CECIL GRANT v. COMMISSIONER OF CORRECTION, SC 21019

Judicial District of Tolland

Habeas; Whether Criminal Trial Counsel Rendered Ineffective Assistance in Failure to Investigate Witness Cell Phone Records and to Present Additional Alibi Testimony; Whether Cumulative Effect of Separate Occurrences of Ineffective Assistance May Be Considered in Evaluating Whether Petitioner Was Prejudiced. While investigating the assault and attempted carjacking of a pizza delivery person, the police traced the cell phone number listed on the order slip to Gustin Douglas. Upon questioning, Douglas told police that the petitioner and another friend, Derek Newkirk, had been present in Douglas' apartment shortly before the incident, that the petitioner and Newkirk had been making specific plans to rob a delivery driver, and that the petitioner had used Douglas' cell phone to call several pizza places to identify a restaurant with delivery drivers who carried cash. Douglas' account was partially corroborated by the victim, who identified the petitioner and Newkirk as the perpetrators. The petitioner was thereafter arrested and charged with conspiracy to commit first degree robbery, attempt to commit first degree robbery, and first degree assault. In an attempt to establish an alibi, the petitioner testified at trial that his brother's fiancée, Vanessa Cooper, had dropped him off at his home an hour before the crimes occurred and that he remained home for the rest of the evening. Cooper likewise testified that she and her children had driven the petitioner home that night. The petitioner was ultimately found guilty of all charges. After his conviction was affirmed, the petitioner commenced the present habeas action, claiming in relevant part that his criminal trial counsel, Attorney Kirsten B. Coffin, had rendered ineffective assistance by failing to investigate the issue of the phone calls made from Douglas' phone on the night of the incident to disprove Douglas' account. He also alleged that Attorney Coffin had rendered ineffective assistance by failing to investigate Cooper's children as potential alibi witnesses. At the habeas trial, the petitioner presented the testimony and report of a private investigator who had reviewed the phone records in the state's files and opined that Douglas' phone likely had not been used to call the pizza place and that there was a gap in usage during the time the shooting took place. Coffin testified that she had not reviewed these records for fear of the harm they could have caused the defense. As to alibi witnesses, Coffin testified that she had decided not to call Cooper's minor children to testify because of the potential negative impact on the jury of doing so and that their testimony would have been cumulative. The habeas court denied the petition, finding that the petitioner had proven neither deficient performance nor prejudice, both of which are required to sustain an ineffective assistance claim under Strickland v. Washington, 468 U.S. 668 (1984). On appeal, the Appellate Court (225 Conn. App. 55) agreed with the petitioner that Coffin had been ineffective in failing to investigate the phone records and faulted her for failing to at least interview Cooper's children. The Appellate Court concluded, however, that the petitioner had failed to establish prejudice. It determined that it would be speculative to find that the discrepancy between Douglas' testimony and his phone records would likely have caused the jury to doubt all of his testimony because most of the testimony was corroborated by the victim. The court also deemed it unlikely that the children's testimony would have changed the outcome of the criminal trial because it was cumulative of Cooper's testimony and did not actually provide the petitioner with an alibi for the crimes. The Appellate Court therefore affirmed the habeas court's judgment. Our Supreme Court subsequently granted the petitioner certification to appeal and will now decide whether the Appellate Court correctly concluded that the petitioner had failed to establish prejudice on the basis of trial counsel's deficient performance in failing to investigate Douglas' phone records and had failed to establish his claim of ineffective assistance of counsel on the basis of trial counsel's failure to present additional alibi testimony. If the Supreme Court determines that the petitioner established deficient performance on both fronts but did not independently establish prejudice, it will further determine whether the cumulative effect of the deficiencies should be considered in evaluating whether the prejudice prong has been satisfied.