April 4, 2016
from Superior Court, judicial district of Tolland, Oliver, J.
Michael D. Day, with whom, on the brief, was John J. Duguay,
for the appellant (petitioner).
Michele C. Lukban, senior assistant state's attorney,
with whom, on the brief, were Gail P. Hardy, state's
attorney, and David M. Carlucci, assistant state's
attorney, for the appellee (respondent).
DiPentima, C. J., and Sheldon and Bear, Js.
DiPENTIMA, C. J.
petitioner, Trendel Tutson, appeals from the judgment of the
second habeas court, Oliver, J., denying his second
amended petition for a writ of habeas corpus. The petitioner
claims that the second habeas court erred by (1) concluding
that there was no reasonable probability that the result of
the habeas appeal from the first habeas court's denial of
his petition for certification to appeal would have been
different and (2) declining to presume that the petitioner
was prejudiced by his prior habeas appellate counsel's
failures to raise an issue on his petition for certification
to appeal from the first habeas court's ruling. We affirm
the judgment of the second habeas court.
petitioner was charged with attempt to commit murder in
violation of General Statutes §§ 53a-49 and
53a-54a, and assault in the first degree in violation of
General Statutes § 53a-59 (a) (5), for his role in a
shooting that took place between 1 and 1:30 p.m. on March 26,
2001, in Hartford. In order to resolve the issues in this
appeal, we revisit relevant facts concerning the
petitioner's alibi witnesses who testified at his trial
as set forth in State v. Tutson, 278 Conn.
715, 899 A.2d 598 (2006). Approximately eight months before
the petitioner's trial commenced, ‘‘[o]n
August 6, 2001, the [petitioner's trial counsel] sent a
letter to the state . . . identifying Julia Thomas (Julia) as
the only alibi witness. The letter contained no information,
however, regarding the [petitioner's] whereabouts at the
time the crime was committed. The [petitioner's trial
counsel] also provided the state with a three page
investigative report dated April 19, 2001. The report was
based on a personal interview with Julia and a telephone
interview with her son, Terrell Thomas (Terrell). Although
the report referred to the [petitioner's]
‘girlfriend' and listed the name of Rooty [Thomas
(Rooty)] as a subject to be interviewed, it did not name
Rooty as a prospective witness and did not identify her as
the [petitioner's] girlfriend.
trial commenced on March 11, 2002. The state alleged that the
[petitioner] was guilty as a principal or an accessory of
criminal attempt to commit murder and assault in the first
degree. In the bill of particulars . . . the state
specifically alleged that, ‘[o]n [March 26, 2001], at
approximately 1:30 p.m., the [petitioner] was the operator of
a 1997 white Dodge Neon proceeding east on Bond Street'
and that ‘[Philip] Washington was his front seat
passenger in the . . . Neon.' The state further alleged
that the [petitioner] had engaged in a car chase with
[Ernesto] Molina, who was driving a red Volkswagen Jetta
carrying two other passengers, [Jorge Pagan and one other
individual], and had fired a shot at the Jetta, or had
assisted Washington in shooting at the Jetta, thereby causing
physical injury to Molina.The [petitioner], relying on theories of
misidentification and alibi, attempted to convince the jury
that the two eyewitnesses to the shooting [Molina and Pagan]
incorrectly had identified him as the perpetrator because, at
the relevant time, he was in another location and thus could
not have committed the alleged offenses.
the state was nearing the end of its case-in-chief, [the
petitioner's trial counsel] represented to the court,
outside the presence of the jury, that she had given the
state the names of Julia and her sons, Terrell and Tyrone
Thomas (Tyrone), as alibi witnesses. An extended discussion
followed as to whether the [petitioner] had provided the
state with adequate notice to admit the proposed alibi
testimony . . . .
this discussion, [the petitioner's trial counsel]
declared that the [petitioner's] ‘strongest'
alibi witness was Rooty. When the state protested that it had
not been given notice that Rooty would testify as an alibi
witness, [the petitioner's trial counsel] replied that
she had included Rooty on the defense witness list, although
counsel was having difficulty locating her. Upon further
inquiry by the court, [the petitioner's trial counsel]
stated that if Rooty could be located and was allowed to
appear as an alibi witness, she would testify that she and
the [petitioner] went to New Haven following his visit with
Terrell to pick up her child or drop off her nephew. . . .
same day, prior to the testimony of the state's final
witness, the [petitioner's trial counsel] filed the
following notice of alibi with the court: ‘[O]n the
date of [March 26, 2001] at approximately  and 1:20
[p.m.], the [petitioner] . . . was at the home of . . . Julia
. . . and Tyrone . . . located at 827 Wethersfield Avenue,
Hartford . . . .
‘[O]n [March 26, 2001] at approximately 1:20 until [3
or 4 p.m.], the [petitioner] . . . was in the company of
Terrell . . . and Rooty . . . (who are not related to each
other) [en] route to and from Meriden and New Haven . . .
where Rooty . . . had to pick up her . . . child from
the state concluded its case-in-chief, [the petitioner's
trial counsel] reiterated to the court, outside the presence
of the jury, that if Rooty was located and permitted to
appear as an alibi witness, she would testify that the
[petitioner] left Julia's residence at approximately 1:20
p.m. on the day of the shooting and accompanied her to
Meriden and New Haven to pick up her child. . . .
following day, [the petitioner's trial counsel] informed
the court that she finally had located Rooty, who would be
available to testify later that day. The court replied that,
because [the petitioner's trial counsel] had failed to
comply with the applicable rules of practice, it would allow
Rooty to testify as an alibi witness only if the state was
given an opportunity to interview her first. [The
petitioner's trial counsel] initially agreed to this
proposal but then informed the court that she no longer
wanted to offer Rooty as an alibi witness because she had
learned that Rooty was not with the [petitioner] at the time
of the shooting. The court responded that, in those
circumstances, the [petitioner's trial counsel] had
‘an absolute right' to call Rooty as a regular
Julia testified in a manner generally consistent with the
investigative report, stating that the [petitioner] was
visiting her sons, Terrell and Tyrone, when she returned home
from grocery shopping between 12:30 and 1 p.m. on the day of
the shooting and that he left at approximately 1:10 to 1:15
p.m. She further testified that the [petitioner] had stated
upon leaving that his girlfriend was waiting outside in her
car. Julia described the vehicle, which she had seen when
returning to her residence a short time earlier, as a small
white car with a child inside.
subsequently testified that she drove the [petitioner] to
Julia's residence to visit his friend Terrell between
12:30 and 1 p.m. on the day of the shooting. Before she could
testify further, however, the state objected, outside the
presence of the jury, to further questioning of Rooty because
it appeared that she was about to give alibi testimony. [The
petitioner's trial counsel] responded that Rooty was
going to testify that, after she dropped the [petitioner] off
at Julia's residence, she left the area and returned to
pick him up around 2 p.m. When the court noted the conflict
between the proffered testimony and Julia's testimony
that the [petitioner] had left her residence shortly after 1
p.m., the [petitioner's trial counsel] responded that
Rooty was not an alibi witness because she would not be
testifying as to what the [petitioner] did between the time
she dropped him off and the time she picked him up.
Rooty returned to the stand, [the petitioner's trial
counsel] did not inquire further regarding her activities
after she dropped the [petitioner] off at Julia's
the proceedings that followed, the state elicited rebuttal
testimony from Detective Andrew Weaver of the Hartford police
department that Rooty had stated in an interview that was
conducted shortly after the crime was committed that the
[petitioner] had asked her if he could use her Neon on the
morning of March 26, 2001, that she had assented to his
request and that she was unaware of the location of the
vehicle until Weaver had contacted her after the shooting. .
. . In accordance with [a request from the petitioner's
trial counsel], the court thereafter gave an alibi
instruction that the [petitioner] claimed he was elsewhere at
the time of the alleged offenses.
the conclusion of the trial, the jury found the [petitioner]
guilty of attempt to commit murder and assault in the first
degree. The court rendered judgment in accordance with the
jury verdict and sentenced the [petitioner] to twenty years
incarceration.'' (Citation omitted; footnotes
altered.) Id., 721-30.
direct appeal, this court reversed the judgment of the trial
court and remanded the case for a new trial because it
concluded that the trial court had violated the
petitioner's right to present a defense. State
v.Tut-son, 84 Conn.App. 610, 627-28, 854 A.2d
794 (2004). Our Supreme Court reversed the judgment of this
court with direction to consider additional claims that this
court did not resolve. State v.Tutson,
supra, 278 Conn. 751. ...