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Spearman v. Commissioner of Correction

Appellate Court of Connecticut

April 19, 2016

RUFUS SPEARMAN
v.
COMMISSIONER OF CORRECTION

         Argued: September 24, 2015.

          Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, T. Santos, J.; thereafter, the court granted the respondent's motion to dismiss the first two counts of the petition; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court.

          SYLLABUS

         The petitioner, who had been convicted of arson in the first degree and conspiracy to commit arson in the first degree, sought a writ of habeas corpus alleging ineffective assistance of his trial counsel. The petitioner and an accomplice, N, had used gasoline to set fire to a vacant house across the street from the petitioner's home. The petitioner claimed, inter alia, that his trial counsel was ineffective because he failed to call certain members of the petitioner's family to testify as alibi witnesses. The petitioner claimed that the alibi testimony would have rendered implausible or impossible the testimony of K, the sole witness to link him to the fire. K was a police informant who knew the petitioner and testified that she saw the petitioner and N walking toward an area between the vacant house and the house next door to it and carrying a large object with a handle that resembled a bucket or jug. She further testified that she had called out to the petitioner and N, but that they did not respond. K testified that she later heard an explosion and saw that the vacant house was on fire. K and another witness, E, who resided next door to the burning house, testified that they saw the petitioner on the street where the burning house was located after the fire had started, but before firefighters had arrived. K later gave a statement to the police in which she identified the petitioner as having been involved in the fire. The petitioner had sought to present alibi testimony from certain members of his family that he had been at home with them at the time of the explosion and fire. At the habeas trial, the petitioner testified that was asleep in his home at the time of the fire. He claimed that he was awakened by the explosion and heard someone yelling for him to move a car that was parked in front of the family home. He further claimed that he moved the car and then went into the house and watched the fire with his family. The petitioner's trial counsel testified at the habeas trial that although he believed the alibi witnesses were credible, he decided not to call them to testify because the state's case was weak, and it was strategically better to attack the credibility of K as a police informant, who he believed had concocted the story to obtain good will with and obtain financial benefit from the police, and had given conflicting testimony at trial. The petitioner's trial counsel testified that in deciding not to call the alibi witnesses to testify, he also considered the prosecutor's cross-examination skills, the proximity of the petitioner's residence to the crime scene, and the possible bias of the petitioner's family members and their inability to provide a firm alibi for the time period in which the fire was set and started. The habeas court concluded that the petitioner's trial counsel had not rendered ineffective assistance in failing to call the alibi witnesses to testify and that the petitioner had not been prejudiced as a result. The court found that trial counsel had been reasonably concerned about offering the alibi testimony, which did not establish that the petitioner was asleep in his home prior to or when the fire was started. The court assumed that the alibi witnesses were credible but further concluded that their versions of the events and activities contained contradictions and substantive inconsistencies that the state likely would have highlighted on cross-examination. The court determined that the proffered alibi testimony did little to undermine the state's case, and left open the opportunity for the petitioner to have helped set the fire and run across the street to his home before the explosion and fire. The court also ruled inadmissible certain police reports that the petitioner claimed supported the defense theory that K in the past had received leniency from the police. The petitioner claimed that as a result of the ruling that the police reports were inadmissible, the court thereafter dismissed two counts of his habeas petition for failure to make out a prima facie case. The petitioner had alleged in those counts that the state had failed to disclose, and that his trial counsel had rendered ineffective assistance in failing to obtain, certain information concerning K's relationship with the police. The habeas court thereafter rendered judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court.

          Held :

         1. The habeas court did not err in concluding that the decision by the petitioner's trial counsel not to call the petitioner's alibi witnesses to testify did not constitute deficient performance and did not prejudice the petitioner:

         a. Contrary to the petitioner's claim, the substance of the proffered alibi testimony did not render the testimony of K extraordinarily implausible or impossible, as none of the proffered alibi witnesses were entirely neutral or disinterested, and their accounts of the events at issue were contradictory in some respects and left open the possibility that the petitioner had set the fire and run across the street to his home before the alibi witnesses first saw him in the home; moreover, the petitioner's trial counsel reasonably was concerned about offering the alibi testimony because none of the alibi witnesses were able to provide an alibi for the petitioner before the fire, cross-examination might have exposed the possibility that he could have helped set the fire and then returned home, and the proposed alibi testimony would have corroborated the testimony of K and E as to the petitioner's proximity to the fire close to the time that the fire began.

         b. The decision by the petitioner's trial counsel not to call the proposed alibi witnesses did not prejudice the petitioner, as the alibi witnesses provided no direct evidence of the petitioner's location prior to or when the fire began, and the witnesses' testimony would have had at most a minimal negative effect on K's credibility, as her apparent bias and testimonial inconsistencies already had been highlighted before the jury; moreover, the petitioner was known by K, the proposed alibi testimony did not contradict K's testimony that she saw the petitioner and N one hour before the fire began carrying a large object that resembled a bucket or a jug near the vacant house, that K had called out to them at that time, and that K saw the petitioner on the street near the site of the fire after it began but before firefighters had arrived, and other evidence concerning the petitioner's guilt, which was unaffected by the proffered alibi testimony, was offered at the criminal and habeas trials.

         2. The petitioner could not prevail on his claim that the habeas court improperly dismissed two counts of his habeas petition for lack of a prima facie case because the court had improperly ruled inadmissible certain police reports that the petitioner had sought to use in cross-examining K: the connection of the reports to support the petitioner's defense theory that the police in the past had been lenient with K was extremely tenuous, and although the petitioner claimed that the reports showed that K had been arrested in connection with certain incidents and had accused other persons of misdeeds for which those persons had not been prosecuted, the reports involved alleged crimes that were separate from those that K had testified about in the petitioner's criminal trial, and, with the exception of K, did not involve any other witness or party from that criminal trial; moreover, there was no evidence concerning the reports that could explain why no charges had been brought against K or the people she had accused, and the reports were not offered to show that K had been acting as a confidential informant, there having been substantial evidence before the jury in the petitioner's criminal trial about her past activity as a confidential informant.

         James B. Streeto, senior assistant public defender, for the appellant (petitioner).

         Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and David Clifton, deputy assistant state's attorney, for the appellee (respondent).

         Alvord, Sheldon and Bear, Js. BEAR, J. In this opinion the other judges concurred.

          OPINION

          BEAR, J.

          [164 Conn.App. 533] The petitioner, Rufus Spearman, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court erred (1) in not finding that his trial counsel provided ineffective assistance, as set forth in count three of his petition, by failing to call several available alibi witnesses during the petitioner's criminal trial and (2) by sustaining certain evidentiary objections by the respondent, the Commissioner of Correction (commissioner), which led to the court's granting of the commissioner's motion to dismiss counts one and two of the petition for failure to make out a prima facie case. We disagree and, accordingly, affirm the judgment of the habeas court.

         As recited by this court on direct appeal, the facts which the jury reasonably could have found concerning the petitioner's underlying conviction are as follows: " On the morning of October 23, 1996, a fire occurred at a three family home located at 16 Clover Place in New Haven as a result of arson. Earlier that morning, Katherine Hutchings was walking to a store and witnessed the [petitioner] with Terrance Newton walking toward the area located between 16 and 18 Clover Place. The two men were carrying a large object with a handle that resembled a bucket or jug. Hutchings called out to the [petitioner] and Newton as they went toward the back of the houses to ask them why they were up so early. She continued walking when they did not respond.

         " While walking home from the store, Hutchings heard a 'big boom,' and when she turned the corner she saw [164 Conn.App. 534] that the house at 16 Clover Place was on fire. She also saw the [petitioner] and Newton on Clover Place running toward Truman Street. Newton was wearing a coat that was on fire. Hutchings saw Newton drop the coat onto the ground as he ran.

         " Edith Hunter, who lived at 18 Clover Place, also heard a loud sound that she described as 'a big boom.' Hunter ran to her front porch and saw Newton stumbling and running from the porch of the house that was on fire wearing or carrying a smoldering coat. Although Hunter did not see the [petitioner] running from the house . . .[1] she saw the [petitioner] on Clover Place after the fire started, but before the fire department arrived.

         " At approximately 7:45 a.m., Napoleon Gunn, an off-duty firefighter, noticed smoke coming from 16 Clover Place. Gunn shouted to a passerby to call 911 as he attempted to enter the burning house. The New Haven fire department responded to the fire immediately. There was a tremendous volume of fire, which began to ignite . . . Hunter's home next door. Lieutenant James Robinson testified that the volume of the fire in such a short period of time indicated that it was the work of an arsonist.

          [164 Conn.App. 535] " Lieutenant Thomas Heinz and two firefighters went into the burning house equipped with bottled oxygen and air masks. Heinz testified that even through his oxygen mask, he could detect a strong odor of gasoline in the house. The men made their way up to the third floor where a firefighter fell through the floor that had been weakened by the fire. He was trapped momentarily until the other firefighters eventually pulled him from the hole in the floor. The firefighters then were forced to retreat from the third floor. Heinz also testified that the use of an accelerant like gasoline increases the risk posed to firefighters because it accelerates the rate of burn, causes floors to weaken more quickly when poured onto them, and causes the flames to explode and flare when hit with water.

         " New Haven Fire Marshal Frank Dellamura also responded to the fire. He discovered four or five areas in 16 Clover Place where gasoline had been poured but did not ignite. Additionally, in three rooms on the first floor, Dellamura found six or seven plastic milk containers that were partially melted with scorch marks near each of them. Dellamura opined that the fire was the result of an arsonist who had attempted to cause an explosion and to burn the house down. Dellamura also opined that because the fire originated in several areas, it must have been set by more than one person.

         " The [petitioner] was charged by information with arson in the first degree and conspiracy to commit arson in the first degree. The [petitioner] and Newton were tried together. The [petitioner] moved for a judgment of acquittal at the end of the state's case. The motion was denied, and the [petitioner] was subsequently convicted." (Footnote added.) State v. Spearman, 58 Conn.App. 467, 468-70, 754 A.2d 802 (2000). On appeal, this court affirmed the judgment of conviction. Id., 480.

          [164 Conn.App. 536] In his amended three count petition for a writ of habeas corpus filed July 19, 2010,[2] the petitioner claimed in count one that the state had violated his constitutional right to due process by failing to disclose evidence concerning the relationship of the state's witness, Hutchings, to the police. In count two, the petitioner claimed in the alternative that his trial counsel, Michael Dolan, had rendered ineffective assistance by failing to obtain that information concerning Hutchings' relationship with the police that could have been used to impeach her credibility. In count three, the petitioner asserted that Dolan had rendered ineffective assistance by failing to present a viable alibi defense.

         The petitioner's habeas trial began on October 1, 2010, at which time the habeas court, T. Santos, J., heard the testimony of Dolan, the petitioner's uncles, Jashon Spearman (Jashon), and Stacey Spearman (Stacey), and the petitioner's cousin, Shane Hawkins. The trial was continued several times, with the testimony of the petitioner being heard on June 22, 2012, and it concluded with the testimony of the petitioner's cousin, Yvalesse[3] Nelson (Yvalesse), formerly Yvalesse Spearman, on July 10, 2012. Numerous exhibits were received into evidence, including transcripts from the petitioner's criminal trial, reports completed by the officials who had investigated the fire, and photographs of the [164 Conn.App. 537] front and side of the residential building known as 11 and 15 Clover Place.

         Following the presentation of the petitioner's case, the commissioner made an oral motion to dismiss counts one and two pursuant to Practice Book § 15-8, which the court granted. With respect to the third count alleging ineffective assistance of counsel for Dolan's failure to present an alibi defense, the court, in its memorandum of decision filed June 4, 2013, held that the petitioner had failed to satisfy either prong of the Strickland [4] test, and thus denied the habeas petition. The petitioner then filed a petition for certification to appeal from the court's judgment, which the court granted. This appeal followed. Additional facts will be discussed as necessary.

         I

         The petitioner's first claim on appeal is that the habeas court erred in concluding that Dolan did not render ineffective assistance of counsel despite his failure to call several available alibi witnesses whom he believed to be credible.

         We begin with the standard of review applicable to this claim. " The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. . . . Accordingly, [t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. . . . The application of the habeas court's factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review." [164 Conn.App. 538] (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 677, 51 A.3d 948 (2012).

          " 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." (Citations omitted; internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 510, 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).

         A

          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 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 [164 Conn.App. 539] with ordinary training and skill in the criminal law." (Citation omitted; internal quotation marks omitted.) Llera v. Commissioner of Correction, 156 Conn.App. 421, 428-29, 114 A.3d 178, cert. denied, 317 Conn. 907, 114 A.3d 1222 (2015).

          " [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).[5]

          [164 Conn.App. 540] In the present case, the petitioner argues that the habeas court erred in determining that Dolan's failure to call available and known alibi witnesses did not constitute deficient performance. Examining the substance of the proffered witnesses' alibi testimony, the petitioner contends that their accounts render the testimony of the primary state's witness, Hutchings, extraordinarily implausible or impossible. The commissioner counters that the habeas court's determination was legally correct because none of the proffered alibi witnesses were entirely neutral or disinterested, their accounts were contradictory in some respects, and their testimony left open the possibility that the petitioner had set the fire and run across the street to his home before the alibi witnesses first saw him in the home. The commissioner argues that because the habeas court's factual findings are not clearly erroneous, this court must uphold the habeas court's determination that Dolan's decision was not unreasonable. After our thorough review of the record, we disagree with the petitioner that the habeas court erred in finding that Dolan lacked a strategic basis sufficient to justify his failure to present any alibi testimony and, therefore, we conclude that counsel's performance was not deficient.

         We begin by noting that our review of an attorney's performance is especially deferential when his or her decisions are the result of relevant strategic analysis. E.g., Michael T. v. Commissioner of Correction, supra, 319 Conn. 632-33. Thus, " [a]s a general rule, a habeas [164 Conn.App. 541] 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." (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 79, 967 A.2d 41 (2009), citing, inter alia, Eze v. Senkowski, 321 F.3d 110, 129 (2d Cir. 2003) (" the decision not to call a witness must be grounded in some strategy that advances the client's interests" ).

         " [T]he presentation of testimonial evidence is a matter of trial strategy." (Internal quotation marks omitted.) Jackson v. Commissioner of Correction, 149 Conn.App. 681, 701, 89 A.3d 426, cert. granted on other grounds, 313 Conn. 901, 96 A.3d 558 (2014). " Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney . . . without 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." (Citation omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, supra, 306 Conn. 681.

         " [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 . . . ." Id., 681-82. 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. See, e.g., Coward v. Commissioner of Correction, 143 Conn.App. 789, 801, 70 [164 Conn.App. 542] A.3d 1152, cert. denied, 310 Conn. 905, 75 A.3d 32 (2013); Stephen S. v. Commissioner of Correction, 134 Conn.App. 801, 818-21, 40 A.3d 796, cert. denied, 304 Conn. 932, 43 A.3d 660 (2012); see also Harrington v. Richter, 562 U.S. 86, 109, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (" [t]o 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" ).

         Further, we generally have upheld an attorney's choice to call certain witnesses instead of others. See Morant v. Commissioner of Correction, 117 Conn.App. 279, 304, 979 A.2d 507 (tactical decision not to call alibi witness where " she was not a strong witness and other alibi witnesses were available" ), cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009); Hopkins v. Commissioner of Correction, 95 Conn.App. 670, 675, 899 A.2d 632 (attorney " testified that he had thought [the alibi witness called] would present himself as . . . credible . . . and, therefore, he did not consider using either of the two women to bolster [alibi witness'] testimony or the alibi defense" ), cert. denied, 279 Conn. 911, 902 A.2d 1071 (2006); Faust v. Commissioner of Correction, 85 Conn.App. 719, 722, 858 A.2d 853 (attorney " made the strategic decision not to have certain inmates, who were convicted felons, testify because, in his professional opinion, both the petitioner and one of the correctional officers were 'powerful' witnesses" ), cert. denied, 272 Conn. 909, 863 A.2d 701 (2004).

         We recognize, however, that there have been instances when our Supreme Court and this court have held that an attorney's failure to call specific witnesses was deficient performance. For example, in Bryant v. Commissioner of Correction, supra, 290 Conn. 504-505, Bernale Bryant, an African-American man, had been convicted of murder for pulling the decedent out of a car and beating him to death. The testimony of four [164 Conn.App. 543] uncalled witnesses, however, would have supported a defense that a group of Hispanic men had shot the decedent. Id., 507-508. Our Supreme Court held that Bryant's attorney had rendered deficient performance when he did not call these four disinterested witnesses whose testimony, taken as a whole, would have created a credible third party culpability defense that would have provided an alternative to the two questionable eyewitnesses as to " the most basic elements" of the state's case. Id., 519-20.

         Additionally, in Vazquez v. Commissioner of Correction, 107 Conn.App. 181, 185-86, 944 A.2d 429 (2008), the habeas court determined that defense counsel's performance was deficient for failing to provide to the jury the credible testimony of Anderson Vazquez and his girlfriend[6] that Vazquez had been asleep in their apartment at the time the crime was committed. On the commissioner's appeal, we noted that no evidence demonstrated that defense counsel's choice was based on a reasonable exercise of professional judgment; [7] rather, Vazquez' testimony suggested that defense counsel failed to prepare the defense because he did not believe that the robbery victim would appear for trial. Id., 186. Consequently, we dismissed the commissioner's appeal. Id., 187.

         In Siano v. Warden, 31 Conn.App. 94, 99-101, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 [164 Conn.App. 544] (1993), James Siano's trial counsel, on cross-examination obtained admissions undermining the credibility of the state's primary witness, an alleged coconspirator of Siano. Siano's trial counsel also offered the testimony of Siano's mother and sister to support the defense that Siano's recent injuries made it unlikely that he could have committed the crime at issue as alleged by that coconspirator. Having failed to subpoena either the surgeon who treated Siano or his medical records, however, Siano's trial counsel was unable to offer either to provide medical evidence in support of this defense. Id., 99-102. Under these circumstances, armed with the testimony of both the surgeon and an attorney offering expert witness testimony concerning the objective unreasonableness of Siano's trial counsel's choice, the habeas court discounted Siano's trial counsel's proffered reasons for this failure and found that his performance was deficient. Id., 103-104.

         Affirming the habeas court's determination that Siano's trial counsel had provided ineffective assistance, we stated: " After examining the testimony as to the extent of [Siano's] injuries, the habeas court could have logically concluded that the testimony would have provided [Siano's] claims with credibility, casting significant doubts on the state's case. In light of this, we agree with the habeas court's finding, supported by the evidence, that counsel's failure to call the surgeon was not a strategic or tactical decision. His alleged strategy left [Siano] without a key witness and a viable defense." Id., 104-105.

         Finally, we turn to the legal principles governing our review of the proffered testimony of the petitioner's alibi witnesses. Our Supreme Court has clarified that in Connecticut, the crux of the alibi defense is to create a reasonable doubt as to key elements of the state's case. " [A]lthough an alibi is sometimes spoken of as a defense, it operates, in this state, to entitle an accused [164 Conn.App. 545] to an acquittal when he has so far proved his alibi that upon all the evidence a reasonable doubt of his guilt has been raised. While the state is bound to prove beyond a reasonable doubt all the essential elements of the crime charged, including proof of the presence of the accused at the scene of the crime, where an alibi is asserted and relied upon as a defense, the accused is entitled to have the jury instructed that the evidence offered by him upon that subject is to be considered by them in connection with all the rest, in determining whether he was present, and that if a reasonable doubt upon that point exists, it is their duty to acquit." (Internal quotation marks omitted.) State v. McKnight, 191 Conn. 564, 584, 469 A.2d 397 (1983). Circumstantial evidence can be used to support, or disprove, an alibi defense. See State v. Tutson, 278 Conn. 715, 733, 736-37, 899 A.2d 598 (2006).

         As other courts have noted, alibi testimony is frequently the best way to counter eyewitness testimony of a defendant's involvement in a crime. See Griffin v. Warden, 970 F.2d 1355, 1359 (4th Cir. 1992) (" [e]yewitness identification evidence . . . is precisely the sort of evidence that an alibi defense refutes best" ); State ex rel. Wearry v. Cain, 161 So.3d 620, 621-22 (La. 2015) (same); cf. State v. Jefferson, 67 Conn.App. 249, 264, 786 A.2d 1189 (2001) (" [w]hen a case [would be] narrowed to the [issue of] credibility of [witnesses] . . . in those circumstances there [is] greater, not less, compelling reason for exploring all avenues which would shed light on which of the . . . witnesses [is] to be believed" [internal quotation marks omitted]), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002). Consequently, absent a sufficient tactical reason, the failure to call an alibi witness can constitute deficient performance. See Vazquez v. Commissioner of Correction, supra, 107 Conn.App. 187; see also, e.g., Mosley v. Atchison, 689 F.3d 838, 849 (7th Cir. 2012) (failure to [164 Conn.App. 546] investigate and call alibi witnesses who would place petitioner across street at time fire started amounted to deficient performance); Pena-Martinez v. Duncan, 112 Fed.Appx. 113, 114 (2d Cir. 2004) (" [a]lthough a decision not to call particular witnesses is typically a question of trial strategy, an unexplained failure to call credible alibi witnesses cannot be considered reasonable trial strategy" ); Lopez v. Miller, 915 F.Supp.2d 373, 428-30 (E.D.N.Y. 2013) (counsel's performance deficient where failure to call alibi witnesses based solely on concerns about perception of bias, proximity to crime, and vagueness of time). Where the proffered witnesses would fail to account sufficiently for a defendant's location during the time or period in question, however, a failure to present certain alibi witnesses has been upheld as reasonable under the circumstances. See Jackson v. Commissioner of Correction, supra, 149 Conn.App. 701 (attorney performance not deficient when alibi testimony could not account for petitioner's whereabouts for one hour period " immediately before, during, and after the robbery" ).

         The habeas court summarized the proffered alibi and other witnesses' testimony as follows: " Attorney Dolan testified in the present matter that the petitioner told him that he did not commit the crimes he was charged with and that he was asleep across the street from where the fire occurred. Attorney Dolan utilized a private investigator, Daniel Blackman, a retired New Haven police officer, who interviewed eyewitnesses and potential alibi witnesses, took statements and prepared a report of his investigation.[8] The potential alibi witnesses were family members of the petitioner. Attorney Dolan testified that he met with some or all of these potential alibi witnesses and found them to be credible. [164 Conn.App. 547] The defense strategy eventually formulated by Attorney Dolan focused on showing that Ms. Hutchings, a frequent police informant whose statement to the police was the sole link connecting the petitioner to the arson, was concocting a story to gain good will with the police and obtain some financial benefit.[9] The trial strategy did not exclude calling alibi ...


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