Opinion
No. NNH CV 03 0473101 S
September 15, 2011
MEMORANDUM OF DECISION
The petitioner on January 14, 2003 has filed his Fourth Amended Petition for Writ of Habeas Corpus seeking to vacate his conviction of murder and his sentence of sixty years of incarceration imposed on July 28, 2000. The petition in Count 1 claims (1) actual innocence based upon the recantation of the State's witness Jesse Campbell who identified petitioner as the perpetrator of the crime and Count II which alleges prosecutorial impropriety and/or a due process violation based upon alleged false testimony of Jesse Campbell at the criminal trial.
The petitioner was convicted on the charge of murder in violation of Connecticut General Statutes Section 53-54a and 53a-58 regarding a homicide on May 6, 1999. State v. Westberry, 68 Conn.App. 622, 623-34 (2002). A jury found the petitioner guilty and a sentence was imposed on July 28, 2000 for a 60-year sentence of incarceration. The petitioner appealed his conviction, and his conviction was affirmed by the Appellate Court.
The Appellate Court could reasonably find from the evidence that the incident in the spring of 1999 related to hostilities between two groups of individuals in Hartford, Connecticut. The petitioner and an individual named Jesse Pope were in violent altercations with another group which included the victim Anthony Benefield, Gerald Jenkins, and Dwayne Stewart. Just prior to May 6, 1999 Jesse Pope with money provided by petitioner delivered a Chevrolet Monte Carlo gold colored rental car to the petitioner. On May 6, 1999 at approximately 1:30 a.m. the victim Anthony Benefield fell asleep in the passenger seat of a white Chevrolet Lumina vehicle which was parked on Lenox Street, and with Stewart in the driver's seat and three more men in the rear passenger seat. At that time the gold Monte Carlo vehicle pulled alongside the Chevrolet Lumina and four fatal shots were fired into their vehicle resulting in two bullets striking the victim's skull, and also causing two wounds to his right hand. The police and medical personnel arrived and provided care and commenced an investigation.
On May 13, 1999 the police took a voluntary statement from Jesse Campbell who identified the petitioner as the operator of a gold colored Monte Carlo vehicle just prior to the shooting, which parked next to his car at a Kentucky Fried Chicken restaurant. He recognized the petitioner as the operator. He knew petitioner for two years as a neighbor, and they both waved to each other at that time. Shortly after that when Jesse Campbell was walking on Lenox Street he saw petitioner driving the Monte Carlo vehicle pull up on the side of the vehicle containing the victim, and he then heard the shots fired. As petitioner drove away Jesse Campbell saw the petitioner as the only occupant in the vehicle from which the shots were fired.
At the trial Jesse Campbell testified regarding his observations at the scene of the incident. He also identified the photograph of petitioner who he had identified at the time of his statement on May 13, 1999.
After petitioner was found guilty on May 17, 2000, and he was sentenced to serve 60 years of incarceration, petitioner became aware of a recorded telephone conversation that took place on December 30, 2003 between Jesse Campbell and his mother. That conversation was recorded while Campbell was incarcerated on a different criminal charge. The petitioner contends that Jesse Campbell told his mother that in the trial of the petitioner that he lied. The nature or extent of that statement was not explained in that telephone conversation. Petitioner also claims a recantation by Jesse Campbell on June 7, 2010 when his investigator took a written statement from Jesse Campbell while he was confined for a capital felony charge. In the statement Campbell denies knowing petitioner or of seeing him at the time of the incident on May 6, 1999.
The petitioner at the habeas hearing did not provide testimony from Jesse Campbell who invoked his privilege against self-incrimination, and he refused to testify.
The evidence presented at the hearing has failed to establish petitioner was actually innocent of the murder and he failed to meet the standard required as set forth in Miller v. Commissioner of Corrections, 242 Conn. 745 (1997) and Gould v. Commissioner of Correction, and Taylor v. Commissioner of Correction, CT Page 19942 301 Conn. 544 (2011). The petitioner has failed to demonstrate by affirmative proof that the petitioner did not commit the crime for which he was convicted.
The attorney for Jesse Campbell filed the Invocation of privilege against self-incrimination on May 15, 2011 in this proceeding and this court cannot judge the credibility of the alleged recantations of Jesse Campbell in the absence of his testimony under oath and subject to cross-examination.
This court also finds the petitioner has also failed to prove the allegations of Count II which alleges prosecutorial impropriety and/or due process violation based upon false testimony of Jesse Campbell in the criminal trial. The evidence in this habeas hearing failed to prove the state was aware of any perjured testimony at the trial of the petitioner.
The claim of the plaintiff in this Count required petitioner to prove a due process violation occurred at the trial. Sanders v. Sullivan, 900 F.2d 601, 607 (2d Cir. 1990) and Ortega v. Duncan, 333 F.3d 102, 109 (2d Cir. 2003). In order for habeas relief to issue alleged perjury at the trial must be proven, and also that it was material to result in a conviction.
It has been held that a showing of perjury at trial does not, in itself establish a violation of due process warranting habeas relief. [ Sanders v. Sullivan, 863 F.2d 218, 222 (2nd Cir. 1988)]. Instead, when false testimony is provided by a government witness without the prosecution's knowledge, due process is violated only "if the testimony was material and `the court [is left] with the firm belief that but for the perjured testimony, the defendant would most likely not have been convicted." United States v. Wallach, 935 F.2d 445, 456 (2nd Cir. 1991) (quoting [ Sanders, supra, 226]) . . .
The court finds that a due process violation did not occur based upon the evidence presented at the habeas hearing.
Based upon the foregoing the fourth amended petition is denied.