third-party culpability defense in Connecticut

2016Under the well established "objective standard of reasonableness" set forth in Strickland v. Washington , supra, 466 U.S. at 688 , 104 S.Ct. 2052 , a reasonable attorney might have chosen to present a third-party culpability defense implicating Littleton, rather than Thomas Skakel, despite the rather scarce evidence against Littleton.

2016Under the well established "objective standard of reasonableness" set forth in Strickland v. Washington , supra, 466 U.S. at 688 , 104 S.Ct. 2052 , a reasonable attorney might have chosen to present a third-party culpability defense implicating Littleton, rather than Thomas Skakel, despite the rather scarce evidence against Littleton.

2017It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused.’’ (Citations omitted; internal quotation marks omitted.) State v. Hernandez, 224 Conn. 196, 202 , 618 A.2d 494 (1992).

2017It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused.’’ (Citations omitted; internal quotation marks omitted.) State v. Hernandez, 224 Conn. 196, 202 , 618 A.2d 494 (1992).

2022We begin by setting forth our well settled standard of review governing ineffective assistance of counsel claims. ‘‘In a habeas appeal, this court cannot disturb the under- lying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assis- tance of counsel is plenary.’’ (Internal quotation marks omitted.) McClean v. Commissioner of Correction, 103 Conn. App. 254, 262 , 930 A.2d 693 (2007), cert. denied, 285 Conn. 913 , 943 A.2d 473 (2008).

2015Specifically, the peti- tioner argues that Kirschbaum was ineffective because he failed to investigate the state’s case and witnesses, the petitioner’s third-party culpability claim, and the petitioner’s alibi defense.4 We begin by setting forth our well settled standard of review governing ineffective assistance of counsel claims. ‘‘In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to eff

2022We begin by setting forth our well settled standard of review governing ineffective assistance of counsel claims. ‘‘In a habeas appeal, this court cannot disturb the under- lying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assis- tance of counsel is plenary.’’ (Internal quotation marks omitted.) McClean v. Commissioner of Correction, 103 Conn. App. 254, 262 , 930 A.2d 693 (2007), cert. denied, 285 Conn. 913 , 943 A.2d 473 (2008).

2015Specifically, the peti- tioner argues that Kirschbaum was ineffective because he failed to investigate the state’s case and witnesses, the petitioner’s third-party culpability claim, and the petitioner’s alibi defense.4 We begin by setting forth our well settled standard of review governing ineffective assistance of counsel claims. ‘‘In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to eff

2015Specifically, the peti- tioner argues that Kirschbaum was ineffective because he failed to investigate the state’s case and witnesses, the petitioner’s third-party culpability claim, and the petitioner’s alibi defense.4 We begin by setting forth our well settled standard of review governing ineffective assistance of counsel claims. ‘‘In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to eff

2015Specifically, the peti- tioner argues that Kirschbaum was ineffective because he failed to investigate the state’s case and witnesses, the petitioner’s third-party culpability claim, and the petitioner’s alibi defense.4 We begin by setting forth our well settled standard of review governing ineffective assistance of counsel claims. ‘‘In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to eff

2020See, e.g., Floyd v. Commissioner of Correction, 99 Conn. App. 526 , 531–32, 914 A.2d 1049 (testimony of drug dealers/gang members insufficient to render counsel’s failure to raise third-party culpability claim deficient performance), cert. denied, 282 Conn. 905 , 920 A.2d 308 (2007); Daniel v. Commissioner of Correction, 57 Conn. App. 651, 684 , 751 A.2d 398 (failure to raise third-party culpability defense did not constitute deficient perfor- mance because inconsistent testimony regarding iden- tity of third party), cert. denied, 254 Conn. 918 , 759 A.2d 1024 (2000).

2020See, e.g., Floyd v. Commissioner of Correction, 99 Conn. App. 526 , 531–32, 914 A.2d 1049 (testimony of drug dealers/gang members insufficient to render counsel’s failure to raise third-party culpability claim deficient performance), cert. denied, 282 Conn. 905 , 920 A.2d 308 (2007); Daniel v. Commissioner of Correction, 57 Conn. App. 651, 684 , 751 A.2d 398 (failure to raise third-party culpability defense did not constitute deficient perfor- mance because inconsistent testimony regarding iden- tity of third party), cert. denied, 254 Conn. 918 , 759 A.2d 1024 (2000).

2020See, e.g., Floyd v. Commissioner of Correction, 99 Conn. App. 526 , 531–32, 914 A.2d 1049 (testimony of drug dealers/gang members insufficient to render counsel’s failure to raise third-party culpability claim deficient performance), cert. denied, 282 Conn. 905 , 920 A.2d 308 (2007); Daniel v. Commissioner of Correction, 57 Conn. App. 651, 684 , 751 A.2d 398 (failure to raise third-party culpability defense did not constitute deficient perfor- mance because inconsistent testimony regarding iden- tity of third party), cert. denied, 254 Conn. 918 , 759 A.2d 1024 (2000).

2009See Dunkley v. Commissioner of Correction, 73 Conn. App. 819, 827 , 810 A.2d 281 (2002) (no evidence to support third party claim, in part, because no one at scene implicated alleged third party), cert. denied, 262 Conn. 953 , 818 A.2d 780 (2003); see also Floyd v. Commissioner of Correction, 99 Conn. App. 526, 531-32 , 914 A.2d 1049 (insufficient evidence to substantiate third party claim when predicated on alleged testimony of unlocated drug dealers who were also gang members), cert. denied, 282 Conn. 905 , 920 A.2d 308 (2007); Santiago v. Commissioner of Correction, 87 Conn. App. 568, 591-9

2020See, e.g., Floyd v. Commissioner of Correction, 99 Conn. App. 526 , 531–32, 914 A.2d 1049 (testimony of drug dealers/gang members insufficient to render counsel’s failure to raise third-party culpability claim deficient performance), cert. denied, 282 Conn. 905 , 920 A.2d 308 (2007); Daniel v. Commissioner of Correction, 57 Conn. App. 651, 684 , 751 A.2d 398 (failure to raise third-party culpability defense did not constitute deficient perfor- mance because inconsistent testimony regarding iden- tity of third party), cert. denied, 254 Conn. 918 , 759 A.2d 1024 (2000).

2009See Dunkley v. Commissioner of Correction, 73 Conn. App. 819, 827 , 810 A.2d 281 (2002) (no evidence to support third party claim, in part, because no one at scene implicated alleged third party), cert. denied, 262 Conn. 953 , 818 A.2d 780 (2003); see also Floyd v. Commissioner of Correction, 99 Conn. App. 526, 531-32 , 914 A.2d 1049 (insufficient evidence to substantiate third party claim when predicated on alleged testimony of unlocated drug dealers who were also gang members), cert. denied, 282 Conn. 905 , 920 A.2d 308 (2007); Santiago v. Commissioner of Correction, 87 Conn. App. 568, 591-9

2014“It is not ineffective assistance of counsel ... to decline to pursue a third party culpability defense when there is insufficient evidence to support that defense.” Bryant v. Commissioner of Correction, 290 Conn. 502, 515 , 964 A.2d 1186 (citing cases), cert. denied sub nom.

2014“It is not ineffective assistance of counsel ... to decline to pursue a third party culpability defense when there is insufficient evidence to support that defense.” Bryant v. Commissioner of Correction, 290 Conn. 502, 515 , 964 A.2d 1186 (citing cases), cert. denied sub nom.

2018The defendant does not challenge the court's ruling that the statements by the victim's father and sister were inadmissible hearsay. "[T]he right of an accused to offer evidence of a person's character, past criminal convictions or other prior bad acts, in support of a third party culpability defense, also is compelled by the right to present a defense guaranteed by the sixth amendment, and, as a general matter, its use should be limited only by the rules relating to relevancy and balancing.... [T]he policies underlying" § 4-4 (a) [character evidence] and 4-5 (a) [prior misconduct evidence] of

2018The defendant does not challenge the court's ruling that the statements by the victim's father and sister were inadmissible hearsay. "[T]he right of an accused to offer evidence of a person's character, past criminal convictions or other prior bad acts, in support of a third party culpability defense, also is compelled by the right to present a defense guaranteed by the sixth amendment, and, as a general matter, its use should be limited only by the rules relating to relevancy and balancing.... [T]he policies underlying" § 4-4 (a) [character evidence] and 4-5 (a) [prior misconduct evidence] of

2022J., concurred. 1 Trial counsel initially considered claiming that the petitioner had acted in self-defense, but he later decided to present a third-party culpability defense instead. 2 ‘‘A capias is a vehicle to compel attendance at a judicial proceeding.’’ State v. Shawn G., 208 Conn. App. 154, 176 , 262 A.3d 835 , cert. denied, 340 Conn. 907 , 263 A.3d 822 (2021).

2022Because this evidence was vital to the jury’s assessment of Mil- ton’s credibility, the defendant’s third-party culpability defense, and the pivotal issue of identity, I believe that its improper exclusion was harmful.9 See, e.g., State v. Fernando V., supra, 331 Conn. 223–24 (‘‘[when] credibil- ity is an issue and, thus, the jury’s assessment of who is telling the truth is critical, an error affecting the jury’s ability to assess a [witness’] credibility is not harmless error’’ (internal quotation marks omitted)); State v. Cer- reta, 260 Conn. 251, 265 , 796 A.2d 1176 (2002) (improper exclusi

2022Because this evidence was vital to the jury’s assessment of Mil- ton’s credibility, the defendant’s third-party culpability defense, and the pivotal issue of identity, I believe that its improper exclusion was harmful.9 See, e.g., State v. Fernando V., supra, 331 Conn. 223–24 (‘‘[when] credibil- ity is an issue and, thus, the jury’s assessment of who is telling the truth is critical, an error affecting the jury’s ability to assess a [witness’] credibility is not harmless error’’ (internal quotation marks omitted)); State v. Cer- reta, 260 Conn. 251, 265 , 796 A.2d 1176 (2002) (improper exclusi

2022Because this evidence was vital to the jury’s assessment of Mil- ton’s credibility, the defendant’s third-party culpability defense, and the pivotal issue of identity, I believe that its improper exclusion was harmful.9 See, e.g., State v. Fernando V., supra, 331 Conn. 223–24 (‘‘[when] credibil- ity is an issue and, thus, the jury’s assessment of who is telling the truth is critical, an error affecting the jury’s ability to assess a [witness’] credibility is not harmless error’’ (internal quotation marks omitted)); State v. Cer- reta, 260 Conn. 251, 265 , 796 A.2d 1176 (2002) (improper exclusi

2022Because this evidence was vital to the jury’s assessment of Mil- ton’s credibility, the defendant’s third-party culpability defense, and the pivotal issue of identity, I believe that its improper exclusion was harmful.9 See, e.g., State v. Fernando V., supra, 331 Conn. 223–24 (‘‘[when] credibil- ity is an issue and, thus, the jury’s assessment of who is telling the truth is critical, an error affecting the jury’s ability to assess a [witness’] credibility is not harmless error’’ (internal quotation marks omitted)); State v. Cer- reta, 260 Conn. 251, 265 , 796 A.2d 1176 (2002) (improper exclusi

2022Because this evidence was vital to the jury’s assessment of Mil- ton’s credibility, the defendant’s third-party culpability defense, and the pivotal issue of identity, I believe that its improper exclusion was harmful.9 See, e.g., State v. Fernando V., supra, 331 Conn. 223–24 (‘‘[when] credibil- ity is an issue and, thus, the jury’s assessment of who is telling the truth is critical, an error affecting the jury’s ability to assess a [witness’] credibility is not harmless error’’ (internal quotation marks omitted)); State v. Cer- reta, 260 Conn. 251, 265 , 796 A.2d 1176 (2002) (improper exclusi

2022Because this evidence was vital to the jury’s assessment of Mil- ton’s credibility, the defendant’s third-party culpability defense, and the pivotal issue of identity, I believe that its improper exclusion was harmful.9 See, e.g., State v. Fernando V., supra, 331 Conn. 223–24 (‘‘[when] credibil- ity is an issue and, thus, the jury’s assessment of who is telling the truth is critical, an error affecting the jury’s ability to assess a [witness’] credibility is not harmless error’’ (internal quotation marks omitted)); State v. Cer- reta, 260 Conn. 251, 265 , 796 A.2d 1176 (2002) (improper exclusi

2020Having heard argument on the issue, the trial court agreed with the defendant that—as to Jones—a third-party culpability instruction was justified because the evidence was sufficient to establish a direct connection between Jones and the crime. 16 Citing to State v. Inglis, 151 Conn. App. 283 , 296–97, 94 A.3d 1204 , cert. denied, 314 Conn. 920 , 100 A.3d 851 (2014), cert. denied, 575 U.S. 918 , 135 S. Ct. 1559 , 191 L.

2020Having heard argument on the issue, the trial court agreed with the defendant that—as to Jones—a third-party culpability instruction was justified because the evidence was sufficient to establish a direct connection between Jones and the crime. 16 Citing to State v. Inglis, 151 Conn. App. 283 , 296–97, 94 A.3d 1204 , cert. denied, 314 Conn. 920 , 100 A.3d 851 (2014), cert. denied, 575 U.S. 918 , 135 S. Ct. 1559 , 191 L.

2019As we observed in the compan- ion case of Henning v. Commissioner of Correction, supra, 334 Conn. 1 , ‘‘[t]he petitioner also claimed actual innocence on the basis of, among other things, numer- ous DNA tests conducted over the last decade by the Connecticut Forensic Science Laboratory, which had excluded the petitioner, [Henning], and Yablonski as the source of DNA recovered from the crime scene, and had revealed the DNA of an unknown female on four key pieces of evidence with which the assailants were known or thought to have come in contact. 13 Finally, the petitioner alleged that the state

2019As we observed in the compan- ion case of Henning v. Commissioner of Correction, supra, 334 Conn. 1 , ‘‘[t]he petitioner also claimed actual innocence on the basis of, among other things, numer- ous DNA tests conducted over the last decade by the Connecticut Forensic Science Laboratory, which had excluded the petitioner, [Henning], and Yablonski as the source of DNA recovered from the crime scene, and had revealed the DNA of an unknown female on four key pieces of evidence with which the assailants were known or thought to have come in contact. 13 Finally, the petitioner alleged that the state

2019This court ultimately held that "when viewed in a light most favorable to the defendant, the proffered DNA and fingerprint evidence only indirectly and tenuously implicated third parties without directly absolving or exculpating the defendant, [and] the court did not abuse its discretion by refusing to give a third party culpability instruction." (Emphasis added.) Id., at 138-39 , 60 A.3d 1011 .

2019This court ultimately held that "when viewed in a light most favorable to the defendant, the proffered DNA and fingerprint evidence only indirectly and tenuously implicated third parties without directly absolving or exculpating the defendant, [and] the court did not abuse its discretion by refusing to give a third party culpability instruction." (Emphasis added.) Id., at 138-39 , 60 A.3d 1011 .

2019As we observed in the compan- ion case of Henning v. Commissioner of Correction, supra, 334 Conn. 1 , ‘‘[t]he petitioner also claimed actual innocence on the basis of, among other things, numer- ous DNA tests conducted over the last decade by the Connecticut Forensic Science Laboratory, which had excluded the petitioner, [Henning], and Yablonski as the source of DNA recovered from the crime scene, and had revealed the DNA of an unknown female on four key pieces of evidence with which the assailants were known or thought to have come in contact. 13 Finally, the petitioner alleged that the state

2019I A The jury in the underlying criminal case reasonably could have found the following facts, as set forth in this court's decision in State v. Johnson , 288 Conn. 236 , 951 A.2d 1257 (2008), which affirmed the trial court's judgment of conviction on direct appeal: "The [petitioner] shot and killed the sixteen year old victim, Markeith Strong, on the evening of October 10, 2001, in New Haven.

2019I A The jury in the underlying criminal case reasonably could have found the following facts, as set forth in this court's decision in State v. Johnson , 288 Conn. 236 , 951 A.2d 1257 (2008), which affirmed the trial court's judgment of conviction on direct appeal: "The [petitioner] shot and killed the sixteen year old victim, Markeith Strong, on the evening of October 10, 2001, in New Haven.

2019Id., at 117 , 140 A.3d 1087 .

2019Id., at 117 , 140 A.3d 1087 .

2019As we observed in the compan- ion case of Henning v. Commissioner of Correction, supra, 334 Conn. 1 , ‘‘[t]he petitioner also claimed actual innocence on the basis of, among other things, numer- ous DNA tests conducted over the last decade by the Connecticut Forensic Science Laboratory, which had excluded the petitioner, [Henning], and Yablonski as the source of DNA recovered from the crime scene, and had revealed the DNA of an unknown female on four key pieces of evidence with which the assailants were known or thought to have come in contact. 13 Finally, the petitioner alleged that the state