190 Conn. App. 510
Conn. App. Ct.2019Background
- J’Veil Outing was convicted of murder (50-year sentence) after eyewitnesses Crimley and Caple identified him; both later recanted claiming police coercion. The convictions were affirmed on direct appeal.
- At pretrial suppression hearings an expert (Jennifer Dysart) proffered testimony about eyewitness ID reliability; the trial court excluded several topics and denied suppression, but allowed limited testimony; Dysart was not called at trial.
- Trial counsel (Grogins) pursued a third-party culpability/coercion strategy instead of a mistaken-identity/alibi defense; she investigated alibi leads but chose not to present family/friend alibi witnesses.
- Postconviction habeas petition alleged ineffective assistance of trial and appellate counsel (failure to present/preserve alibi, to investigate/rebut eyewitnesses, to preserve expert testimony exclusion; appellate counsel omitted a surrebuttal claim) and asserted actual innocence.
- The habeas court denied relief, finding counsel’s choices were reasonable trial strategy and that the petitioner failed to prove actual innocence; the denial was affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trial counsel ineffective for not presenting alibi | Grogins failed to adequately investigate and call alibi witnesses; testimony would have exculpated Outing | Counsel reasonably investigated, witnesses were friends/relatives, inconsistent, placed Outing near (but not accounting for) crime time, and alibi could harm defense | Counsel’s decision not to present alibi was reasonable strategy; no deficient performance or prejudice proved |
| Trial counsel ineffective for failing to investigate/rebut eyewitness IDs and not calling expert Dysart | Counsel should have further investigated Crimley/Caple and presented Dysart on misidentification | Counsel reasonably shifted to coercion theory after recantations; cross-examination pursued coercion; calling Dysart risked undermining that theory | Counsel’s tactical choice to limit investigation and forgo Dysart fell within wide range of reasonable professional judgment |
| Trial counsel ineffective for not preserving record on excluded Dysart topics | Counsel failed to obtain rulings/preserve exclusion for appeal on five factors Dysart could not testify about | Counsel reasonably believed issue was moot because she would not call Dysart; prevailing law then discouraged such expert testimony | No deficient performance — preserving exclusion unnecessary given counsel’s tactical choice and governing precedent at trial time |
| Appellate counsel ineffective for not raising surrebuttal claim | Streeto omitted claim that trial court abused discretion by denying surrebuttal (Allison Carter) | Appellate counsel reasonably prioritized stronger issues given briefing limits and deference to trial court discretion | Appellate counsel’s omission was a reasonable strategic choice; not ineffective assistance |
| Actual innocence claim | New habeas evidence (fingerprints on bicycle, third-party suspects, alibi witnesses, recantation) proves Outing’s innocence | The new evidence does not affirmatively show Outing could not have committed the crime when weighed against trial evidence | Habeas court correctly held petitioner failed to prove actual innocence by clear and convincing evidence |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑part test for ineffective assistance: deficient performance and prejudice)
- State v. Outing, 298 Conn. 34 (2010) (direct appeal summarizing facts, suppression rulings, and expert testimony issues)
- State v. Guilbert, 306 Conn. 218 (2012) (overruled portions of Kemp/McClendon and acknowledged value of expert testimony on eyewitness ID)
- State v. Kemp, 199 Conn. 473 (1986) (excluded eyewitness‑identification expert testimony as within juror common knowledge)
- State v. McClendon, 248 Conn. 572 (1999) (followed Kemp in excluding certain expert eyewitness testimony)
- Miller v. Commissioner of Correction, 242 Conn. 745 (1997) (standard for freestanding actual innocence claims)
- Johnson v. Commissioner of Correction, 330 Conn. 520 (2019) (trial counsel’s strategic choice not to present weak alibi can be reasonable)