Wright v. Comm'r of Corr.

• Decision Date: 07 December 2021
• Docket Number: AC 43607
• Citation: 267 A.3d 249,209 Conn.App. 50
• Parties: Billy WRIGHT v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

209 Conn.App. 50

267 A.3d 249

Billy WRIGHT

v.COMMISSIONER OF CORRECTION

AC 43607

Appellate Court of Connecticut.

Argued May 19, 2021

Officially released December 7, 2021

Jonathan M. Sousa, deputy assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Adrienne Russo, assistant state's attorney, for the appellant (respondent).

Adele V. Patterson, senior assistant public defender, for the appellee (petitioner).

Moll, Alexander and Vertefeuille, Js.

ALEXANDER, J.

The respondent, the Commissioner of Correction, appeals from the judgment of the habeas court granting the petition for a writ of habeas corpus filed by the petitioner, Billy Wright. On appeal, the respondent claims that the court incorrectly determined that the petitioner's criminal trial counsel had rendered ineffective assistance by failing to present an alibi defense. We agree and, accordingly, reverse the judgment of the habeas court.

The petitioner was originally tried in 2010 for the April 27, 2008 murder of Ronald Bethea in violation of General Statutes § 53a-54a (a). State v. Wright , 152 Conn. App. 260, 261, 96 A.3d 638 (2014), rev'd, 322 Conn. 270, 140 A.3d 939 (2016).¹ The murder occurred outside of the Cardinal's Club in New Haven at approximately 1:47 a.m. Id., 262–63, 96 A.3d 638. The trial court declared a mistrial after a hung jury, and a retrial took place in 2011. Id., 261–62, 96 A.3d 638. At the second trial, the jury found the petitioner guilty of murder, and the court imposed a sentence of sixty years of imprisonment. Id., 262, 96 A.3d 638.

The petitioner initiated this habeas action, and, on March 1, 2018, he filed an amended petition that contained four counts. Only the first count, in which the petitioner alleged ineffective assistance of his criminal trial counsel, Richard Silverstein, for, inter alia, failing to present an alibi defense at his second criminal trial, is relevant to this appeal.² With respect to this claim, the petitioner alleged that a "fundamental difference between the first and second trials was that [Silverstein] did not pursue an alibi defense and did not produce evidence which established an alibi defense which had been produced at the first trial. An inference can be drawn that, but for trial counsel's failure to produce an alibi defense and evidence in support of an alibi defense, the result of the petitioner's second trial would have been different."

A trial on the petitioner's habeas petition was held on July 12 and August 30, 2018, and January 11 and February 28, 2019. The petitioner presented multiple witnesses. Stephanie Gonzalez, the petitioner's girlfriend at the time of the shooting and the mother of his child, testified in a manner consistent with her testimony at the petitioner's first criminal trial. She stated that, on the night the victim was shot, she got home between 11:30 p.m. and 12 a.m. after picking up their son from her grandmother's house. When she arrived home, the petitioner was asleep in their apartment. She further explained that she slept in the same bed as the petitioner and woke up a few times when her son woke up, "around 3, 4 then around, like, 6, 7 [o'clock] in the morning." Each time she woke up, the petitioner was still asleep in their bed. She further testified that she met with Silverstein about testifying at the petitioner's second criminal trial. When she arrived at Silverstein's office on the morning she planned to testify, however, he told her she would not have to testify because "[h]e felt like he had a strong case and he didn't need me ...."

Attorney Jeffrey Kestenband testified as a criminal defense expert. In this capacity, he opined "that reasonably competent trial counsel would have called ... Gonzalez to testify as an alibi witness at the second trial." He explained that Gonzalez’ testimony provided direct evidence that the petitioner had an alibi for the time of the crime. Further, Kestenband testified that the lack of a jury verdict in the first trial, as well as the fact that the jury in the first trial asked to have Gonzalez’ testimony read back during its deliberations, suggested that at least some jurors credited her testimony. He emphasized the importance of the hung jury, stating that "[i]t was six to six,³ which would tend to suggest that the state had a hard time proving its case, and when you also consider the fact that [Gonzalez] not only provided evidence that, if credited, would have established that [the petitioner] was not guilty, but that she was the only witness called by the defense. That is really important information to consider when deciding how to defend [the petitioner] at the second trial." (Footnote added.) Kestenband also opined that there was a reasonable probability that a different outcome would have occurred in the petitioner's second trial if Silverstein had called Gonzalez and presented an alibi defense. On cross-examination, Kestenband admitted that it was possible that the jurors from the first trial did not credit Gonzalez’ testimony, and, instead, found that the state had not proven its case beyond a reasonable doubt. However, he also stated that, "when I consider evidence as an expert and analyze it that way, I'm not really focusing on possibilities because almost anything is possible. I'm focused on reasonable probabilities, and while [I] acknowledge that it's possible, I find it unlikely that it's reasonably probable that that occurred."

Silverstein testified that his defense theory was to show that the police had conducted a flawed and incomplete investigation, and he stated that he "had to change it up" from the defense presented in the first trial because he was "not gonna try the same case that didn't result in a not guilty." Silverstein also attacked the state's identification evidence against the petitioner during the second criminal trial. He believed that the jury in the first trial had voted eleven to one or ten to two in favor of convicting, and stated that he had ordered the transcripts of the first trial only through closing arguments, because "anything after the closing argument I'm not interested in ...." After he was informed that the hung jury actually was divided six to six, Silverstein said that would not change how he handled the petitioner's defense. Silverstein explained that he did not recall speaking to Gonzalez during the petitioner's trial but also testified that he reviewed her testimony from the first trial and "didn't find her credible and didn't think she'd do a good job, and I didn't think she did a good job during the first case ...." He believed that, if Gonzalez had been credible at the first trial, the jury would have returned a not guilty verdict. He further explained that he listed Gonzalez as a potential witness, served her with a subpoena, and informed the trial court that he intended to call her as a witness in order to keep the prosecutor "off balance as much as possible" even though he "had no intention of doing it ...."

On October 25, 2019, the habeas court issued a memorandum of decision granting the petition for a writ of habeas corpus on the ground that Silverstein rendered ineffective assistance of counsel when he failed to present an alibi defense.⁴ It concluded that Silverstein rendered deficient performance when he did not call Gonzalez as an alibi witness and that this deficient performance prejudiced the petitioner. The court vacated the petitioner's conviction and remanded the case for a new criminal trial.

The court discussed the evidence presented at the petitioner's first and second trials, stating that there were "several notable differences," with one being that Gonzalez was not called as an alibi witness at the second trial. The court then addressed the testimony presented at the habeas trial. It discussed Gonzalez’ testimony that the petitioner was asleep when she arrived home and remained there until morning, as well as the fact that Gonzalez was available to testify at the petitioner's second trial and had met with Silverstein the day he was scheduled to present the defense. The court found Gonzalez’ testimony to be credible. The court noted Kestenband's testimony and found his "analyses to be persuasive." The court stated that Kestenband "concluded that reasonably competent trial counsel would have called Gonzalez as an alibi witness in the second trial. The impact that Gonzalez had on the first trial weighs in favor of calling her to discredit or negate Denard Lester's testimony in the second trial.⁵ According to Kestenband, it was unreasonable for Silverstein to not call Gonzalez as an alibi witness because no one identified the petitioner as the shooter, but more than one witness placed the petitioner at the [Cardinal's] Club. Gonzalez’ testimony would directly contradict the tenuous identification evidence that placed the petitioner at the club.... Thus, it was more important to call Gonzalez in the second trial when compared to the first trial." (Footnote added.)

In its decision, the court emphasized the hung jury in the petitioner's first trial and the jury's request for a playback of Gonzalez’ testimony. The court stated that, "[a]lthough it is not possible to discern the individual jurors’ credibility assessments, the only defense evidence that contradicted the circumstantial evidence ... was the alibi supported by Gonzalez. Stated some-what differently, all twelve jurors in the second trial found the tenuous circumstantial evidence sufficient to convict the petitioner, yet one half of the first jury was not able to conclude that the state had met its burden of proof in light of the alibi provided by Gonzalez. Clearly , Gonzalez had an impact on the outcome of the first trial. " (Emphasis added.) The court found that Silverstein made his assessments about Gonzalez’ testimony "without the knowledge that the jury was evenly divided in the first trial. Silverstein's oblique assessment of her alibi testimony was...