Opinion
AC 45569
04-23-2024
Cecil GRANT v. COMMISSIONER OF CORRECTION
Evan Parzych, assistant public defender, with whom, on the brief, was Katharine S. Goodbody, assistant public defender, for the appellant (petitioner). Laurie N. Feldman, assistant state’s attorney, with whom, on the brief, were Sharmese L. Walcott, state’s attorney, and Donna Fusco, deputy assistant state’s attorney, for the appellee (respondent). Charles D. Ray and Justyn P. Stokely, Hartford, filed a brief for The Innocence Project as amicus curiae.
Evan Parzych, assistant public defender, with whom, on the brief, was Katharine S. Goodbody, assistant public defender, for the appellant (petitioner).
Laurie N. Feldman, assistant state’s attorney, with whom, on the brief, were Sharmese L. Walcott, state’s attorney, and Donna Fusco, deputy assistant state’s attorney, for the appellee (respondent).
Charles D. Ray and Justyn P. Stokely, Hartford, filed a brief for The Innocence Project as amicus curiae.
Prescott, Cradle and Suarez, Js.
The listing of judges reflects their seniority status on this court as of the date of oral argument.
CRADLE, J.
58The petitioner, Cecil Grant, appeals following the granting of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus, in which he alleged due process violations and ineffective assistance of counsel. On appeal, the petitioner claims that the habeas court improperly (1) concluded that the eyewitness identification evidence presented at his criminal trial did not violate his due process rights; (2) concluded that he had not established that his trial counsel was ineffective for having failed to consult with or offer the testimony of an eyewitness identification expert, for having failed to investigate the issue of 59phone calls the petitioner allegedly made from a witness’ cell phone immediately prior to the crime, and for having failed to investigate and to present potential alibi witness testimony; and (3) declined to credit the testimony of two expert witnesses at the habeas trial. We affirm the judgment of the habeas court.
The following facts, as set forth by this court in upholding the petitioner’s conviction on direct appeal, and procedural history are relevant to our resolution of the petitioner’s claims. "At approximately 10 p.m. on April 30, 2011, the [petitioner] and two other individuals, Derek Newkirk and Mike Anderson, were visiting with Gustin Douglas at Douglas’ apartment at … Mary Shepard Place in Hartford. The [petitioner] and Newkirk told Douglas that they needed money, and the group discussed restaurants in the area that might have delivery persons who retained payments between deliveries. The [petitioner] used Douglas’ cell phone to order a pizza from Pizza 101 on Albany Avenue in Hartford. While waiting for the delivery person to arrive, the [petitioner] displayed a revolver, waving it around and passing it between himself and Newkirk before putting it into the pocket of his hooded sweatshirt. Newkirk and the [petitioner] went outside to meet the delivery driver; Douglas and Anderson remained inside.
"At approximately 11 p.m., the victim, a delivery person for Pizza 101, was dispatched to make a delivery to Mary Shepard Place. She initially had trouble finding the address. She called the [phone] number indicated on the order slip, and a man answered and provided her with directions. When she arrived at the address, the [petitioner] approached the front passenger door of the victim’s vehicle. Newkirk stood near the [petitioner]. Both men’s faces were uncovered and clearly visible to the victim. The [petitioner] spoke with the victim through the open passenger side window, asking her several times if she had change; the victim 60responded each time that she did not. The [petitioner] then displayed a revolver, which he placed against the passenger door, stating, ‘[W]ell, gimme this.’ Simultaneously, the [petitioner] attempted to open the front passenger door but was unable to do so.
"After seeing the [petitioner] holding the revolver, the victim started to drive away, at which time the [petitioner] began shooting. Five bullets entered the car, striking the victim in the neck, chin, shoulder and arm. Because Mary Shepard Place is a dead-end street, the victim had to turn her vehicle around and pass by the [petitioner] and Newkirk in order to get away. The victim drove herself to a hospital. The [petitioner] and Newkirk returned to Douglas’ apartment. Douglas, who had heard the gunshots, observed that the [petitioner] and Newkirk were acting ‘[l]ike they were nervous’ when they returned, but he did not discuss with them what had happened outside.
"The police were dispatched to the hospital, where they photographed and secured the victim’s vehicle. A detective later interviewed the victim about the shooting. The victim described her shooter as a black male of light to medium complexion, short hair, skinny build, five feet, six inches tall, between sixteen and seventeen years old, wearing jeans and a black hooded sweatshirt over a shirt with a design on it. The police investigated the cell phone number that the victim had called to obtain directions prior to the shooting, which eventually led them to speak with Douglas. Douglas provided the police with details about his interactions with the [petitioner] and Newkirk on the night of the shooting, which led the police to consider them as suspects. Douglas also identified photographs of the [petitioner] and Newkirk in police photographic arrays. The police later asked the victim to look at photographic arrays, from which the victim was able to identify both the [petitioner] and Newkirk.
61"The [petitioner] was arrested and charged with conspiracy to commit robbery in the first degree, attempt to commit robbery in the first degree, and assault in the first degree. [Following a jury trial on May 14, 15 and 18, 2012], [t]he jury found the [petitioner] guilty of all the charges. [On July 13, 2012], [t]he court … sentenced the [petitioner] to a total effective term of sixty years of incarceration, suspended after forty years, followed by five years of probation." State v. Grant, 154 Conn. App. 293, 296–98, 112 A.3d 175 (2014), cert. denied, 315 Conn. 928, 109 A.3d 923 (2015). At all times during his criminal trial, the petitioner was represented by Attorney Kirstin B. Coffin. Thereafter, the petitioner appealed, and this court affirmed his conviction. See id., at 296, 112 A.3d 175. On August 2, 2019, the petitioner filed his operative third amended petition for a writ of habeas corpus in this action, claiming that his due process rights had been violated because (1) "the conviction was based primarily on eyewitness identification evidence now known to be suggestive and/or unreliable … [(2)] the jury was deprived of information crucial to its ability to assess the reliability of the identification made by the primary eyewitness, [the victim] .. [and (3)] the jury instruction regarding eyewitness identification was scientifically unsound." He also claimed that his constitutional right to the effective assistance of counsel had been violated because his trial defense counsel "failed to consult with and/or present an eyewitness identification expert"; "failed to adequately and properly investigate the issue of the phone calls made from … Douglas’ [phone] on the night of April 30, 2011, to prove or disprove the account provided by … Douglas"; and 62"failed to adequately investigate and/or present witnesses that confirmed that the petitioner was not at … Mary Shepard Place during the night of April 30, 2011, including but not necessarily limited to Vanessa … Cooper [and her children]."
In his return, the respondent, the Commissioner of Correction, alleged that the petitioner's claim regarding the jury instruction on eyewitness identification was procedurally defaulted. The respondent denied or left the petitioner to his proof as to all of the remaining allegations of his petition.
The majority is not entirely clear regarding whether Coffin's failure to investigate or interview the other potential alibi witnesses amounted to constitutionally deficient performance. Such a conclusion may be inferred from the majority's statement in part II C of its opinion that, "we agree with the petitioner that Coffin should have, at a minimum, met with and interviewed Cooper’s children to ascertain the potential benefit, if any, to having them testify on the petitioner's behalf" That statement is then followed by a determination that the petitioner nonetheless was not prejudiced. See part II C of the majority opinion.
It is equally plausible, however, that the majority merely assumes deficient performance and rejects the petitioner’s claim on the prejudice prong of Strickland. See Crocker v. Commissioner of Correction, 220 Conn App. 567, 583, 300 A.3d 607 ("[b]ecause both prongs [of the Strickland test] … must be established for a habeas petitioner to prevail, a court may [deny] a petitioner's claim if he fails to meet either prong" (internal quotation marks omitted)), cert. denied, 348 Conn. 911, 303 A.3d 10 (2023). Because I would conclude that counsel’s performance was deficient with respect to her investigation of additional alibi witnesses, I include that analysis as part of my discussion of the petitioner's claim
In his third amended petition, the petitioner also claimed that he was actually innocent and that his trial counsel was ineffective in failing to "investigate and properly present a third-party culpability defense"; in failing to "conduct a timely and adequate investigation, including but not limited to investigating the petitioner’s alibi defense, investigating … Douglas’ involvement, and investigating the physical crime scene"; and in failing to "pursue the testing of DNA evidence or other evidence collected from the victim's automobile." The petitioner explicitly abandoned these additional ineffective assistance of counsel claims in his posttrial brief to the habeas court. As to his claim of actual innocence, the petitioner withdrew it prior to trial.
The police identified Douglas' mother as the actual subscriber of the cell phone later associated with Douglas. When questioned by the police, Douglas' mother told them that the cell phone was used by Douglas. For ease of discussion, I refer to the phone as Douglas’.
Following a trial, the habeas court, M. Murphy, J., issued a memorandum of decision dated April 19, 2022, in which it rejected all of the petitioner’s claims and denied his petition. The habeas court thereafter granted the petitioner’s petition for certification to appeal to this court. Additional facts and procedural history will be set forth as necessary.
I
The petitioner first claims a violation of his right to due process under the state and federal constitutions. He claims that his right to due process was violated because the eyewitness identification evidence presented at his criminal trial was obtained through the use of unduly suggestive procedures by the police and was not reliable under the totality of the circumstances. The petitioner also claims that the jury instructions on eyewitness identification testimony at trial were "woefully inadequate." We address each of these claims in turn.
A
[1] The petitioner first claims that his right to due process was violated because the eyewitness identification evidence presented at his criminal trial was obtained by 63unduly suggestive procedures and was not reliable under the totality of the circumstances. Specifically, the petitioner argues that "the habeas court erred in concluding that a conviction based on a single eyewitness identification without [the] benefit of expert testimony does not violate due process." Although the petitioner de- votes most of his appellate brief in this regard to discussing the science of eyewitness identification evidence and the factors that courts consider in addressing the reliability of that evidence, the petitioner’s appellate counsel acknowledged, at oral argument before this court, that this court on direct appeal had addressed the petitioner’s claim that the eyewitness identification of him was unreliable and unduly suggestive. Counsel conceded that he was not arguing that the eyewitness identification cases that were decided following the date of the petitioner’s conviction applied retroactively to his case. He clarified that the petitioner’s due process claim is "intricately intertwined with the ineffective assistance of counsel claim because the record wasn’t sufficiently developed, and there wasn’t a sufficient record for challenging that on appeal. … The due process claim is inextricably tied into the ineffective assistance … and he was deprived of due process because counsel was ineffective and did not preserve or pursue or create a record for the due process claim."
Because this court on direct appeal addressed the petitioner’s claim that the eyewitness identification of him was unreliable and unduly suggestive, the doctrine of res judicata bars any further consideration of that claim in the absence of an allegation of a new legal ground, new facts or new evidence that was not reasonably available at the time of the petitioner’s direct appeal. See Tatum v Commissioner of Correction, 211 Conn. App. 42, 49, 272 A.3d 218, cert. granted, 343 Conn. 932, 276 A 3d 975 (2022). When asked at oral argument what had changed since the petitioner’s direct appeal as to the due process claim, the petitioner's appellate counsel reiterated his claim that the petitioner’s criminal trial counsel had rendered ineffective assistance.
In Strickland v. Washington, supra, 466 U.S. at 687, 104 S.Ct. 2052, the United States Supreme Court set forth a two-pronged test for evaluating claims of ineffective assistance of counsel: "First, [a petitioner] must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the [petitioner] by the [s]ixth [a]mendment [to the constitution of the United States]. Second, the [petitioner] must show that the deficient performance prejudiced the defense." (Internal quotation marks omitted.) Id.
[2] Our Supreme Court has explained that, "[i]n habeas corpus proceedings, courts often describe constitutional64 claims that are not tethered to a petitioner’s sixth amendment right to counsel as freestanding." (Internal quotation marks omitted.) Saunders v. Commissioner of Correction, 343 Conn. 1, 25–26, 272 A.3d 169 (2022). When pressed, the petitioner’s appellate counsel failed to articulate any distinction between the petitioner’s purported freestanding due process claim and his ineffective assistance of counsel claim. In light of appellate counsel’s acknowledgement that the due process claim is not, in fact, freestanding but, rather, is based exclusively on the ineffective assistance of counsel claim, we conclude that the habeas court did not err in rejecting the due process claim. See Sanchez v. Commissioner of Correction, 203 Conn. App. 752, 760–61, 250 A.3d 731 ("[i]t is axiomatic that [w]e may affirm a proper result of the trial court for a different reason" (internal quotation marks omitted)), cert. denied, 336 Conn. 946, 251 A.3d 77 (2021). We will address the petitioner’s ineffective assistance of counsel claims in part II of this opinion.
B
[3] The petitioner also claims that his right to due process was violated in that "the jury instructions on eyewitness identification testimony at [his] trial were woefully inadequate." The respondent, the Commissioner of Correction, contends that this claim is not a due process claim, and, even if it were, the habeas court properly determined that it was procedurally defaulted. We agree with the respondent.
The habeas court explained that, in "[t]he petitioner’s due process claim, [he] argues that the jury instructions provided at the underlying criminal trial were constitutionally inadequate because they failed to address additional information regarding the science and research behind eyewitness identification …. This claim is subject to procedural default and was not raised at a 65prior proceeding. Therefore, the petitioner must demonstrate good cause as to why the claim was not raised and demonstrate any prejudice resulting therefrom. The petitioner claims that cause and prejudice exist for the default because the claim is premised on [Coffin’s] failure to retain and utilize an eyewitness expert, which led to a limited record for appellate counsel to rely upon. However, the information regarding the science and research behind eyewitness identification was relied upon in the petitioner’s appeal where he challenged both the suggestibility of the identification procedures utilized by the police and the reliability of the victim’s identification." Noting the principle that "[t]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default," the court concluded that "[t]he petitioner failed to carry his burden of demonstrating good cause for having failed to raise [this] claim directly." (Internal quotation marks omit ted.) The court further concluded that "the petitioner failed to show that he suffered actual prejudice as a result by demonstrating that the alleged impropriety worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." (Emphasis omitted; internal quotation marks omitted.) On those bases, the habeas court concluded that this claim was procedurally defaulted.
On appeal, the petitioner argues that, because the jury "did not have the benefit of expert testimony to contextualize [the victim’s] identification of [the petitioner] … [t]he trial court … should have provided comprehensive and focused jury instructions." (Internal quotation marks omitted.) He contends that, "[t]hough the court’s instructions included several buzzwords borrowed from the science of eyewitness identification, they provided hardly any additional context 66or information, and failed to inform the jury of the robust science and research supporting this area of inquiry." He continues at length in his appellate brief as to how and why the jury instructions were deficient.
The petitioner fails, however, to challenge the habeas court’s conclusion that his claim pertaining to the jury instructions was procedurally defaulted. Because the petitioner has failed to challenge the basis on which the court relied in rejecting this claim, we are unable to afford it review. See U.S. Bank, N.A. v. Armijo, 195 Conn. App. 843, 846, 228 A.3d 131 (2020).
II
The petitioner next claims that the habeas court improperly rejected his claim that his trial counsel, Coffin, rendered ineffective assistance by failing to consult with an eyewitness identification expert or to offer the testimony of such an expert; to investigate the issue of phone calls the petitioner allegedly made from a witness’ cell phone immediately prior to the crime; and to investigate and present potential alibi witness testimony. We disagree.
[4–6] We set forth the well settled standard of review and law related to claims of ineffective assistance of counsel. "It is well established 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. … Historical facts constitute a recital of external events and the credibility of their narrators. … Accordingly, [t]he habeas [court], 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." (Internal quotation marks omitted.) Skakel v. Commissioner of Correction, 329 67Conn. 1, 40–41, 188 A.3d 1 (2018), cert. denied sub nom. Connecticut v. Skakel, — U.S. —, 139 S. Ct. 788, 202 L. Ed. 2d 569 (2019).
[7, 8] "Under the sixth amendment to the United States constitution, a criminal defendant is guaranteed the right to the effective assistance of counsel. Thus, because [a]n accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair .. [t]he 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…
[9, 10] "To determine whether a defendant is entitled to a new trial due to a breakdown in the adversarial process caused by counsel’s inadequate representation, we apply the familiar two part test adopted by the court in Strickland [v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction has two components. First, the defendant must show that counsel’s performance was deficient. This requires [a] showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the [s]ixth [a]mendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires [a] showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction … resulted from a breakdown in the adversary process that renders the result unreliable." (Citations omitted; internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. at 29–30, 188 A.3d 1.
[11–15] 68To prevail on the first prong, the petitioner "must show that, considering all of the circumstances, counsel’s representation fell below an objective standard of reasonableness as measured by prevailing professional norms .. [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 over-come the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. … Indeed, our Supreme Court has recognized that [t]here are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. … [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 …. " (Emphasis omitted; internal quotation marks omitted.) Morales v. Commissioner of Correc- tion, 220 Conn. App. 285, 305–306, 298 A.3d 636, cert. denied, 348 Conn. 915, 303 A.3d 603 (2023).
[16–22] Furthermore, "[t]he right to the effective assistance of counsel applies no less to the investigative stage of a criminal case than it does to the trial phase." Skakel 69v. Commissioner of Correction, supra, 329 Conn. at 32, 188 A.3d 1. Counsel’s "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; [but] strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments." (Internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 680, 51 A.3d 948 (2012). "[A] court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further… In addition, in contrast to our evaluation of the constitutional adequacy of counsel’s strategic decisions, which are entitled to deference, when the issue is whether the investigation supporting counsel’s [strategic] decision to proceed in a certain manner was itself reasonable … we must conduct an objective review of [the reasonableness of counsel’s] performance …. Thus, deference to counsel’s strategic decisions does not excuse an inadequate investigation
….
[23, 24] "Although the reasonableness of any particular investigation necessarily depends on the unique facts of any given case … counsel has certain baseline investigative responsibilities that must be discharged in every criminal matter. It is the duty of the [defense] lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case ….
[25] 70"Of course, the duty to investigate does not force defense lawyers to scour the globe on the off chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste. … In other words, counsel is not required to conduct an investigation that promise[s] less than looking for a needle in a haystack, when a lawyer truly has reason to doubt there is any needle there." (Citations omitted; emphasis in original; internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. at 32-34, 188 A.3d 1. However, "common sense dictates that, when the stakes are highest—when the criminal charges are most serious, exposing the defendant to the most lengthy of prison terms—the importance of a thorough pretrial investigation is that much greater." Id., at 53, 188 A.3d 1.
[26–33] To satisfy the prejudice prong, "[t]he defendant must establish … that counsel’s constitutionally inadequate representation gives rise to a loss of confidence in the verdict. In evaluating such a claim, the ultimate focus of [the] inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results, … Of course, a reviewing court does not conduct this inquiry in a vacuum. Rather, the court must consider the totality of the evidence before the judge or jury. … Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the [petitioner] has met the burden of showing that the decision reached would reasonably likely have been different absent the errors. … Furthermore, because 71our role in examining the state’s case against the petitioner is to evaluate the strength of that evidence and not its sufficiency, we do not consider the evidence in the light most favorable to the state. … Rather, we are required to undertake an objective review of the nature and strength of the state’s case. … In assessing prejudice under Strickland, the question is not whether a court can be certain counsel’s performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. … Instead, Strickland asks whether it is reasonably likely the result would have been different. … The likelihood of a different result must be substantial, not just conceivable." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., at 38–40, 188 A.3d 1. With these principles in mind, we address the petitioner’s claims of ineffective assistance of counsel in turn.
A
[34] The petitioner first claims that the habeas court erred in concluding that he had not established that Coffin rendered ineffective assistance when she failed to consult with, or offer the testimony of, an eyewitness identification expert. We are not persuaded.
In rejecting the petitioner’s claim, the court recounted Coffin’s testimony that "she was aware of the science regarding the reliability of eyewitness identification that was available at that time because she requested a jury instruction on it, but she did not hire or consult with an eyewitness expert. [and] that, at the time of the petitioner’s case, the science was still relatively new, there was no standard or expectation at that time to call an eyewitness identification expert and such an expert would typically not have been admissible at trial."
72The court agreed, explaining that, at the time of the petitioner’s criminal trial, "controlling law on the issue of eyewitness identification was State v. Kemp, 199 Conn. 473, 507 A.2d 1387 (1986), overruled in part by State v. Guilbert, 306 Conn. 218, 49 A.3d 705 (2012), in which our Supreme Court remarked that the reliability of eyewitness identification is within the knowledge of jurors and expert testimony generally would not assist them in determining the question. … Such testimony is also disfavored because … it invades the province of the jury to determine what weight or effect it wishes to give to eyewitness testimony. (Citation omitted; internal quotation marks omitted.) Id., at 477, 507 A.2d 1387." The habeas court explained that it was not until "[a]fter the petitioner’s criminal trial [that] our Supreme Court decided Guilbert, which overruled Kemp, holding that Kemp was out of step with the widespread judicial recognition that eyewitness identifications are potentially unreliable in a variety of ways unknown to the average juror." (Internal quotation marks omitted.)
The court concluded that the petitioner had failed to prove that Coffin "performed deficiently by failing to present an expert on the issue of eyewitness identification because the law in effect at the time of the petitioner’s criminal trial discouraged the use of such expert testimony." The court further concluded that the petitioner had not "proven that the jury in his case would have found the victim’s identification to have been unreliable and thus failed to establish .. a reasonable probability .. that the outcome of the proceedings would have been different had the jury heard such expert testimony."
On appeal, the petitioner argues that Coffin’s decision not to consult with or offer the testimony of an eyewitness identification expert was not a reasonable and informed strategic decision made after a thorough investigation of the law and facts but, instead, was 73merely "based on her lack of knowledge regarding the admissibility of eyewitness identification expert testimony …. " In so arguing, the petitioner ignores the fact that, at the time of his criminal trial, Kemp, which held that expert testimony generally would not assist a jury in considering eyewitness identification evidence, was the controlling law in Connecticut.
Because Coffin’s decision not to consult with or present the testimony of an eyewitness expert was not inconsistent with the law at the time of the petitioner’s trial, we agree with the habeas court’s determination that her decision was reasonable. See Ledbetter v. Commissioner of Correction, 275 Conn. 451, 462, 880 A.2d 160 (2005) (counsel "performs effectively when he elects to maneuver within the existing law" (internal quotation marks omitted)), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S. Ct. 1368, 164 L. Ed. 2d 77 (2006). We, therefore, conclude that the habeas court properly determined that the petitioner had not established deficient performance by Coffin regarding her failure to consult with or offer the testimony of an eyewitness identification expert.
Because we affirm the habeas court's determination that the petitioner failed to prove that Coffin's performance was deficient in not presenting testimony from an eyewitness identification expert, we need not also address the petitioner's challenge to the court’s determination that he failed to prove prejudice.
Siemionko testified at the criminal trial that the phone records showed that the phone associated with Douglas was used to "call Pizza 101 prior to the pizza deliver[y] by [the victim]."
B
The petitioner also claims that the habeas court erred in concluding that he had not established that Coffin rendered ineffective assistance by failing to investigate the issue of phone calls the petitioner allegedly made from Douglas’ cell phone immediately prior to the attempted robbery and assault. We agree that the habeas court erred in determining that Coffin’s performance was not deficient in this regard but nonetheless 74conclude that the petitioner was not prejudiced by Coffin’s deficient performance.
In the petitioner’s third amended petition for a writ of habeas corpus, he claimed that Coffin’s deficient performance violated his constitutional right to the effective assistance of counsel when she failed "to adequately and properly investigate the issue of the phone calls made from … Douglas’ [phone] on the night of April 30, 2011, to prove or disprove the account provided by … Douglas," and that "[t]here is a reasonable probability that— but for … counsel’s deficient performance … the result of the petitioner’s criminal trial would have been … more favorable to the petitioner."
At the habeas trial, the petitioner offered into evidence the criminal trial transcripts, which included the testimony of Detective William J. Siemionko of the Hartford Police Department. Siemionko had testified at the petitioner’s criminal trial that, shortly after the shooting, he obtained Douglas’ phone records to determine who owned the phone associated with the phone number on the pizza order slip. Although the state did not offer those records into evidence, Siemionko testified that someone using Douglas’ phone "did call Pizza 101 prior to the pizza deliver[y] by [the victim]" and that it had received a phone call from the victim at 12:02 a.m. on May 1, 2011, from the victim’s phone.
At the habeas trial, the petitioner also presented the testimony of Michael Udvardy, a private investigator who had reviewed the phone records in the state’s file, and offered into evidence Udvardy’s report, which was based on his analysis of those phone records. Udvardy testified, and stated in his report, that his analysis of Douglas’ phone records revealed that someone using Douglas’ phone probably did not call Pizza 101. He also testified that there was a gap in the usage of Douglas’ 75Phone at the time the shooting likely took place, but that he "wouldn’t be alarmed by" the usage gap.
Another witness for the petitioner at his habeas trial, Brian S. Carlow, a former Deputy Chief Public Defender, testified that reasonably effective trial counsel "would want to examine the cell phone records to see whether or not what Douglas was testifying to and what he had previously said in statements is either supported by those records or refuted by [them]." As to the usage gap, he characterized it as evidence that would have been "interesting to point out to a jury" but conceded that one reason for the usage gap might have been because Douglas "just simply wasn’t coincidentally making any phone calls during that period of time."
Coffin testified that one of her trial defense strategies had been a third-party culpability defense directed at Douglas. She also testified that, at the time of the petitioner’s criminal trial, the state had an open file policy but that she had not reviewed Douglas’ phone records for fear of harm they might cause the defense and because she already had evidence that Douglas’ phone had called the pizza place.
The following colloquy took place during the habeas trial between the petitioner’s habeas counsel, Attorney Katharine S Goodbody, and Coffin;
"[Goodbody]: … [S]o, you didn’t review the phone records?
"[Coffin]: Right.
"[Goodbody]: Did you consider offering the phone records at trial?
"[Coffin]: … [N]o. I’m a little [wary] in general of offering phone records
"[Goodbody]: And why is that?
"[Coffin]: Sometimes phone records can prove to be dangerous. Once you offer phone records, the state can get all of the records, and those could sometimes—I've had cases before where I've offered phone records, and the state has brought in more phone records and it turned out that it backfired.
"[Goodbody]: [B]ut you didn't even review the phone records here, did you?
"[Coffin]. I don’t believe so, no.
"[Goodbody]. Did you consider hiring someone to review the phone records?
"[Coffin]: No, I don’t think so.
"[Goodbody]. And why would you not do that?
"[Coffin]: I think the call was—we did have the evidence that the call was made from Douglas' phone, and I think I was just sticking with that. I didn't want any other phone records to come in that could wind up hurting our defense
"[Goodbody]: Were you aware of any other phone records?
"[Coffin]: No."
See, e.g., Dugas v. Coplan, 428 F.3d 317, 335 (1st Cir. 2005) ("Strickland clearly allows the court to consider the cumulative effect of counsel's errors in determining whether a defendant was prejudiced" (internal quotation marks omitted)); Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) ("We need not decide whether one or another or less than all of these four errors would suffice, because 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. … We therefore consider these errors in the aggregate." (Citation omitted; internal quotation marks omitted.)); see also Phillips v. State, 285 Ga. 213, 218, 675 S.E.2d 1 (2009) ("combined effects of counsel's errors are considered in determining the prejudice prong of a claim of ineffective assistance of counsel"); State v. Allen, 378 N.C 286, 304, 861 S.E.2d 273 (2021) (adopting reasoning of lower court that, "because [ineffective assistance of counsel] claims focus on the reasonableness of counsel's performance, courts can consider the cumulative effect of alleged errors by counsel" (internal quotation marks omitted)), rev’d in part on other grounds by State v Walker, — N.C. —, 898 S E.2d 661 (2024); State v. Thiel, 264 Wis. 2d 571, 608, 665 N.W.2d 305 (2003) (determining that counsel’s performance was deficient in three ways but concluding that "we need not look at the prejudice of each deficient act or omission in isolation, because we conclude that the cumulative effect undermines our confidence in the outcome of the trial").
Only the United States Courts of Appeals for the Fourth and Eighth Circuits have expressly disallowed aggregately assessing an attorney’s errors in determining whether there is Strickland prejudice See B Means, Postconviction Remedies (2023) § 30:3 (discussing cumulative error doctrine in context of ineffective assistance of counsel claims and collecting cases)
76The habeas court found that the petitioner had failed to sustain his burden of proving that Coffin provided ineffective assistance of counsel as to the phone records. The court recounted that "Coffin testified at the habeas trial that she is generally wary of offering [phone] records as exhibits at trial because the state can then receive all the records, which can ultimately backfire and harm the defense. Coffin further testified that it was her strategic decision to not delve further into Douglas’ [phone] records for concern of what they could have revealed, particularly because she already had the evidence presented that the call was made to the pizza shop from Douglas’ cell phone, and she cross-examined him on that fact at trial.
"Considering the presumption the court must take that counsel’s conduct fell within a wide range of professional assistance, the petitioner has not proven that Coffin’s handling of the [phone] records was not sound trial strategy. Furthermore, the petitioner has not proven that he was prejudiced thereby by demonstrating that Douglas’ phone records provided any evidence that would have assisted in his defense and created a reasonable probability that the outcome of the case would have been different had they been further investigated or presented into evidence. As a result, this claim must be denied."
[35–37] On appeal, the petitioner claims that the habeas court erred in concluding that Coffin’s decision not to investigate the phone records was sound trial strategy. We agree. A reasonably competent defense attorney should want to know all of the evidence relating to the case— 77inculpatory and exculpatory—in order to make sound strategic decisions and effectively represent the client, including whether to advise the client to accept a plea offer. A fear of discovering evidence that might harm the client is not a proper basis for neglecting to investigate. Moreover, the record reflects that the state was in possession of Douglas’ phone records, and, thus, any potentially inculpatory evidence was already in the state’s possession. Coffin’s concern as to the potential harmfulness was certainly a reason to review that evidence, and her failure to do so was deficient. See Skakel v. Commissioner of Correction, supra, 329 Conn. at 35, 188 A.3d 1 ("counsel’s anticipation of what … potential [evidence] would [show] does not excuse the failure to find out; speculation cannot substitute for certainty" (internal quotation marks omitted)).
[38] That does not, however, end our inquiry. As stated herein, to prevail on an ineffective assistance of counsel claim, a petitioner must prove both deficient performance and prejudice. As to prejudice, the petitioner notes that Douglas testified that "his cell phone was used by [the petitioner] to call multiple places to find someone to rob. … [The petitioner] testified that he did not do this." (Citation omitted.) The petitioner argues on appeal that "[a] simple review of [Douglas’ phone] records would have shown that … Douglas was lying about what had occurred that evening. … It would have supported … [the petitioner’s] testimony." (Citation omitted.) The petitioner contends that "[t]he [phone] records reveal that Douglas’ phone never [was used to call the victim’s] phone or Pizza 101…. They further reveal [that someone using the victim’s] phone called .. Douglas’ phone once on the night of the incident. … Further, during the late evening of April 30, 2011, and the early morning of May 1, 2011, all the calls shown on … Douglas’ phone records show that, other than the call from [the victim’s] 78phone, they were to other mobile phones, and these numbers appear on his bill in various other spots and times .. [a]nd [n]one of these other numbers were associated with Pizza 101 or with any business establishment. … This would prove to the jury that Douglas’ phone was never used to call Pizza 101, as he testified. Additionally, there was a gap in usage on Douglas’ cell phone from 12:02 to 12:15 [a.m. on May 1, 2011]… During that time, [t]hete were some incoming .. [b]ut there [were] no outgoing calls or texts." (Citations omitted; footnote omitted; internal quotation marks omitted.) The petitioner argues that Douglas’ phone records in the present case represent neutral evidence that could have resolved conflicting testimony at the criminal trial. We disagree.
Although Douglas’ phone records may have shown that Douglas’ phone was not used to call multiple places to find a target or to call Pizza 101, they do not contradict the incriminating evidence that Douglas’ phone number was given to Pizza 101 when the order was placed. Furthermore, the phone records bolster the evidence that the victim called Douglas’ phone to get delivery directions, a fact that was also substantiated by Douglas’ own testimony. Indeed, as the respondent argues, the fact that Douglas’ phone apparently was not used preliminarily to call pizza restaurants or to place the order with Pizza 101 might reasonably suggest that the petitioner used his own phone to make those calls and gave Douglas’ number to Pizza 101 when he placed the order in an attempt to avoid leaving a record of his involvement. Thus, although the discrepancy between the phone records and Douglas’ testimony may have caused the jury to doubt a portion of his testimony, it would be speculative to posit that it would have been likely to cause the jury to doubt all of his testimony, most of which was corroborated by the victim, who identified the petitioner and Newkirk as having been 79involved in the attempted robbery and assault. The jury reasonably could have credited Douglas’ testimony that the petitioner was at Mary Shepard Place shortly before the victim was shot, that the petitioner and Newkirk were making specific plans to rob a delivery driver, and that the petitioner had a revolver that he was carrying in the pocket of his hooded sweatshirt. None of that incriminating testimony would have been directly challenged by the introduction of the phone records. Again, that evidence was corroborated by the victim’s account of the attempted robbery and assault that occurred, which also implicated the petitioner and Newkirk. Thus, we are persuaded that the petitioner greatly overstates the benefit, if any, that may have inured to the defense if the phone records had been introduced at his criminal trial.
We note that the victim’s initial interaction with the petitioner did not involve the stress of having a gun drawn on her. Initially, when the victim arrived to deliver the pizza, the petitioner approached the passenger side window of the victim's vehicle and asked her f she had change. When she told the petitioner that she did not have change, he asked New kirk if he had change. After Newkirk told the petitioner that he did not have change, the petitioner again asked the victim if she had change, the victim told him that she did not and then something fell out of the petitioner's pocket. The petitioner picked up the object and put it into his pocket, and the victim did not think anything of it. The petitioner continued to ask the victim for change and when she told him that she did not have change, he then put the gun to the door of the vehicle, and the victim saw it for the first time.
"[W]hether the defendant has been prejudiced by prosecutorial [improprieties], therefore, depends on whether there is a reasonable likelihood that the jury's verdict would have been different absent the sum total of the improprieties." (Emphasis added; internal quotation marks omitted.) State v. Weatherspoon, 332 Conn. 531, 556, 212 A.3d 208 (2019), see also State v. Medrano, 131 Conn. App 528, 553, 27 A 3d 52 (2011) ("[h]aving determined that several of the prosecutor’s statements were improper … we now turn to whether those improprieties taken in the aggregate so infected the trial with unfairness as to make the conviction a denial of due process" (emphasis added; internal quotation marks omitted)), aff'd, 308 Conn. 604, 65 A.3d 503 (2013).
The petitioner testified at trial that he saw Newkirk when he first arrived at Mary Shepard Place that evening.
The majority states that Michael Udvardy, the private investigator who reviewed the phone records and provided a report based on his analysis of those phone records, testified that his analysis of Douglas’ phone rec ords revealed that "Douglas’ phone probably did not call Pizza 101." (Emphasis added.) See part II B of the majority opinion. Neither Udvardy’s report nor his testimony, however, equivocated about the fact that the phone records associated with Douglas revealed that the phone was not used to call Pizza 101.
The petitioner’s argument that the phone records would have caused the jury to credit his testimony as to the events of the evening in question is also speculative. Although the petitioner testified at his criminal trial that he never had a gun and that he had not been involved in gun play before, he admitted that he had been shot four times in November, 2010. The court also permitted the state to ask the petitioner about prior misconduct, specifically, an armed robbery during which 80the petitioner allegedly staked out a liquor store in the area and asked the cashier if he had change before robbing him at gunpoint. In light of these infirmities with the petitioner’s credibility, it is not a foregone conclusion that, even if the jurors had disbelieved the entirety of Douglas’ testimony, they would have credited the petitioner’s testimony.
[39] As this court noted in its consideration of the petitioner’s direct appeal, the cross corroboration of the testimony of Douglas and the victim presented a strong case against the petitioner. State v. Grant, supra, 154 Conn. App. at 328-29, 112 A.3d 175. We reiterate that, to prove prejudice under Strickland, the petitioner must demonstrate that, in the absence of the deficient performance at issue, the likelihood of a different result must be substantial, not just conceivable. "[T]he petitioner must meet this burden not by use of speculation but by demonstrable realities." (Internal quotation marks omitted.) Madera v. Commissioner of Correction, 221 Conn. App. 546, 556, 302 A.3d 910, cert. denied, 348 Conn. 928, 305 A.3d 265 (2023). We agree with the habeas court that the petitioner failed to meet this burden.
On the basis of the foregoing, we conclude that the habeas court properly concluded that the petitioner had failed to demonstrate that Coffin provided ineffective assistance as to her handling of Douglas’ phone records.
C
[40] The petitioner also claims that the habeas court erred in concluding that he had not established that Coffin rendered ineffective assistance by failing to investigate, prepare and present potential alibi witnesses. We disagree.
In the petitioner’s third amended petition for a writ of habeas corpus, he claimed that Coffin’s deficient performance violated his constitutional right to the 81effective assistance of counsel when she failed "to adequately investigate and/or present witnesses that confirm that the petitioner was not at Mary Shepard Place … during the night of April 30, 2011, including, but not necessarily limited to Vanessa … and/or [her children]," and that, "[t]here is a reasonable probability that—but for … counsel’s deficient performance … the result of the petitioner’s criminal trial would have been … more favorable to the petitioner."
In rejecting this claim of ineffective assistance, the habeas court recounted that "Coffin testified at the habeas trial that, when she was appointed as the petitioner’s counsel, she reviewed the police reports, met with the petitioner, and hired an investigator who examined the scene and met with potential witnesses. [She] testified that she presented an alibi defense to the jury using testimony by [Cooper] and the petitioner. [She] also testified that her decision not to call additional alibi witnesses, such as Cooper’s children .. was strategic because she avoids calling minors to testify if possible due to a potential negative impact on the jury. She further testified that Cooper’s children would have provided the same evidence as Cooper, and she believed that the strategic decisions she made at the time accompanied by Cooper’s testimony would be enough for a successful alibi defense." The habeas court concluded that, "[c]onsidering the presumption the court must take that counsel’s conduct fell within a wide range of professional assistance, the petitioner has not proven that … Coffin’s investigation into and presentation of the petitioner’s alibi defense failed to constitute sound trial strategy. Furthermore, the petitioner has not proven that he was prejudiced thereby by demonstrating that the additional testimony provided evidence that would have .. created a reasonable probability that the outcome of the case would have 82been different had the witnesses been called to testify at the criminal trial."
On appeal, the petitioner asserts that Coffin’s decision not to investigate Cooper’s children as potential alibi witnesses was unreasonable because "presenting [the petitioner’s] alibi was clearly part of her defense." Second, the petitioner contends that Coffin’s reasoning "does not stand up to scrutiny" because Cooper’s children were teenagers—not young children—and they had important information to establish the defense Coffin was presenting; therefore, "[t]here would be no reason not to put them on [the witness stand] to support that defense." Furthermore, he argues that, even if Coffin’s decision was strategic, "the strategy was neither reasonable nor informed" because Coffin had not even investigated the witnesses despite her knowledge of their existence.
Although we agree with the petitioner that Coffin should have, at a minimum, met with and interviewed Cooper’s children to ascertain the potential benefit, if any, to having them testify on the petitioner’s behalf, the evidence presented at the habeas trial supports Coffin’s explanation that their testimony would have been cumulative of Cooper’s testimony that she and her son and daughter had dropped the petitioner off at his home before 11 p.m. At the habeas trial, Cooper’s daughter testified that they had dropped the petitioner off at his home between 9 and 10 p.m. and that the petitioner "was home by 11 p.m., I know." Even if we assume the veracity of the alibi testimony of both Cooper and her daughter, that testimony did not establish an alibi for the petitioner because the shooting occurred sometime between midnight and 12:15 a.m. Neither Cooper nor her daughter could account for the petitioner’s whereabouts at the time the shooting occurred. Based on the testimony of the petitioner, Cooper and Cooper’s daughter that it took approximately fifteen 83minutes to get to the petitioner’s home from Mary Shepard Place, the petitioner could have returned to Mary Shepard Place before midnight. Because the testimony of Cooper’s daughter was, at best, cumulative of Cooper’s testimony and did not provide the petitioner with an alibi for the time during which the shooting occurred, it is unlikely that the testimony of Cooper’s daughter would have changed the outcome of the petitioner’s trial. See Meletrich v. Commissioner of Correction, 332 Conn. 615, 629, 212 A.3d 678 (2019) ("an alibi witness’ testimony has been found unhelpful when the proffered witness would fail to account sufficiently for a defendant’s location during the time or period in question" (internal quotation marks omitted)). Accordingly, the habeas court did not err in concluding that the petitioner did not establish that Coffin had rendered ineffective assistance by failing to investigate, prepare and present potential alibi witnesses.
III
[41] Finally, we turn to the petitioner’s claim that "[t]here was no legitimate basis on the record for the habeas court’s rejection of the unrebutted expert testimony of … [Margaret Bull] Kovera [concerning eyewitness identification testimony] and … Carlow." The petitioner argues that the habeas court arbitrarily rejected the testimony of both Kovera and Carlow when it gave no rationale for why it did not consider or analyze their testimony. We are not persuaded.
[42–44] "[A] trier of fact may accept or reject, in whole or in part, the testimony of an expert offered by one party. … This principle holds time even when the opposing party offers no rebuttal expert. … [I]n its consideration of the testimony of an expert witness, the [trier of fact] might weigh, as it sees fit, the expert’s expertise, his opportunity to observe the [person being examined] and to form an opinion, and his thoroughness. It might 84consider also the reasonableness of his judgments about the underlying facts and of the conclusions [that] he drew from them. … Thus, it is permissible for the trier of fact to entirely reject uncontradicted expert testimony as not worthy of belief. …
[45, 46] "We have also recognized, however, that the trier’s discretion is not without limits. [T]he trier’s freedom to discount or reject expert testimony does not … allow it to arbitrarily disregard, disbelieve or reject an expert’s testimony in the first instance. … [When] the [trier] rejects the testimony of [an] … expert, there must be some basis in the record to support the conclusion that the evidence of the [expert witness] is unworthy of belief. That said, given the myriad bases on which the trier properly may reject expert testimony and the reviewing court’s obligation to construe all of the evidence in the light most favorable to sustaining the trier’s [finding or] verdict, it would be the rare case in which the reviewing court could conclude that the trier’s rejection of the expert testimony was arbitrary." (Citations omitted; internal quotation marks omitted.) Menard v. State, 346 Conn. 506, 521–22, 291 A.3d 1025 (2023).
Here, the habeas court never explicitly rejected the expert testimony of Kovera or Carlow. In the absence of such an explicit rejection of their testimony, we cannot conclude that the court rejected it or, if it did, that such a rejection was arbitrary. Rather, we presume that the court properly weighed all of the evidence presented to it in reaching its decision. The fact that the court came to a conclusion that was inconsistent with the expert testimony does not, in itself, support the petitioner’s contention that the court arbitrarily disregarded that testimony. See Evans v. Tiger Claw, Inc., 141 Conn. App. 110, 121 n.17, 61 A.3d 533 (2013) ("We presume that the court considered the relevant factors. .. The 85correctness of a judgment of a court of general jurisdiction is presumed in the absence of evidence to the contrary. We do not presume error. The burden is on the appellant to prove harmful error." (Internal quotation marks omitted.)) Accordingly, the petitioner’s claim is unavailing.
The judgment is affirmed.
In this opinion SUAREZ, J., concurred.
PRESCOTT, J., concurring in part and dissenting in part.
In the underlying criminal trial against the petitioner, Cecil Grant, the state’s case was predicated almost entirely on two pieces of evidence. First, it relied on the testimony and credibility of Gustin Douglas. He implicated the petitioner in the robbery and shooting at the housing complex where Douglas lived, while simultaneously attempting to minimize or negate his own involvement and culpability in the commission of the charged offenses. Second, the state’s case relied heavily on the victim’s eyewitness identification of the petitioner as the shooter.
The petitioner testified at trial that he was not present during the commission of the attempted robbery and shooting and that, instead, he had been driven by his brother’s fiancée, Vanessa Cooper, along with her children, to his residence in a different part of Hartford shortly before the shooting. Through his trial counsel, he also attempted to assert that Douglas participated in the robbery but had implicated the petitioner in order to minimize or eliminate his own culpability. Finally, the petitioner attempted to challenge the reliability of the victim’s eyewitness identification of him as the shooter. The majority and I apparently1a agree that the petitioner’s trial counsel, Kirstin B. Coffin, rendered constitutionally86 deficient performance in two ways, First, Coffin’s performance was constitutionally inadequate because she failed to review phone records for Douglas’ cell phone,2a which, according to Douglas, the petitioner used to facilitate the commission of the crimes of which the petitioner was convicted. Second, Coffin’s performance was constitutionally defective because she failed to investigate and present the testimony of one or more of Cooper’s children as alibi witnesses.
Despite these instances of deficient performance, the majority concludes that they did not prejudice the petitioner. In doing so, the majority does not adequately account for the extent to which the phone records undermine the credibility of Douglas’ testimony. The majority also does not adequately consider the existence of a number of factors that reduce the reliability of the victim’s eyewitness identification testimony. Finally, the majority underestimates the importance that one or more additional alibi witnesses would have had on the strength of the petitioner’s alibi defense by simply dismissing them as cumulative.
87Accordingly, although I agree with the results reached in parts I, II A and III of the majority opinion, for the reasons that follow, I do not agree with the majority’s conclusions in parts II B and C of its opinion that the petitioner failed to demonstrate that he was prejudiced by Coffin’s deficient performance under the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).3a I reach the contrary conclusion and would reverse the judgment of the habeas court and remand the matter for a new criminal trial. Accordingly, I respectfully dissent from the majority’s decision to affirm the judgment of the habeas court. I begin with a brief discussion of the instances of deficient performance, which is necessary for a more thorough understanding of how they prejudiced the petitioner’s defense. Common to both aspects of defense counsel’s deficient performance was her failure to properly investigate readily available evidence and witnesses, without a reasonable strategic reason for so doing. See Gaines v. Commissioner of Correction, 306 Conn. 664, 680, 51 A.3d 948 (2012) ("counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary," and "a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments" (internal quotation marks omitted)); Baillargeon v. Commissioner of Correction, 67 Conn. App. 716, 721, 789 A.2d 1046 (2002) 88("[b]ecause a defendant often relies heavily on counsel’s independent evaluation of the charges and defenses, the right to effective assistance of counsel includes an adequate investigation of the case" (internal quotation marks omitted)).
Counsel first rendered deficient performance by failing to review Douglas’ cell phone records, which were of particular importance because Douglas asserted that the petitioner had used his cell phone to facilitate the attempted robbery by calling various businesses, including Pizza 101, the victim’s employer. The phone records had been obtained by the police prior to trial and were readily available for review by the defense. If defense counsel had reviewed the phone records and investigated the phone numbers contained therein, she would have learned that Douglas’ phone was not used to call Pizza 101 prior to the robbery and shooting or any other identifiable businesses. Having that information would have allowed defense counsel to directly contradict not only the testimony of Douglas but the corroborating testimony provided by Detective William J. Siemionko of the Hartford Police Department.4a
It is, of course, axiomatic that, to demonstrate deficient performance, a petitioner must overcome the strong presumption that a "challenged action might be considered sound trial strategy." (Internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. at 689, 104 S.Ct. 2052; see also Skakel v. Commissioner of Correction, 329 Conn. 1, 31, 188 A.3d 1 (2018), cert. denied sub nom. Connecticut v. Skakel, — U.S. —, 139 S. Ct. 788, 202 L. Ed. 2d 569 (2019). In the present case, the petitioner met this burden because Coffin’s explanation for not pursuing Douglas’ phone records was not founded 89on any sound trial strategy but, rather, was objectively unreasonable.
At the habeas trial, Coffin testified that, at the time of the petitioner’s criminal trial, the state had an "open file" policy, meaning that she had easy access to the phone records. Nevertheless, she admitted that she never reviewed the phone records herself, never hired anyone to review them, and thus never considered offering them into evidence at trial. When asked to explain the rationale for her inaction, she stated a general belief that, "[s]ometimes phone records can prove to be dangerous" and that, in this case, "we did have the evidence that the call was made from … Douglas’ phone, and I think I was just sticking with that." A proper review of the phone records, however, would have proven any such evidence false. She also stated: "I didn’t want any other phone records to come in that could wind up hurting our defense." When asked, however, if she had been aware of any other phone records that could have been introduced, she responded, "[n]o."
"[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." (Internal quotation marks omitted.) Gaines v. Commissioner of Correction, supra, 306 Conn. at 680, 51 A.3d 948. Here, I agree with the majority’s assessment that "fear of discovering evidence that might harm the client is not a proper basis for neglecting to investigate" because a minimally competent defense attorney would want to assess all of the available information about a case, both inculpatory and exculpatory, to formulate and execute an effective defense. See part II B of the majority opinion. I conclude that Coffin, by not even seeking to review the phone records, failed to exercise objectionably reasonable professional judgment, and her inaction amounts to deficient performance.
90I now turn to the alibi defense. The petitioner testified at the criminal trial that, although he was at the housing complex on the night of the assault, he had been there visiting with Cooper, his brother’s fiancée, and her children, and that they all drove him home prior to the events at issue. In addition to the petitioner’s testimony, the defense called Cooper, who testified that the petitioner had visited with them at the housing complex on the relevant date and that she and the children had driven the petitioner home and dropped him off prior to the time the assault occurred. Coffin did not call to testify at trial either of Cooper’s children, who were fifteen and seventeen years of age at the time of the shooting, nor did she or her investigator even interview them as potential witnesses. There is no doubt that this failure constituted deficient performance under the facts of this case.
As previously stated, "[i]nadequate pretrial investigation can amount to deficient performance, satisfying prong one of Strickland, [because] [constitutionally adequate assistance of counsel includes competent pretrial investigation. … Although … counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it … [e]ffective assistance of counsel imposes an obligation [on] the attorney to investigate all surrounding circumstances of the case and to explore all avenues that may potentially lead to facts relevant to the defense of the case. … In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." (Citations omitted; emphasis added; internal quotation marks omitted.) Taft v. Commissioner of Correction, 159 Conn. App. 537, 546–47, 124 A.3d 1, cert. denied, 320 Conn. 910, 128 A.3d 954 (2015).
91"If counsel makes strategic decisions after thorough investigation, those decisions are virtually unchallengeable … In particular, our 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 …" (Citation omitted; internal quotation marks omitted.) Id., at 547, 124 A.3d 1.
Although the decision whether to call a particular witness to testify is ordinarily a matter generally left to the discretion of trial counsel as a matter of trial strategy, it can constitute deficient performance not to call a particular witness if that otherwise strategic decision was unreasonable under the facts and circumstances known. This is particularly true in deciding whether to call one or more alibi witnesses. Once Coffin made the decision to pursue an alibi defense, however, she had a duty to adequately investigate, at a minimum, the substance of any potential alibi witness’ testimony. That duty necessarily included interviewing Cooper’s children as potential witnesses, either herself or through an investigator.
The present case is strikingly similar to our Supreme Court’s decision in Skakel v. Commissioner of Correction, supra, 329 Conn. at 47–61, 188 A.3d 1, in which that court held that trial counsel had rendered deficient performance because, despite alibi having been the primary defense, counsel failed to investigate and present testimony of an easily discoverable, disinterested alibi witness. As the court in Skakel stated, "[w]ith specific regard to the duty to investigate a defendant’s alibi defense, counsel is obligated to make all reasonable efforts to identify and interview potential alibi witnesses." (Emphasis added.) Id., at 35–36, 188 A.3d 1. The court made clear that simply 92deciding not to call an alibi witness without having first interviewed that witness was "objectively unreasonable because it was a decision made without undertaking a full investigation into whether [the witness] could assist in [the petitioner’s] defense. … By failing even to contact [the witness] … counsel abandoned his investigation at an unreasonable juncture, making a fully informed decision with respect to [whether to have the witness testify] impossible." (Internal quotation marks omitted.) Id., at 36, 188 A.3d 1, quoting Towns v. Smith, 395 F.3d 251, 259 (6th Cir. 2005). The court also identified a number of nonexclusive factors that a habeas court should consider "in determining whether counsel’s failure to investigate and present the testimony of an additional alibi witness or witnesses was reasonable under the circumstances. They include (1) the importance of the alibi to the defense … (2) the significance of the witness’ testimony to the alibi … (3) the ease with which the witness could have been discovered … and (4) the gravity of the criminal charges and the magnitude of the sentence that the petitioner faced." (Citations omitted.) Skakel v. Commissioner of Correction, supra, at 37, 188 A.3d 1.
Here, Coffin knew from Cooper’s statement to the police, which was part of the police file, that her children purportedly were with Cooper and the petitioner when he was driven home. Accordingly, Coffin was aware of at least two additional potential alibi witnesses. Moreover, whereas Cooper arguably had a familial tie to the petitioner through his brother, to whom she was engaged, there was no indication in the record that the children had a familial relationship with the petitioner, and they potentially could have been viewed by the jury as more disinterested than Cooper and thus more believable. It is also entirely possible that the children’s testimony regarding the petitioner’s alibi may simply have been viewed as more credible than that offered 93by Cooper and the petitioner or that Cooper and the children’s collective testimony, if relatively consistent, would have rendered the proffered alibi defense overall more credible in the eyes of at least one of the jurors. See id., at 51, 188 A.3d 1 (multiple alibi witnesses not necessarily cumulative and potentially corroborative not only of alibi generally but also as to credibility of each alibi witness). The younger of the two children testified at the habeas trial, and her testimony generally was consistent with Cooper’s account of events. Counsel’s failure even to interview the children so as to evaluate their demeanor as witnesses and ascertain the substance of their potential testimony was, as in Skakel, an objectively unreasonable strategic decision, especially in light of the importance of the petitioner’s alibi defense, which directly countered the victim’s and Douglas’ identification of him as the perpetrator of the assault. See id., at 37, 188 A.3d 1.
The majority suggests that Coffin’s failure to conduct an adequate investigation of the children as potential additional alibi witnesses either did not amount to deficient performance or did not prejudice the defense because, at best, the witnesses only provided the petitioner with a partial alibi. A partial or incomplete alibi is one in which an alibi witness cannot testify with certainty that a criminal defendant was in his or her sight at the precise time that the crime was committed. I acknowledge that the court in Skakel observed that, "as a general rule, partial alibis are unconvincing. Indeed, it has been argued that a partial or incomplete alibi is not really an alibi in the truest sense … because it fails to account for a defendant’s whereabouts for at least some period of time during which the crime reasonably could have been committed by the defendant. Thus, when a true partial alibi is at issue, it is invariably the case that the defendant just as likely could have committed the crime during a period of time 94not covered by the alibi." (Citation omitted; emphasis added.) Id., at 68, 188 A.3d 1. Even a partial or incomplete alibi, however, can be important evidence for the defense; particularly if the jury believes the alibi witness or witnesses presented and has no factual basis for considering whether the petitioner might have been able to commit the crime during a period not directly covered by the alibi testimony. See Spearman v. Commissioner of Correction, 164 Conn. App. 530, 571 n.27, 138 A.3d 378 (alibi witnesses’ testimony concerning accused’s whereabouts immediately following crime could be helpful to defense to explain or bolster alibi), cert. denied, 321 Conn. 923, 138 A.3d 284 (2016).
The petitioner testified that it was approximately a fifteen minute drive between the housing complex where the assault occurred and his home, that he was driven home by Cooper accompanied by the children, and that he was probably home by 10:45 p.m. He testified that he remained home and was home around midnight when the assault occurred. On the basis of this testimony alone, the petitioner presented a "complete" alibi defense. Although Cooper testified that it was her son who drove when they dropped the petitioner off, she testified, consistent with the petitioner, that he was home shortly before 11 p.m. The majority correctly notes that Cooper’s daughter initially testified at the habeas trial that they dropped off the petitioner between 9 and 10 p.m., but she subsequently clarified that it was before 11 p.m. The state sought to discredit the alibi in the eyes of the jurors by highlighting the inconsistencies in Cooper’s and the petitioner’s versions of events, such as who was driving, and by pointing out that the petitioner claimed to be unaware of the date the assault occurred until he was arrested and yet claimed to recall the events of that day to formulate an alibi. The state never asked the petitioner or Cooper whether he had a car or some other means of returning 95to the housing project where the crime occurred after he was dropped off. Moreover, the state in its closing argument did not argue that the alibi defense offered was incomplete or only a partial alibi. In other words, it did not argue to the jury that the petitioner reasonably had an opportunity to commit the crime by returning to the scene after he was dropped off at home. If the state was capable of making such an argument on the available facts, presumably it would have done so. Accordingly, because the majority’s "partial alibi" discussion does not account for the petitioner’s own testimony and appears to speculate about a scenario unsupported by the record, I find it unpersuasive as a basis for rejecting the petitioner’s claim of deficient performance.
As with her decision not to review the phone records, Coffin did not offer an objectively reasonable reason for her failure to investigate the additional alibi witnesses. Coffin testified at the habeas trial that her decision not to call Cooper’s children to testify was a strategic decision and that, generally, she avoids calling minors to testify if possible because of what she believed was a potential negative impact on the jury. Coffin stated: "It might look bad in front of the jury if the jury thinks you’re hauling in children to testify, and also they’d be—proved to be a little nervous [on the witness] stand or possibility of changing their story." She also testified, however, that she did not know the ages of Cooper’s children, both of whom were teenagers at the time of the assault.
"[S]trategic decisions of counsel, although not entirely immune from review, are entitled to substantial deference by the court." Skakel v. Commissioner of Correction, supra, 329 Conn. at 31, 188 A.3d 1. To warrant such deference, however, a strategic decision must be objectively reasonable under the circumstances. See Jordan v. Commissioner of Correction, 341 Conn. 279, 291–92, 267 96A.3d 120 (2021) ("our plenary review requires us, first, affirmatively to contemplate the possible strategic reasons that might have supported [trial counsel’s] decisions … and, second, to consider whether those reasons were objectively reasonable"). Without knowing the ages of the children, or having spoken to the children, the concerns that Coffin voiced regarding calling minor witnesses to testify amounted to pure speculation here, not an objectively reasonable strategy. Moreover, prior to deciding not to call them as witnesses, Coffin had no way of knowing what the substance of the children’s testimony might have been or whether, in fact, their stories would have mirrored that of Cooper. It would have been equally important to make sure they did not have details that could have been used by prosecutors to counter the testimony of the petitioner or Cooper. In other words, Coffin did not have any factual basis on which to make a reasoned decision not to investigate the children as additional alibi witnesses, and her inaction, in my view, constituted deficient performance.
In short, counsel’s performance was deficient, egregiously so, in my view. She turned a blind eye to the phone records that could have been used to contradict the testimony given by two important state’s witnesses and, despite having elected to pursue an alibi defense, she failed to interview and evaluate two additional potential alibi witnesses. The majority nevertheless concludes that the petitioner failed to demonstrate that either of these deficiencies prejudiced him such that a new trial is warranted. I part ways with the majority’s conclusion regarding application of the prejudice prong of Strickland and would instead conclude, for the reasons that follow, that counsel’s deficiencies, considered in the aggregate, demonstrate prejudice warranting a new trial in this matter.
97"An evaluation of the prejudice prong involves a consideration of whether there is a reasonable probability that, absent the errors, the [fact finder] would have had a reasonable doubt respecting guilt. … A reasonable probability is a probability sufficient to undermine confidence in the out- come: … We do not conduct this inquiry in a vacuum, rather, we must consider the totality of the evidence before the judge or jury. … Further, we are required to undertake an objective review of the nature and strength of the state’s case. … [S]ome errors will have had 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. … [A] court making the prejudice inquiry must ask if the [petitioner] has met the burden of showing that the decision reached would reasonably likely have been different absent the errors…
"In other words, [i]n assessing prejudice under Strickland, the question is not whether a court can be certain counsel’s performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. … Instead, Strickland asks whether it is reasonably likely the result would have been different… The likelihood of a different result must be substantial, not just conceivable. . Notably, the petitioner must meet this burden not by use of speculation but by demonstrable realities." (Internal quotation marks omitted.) Mercer v. Commissioner of Correction, 222 Conn. App. 713, 730–31, 306 A.3d 1073 (2023), cert. denied, 348 Conn. 953, 309 A.3d 303 (2024).
The majority leans far too heavily on the word "substantial" in the previously cited standard. The "substantial" likelihood requirement has been used by our 98Supreme Court and comes from the United States Supreme Court’s decision in Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011), in which that court stated that "Strickland asks whether it is reasonably likely the result would have been different. … This does not require a showing that counsel’s actions more likely than not altered the outcome, but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters only in the rarest case. … The likelihood of a different result must be substantial, not just conceivable." (Citations omitted; internal quotation marks omitted.) Id., at 111–12, 131 S. Ct. 770. In Jones v. State, 328 Conn. 84, 102, 177 A.3d 534 (2018), our Supreme Court described the Strickland prejudice standard as being "slightly more lenient than the more likely than not standard …." Accordingly, courts considering whether a petitioner has met that burden should be cautious not to place too great a weight on the word "substantial."
In the present case, in which I conclude that the petitioner has demonstrated that counsel’s performance was deficient in at least two different ways, it is appropriate in evaluating prejudice to consider the aggregate effect of counsel’s deficient performance on a jury’s consideration of the evidence as a whole and the reasonable inferences drawn therefrom. Although Connecticut courts have not expressly adopted this type of aggregate error approach in postconviction review; see Breton v. Commissioner of Correction, 325 Conn. 640, 703, 159 A.3d 1112 (2017) (noting that it is "open question whether [claims of cumulative prejudicial effect of counsel’s deficient performance] are cognizable under Connecticut law" and leaving issue unresolved because petitioner failed to show any "prejudice to aggregate"); the vast majority of federal jurisdictions and at least some state courts have done so in the 99context of conducting a prejudice analysis in accordance with Strickland. 5a See Saunders v. Commissioner of Correction, 343 Conn. 1, 9, 272 A.3d 169 (2022) (although federal and state court postconviction jurisprudence is not binding on this court, it is appropriate to look to such sources for guidance). Furthermore, Connecticut already considers the aggregate prejudicial effect of errors in reviewing claims of prosecutorial improprieties and whether those improprieties, considered in total, deprived a defendant of a fair trial.6a It is 100pconsistent with that existing jurisprudence for our courts also to consider in habeas corpus proceedings the cumulative effect of multiple instances of constitutionally defective performance by criminal defense counsel.
Missing from the majority opinion is any significant discussion of the relative strength, or lack thereof, of the state’s case. It is axiomatic that our standard of review in evaluating prejudice requires us to "undertake an objective review of the nature and strength of the state’s case." (Internal quotation marks omitted.) Mercer v. Commissioner of Correction, supra, 222 Conn. App. at 730, 306 A.3d 1073. In part II B of its opinion, the majority cites to this court’s decision on direct appeal and states that "the cross corroboration of the testimony of Douglas and the victim presented a strong case against the petitioner." See State v. Grant, 154 Conn. App. 293, 328–29, 112 A.3d 175 (2014), cert. denied, 315 Conn. 928, 109 A.3d 923 (2015). It is, however, precisely this inextricable con- nection between the testimony of Douglas and the victim that renders Coffin’s deficient performance in the present case particularly harmful.
If Coffin had properly investigated Douglas’ phone records, she would have learned that Douglas’ phone was not used on the night in question to call and case potential robbery victims, and most certainly not to call the pizza restaurant that employed the victim.7a This 101evidence would have contradicted Douglas’ testimony that the petitioner had used his phone to call and locate a target, which likely would have discredited him in the eyes of the jurors. It also contradicts and thus impeaches the corroborating testimony provided by Siemionko. Demonstrating to the jury that Douglas’ testimony about the petitioner using his phone to call various businesses was demonstrably incorrect would have raised substantial doubt as to whether he was being truthful about other events or simply was trying to shift blame away from himself. The phone records also show a gap in the use of Douglas’ phone during the time of the assault, which, if the jury did not believe that Douglas had given the phone to the petitioner, supports a reasonable inference that Douglas was one of the assailants and had stopped using the phone during that period of time.
A key defense strategy had been to shift suspicion for the assault to Douglas, whose phone number was the one provided to the victim as a contact and which number the victim called for directions just prior to the assault. Throughout his testimony, Douglas both inculpated and exculpated himself, placing himself in the vicinity of the assault at the time in question while shifting focus to the petitioner and Derek Newkirk. Although the majority appears to rely on the state’s argument seeking to limit the import of the phone records by suggesting that the petitioner could have used his own phone to call, this is pure speculation because no evidence was presented at trial that the petitioner used his own phone to call take-out businesses on the night in question. There is no doubt that the petitioner’s attempt to raise reasonable doubt would have been substantially improved by using the cell phone records to impeach Douglas’ version of events.
Additionally, although the majority properly rejects the petitioner’s claim that his due process rights were 102violated by the admission of the victim’s out-of-court identification or that Coffin rendered deficient performance in the manner in which she challenged the victim’s identification of the defendant, that conclusion does not speak to the overall strength or weakness of the identification evidence. In other words, simply because the constitution does not prohibit the admission of evidence pertaining to the victim’s identification of the petitioner does not mean that its reliability is unassailable. As our Supreme Court recognized in State v. Guilbert, 306 Conn. 218, 49 A.3d 705 (2012), both scientific experts in the field of eyewitness identification and courts recognize that many factors can affect the accuracy of an eyewitness’ identification and subsequent testimony. Of particular relevance to the present case is that "there is at best a weak correlation between a witness’ confidence in his or her identification and its accuracy … the reliability of an identifica- tion can be diminished by a witness’ focus on a weapon … high stress at the time of observation may render a witness less able to retain an accurate perception and memory of the observed events … cross-racial identifications are considerably less accurate than same race identifications … [and] a person’s memory diminishes rapidly over a period of hours rather than days or weeks …." (Footnotes omitted.) Id., at 237–38, 49 A.3d 705. For a number of reasons, I am persuaded that the record in the present case shows that the victim’s identification of the petitioner was not necessarily worthy of the weight placed on it by the majority.
First, as The Innocence Project points out in its amicus brief, circumstances at the time of the assault raise doubts about the victim’s ability to make an accurate identification. The victim testified that she had never seen either man before that night. They did not stand near her window on the driver’s side of her vehicle, but instead she viewed them only through the passenger 103side window of her car. She was only able to observe her assailants for a brief time, two or three minutes at best, before one of them drew a gun and attempted to open the passenger side door. Moreover, she also agreed with defense counsel that, during that brief time, her attention was split between the two men. The assault occurred at night, the lighting around the housing complex was less than ideal, and the closest of the men was five or six feet away, observable only through the passenger window of the vehicle.
The victim testified that the lighting "was fair."
Second, there were problems with the victim’s out-of-court identification of the petitioner. The victim’s identification of the petitioner did not occur until more than fourteen weeks after the assault, which reflects a significant passage of time between the victim’s observation of the petitioner and her subsequent identification of him in a photographic array. It is well settled that, because memories fade over time, an extended period of time between a crime and the subsequent identification of the perpetrator can render an identification less reliable, particularly if there was not an ample opportunity to observe the perpetrator. See id., at 238, 49 A.3d 705 ("a person’s memory diminishes rapidly over a period of hours rather than days or weeks"); cf. State v. Ortiz, 252 Conn. 533, 555, 747 A.2d 487 (2000) ("[t]he three month time period that had elapsed between the crime and the identification was deemed to be "long .. [but] any negative aspect of both the degree of attention and the time between the crime and the confrontation is far outweighed by the opportunity to view and the level of certainty of the witness’ identification" (internal quotation marks omitted)).
There were also problems with the administration of the photographic arrays shown to the victim. Detective 104Anthony Pia of the Hartford Police Department prepared the photographic arrays, each of which consisted of eight photos on a single page. One array contained a photo of the petitioner, and the other a photo of Newkirk, each of whom Pia knew was a suspect. Pia also administered the arrays to the victim. Thus, the police did not follow a double-blind or sequential identification procedure. As our Supreme Court recog- nized in State v. Guilbert, supra, 306 Conn. at 253, 49 A.3d 705, the use of a simultaneous and single-blind identification procedure, as was done in the present case, renders the resulting identification less reliable. This is because double-blind administration procedures "avoid the possibility of influencing the witness, whether intentionally or unintentionally, and thereby tainting the accuracy of any resulting identification." State v. Marquez, 291 Conn. 122, 167, 967 A.2d 56, cert. denied, 558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009). In addition, the victim was Hispanic whereas the petitioner and Newkirk were black. This raises well recognized concerns regarding the reliability of cross-racial identifications. See State v. Guilbert, supra, 306 Conn. at 238, 49 A.3d 705 ("cross-racial identifications are considerably less accurate than same race identifications").
"In a simultaneous array, all of the photographs are shown to the witness at one time. In a sequential array, the photographs are shown to the witness one at a time." State v. Williams, 146 Conn. App. 114, 129 n.16, 75 A.3d 668 (2013), aff’d, 317 Conn. 691, 119 A.3d 1194 (2015). A double-blind identification procedure means that the person administering the photographic array to the witness also does not know the Identity of the suspect. State v. Outing, 298 Conn. 34, 42, 3 A.3d 1 (2010), cert. denied, 562 U.S. 1225, 131 S Ct. 1479, 179 L. Ed. 2d 316 (2011).
Significantly, although the victim identified the photos of the petitioner and Newkirk on the two photographic arrays, she circled each of their photos and wrote on the instruction sheet that accompanied the array that the circled photo "is the guy that shot me," which raises doubts about the accuracy of the victim’s 105memory of the events. With respect to the petitioner’s photo in the array, he was the only person wearing a hoodie, a distinct item of clothing that the victim identified to police immediately after the assault that both assailants were wearing. Furthermore, and significantly, although the police were aware of Douglas’ close connection to the assault and the evidence demonstrating that he could have been one of the perpetrators, his photo was never presented to the victim in a photographic array.
I recognize that the state charged the petitioner as both a principal and accessory with regard to the assault, and, therefore, whether he or Newkirk was the shooter would not have mattered with respect to his criminal liability. That fact, however, does not minimize whatever confusion the victim may have exhibited in reviewing the photographic arrays and whether this was a result of a diminishment in her memories of the assault or a lack of certainty regarding her identification of the petitioner.
Third, with respect to the victim’s incourt identification, it is reasonable to conclude that it may have been "tainted," and thus rendered less reliable, by many of the problems already identified regarding the out-of-court identification. See generally State v. Dickson, 322 Conn. 410, 141 A.3d 810 (2016) (discussing potential that in-court identifications may be tainted by suggestive out-of-court identifications), cert. denied, 582 U.S. 922, 137 S. Ct. 2263, 198 L. Ed. 2d 713 (2017). Given all of these issues with the identification of the petitioner, coupled with the lack of any physical or forensic evidence tying the petitioner to the assault, I would conclude that the state’s case was not particularly strong and thus far "more likely to have been affected by errors …." (Internal quotation marks omitted.) Mercer v. Commissioner of Correction, supra, 222 Conn. App. at 730, 306 A.3d 1073.
With respect to counsel’s deficient performance in failing to review Douglas’ phone records, the majority minimizes the import of those records. A review of the 106phone records would have demonstrated that Siemionko incorrectly testified that the records showed that the pizza was ordered using Douglas’ phone, a fact that the prosecutor highlighted during his closing argument, and, more importantly, would have provided support for the defense theory that Douglas had testified inaccurately about the petitioner using his phone to shift blame away from himself. Although the state suggests that the petitioner could have used his own phone to place the pizza order but also gave Douglas’ number on the order to mask his involvement, it does not account for the reality that the state’s theory of the case was that Douglas’ credible testimony about the details leading up to the assault helped to bolster the victim’s identification of the petitioner and Newkirk. Any impeachment of Douglas’ testimony would have been important to the defense efforts to sever this connection in the minds of the jurors.
The majority downplays the significance of the phone records evidence as not directly contradicting other aspects of Douglas’ testimony and, thus, not likely to have had an impact on the jury. It is true that a jury may "believe all or only part of a witness’ testimony .. [and that the] jury [is] free to credit one version of events over the other …." (Internal quotation marks omitted.) State v. Douglas C., 195 Conn. App. 728, 741, 227 A.3d 532 (2020), aff’d, 345 Conn. 421, 285 A.3d 1067 (2022). It is equally true, however, that, if a jury believes that a witness has been untruthful as to one aspect of his testimony, this can raise reasonable doubt as to the credibility of the remainder of his testimony, particularly in a case such as this one in which a key defense theory was that Douglas was attempting to shift blame away from himself to the petitioner.
The respondent, the Commissioner of Correction, and the majority further conclude that Coffin’s failure to investigate additional alibi witnesses did not prejudice the petitioner. The majority implicitly accepts Coffin’s explanation that her choice to call one alibi witness was strategic, and that any additional witnesses would have been merely cumulative of that testimony and thus unlikely to have changed the outcome of the petitioner’s 107trial. An alibi defense, however, certainly may be rendered more believable by a jury if more than one alibi witness is presented who can account for the petitioner’s whereabouts at or about the time of the crime. See Skakel v. Commissioner of Correction, supra, 329 Conn. at 51, 188 A.3d 1. This is particularly true where, as in this case, the sole alibi witness offered, Cooper, was not a disinterested observer but the fiancée of the petitioner’s brother and, thus, less likely to be believed by the jury. See id. Here, as previously stated, counsel failed even to interview the other potential alibi witnesses to determine their precise relationship with the petitioner or whether one would be more persuasive than Cooper. Certainly, at some point, a court could exclude, as "needless," multiple alibi witnesses as cumulative. (Emphasis added.) Conn. Code Evid. § 4-3. Multiple alibi witnesses, however, are not per se cumulative, as the majority suggests. Nor is it "needless" to offer more than one alibi witness, particularly if, as here, the state was able through cross-examination to highlight some factual differences in the testimony of the petitioner and Cooper as to both the relevant time period that he was with her and the children and who actually drove the car when taking him home.
Coffin’s failure to investigate Douglas’ phone records compromised her ability to impeach him as a witness and to lessen his credibility in the eyes of the jurors, making it less likely that the jury would regard his testimony and cooperation with the police as self-serving and intended to deflect suspicion from himself. In other words, Coffin’s error significantly limited the petitioner’s ability to cast Douglas as one of the victim’s assailants. Moreover, Coffin’s failure to call any additional alibi witnesses weakened the petitioner’s closely related defense that he was not even present at the time of the shooting and therefore could not have been one of the perpetrators.
108Thus, Coffin’s deficiencies, considered in the aggregate, significantly compromised both prongs of the defense strategy, and, given the weaknesses in the state’s case, I conclude that the petitioner satisfied his burden of demonstrating that there was a reasonable probability that, in the absence of these errors, at least one juror could have had reasonable doubt respecting his guilt, changing the outcome of the trial.
I respectfully dissent from the decision of the majority to affirm the judgment of the habeas court.