Skakel v. Comm'r of Corr., SC 19251

• Court: Supreme Court of Connecticut
• Writing for the Court: PALMER, J.
• Citation: 188 A.3d 1,329 Conn. 1
• Parties: Michael SKAKEL v. COMMISSIONER OF CORRECTION
• Docket Number: SC 19251
• Decision Date: 04 May 2018

329 Conn. 1
188 A.3d 1

Michael SKAKEL
v.
COMMISSIONER OF CORRECTION^*

SC 19251

Supreme Court of Connecticut.

Argued February 24, 2016
Officially released May 4, 2018^**

188 A.3d 5

Susann E. Gill, former supervisory assistant state's attorney, with whom were James A. Killen, senior assistant state's attorney, and, on the brief, Kevin T. Kane, chief state's attorney, John C. Smriga, state's attorney, Leonard C. Boyle, deputy chief state's attorney for operations, and Jonathan C. Benedict, former state's attorney, for the appellant-cross appellee (respondent).

Hubert J. Santos, Hartford, with whom was Jessica M. Walker, for the appellee-cross appellant (petitioner).

Palmer, Eveleigh, McDonald, Espinosa, Robinson, Vertefeuille and D'Auria, Js.^***

PALMER, J.

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188 A.3d 6

The sole issue now before us in this appeal by the respondent, the Commissioner of Correction,

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is whether the habeas court properly concluded that the petitioner, Michael Skakel, is entitled to a new trial because counsel in his murder case, Michael Sherman, rendered ineffective assistance by failing to obtain certain readily available evidence that he should have known was potentially critical to the petitioner's alibi defense, that is, the testimony of a disinterested alibi witness whom the habeas court found to be highly credible. Because we agree with the habeas court both that Sherman's failure to secure that evidence was constitutionally inexcusable and that that deficiency undermines confidence in the reliability of the petitioner's conviction—a conviction founded on a case, aptly characterized by the habeas court as far from overwhelming, that was devoid of any forensic evidence or eyewitness testimony linking the petitioner to the crime—we affirm the judgment of the habeas court ordering a new trial.

This case comes to this court again under the following circumstances. In 2002, a jury found the petitioner guilty of the brutal murder of his fifteen year old neighbor, Martha Moxley (victim), whose bludgeoned and partially unclothed body was discovered on October 31, 1975, behind her parents' home in the Belle Haven section of the town of Greenwich. This court affirmed his conviction; State v. Skakel , 276 Conn. 633, 770, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S.Ct. 578, 166 L.Ed.2d 428 (2006) ; and, thereafter, the petitioner filed a petition for a writ of habeas corpus, principally claiming that his trial counsel, Sherman, had rendered ineffective assistance in numerous respects. The habeas court, Hon. Thomas A. Bishop , judge trial referee, agreed with several of the petitioner's claims, among them that Sherman had performed deficiently in investigating and presenting the petitioner's alibi defense by failing to adduce the testimony of a truthful and crucial alibi witness, Denis Ossorio. The habeas court further concluded that, in light of the relative weakness of the

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state's case and the powerful support that Ossorio's testimony provided for the petitioner's alibi, Sherman's deficient performance had so seriously prejudiced the petitioner that it is reasonably probable that the outcome of the petitioner's criminal trial would have been different if the jury had heard from Ossorio. The habeas court therefore rendered judgment granting the petition, ordering a new trial for the petitioner, and the respondent appealed. On appeal, in a closely divided decision, this court reversed the judgment of the habeas court, concluding that the petitioner had failed to prove any of his claims of

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ineffective assistance. See Skakel v. Commissioner of Correction , 325 Conn. 426, 430–31, 531, 159 A.3d 109 (2016).¹ The petitioner thereafter filed a timely motion for reconsideration en banc, limited to his claim that Sherman's performance with respect to the petitioner's alibi defense was constitutionally inadequate. We granted the petitioner's motion, and, upon reconsideration, we now conclude that the habeas court correctly determined that the petitioner is entitled to a new trial due to Sherman's failure to adequately investigate and present the petitioner's alibi defense, which rendered the petitioner's trial fundamentally unfair. Accordingly, we affirm the judgment of the habeas court.

I

FACTS AND PROCEDURAL HISTORY

The facts of this tragic case, which arises out of events that transpired more than forty years ago, are set forth in considerable detail in the habeas court's memorandum of decision and in this court's decision

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on the petitioner's direct appeal.² See State v. Skakel , supra, 276 Conn. at 640–53, 888 A.2d 985. For present purposes, we focus our attention on those facts and the procedural history that are most relevant to the respondent's claim that the habeas court incorrectly determined that Sherman rendered ineffective assistance of counsel in connection with his investigation and presentation of the petitioner's alibi defense. We more fully address all of the evidence presented in support of the conviction, however, later in this opinion when we consider whether Sherman's performance prejudiced the petitioner.

Those facts are rather extensive but may be summarized as follows. In the early afternoon of October 31, 1975, the victim's body was discovered under a pine tree behind her parents' home. She had been severely and repeatedly beaten with a golf club, which was later determined to have belonged to the petitioner's then deceased mother. The victim had been last seen at approximately 9:30 p.m. on October 30, 1975, standing with the petitioner's seventeen year old brother, Thomas Skakel, in the Skakel family's driveway. The location where the police determined that the victim was attacked was along what would have been the most direct route between where she was last seen and her parents' home, indicating that she was likely murdered as she made her way home from the Skakel driveway.

Earlier that evening, at approximately 6:30 p.m., the victim had left her house to celebrate mischief night—the night before Halloween—with her friend, Helen Ix, and other children from the neighborhood. When the victim left her house, the petitioner, then fifteen years

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old, and his six siblings, Rushton Skakel, Jr., Julie Skakel, Thomas Skakel, John Skakel, David Skakel and Stephen Skakel, together with their

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cousin James Terrien, their tutor Kenneth Littleton, and Julie Skakel's friend, Andrea Shakespeare, were having dinner at the Belle Haven Club. This group returned home from dinner shortly before 9 p.m., at which time the victim, Ix, and eleven year old Geoffrey Byrne came by the Skakel house to visit.

The petitioner immediately led the visitors outside, where they all climbed into the Skakel family's Lincoln Continental to talk and listen to music. Shortly thereafter, Thomas Skakel joined them in the Lincoln. At approximately 9:25 p.m., the group was interrupted by Rushton Skakel, Jr., John Skakel and Terrien, who told them that they needed to use the car to take Terrien home, where they planned to watch Monty Python's Flying Circus, a television show, at 10 p.m. At that point, the victim, Ix, Byrne and Thomas Skakel got out of the car, while Rushton Skakel, Jr., John Skakel and Terrien got into the car with the petitioner. Upon exiting the car, Thomas Skakel and the victim began roughhousing in a flirtatious manner, which made Ix uncomfortable, prompting her, along with Byrne, to leave. According to Ix, the Lincoln was pulling out of the driveway as she and Byrne began walking home, leaving Thomas Skakel and the victim alone in the driveway. That was the last time any of the victim's friends reported seeing her.³

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Ix arrived home at about 9:30 p.m. and telephoned a friend. At approximately 9:45 p.m., Ix' dog, an Australian shepherd named "Zock," began barking violently near the entrance to the victim's driveway, located directly across the street from the entrance to Ix' driveway. The barking was so incessant and agitated that Ix put down the telephone and opened the door to call the dog inside. Although, previously, Zock had always come when called, that night he refused to come no matter how fervently and repeatedly Ix called to him. In interviews with the police following the murder, and in testimony at the petitioner's criminal trial twenty-seven years later, Ix stated that, prior to that evening, she had never seen her dog behave in such an agitated manner. Ix explained that his barking that night, which she described as "scared" and "violent," was very different from the way he usually barked; he "was definitely disturbed by something that was going on," and he "was basically barking in the direction of the site where [the victim's] body was found [the next day]." The police later determined,...