Opinion
CV154007011S
10-01-2018
Bryan JORDAN (Inmate #218810) v. WARDEN
UNPUBLISHED OPINION
OPINION
Kwak, J.
The petitioner filed a pro se petition for a writ of habeas corpus on February 11, 2015. The pro se petition was amended twice by assigned counsel, with the revised amended petition raising claims in eight counts: first; ineffective assistance of trial counsel, Attorney Diane Polan, for failing to present evidence of self-defense; second, ineffective assistance of trial counsel for failing to impeach state’s witnesses; third, a Brady violation; fourth, ineffective assistance of trial counsel for failure to raise a third-party culpability defense; fifth, ineffective assistance of trial counsel premised on juror removal; sixth, a Brady violation premised on failure to correct false testimony; seventh, ineffective assistance of trial counsel for failure to object to prosecutorial misconduct and request a curative instruction; and eighth, failure to disclose information. The respondent’s return denies these claims and asserts abuse of the writ as an affirmative defense. The petitioner’s reply to the return denies that he has abused the writ of habeas corpus.
The petitioner’s post-trial brief withdrew claims three, five, six, and eight. The petitioner’s post-trial reply brief reiterates these withdrawals. The effect of the withdrawals is that the petitioner is proceeding with only ineffective assistance of trial counsel claims.
The parties appeared before the court on January 22 and February 5, 2018, for a trial on the merits. The petitioner entered forty transcripts from the underlying criminal proceedings into evidence; the respondent entered one document into evidence- the statement Flonda Jones gave to trial counsel’s investigator, Mike O’Donnell. Additionally, the court received testimony from the petitioner; Mike O’Donnell; Alexis Jordan, the petitioner’s niece; Tymisha Freeman, the petitioner’s sister; Flonda Jones, a friend of both the petitioner and the victim; Audrey Jordan, the petitioner’s sister; James Walker, a relative of the victim; Billy Wright, an acquaintance of both the petitioner and the victim; and Attorney Robert McKay, the petitioner’s expert witness. Both parties filed post-trial briefs.
Based on its review of the documentary evidence and testimony presented, and for the reasons articulated more fully below, the petition for a writ of habeas corpus is granted.
CRIMINAL PROCEEDINGS AND DIRECT APPEAL
The petitioner was the defendant in a criminal case in the judicial district of New Haven. In docket number CR06-0048839-S, the petitioner was charged with murder in violation of General Statutes § 53a-54a(a) and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35. After a jury trial, the jury found the petitioner not guilty of murder, but guilty of the lesser included offense of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a(a). The jury also found the petitioner guilty of the charge of carrying a pistol or revolver without a permit. The court, Licari, J., sentenced the petitioner to a total effective sentence of forty-five years of incarceration.
The petitioner appealed from the judgment of conviction. On appeal, the petitioner "claim[ed] that (1) the state’s improper comments during closing argument to the jury deprived him of a fair trial and (2) the trial court improperly precluded him from presenting evidence regarding the victim." State v. Jordan, 117 Conn.App. 160, 161, 978 A.2d 150, cert. denied, 294 Conn. 904, 982 A.2d 648 (2009). The Appellate Court affirmed the judgment of the trial court. Id., 172.
The Appellate Court’s decision summarizes succinctly the facts reasonably found by the jury. "The charges in this case stem from the shooting death of Curtis Hannons [Aka, Tiger] on September 19, 2005. On the day of the shooting, the [petitioner], the victim and the victim’s brother got into an argument. After the argument was broken up, the [petitioner] got into his car and left. A few minutes later, the [petitioner] returned, and another ‘heated’ discussion took place with the victim. Several people congregated near the two and tried to calm down the [petitioner] and the victim. Three eyewitnesses gave slightly varying accounts of what happened next. All agreed that they heard a gunshot and that the [petitioner] then pulled out a gun and shot the victim once in the head. The [petitioner] ran away, and the witnesses heard about six or seven more gunshots. The victim was transported to a hospital, where he died. The [petitioner] was arrested in Georgia some time later." Id., 161-62.
The Appellate Court discussed the strength of the state’s case. "There is no disagreement that the [petitioner] fired his gun at the victim. There were also three eyewitnesses who testified that they heard a gunshot and the [petitioner] then shot at the victim. There also was testimony that before the shooting, the victim and the [petitioner] had been in a heated discussion and that the [petitioner] had driven away and then returned. Our Supreme Court has ‘never stated that the state’s evidence must have been overwhelming in order to support a conclusion that prosecutorial [impropriety] did not deprive the defendant of a fair trial.’ State v. Thompson, [ 266 Conn. 440, 483, 832 A.2d 626 (2003) ]. There was sufficient testimony for the jury to conclude that the [petitioner] was not acting in self-defense and to find him guilty of manslaughter in the first degree with a firearm. Despite the improprieties, the state’s case was strong." State v. Jordan, supra, 117 Conn.App. 170.
The petitioner filed two prior habeas corpus petitions. Both petitions were withdrawn prior to the beginning of evidence. See General Statutes § 52-80 ("The plaintiff may withdraw any action so returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof"); Kendall v. Commissioner of Correction, 162 Conn.App. 23, 130 A.3d 268 (2015) ("The decision by a habeas court to condition a withdrawal of a habeas petition on that withdrawal being ‘with prejudice’ is, when authorized, a decision left to that court’s discretion"); Melendez v. Commissioner of Correction, 141 Conn.App. 836, 843, 62 A.3d 629, cert. denied, 310 Conn. 921, 77 A.3d 143 (2013). The two prior habeas courts (Cobb, J., and Oliver, J.) did not accept or condition these withdrawals to be with prejudice. The petitioner then initiated the present matter.
Additional facts will be discussed below as necessary to address the petitioner’s specific claims.
DISCUSSION
1. Ineffective Assistance by Trial Counsel, Attorney Diane Polan
The amended petition asserts various ways in which Polan rendered ineffective assistance of counsel. The various allegations of deficient performance will be discussed separately under the rubric of ineffective assistance of trial counsel. Thus, the grounds for ineffective assistance by Polan are that she failed to properly: (1) present evidence of self-defense; (2) impeach the state’s witnesses; (3) raise a third-party culpability defense; and (4) object to prosecutorial misconduct and ask for a curative instruction.
a. Ineffective Assistance of Trial Counsel 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 ... As enunciated in Strickland v. Washington, [ 466 U.S. 668, 686, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], [our Supreme Court] has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong ... The claim will succeed only if both prongs are satisfied ...
"To prove his or her entitlement to relief pursuant to Strickland, a petitioner must first satisfy what the courts refer to as the performance prong; this requires that the petitioner demonstrate that his or her counsel’s assistance was, in fact, ineffective in that counsel’s performance was deficient. To establish that there was deficient performance by the petitioner’s counsel, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance ... The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.
" ‘[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 [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’ (Internal quotation marks omitted.) Mukhtaar v. Commissioner of Correction, 158 Conn.App. 431, 449, 119 A.3d 607 (2015). In reconstructing the circumstances, ‘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 ...’ (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 319 Conn. 623, 632, 126 A.3d 558 (2015), quoting Cullen v. Pinholster, 563 U.S. 170, 196, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011)." Spearman v. Commissioner of Correction, 164 Conn.App. 530, 538-39, 138 A.3d 378, cert. denied, 321 Conn. 923, 138 A.3d 284 (2016).
"In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or the jury ... Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support ... [T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged ... The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 688-89, 51 A.3d 948 (2012).
Polan represented the petitioner during the relevant criminal trial proceedings, but she deceased prior to the present habeas trial. The habeas court, therefore, has no evidence directly from Polan about any of her trial strategies and the tactical decisions she made to accomplish them. Attorney McKay testified as the petitioner’s expert on standards of legal representation. McKay’s opinions about whether or not Polan’s representation fell below an objective standard of reasonableness must be assessed in light of the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Spearman v. Commissioner of Correction, supra, 164 Conn.App. 538; Llera v. Commissioner of Correction, 156 Conn.App. 421, 426-27, 114 A.3d 178, cert. denied, 317 Conn. 907, 114 A.3d 1222 (2015).
1. Failures by Attorney Polan
The petitioner alleges that Polan rendered deficient performance by failing to present evidence in the petitioner’s claim that he acted in self-defense, failing to impeach the state’s witnesses, and failing to raise a third-party culpability defense. Polan had a witness, Flonda Jones, who observed the incident and would have testified during the criminal trial in support of the petitioner’s claim of self-defense. The petitioner alleges that Polan informed the petitioner that she was going to call Jones as a witness, and that Jones was available and actually came to the courthouse to testify, but that Polan failed to call Jones. The petitioner also alleges that Polan failed to investigate Officer Willoughby’s background, which would have disclosed that he had previously been investigated for impropriety. Polan did not discredit Willoughby or impeach his testimony during the criminal trial. Polan also did not request information from the state regarding charges pending against the state’s witnesses, which could have been used to impeach their testimony. Furthermore, the petitioner alleges that Polan failed to introduce evidence that would support the conclusion that the victim’s brother, who was positioned behind the victim, fired the deadly shot, as well as that there were other armed individuals who could have fired the deadly shot. The petitioner also avers that Polan failed to hire and use an expert witness on third-party culpability.
a. Criminal Trial Witnesses
As noted by the Appellate Court, there were three eyewitnesses who testified in the criminal trial. These three witnesses gave "slightly varying accounts" describing the initial gunshots and that the petitioner "shot at the victim." A more detailed summary of these three accounts, as well as other testimony presented to the jury, is necessary before summarizing the evidence presented during the habeas trial.
Officer Matthew Myers testified that he arrived shortly after the shooting. He did not see a weapon near or on the victim. Petitioner’s Exhibit 30, p. 64. Officer Willie Ponteau, who lived near the crime scene, heard two shots, which he described coming from a small caliber firearm, followed by many more shots, which he described as sounding like larger caliber firearms. Id., pp. 93, 104. Ponteau also did not see a weapon near or next to the victim, but he had no idea if a gun was removed. Id., pp. 116, 121.
Kimberley Stevenson was the petitioner’s friend. The victim was the father of her child. Stevenson testified that she did not see Hannons with a gun the afternoon leading up to the shooting. Stevenson did not see the first shot, but the second shot was fired by the petitioner at Hannons. According to Stevenson, the petitioner pulled a revolver out of his pants and shot Hannons in the head. She did not see Hannons’ brother, Jason Kelly, also known as Mookie, where the shooting occurred. Stevenson denied telling O’Donnell, the investigator working for Polan, that she went back to her house and had not been present when the shooting occurred. Stevenson also denied telling O’Donnell that Billy Wright, also known as "Wild Bill," had a gun in his hand. Hannons, according to Stevenson, turned away from the petitioner, who then shot Hannons after pointing his gun at Hannons’ head. Petitioner’s Exhibit 31, 39-152.
Deserae Stevenson, Kimberley’s sister, was filling out a job application when she heard two shots. She did not see the shooter. After the initial two shots she heard more shots. Deserae saw her sister come downstairs and followed her outside. Deserae did not see Mookie in the area and did not see a weapon near the victim. Deserae knew Roger Williams but did not see him outside, nor did she see Wild Bill or Mookie. Deserae only recalled seeing the petitioner and Hannons. Petitioner’s Exhibit 32, p. 22-51.
Roger B. Williams, Sr., testified that he was an eyewitness and present at the shooting. Williams saw Mookie standing on a small hill behind Hannons. According to Williams, Curtis and Wild Bill were the first to draw their guns and the petitioner drew his gun thereafter. The petitioner and Hannons were approximately 2-4 feet apart. Williams stayed at the scene for several minutes until the police arrived. Williams described the confrontation as being between the petitioner and Mookie, while Hannons was trying to stop the fight between them, and that it was Mookie, who was the person angry at the petitioner. The petitioner started walking away and Hannons called him back. Williams did not see Mookie, Hannons and the petitioner became face-to-face, and Hannons and Wild Bill pulled their guns out. Williams described Wild Bill’s gun as small caliber, whereas the petitioner’s was large caliber. After Hannons fell onto his back, Williams did not see a weapon in his hands, Petitioner’s Exhibit 32, 72-165.
Dr. Susan Williams, the medical examiner, testified that the entrance wound was about 1/4th inch in diameter and on the right side of Hannons’ head, about two inches above and behind the right ear. The exit wound was nearly three inches in size and was on the victim’s left forehead. Dr. Williams described the bullet path through the victim’s head as traveling left, up, and forward. Dr. Williams observed stippling near the entry wound and described the stippling she observed as consistent with stippling caused by a firearm discharged from a distance of about two feet from a person’s skin. A firearm less than a foot away causes soot to be deposited on skin; here, no soot was present, so the shot was not fired from a very close distance. Instead, the distance of the firearm from Hannons’ head was from an intermediate distance, approximately 34 feet, with sparse stippling. The firearm could not have been more than 6 feet away because then no stippling would be detected. More accurate estimates could be made if the weapon that fired the shot into Hannons’ head were known. Petitioner’s Exhibit 35, pp. 13-33.
Detective Clarence Willoughby, who was involved in the investigation, acknowledged that he is a family member of the Hannon family. The victim was his second cousin. Id., pp. 68. Willoughby was involved in the investigation into Hannons’ shooting death. Willoughby testified that he was involved in locating the petitioner and that those efforts led him to speak with the petitioner’s mother and sister, Audrey Jordan. Willoughby spoke with both of them a second time, but again limited to locating the petitioner.
Detective Willoughby was a state’s witness. Given his own acknowledgement on cross examination that he was a relative of the victim and Mookie, it is perplexing that the respondent’s post-trial brief argues that James Walker’s testimony that Detective Willoughby is related to the victim’s family is not proof of such relationship. See Respondent’s Post-Trial Brief, p. 6.
The petitioner testified to support his self-defense claims. According to the petitioner, he was about five feet away from the Hannons, who was acting as if he had a gun and fired the first shot. The victim was fumbling with his pocket and was standing directly in front of the petitioner. The petitioner took out his gun and pointed it in the direction where the shot came from. The petitioner did not know if he hit Hannons. Andre Martin, also known as Dre, was also nearby, about three feet from Hannons, but the petitioner could not identify Dre as the person who shot Hannons. Only Hannons and Mookie had guns in addition to the petitioner, who testified he had a .32; Dre, Wild Bill, and Cyril Jack, also known as "Stone," did not have guns. The petitioner did not see Hannons with a gun. The petitioner pulled his gun out of his right back pocket and fired his gun in the direction of where he believed a shot came from, which was in the direction of Hannons, who was fumbling with his pocket. The petitioner had no idea if Hannons in fact had a gun. Petitioner’s Exhibit 36, pp. 13-92.
Bessy Evans Young testified that she met with O’Donnell when he was investigating the defense case. Young denied telling O’Donnell that Mookie left the house that day with a gun. Young also denied telling O’Donnell that she would not testify that Mookie left with a gun. Young acknowledged that she recognized O’Donnell, but denied any comments attributed to her regarding Mookie and a gun he had. Petitioner’s Exhibit 36, pp. 131-45.
The state argued in its closing arguments that it had disproven the petitioner’s claim of self-defense. Polan argued that the state had failed to prove intent and that the evidence supported either a manslaughter or reckless manslaughter conviction, two of the lesser included offenses. Polan acknowledged that it was undisputed that the petitioner was not the first shooter. Polan also highlighted that the evidence did not explain how the petitioner could have shot Hannons in the back of the head, as well as that the state had not even proven that it was the petitioner or his gun that killed Hannons. Because there was no evidence that the petitioner was the initial aggressor, according to Polan, the state had failed to disprove that the petitioner fired in self-defense. The state in rebuttal argued that there was no one else standing near Hannons, only the petitioner, when Hannons was killed. Petitioner’s Exhibit 37, pp. 17-56.
The jury was instructed on murder and four lesser included offenses- intentional manslaughter, reckless manslaughter, manslaughter in the second degree, and criminally negligent homicide. The jury was also instructed on self-defense which, if not disproven by the state, would result in verdicts of not guilty for the main charge and all lesser included offenses. Id., pp. 107-24.
The jury began its deliberations and then sent out the first note, which requested the playback of seven excerpts from different witnesses and the intent instruction. A second jury note requested the playback of the complete testimony of Roger Williams, Kim Stevenson, Officer Ponteau, the petitioner, Mookie, and Mrs. Young. After being apprised that such extensive playback would take approximately ten hours, the jury indicated that it instead wanted only three discreet portions played back: the testimony of Officer Ponteau when questioned by the state; the testimony of Roger Williams when questioned by the state and the defense; and the testimony of the medical examiner regarding the distance the shot was fired from. Petitioner’s Exhibit 38, pp. 1-15. The next day of their deliberations, another jury note requested a readback of the specific intent instruction. Petitioner’s Exhibit 39, p. 1. The jury then reached its verdicts. Id., p. 6-9.
b. Habeas Trial Witnesses
Mike O’Donnell, the former investigator for Polan, did not recall his interview with Bessie Young. O’Donnell testified that Polan asked him to sit at counsel’s table with her during the trial. O’Donnell did not know if Polan intended to call him as a witness, if necessary, because he never discussed the witness list with her.
Alexis Jordan is the petitioner’s niece and was about eight years old when Hannons was killed. She testified that she was inside the house, heard gunshots, and went outside. A. Jordan heard the shots but did not see the events that transpired. A. Jordan saw Hannons’ girlfriend, Shawnese Stevenson, and another person run out of their house. A. Jordan testified that she saw a gun next to Hannons’ body. The gun was to the right of the body, several inches away from the body. According to A. Jordan, Shawnese went back to her house and retrieved some type of cloth, went to the body, used the towel to pick up the gun, and then returned again to the house with the gun inside the towel. A. Jordan did discuss the events surrounding the shooting with those closest to her, but noted that her mother did not want anyone talking to the police.
Kimberly Stevenson was also known as Shawnese Stevenson. She testified during the criminal trial as Kimberly Stevenson, but during the habeas trial, witnesses referred to her as Shawnese.
Jymisha Freeman, the petitioner’s sister, who was about eleven years old when Hannons was killed, was hanging out with A. Jordan when she heard shots. Freeman went outside with A. Jordan and got within 20-25 feet of the Hannons’ body. Freeman did not see a gun, but did observe Shawnese with a white cloth or towel.
Flonda Jones was a friend of both Hannons and the petitioner. Jones, who was twenty-one years old at the time, was outside and witnessed the argument leading up to the gunshots, which she also witnessed from a distance of several feet. Jones testified that Hannons kept reaching for a gun that was in his waistband. According to Jones, Mookie was the first to fire his gun. The petitioner and Hannons were approximately two feet apart, and Mookie was about three feet behind Hannons. Jones saw Hannons fall down. Jones testified that she does not believe she saw the shot that killed Hannons and does not know which direction the bullet came from. Jones also testified that she saw Shawnese come out with a kitchen towel, wrap up the gun, and take the towel and gun inside the house. Jones indicated that she met twice with police and gave a statement to them the second time. Jones also told O’Donnell about what she witnessed, including that she saw Shawnese hide the gun in a towel and remove it to the house. Jones said that she was subpoenaed for the criminal trial, watched the trial proceedings although there was a sequestration order, and that she was not called to testify.
See Respondent’s Exhibit A, Flonda Jones’ statement memorialized by O’Donnell.
Audrey Jordan, the petitioner’s sister and Alexis’ mother, testified that she was a friend of Hannons. A. Jordan was in her mother’s house, heard shots, and went outside, where she saw the body on the ground. A. Jordan saw Shawnese kneeling on the ground next to Hannons’ body and gave her a hug. A. Jordan did not sec the gun when she was giving Shawnese a hug. According to A. Jordan, Shawnese then jumped up, ran to her house, came back with a towel, grabbed a gun with the towel, and went back into her house. A. Jordan indicated that the gun was inches from Hannons’ body and first saw the gun when it was being picked up with the towel. A. Jordan saw the lights in the house go off, then back on, and Shawnese exit the house without the towel. A. Jordan spoke with Officer Willoughby about what she witnessed, including the towel and the gun. She also spoke with an investigator, although she could not recall if it was an investigator for the state or the defense. A. Jordan never signed a statement; however, she did speak with Polan.
The petitioner testified during the habeas trial, as he did in his own defense during the criminal trial. Although the petitioner did not see Hannons’ gun, he knew Hannons and his brother, Mookie, had guns and carried them. The petitioner did not see who fired the first shot. He did not believe that there was anything else that he could do aside from shooting in the direction he believed the shot came from, and did not believe that he could retreat. The petitioner ran away and did not see Shawnese come outside. The petitioner acknowledged that he had a gun in his pocket the entire time leading up to the shooting and took his gun out after the first shot was fired. According to the petitioner, Hannons fell to the ground after that first shot was fired.
According to the petitioner, he gave Polan names of witnesses, including Jymisha, Flonda, Cyril, and Bill. Polan informed him that Flonda had spoken twice with the prosecution and had given them a statement. Polan also informed him that, based on Flonda’s anticipated testimony, this was a self-defense case. O’Donnell was not able to testify without violating the sequestration order because Polan had O’Donnell sit at counsel’s table. Polan acknowledged this error to the petitioner and told him he would have to testify to impeach Bessie’s testimony denying what she had purportedly said to O’Donnell. The petitioner viewed his self-defense strategy as based on the testimony of witness such as Flonda, his sister, O’Donnell, Bessie, and Mookie. However, only Bessie and the petitioner testified for the defense.
James Walker testified that he has known the petitioner for about seventeen years and that he and Hannons were close friends. Hannons’ brothers (Marquis Kelly and Jason Kelly) are Walker’s first cousins and he grew up with them. Walker indicated that he was outside the building next to where Hannons was shot. Walker, who estimated that he was about four feet away from Hannons, witnessed the argument and saw Hannons flash his gun. However, Walker did not see Hannons pull his gun out from the waistband. Walker also saw Mookie shooting downwards from his slightly elevated position 10-15 feet behind Hannons. Walker further testified that Hannons’ girlfriend, Shawnese, removed the weapon in a towel. Walker indicated that he spoke in 2005 with Officer Willoughby, who he said also is a relative of Hannons and Mookie. Walker recalled seeing Honda, Shawnese, and Roger Williams at the scene of the shooting. Walker presented his testimony although he did not think that he was in court testifying for the petitioner.
Billy Wright (Wild Bill), who indicated that he was friendly with Hannons and Mookie, testified that he was at the playground nearby the site of the shooting. Wright saw Hannons pull a gun from his waistband, which prompted him to leave, and then he heard shots being fired as he was leaving. Wright denied having a gun himself and being involved in any of the shooting. Wright testified that he informed Officer Willoughby and a state’s investigator of what he had witnessed.
c. Discussion
The court first finds that the witnesses who testified at the habeas trial were credible, both individually and collectively. The question then becomes what that credible evidence proves and how it supports the petitioner’s claims of deficient performance by Polan: that she failed to present evidence in support of the petitioner’s claim that he acted in self-defense; that she failed to impeach the state’s witnesses; and that she failed to raise a third-party culpability defense. As the evidence from both the criminal and habeas trials demonstrates, these claims of deficient performance are inextricably intertwined. Thus, the court will discuss and analyze them together. See, e.g., Bryant v. Commissioner of Correction, 290 Conn. 502, 513, 964 A.2d 1186, cert. denied sub nom. Murphy v. Bryant, 558 U.S. 938, 130 S.Ct. 259, 175 L.Ed.2d 242 (2009) ("Strickland directs us to look at the ‘totality of the evidence before the judge or jury’ ... keeping in mind that ‘[s]ome errors ... have ... a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture ...’ ").
The petitioner asserts that Polan should have had another person interview Bessie Evans. O’Donnell interviewed her and then, after Polan had O’Donnell sit through the criminal trial at counsel’s table, could not call him as a witness without violating the sequestration order. Bessie Evans did not testify during the habeas trial, nor did O’Donnell recall his interview with her. O’Donnell did not know that he would be asked to sit at counsel’s table. It is unclear why Polan chose to have O’Donnell assist her during the trial, but there is a strong presumption that her decisions were made to effectuate the defense strategies. However, given that an investigator potentially may be called to impeach a trial witness who testifies contrary to a statement given to an investigator, there is no reasonable trial strategy this court sees in excluding an investigator as a potential impeachment witness.
The court finds that it was deficient performance by Polan to have O’Donnell sit at counsel’s table during the trial. Nevertheless, the petitioner has not shown that he was prejudiced thereby and has not undermined this court’s confidence in the outcome of the jury trial. Bessie Evans’ impeachment would have been limited essentially to demonstrating to the jury that Mookie left the house with a gun. Such testimony had the potential of buttressing the petitioner’s testimony during the criminal trial that he knew Mookie and Hannons were armed and tangentially supported his claim of self-defense. But Polan’s deficient performance in this regard does not undermine this court’s confidence in the outcome in the context of the entire criminal trial.
The petitioner in count one also alleges that Polan failed to investigate and interview witnesses to the shooting. Had she conducted a proper investigation, then she would have found witnesses whose testimony would support a claim of self-defense. Given the testimony presented at the habeas trial by the various witnesses who had not previously testified, and whose testimony this court has found credible, the court first concludes that Polan’s representation in this regard was deficient.
Alexis and Audrey Jordan saw Shawnese go to her house, get some cloth or towel, and use it to conceal the weapon and take it back to the house. Jymisha Freeman did not see the gun; however, she saw Shawnese get a cloth or towel to conceal and remove the gun. Flonda Jones was outside when the gunshots occurred and testified that Mookie was the first to fire a gun. Jones also saw Shawnese come out with a towel that she then used to wrap up the gun and take it to the house.
Although Alexis and Audrey Jordan and Jymisha Freeman are relatives of the petitioner, Flonda Jones is not a relative but a friend. The court has no basis to discredit these witnesses simply because they are the petitioner’s relatives. This court observed their respective demeanors and found these witnesses credible. Similarly, Flonda Jones presented testimony the court also found credible. James Walker, who is not a relative of the petitioner and was a close friend of Hannons, saw Hannons flashing his gun and saw Mookie shooting downwards in the direction of Hannons and the petitioner. Walker also saw Shawnese remove Hannons’ gun with a towel. The court has also found Walker’s testimony credible. Lastly, Billy Wright, who also is not a relative of the petitioner and was friendly with Mookie and Hannons, saw Hannons with a gun. Audrey Jordan, Walker and Wright all testified that they spoke with Detective Willoughby, a relative of Mookie and Hannons, and told him their accounts of what happened.
The testimony presented by these witnesses at the habeas trial, which this court has found credible, clearly buttresses the petitioner’s claim that he acted in self-defense when he returned fire. The jury verdict of not guilty as to the murder charge reflects its conclusion that the state had failed to prove that the petitioner intended to cause Hannons’ death. The jury verdict of guilty as to the first lesser included offense, manslaughter in the first degree with a firearm, reflects its conclusion that the state had disproven the petitioner’s claim of self-defense. The credible evidence presented by the witnesses at the habeas trial that was not presented at the criminal trial, evidence which was not challenged or undermined in any meaningful way by the respondent, supports the petitioner’s claim of self-defense. See, e.g., Bryant v. Commissioner of Correction, supra, 290 Conn. 510-11 (failure to meaningfully impeach witnesses at habeas trial). This evidence would show that the victim was armed and exhibited threatening behavior towards the petitioner, that the petitioner did not fire the first shot, and that the petitioner returned fire when fired upon.
"A fundamental element of due process is the right of a defendant charged with a crime to establish a defense ... General Statutes § 53a-19(a) provides in relevant part: ‘[A] person is justified in using reasonable physical force upon another person to defend himself ... from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.’
" ‘Under our Penal Code, self-defense ... is a defense ... rather than an affirmative defense ... Consequently, a defendant has no burden of persuasion for a claim of self-defense; he has only a burden of production. That is, he merely is required to introduce sufficient evidence to warrant presenting his claim of self-defense to the jury ... Once the defendant has done so, it becomes the state’s burden to disprove the defense beyond a reasonable doubt ... Accordingly, [u]pon a valid claim of self-defense, a defendant is entitled to proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified ... As these principles indicate, therefore, only the state has a burden of persuasion regarding a self-defense claim ...’
" ‘Our statutes distinguish between deadly and non-deadly force used in self-defense. See General Statutes § 53a-19. Additionally, [this court] has recognized that when instructing a jury on self-defense under § 53a-19, there is a distinction between deadly and nondeadly force. See, e.g., State v. Whitford, 260 Conn. 610, 631-32, 799 A.2d 1034 (2002); see also J. Pellegrino, Connecticut Selected Jury Instructions: Criminal (3d Ed. 2001) § § [2.39 through 2.40], pp. 110-23. The state may defeat a defendant’s claim of self-defense involving deadly physical force by proving, beyond a reasonable doubt, any of the following: (1) the defendant did not reasonably believe that the victim was using or about to use deadly physical force or inflicting or about to inflict great bodily harm; or (2) the defendant knew that he could avoid the necessity of using deadly physical force with complete safety by retreating, ... or surrendering possession of property to a person asserting a claim of right or by complying with a demand that he ... abstain from performing an act that he is not obligated to perform. See General Statutes § 53a-19. In other words, the General Assembly has created specific legislation that limits the use of deadly physical force in the context of self-defense when compared to the use of reasonable physical force. If the state can carry its burden of proof with respect to any of the enumerated situations ... the defendant’s claim of self-defense [involving the use of] deadly physical force will fail. In contrast, the right to use reasonable physical force is, by legislative fiat, much broader in scope. In order to defeat a claim of self-defense [involving] the use of reasonable physical force, the state must prove beyond a reasonable doubt that the defendant did not reasonably believe that he or she was subject to the use or imminent use of physical force and did not use a degree of force that was reasonable for that purpose. Simply put, it is much easier for the state to disprove [a claim of] self-defense when [it is predicated on the use of] deadly physical force ...’
"... [A] claim of self-defense is a justification defense. ‘A justification defense represents a legal acknowledgment that the harm caused by otherwise criminal conduct is, under special justifying circumstances, outweighed by the need to avoid an even greater harm or to further a greater societal interest. 1 P. Robinson, Criminal Law Defenses (1984) § 24(a), p. 83. [Thus], in the case of self-defense, [s]ociety’s interest in the right to bodily integrity, when combined with the physical harm threatened [by an aggressor], outweighs the normal prohibition against the physical injury needed to deter such an aggressor. Id., at p. 84. All justification defenses share a similar internal structure: special triggering circumstances permit a necessary and proportional response ... Id., at § 24(b), p. 86. In Connecticut, self-defense is a justification for engaging in otherwise criminal conduct. See General Statutes § 53a-19; see also P. Robinson, ‘Criminal Law Defenses: A Systematic Analysis,’ 82 Colum. L.Rev. 199, 236 (1982) ([i]n most modern codifications, self-defense is appropriately treated ... as a pure justification).
" ‘Justified conduct is subject to neither condemnation nor punishment because it does not, under the circumstances, violate the prohibition of the law, and indeed may be desired and encouraged. P. Robinson, supra, 82 Colum. L.Rev. at 245. Thus, conduct that is found to be justified is, under the circumstances, not criminal. See State v. Yanz, 74 Conn. 177, 186, 50 A. 37 (1901) (Hamersley, dissenting) (killing in self-defense is not a crime); State v. Scheele, 57 Conn. 307, 314, 18 A. 256 (1889) (reasonable exercise of the right [of self-defense is] justifiable and not a crime at all); Morris v. Platt, 32 Conn. 75, 83 (1864) (no man is liable in a civil suit or criminal prosecution for an injury lawfully committed in self-defense upon an actual assailant); see also Thomas v. Leeke, 725 F.2d 246, 249-50 n. 2 (4th Cir.) (Rooted in the Anglo-American tradition is the belief that a killing in self-defense is not a crime ... [I]t is elementary and fundamental to our jurisprudence that killing or wounding in self-defense is simply no crime at all ...) cert. denied, 469 U.S. 870, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984); Conn. Gen. Stat. Ann. § 53a-16 (West 2001), comment of the commission to revise the criminal statutes (self-defense statute state[s] [a rule] of law under which the use of force is justified and thus not criminal).’ (Emphasis added; internal quotation marks omitted.) State v. Montanez, 277 Conn. 735, 752-53, 894 A.2d 928 (2006)." (Internal citation and quotation marks omitted.) State v. Singleton, 292 Conn. 734, 745-49, 974 A.2d 679 (2009).
Viewing all the testimony from the criminal and habeas trials together, this court does not have confidence in the outcome of the jury verdict. While it is reasonably probable that the jury would not have convicted the petitioner of the first lesser included offense and instead convicted him of one of the three other lesser included offenses, the jury reasonably could also have concluded that the state failed to disprove the petitioner fired his gun in self-defense. This court’s confidence in the outcome of the jury trial is undermined because it is reasonably probable that one of the three other lesser included offenses could have been the ultimate outcome, as well as that the petitioner’s self-defense claim could have prevailed and that he would have been found not guilty of all the lesser included offenses. The credible evidence presented to this court, which was not presented to the jury because of Polan’s deficient investigation, demonstrates the prejudice to the petitioner’s defense.
The court concludes that the petitioner has proven this basis for ineffective assistance by trial counsel and that he is entitled to a new criminal trial on only the manslaughter in the first degree with a firearm charge and any asserted lesser included offenses. The jury verdict of not guilty on the murder charge precludes a second prosecution for that charge because it would violate double jeopardy. See, e.g., State v. Tate, 256 Conn. 262, 280-81, 773 A.2d 308 (2001).
The next area of alleged deficient performance by Polan is that she failed to impeach state’s witnesses, specifically Officer Willoughby, a relative of the victim and his brother, who potentially could have fired the deadly shot. The petitioner alleges that Willoughby had previously been investigated for impropriety and that Polan failed to discredit his testimony. Willoughby did not testify during the habeas trial and there is no evidence of any impropriety by Willoughby while he served as a police officer. Willoughby’s testimony during the criminal trial was relatively limited in scope: he testified about his efforts to locate the petitioner. Willoughby’s testimony during the criminal trial at most was relevant to showing the petitioner’s consciousness of guilt because he fled to another state. The court concludes that the evidence fails to show how Polan was deficient as to Willoughby, as well as how the petitioner was prejudiced thereby.
The petitioner also avers that Polan failed to request information from the state regarding the pending charges against the state’s witnesses. Had Polan obtained this information, then she would have been able to impeach the state’s witnesses. The petitioner’s post-trial brief addresses how Bessie Evans, Detective Willoughby, Roger Williams, and Shawnese could have been impeached. However, any impeachment of these witnesses, as briefed in the post-trial brief, is not connected to the allegations in count two. The claim in count two must be denied.
The petitioner’s next alleged basis for deficient performance by Polan is that she failed to raise or present evidence of a third-party culpability defense. " ‘It is Well established that a defendant has a right to introduce evidence that indicates that someone other than the defendant committed the crime with which the defendant has been charged ... The defendant must, however, present evidence that directly connects a third party to the crime ... It is not enough to show that another had the motive to commit the crime ... nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused.’ (Internal quotation marks omitted.) State v. Arroyo, 284 Conn. 597, 609, 935 A.2d 975 (2007).
" ‘The admissibility of evidence of third-party culpability is governed by the rules relating to relevancy.’ (Internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 564, 747 A.2d 487 (2000). ‘Relevant evidence is evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.’ (Internal quotation marks omitted.) State v. West, 274 Conn. 605, 625, 877 A.2d 787, cert. denied, 546 U.S. 1049, 126 S.Ct. 775, 163 L.Ed.2d 601 (2005); Conn. Code of Evid. § 4-1. 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: ‘Such evidence is relevant, exculpatory evidence, rather than merely tenuous evidence of third-party culpability [introduced by a defendant] in an attempt to divert from himself the evidence of guilt.’ (Internal quotation marks omitted.) State v. Smith, 280 Conn. 285, 304, 907 A.2d 73 (2006). ‘In other words, evidence that establishes a direct connection between a third party and the charged offense is relevant to the central question before the jury, namely, whether a reasonable doubt exists as to whether the defendant committed the offense. Evidence that would raise only a bare suspicion that a third party, rather than the defendant, committed the charged offense would not be relevant to the jury’s determination. 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.’ State v. Arroyo, supra, 284 Conn. at 609-10, 935 A.2d 975.
"It is not ineffective assistance of counsel, however, to decline to pursue a third-party culpability defense when there is insufficient evidence to support that defense. See Dunkley v. Commissioner of Correction, 73 Conn.App. 819, 827, 810 A.2d 281 (2002) (no evidence to support third-party claim, in part, because no one at scene implicated alleged third party), cert. denied, 262 Conn. 953, 818 A.24 780 (2003); see also Floyd v. Commissioner of Correction, 99 Conn.App. 526, 531-32, 914 A.2d 1049 (insufficient evidence to substantiate third-party claim when predicated on alleged testimony of unlocated drug dealers who were also gang members), cert. denied, 282 Conn. 905, 920 A.2d 308 (2007); Santiago v. Commissioner of Correction, 87 Conn.App. 568, 591-92, 867 A.2d 70 (third-party statements did not contain sufficient substance to support viable third-party claim), cert. denied, 273 Conn. 930, 873 A.2d 997 (2005); Alvarez v. Commissioner of Correction, 79 Conn.App. 847, 851, 832 A.2d 102 (insufficient evidence to support third-party culpability defense when petitioner called only one witness at habeas hearing who did not even observe shooting), cert. denied, 266 Conn. 933, 837 A.2d 804 (2003); Daniel v. Commissioner of Correction, 57 Conn.App. 651, 684, 751 A.2d 398 (testimony not sufficient to raise third-party culpability defense because supporting witnesses’ statements were inconsistent), cert. denied, 254 Conn. 918, 759 A.2d 1024 (2000)." Bryant v. Commissioner of Correction, supra, 290 Conn. 514-16.
The petitioner asserts that evidence at the criminal trial showed that multiple people who were armed were at the crime scene and that multiple shots were fired. The medical examiner concluded that Hannons was shot near his right ear and that the bullet exited in his left forehead. The bullet’s trajectory through Hannons’ head was upward, forward, and toward the left. The petitioner, however, was standing in front of Hannons. Polan did not, according to the petitioner’s claim, introduce evidence in support of a third-party culpability defense that asserted Mookie was armed, standing behind Hannons, and responsible for firing the deadly shot. The petitioner further alleges that Polan failed to hire and use an expert witness on third-party culpability.
The court first notes that no expert on third-party culpability presented evidence in the habeas trial. Attorney McKay’s testimony did not add anything to this court’s own conclusions regarding the evidence in support of this claim nor did it assist the court in determining the outcome of this trial. Essentially, the petitioner’s evidence in support of this claim mirrors evidence presented in support of his self-defense claim, although the claim of self-defense would focus on Hannons and Mookie, and the third-party defense would focus on only Mookie. The utility of the evidence showing that Mookie was standing behind Hannons and that Mookie fired the first shot is readily apparent for self-defense and third-party culpability purposes. A proper investigation into the self-defense claim would also have supported a third-party culpability defense and instruction. For the reasons articulated previously in this court’s discussion of Polan’s ineffective assistance regarding self-defense, the court also concludes that Polan was ineffective for not investigating and raising a third-party culpability defense, particularly in light of Jones’s and Walker’s testimonies that described Mookie firing his gun while standing behind the victim, coupled with the location of the gunshot wound on the victim.
The final basis for ineffective assistance by Polan is that she failed to object to instances of prosecutorial impropriety during the closing arguments. The petitioner alleges that he was prejudiced thereby and had Polan objected and requested a curative instruction, then he would have been acquitted. Even assuming for the purpose of discussion that Polan was deficient for not objecting and requesting a curative instruction, the petitioner has not shown how he was prejudiced. To the contrary: the petitioner’s direct appeal explicitly raised a claim of prosecutorial impropriety that was addressed on the merits. State v. Jordan, supra, 117 Conn.App. 162-70. Two of the judges (Flynn, C.J., and Hennessy, J.) on the panel conclude that there was impropriety, but that it did not deprive the petitioner of a fair trial. The third judge (Lavine, J.) disagreed that there was any impropriety in the prosecutor’s closing arguments. This court concludes that the petitioner cannot demonstrate how any failures by Polan regarding the prosecutor’s remarks in his closing argument impacted the outcome of the trial.
CONCLUSION
Based upon the foregoing, the court concludes that the petitioner has proven his claim of ineffective assistance of trial counsel. Judgment shall enter granting the petition for a writ of habeas corpus. The petitioner’s conviction and forty-year sentence for manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a(a), docket number CR06-0048839-S, judicial district of New Haven, are vacated and the matter is remanded to the trial court for further proceedings in accordance with the law. The automatic stay provisions pursuant to Practice Book § 61-11 apply to this judgment.
It is so ordered.