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Johnson v. Commissioner of Correction

Supreme Court of Connecticut

January 8, 2019

CARVAUGHN JOHNSON
v.
COMMISSIONER OF CORRECTION

          Argued September 12, 2018

         Procedural History

         Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Cobb, J.; judgment granting the petition in part, from which the respondent, on the granting of certification, appealed to the Appellate Court, Beach, Keller and Mullins, Js., which reversed in part the judgment of the habeas court and remanded the case with direction to deny the habeas petition in part, and the petitioner, on the granting of certification, appealed to this court. Affirmed.

          Damon A. R. Kirschbaum, with whom were Vishal K. Garg and, on the brief, Desmond M. Ryan, for the appellant (petitioner).

          James A. Killen, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Adrienne Russo, deputy assistant state's attorney, for the appellee (respondent).

          Robinson, C. J., and Palmer, McDonald, D'Auria, Kahn and Ecker, Js.

          OPINION

          D'AURIA, J.

         The petitioner, Carvaughn Johnson, appeals, upon our grant of certification, from the judgment of the Appellate Court reversing in part the judgment of the habeas court, which granted in part his petition for a writ of habeas corpus on the ground that his defense counsel had provided ineffective assistance by failing (1) to adequately prepare and present an alibi defense, and (2) to present a third-party culpability defense. The Appellate Court agreed with the respondent, the Commissioner of Correction, that it was reasonable trial strategy not to present an alibi defense, that the petitioner's claim of inadequate investigation of the alibi defense was unpreserved, and that the petitioner was not prejudiced by counsel's failureto present a third-party culpability defense. Because we hold that it was not deficient performance for defense counsel not to present the alibi defense and that it was not deficient performance or prejudicial for defense counsel not to present the third-party culpability defense, we affirm the judgment of the Appellate Court.

         I

         A

         The jury in the underlying criminal case reasonably could have found the following facts, as set forth in this court's decision in State v. Johnson, 288 Conn. 236, 951 A.2d 1257 (2008), which affirmed the trial court's judgment of conviction on direct appeal: ‘‘The [petitioner] shot and killed the sixteen year old victim, Markeith Strong, on the evening of October 10, 2001, in New Haven. In the weeks prior to that evening, the [petitioner] and the victim had been at odds with each other. Approximately three weeks prior to the shooting, the victim's teenage sister, L'Kaya Ford [L'Kaya], was sitting with the victim at the corner of Read and Shepard Streets when she observed the [petitioner] approach. The [petitioner] walked toward [L'Kaya] and the victim, called the victim ‘a punk,' and threatened to assault him. The victim said nothing, and the [petitioner] walked away.

         ‘‘The victim next encountered the [petitioner] in the late afternoon of September 29, 2001, and the two engaged in a dispute over a bicycle. The victim and Ralph Ford [Ford] were around the intersection of Read and Shepard Streets, where the victim either was riding his bicycle or standing near it, when the [petitioner] stopped him, declared that the bicycle belonged to him and demanded that the victim give it to him. The victim refused and informed the [petitioner] that he had found the bicycle about one month earlier and had fixed it up. The victim told the [petitioner] that he owned the bicycle. The [petitioner] asked for the bicycle a second time, and, when the victim refused, the [petitioner] said, ‘[d]on't make me do something to you.' The [petitioner] then punched the left side of the victim's head twice, which caused a small cut near the victim's left ear. During this encounter, the [petitioner] may have been carrying a gun. The [petitioner] then took the bicycle and rode away.

         ‘‘After this encounter, the victim, accompanied by [Ford], returned home, where his family contacted the New Haven police to report the incident. After speaking with the victim, the police officers radioed a description of the [petitioner] and notice of a possible robbery and larceny. The police did not apprehend any suspect that day. Over the next few days, the [petitioner] approached the victim and [L'Kaya] about the police report, asserted that he was not going to jail, apologized to the victim and told him not to press charges. Toward the end of September, the [petitioner] also expressed concern to his friend, Tashana Milton Toles, about the possible criminal charges that he faced as a result of the bicycle incident and specifically remarked to her that he thought he might be going back to jail.

         ‘‘On the morning of October 10, the [petitioner] approached [L'Kaya] while she was waiting for a bus. The [petitioner], who was driving a black car that [L'Kaya] described as an Acura or Ford Probe, pulled the car alongside of her and accused her of being a snitch. The [petitioner] insulted her, told her he did not like snitches and that she knew what happened to ‘snitches in the hood.' That night, the victim, [L'Kaya], [Ford], and other friends gathered on the corner of Read and Shepard Streets to celebrate [L'Kaya's] birthday. Some of the group, but not [Ford] or the victim, were drinking alcohol and smoking marijuana. Around 10 p.m., the victim and [Ford] departed together. The neighborhood around Read, Shepard, Huntington and Newhall Streets affords many shortcuts through the yards of houses that are occupied by neighborhood residents. On that night, however, [Ford] did not take his usual shortcut but parted from the victim, who took the shortcut home.[1] [Ford] then continued walking alone on Read Street and proceeded around the corner to his house on Newhall Street. Upon arriving at his house, [Ford] heard a gunshot coming from the backyard of the house across the street. [Ford] then entered his front hallway. [Ford] heard someone running from the yard across the street and saw the [petitioner] run into the driveway leading to Ford's house. [Ford] saw the [petitioner] carrying a semiautomatic handgun and entering a black Acura as it exited the driveway. James Baker, who lived near the crime scene, heard someone run past his window, jump the fence outside his house and head into the backyard, toward Huntington Street. Approximately five minutes later, and around 10:20 p.m., Baker heard a single gunshot coming from behind his house. LaMont Wilson, who had left the group earlier than [Ford] and the victim, lived on Read Street and also heard a gunshot from the direction of his backyard, sometime between 10 and 10:45 p.m. Baker called the police at approximately 10:45 p.m. to report the gunshot but did not initially identify himself because he feared retaliation from ‘certain individuals' for contacting the police. Joanie Joyner, a resident of Huntington Street and the victim's next-door neighbor, also heard a loud ‘boom' from the direction of her backyard and then, sometime after 11 p.m., saw something in her yard. At approximately 11:25 p.m., she also called the police.

         ‘‘The [petitioner] contacted Toles by telephone between 9:45 and 10 p.m., told her that he was about five minutes away from her dormitory at Southern Connecticut State University, and asked if he could visit her. Toles agreed. The [petitioner] did not arrive at the dormitory until 11 p.m., at which time he phoned Toles from the lobby, and she came down to the lobby to register him as a visitor at the security desk. The [petitioner] was with a friend, Travis Scott. To enter the dormitory, the [petitioner] was required to provide identification at the security desk where security personnel record the information. The sign-in sheet at Toles' dormitory indicated that she signed the [petitioner] into her building at 11:10 p.m. Shortly after they signed in, a fire alarm required all residents and visitors to evacuate the building. The alarm occurred at approximately 11:30 p.m., and the fire department and university police responded to the scene. The [petitioner] and Scott waited with Toles and her roommate until the university permitted students to reenter the building. They retrieved their identification from the security desk and departed. During the investigation, Detective Daryl Breland of the New Haven [P]olice [D]epartment drove from [Ford's] house to Toles' dormitory, recorded the distance to be about three miles and noted that the trip took approximately ten minutes.

         ‘‘Officers Mark Taylor and Brian Pazsak of the New Haven [P]olice D]epartment were on patrol in the Newhall and Huntington Street area on the night of October 10, 2001, and received the dispatch related to Baker's and Joyner's calls. Police responded first to Baker's call and investigated the general area, but saw nothing amiss. After responding to Joyner's call around 11:35 p.m., the officers found the victim lying face down in Joyner's backyard. The victim appeared to be unconscious and bleeding from the mouth. The officers also found a spent nine millimeter shell casing nearby. New Haven [F]ire [D]epartment personnel were called but were unable to resuscitate the victim, who was pronounced dead at the Hospital of Saint Raphael in New Haven.

         ‘‘Arkady Katsnelson of the [C]hief [M]edical [E]xaminer's [O]ffice performed an autopsy of the victim on October 11, 2001, and determined that he had died of a single gunshot wound to the right side of his face. Katsnelson concluded that the bullet penetrated the victim's face and neck, and completely severed the spinal cord, instantly incapacitating the victim. The [petitioner] was charged with the victim's murder and related crimes . . . and subsequently was tried. After seven days of deliberations, the jury in the [petitioner's] first trial was unable to reach a verdict. Therefore, the trial court, Licari, J., declared a mistrial pursuant to Practice Book § 42-45.'' (Footnote added and footnotes omitted.) Id., 239-44.

         After a second trial, the petitioner was convicted of murder in violation of General Statutes § 53a-54a (a) and carrying a pistol without a permit in violation of General Statutes § 29-35. The petitioner was sentenced to a total effective term of imprisonment of forty-three years. This court affirmed the judgment of conviction. Id., 290.

         B

         Thereafter, the petitioner brought an amended petition for a writ of habeas corpus, claiming that his defense counsel, Scott Jones and Beth Merkin, had provided ineffective assistance and had an actual conflict of interest. Only the ineffective assistance of counsel claim is relevant to the present appeal. Regarding the ineffective assistance of counsel claim, the petitioner alleged that defense counsel failed (1) to present an alibi defense through the testimony of his sister, Joyce Johnson (Joyce), and his friend, Taylor Allen, and (2) to present a third-party culpability defense through the testimony of William Holly.

         With respect to the alibi defense, the petitioner claimed that defense counsel had performed deficiently by failing to adequately prepare and present the testimony of Joyce and Allen. According to the petitioner, if defense counsel had properly investigated his alibi, they would have realized that he was home with Joyce and speaking on the telephone with Allen via his land-line at the time of the murder. With respect to the third-party culpability defense, the petitioner claimed that defense counsel had performed deficiently by failing to present the testimony of Holly, who would have testified that a few days before the murder, he saw Ford with a gun that was similar to the murder weapon.

         After a five day trial, the habeas court ruled in favor of the petitioner with respect to both ineffective assistance of counsel claims but rejected his conflict of interest claim. In its memorandum of decision, the habeas court set forth the following additional facts: ‘‘In the petitioner's first criminal trial, the court declared a mistrial due to a hung jury. The state presented testimony at the first criminal trial from an eyewitness, [Ford], who testified consistent with his statements to the police that he heard a gunshot and saw the petitioner run out of the backyard across the street carrying a black gun in his hand. At the first trial, trial counsel presented a partial alibi defense with testimony indicating that the petitioner was at Southern Connecticut State University around 11 p.m. on the night of the murder. [The defense] did not explain the petitioner's whereabouts between 10 and 11 p.m. After the first trial resulted in a hung jury, a juror indicated that it would have been helpful for the jury to know where the petitioner was at the time of the shooting [which occurred] prior to 11 p.m.

         ‘‘At the petitioner's second criminal trial, the state's key witness, Ford, recanted his prior statement and testimony that he had seen the petitioner running from the crime scene with a gun. Instead, Ford testified that the police forced him to make those statements. Ford's prior inconsistent statements at the first criminal trial were admitted for substantive purposes in the second criminal trial pursuant to [the doctrine set forth in State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986)].

         ‘‘At the second trial, trial counsel's defense strategy was that the state failed to prove the petitioner's guilt beyond a reasonable doubt, that Ford was not credible, and that it was Ford [who] had accidentally shot the victim, who was Ford's friend. The petitioner's trial attorneys disagreed over whether to present an alibi, including the petitioner's whereabouts between 10 and 11 p.m. or a third-party culpability defense; Attorney Jones wanted to present both defenses and Attorney Merkin did not. Attorney Merkin prevailed, and trial counsel did not present either defense at the second trial.'' (Footnote omitted.)

         Regarding the alibi defense, the habeas court stated: ‘‘The petitioner's trial counsel were aware of the two alibi witnesses, Allen and [Joyce], who could testify as to [the] petitioner's whereabouts between 10 and 11 p.m. on the evening of the shooting, but disagreed as to whether . . . an alibi defense should be presented. They were also aware that the jury in the first trial wanted to know where the petitioner was between 10 to 11 p.m.''

         The habeas court specifically found that ‘‘[Joyce] and Allen testified credibly at the habeas trial as to the petitioner's whereabouts on the night of the shooting. [Joyce] testified that the petitioner was home between 5 p.m. and 11 p.m. on the night of the shooting. During that time, [Joyce] was home with her young son and was, for the most part, in the living room in the front of the apartment watching television. From her position, she would have been able to see if the petitioner had left the house during that time. At some point, [Joyce] was aware that the petitioner and his friend were at the house and ordered a pizza. The living room had two large windows facing the driveway, and any movement outside would have activated the motion sensor lights in the driveway. If the petitioner had left through the back door, [Joyce] would have heard him because that door screeched loudly when [it was] opened. At approximately 11 p.m., [Joyce] heard a horn honk outside, and she saw the petitioner leave the house with Allen.''

         The habeas court also found that ‘‘Allen, who also testified at the habeas trial credibly, called the petitioner's cell phone at 10:20 p.m., and he asked her to call his home telephone number. Allen immediately hung up and called the petitioner at home on his landline. Allen and the petitioner spoke for approximately ten to fifteen minutes on the petitioner's home phone. The petitioner then called Allen again from his home telephone around 10:40 p.m. or 10:45 p.m. Shortly thereafter, Allen drove to the petitioner's home, picked him up at approximately 10:50 p.m. or 10:55 p.m. and drove him to Southern Connecticut State University.''

         The habeas court also found ‘‘that trial counsel [were] aware of the statements of [Joyce] and Allen, that their testimony was credible and that production of such testimony at trial would have been helpful to the defense.'' Specifically, it found that ‘‘trial counsel's decision to not call the alibi witnesses was not based on the witnesses' credibility. Both Attorney Jones and Attorney Merkin found [Joyce] and Allen to be credible witnesses. Moreover, the court finds that their testimony would have been helpful to the petitioner's defense that he was home at the time of the shooting.

         ‘‘Attorney Merkin decided to not present [Joyce's] testimony because she was related to the petitioner, the shooting occurred in close proximity to the petitioner's home and it was unclear whether the petitioner was in her direct vision for the entire evening. Attorney Merkin did not present Allen's testimony because she believed that Allen estimated the times of the phone calls, and the petitioner's close proximity to the crime scene would have allowed him to commit the murder despite receiving and making the phone calls at the times indicated by Allen. Trial counsel acknowledged at the habeas trial, however, that they failed to investigate [Joyce's] ability to provide an alibi at the times when the petitioner was not in her direct view.

         ‘‘[Joyce] testified that the motion sensor lights and the screeching back door would have prevented the petitioner from leaving the house without [Joyce's] knowledge. Moreover, the times of the phone calls between Allen and the petitioner were seen on Allen's caller identification. That evidence, if presented, would have established that the petitioner was at home using his landline at the time the shooting occurred. Further, while Attorney Merkin was concerned that the alibi defense would place the petitioner in close proximity to the crime scene, there was already evidence before the jury that the petitioner was at Southern Connecticut State University, close to the crime scene, shortly before 11 p.m. on the night of the victim's murder. In addition, the evidence from the three alibi witnesses covered the time period between 10 and 11 p.m., making it highly unlikely that the petitioner could have committed the shooting.''

         The habeas court was ‘‘particularly influenced by the fact that when trial counsel decided not to submit the petitioner's alibi, they were aware that the first jury was conflicted about the petitioner's guilt, which resulted in a hung jury, and [counsel] knew that the first jury wanted to know where the petitioner was at the time the shooting occurred. While each jury is different, having this information in the petitioner's second criminal trial was a significant bonus to the defense and should have been utilized in determining whether to pursue the alibi defense.''

         Because the habeas court found Joyce and Allen credible and that their testimony would have been helpful to the alibi defense, the habeas court concluded that it was not reasonable trial strategy for defense counsel not to present their testimony, and, thus, defense counsel performed deficiently. Additionally, the habeas court found that the petitioner was prejudiced by defense counsel's deficient performance.

         Regarding the third-party culpability defense, the habeas court stated in relevant part: ‘‘At the second criminal trial, the state established that the bullet recovered from the victim was from a Hi-Point nine millimeter pistol or semiautomatic rifle. At the habeas trial, the petitioner established that Ford showed Holly a black handgun that Ford had tucked into the waistband of his pants on the afternoon of the shooting. Holly believed that a photograph [he was shown, which had been admitted into evidence], of the Hi-Point nine millimeter pistol used in the shooting looked like the gun that he saw Ford carrying. The murder weapon and Ford's gun both had ridges above the handle, and ridges were not a common feature on the guns that Holly had seen.

         ‘‘The petitioner's trial attorneys disagreed as to whether the third-party culpability defense should be presented to the jury. Attorney Jones believed that Holly's testimony should have been presented and Attorney Merkin did not, even though she admitted that Holly's testimony was consistent with the defense theory of the case, which was that Ford accidentally shot the victim.[2] The court finds the third-party culpability defense consisting of the facts that (1) Ford had been the last person seen with the victim, (2) was in close proximity to the location of the shooting at the time of the shooting, and (3) had been seen with a gun matching the description of the murder weapon on the day of the shooting, were consistent with and relevant to the defense theory that it was Ford who shot the victim by accident.

         ‘‘Both Attorney Jones and Attorney Merkin thought that they would not be able to present Holly's testimony without Ford first admitting that he knew Holly. Trial counsel believed, incorrectly, that they needed, and did not have, a foundation to introduce third-party culpability evidence-that is, the testimony of Holly-once [Ford] denied knowing Holly while on the witness stand at the petitioner's criminal trial. At the habeas trial, Attorney Merkin conceded that the presentation of Holly's testimony was not contingent upon Ford admitting that he knew Holly.'' (Footnote added.)

         The habeas court went on to state that ‘‘[t]he standard for determining whether evidence of third-party culpability is admissible is whether the presented evidence is relevant. Here, it was. Holly's testimony regarding Ford's possession of the same type of gun that was used to kill the victim on the day of the shooting, as well as other facts pointing to Ford as the shooter, would have established the necessary factual nexus for a third-party culpability claim regardless of whether Ford knew Holly. The court finds that it is reasonably likely that the trial court would have allowed Holly's testimony.''

         Regarding the argument that Holly might have invoked his fifth amendment privilege against self-incrimination and not testified at the petitioner's criminal trial, the habeas court found that Holly's appointed counsel at the time, Attorney Thomas Farver, ‘‘had communicated to the [trial] court on Holly's behalf that Holly would assert his fifth amendment privilege and refuse to testify if he was called [as a witness due to pending charges of robbery as well as other charges against him, and an unrelated murder investigation]. However, both Attorney Farver and Attorney Merkin testified that they were uncertain that Holly would have been permitted to invoke his fifth amendment privilege at the petitioner's criminal trial due to the fact that Holly's pending charges were unrelated to the petitioner's case. . . .

         ‘‘In the present case, Holly's pending charges were unrelated to the petitioner's case, and there is no indication that Holly's testimony that he saw Ford with a gun on the day of the shooting would have exposed him to any criminal prosecution in the petitioner's or any other case. Fear of potential prosecutorial retaliation in an unrelated case does not constitute sufficient grounds to invoke the fifth amendment, as it is a mere subjective belief, not a reality, and the actual testimony would not have been incriminating in any way. Therefore, the court finds that it is not reasonably likely that Holly would have been permitted to invoke his privilege against self-incrimination in the petitioner's criminal case had trial counsel proffered him as a defense witness to support the third-party culpability defense.'' (Citations omitted.)

         The habeas court determined that because Holly's testimony was relevant, and, thus, admissible as third-party culpability evidence, and not privileged under the fifth amendment, defense counsel were deficient for failing to present a third-party culpability defense. The habeas court further found that the petitioner was prejudiced by defense counsel's actions. Accordingly, the habeas court granted the petitioner's habeas petition with respect to the ineffective assistance of counsel claims.

         C

         The respondent appealed to the Appellate Court. See Johnson v. Commissioner of Correction, 166 Conn.App. 95, 140 A.3d 1087 (2016). The Appellate Court reversed the habeas court's judgment in part.[3] As to the alibi defense, the Appellate Court determined that it was a reasonable, strategic decision not to present an alibi defense, despite the witnesses' credibility, in light of defense counsel's strategy of focusing on the weaknesses in the state's case instead of muddying the waters with an alibi defense that raised ‘‘many reasonable concerns . . . .'' Id., 141. Such concerns included placing the petitioner in very close proximity to the shooting at or near the time of the shooting and allowing the state to argue consciousness of guilt on the basis of the petitioner's having fled from the area of the crime to Southern Connecticut State University. Id., 137 n.16, 142.

         As to the third-party culpability defense, the Appellate Court assumed without deciding that defense counsel's performance was deficient. Id., 117. However, the Appellate Court determined that the petitioner was not prejudiced by defense counsel's deficient performance because it was speculative as to whether any portion of Holly's testimony would have been admissible as third-party culpability evidence; id., 128; and because the petitioner had failed to establish that Holly would not have been entitled to invoke his fifth amendment right against self-incrimination. Id., 126. The Appellate Court determined that it was speculative as to whether the trial court would have viewed the third-party culpability evidence as having proved a direct connection between Ford and the murder. Id., 129-30. Specifically, the Appellate Court reasoned that there was no evidence that Ford was armed with the murder weapon at the scene of the crime at the time of the shooting. Id. Regarding Holly's fifth amendment privilege, the Appellate Court determined that there was insufficient evidence in the record to establish that it was perfectly clear that Holly was not entitled to invoke his fifth amendment privilege. Id., 122, 126.

         Accordingly, the Appellate Court reversed the judgment of the habeas court with respect to the petitioner's ineffective assistance of counsel claims and remanded the case to the habeas court with direction to deny the petition for a writ of habeas corpus as to those claims. Id., 142. We granted certification as to whether (1) the petitioner's claim that defense counsel performed deficiently by failing to adequately investigate the alibi witnesses was reviewable, (2) defense counsel's failure to present an alibi defense constituted deficient performance, and (3) the petitioner was prejudiced by defense counsel's failure to present a third-party culpability defense. See Johnson v. Commissioner of Correction, 324 Conn. 904, 152 A.3d 545 (2017).

         II

         The petitioner claims that the Appellate Court improperly rejected the habeas court's conclusion that defense counsel provided ineffective assistance of counsel. First, the petitioner claims that the Appellate Court improperly held that defense counsel's failure to present alibi witnesses was reasonable trial strategy. Second, he claims that the Appellate Court improperly held that he was not prejudiced by defense counsel's failure to present evidence of third-party culpability.

         ‘‘In reviewing these claims, we are mindful that [t]he habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . 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.'' ...


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