

any movement outside would have activated the motion

sensor lights in the driveway. If the petitioner had left

through the back door, Johnson would have heard him

because that door screeched loudly when [it was]

opened. At approximately 11 p.m., Johnson heard a

horn honk outside, and she saw the petitioner leave

the house with Allen.

‘‘Allen, who also testified at the habeas trial credibly,

called the petitioner’s cell phone at 10:20 p.m., and he

asked her to call his home telephone number. Allen

immediately hung up and called the petitioner at home

on his landline. Allen and the petitioner spoke for

approximately ten to fifteen minutes on the petitioner’s

home phone. The petitionerthen called Allen again from

his home telephone around 10:40 p.m. or 10:45 p.m.

Shortly thereafter, Allen drove to the petitioner’s home,

picked him up at approximately 10:50 p.m. or 10:55 p.m.

and drove him to Southern Connecticut State University.11 The court finds that the testimony of Allen and

Johnson would have been helpful to the petitioner’s

defense.

‘‘Inspector Whalen testified that he interviewed Allen

and Johnson. Johnson informed him that the petitioner

was at home with a friend on the night of the shooting

and someone picked the petitioner up between 10:45

p.m. and 11 p.m. Allen told Inspector Whalen that she

called the petitioner at his home at 10:20 p.m., and she

picked the petitioner up around 10:35 p.m. or 10:40 p.m.

to drive him to Southern Connecticut State University.

At the time of his interview with Allen, Inspector

Whalen was aware of the fact that the victim was shot

at 10:20 p.m. Inspector Whalen reported the information
he received from Johnson and Allen to the petitioner’s

trial counsel.

‘‘Trial counsel also had the partial alibi presented at

the first criminal trial of Toles, who testified that the

petitioner arrived at the Southern Connecticut State

University to visit her at approximately 11:10 p.m. on

the night of the shooting.

‘‘The court finds that trial counsel was aware of the

statements of Johnson and Allen, that their testimony

was credible and that production of such testimony at

trial would have been helpful to the defense. . . .

‘‘[H]ere, trial counsel’s decision to not call the alibi

witnesses was not based on the witnesses’ credibility.

Both Attorney Jones and Attorney Merkin found Johnson and Allen to be credible witnesses. Moreover, the

court finds that theirtestimony would have been helpful

to the petitioner’s defense that he was home at the time

of the shooting.

‘‘Attorney Merkin decided to not present Johnson’s

testimony because she was related to the petitioner, the

shooting occurred in close proximity to the petitioner’s

home and it was unclear whether the petitioner was in

her direct vision forthe entire evening. Attorney Merkin

did not present Allen’s testimony because she believed

that Allen estimated the times of the phone calls, and

the petitioner’s close proximity to the crime scene

would have allowed him to commit the murder despite

receiving and making the phone calls at the times indicated by Allen. Trial counsel acknowledged at the

habeas trial, however, that they failed to investigate

Johnson’s ability to provide an alibi at the times when

the petitioner was not in her direct view. Johnson testified that the motion sensor lights and the screeching

back door would have prevented the petitioner from

leaving the house without Johnson’s knowledge. Moreover, the times of the phone calls between Allen and

the petitioner were seen on Allen’s caller identification.

That evidence, if presented, would have established

that the petitioner was at home using his landline at

the time the shooting occurred. Further, while Attorney

Merkin was concerned that the alibi defense would

place the petitioner in close proximity to the crime

scene, there was already evidence before the jury that

the petitioner was at Southern Connecticut State University, close to the crime scene, shortly before 11 p.m.

on the night of the victim’s murder. In addition, the

evidence from the three alibi witnesses covered the

time period between 10 and 11 p.m., making it highly

unlikely that the petitioner could have committed the

shooting.

‘‘The court is particularly influenced by the fact that

when trial counsel decided notto submit the petitioner’s

alibi, they were aware that the first jury was conflicted

about the petitioner’s guilt, which resulted in a hung
jury, and [counsel] knew that the first jury wanted to

know where the petitioner was at the time the shooting

occurred. While each jury is different, having this information in the petitioner’s second criminal trial was a

significant bonus to the defense and should have been

utilized in determining whether to pursue the alibi

defense.

‘‘Pursuant to the foregoing, the court finds that in

light of the circumstances in this case, and the credible

evidence presented, it was not objectively reasonable

for trial counsel to not present the alibi witnesses. The

court had the opportunity to hear and to evaluate the

two witnesses, and found their testimony to be credible

and compelling and [that the testimony] would have

been helpful to the petitioner’s case. . . . Trial counsel

also found the alibi witnesses to be credible, and that

their testimony would have been helpful to the petitioner’s defense. Accordingly, the court concludes that the

petitioner has met his burden to prove that counsel’s

conduct was constitutionally deficient underthe performance prong of Strickland.

‘‘The court also finds that trial counsel’s failure to

call the alibi witnesses prejudiced the petitioner

because there is a reasonable probability that the outcome of the proceedings would have been different had

it not been for the deficient performance. The court

finds that the testimony from Johnson and Allen likely

would have affected the verdict, especially in light of

the weakness of the state’s case and the fact that the

jurors at the first criminal trial that resulted in a hung

jury were interested in where the petitioner was at the

time of the shooting. As a result, the court finds that

the petitioner has satisfied the prejudice prong of

Strickland as to this claim.’’ (Citations omitted; footnote added.)

The court denied the petition with respect to the

conflict of interest claim, and granted the petition with

respect to the ineffective assistance of counsel claim.

The court vacated the judgment of conviction and

returned the case to the trial court for further proceedings. Later, the court granted the respondent’s petition

for certification to appeal, and this appeal by the respondent followed.

The habeas court’s memorandum of decision reflects

that it considered and analyzed separately each of the

two grounds alleged in the petitioner’s claim in which

he alleged that he had received ineffective assistance

from his trial counsel. The court determined that the

petitioner had satisfied his burden under Strickland

with respect to his claim that counsel had failed to

present certain evidence in support of a third party

culpability defense and with respect to his claim that

counsel had failed to present an alibi defense that

explained his whereabouts at the time of the shooting.

Because the habeas court’s judgment rests upon either
of these grounds, itis the respondent’s burden on appeal

to demonstrate that the habeas court erroneously ruled

as it did with respect to both grounds.

‘‘When reviewing the decision of a habeas court, the

facts found by the habeas court may not be disturbed

unless the findings were clearly erroneous. . . . The

issue, however, of [w]hether the representation [that]

a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. . . . As such,

that question requires plenary review by [a reviewing

court] unfettered by the clearly erroneous standard.

. . .

‘‘A criminal defendant is constitutionally entitled to

adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right

arises under the sixth and fourteenth amendments to

the United States constitution and article first, § 8, of

the Connecticut constitution. . . . It is axiomatic that

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

‘‘As enunciated in Strickland v. Washington, [supra,

466 U.S. 687] . . . [a] claim of ineffective assistance of

counsel consists of two components: a performance

prong and a prejudice prong. To satisfy the performance

prong . . . the petitioner must demonstrate that his

attorney’s representation was not reasonably competent or within the range of competence displayed by

lawyers with ordinary training and skill in the criminal

law. . . . 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. . . . A

court can find against a petitioner, with respect to a

claim of ineffective assistance of counsel, on either

the performance prong or the prejudice prong . . . .’’

(Citations omitted; internal quotation marks omitted.)

Michael T. v. Commissioner of Correction, 319 Conn.

623, 631–32, 126 A.3d 558 (2015).

I

First, we consider the respondent’s claim that the

habeas court erroneously concluded that the petitioner

was deprived of his right to effective assistance of counsel by his counsel’s failure to present testimony from

Holly in support of a third party culpability defense. As

discussed previously in this opinion, this evidence is

centered on the testimony of Holly. We agree with

the respondent.

The respondent challenges the court’s decision with

respect to the third party culpability defense on several

grounds. With regard to the court’s evaluation of the

performance of trial counsel, the respondent argues

that it did not afford adequate consideration to the

evidence that defense counsel’s failure to present Holly’s testimony in support of the third party culpability
defense was the result ofreasonable trial strategy rather

than deficient representation. In this respect, the

respondent focuses on evidence presented at the

habeas trial that supported a finding that defense counsel, in crafting a sound trial strategy, did not want to

divert the jury’s attention from the weaknesses in the

state’s case, particularly, the significance of Ford’s

recantation. With respect to the prejudice prong of

Strickland, the respondent argues: ‘‘[I]n evaluating prejudice from the defense team’s decision not to call Holly

to the [witness] stand at the criminal trial, the habeas

court erred in concluding that the petitioner met his

burden of establishing that Holly’s testimony carried

no possibility of self-incrimination and that, therefore,

Holly’s fifth amendment privilege would not have been

an impediment to his testimony.’’ The respondent

argues that the court erroneously concluded that there

was a reasonable likelihood that the outcome of the

trial would have been different if the evidence at issue

had been presented by the defense.

Assuming but not deciding that defense counsel’s

failure to attempt to present evidence from Holly in

support of a third party culpability defense was the

result ofrepresentation that was notreasonably competent, we nonetheless conclude, under the prejudice

prong of Strickland, that the petitioner failed to demonstrate that there is a reasonable probability that, but

for counsel’s alleged errors, the result of the proceeding

would have been different.

We turn to the findings of the habeas court as well

as some of the pertinent evidence that was not in dispute. The habeas court found, and the record reflects,

that when the issue of Holly’s testimony was first raised

at the time of the criminal trial at a posttrial hearing on

the petitioner’s motion for a new trial, Holly’s counsel,

Farver, communicated to the court that Holly did not

wish to testify, that he intended to exercise his fifth

amendment right to remain silent and that, even if the

court ordered him to testify, he would decline to do

so. Farver communicated to the court that his client’s

position was based upon the fact that he had criminal

charges pending against him.

At the habeas trial, Holly testified that at the time of

the petitioner’s trial, he was incarcerated in Connecticut

and had a case pending in the New Haven courthouse,

in which proceeding he was represented by Ullmann.

Holly testified that with respect to his testifying at the

petitioner’s criminal trial, Ullmann and Farver had

advised him to invoke his right to remain silent. Holly

testified that, later, Farver was appointed to represent

him in connection with his potential involvement in the

petitioner’s trial. Holly testified that he communicated

to Ullmann and Farver that he would not testify. He

testified, however, that, if he had been ordered to do

so, he would have testified consistent with the testi-
mony that he provided before the habeas court in the

present case because, if a court determined that he

could not invoke his right to remain silent, he would

not have had a choice in the matter. Holly explained

that one of the reasons why he did not want to testify

was because he feared that the prosecutor, who was

involved in the petitioner’s trial and in a then pending

investigation of Holly for the crime of murder, would

retaliate against him. He stated, however, that he did

not believe that his testimony in the petitioner’s case

would incriminate him.

At the habeas trial, Ullmann testified that he represented Holly between 2002 and 2005, the time period

which encompassed the petitioner’s second criminal

trial. He testified that he represented Holly with respect

to a variety of charges that, following a plea negotiation,

resulted in a conviction of robbery in the first degree

and assault on a peace officer. Also, he testified that,

at times relevant, he was representing Holly with

respect to ‘‘some other [legal] issues,’’ as well. Ullmann

testified that he became aware that Holly had information that might be relevant to the petitioner’s case and

that members of the petitioner’s defense team wanted

to speak with Holly, at which time Ullmann informed

Whalen that he was representing Holly in relation to a

pending murder investigation and that he had advised

Holly not to speak with him. Ullmann testified that he

understood the information to involve Holly’s observation of a potential killer who was armed.

Ullmann testified that, later, he arranged for Farverto

represent Holly solely with respect to Holly’s potential

involvement in the petitioner’s trial, but that he continued to represent Holly with respect to his pending

charges as well as the murder investigation. With

respect to his concern about Holly’s cooperation with

the petitioner’s defense and the importance of providing

the petitioner with representation concerning that

issue, he stated: ‘‘I’m obviously representing somebody

who’s facing serious criminal charges, who’s being

investigated for something else, and I’m [given] this

information about [the desire of the petitioner’s trial

attorneys] to put him on the [witness] stand in relation

to some gun. I’m not letting them talk to him.’’ Ullmann

continued, ‘‘there’s the potential that William Holly

could incriminate himself or hurt his situation in the

pending case that . . . I was representing him on.’’

Additionally, Ullmann explained that he was motivated

by a concern that Holly’s cooperation with the defense

or his testimony in the petitioner’s case could subject

him to retaliation by the prosecutor with respect to his

‘‘very serious’’ pending criminal matters.

At the habeas trial, Farver testified that, during conversations with Holly concerning his involvement in the

petitioner’s trial, Holly unequivocally stated to him that

he intended to invoke his right to remain silent and
that, even if he were ordered to testify, he would decline

to do so. Farver testified that he was unsure whether,

at the time that he represented Holly, he was awaiting

sentencing on charges to which he had pleaded guilty.

Moreover, he believed that, at that time, Holly was being

investigated for murder. Farver recalled that this murder investigation was related to the fact that Holly ‘‘had

given a statement possibly [as a] primary or aiding and

abetting a conspiracy that he was in a car, not the

shooter, but he was busted with the gun.’’ Farver testified that he did not form an opinion with respect to

whether Holly could avail himself of his fifth amendment privilege in the petitioner’s case.

In its findings, the habeas court did not discuss the

significance of Farver’s testimony, which was consistent with his representations at the time of the petitioner’s second criminal trial, that Holly had represented

to him that he would not testify even if he was ordered

to do so. The habeas court, implicitly accepted as true

Holly’s testimony that he would have testified at the

petitioner’s trial if the court had rejected his invocation

of his fifth amendment privilege, and resolved the fifth

amendment issue by concluding that ‘‘there is no indication that Holly’s testimony that he saw Ford with a gun

on the day of the shooting would have exposed him to

any criminal prosecution in the petitioner’s [case] or

any other case.’’ The court also reasoned that Holly’s

fear of prosecutorial retaliation was not a valid ground

upon which to invoke the fifth amendment privilege.

The evidence amply supported the court’s finding

that Holly had manifested his intention of invoking his

fifth amendment right to remain silent if he was called

as a witness at the petitioner’s trial. The relevant legal

principles related to the invocation of that right are

well settled in our case law. ‘‘A court may not deny a

witness’ invocation of the fifth amendment privilege

against compelled self-incrimination unless it is perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken,

and that the answer[s] cannot possibly have [a] tendency to incriminate. . . . To sustain the privilege, it

need only be evident from the implications of the question, in the setting in which it is asked, that a responsive

answer to the question or an explanation of why it

cannot be answered might be dangerous because injurious disclosure could result. . . . In appraising a fifth

amendment claim by a witness, a judge must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in

evidence. . . .

‘‘[T]he right to one’s privilege against prosecution

that could result from the testimony sought does not

depend upon the likelihood of prosecution but upon

the possibility of prosecution. . . . [T]he trial court

[is] obligated to assess only whether a possibility of
future prosecution [exists], or could arise, by virtue

of the proffered testimony in light of existing law.’’

(Citations omitted; emphasis in original; internal quotation marks omitted.) In re Keijam T., 226 Conn. 497,

503–504, 628 A.2d 562 (1993). ‘‘The privilege afforded

[by the fifth amendment] not only extends to answers

that would in themselves support a conviction . . . but

likewise embraces those which would furnish a link

in the chain of evidence needed to prosecute the claimant for a . . . crime.’’ (Emphasis added.) Hoffman v.

United States, 341 U.S. 479, 486, 71 S. Ct. 814, 95 L. Ed.

1118 (1951); see also Malloy v. Hogan, 378 U.S. 1, 12–13,

84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); State v. Valeriano,

191 Conn. 659, 666, 468 A.2d 936 (1983), cert. denied,

466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984);

State v. Ayuso, 105 Conn. App. 305, 314, 937 A.2d 1211,

cert. denied, 286 Conn. 911, 944 A.2d 983 (2008).

The respondent argues, and we agree, that the record

before the habeas court precluded a careful consideration of all of the circumstances surrounding Holly’s

invocation of his fifth amendment privilege. Under

Strickland, it was the petitioner’s burden to prove that

he was prejudiced by the deficient performance of his

trial counsel. In the context of the present claim, that

burden necessarily entailed demonstrating that Holly

would have been unable to assert a fifth amendment

privilege with respect to questions concerning his

observations of Ford on the day of the shooting. Yet,

the record presented before the habeas court does not

reveal many details surrounding the serious legal matters that he faced at the time of the petitioner’s second

criminal trial. These matters included the robbery in

the first degree and assault of a police officer charges

to which he had pleaded guilty, as well as a pending

investigation for murder.

Moreover, despite the scant information available to

the trial court, the undisputed evidence concerning Holly’s circumstances that was presented to the habeas

court supported a conclusion that Holly’s testimony

about his interaction with Ford possibly incriminated

Holly in criminal activity, regardless of whether such

criminal activity was related directly to the petitioner’s

case or the incident at issue therein. As set forth previously, there was evidence that, at times relevant, Holly

was the subject of an investigation for a murder that

involved the use of a gun. The evidence suggested that

he had pleaded guilty to charges of robbery in the first

degree and assault of a police officer, but that the proceedings related to such charges had not concluded.

At the habeas trial, the petitioner relied on Holly’s

testimony to demonstrate that he was prejudiced by

trial counsel’s failure to present such testimony at his

criminal trial. In his posttrial brief before the habeas

court, the petitioner drew the attention of the habeas

court to Holly’s interaction with Ford, his observations
of the gun in Ford’s possession, and his attempt to gain

possession of the gun. Following his direct examination

at the habeas trial, the petitioner’s counsel asked Holly:

‘‘If you had testified, been brought to court and been

ordered by the court to testify, would you have testified

in the same manner then as you did today?’’ Holly

replied, ‘‘Yes.’’

A review of Holly’s testimony at the habeas trial

readily reveals that he was asked questions that not

merely called for him to describe his observations of

and interaction with Ford on the day of the victim’s

murder, but that called for him to explain his familiarity

with guns. Holly’s examination at the habeas trial

reveals the type of inquiry that he would have been

subjected to at the petitioner’s criminal trial and, thus,

sheds light on the issue before us. At the habeas trial,

Holly testified in relevant part that he observed Ford

and the victim on the day of the shooting, when he was

either sixteen or seventeen years of age. During his

direct examination, the following colloquy occurred

between Holly and the petitioner’s counsel:

‘‘Q. . . . Did [Ford] show you a weapon?

‘‘A. Yes. I tried to take it from him.

‘‘Q. What kind of a weapon did he show you?

‘‘A. It was, like, an all black .380 or a nine millimeter.

‘‘Q. Was it a pistol?

‘‘A. Yes.

‘‘Q. Was it a handgun?

‘‘A. A handgun.

‘‘Q. And you said it was either a nine millimeter or

a .380?

‘‘A. Yes.

‘‘Q. And then what did you do when they showed or

when Ralph Ford showed it to you?

‘‘A. I asked to see it, for them to put it in my hand.

And then he took off running.’’

Thereafter, the petitioner’s counsel showed Holly a

photograph of a gun and asked him to compare it with

the one that he had observed in Ford’s possession. Holly

testified that the gun depicted in the photograph was

similar to the one that Ford had showed him that day.

During cross-examination, the respondent’s counsel

asked Holly why he remembered his encounter with

Ford. Holly replied that he remembered seeing Ford

and the victim ‘‘because I tried to get the gun from

them. I wanted that gun.’’ Holly testified during crossexamination that Ford had showed him the gun, which

was tucked into his waistband, by lifting his shirt. Holly

stated that he told Ford to put the gun in his hand. He

testified that he ‘‘tried to grab’’ Ford, who pulled away
from him. When the respondent’s counsel asked Holly

about the appearance of the gun, Holly stated: ‘‘I know

guns. Yes, it was black. . . . I’d seen the clip of the

gun. That’s how I knew it was either a .380 or a nine

millimeter.’’ (Emphasis added.) When asked whether

he had seen other young men in the Newhallville neighborhood with guns, Holly went on to testify: ‘‘If you were

in the streets, you’re going to see people with guns.’’

During redirect examination, Holly was asked once

again to compare a photograph of a gun with the gun

he had observed. Holly stated: ‘‘The gun Ralph Ford

showed me looked like one of the guns I had before.

That’s why I thought it was real. That’s why I tried to

take it.’’ When asked during further examination by the

respondent’s counsel about the characteristics of the

gun in the photograph, Holly testified that he had seen

similar guns, and that one of the characteristics of the

gun in the photograph was uncommon. Specifically,

Holly testified that he observed ridges on the top of the

gun in Ford’s possession, above the handle, which he

considered to be an uncommon feature of the guns that

he had seen.

At the habeas trial, the petitioner did not attempt to

demonstrate that, if Holly had invoked his fifth amendment privilege at the time of the criminal trial, his testimony at the criminal trial would have been different

from his testimony at the habeas trial. The petitioner,

who bore the burden of proving deficient performance

and prejudice in connection with trial counsel’s failure

to present Holly’s testimony, appears to have relied on

the entirety of Holly’s testimony at the habeas trial

to sustain his burden of proof. Thus, Holly’s habeas

testimony was presented as the type of inquiry to which

Holly would have been subjected at the petitioner’s

trial. On the basis of that inquiry, as well as the evidence

of the criminal issues that Holly faced at the time of

the trial, it is reasonable to conclude that Holly would

have been asked to provide answers that possibly would

have furnished a link in the chain of evidence needed

to prosecute him for one or more crimes.

The inquiries at issue called upon Holly to describe

the basis of his ability to accurately characterize the

gun in Ford’s possession. In doing so at the habeas trial,

Holly revealed that he wanted to gain possession of the

gun on the day of the shooting, he attempted forcibly

to gain possession of the gun on the day of the shooting,

he was very familiar with guns, and he had possessed

one or more guns prior to the day of the shooting.

Against this evidentiary background, Ullmann’s belief,

that any inquiry about guns directed at Holly posed a

danger to his penal interests, was eminently supported

by the questions and answers that comprised Holly’s

examination at the habeas trial. Moreover, as Ullmann

expressed, concerns that Holly’s testimony possibly

would have exposed him to criminal prosecution were
magnified in the present case in light of the fact that

he was already the subject of criminal prosecution in

the New Haven judicial district by the same prosecutor

that was prosecuting the charges against the petitioner.

Although it appears that the habeas court thoroughly

considered the evidence before it, it also appears from

the analysis set forth in the court’s memorandum of

decision that the court took a narrow view of the fifth

amendment issue, considering only whether Holly’s

direct observations of Ford likely would have subjected

him to criminal prosecution, rather than whether it was

possible that any questions asked of Holly during his

direct or cross-examination could possibly have incriminated him in any other criminal prosecution. In light

of the foregoing, we conclude that the court erred in

its determination that Holly could not assert his fifth

amendment privilege. It is not perfectly clear from all

of the circumstances that Holly’s testimony could not

possibly have tended to incriminate him and, thus, possibly subject him to prosecution. Because the record

reveals that it was likely that the court would have

honored Holly’s invocation of his fifth amendment privilege with respect to inquiries concerning his interaction

with Ford on the day of the shooting, the petitioner

cannot rely on Holly’s testimony at the habeas trial, or

any substantive portion thereof, to demonstrate harm.

In analyzing this claim, we have accepted as true the

habeas court’s unchallenged finding that Holly would

have testified at the petitioner’s criminal trial if he had

been ordered to do so. Assuming, arguendo, that counsel’s failure to present Holly’s testimony was not the

result of sound professional judgment, we conclude

that such failure was not prejudicial to the petitioner.

As we have explained in our analysis of this claim, it

is speculative that the court, at the petitioner’s criminal

trial, would not have honored Holly’s invocation of his

privilege against self-incrimination with respect to

inquiries concerning his interaction with Ford on the

day of the shooting. On the scant record before us

concerning Holly’s pending matters at the time of the

criminal trial, any attempt by this court to determine

what portions of Holly’s testimony, if any, would not

have been subject to a specific claim of privilege and

would have come before the jury would be speculative

in nature.12

Moreover, setting aside any issues related to Holly’s

privilege against self-incrimination, it is purely speculative that any portions of Holly’s testimony would have

been admissible as evidence of third party culpability.

With respect to the admissibility of third party culpability evidence, our Supreme Court has stated: ‘‘The admissibility of evidence of third party culpability is governed

by the rules relating to relevancy. . . . Relevant evidence is evidence having any tendency to make the

existence of any fact that is material to the determina-
tion of the proceeding more probable or less probable

than it would be without the evidence. . . . Accordingly, in explaining the requirement that the proffered

evidence establish a direct connection to a third party,

rather than raise merely a bare suspicion regarding a

third party, we have stated [that] [s]uch evidence is

relevant, exculpatory evidence,ratherthan merely tenuous evidence of third party culpability [introduced by

a defendant] in an attempt to divert from himself the

evidence of guilt. . . . In other words, evidence that

establishes a direct connection between a third party

and the charged offense is relevant to the central question before the jury, namely, whether a reasonable

doubt exists as to whetherthe defendant committed the

offense. Evidence that would raise only a bare suspicion

that a third party, rather than the defendant, committed

the charged offense would not be relevant to the jury’s

determination. A trial court’s decision, therefore, that

third party culpability evidence proffered by the defendant is admissible, necessarily entails a determination

that the proffered evidence is relevant to the jury’s

determination of whether a reasonable doubt exists as

to the defendant’s guilt. . . .

‘‘Whether a defendant has sufficiently established a

direct connection between a third party and the crime

with which the defendant has been charged is necessarily a fact intensive inquiry. In other cases, this court

has found that proof of a third party’s physical presence

at a crime scene, combined with evidence indicating

that the third party would have had the opportunity to

commit the crime with which the defendant has been

charged, can be a sufficiently direct connection for purposes of third party culpability. . . . Similarly, this

court has found the direct connection threshold satisfied for purposes of third party culpability when physical evidence links a third party to a crime scene and

there is a lack of similar physical evidence linking the

charged defendant to the scene. . . . Finally, this court

has found that statements by a victim that implicate the

purported third party, combined with a lack of physical

evidence linking the defendant to the crime with which

he or she has been charged, can sufficiently establish a

direct connection for third party culpability purposes.’’

(Citations omitted; internal quotation marks omitted.)

State v. Baltas, 311 Conn. 786, 810–12, 91 A.3d 384

(2014).

In the present case, the petitioner did not present

any evidence that Ford was armed at the time of the

shooting, physical evidence that tied Ford to the shooting scene, or a statement by the victim implicating Ford.

Although the petitioner may have attempted to use Holly’s testimony in an attempt to demonstrate that Ford

was culpable for shooting the victim accidentally, there

was no evidence that Ford had a motive to shoot the

victim. In the absence of additional evidence tying Ford

to the shooting, it is speculative whether the trial court
would have viewed Holly’s testimony as proving a direct

connection between Ford and the shooting, or whether

it would have been viewed as evidence that supported

a mere suspicion that he was implicated in the shooting.

Under Strickland, the petitioner failed in his burden

of demonstrating that his trial counsel’s failure to

attempt to present Holly’s testimony was prejudicial in

that there was a reasonable probability that, absent

such failure, the outcome of the trial would have

been different.13

II

Next, we consider the respondent’s claim that the

habeas court erroneously concluded that the petitioner

was deprived of his right to the effective assistance of

counsel by his counsel’s failure to present evidence in

support of an alibi defense that involved the testimony

of Johnson and Allen to explain his whereabouts at the

time of the shooting.14 We agree with the respondent

that the petitioner failed to demonstrate that counsel’s

strategic decision not to present the evidence at issue

reflected deficient performance.

The respondent challenges the court’s decision with

respect to this aspect of the petitioner’s ineffective

assistance of counsel claim on a variety of grounds.

The respondent argues that the court did not afford

adequate consideration to evidence that defense counsel did not present the alibi evidence as part of an

objectively reasonable overall trial strategy that was

opposed to diverting the jury’s attention away from the

weaknesses of the state’s case and, in particular, the

significance of Ford’s recantation at the time of the

petitioner’s second trial. Likewise, the respondent

argues that the court did not afford adequate consideration to evidence that, apart from their overall trial

strategy, defense counsel had specific concerns about

the strength of the alibi evidence as well as its potential

favorability to the state’s case. Additionally, the respondent argues that the court erroneously concluded that

there was a reasonable probability that, if the alibi evidence at issue had been presented to the jury, the result

of the proceeding would have been different. Following

a careful consideration of the claim, we agree with the

respondent that the petitioner failed to demonstrate

that counsel’s strategic decision not to present the evidence at issue constituted deficient performance under

the Strickland standard.

As stated previously in this opinion, to prevail under

Strickland, ‘‘the petitioner must demonstrate that his

attorney’s representation was not reasonably competent or within the range of competence displayed by

lawyers with ordinary training and skill in the criminal

law.’’ (Internal quotation marks omitted.) Michael T. v.

Commissioner of Correction, supra, 319 Conn. 631.

‘‘With respect to the performance prong of Strickland,
we are mindful that [j]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance

after conviction or adverse sentence, and it is all too

easy for a court, examining counsel’s defense after it

has proved unsuccessful, to conclude that a particular

act or omission of counsel was unreasonable. . . . A

fair assessment of attorney performance requires that

every effort be made to 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 defendant must overcome

the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy. . . . There are countless ways to provide effective

assistance in any given case. Even the best criminal

defense attorneys would not defend a particular client

in the same way. . . .

‘‘Similarly, the United States Supreme Court has

emphasized that a reviewing court is required not simply to give [the trial attorney] the benefit of the doubt

. . . but to affirmatively entertain the range of possible

reasons . . . counsel may have had for proceeding as

[he] did . . . . [S]trategic 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.’’ (Citations omitted; emphasis in original;

internal quotation marks omitted.) Id., 632–33.

‘‘Although courts may not indulge post hoc rationalization for counsel’s decisionmaking that contradicts

the available evidence of counsel’s actions . . . neither

may they insist counsel confirm every aspect of the

strategic basis for his or her actions. There is a strong

presumption that counsel’s attention to certain issues

to the exclusion of others reflects trial tactics rather

than sheer neglect. . . . After an adverse verdict at

trial even the most experienced counsel may find it

difficult to resist asking whether a different strategy

might have been better, and, in the course of that reflection, to magnify their own responsibility for an unfavorable outcome. Strickland, however, calls for an inquiry

into the objective reasonableness of counsel’s performance, not counsel’s subjective state of mind.’’ (Citations omitted; internal quotation marks omitted.)

Harrington v. Richter, 562 U.S. 86, 109–10, 131 S. Ct.

770, 178 L. Ed. 2d 624 (2011). The presumption that

counsel has acted reasonably may be overcome by a

showing that there was no conceivable tactical justification for counsel’s strategy. See, e.g., Holloway v. Com-
missioner of Correction, 145 Conn. App. 353, 367, 77

A.3d 777 (2013).

At the habeas trial, Merkin testified that the defense

strategy was to discredit Ford’s credibility and to challenge the strength of the state’s case, particularly with

respect to the state’s evidence identifying the petitioner

as the shooter. Merkin testified that the defense

attempted to challenge Ford’s earlier statements to the

police, in which he implicated the petitioner, as being

inherently unreliable. Merkin explained: ‘‘Part of our

theory was that [Ford] wasn’t in a location where he

could see what he claimed to have seen. Part of it was

that he was very coercively, in our view, interrogated

by the lead detective in the case in the middle of the

night, and therefore the information he gave was not

reliable. And part of it was that we had some suspicion

or belief that he was actually involved himself, whether

accidentally or otherwise killing his friend.’’ Merkin

acknowledged, however, that defense counsel had not

developed enough evidence to support the latter part

of the defense strategy. Consistent with Merkin’s testimony, the court found that Merkin ‘‘does not like alibi

defenses generally, and her practice was not to present

an alibi defense unless it was rock solid.’’15

The court found that, through defense investigation,

defense counsel became aware of the potential trial

testimony of Johnson and Allen, and that defense counsel had found Johnson and Allen to be credible witnesses. The court observed that Merkin decided not to

present the testimony of Johnson because she did not

believe it was strong evidence. In this regard, the court

referred to Merkin’s opinions that Johnson was not a

disinterested witness because she was the petitioner’s

sister, Johnson’s testimony supported a finding that the

petitioner was close to the crime scene at the time

that the shooting occurred, and it was unclear from

Johnson’s testimony whether the petitioner was able

directly to observe the petitioner at all times relevant.

With respect to Allen, the court referred to Merkin’s

opinions that Allen’s testimony was not strong because

she merely had estimated the timing of the telephone

calls involving the petitioner, and that the testimony

was potentially more favorable to the state’s case, particularly in light of the fact that the evidence would

have placed the petitioner in close proximity to the

crime scene at the time that the shooting occurred.16

Consistent with the testimony of Merkin and Jones,

the court recognized that trial counsel’s failure to present the testimony of Johnson and Allen was not inadvertent, but the result of a considered trial strategy. In

general terms, the strategy was designed to focus the

jury’s attention on weaknesses in the state’s case, particularly the fact that Ford had recanted his earlier

statements in which he had identified the petitioner as

being present at the scene of the crime with a gun. In
this general sense, defense counsel did not want the

jury to focus on possible weaknesses in its alibi defense

or to afford the prosecutor an opportunity to draw the

jury’s attention away from the state’s case. In specific

terms, defense counsel also expressed concerns that

were directly related to potential issues with the

strength of the potential testimony of Johnson and

Allen, as well as concerns that their testimony, if found

to be credible by the jury, had the potential to assist

the state by demonstrating that, at or around the time

of the shooting, the petitioner was at his residence, just

two blocks away from the crime scene.

The court, however, did not view defense counsel’s

general strategic decision to be reasonable because, as

it found, the alibi testimony at issue ‘‘would have been

helpful to the petitioner’s defense that he was at home

at the time of the shooting.’’ The court did not appear

to afford any deference to defense counsel’s concern

that presenting the alibi defense would have diverted

the jury’s attention away from the weaknesses of the

state’s case, particularly in light of the fact that Merkin

believed that the defense had done a ‘‘very good job’’

in undermining Ford’s identification of the petitioner.

Additionally, rather than evaluating whether there

existed conceivable tactical justifications for counsel’s

assessment of the alibi evidence, the court set forth a

number of reasons as to why it did not share trial counsel’s concerns about the strength of the alibi testimony.

For example, the court, relying on Johnson’s testimony,

determined that she was able to provide a strong alibi

for the petitioner despite the fact that the petitioner

was not in her direct view at times relevant.17 The court

determined that any confusion concerning the timing

of calls made between Allen and the petitioner could

have been resolved by means of evidence obtained from

the caller identification feature on Allen’s telephone.18

Moreover, the court determined that counsel’s concern

that the alibi evidence would have placed the petitioner

close to the crime scene at the time of the shooting

was unfounded because there was what it considered to

be evidence of a similar nature before the jury, namely,

evidence that the petitioner was at Southern Connecticut State University shortly before 11 p.m. on the night

of the shooting.19

Affording plenary review to the issue, we conclude

that the representation that the defendant was afforded

was constitutionally adequate. The petitioner has failed

to sustain his evidentiary burden of demonstrating that,

under all of the circumstances, defense counsel’s strategic decision not to present the alibi defense was not

objectively reasonable. Here, defense counsel

described at length the reasons underlying their decision not to present the alibi evidence, and the court

found that the decision was not the product of neglect,

but strategy. It is not the role of a reviewing court to

second-guess the myriad of considerations that underlie
a trial strategy in an attempt to determine with the

benefit of hindsight whether it would have made the

exact same strategic decisions. Rather, a reviewing

court must determine whether, at the time of trial, conceivable justifications existed for the tactical decisions

that were made by counsel.

‘‘Our review of an attorney’s performance is especially deferential when his or her decisions are the result

of relevant strategic analysis. . . . Thus, [a]s a general

rule, a habeas petitioner will be able to demonstrate that

trial counsel’s decisions were objectively unreasonable

only if there [was] no . . . tactical justification for the

course taken. . . .

‘‘[T]he presentation of testimonial evidence is a matter of trial strategy. . . . Defense counsel will be

deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of a

witness and that the attorney . . . without adequate

explanation . . . failed to call the witness at trial. . . .

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. . . .

‘‘[O]ur habeas corpus jurisprudence reveals several

scenarios in which courts will not second-guess defense

counsel’s decision not to investigate or call certain witnesses or to investigate potential defenses, such as

when . . . counsel learns of the substance of the witness’ testimony and determines that calling that witness

is unnecessary or potentially harmful to the case . . . .

Thus, an attorney’s choice to pursue a defense that

focuses on casting doubt on the state’s case rather than

on calling his or her own witnesses can be a reasonable

choice.’’ (Citations omitted; internal quotation marks

omitted.) Spearman v. Commissioner of Correction,

164 Conn. App. 530, 541, A.3d (2016). As the

United States Supreme Court has observed, ‘‘To support

a defense argument that the prosecution has not proved

its case it sometimes is better to try to cast pervasive

suspicion of doubt than to strive to prove a certainty

that exonerates.’’ Harrington v. Richter, supra, 562

U.S. 109.

The petitioner failed to demonstrate that defense

counsel’s general strategy to keep the jury’s focus on

weaknesses in the state’s case, instead of diverting

focus to an alibi defense, was unreasonable under the

circumstances. This is particularly true in light of the

weakness in the state’s case following Ford’s recantation. Moreover, even if the petitioner could demonstrate

that such a general strategic decision was unreasonable,

in the present case, defense counsel raised many reasonable concerns about the overall strength of the alibi

evidence, including its potential to benefit the state’s

case by placing the petitioner near the scene of the
crime at the time that it was committed. The petitioner

has failed to demonstrate that, as a whole, these specific

reasons related to defense counsel’s evaluation and

assessment of the alibi evidence did not reflect sound

professional judgment.20 The fact that this was not the

only reasonable trial strategy that was available to counsel, or that it ultimately was not successful, is not dispositive of the issue of whether the strategy employed

was objectively reasonable. Employing the strong presumption that counsel’s conduct reflected reasonable

representation, as we must, we conclude that the petitioner failed to satisfy his burden under Strickland’s

first prong.

The judgment is reversed only with respect to the

count alleging ineffective assistance of counsel and the

case is remanded to the habeas court with direction to

deny the petition for a writ of habeas corpus on that

count. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

1

‘‘The record reveals that the area of New Haven where most of the

pertinent events occurred is called Newhallville and is a block-shaped area

formed around the intersections of Read, Shepard, Huntington and Newhall

Streets.’’ State v. Johnson, supra, 288 Conn. 239 n.4.

2

‘‘L’Kaya Ford and Ralph Ford are not related.’’ State v. Johnson, supra,

288 Conn. 239 n.5.

3

‘‘The victim told police investigating the incident that the [petitioner]

did not have a weapon. A witness, Dwana Wilson, however, saw the encounterfrom across the street and testified that she had witnessed the [petitioner]

holding a black handgun and pointing it at the victim.’’ State v. Johnson,

supra, 288 Conn. 239 n.6.

4

‘‘Ralph Ford did not explain why he did not remain with the victim and

take the usual shortcut home that night, other than indicating that he liked

to walk on Read Street.’’ State v. Johnson, supra, 288 Conn. 241 n.7.

5

‘‘Ralph Ford,the state’s key identification witness,recanted his testimony

from the [petitioner’s] first trial at the [petitioner’s] retrial, but his prior

inconsistent statements were used to impeach him at the second trial and

admitted as substantive evidence . . . .’’ State v. Johnson, supra, 288 Conn.

241 n.8.

6

‘‘At trial, Toles testified that, earlierthat day, she had seen the [petitioner]

in a cranberry colored car that she believed was a Dodge Intrepid. The

[petitioner] was a passenger in the car and was accompanied by two other

people.’’ State v. Johnson, supra, 288 Conn. 241 n.9.

7

‘‘There was conflicting testimony at trial about the clothes that the

[petitioner] was seen wearing on the night the victim was shot. Toles

observed him around 11 p.m. wearing ‘[a] black T-shirt, some blue jeans, a

black leather coat, and black Jordan sneakers.’ Ralph Ford’s testimony from

the [petitioner’s] first trial was read into evidence at the second trial, and

he testified that, when he saw the [petitioner] running across Huntington

Street from the direction of the gunshot, the [petitioner] was wearing blue

jeans, a grey hooded sweatshirt with orange stripes on the sleeves, and

black boots.’’ State v. Johnson, supra, 288 Conn. 242 n.10.

8

‘‘Toles did not see what car, if any, the [petitioner] and Scott arrived in

that evening.’’ State v. Johnson, supra, 288 Conn. 242 n.11.

9

‘‘The police,relying on information received and the identifications made

by Ralph Ford and L’Kaya Ford, secured a search warrant for the [petitioner’s] residence and seized a .45 caliber handgun. Ballistics testing confirmed

that the gun seized from the [petitioner’s] home was not the gun used to

kill the victim. The parties stipulated at trial that there was no record of a

permit in the defendant’s name to carry a handgun. The police also seized

a pair of black, high-top sneakers from the [petitioner’s] home but did not

find a gray sweatshirt with orange stripes or blue jeans.’’ State v. Johnson,

supra, 288 Conn. 243 n.12.

10 Also, the petitioner alleged that counsel rendered deficient representation in that they had failed to present testimony of a Jermaine Diggs, who

was not called as a witness at the habeas trial. The habeas court determined
that the petitioner abandoned this aspect of his claim of ineffective

assistance.

11 Allen testified that she was driving a van when she picked up the petitioner.

12 The petitioner presented Holly’s testimony before the habeas court as

evidence of prejudice. Before this court, the petitioner observes that, at the

time of the criminal trial, the court could have ordered Holly to testify while

restricting direct and cross-examination of him in such a manner as to

protect his right against self-incrimination. Thus, the petitioner argues that

Holly’s testimony at the criminal trial ‘‘could have been limited to the sole

issue of his having seen Ford with a gun similar to that used to kill the

victim nearthe time of the shooting.’’ The petitioner argues that Holly ‘‘would

have been required to answer questions about having seen Ford with a gun

and asking him to describe the gun, even if he would have been permitted

to invoke the privilege in response to questions about trying to take the

gun.’’ The petitioner’s argument in this regard is based on his assertion that

‘‘it is perfectly clear from all of the facts presented at the habeas trial that

answers from Holly to questions calling for information about his having

seen a gun and a description of that gun could not possibly have any tendency

to incriminate him.’’

Holly was not called as a witness at the petitioner’s criminal trial and, at

the habeas trial, Holly testified without invoking his privilege against selfincrimination. A hearing concerning what inquiries, if any, would have been

precluded by the exercise of Holly’s privilege did not occur in this case.

Thus, the petitioner invites this court to speculate with respect to the portion

of that testimony that the petitioner would have been compelled to provide

consistent with the invocation of his privilege. A court’s evaluation of

whether to preclude the exercise of the fundamental constitutional right

at issue is inherently fact-bound. ‘‘To sustain the privilege [against selfincrimination], it need only be evident from the implications of the question,

in the context in which it is asked, that a responsive answer to the question

or an explanation of why it cannot be answered might be dangerous because

injurious disclosure could result. . . . Conversely, before refusing to allow

the privilege, the trial court must find that the answers to any questions

proposed cannot possibly have a tendency to incriminate. . . . The privilege

against self-incrimination depends on the mere possibility of prosecution.’’

(Citations omitted; internal quotation marks omitted.) State v. Cecarelli, 32

Conn. App. 811, 819, 631 A.2d 862 (1993). We reject the petitioner’s argument.

In the absence of a factual record that provides far greater information

concerning the matters pending against Holly at the time of the criminal

trial, it is not perfectly clear that any testimony from Holly in which he

described his interaction with Ford and his observations of Ford’s gun could

not possibly have any tendency to incriminate him. If it would have been

feasible and likely for the court to have limited the inquiries of Holly in

the manner suggested by the petitioner, it was the petitioner’s burden to

demonstrate this fact before the habeas court on the basis of adequate facts.

We reiterate that it was the petitioner’s burden to create a factual record

to demonstrate that Holly would not have been permitted to exercise his

privilege against self-incrimination with respect to evidence helpful to the

petitioner.

13 As discussed previously in this opinion, the petitioner relies on Holly’s

testimony before the habeas court to demonstrate that, under Strickland,

he was prejudiced by counsel’s failure to present Holly’s testimony at his

criminal trial. Alternatively, the petitioner argues that this court ‘‘should

hold that [he] need not prove prejudice because [his] trial counsel’s failure

to present evidence of third party culpability through . . . Holly was an

adverse effect of counsel’s conflict of interest.’’

This conflict of interest claim was raised before and rejected on its merits

by the habeas court. In relevant part, the court stated: ‘‘[T]he petitioner

alleges that trial counsel had a duty to present Holly and Inspector Whalen

as witnesses to testify at the second trial as to Holly’s statement that he

saw Ford in possession of a pistol matching the description of the murder

weapon [on] the day of the shooting. The petitioner further claims that trial

counsel failed to present this testimony because Attorney Ullmann, the head

of the New Haven public defender’s office and trial counsel’s supervisor,

represented Holly in an unrelated [matter] and advised Holly not to cooperate

with the petitioner’s defense. This, he claims, constituted a conflict of

interest.

***

‘‘At the time of the petitioner’s second criminal trial, Holly had a criminal
matter pending that was unrelated to the petitioner’s case. Attorney Ullmann

represented Holly in that matter. Inspector Whalen contacted Holly on behalf

of the petitioner’s defense, and Holly informed him that he had seen Ford

with a handgun with a description similar to the murder weapon. Attorney

Ullmann advised Holly not to testify at the petitioner’s criminal trial because

the same prosecutor was handling both the petitioner’s case and Holly’s

pending case, and he did not want the prosecutor to retaliate against Holly

in his case for assisting the petitioner’s defense. Attorney Ullmann subsequently appointed a private attorney, Attorney Farver, to represent Holly

with respect to Holly’s involvement in the petitioner’s case. Both Attorney

Jones’ and Attorney Merkin’s decision not to call Holly as a witness at the

petitioner’s trial was not impacted by the fact that Attorney Ullmann was

their supervisor, and had advised Holly not to testify. . . .

‘‘[A]n actual conflict of interest does not arise in the present case solely

because trial counsel and Attorney Ullmann worked in the same government

office while representing parties with adverse interests. Further, the court

finds no specific instances in which the petitioner’s interests have been

adversely affected by trial counsel’s representation. Attorney Ullmann

appointed a private attorney to represent Holly with respect to the petitioner’s case to avoid any potential conflict, and both Attorney Jones and Attorney Merkin testified that Attorney Ullmann’s status as their supervisor or

[his] position as to Holly’s testimony did not impact their decision not to

call him as a witness in the petitioner’s second trial. Accordingly, the petitioner has failed to prove his actual conflict of interest claim.’’

In arguing before this court that a conflict of interest actually existed that

obviated the requirement that he prove that he was prejudiced by defense

counsel’s failure to present Holly’s testimony, the petitioner argues that the

habeas court erred in its critical finding that Ullmann did not have any

adverse effect on defense counsel’s representation of him, and that Ullmann

did not impact their decision not to present Holly’s testimony. The petitioner’s argument with respect to an actual conflict of interest on the part of

defense counsel is not persuasive. Before this court, the petitioner calls into

question the factual determinations of the habeas court with respect to

defense counsel’s loyalties and their decision-making concerning Holly. His

arguments fail because the court’s unambiguous factual findings in this

regard are amply supported by the testimony presented at the habeas trial.

14 In his brief before this court, the petitioner asserts that the judgment

of the habeas court may be supported by the fact that defense counsel

‘‘failed to adequately investigate the strength of the petitioner’s alibi.’’ He

argues that ‘‘trial counsel failed to adequately investigate the strength of

the alibi witnesses’’ and ‘‘had no reasonable basis to stop investigating before

discovering [relevant] facts’’related to theirtestimony. The petitioner argued

that, had defense counsel questioned Johnson adequately, they would have

learned that he could not have left his residence without alerting her that

he was doing so.

The petitioner’s arguments that are based upon an inadequate investigation are not properly before us. In his amended petition for a writ of habeas

corpus, the pleading that framed the issues before the court, the petitioner

did not set forth allegations related to deficiencies in defense counsel’s

investigation of the alibi witnesses. Rather, he alleged that defense counsel

had ‘‘failed to present’’ the testimony of Johnson and Allen. Moreover, the

habeas court’s memorandum of decision does not reflect that the court

considered on its merits any claim related to inadequate investigation of

the witnesses at issue. The court stated among its many findings that, at

the habeas trial, defense counsel ‘‘acknowledged . . . that they failed to

investigate Johnson’s ability to provide an alibi at the times when the petitioner was not in her direct view.’’ There is nothing in the court’s decision

to reflect, however, that the court based its decision on that isolated finding

or any theory of the case related to defense counsel’s investigation. Consistent with the grounds set forth in the amended petition for a writ of habeas

corpus, the court stated that the issue before it was the petitioner’s claim

‘‘that trial counsel were ineffective for failing to call Johnson and Allen as

witnesses to testify that he was at home at the time of the shooting in

support of an alibi defense.’’

This is not one of the rare cases in which, in the absence of an amendment

to the operative pleadings, a lower court has considered, or granted relief,

on the basis of a technically unpleaded claim that was actually litigated at

trial. See Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 575,

715 A.2d 46 (1998). ‘‘It is well settled that [t]he petition for a writ of habeas

corpus is essentially a pleading and, as such, it should conform generally

to a complaint in a civil action. . . . The principle that a [petitioner] may

rely only upon what he has alleged is basic. . . . It is fundamental in our

law that the right of a [petitioner] to recover is limited to the allegations
of his complaint. . . . While the habeas court has considerable discretion

to frame a remedy that is commensurate with the scope of the established

constitutional violations . . . it does not have the discretion to look beyond

the pleadings and trial evidence to decide claims not raised. . . . This court

is not bound to consider claimed errors unless it appears on the record that

the question was distinctly raised . . . and was ruled upon and decided by

the court adversely to the [petitioner’s] claim. . . . This court is not compelled to consider issues neither alleged in the habeas petition nor considered at the habeas proceeding . . . .’’ (Citation omitted; internal quotation

marks omitted.) Greene v. Commissioner of Correction, 131 Conn. App.

820, 822, 29 A.3d 171 (2011), cert. denied, 303 Conn. 936, 36 A.3d 695 (2012);

see also Johnson v. Commissioner of Correction, 285 Conn. 556, 580, 941

A.2d 248 (2008). In conformity with this principle of appellate review, we

decline to address on their merits any arguments related to the alleged

deficient performance of defense counsel in failing to properly investigate

the strength of the alibi witnesses’ potential testimony.

15 In this regard, Merkin testified: ‘‘It was my belief . . . from years of

doing this type of work . . . that unless they are solid, [alibis] can get you

into trouble. It’s the last thing the jury hears if you have a good prosecutor

who’s a good cross-examiner and can try to kind of attack either a family

member who’s an alibi witness or some other vulnerability to the alibi. To

me, it pulls attention away from the weaknesses in the state’s case, and it

kind of develops jurors’ focus on the weaknesses in the alibi. So, it’s just

been my practice to shy away from alibis unless they’re solid, and I had

some concerns about the alibi in this case.’’

Similarly, Merkin stated: ‘‘I know that there’s a difference of opinion on

this . . . . My opinion is that if you put alibi evidence on which has vulnerabilities, after the state’s sole eyewitness testifies . . . the last piece of the

case that the jury is left with is a weak or possibly problematic alibi, and

it draws the jury’s attention away from the weaknesses in the state’s case.

Jurors aren’t supposed to shift burdens and things of that sort, but it’s my

opinion that . . . if they’re presented with alibi evidence that’s not solid,

their focus kind of gets taken away from the weaknesses in the state’s case.’’

16 Defense counsel did not testify that they disbelieved Johnson or Allen.

Merkin testified that she had a wide range of concerns with respect to

presenting the testimony of Johnson and Allen in support of an alibi defense.

Merkin explained that Johnson was not a disinterested witness, but a family

member of the petitioner; the alibi evidence would have demonstrated that

the petitioner was close to the scene of the shooting at the time that the

shooting occurred; and she believed that Johnson’s testimony was not strong

because Johnson had not informed the police about the petitioner’s whereabouts. Merkin also explained that Johnson was not always consistent with

respect to when she had observed the petitioner leave the residence, and

that she did not believe that Johnson’s version of events would withstand

a thorough cross-examination because it would have been relatively easy

for a skilled prosecutor to draw the jury’s attention to the fact that she did

not directly observe the petitioner at all times relevant. She stated that the

fact that Johnson was unable to testify that she directly had observed the

petitioner in her residence at the time of the shooting was a deficiency in

the alibi.

Merkin explained that because of uncertainties in Allen’s testimony, she

was not satisfied that it would have precluded the jury from finding that

the petitioner committed the shooting and, in any event, it demonstrated

that he was in close proximity to the crime scene at the time of the shooting.

Moreover, Merkin believed that Allen’s testimony was not favorable to the

extent that it essentially demonstrated that the petitioner had asked Allen

to drive him away from the general area of the crime scene at a late hour

of the day. With respect to this last observation, Merkin testified that she

had concerns that such evidence would have permitted the state to seek

an instruction concerning evidence of flight and consciousness of guilt, to

the petitioner’s detriment. She stated: ‘‘I didn’t like that because the jurors

could infer that he had maybe done the shooting and was taking off

[with Allen].’’

Repeatedly, Merkin indicated that she deemed the fact that the alibi

evidence would have placed the petitioner near the scene of the shooting

to be an important factor that mitigated against presenting the evidence at

issue. Despite her reservations about alibi defenses, Merkin testified that if

the alibi evidence had placed the petitioner farther away from the scene of

the crime she would not have ‘‘struggled’’ with the decision whether to

present the evidence. Merkin testified that if Johnson and Allen could have

supported an alibi that was ‘‘connected to a location miles away from the
crime . . . the balance for me would have tipped in favor of putting that

defense on in front of this jury.’’

In his testimony before the habeas court, Jones discussed the general

defense strategy of focusing on the weakness of Ford’s identification of the

petitioner. Jones shared some of Merkin’s concerns with respect to the

strength of the alibi evidence, particularly the concern that the evidence

did not provide a rock-solid alibi that, if believed, precluded a finding that

the petitioner could have committed the crime. Jones observed that the

alibi evidence would have placed the petitioner at his home, which was

located mere blocks from the crime scene. Jones expressed his concern

that, even if the alibi evidence had been presented to the jury, the jury could

have found it plausible that the petitioner had the opportunity to commit

the crime. Jones, like Merkin, wrestled with the issue of whether it was a

good strategy to divertthe jury’s attention to an alibi defense, but he indicated

that he favored presenting the alibi evidence. Despite this disagreement

with her as to trial strategy, he viewed Merkin as an excellent trial attorney

and agreed with her overall assessment of the weaknesses in the state’s case.

17 In this regard, the court appears to have relied on Johnson’s testimony

that, even if she was not able to directly view the petitioner, she would

have been able to determine if he had left the residence because she would

have heard the kitchen door open and would have noticed if the motionactivated light outside of her residence had been activated by his movement.

The court found, and the evidence reflects, that defense counsel did not

investigate Johnson’s testimony in this regard. Even if defense counsel had

been aware of this explanation from her, however, it would not have been

unreasonable for counsel, in the exercise of sound professional judgment,

to determine that the evidence was not persuasive in nature.

18 Although the court appears to have determined that the defense could

have presented evidence of this nature with respect to all calls made between

the petitioner and Allen on the night of the shooting, Allen testified that the

caller identification system on her telephone contained information about

the telephone calls that the petitioner made to her. Allen testified that the

system did not have information about the timing of the telephone calls

that she allegedly had made to the petitioner closer to the suspected time

of the shooting. Thus, the evidence presented at the habeas trial did not

undermine the sound strategic reasons articulated by Merkin for not presenting Allen’s testimony.

19 There was evidence that the shooting occurred between 10:20 and 10:30

p.m. There was evidence that the petitioner’s residence was within two

blocks of the crime scene and that it took the petitioner several minutes

to drive to Southern Connecticut State University from his residence. Thus,

the evidence showing that the petitioner was at Southern Connecticut State

University shortly before 11 p.m. is not as potentially incriminating as the

alibi evidence that would have placed the petitioner at his residence, just

two blocks from the crime scene, at a time that was much closer to the

suspected time of the shooting.

20 Although the court did not refer to it when assessing the reasonableness

of defense counsel’s strategic decision not to present Johnson’s testimony,

we note that an excerpt from one of the police incident reports that was

introduced as an exhibit during the habeas trial reflects that, on the day

following the shooting, the petitioner, after signing a waiver of rights form,

told the police that he was home at his residence on Butler Street the night

before, but he ‘‘could not remember who was home or saw him.’’