Opinion
CV154006830S
10-25-2019
Billy Wright (Inmate #322650) v. Warden
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Kwak, Hunchu, J.
MEMORANDUM OF DECISION
Kwak, J.
The petitioner filed a pro se petition for a writ of habeas corpus on December 5, 2014. The pro se petition was amended by assigned counsel to raise claims in four counts: first, ineffective assistance of trial counsel, Attorney Richard Silverstein, for numerous alleged failures; second, a violation of due process resulting from the use of allegedly false statements and testimony of several material witnesses; third, the cumulative effect of purported errors otherwise alleged; and fourth, actual innocence. The respondent’s return denies the petitioner’s substantive allegations and leaves him to his burden of proof.
The parties appeared before the court on July 12 and August 30, 2018, as well January 11 and February 28, 2018, for a trial on the merits. Both parties entered exhibits into evidence, primarily consisting of transcripts, the trial court file, criminal exhibits, and other related materials or documents. Additionally, the court received testimony from: the petitioner; Joyce Bellamy; Stephanie Gonzalez; Detective David Parker; Sergeant Terrence McNeil; Brandon Bellamy; Markease Hill; Assistant Chief Herbert Johnson; Detective Bridget Brosnahan; Private Investigator Ken Novi; Charles Marshal; Attorney Jeffrey Kestenband; Private Investigator Daniel Markle; and Attorney Richard Silverstein. Both parties filed post-trial briefs.
It is unclear from the record or any of the evidence whether Joyce and Brandon Bellamy are related or not.
Based on its review of the documentary evidence and testimony presented, and for the reasons articulated more fully below, the petition for a writ of habeas corpus is granted.
SUMMARY OF CRIMINAL PROCEEDINGS AND DIRECT APPEAL
The petitioner was the defendant in a criminal case in the judicial district of New Haven. In docket number CRO-0082029-S, the petitioner was charged with several offenses, including murder in violation of General Statutes § 53a-54a(a). After a jury trial only on the charge of murder, the jury was deadlocked with six jurors voting guilty and six jurors voting not guilty. The court declared a mistrial and the state proceeded with a second jury trial on the sole count of murder. The petitioner was convicted of murder and sentenced to a total effective sentence of sixty years of incarceration.
The petitioner appealed from the judgment of conviction. On direct appeal, the petitioner "claim[ed] that the trial court violated his constitutional right to present a defense by limiting his cross-examination of the investigating police officers, which was intended to establish that the police investigation into the shooting was inadequate. This claim [came ... ] in two parts. The first part [was] specific, in that it focuse[d] on the trial court’s preclusion of the [petitioner’s] cross-examination of the investigating police officer as to an altercation that the victim had in another bar approximately two hours before the shooting in question. The second part [was] more general, in that it focuse[d] on the trial court’s limitation of the [petitioner’s] cross-examination of the investigating police officers as to what they did or did not do by way of investigating on the night in question, and the court’s preclusion of the [petitioner’s] broader scope of cross-examination as to proper police investigative procedures that would generally be followed in a case such as the present one." State v. Wright, 152 Conn.App. 260, 263, 96 A.3d 638 (2014). The Appellate Court rejected the first, or more specific claim, but agreed with the general second claim. Id.
Relying on State v. Collins, 299 Conn. 567, 598, 10 A.3d 1005, cert. denied, U.S. 132 S.Ct. 314, 181 L.Ed.2d 193 (2011), the Appellate Court noted that criminal defendants have a due process right to establish a defense to a crime. Because those accused of crimes are presumed innocent until proven otherwise beyond a reasonable doubt, "[a] defendant may ... rely upon relevant deficiencies or lapses in the police investigation to raise the specter of reasonable doubt, and the trial court violated his right to a fair trial by precluding the jury from considering evidence to that effect." Id., citing and quoting State v. Collins, supra, at 599-600, 10 A.3d 1005.
"The United States Supreme Court has recognized that a defendant has the right to challenge the adequacy of a police investigation to raise reasonable doubt as to his guilt, stating that ‘indications of conscientious police work will enhance [the] probative force [of evidence] and slovenly work will diminish it.’ Kyles v. Whitley, 514 U.S. 419, 446 n.15, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Notably, within our body of case law, State v. Collins, supra, 299 Conn. at 567, 10 A.3d 1005, is the only case that examines this right." State v. Wright, supra, 152 Conn.App. 264. The Appellate Court indicated that "Massachusetts courts ha[d] developed a large body of case law on this issue [i.e., a defendant’s right to challenge the adequacy of a police investigation], which [the Appellate Court found] persuasive ..." Id.
The Appellate Court then summarized facts and procedural history that were relevant to analyzing the petitioner’s claims. Id., 265-67. The Appellate Court first addressed the more specific claim, where its discussion "note[d that it agreed] with the [petitioner’s] claim that the trial court improperly ignored his clearly stated basis for the admissibility of the evidence, namely, to support his claim of an inadequate police investigation. Evidence of an inadequate police investigation need not meet the strict standard of establishing direct connection between a third party and culpability for the crime charged ... Its purpose is not to establish that someone other than the defendant is culpable; rather, it is to establish that, because the police investigation was inadequate, there may be reasonable doubt about the defendant’s guilt." (Internal citation omitted.) Id., 267. The trial court had recharacterized the petitioner’s claim of inadequate police investigation into a third-party culpability claim, which even if it were viewed as an error by the trial court, was harmless beyond a reasonable doubt because it was not so prejudicial to deprive the petitioner of a fair trial. Id., 267-68. The Appellate Court noted that "[t]he [petitioner] was not hindered in any way in making his offer of proof ... [, and] that offer of proof did not establish any inadequacy of the police investigation of the incident [two hours prior the shooting of the victim]." Id., 268.
This court has reviewed the transcripts of both criminal jury trials. It would serve no purpose for this court to independently summarize the facts and procedural history as already meticulously summarized by both the Appellate and Supreme Courts. Thus, although these previous summaries are lengthy, combined they provide a thorough synopsis of the underlying facts and procedural history.
The Appellate Court then addressed the second, more general claim and "... conclude[d] that the trial court’s limitation of the scope of the [petitioner’s] cross-examination into proper police investigative procedures generally followed in a case such as this deprived the [petitioner] of a fair trial." Id., 268-69. After detailing the testimony from several police officers (David Parker, Terrence McNeil, Herbert Johnson, and Bridget Brosnahan), the Appellate Court identified two reasons why the trial court’s improper limitation of the scope of cross examination of these police officers violated the petitioner’s right to a fair trial: first, "the tenuous nature of the state’s case"; second, "... police officers, by virtue of their training and experience, may be considered expert witnesses in various contexts other than ordinary police procedures ..." Id., 269-77.
The Appellate Court explained why it "... referred to the tenuous nature of the state’s case ... in order to demonstrate the harmfulness of the court’s limitation on the [petitioner’s] cross-examination [of the police officers]." Id., 277. "The principal source of evidence in the state’s case was two videos comprised of footage captured from security surveillance cameras at the bar. The first video was a composite video, taken from nine surveillance cameras, showing scenes outside and inside the bar before the shooting, and including footage showing the actual shooting outside the bar. The second video depicted the segment of the composite video footage showing the actual shooting outside of the bar, which had been enlarged for the intended purpose of increasing the clarity of the images. The videos were supported by the testimony of a police forensic expert who explained to the jury how the videos had been composed and, to some extent, what the videos showed. The videos were of a grainy, indistinct nature and, despite the efforts of the police expert to enhance the videos, the face of the shooter was not recognizable. The videos showed that the shooting took place in the presence of approximately twenty-five persons, all of whom were within a few feet of the shooter and the victim.
"The videos showed that, shortly before the shooting, Lester gave ‘dap’— a brief hug and handshake— to a person who then circled behind the victim and shot him. The [petitioner] did not dispute that the person to whom Lester gave ‘dap’ was the shooter. The videos also showed a person, whom the state claimed to be the [petitioner], entering the bar at 1:15 a.m. where he remained until 1:42 a.m., shortly before the shooting. At that time, the person whom the state claimed to be the [petitioner] left the bar and stood on the sidewalk outside the bar with approximately twenty-five other persons, including the victim. He then left the sidewalk area in front of the bar and went to a nearby area where there was a car, and then returned to the area in front of the bar where he shot the victim, as previously described. There was also testimony, which the videos corroborate, that just after the shooting some of the other persons in the area ran away. Thus, it was critical to the state’s case to establish identification, namely, that the person to whom Lester gave ‘dap,’ and who, therefore, was the shooter, was the [petitioner]. The evidence supporting that identification, along with the evidence undermining that identification, was as follows.
"It was the state’s theory of the case that, because the [petitioner], along with all the other bar patrons, had been searched for weapons by the bar owners upon entering the bar, he obtained the .44 caliber revolver from the car."
"First, Lester testified that he knew the [petitioner] only by the name of ‘Wild Billy.’ He acknowledged that, at the first trial, he had identified the [petitioner] as the person to whom he gave ‘dap’ and with whom he had a brief conversation on the night in question. He testified further that, as he was walking away from the sidewalk in front of the bar with Watson, he heard gunshots and that the two of them ran to his car, which was parked on a nearby street. They met Gomes at the car, and the three of them drove away. Lester also testified, however, that he was ‘under the influence’ that night, and he ended his testimony with the unequivocal assertion that the [petitioner] was not the person to whom he gave ‘dap’ that night.
"Watson was unavailable to testify at [the second] trial, and her testimony was thus presented from the transcript of the first trial. The substance of her testimony was that she had been at the club that night, that she left the club with Lester, that as they stood outside the club, a man, whom she could not identify, talked briefly with Lester and gave Lester ‘dap,’ and that, as she and Lester were walking away, she heard gunshots and they ran away."
"The [petitioner’s] counsel asked Lester: ‘Look over here at this man, a real good look. This is not the man you gave dap to that night, is it?’ Lester responded: ‘No.’ "
"Second, although the state’s theory, which was based on the video that the [petitioner] arrived at the club with Bellamy and Brown, where they then met Lester and Gomes, and the five of them then entered the club, Gomes testified that he arrived at the club only with Lester, where they met Bellamy, and the three of them entered the club. Gomes also testified that he did not know or recognize anyone outside the club other than Lester and Bellamy. He further testified that upon leaving the club with Lester and upon hearing a gunshot, he, Lester and Watson ran to his car, which was parked on a nearby street, and they drove off without returning to the scene of the shooting. He further testified that he did not see who fired the shot. Thus, he did not identify the [petitioner] in any way or connect him to the shooting.
"The state also presented the testimony of Bailey, a friend of the victim, who had arrived at the bar with the victim and Perry Flowers. Bailey testified that the victim was ‘[r]ight in front of’ him when the victim was shot, that Bailey ran when the shooting took place, and that he then went back into the bar to try to help the victim, who had staggered back into the bar. He also testified that, although the police had showed him some photographs, he could not identify anyone in them."
"The only other individuals to identify the [petitioner] as being present in the bar that night were the bar owners, Jeffrey Dominic Parker and Joyce Bellamy, both of whom were inside the bar when the shooting took place, and neither of whom had been acquainted with the [petitioner] before that night. On May 10, 2008, Parker identified a photograph of the [petitioner] as someone who was in the bar on the night in question. He could not, however, identify the [petitioner] in the courtroom as having been in the bar that night. Similarly, Bellamy, on May 10, 2008, identified a photograph of the [petitioner] as being in the bar that night. In addition, she identified the [petitioner] on the video of the interior of the bar as the person whose photograph she had identified. Both sets of identifications, by Parker and Bellamy, were made pursuant to simultaneous photographic arrays conducted by Detectives Hunter, the detective in charge of the investigation of the case, and Steven Teague.
"Jeffrey Dominic Parker also identified, from two other, separate photographic arrays, Brandon Bellamy and Brown, whom he knew as previous customers, as having been in the club that night."
"A simultaneous photographic array is one in which the witness is shown a photograph board containing six or eight photographs, only one of which is the suspect. This is in contrast to a sequential photographic array, in which the witness is shown the photographs one at a time ..." (Citation omitted.)
"These identifications by Parker and Bellamy must, however, be viewed with some degree of skepticism. Recently, our Supreme Court has noted the wide scientific acceptance of a number of factors that may undermine the reliability of certain eyewitness identifications. See State v. Guilbert, 306 Conn. 218, 237-39, 49 A.3d 705 (2012). Among the most important of those is the fact that ‘a person’s memory diminishes rapidly over a period of hours rather than days or weeks,’ and the fact that ‘identifications are likely to be less reliable in the absence of a double-blind, sequential procedure ...’ (Footnotes omitted.) Id. at 238-39, 49 A.3d 705. These identifications took place on May 10, 2008, approximately two weeks after the event in question; they were simultaneous, not sequential; and they were not ‘double blind.’ " (Footnotes renumbered.) State v. Wright, supra, 152 Conn.App. 277-81.
"A double blind photographic array is administered by an uninterested party without knowledge of which photograph represents the suspect." (Citations and quotation marks omitted.)
"The frailties in the state’s case [led the Appellate Court] to conclude that the state cannot meet [the] substantial burden [of showing that the violation of the petitioner’s constitutional right to a fair trial was harmless beyond a reasonable doubt] in the present case. In summary, neither the surveillance videos nor witness testimony definitively placed the [petitioner] at the scene of the crime. The video footage was captured from a distance, and was of a grainy and indistinct quality that obscured the shooter’s facial features. Two of the state’s witnesses identified the [petitioner] as being present inside the bar on the night in question, but [the Appellate Court viewed] those identifications with the necessary degree of skepticism attributed to eyewitness identifications of strangers. Moreover, of the approximately twenty-five witnesses present at the scene of the shooting, only four testified at trial. Yet, of those four, none testified to having witnessed the shooting, and the only explanation of the absence of any attempt to identify any of the other approximately twenty-one potential witnesses to the shooting was that they, the witnesses, appeared at the scene not to want to get involved. No attempt was made to see if any person across the street at the time of the shooting had seen the shooting. The fiber-like material taken at the scene, which, according to Brosnahan, might have come from the shooter’s shirt, was not tested. Finally, Lester, the only witness who previously had testified that the [petitioner] was present at the scene of the shooting, recanted that testimony, and emphatically stated on cross-examination that the [petitioner] was not the individual to whom he gave ‘dap,’ whom the parties agreed was the shooter ..." Id., 281-82.
The Appellate Court reversed the judgment of the trial court and remanded the case for a new trial. The State petitioned the Supreme Court for certification to appeal from the Appellate Court’s decision, which was granted. The Supreme Court’s review of the record resulted in its own summary of the " ... undisputed facts and procedural history. The victim, Ronald Bethea, was shot from behind as he stood a short distance from a small crowd of people outside a New Haven bar just before the bar’s closing at 2 a.m. on April 27, 2008. The crowd scattered upon hearing the gunshot. The victim staggered into the bar, collapsed, and lost consciousness. He later died from his wound.
"Police officers with the New Haven Police Department arrived at the scene minutes later. The first officers to arrive operated under the assumption that the shooting had occurred inside the bar, based on information to that effect relayed by a dispatcher, the victim’s location, and the statements of persons outside the bar. It was only after the department’s detectives subsequently arrived and reviewed surveillance video from several cameras positioned inside and outside the bar that it was ascertained that the shooting occurred outside the bar. The investigation that ensued led to the [petitioner] being charged with the victim’s murder.
"The state’s evidence at the [petitioner’s] trial consisted entirely of circumstantial evidence. The principal evidence was the surveillance video, which, in grainy images, showed the perpetrator’s movements from inside the bar to outside the bar prior to the murder. The surveillance video of activity outside of the bar showed the perpetrator approach two people, give one person a handshake and a sort of hug, walk away after that encounter, approach the victim from behind, and then shoot the victim with a gun hidden under his jacket. Although no witness identified the [petitioner] as the perpetrator from that video, an acquaintance of the [petitioner], Denard Lester, identified himself as the person on the video being given the handshake and he had made a prior statement under oath that the [petitioner] had given him ‘dap’ (described as a handshake and hug) outside the bar on the evening of the shooting. Another witness corroborated that she was with Lester outside the bar when someone had given Lester ‘dap’ shortly before the shooting occurred. The two owners of the bar identified the [petitioner] and Lester as being present in the bar that evening.
"The state’s witness from the state forensic laboratory testified that he had been unable to enhance the video to allow identification of the perpetrator. The state maintain[ed] in its brief to [the Supreme Court] that it had not asked any witness to directly identify the [petitioner] on the video because such an identification would have been improper pursuant to State v. Finan, 275 Conn. 60, 67, 881 A.2d 187 (2005), in that the perpetrator’s identity was an ultimate issue for the jury."
"Lester had made this statement at the [petitioner’s] first trial, which ended in a mistrial. At the [petitioner’s] second trial, Lester recanted his identification of the [petitioner]."
"On the first day of trial, the state offered the testimony of four New Haven police officers who responded to or processed the crime scene. On cross-examination, defense counsel sought to question these witnesses regarding their investigation into the murder. The trial court sustained the state’s objections to several of defense counsel’s questions. These evidentiary rulings form the basis of the dispute in this appeal.
"The first witness, Officer David Parker, had attended to the victim and had not played any investigative role in the murder. On cross-examination, defense counsel established that Parker had never relayed to other officers that he had observed people running from the scene upon his arrival, or taken any steps to determine the perpetrator’s identity. After defense counsel established that Parker had responded on other occasions to shooting incidents prior to the murder of the victim, the state objected on the ground of relevance when defense counsel asked: ‘And when you arrived at a shooting, do— do you try to determine whether or not any witnesses were at the scene?’ Defense counsel responded: ‘It’s not just what he did, Your Honor, that’s relevant. It’s also what he didn’t do that’s relevant.’ The court sustained the objection.
"The second witness, Officer Terrence McNeil, testified that, although he was not instructed to do so, he had made repeated efforts to canvass for potential witnesses upon his arrival at the scene but ‘nobody wanted to get involved.’ On cross-examination, defense counsel established that during those canvasses, McNeil had not: (1) asked anyone for identification even though he could have; (2) noted descriptions of people present at the scene; (3) canvassed homes across the street from the bar to ascertain whether anyone had seen anything; or (4) noted the license plate numbers of the vehicles that people leaving the scene had entered. Defense counsel established that McNeil previously had responded to many shootings, and then sought to ask: ‘And one of the things you want to determine is where the shooting occurred, correct?’ The court sustained the state’s objection, ruling: ‘What’s relevant is his actions on the evening of April 27, 2008.’ The court later sustained the state’s relevance objection when defense counsel attempted to ask: ‘Well, this is not a— a reaction that was new to you, people not wanting to get involved, correct?’ The court reiterated: ‘Counsel it has to be related to this day.’
"Defense counsel then asked for the jury to be excused. After the court did so, defense counsel argued: ‘This ... is not the ... first shooting [McNeil has] responded to ... His investigative skills are honed over thirteen years of experience. What he does relates to that experience. Okay. For me to say to him this is not the first time he’s responded to a shooting where people were not cooperative is just preliminary to me asking him well ... having had people refuse to cooperate in the past have you taken steps to secure that cooperation other than merely asking them to cooperate. I mean it’s not as if— it’s just what he did at the scene here. When he is confronted with uncooperative witnesses, there are other things he can do in order to secure that cooperation. It’s not the first scene where he’s gone to where people did not ... want to get involved.’ The court responded that questions pertaining to what McNeil did or did not do in connection with this particular investigation were proper, but questions regarding other investigations were not relevant.
"Defense counsel requested to make a further offer of proof by questioning McNeil, which the court allowed. Defense counsel then asked McNeil only two questions: ‘When people tell you that they don’t want to cooperate, is there anything you can do to secure that cooperation?’; and ‘When you are confronted with noncooperation of potential witnesses as you were in this case, can you take any other steps other than merely asking them to cooperate?’ The state objected, but noted that it would have no objection to questions limited to the events of April 27, 2008. The court responded that it had understood defense counsel’s question to be related to that date. After confirming with defense counsel that he had nothing further, the court recalled the jury.
"When cross-examination resumed, defense counsel asked McNeil: ‘When you are faced with this noncooperation by the people you spoke to, was there anything you could have done in light of that noncooperation to secure their cooperation?’ McNeil responded, ‘No.’ Defense counsel then attempted to ask: ‘Well, wouldn’t some of the people not want to give you information in front of other people? ... Is that one of the things you were cognizant of?’ The court sustained the state’s objection on the ground that the questions called for speculation. Defense counsel then asked in rapid succession, with objections from the state and comments from the court interposed: ‘Well, if you had [the potential witnesses’] names that you didn’t secure and you approached them when they were home and not in front of a crowd of people, is that something that is done ... on occasion? ... You couldn’t have done that? ... Some people don’t like to give information in front of other people, isn’t that correct, Officer?’ The court also sustained objections to these questions.
"During a subsequent jury recess, defense counsel stated to the court: ‘In regard to ... my cross-examination to what was done by the police officers in this case the state is going to get up and argue during closing argument, at least in everything humanly possible, as— and they were unable to have any witnesses, it’s not their fault. The fact of the matter is, Your Honor, that they didn’t do everything humanly possible. And what they didn’t do is as relevant in this case as what they did do because they do not have any eyewitness to this shooting, and what steps they ... took or didn’t take to secure an eyewitness is important. Now, for me not to be able to ask an officer when you ... canvass a crowd of people and say, does anybody have any information ... we all know in the real world a lot of people don’t come forward to be labeled a snitch in front of a crowd ... but had he gotten identification, which he could have gotten, then he could have approached these people when they had been alone to try to determine whether or not anybody had seen anything ...
" ‘Your Honor, nobody cooperated at the scene but that did not foreclose them from pursuing other avenues with the same people had they gotten their names. And for me not to ask a police officer, isn’t it true that some people are not forthcoming in groups but when approached later in a one-to-one situation have provided information? And why didn’t you take steps to ensure that you identified those people so you could at a later date go to them outside of a group of people to ask them if they had seen anything? I mean, I ... don’t understand why I would be foreclosed from ... inquiring as to why [they] didn’t do those things.’
"The court responded: ‘I made my rulings based on what this witness said here. I don’t know what else I’m going [to] hear from detectives who were in charge and investigating this case. But I ... made my rulings with relevancy with [Officer McNeil] concerning his activities on April 27, 2008 ... That does not mean if I hear you know, I don’t know what evidence I’m going to hear from the state and I’m not sure if you are too, about detectives and captains and what their procedure is and was on that particular night ... but I stand by my rulings ...’ Defense counsel reiterated his concern that the state would ‘say the police did everything humanly possible and were unable to develop any witnesses to the shooting,’ and that he ‘would like to be able to say, well, they didn’t ...’
"The state’s case thereafter resumed with its third witness, Detective Herbert V. Johnson III. Johnson testified that he had arrived at the scene approximately one hour after the shooting and had been assigned specific duties that did not include canvassing witnesses. Defense counsel established that Johnson had not: (1) conducted any type of canvass; (2) inquired as to what efforts other officers had made to develop potential witnesses; (3) instructed officers to canvass the homes across the street; or (4) attempted to establish a motive for the shooting. Defense counsel was precluded, on the ground of relevance, from asking Johnson as to whether he was ‘unable to determine whether anybody was outside smoking when the shooting occurred.’
"The state’s fourth witness, Detective Bridgett Brosnahan of the department’s Bureau of Identification, had photographed the scene and collected potential physical evidence. On direct examination, Brosnahan testified that she had collected some ‘fiber-like materials’ from the scene. On cross-examination, defense counsel established that those materials had not been tested to determine color or composition, even though they could have been. When defense counsel attempted to ask Brosnahan whether she ever suggests to detectives working a case with her that further testing is necessary, the state sought clarification, saying that it would have no objection if defense counsel was ‘referring to this case ...’ Defense counsel responded: ‘I’m not just asking about this case ... I’m asking about general procedures between [the Bureau of Identification] and detectives.’ The court instructed defense counsel to limit the question ‘to the events of April 27, 2008.’
"Defense counsel suggested that the fibers could have come from the shooter’s shirt. Brosnahan explained that the fibers had not been tested because there was nothing against which they could be compared."
"On the second day of trial, before the jury entered the courtroom, defense counsel expressed his general disagreement with the trial court’s rulings of the prior day. Defense counsel argued that he should be able to elicit testimony to demonstrate that the officers could have done more to secure potential witnesses. Apparently in reference to the lead investigating detective, whom defense counsel anticipated would be called by the state to testify that day, defense counsel stated: ‘I’m going to establish that he is an expert and at that point I think I could ask him hypothetical questions that do not stem from the evidence in this case ... I’m going to ask him about isn’t it true that certain people cannot come forward and do not cooperate in a group setting, but may be amenable to speaking to the police one-on-one. Isn’t it important to establish who was present, at least, to get their names and if they aren’t cooperative, go back and speak with them.’ The court expressed no opinion on defense counsel’s proposal, instead addressing another evidentiary matter that had been raised earlier. The state never called the lead detective to testify, and the defense did not seek to proffer the detective as its own witness. The defense offered no other witnesses nor did it attempt to introduce evidence relating to investigative practices or procedures." (Footnotes renumbered.) State v. Wright, 322 Conn. 270, 272-79, 140 A.3d 939 (2016).
HABEAS CORPUS CLAIMS
The amended petition avers claims in four counts. First, that Attorney Silverstein rendered ineffective assistance of counsel during the petitioner’s second jury trial. The claimed ineffectiveness is premised on numerous alleged failures. Second, that the petitioner’s right to due process was violated because his conviction is based solely on material witnesses’ statements and testimony that he asserts are false. Third, that the cumulative effect of the claims in counts one and two render the petitioner’s conviction unreliable. And fourth, that the petitioner is actually innocent.
I. Ineffective Assistance by Attorney Silverstein
The petitioner alleges a plethora of trial counsel failures. The petitioner’s post-trial brief, however, focuses and addresses a more limited number of allegations. The court will restrict itself to discussing the allegations of deficient performance as briefed by the petitioner. See, e.g., Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) ("[R]eviewing courts are not required to review issues that have been improperly presented to th[e] court through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without discussion or citation of authorities, it is deemed to be abandoned ... These same principles apply to claims raised in the trial court"); Raynor v. Commissioner of Correction, 117 Conn.App. 788, 796, 981 A.2d 517 (2009), cert. denied, 294 Conn. 926, 986 A.2d 1053 (2010) ("The petitioner’s failure to brief his first claim to the habeas court, namely, improper preparation and investigation by trial counsel, resulted in an abandonment of that claim").
The petitioner’s post-trial brief addresses the following allegations of deficient performance by Attorney Silverstein: (1) failure to investigate and then introduce an alibi defense including the testimony of Stephanie Gonzalez; (2) failure to conduct an adequate investigation and to introduce evidence to impeach the identification evidence and to strengthen the potential alibi defense; and (3) failure to provide an adequate basis to cross examine the police on their investigation in order to establish a defense that the investigation into the shooting deviated from police routine/protocol and contained lapses and deficiencies, as well as adequately preserving these issues in the record for the appeal.
A. Ineffective Assistance of Trial Counsel Standard
"A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings ... This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution ... As enunciated in Strickland v. Washington, [ 466 U.S. 668, 686, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], [our Supreme Court] has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong ... The claim will succeed only if both prongs are satisfied ...
"To prove his or her entitlement to relief pursuant to Strickland, a petitioner must first satisfy what the courts refer to as the performance prong; this requires that the petitioner demonstrate that his or her counsel’s assistance was, in fact, ineffective in that counsel’s performance was deficient. To establish that there was deficient performance by the petitioner’s counsel, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance ... The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law ...
" ‘Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’ (Internal quotation marks omitted.) Mukhtaar v. Commissioner of Correction, 158 Conn.App. 431, 449, 119 A.3d 607 (2015). In reconstructing the circumstances, ‘a reviewing court is required not simply to give [the trial attorney] the benefit of the doubt ... but to affirmatively entertain the range of possible reasons ... counsel may have had for proceeding as [he] did ...’ (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 319 Conn. 623, 632, 126 A.3d 558 (2015), quoting Cullen v. Pinholster, 563 U.S. 170, 196, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011)." Spearman v. Commissioner of Correction, 164 Conn.App. 530, 538-39, 138 A.3d 378, cert. denied, 321 Conn. 923, 138 A.3d 284 (2016).
"In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or the jury ... Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support ... [T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged ... The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 688-89, 51 A.3d 948 (2012).
B. Factual Findings re Ineffective Assistance of Counsel
The petitioner was represented by Attorney Paul Carty in the first jury trial. The sole defense witness presented in that trial was Stephanie Gonzalez, who was the petitioner’s girlfriend and mother of their child. Gonzalez testified in 2010 that she was at work from 3:00 p.m. until 11:00 p.m. the afternoon and evening leading up to the shooting outside the Cardinal Club. Gonzalez left work and picked up their child at her grandmother’s, where she would leave him on her way to work. Gonzalez arrived at their residence sometime between 11:45 p.m. and midnight. The petitioner was asleep when Gonzalez and their child arrived, but he woke up when they walked in. Gonzalez got their son ready for bed and around 1:00 a.m. went to bed herself. The petitioner was in bed sleeping when she went to bed. Sometime between 3:00 and 4:00 a.m., their son began crying, which awakened both parents, and Gonzalez attended to the child. The petitioner went back to sleep. After she finished taking care of their son, Gonzalez returned to the bedroom, joined the petitioner in bed, and both parents slept until sometime between 6:00 a.m. and 7:00 a.m., when Gonzalez awoke. The petitioner remained present and asleep. The police never came to their apartment with a search and seizure warrant. Gonzalez accompanied the petitioner to the police station when he turned himself in after the issuance of an arrest warrant.
Attorney Carty’s closing arguments focused on the identification testimony and the alibi testimony by Gonzalez. The jury began its deliberations and sent out a series of notes. The first note requested the playback of the testimony by Denard Lester, Joyce Bellamy, Dominic Parker, and Simone Watson. Petitioner’s Exhibit 16, pp. 44-45. The deliberations continued after the playback of the requested testimony. The second jury note requested the transcript of Denard Lester’s testimony, as well as the transcript of Joyce Bellamy’s testimony relative to the clothing of the shooter. Id., p. 47. A transcript of Bellamy’s testimony was available and provided to the jury; however, no transcript of the requested Joyce Bellamy testimony was available, so her testimony regarding the shooter’s clothing was played back for the jury. After further deliberations, the jury sent out another note requesting the judge’s instructions on consciousness of guilt and the testimony of Detective Hunter, whom the petitioner had told that he was not at the Cardinal Club the night of the incident. Id., pp. 50-51. The jury resumed deliberations and sent out another note, which requested the transcript of Detective Hunter’s testimony. Id., p. 52. The transcript had not been produced at that point and, because it was nearly time to adjourn for the day, the court informed the jury that the requested transcript would be available the following morning. Id., p. 54. The jury continued deliberations and sent out yet another note, this one requesting playback of the testimony by Corey Gomes. Id., p. 55.
The transcript of Detective Hunter’s testimony was provided to the jury the next morning, and Corey Gomes’ testimony was played back. Exhibit 17, pp. 1-2. The jury again resumed deliberations and sent out the next note, which requested playback of Stephanie Gonzalez’s testimony. Id., p. 2. After further deliberations, the jury sent out a note informing the court that the jury could not reach a unanimous agreement on a verdict. Id., p. 3. The court summarized the requested playbacks and transcripts, and then asked the jury if additional playbacks or transcripts were needed. Id., p. 4. The jury responded in the negative. Id. The court then gave the jury a modified "Chip Smith" charge. Id., pp. 5-7. The jurors resumed deliberations but were unable to move beyond a deadlock with six jurors voting guilty and six jurors voting not guilty. Id., p. 7. The court granted Attorney Carty’s motion for a mistrial. Id., pp. 7-8.
Although the evidence presented during the second trial in large part mirrored the evidence from the first trial, there were several notable differences. First, Denard Lester, who during the first trial identified the petitioner as "Wild Billy" and as the individual who gave him dap, maintained during the second trial that the petitioner was not outside the Cardinal Club and did not give him dap. Second, Dominic Parker testified at the first trial that he saw Denard Lester and several others at the Cardinal Club the night of the shooting, but was uncertain if he saw the petitioner at the club. During the second trial, Parker testified that he was unsure if the petitioner was in the club the night of the shooting, and that he could not say that it was the petitioner who came in with several others Parker recognized. Third, Joyce Bellamy, who in the first trial identified the petitioner as being in the club the night of the shooting but was not 100% certain, was unsure during the second trial if her identification of the petitioner was correct. Joyce Bellamy noted she was not 100% sure that she saw the petitioner in the club, further noting that while she identified individuals she thought were in the club that night, she did not know that the police were using the photo identifications to ferret out witnesses to the shooting, which Joyce Bellamy did not witness. Fourth, even though Attorney Silverstein informed the court after the state rested that he would make some brief pro forma motions and then only Stephanie Gonzalez would present testimonial evidence, she was not called as an alibi witness in the second trial. Fifth, Simone Watson testified at the first trial that she would not recognize the individual who gave Denard Lester the dap she witnessed. Watson had also indicated Lester and the person who gave him dap spoke for about ten seconds afterwards. Simone Watson could not be located at the time of the second trial, so the transcript of her testimony was read to the jury after the court determined that she was unavailable as a witness.
Although Attorney Carty did not testify at the habeas trial, a review of the transcript of the first criminal trial shows that his defense strategy focused on challenging the identification of the petitioner and presenting the alibi supported by Stephanie Gonzalez. Attorney Silverstein obtained transcripts of the first jury trial as part of his preparation for the second trial. According to Silverstein, he reviewed the testimony of witnesses and the closing arguments, reading those transcripts three or four times. However, Silverstein also indicated that he would not have ordered transcripts past the closing arguments, a practice which was consistent with the several other cases in which he was defense counsel in a second trial following a mistrial.
Silverstein did not view the first trial’s result— a mistrial— as a victory. In his analysis, a mistrial resulting from a hung jury is not a vindication of the alibi defense, and that the jury would have returned a "not guilty" verdict if the jury found Stephanie Gonzalez to be credible. At the habeas trial Silverstein indicated that he thought the jury was divided 11:1 instead of 6:6; nevertheless, when informed of the evenly split jury, Silverstein noted that the evenly split jury would not have impacted his strategy in the second trial. Silverstein maintained that he wanted to try something different in the second trial. Consequently, Silverstein also attacked the identification of the petitioner, as did Carty, but additionally attacked the police investigation. The decisions of both the Appellate and Supreme Courts addressed issues related to the admission of testimony by police officers and their investigative efforts.
Silverstein prepared to call Gonzalez as a witness by reviewing her testimony from the first trial, discussing with her testifying in the second trial, and serving her with a subpoena to ensure her presence as a defense witness. Silverstein had also during jury selection mentioned Stephanie Gonzalez as a possible witness. Shortly before the state rested in the second trial, which occurred at the end of the third day of trial, March 10, 2011, Silverstein indicated for the record that Gonzalez would testify for the defense when the trial resumed the next day. On March 11, 2011, after brief testimony from Robert Sage, an Inspector with the Office of the State’s Attorney about the unavailability of Simone Watson, and the reading back of her testimony from the first trial, the state rested. Silverstein did not call Gonzalez as a witness and presented no evidence for the defense.
Simone Watson testified previously on June 25, 2010. See Petitioner’s Exhibit 14, pp. 19-32. The import of Watson’s testimony is that she was at the Cardinal Club and saw Denard Lester and Fresh (i.e., Brandon Bellamy) there. Watson witnessed Lester and the individual who gave him a dap shortly before the shooting. According to Watson, she did not recognize the person who gave Lester the dap and would not be able to recognize him again. The other person and Lester spoke for about ten seconds, after which she and Lester left.
At the habeas trial, Silverstein indicated that he was not sure whether he was going to call Gonzalez as an alibi witness. Silverstein wanted the prosecutor to believe that he was calling Gonzalez to testify and, perhaps, thereby shift the prosecutor’s focus and preparation efforts on that witness and not on the closing arguments. Even though Silverstein subpoenaed Gonzalez, he does not like issuing subpoenas for his own witnesses because that may be perceived as undermining the voluntariness of a witness’s testimony. Silverstein noted that he would only issue subpoenas for a defense witness if they were reluctant to testify, which makes him very cautious about using the witness, or when an employed witness needs the subpoena for work-related reasons. The petitioner testified at the habeas trial that he wanted Gonzalez to testify as an alibi witness in his defense and told Silverstein as much, but that Silverstein sent her home and did not call her to testify because he was confident of a defense verdict in a case where no one had identified the petitioner as the shooter.
According to Silverstein, if the jury in the first trial had found Gonzalez credible as an alibi witness, then the petitioner would have been found not guilty. This led Silverstein to view Gonzalez’s alibi testimony negatively and alter the trial strategy by attacking the police investigation. Silverstein accentuated that even though the Supreme Court found that he had failed to make a proper or sufficient offer of proof, there was no way for him to make the necessary offer of proof as described by the Supreme Court. In comparing the second trial to the first trial, Silverstein observed that the only person in the first trial who knew the petitioner was Denard Lester, who recanted his identification of the petitioner in the second trial.
Stephanie Gonzalez testified at the habeas trial consistent with her testimony in the first criminal trial. The petitioner was asleep when she arrived, and he remained present and asleep until the morning. According to Gonzalez, she met with Silverstein and they discussed her testifying in the second trial. Gonzalez told Silverstein that she was available the day that the defense was scheduled to present its case. Gonzalez met with Silverstein at his office the morning she was expecting to testify, but Silverstein informed her that he would no longer need her because he viewed the defense case as already strong. The court finds Stephanie Gonzalez to be credible.
Even though Silverstein assessed the defense case in such a positive light, he at the habeas trial described the most damaging testimony in the second trial as the recantation by Joyce Bellamy. Joyce Bellamy testified in the first trial that she had observed Lester and the petitioner together enter the club, although she acknowledged that she was not 100% certain about the petitioner being in the club. In the second trial Joyce Bellamy testified that the petitioner was in the club on the night of the shooting, again acknowledging that she could not be 100% certain of her identification. However, at the habeas trial Joyce Bellamy indicated that she now is only 5% sure of her identification, that she previously thought the petitioner had come into the club the night of the shooting, but also that she was thinking about someone else who looks similar to the petitioner.
This court has reviewed the entirety of both criminal trial transcripts. Although Attorney Silverstein referred to Joyce Bellamy’s testimony in the second trial as a recantation, her testimony in both trials is relatively consistent. At best her testimony in the second criminal trial was a little more emphatic than during the first. The Appellate Court on direct appeal from the second trial described the identifications of the petitioner by Joyce Bellamy and Dominic Parker, the "[o]nly two persons, [and who were] the two owners of the bar, ... as being present in the bar that night, but their testimony was subject to the classic vagaries and frailties of eyewitness identification by strangers." State v. Wright, supra, 152 Conn.App. 275. This description is judicious. Joyce Bellamy’s testimony at the habeas trial was at much greater variance with all of her prior testimony in the various criminal proceedings.
Several members of the New Haven Police Department testified at the habeas trial about the police’s investigative efforts. At the habeas trial David Parker testified that he was instructed to stay with the victim and observed other officers attempting to locate and interview witnesses. Parker had experience responding to serious crime scenes, including shootings, and received training at the police academy how to protect and investigate crime scenes. The investigation of crime scenes includes canvassing a scene for witnesses. Parker did not canvass for witnesses to the shooting outside of the Cardinal Club because he was instructed to stay with the victim. Parker’s testimony at the habeas trial deviates somewhat from his testimony at the second criminal trial. At the second criminal trial Parker testified that he did not observe any fellow officers canvass the crowd outside the club. Silverstein asked Parker if he canvassed the crowd, to which he responded that he was instructed to stay with the victim.
Terrence McNeil testified at the habeas trial that his police academy training included securing crime scenes, but indicated that his training there did not include how to deal with potential witnesses. However, McNeil did receive such training on-the-job during his ten years as a police officer prior the shooting, and knew about getting potential witness’s identification information for follow up questioning. McNeil, as did others responding to the scene, thought the shooting happened inside the club. McNeil tried to locate potential witnesses, but no one wanted to speak with him and he did not get any identification information from potential witnesses. McNeil noted that he saw officers canvassing the neighborhood. At the second criminal trial, McNeil, who arrived at the scene after the medical personnel, responded in the affirmative when asked if he attempted to locate witnesses. Although he attempted to speak to as many people as he could, no one was willing to get involved and provide him with information. McNeil did not ask potential witnesses for identification information to provide to investigating detectives. Silverstein made an offer of proof to support his questions about McNeil’s previous experience with investigations and getting witness cooperation but did not ask any questions about McNeil’s training or standard police protocols.
Herbert Johnson, who was a detective at the time of the shooting outside the Cardinal Club, responded to the scene. Police officers were present when he arrived. Johnson spoke with Joyce Bellamy, who informed him of the numerous surveillance cameras used by the club to monitor and record areas both inside and directly outside the club entrance. Johnson’s investigation focused initially on capturing and preserving the nine surveillance video recordings, but then transitioned to studying the recordings to determine the identity of the shooter. Johnson acknowledged that no one provided him with any names of potential witnesses, nor did he ask other officers at the scene what they had done to find potential witnesses or asked them if they had canvassed the crowd. Johnson himself also did not canvass anyone or go to any houses across the street from the club to locate witnesses. Johnson did not attempt to determine the motive for the shooting.
At the habeas trial, Johnson indicated that he attended the New Haven Police Academy prior to becoming a police officer, has received training in the investigation of serious crimes, and has been involved in the training of other police officers who were being trained to investigate serious crimes. Johnson acknowledged that it was routine practice and protocol for the police department to canvass a crime scene area to locate potential witnesses, determine the location of the shooting (e.g., inside or outside the club in this case) to find evidence, and when possible get identifying information from potential witnesses for later questioning by investigators. Johnson arrived on the scene well after the shooting when no potential witnesses were present.
Bridget Brosnahan was the only other police officer to testify at the habeas trial. Brosnahan testified consistent with her testimony in both criminal trials about the scant forensic evidence she collected at the scene, most importantly fiber-like materials she thought had potential evidentiary value. The fiber-like materials were never tested. According to Brosnahan, it was up to the detectives investigating the case to order testing of these materials. Although Detective Hunter, who was the lead investigator, testified in the first criminal trial, he did not testify in the second criminal trial. Silverstein’s efforts to question Brosnahan about the general procedures for testing materials were unsuccessful. Neither Hunter nor Teague, the detectives investigating the criminal case, testified at the habeas trial.
Detectives Hunter and Teague testified in the first criminal trial about the identification procedures and the interview of the petitioner when he turned himself in to the police. Teague did not present any testimony during the second criminal trial regarding the testing of any forensic evidence; instead, his testimony only focused on the identification procedures.
Attorney Jeffrey Kestenband, the petitioner’s expert witness, concluded that reasonably competent trial counsel would have called Gonzalez as an alibi witness in the second trial. The impact that Gonzalez had on the first trial weighs in favor of calling her to discredit or negate Denard Lester’s testimony in the second trial. According to Kestenband, it was unreasonable for Silverstein to not call Gonzalez as an alibi witness because no one identified the petitioner as the shooter, but more than one witness placed the petitioner at the Cardinal Club. Gonzalez’s testimony would directly contradict the tenuous identification evidence that placed the petitioner at the club. The testimony by both Joyce Bellamy and Denard Lester in the second trial, in Kestenband’s opinion, was more convincing than in the first trial. Thus, it was more important to call Gonzalez in the second trial when compared to the first trial. The court finds Kestenband’s analyses to be persuasive.
C. Discussion re Ineffective Assistance of Counsel
"[R]eview of an attorney’s performance is especially deferential when his or her decisions are the result of relevant strategic analysis ... Thus, [a]s a general rule, a habeas petitioner will be able to demonstrate that trial counsel’s decisions were objectively unreasonable only if there [was] no ... tactical justification for the course taken ...’ (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 79, 967 A.2d 41 (2009), citing, inter alia, Eze v. Senkowski, 321 F.3d 110, 129 (2d Cir. 2003) (’the decision not to call a witness must be grounded in some strategy that advances the client’s interests’)." (Citation and quotation marks omitted.) Spearman v. Commissioner of Correction, supra, 164 Conn.App. 540-41. Even given this high level of deference accorded generally to trial counsel’s decisions, Silverstein’s decision not to call Gonzalez was objectively unreasonable and could not advance the petitioner’s interests.
The petitioner’s principal claim of deficient performance by Attorney Silverstein is that he failed to call Stephanie Gonzalez as an alibi witness at the second trial. The petitioner emphasizes that the evenly split jury and mistrial, which occurred after the jury requested a playback of Gonzalez’s testimony, supports the contention that half the jury found Gonzalez credible. Although it is not possible to discern the individual juror’s credibility assessments, the only defense evidence that contradicted the circumstantial evidence, described by the Appellate Court more than once as being tenuous, that linked or "connected the dots" between the identifications and the video recordings, was the alibi supported by Gonzalez. Stated somewhat differently, all twelve jurors in the second trial found the tenuous circumstantial evidence sufficient to convict the petitioner, yet half of the first jury was not able to conclude that the state had met its burden of proof in light of the alibi provided by Gonzalez. Clearly Gonzalez had an impact on the outcome of the first trial.
Although Silverstein expressed some concerns about Gonzalez’s impact on the second jury, he made that assessment without the knowledge that the jury was evenly divided in the first trial. Silverstein’s oblique assessment of her alibi testimony was premised on Silverstein’s overly myopic view that a hung jury and mistrial are not a defense victory. A "not guilty" verdict of course means that the state failed in its burden of proof; however, so does an evenly split jury resulting in a mistrial. Silverstein’s conclusion about how effectively he challenged the identification evidence and police investigation clouded his assessment of the alibi testimony, particularly in light of the apparent positive impact it had on half of the jurors in the first trial.
The identification of the petitioner as the shooter required that the jury connect the dots, as argued by the prosecutor, and anything the defense could do to disconnect those dots had the potential to weaken the state’s case and/or raise reasonable doubt for the jury. The shooter’s identification, accomplished by connecting the dots, can be called into question in various ways. A weakening of the connections between the dots by attacking the identification procedures themselves or the reliability of eyewitness identifications may create reasonable doubt, but not in the manner an alibi witness can.
The court cannot determine any rational basis for Silverstein to not present Gonzalez’s alibi testimony, even if the state attempted to show that she was biased because she was the petitioner’s girlfriend and mother of their child. The prosecutor’s questions on cross examination of her during the first criminal trial elicited such potential bias, that she was not a neutral or disinterested witness, and left it up to the jury to assess Gonzalez’s credibility. Although the jury in the first criminal trial theoretically may have been unable to reach a unanimous verdict solely because of disagreement as to the identification evidence, which would require completely negating or discounting Gonzalez’s testimony, the court does not find such a scenario plausible. The fact that the jury requested playback of Gonzalez’s testimony underscores that her testimony influenced the deliberations and contributed to the jury being unable to conclude that the state had met its burden of proof beyond a reasonable doubt.
Given all of the foregoing, the court concludes that Attorney Silverstein rendered deficient performance by not calling Stephanie Gonzalez as an alibi witness. The court also concludes that this deficient performance prejudiced the petitioner. The jury did not hear alibi evidence that previously had a discernable impact by contributing to an evenly divided jury and mistrial. As a result, this court’s confidence in the outcome of the second trial is undermined by the outcome of the first trial.
The petitioner’s post-trial brief next addresses the allegation that Silverstein failed to conduct an adequate investigation and introduce evidence to impeach the identification evidence and strengthen the alibi evidence Gonzalez would have presented. The petitioner identifies this evidence as the testimony of Brandon "Fresh" Bellamy, which the petitioner argues would have raised a reasonable doubt by severing the link between him and other frequent patrons of the Cardinal Club.
Brandon Bellamy did not testify in either criminal trial but did testify in the habeas trial. Brandon Bellamy knew of the petitioner at the time of the incident at the Cardinal Club. However, he did not associate with the petitioner and did not socialize with him. Brandon Bellamy arrived at the club by himself and entered with someone he identified as "Crazy Gersez." Brandon Bellamy was familiar with Denard Lester and saw him at the Cardinal Club the night of the shooting. According to his habeas trial testimony, Brandon Bellamy had not seen the petitioner at the club prior to the night of the shooting. On cross examination, Brandon Bellamy acknowledged that he probably was not at the club very long that evening, only had one drink, and then left before the shooting occurred. He also conceded that the petitioner could have been at the club but that he did not know the petitioner was there. The court does not view Brandon Bellamy’s testimony particularly helpful in buttressing the alibi defense. Additionally, Brandon Bellamy’s testimony may have had the potential to add to the conflicting identification evidence, but not in a manner this court views as undermining confidence in the outcome of the criminal trial. The claim of ineffective assistance premised on the failure to investigate and call Brandon Bellamy, therefore, must fail.
The third area of deficient performance addressed in the petitioner’s post-trial brief is Silverstein’s failure to provide an adequate basis, through sufficient offers of proof, to cross examine the police officers on their investigation. This would have helped to establish a defense that the police investigation was deficient and deviated from routine police protocols and procedures. The Supreme Court’s decision in the petitioner’s direct appeal itself establishes that Silverstein failed to make these offers of proof. However, even if this court finds that Silverstein was deficient in that regard, the petitioner has failed to show that prejudiced his defense that the police investigation was inadequate.
The evidence in the habeas case regarding the police investigation does not show that the investigation was so flawed that this court’s confidence in the outcome of the criminal trial is undermined thereby. After the victim was shot just outside the club, he stumbled inside the club. The individuals close to where the shooting occurred dispersed quickly. Responding police officers initially thought the shooting occurred inside the club because of the victim’s location. Attending to a shooting victim until emergency medical services arrive is part of established police protocol and procedure. Police officers did canvass individuals and attempt to obtain information related to the shooting. However, no information was provided that was helpful and the individuals the police spoke to were uncooperative.
The police not getting names and contact information from individuals who were canvassed in the club’s vicinity would not conform with established police protocols and routine procedures. It is unclear why the fiber-like material collected by Brosnahan was not subjected to any testing. The detectives focused their attention on the extensive video footage from nine surveillance cameras both inside and outside the club. Working backward from the shooting, preceded by the dap, the detectives focused the investigation on movements and interactions involving the shooter leading up to the shooting. This investigative approach and trail culminated in the police concluding, through the identification procedures, that the petitioner was the shooter.
The petitioner elicited testimony at the habeas trial from the police officers that goes beyond that presented by Silverstein at the second criminal trial. Nevertheless, the testimony about the police protocols and procedures presented to this court fails to demonstrate that there was "material evidence of the petitioner’s guilt or evidence" that would have been discovered if the police had adhered to those protocols and procedures. State v. Wright, supra, 322 Conn. 288. Even assuming deficient performance by Silverstein in this regard, the petitioner has failed to affirmatively show that he was prejudiced thereby. Similarly, the petitioner has not shown that he would have prevailed on appeal had Silverstein more adequately preserved the record for appeal.
II. Due Process Violation Resulting From Perjured Testimony
The next legal theory addressed by the petitioner’s post-trial brief is that his right to due process, as guaranteed by the fourteenth amendment of the United States constitution and article first, section eight of the Connecticut constitution, was violated because his conviction rests on perjured testimony. After summarizing the legal standard for such a due process claim, the petitioner states that "[a] fair reading of the entire record in this case establishes that Joyce Bellamy and Denard Lester testified falsely at the criminal trial that resulted in Mr. Wright’s wrongful conviction." Petitioner’s Post-Trial Brief, p. 57. The petitioner identifies testimony by these two witnesses and posits that their recantations are reliable.
Joyce Bellamy testified consistently prior to the habeas trial. Because she did not witness the shooting, she thought the police asked her to identify individuals she saw in the club. Joyce Bellamy was never 100% certain of her identification of the petitioner during the criminal proceedings. Her testimony at the habeas trial that she now is only 5% certain of her identification significantly reduces the reliability of her identification, but it does not completely negate it.
Denard Lester testified in the first criminal trial that "Wild Billy" gave him dap. Lester identified an individual on a photo board as "Wild Billy." In the second trial Lester testified that the petitioner was not outside the Cardinal Club and was not the person who gave him dap. The jury in the second trial was aware of that recantation because the state used the transcript of his testimony from the first trial to challenge his recantation. Lester then backed off of his recantation and acknowledged, consistent with his testimony in the first trial, that it was "Wild Billy" who gave him dap. Because Lester did not testify at the habeas trial, only a comparison of his testimony at the two criminal trials can be made.
The court concludes, based upon the foregoing, that the petitioner has failed to show that these recantations are reliable. The petitioner has also not proven that Joyce Bellamy and Denard Lester committed perjury, i.e., intentionally testified falsely. Consequently, the petitioner’s due process claim must fail.
III. Actual Innocence
The final claim briefed by the petitioner is his claim of actual innocence. "In Miller v. Commissioner of Correction, 242 Conn. 745, 747, 700 A.2d 1108 (1997), our Supreme Court ‘held that the proper standard for evaluating a freestanding claim of actual innocence ... is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence— both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom ... no reasonable fact finder would find the petitioner guilty of the crime.’ (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 80-81, 967 A.2d 41 (2009).
" ‘[O]ur Supreme Court has deemed the issue of whether a habeas petitioner must support his claim of actual innocence with newly discovered evidence an open question in our habeas jurisprudence ... This court, nevertheless, has held that a claim of actual innocence must be based on newly discovered evidence. In Weinberg v. Commissioner of Correction, 112 Conn.App. 100, 119, 962 A.2d 155, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009), [the Appellate Court] stated: [A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered ... This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner’s criminal trial by the exercise of due diligence.’ (Citation omitted; internal quotation marks omitted.) Sargent v. Commissioner of Correction, 121 Conn.App. 725, 734-35, 997 A.2d 609, cert. denied, 298 Conn. 903, 3 A.3d 71 (2010)." Gaston v. Commissioner of Correction, 125 Conn.App. 553, 558-59, 9 A.3d 397 (2010), cert. denied, 300 Conn. 908, 12 A.3d 1003 (2011).
The petitioner identifies as newly discovered evidence the alibi evidence by Stephanie Gonzalez, ostensibly supported by testimony from Brandon Bellamy and Denard Lester that the petitioner was not at the Cardinal Club the night of the shooting. Gonzalez’s testimony assuredly is not newly discovered— Silverstein was aware of her testimony from his review of the first criminal trial transcripts. Denard Lester’s recantation in the second criminal trial has already been addressed by this court. That recantation was undermined by the state and any testimony by Lester in the two criminal trials also cannot be newly discovered.
The court has discussed Brandon Bellamy’s testimony previously in the context of the ineffective assistance of counsel claim. To summarize, Brandon Bellamy knew the petitioner and Denard Lester; however, Brandon Bellamy did not arrive at the club with either of them. Even though Brandon Bellamy was not at the club very long the night of the shooting, he saw Denard Lester at the club. Brandon Bellamy did not recall the petitioner’s presence at the club but acknowledged that the petitioner could have been there and he did not see him.
The court has not found Brandon Bellamy’s testimony particularly helpful in buttressing the alibi defense. Additionally, the court found that his testimony had the potential to add to the already conflicting identification evidence, but not in a manner this court views as undermining confidence in the outcome of the criminal trial. The court now also finds that even if Brandon Bellamy’s habeas testimony were considered newly discovered, which it is not because it was available at the time of the criminal trials, it nevertheless falls far short of being clear and convincing evidence of the petitioner’s innocence.
The petitioner posits that he has presented credible evidence that someone else was the shooter. More specifically, the petitioner has tried to establish that Markease Hill shot the victim. The petitioner argues that "[a] mosaic of evidence establishes that a third party, Markease Hill, was the shooter. Hill knew the victim, had a motive to shoot the victim, possessed a gun capable of firing the fatal shot, had a violent disposition, and was responsible for the death of at least two other people. Hill confessed to at least three other people including two investigators. The totality of the circumstances including the level of detail provided by Hill render his confessions reliable." Petitioner’s Post-Trial Brief, pp. 62-63.
Markease Hill did not testify at the habeas trial; instead, after consulting with counsel, he invoked his Fifth Amendment right to not incriminate himself. The petitioner presented testimony from two investigators, Daniel Markle and Ken Novi, and inmate Charles Marshall, who all described their respective interactions with Hill and the information he provided to them.
According to Markle, an investigator hired by the petitioner’s family, he interviewed Hill at Cheshire Correctional Institution in July of 2013. Another investigator, whom he identified as Deb Curtis, was also present. Hill told them that he was connected with the Island Brothers and shot the victim in retaliation for robbing people in Hill’s neighborhood. Markle viewed Hill as credible because of the details Hill provided and his straightforward demeanor. Markle provided the information he obtained to the petitioner and his family. Markle did not attempt to corroborate any of the information provided to him by Hill.
Novi, a former police detective with extensive experience conducting investigations of serious felonies, spoke with Hill in October of 2017 while investigating the petitioner’s habeas claims. Novi went to speak with Hill because the petitioner informed him that Hill had information about the shooting. According to Novi, who anticipated that Hill would give him information that would help exculpate the petitioner, Hill instead inculpated himself by telling Novi that he fired the shot at Bethea. Novi also spoke with Corey Gomes, Denard Lester, and Brandon Bellamy to corroborate that Hill was at the Cardinal Club the night of the shooting. Brandon Bellamy informed Novi that he did not see the petitioner at the club. Novi did not talk to Marshall, who was not present at the club the night of the shooting. Marshall testified at the habeas trial that Hill told him that he shot Bethea but did not provide much detail to him. Novi also spoke with Joyce Bellamy, whose recall of who was present at the club was not good.
Bethea, the victim, was 5’ 9" tall. Hill is slightly taller— 5’ 10." The petitioner’s height is slightly over 6’ 2" and thus at least 4 or 5 inches taller than both the victim and Hill. The respondent relies on these height differences to argue that the video shows that Hill could not have been the shooter. The respondent argues that the video shows the shooter is notably taller than the victim.
This court has viewed video of the shooting, the individuals outside the bar just prior to the shooting, and video footage from inside the bar prior to the shooting. After numerous reviews of the video, it is not possible to determine the height of the shooter with any degree of accuracy. Thus, estimating the height of individuals from the video is fraught with difficulties, although some relative comparisons can be made, but far from being clear and convincing evidence supporting the petitioner’s contention that he is actually innocent.
The mosaic of evidence the petitioner outlined and presented to show that Hill was the shooter pieces together a picture that is not as clear as the petitioner posits. The court does not accord much weight to the testimony about Hill’s allegedly self-incriminating statement. A habeas petitioner has a high burden of proof when demonstrating a claim of actual innocence, which requires newly discovered evidence that affirmatively proves the person convicted of a crime in fact did not commit the crime. In the present matter, the petitioner’s evidence falls short of this standard.
CONCLUSION
Based upon the foregoing, the court concludes that the petitioner has proven his claim of ineffective assistance of trial counsel. Judgment shall enter granting the petition for a writ of habeas corpus. The petitioner’s conviction and sixty-year sentence for murder in violation of General Statutes § 53a-54a(a), docket number CR0-0082029-S, judicial district of New Haven, are vacated and the matter is remanded to the trial court for further proceedings in accordance with the law. The automatic stay provisions pursuant to Practice Book § 61-11 apply to this judgment.
It is so ordered.