Jordan v. Comm'r of Corr.

Decision Date09 June 2020
Docket NumberAC 42250
Citation197 Conn.App. 822,234 A.3d 78
Parties Bryan JORDAN v. COMMISSIONER OF CORRECTION
CourtConnecticut Court of Appeals

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Rebecca A. Barry, supervisory assistant state's attorney, for the appellant (respondent).

Daniel J. Krisch, Hartford, assigned counsel, for the appellee (petitioner).

Lavine, Prescott and Sheldon, Js.

PRESCOTT, J.

This appeal highlights the significant hurdle a habeas corpus petitioner faces in seeking to prove a claim of ineffective assistance of trial counsel after trial counsel has died and, thus, is unavailable to provide evidence of counsel's strategic decisions regarding, inter alia, the pursuit of defenses for her client and calling witnesses in support of those defenses. The death of the petitioner's trial counsel prior to a habeas corpus trial, however, does not absolve a petitioner of his heavy burden of overcoming the strong presumption that counsel provided effective assistance. See Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ; see also Slevin v. United States , 71 F. Supp. 2d 348, 358 n.9 (S.D.N.Y. 1999) ("[b]ecause the death of a petitioner's trial counsel is just as, if not more, likely to prejudice the respondent, it does not relieve the petitioner of his heavy burden of proving ineffective assistance" (internal quotation marks omitted)), aff'd, 234 F.3d 1263 (2d Cir. 2000).

The respondent, the Commissioner of Correction, appeals from the judgment of the habeas court granting a petition for a writ of habeas corpus filed by the petitioner, Bryan Jordan. The respondent claims on appeal that the habeas court improperly determined that the petitioner's trial counsel rendered ineffective legal assistance by failing to investigate adequately and to present available witnesses in support of the petitioner's claim of self-defense and, alternatively, by failing to raise the defense of third-party culpability. We agree with the respondent that the habeas court failed to hold the petitioner to the requisite burden of proof and, accordingly, reverse the judgment of the habeas court.

In the underlying criminal matter, the petitioner was charged with murder in violation of General Statutes § 53a-54a (a) and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35. A jury found the petitioner not guilty of murder, but guilty of the lesser included offense of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a (a). The jury also found the petitioner guilty of carrying a pistol or revolver without a permit. The court sentenced the petitioner to a total effective sentence of forty-five years of imprisonment.1

This court briefly summarized the facts underlying the petitioner's criminal conviction in its opinion affirming the judgment of conviction. See State v. Jordan , 117 Conn. App. 160, 161, 978 A.2d 150, cert. denied, 294 Conn. 904, 982 A.2d 648 (2009). "The charges in this case stem from the shooting death of Curtis Hannons [ (victim) ] on September 19, 2005. On the day of the shooting, the [petitioner], the victim and the victim's brother, [Jason Kelly, also known as Mookie] got into an argument. After the argument was broken up, the [petitioner] got into his car and left. A few minutes later, the [petitioner] returned, and another heated discussion took place with the victim. Several people congregated near the two and tried to calm down the [petitioner] and the victim. Three eyewitnesses gave slightly varying accounts of what happened next. All agreed that they heard a gunshot and that the [petitioner] then pulled out a gun and shot the victim once in the head. The [petitioner] ran away, and the witnesses heard about six or seven more gunshots. The victim was transported to a hospital, where he died. The [petitioner] was arrested in Georgia some time later." (Internal quotation marks omitted.) Id., at 161–62, 978 A.2d 150.

On direct appeal, this court rejected the petitioner's claims that prosecutorial improprieties that occurred during the state's closing argument had deprived him of a fair trial2 and that the trial court improperly had precluded him from presenting evidence regarding illegal drugs that were found on the victim. Id., at 161, 170, 978 A.2d 150. In so concluding, this court indicated that "the state's case [against the petitioner] was strong" and "[t]here was sufficient testimony for the jury to conclude that the [petitioner had not been] acting in self-defense ...." Id., at 170, 978 A.2d 150.

The petitioner filed the underlying petition for a writ of habeas corpus on February 11, 2015, which was his third habeas petition challenging his manslaughter conviction.3 Appointed habeas counsel filed the operative eight count revised amended petition on September 26, 2017. Count one alleged that the petitioner's criminal trial counsel, Diane Polan, had provided ineffective assistance of counsel by failing to conduct a proper investigation and by failing to present available evidence supporting the petitioner's assertion that he had shot the victim in self-defense. Count two alleged that Polan also had provided ineffective assistance by failing to impeach one of the state's witnesses, Detective Clarence Willoughby, who had conducted the police investigation of the shooting. Count three alleged a Brady violation4 regarding the state's alleged failure to disclose potential impeachment evidence pertaining to Willoughby. Count four alleged ineffective assistance of counsel by Polan premised on her failure to raise a third-party culpability defense. Count five alleged that Polan provided ineffective assistance of counsel with respect to an issue of alleged juror misconduct. Count six alleged a second Brady violation, this one premised on the state's failure to correct allegedly false testimony by one of its witnesses. Count seven alleged that Polan provided ineffective assistance by failing to object to the prosecutorial impropriety that occurred during closing argument or to request a curative instruction with respect to that impropriety. Finally, count eight alleged that the state improperly failed to disclose evidence of pending criminal charges against one of the state's witnesses. The respondent filed a return that left the petitioner to his proof on all counts of the petition.5

The habeas court, Kwak , J ., conducted a trial on January 22 and February 5, 2018. Significantly, the habeas court did not hear any testimony from Polan regarding her investigative efforts, trial strategy, and other tactical decisions because she had died prior to the habeas trial. Rather, the habeas court heard testimony from the petitioner and eight additional witnesses called on his behalf. Specifically, the petitioner elicited testimony from Polan's former private investigator, Mike O'Donnell, and Attorney Robert McKay, who testified as the petitioner's expert witness on professional standards. The court also heard testimony from the following six witnesses, all of whom allegedly had witnessed events at or around the time of the shooting, but whom Polan did not call to testify at the criminal trial: Alexis Jordan, the petitioner's niece; the petitioner's sisters, Jymisha Freeman and Audrey Jordan; Flonda Jones, a friend of both the petitioner and the victim; James Walker, a relative of the victim; and Billy Wright, an acquaintance of both the petitioner and the victim. The court also admitted into evidence as full exhibits copies of the transcripts of the entire criminal trial. A written statement given by Jones to O'Donnell prior to the criminal trial also was admitted as a full exhibit.

Following the habeas trial, both parties submitted posttrial briefs, and the petitioner filed a posttrial reply brief. In his posttrial brief, the petitioner withdrew counts three, five, six, and eight of his petition, electing to pursue only the remaining four counts, all of which alleged ineffective assistance by Polan as trial counsel.

The habeas court issued a memorandum of decision on October 1, 2018, in which it granted the petition for a writ of habeas corpus on the basis of two of the four counts of ineffective assistance. Specifically, the habeas court determined that, with respect to counts one and four, the petitioner had met his burden of demonstrating that Polan had rendered constitutionally deficient performance by failing to investigate properly or to present available evidence in support of the petitioner's claim of self-defense and by failing properly to investigate, raise, or present evidence in support of a third-party culpability defense. The habeas court further determined that the petitioner had demonstrated that these deficiencies in counsel's performance had prejudiced him by unduly diminishing his due process right to establish a defense. The habeas court rejected the petitioner's other claims of ineffective assistance.6 The habeas court vacated the petitioner's manslaughter conviction and remanded the matter to the trial court for further proceedings. Following the granting of his petition for certification to appeal,7 the respondent filed the present appeal. Additional facts will be set forth as needed.

I

We begin our discussion by setting forth guiding principles of law as well as our standard of review, which are well settled. "A criminal defendant's right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution. ...8 To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington , [supra, 466 U.S. at 687, 104 S.Ct. 2052 ]. Strickland requires...

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