NORMAN GAINES v. COMMISSIONER OF CORRECTION, SC 18760

Judicial District of Tolland

     Habeas; Whether Trial Counsel was Ineffective in Failing to Call Certain Witnesses in Support of an Alibi Defense; Whether the Petitioner's Case was Prejudiced by Counsel’s Performance.  On October 29, 1996, Gary Louis-Jeune and Marsha Larose were shot and killed by two men in Bridgeport.  The petitioner was charged with murder and other crimes in connection with the shooting.  At trial, Torrance McClain and Eleanor Figueroa gave testimony inculpating the petitioner in the crimes.  The petitioner was convicted and he brought this habeas action, claiming, inter alia, that his trial counsel, Alexander Schwartz, rendered ineffective assistance in failing to investigate and to present at trial two witnesses—Madeline Rivera and her mother, Luz Davila—whose testimony would have supported an alibi defense.  At the habeas hearing, both Rivera and Davila testified that, on the day and time in question, the petitioner was helping Rivera move to her new residence.  Schwartz testified that his theory of defense was that Figueroa and McClain committed the murders.  He further testified that, while the petitioner gave him Rivera's name, he did not indicate that Rivera could provide an alibi for him.  The habeas court found that, under the circumstances of this case, in which the petitioner was not able to provide any information as to his whereabouts on the night in question, Schwartz should have contacted Rivera to determine if she had any useful information.  The court further found that, if Schwartz had contacted her, Rivera would have led him to Davila.  Thereafter, the court granted the habeas petition, ruling that Schwartz' failure to investigate and to call Rivera and Davila as witnesses prejudiced the petitioner, as their testimony likely would have affected the verdict, especially in light of the weakness of the state's case.  On appeal, the respondent commissioner argued that the court improperly found Schwartz ineffective in failing to investigate or interview a witness about whom he had no specific information.  The Appellate Court (125 Conn. App. 97) rejected the claim, stating that, in light of the petitioner’s failure to recall the events of the day in question, Schwartz should have contacted Rivera to see if she had any relevant information.  Next, the Appellate Court rejected the respondent’s challenge to the habeas court’s prejudice determination.  It explained that there is a reasonable probability that, had the jury heard testimony from Rivera and Davila purporting to account for the petitioner’s whereabouts on the night of the murders, the outcome of the petitioner's criminal trial would have been different.  Accordingly, the Appellate Court affirmed the habeas court's judgment.  In this appeal, the Supreme Court will review the Appellate Court’s decision.