Opinion
TSRCV134005658
04-13-2016
Carlton Martin v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Carlton Martin, seeks habeas corpus relief from a total, effective sentence of ninety years imprisonment imposed, after a jury trial, for committing the crimes of felony murder; robbery, first degree; and five counts of witness tampering. This judgment of conviction was affirmed on direct appeal, State v. Martin, 77 Conn.App. 778, 825 A.2d 835 (2003); cert. denied, 266 Conn. 906, 832 A.2d 73 (2003).
The petitioner filed a petition for a new trial, which petition was denied, and that denial was also affirmed on appeal Martin v. Flanagan, 107 Conn.App. 544, 945 A.2d 1024 (2008). In addition, he filed a habeas corpus action which ended unfavorably, Martin v. Warden, Superior Court, Tolland J.D., d.n. CV 06-4001122, (November 16, 2011) T. Santos, J. affirmed, per curiam, 141 Conn.App. 903, 60 A.3d 412 (2013).
The amended petition in the present habeas corpus action asserts two grounds for relief. First, the petitioner claims that he was denied due process because now-discredited, lead bullet composition comparison evidence, produced by the Federal Bureau of Investigation, was presented at his criminal trial. Second, he contends that his earlier habeas counsel, Attorney Sebastian DeSantis, afforded him ineffective, legal assistance in that postconviction proceeding.
Due Process Claim
In the fall of 2000, the prosecution introduced comparative bullet lead analysis evidence (CBLA) at the petitioner's criminal trial through the testimony of FBI Agent Kathleen Lundy. That testimony purportedly demonstrated that .25 caliber slugs retrieved from the victim's body and the crime scene came from the same box of ammunition seized at the petitioner's residence.
On September 1, 2005, the FBI discontinued CBLA, which it had utilized since 1996, to deduce whether a lead bullet came from a particular cartridge box. The decision to discontinue use of CBLA resulted from the conclusions of an independent research committee, composed of forensic chemists, that, in general, the chemical comparison of trace elements in lead bullets through CBLA failed to produce sufficiently distinct outcomes from which to permit a valid identification of a common source for the ammunition so analyzed.
The petition argues that the admission of this flawed, scientific evidence at his criminal trial violated his right to due process of law. The court rejects this argument both on the basis that no due process violation occurred and because no specific prejudice derived from the CBLA results in the petitioner's particular criminal case.
There is a split of authority as to whether the unknowing use of false testimony by law enforcement or prosecutorial officers is a denial of due process warranting the reversal of a conviction so obtained via habeas corpus. Gould v. Commissioner, 301 Conn. 544, 570, fn 18, 22 A.3d 1196 (2011). While the majority of federal courts have rejected this proposition, the United States Supreme Court has never squarely answered the question, Id.
Our Appellate Court, however, has affirmed a trial court decision in which the " habeas court concluded that because the petitioner had not alleged that the perjured testimony came through any intentional action by the state or through deficient performance of his trial counsel, his perjury claim was an unadorned, newly discovered evidence count that might support a petition for a new trial, but that is not an independent claim on which relief can be granted in a habeas proceeding, " Lewis v. Commissioner, 116 Conn.App. 400, 410, 975 A.2d 740 (2009). The Appellate Court added, " We conclude that the court's conclusion is logically and legally correct, " Id., 411.
In the Lewis decision, the Appellate Court also noted that the pro se petitioner had failed to allege a due process violation before the habeas court, nor did he explain how the alleged perjury affected his criminal trial, Id., 411-12. The Court remarked that it was " unaware of any precedent where [that] court or our Supreme Court has held that an allegation of perjury, unaccompanied by an antecedent constitutional violation or an explanation of how that perjury affected the result of a trial, is a proper ground for seeking habeas relief, " Id., 411-12. It is, therefore, somewhat murky whether the Appellate Court rejected the claim because the habeas court's decision was " logically and legally correct" in ruling that an " unadorned" due process claim of unintentional use of false testimony fails to make out a cognizable habeas claim or because the petitioner in that case failed to assert and prove such a claim adequately.
In a footnote, the Appellate Court did remark that its " conclusion that a freestanding perjury allegation is not a proper habeas claim is supported by the Ortega court's statement that 'a claim based on newly discovered evidence has never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding . . . We have held that a showing of perjury at trial does not in itself establish a violation of due process warranting habeas relief .' " Id. 412, fn 9 (emphasis in original). The Appellate Court was quoting the Second Circuit case of Ortega v. Duncan, 333 F.3d 102, 103-04 (2d Cir. 2003).
This court construes the Lewis decision as indicating that a habeas petitioner may allege and prove the fact of false testimony when asserting some other legal ground for habeas relief, such as ineffective assistance of counsel, prosecutorial misconduct, or a Brady violation, or as the foundation for motion or petition for a new trial or an actual innocence claim, but not as an independent due process deprivation claim. In other words, a habeas petitioner cannot obtain any remedy in a habeas trial merely by asserting and demonstrating that the jury at his criminal trial arrived at the wrong conclusion because the jury believed false or flawed evidence. The writ of habeas corpus affords aid for legal wrongs not factual mistakes nor is it simply a vehicle for successive bites at the apple. See Fernandez v. Commissioner, 291 Conn. 830, 837, 970 A.2d 721 (2009). To permit such a freestanding due process claim to upend a criminal conviction without the need to prove some governmental wrongdoing in the use of what is later alleged to be discredited evidence would eviscerate the concept of finality, expose every criminal conviction to collateral attack, and invite the habeas court to substitute its credibility assessments for those made by the original fact-finder.
Also, such an independent claim, based on unknowing use of tainted evidence, would encourage the defendant in a criminal trial to keep some credibility evidence, available at that trial, in reserve for later employment at a collateral proceeding in the event of an unfavorable outcome at the criminal trial. For example, a defendant could decline to testify at the criminal trial, and then take the stand at a habeas hearing to prove that the fact-finder at the criminal trial relied on erroneous evidence.
The phrase " due process" refers to the obligation of the government to treat individuals fairly. A criminal trial may have been conducted in the most scrupulously fair manner and yet yield a wrongful conviction. The continued imprisonment of an actually innocent person is a miscarriage of justice, Summerville v. Warden, 229 Conn. 397, 641 A.2d 1356 (1994). But that miscarriage of justice need not result from a denial of due process. The wrongful conviction may be the product of an honestly mistaken witness who the factfinder found credible. As long as the trial process was legally correct, in the sense that the duties of the police, the prosecutor, the judge and/or jury, and defense counsel were faithfully executed, no due process violation occurred. The remedy for an innocent person who has been incarcerated in such circumstances, under habeas corpus, is to establish a claim of actual innocence under the Miller standard. That standard is far different than that presented by an " unadorned" due process deprivation based on an unknowing use of evidence which is later held suspect.
Indeed, there is no due process right which mandates availability of direct appeal, State v. Bacon Construction Co., 300 Conn. 477, 480, 15 A.3d 147 (2011); or allowance of state habeas proceedings, Lozada v. Warden, 223 Conn. 834, 839, fn 8, 613 A.2d 818 (1992). That is, there is no due process right to a procedure to question a jury's decision despite legal errors which may have happened. How then, can due process demand that there exist a procedural mechanism by which factual errors may be adjudged post-trial? In reviewing habeas attacks on criminal judgments, the court looks not only at the petitioners' claims " but also with regard to the effect of the issuance of the writ on the strong interest in the finality of judgments and the other interests embodied in the statute of limitations, " State v. Alegrand, 130 Conn.App. 652, 664, 23 A.3d 1250 (2011).
The first Connecticut case which recognized the viability of an actual innocence claim through habeas corpus was Summerville v. Warden, supra . A review of the reasoning in that case is illuminating with respect to a freestanding due process claim for unknowing use of later discredited scientific opinion. Our Supreme Court stated that in order to " mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal." Id., 419.
In that case, the court analyzed what comprises a miscarriage of justice warranting habeas corpus intervention. The petitioner claimed that his manslaughter conviction was fundamentally flawed because it was based on unreliable medical evidence. Id., 420. The relief he sought was " independent of and unrelated to any claim that his conviction was otherwise affected by some antecedent constitutional error that affected his trial." Id.
In Summerville, the Supreme Court sanctioned a habeas corpus claim based solely on actual innocence in rare circumstances. Id., 421-22. That Court also recognized, however, that very high hurdles must be surpassed before such a claim could succeed. The presumption of innocence disappears upon conviction. Id., 423. The standard of proof is significantly higher than for other habeas claims or for a petition for a new trial. Id., 424-25. The claim may have to be grounded on newly discovered evidence. Id., 425-26. Because the three-year statute of limitations for petitions for a new trial is inapplicable, the interest in finality as well as other policy considerations may trump the petitioner's claim despite actual innocence. Id., 427-29. Habeas corpus " is not a surrogate for a time barred petition for a new trial." Id., 429.
The rectifiable harm protected by allowing an actual innocence habeas claim is the actual innocence of the petitioner and not the use of questionable evidence regardless of the prisoner's guilt or innocence. Such a claim is unavailable to an inmate who is actually guilty of the crime for which the inmate is incarcerated even though the core evidence which produced that conviction has been impugned, Gould v. Commissioner, supra, 568.
The court has revisited the legal underpinnings of an actual innocence claim in order to emphasize the importance of differentiating those claims from claims which are otherwise available in a petition for a new trial if filed within the three year statute of limitations governing such petitions. If a prisoner attempts to raise a claim beyond the three year period, the prisoner must prove, by clear and convincing evidence, actual innocence through the submission of newly discovered evidence.
Permitting a freestanding due process claim to be asserted, based on the unintentional use of shoddy scientific evidence, would circumvent the high standards which our Supreme Court has purposely established with respect to actual innocence cases to preserve the important interests of finality and the integrity of criminal trial determinations. This is why a majority of jurisdictions refuse to afford habeas relief which is based on a claim of the unknowing use of false evidence. The court rules that the reasoning of Lewis v. Commissioner, supra, controls and that the petitioner bears the burden of proving, by a preponderance of the evidence, that the prosecutor or police intentionally presented spurious evidence at the petitioner's criminal trial in order for him to prevail on this due process violation ground.
The petitioner has neither alleged nor proven that the state actors in his criminal case were aware of the defects in CBLA which later led to its discontinuance by the FBI. Therefore no due process violation occurred despite the presentation of CBLA evidence.
Also, the petitioner needs to establish that the presence of such testimony prejudiced his case in order to demonstrate a due process violation, State v. Carlos E., 158 Conn.App. 646, 650-51, 120 A.3d 1239 (2015). The evidence adduced at the petitioners criminal trial was that a .25 caliber, Titan automatic pistol was stolen by a Mr. Laurel, a/k/a Banana, and sold to the petitioner and the petitioner's cousin. Both the cousin, and a third person who drove the petitioner to the place of sale, identified the petitioner as a participant in the transaction and as having access to the weapon afterward. Banana also gave an ammunition box, partially filled with .25 caliber Winchester cartridges, to the men.
Nicole Harris testified that, a few days after the shooting, the petitioner brought a shoe box containing the same brand of pistol to her residence and asked her to conceal it for him. Later, Harris turned the box and gun over to the police. Forensic tests showed that that pistol was the same one used to shoot the victim in his liquor store.
Also, the police raided an apartment at which the petitioner stayed and seized an ammunition box with .25 caliber, Winchester cartridges similar to the box given to the petitioner by Banana. A firearms expert opined that the cartridge in the box seized from the petitioner's abode matched those used to commit the murder and robbery with respect to caliber, type, manufacturer, and coating.
Kathleen Lundy, formerly an FBI agent who specialized in CBLA, testified that, in her opinion, the analysis showed that the bullets recovered from the crime scene and victim came from the same manufacturing lot as those contained in the cartridge box found at the petitioner's residence. It appears clear to the court that her testimony was minimally corroborative of the testimony of Banana, the petitioner's cousin, and Harris as to the petitioner's possession of the murder weapon and ammunition used in the shooting.
The more salient, forensic evidence produced at the criminal trial was that which linked the testimony of Harris concerning what she turned to the police and the analysis of that pistol as the murder weapon by the firearms examiner. Nothing in Lundy's testimony bore on that issue. The fact that a .25 caliber, Winchester ammunition of the same type and with the same coating as the fatal bullets was found in the petitioner's apartment was established by the firearms examiner, Stephenson. Lundy's CBLA opinion merely solidified those expert observations and Stephenon's conclusions. It is very unlikely that the extirpation of Lundy's testimony would have made any difference in the jury's determination of guilt.
Therefore, the petitioner cannot prevail on this ground.
Ineffective Assistance of Habeas Counsel
In Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), our Supreme Court recognized a purely statutory right to raise, in a second habeas action, a claim of ineffective assistance on the part of previous habeas counsel in presenting claims of ineffective assistance of trail counsel, Id., 835. However, the petitioner's burden becomes a two-tiered application of the Strickland standard by which allegations of ineffective assistance claims are gauged, Id., 842. To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective, " Id., (emphasis added). Also, the petitioner must prove that, but for the derelictions of habeas counsel, he was prejudiced in the sense that the outcome of the first habeas case was suspect, and that burden demands proof of the existence of a reasonable likelihood that the outcome of the original, criminal trial would have been different, Id., 842-43. The Supreme Court described this double-layered obligation as " a herculean task, " Id., 843.
Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761, 603 A.2d 768 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra .
This standard of reasonableness is measured by prevailing, professional norms. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation. Id.
If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel's competence. Pelletier v. Warden, 32 Conn.App. 38, 46, 627 A.2d 1363 (1993). In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove, by a preponderance of the evidence, that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985). Reasonable probability means a probability sufficient to undermine confidence in the verdict. DaEira v. Comm'r of Corr., 107 Conn.App. 539, 542-43, 946 A.2d 249 (2008), cert. denied, 289 Conn. 911, 957 A.2d 877 (2008); that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt. Id. Thus, the failure of the petitioner to establish, by a preponderance of the evidence, either the allegations against trial counsel or habeas or the requisite prejudice as to both the first habeas case and the criminal trial will defeat a claim for habeas corpus relief in the present action.
Specifically, the petitioner alleges that Attorney DeSantis failed to assert claims of ineffective assistance on the part of defense counsel, Attorney Robert Field, for failing to impeach or otherwise change the testimony of Lundy; by failing to present forensic evidence with respect to garments seized from the petitioner; and by failing to proffer the testimony of a crime reconstruction expert.
A.
The first specification of deficient performance is quickly addressed based on the recent holding of the United States Supreme Court in Maryland v. Kulbicki, U.S. 136 S.Ct. 2, 193 L.Ed.2d 1 (October 5, 2015). In that case, the petitioner alleged ineffective assistance by trial counsel for failing to challenge the admissibility and reliability of CBLA evidence, Id. The Maryland Court of Appeals had ruled that the " failure to fully explore" the validity of CBLA methodology satisfied the deficient performance prong of the Strickland standard. The United States Supreme Court summarily reversed that ruling, Id.
The high court found no support for the conclusion that " defense attorneys were constitutionally required to predict the demise of CBLA." Id. " Counsel did not perform deficiently by dedicating their time and focus to elements of the defense that did not invoke poking methodological holes in a then-uncontroverted mode of ballistics analysis, " Id.
The United States Supreme Court noted that CBLA evidence " was widely accepted, and courts regularly admitted CBLA evidence until 2003, " Id. In the present case, Attorney Field represented the petitioner at a trial in 2000, a few years before such methodology was discontinued. Because Attorney Fields could not have been derelict under the Strickland test, as applied in Maryland v. Kulbicki, supra, Attorney DeSantis cannot be faulted for failure to raise that untenable claim against Attorney Fields in the earlier habeas case in 2011.
It should also be noted that Attorney DeSantis did, in fact, consult with a forensics expert, Dr. Peter DeForest, who is also a metallurgist, and also introduced the FBI's own written findings which resulted in the abandonment of CBLA by that agency. Attorney DeSantis declined to call Dr. DeForest as a witness at the habeas trial because his testimony would have been redundant of that information contained in the FBI committee report. Attorney DeSantis considered whether to call Dr. Deforest as a witness but elected to rely on the FBI report itself.
Consequently, proof as to this specification of ineffectiveness fails to satisfy, by a preponderance of the evidence, the performance component of the Strickland standard.
B.
The petitioner also avers that Attorney DeSantis was derelict in failing to assert that Attorney Field ought to have obtained and offered forensic evidence garnered from the petitioner's clothing seized by the police. The gravamen of this averment is that the lack of blood splatter or gunshot residue detected on the petitioner's clothing would have been exculpatory. Also, in his last specification of ineffective representation, the petitioner alleges a related deficiency, namely that Attorney DeSantis should have contended in the first habeas that Attorney Field provided substandard and legal assistance by failing to retain a crime reconstructionist. It is the petitioner's position that such a specialist would have elucidated for the jury that the killer shot the victim four to six times at close range with a .25 caliber weapon. Close range purportedly means at a distance less than one foot from the victim. These shots were likely to have generated blowback of gunshot residue and back splatter of the victim's blood.
Assuming the existence of these circumstances, one would anticipate finding gunshot residue and minute droplets of blood on the shooter's clothing. The petitioner is five feet, five inches tall, which further suggests that, if he were the shooter, he would likely have had to stand on the same side of the counter as the victim during the shooting. The distance from the counter to the shelving behind it was around three feet.
However, chemical tests of the petitioner's coat and the clothing retained by the police disclosed no trace evidence of gunshot residue or blood. The petitioner argues that Attorney Field's failure to retain a crime reconstruction expert and put his or her testimony before the jury fell below professional norms for ordinarily competent criminal defense counsel. The petitioner urges the court to conclude that Attorney DeSantis was equally delinquent in failing to raise this deficiency in the previous habeas action.
As noted above, if it is easier to adjudicate an ineffective assistance claim based on the prejudice prong of the Strickland standard, the habeas court may proceed to address that issue directly. After a careful review of all the evidence admitted before it, including transcripts of the criminal trial and previous habeas case, the court finds that the petitioner has failed to demonstrate, by a preponderance of the evidence, that there exists a reasonable likelihood that the outcome of his jury trial would have been different but for the testimony of a defense, crime reconstruction expert.
The petitioner's attire was seized six days after the murder. The forensics experts testifying in the present habeas case acknowledged that laundering or other cleaning of the articles of clothing could account for the negative test results, although such activity would not always prevent detection. The court determines that the evidence of the petitioner's guilt would overwhelm any such forensic testimony.
Two witnesses, including the petitioner's cousin, place him at the scene of the purchase of the murder weapon. The seller's observations corroborated the testimony of these witnesses as to the identification of the cousin and the vehicle which transported the petitioner to that location. He further confirmed their testimony as to the negotiations which preceded the purchase of the gun and the efforts expended to acquire sufficient money to complete the transaction.
Nicole Harris, an associate of the petitioner, was the owner and driver of the vehicle used to facilitate the robbery. She related, in detail, that the petitioner uttered remarks indicating his intent to rob the liquor store and revealed that he possessed a firearm with which to fulfill that intention. She added that, after the robbery, the petitioner admitted shooting the victim. Other witnesses also heard these admissions.
Harris eventually gave the police the box containing the .25 caliber, Winchester Titan pistol, which she swore the petitioner asked her to hide for him. That pistol was tested and proved to be the murder weapon. Neutral witnesses who happened upon the crime scene just before and after the robbery corroborated Harris' version of the events which occurred just outside the liquor store.
A cartridge box that matched the description which the seller said he gave to " Trell" and his cousin, identified as the petitioner by other witnesses, was discovered at the petitioner's residence. That box contained ammunition which corresponded to the caliber, style, manufacturer, and coating of the bullets fired to kill the victim.
When questioned by the police, the petitioner denied his presence in Danbury at any time on the day of the murder. When confronted by the possibility that a surveillance camera located across the street from the liquor store captured his image, he changed his story and admitted being at the gas station neighboring the liquor store.
The jury also found, beyond a reasonable doubt, that the petitioner engaged in multiple acts of witness tampering following his arrest. These crimes displayed a strong consciousness of guilt.
The lack of trace evidence of gunshot residue and blood on his clothing, six days after the shooting, while relevant to support the petitioner's claim of innocence, fails to breach the thick wall of evidence pointing to him as the murderer.
For these reasons, the amended petition for habeas corpus is denied.