Opinion
No. 383804
June 11, 2003
MEMORANDUM OF DECISION
I. INTRODUCTION
This petition for new trial has been tried to the court following the remand of the Supreme Court. Adams v. State, 259 Conn. 831, 792 A.2d 809 (2002). For the reasons set forth below, the petition must be denied.
II. PROCEDURAL HISTORY
In the early morning hours of September 21, 1991, two men, Hury Poole and Andrew Paisley, were fatally shot and a third man, Christopher Roach, was wounded outside the Athenian Diner in New Haven. Two other men, Daryl Valentine and Tyrone Adams, were subsequently arrested for the crime and separately tried and convicted. Valentine was the shooter. Adams was accused (and ultimately convicted) of aiding and abetting Valentine in the homicides.
Adams was tried first. He was charged in an information with, inter alia, two counts of aiding and abetting murder. The person he allegedly aided and abetted was Daryl Valentine. On May 14, 1993, Adams was convicted by the jury of two counts of aiding and abetting manslaughter in the first degree. On June 11, 1993, the Court (Thompson, J.) imposed a total effective sentence of 28 years, execution suspended after 16 years, with 3 years of probation. The conviction was affirmed on direct appeal. State v. Adams, 36 Conn. App. 473, 651 A.2d 473 (1994), appeal dismissed, 235 Conn. 473, 667 A.2d 796 (1995).
Valentine was tried twice. Each trial resulted in convictions of two counts of murder and one count of assault in the first degree. Valentine's first trial ( Valentine I) occurred in 1994. The convictions resulting from Valentine I were reversed on appeal. State v. Valentine, 240 Conn. 395, 692 A.2d 727 (1997). Valentine's second trial ( Valentine II) occurred in 1998. The convictions resulting from Valentine II were affirmed. State v. Valentine, 255 Conn. 61, 726 A.2d 1278 (2000).
Adams filed the Petition For New Trial now before the Court on February 21, 1996. The matter was originally tried to Thompson, J., who granted the Petition. The Supreme Court subsequently reversed that decision and remanded the matter for a new trial on the Petition. Adams v. State, supra.
The Petition was retried before me on May 28, 2003. Following the submission of post-hearing briefs, the matter was argued on June 10, 2003.
III. THE ORIGINAL TRIAL
The Appellate Court described the facts of the case, drawn from the evidence submitted at the original trial, as follows:
At approximately 3 am. on September 21, 1991, police responded to a report of shots fired at the Athenian Diner on Whalley Avenue in New Haven. At the scene, the police found a hostile crowd of fifty to 100 people surrounding two wounded men lying on the ground. These two men, Hury Poole and Andrew Paisley, were later pronounced dead at a hospital. Another victim, Christopher Roach, had been shot in the arm.
An altercation had originated in the diner and continued outside. A crowd gathered, including the defendant; his friend Daryl Valentine, who was the shooter; and Byron McFadden, who would later testify at trial.
As Roach, Poole and Paisley joined the crowd, Roach heard the defendant shout, "Shoot him, shoot him f_____ it, shoot him." Valentine shot Poole and Paisley, ran to a car parked in the driveway of the diner and got in on the passenger side. Roach ran after him. As Roach approached the car, Valentine fired at him, hitting him in the arm. The car with Valentine in it sped away, followed shortly thereafter by the defendant, who drove off in his own car.
State v. Adams, supra, 36 Conn. App. at 474-75.
It is common ground that the Appellate Court's summary just quoted contains a misstatement. The witness who testified that he heard the defendant speak the words quoted by the Court was not Roach but McFadden.
Roach and McFadden were important witnesses at Adams' trial. It will be helpful to describe their testimonial evidence separately.
Roach testified that he arrived at the Athenian Diner in the company of Poole and Paisley, who were his close friends. (March 15, 1993 T. 76.) After his arrival, he observed an altercation between three people — Stephen Roundtree, Chris Holland, and a third person unknown to him. ( Id. 82.) As Roach and his companions approached the altercation, another person "came from behind and started shooting." ( Id. 83.) Roach heard three shots. After Poole hit the ground, Roach turned to the left and saw a gun in the shooter's hand. Then Paisley hit the ground. ( Id. 86.) Roach identified the shooter as Daryl Valentine, who he knew from high school. ( Id. 86.) After shooting Poole and Paisley, Valentine went "[to] a black 626." Valentine sat on the passenger side, and Roach "[g]rabbed the driver's door." ( Id. 87.) At that point, Roach saw the gun and put his arm up, and Valentine shot Roach twice in the right forearm. ( Id. 88-90.) Roach further testified that the Adams' car was parked in front of the getaway car used by Valentine. He did not, however, see Adams himself at the scene. ( Id. at 86, 91; March 16, 1993 T. at 16.) Roach admitted that he had told the police in 1991 that he had no memory of who was doing the shooting, but stated that his 1991 assertion had been false. ( Id. at 54.)
McFadden testified that he saw Adams at the scene "standing a couple of feet behind me." (March 18, 1993 T. at 35.) McFadden further testified that he heard Adams say, "shoot him, shoot him, fuck it, shoot him, shoot him." Immediately after that, the gunman pulled a coat from over his hand and "started firing into the crowd." ( Id. 37.) McFadden, however, testified that he did not see Valentine that evening. ( Id. 57.)
Thompson, J. instructed the jury that:
The identification of the person shooting the victim or victims is an essential element of the crime for the State to prove. Therefore, if you find that the State has not proven beyond a reasonable doubt that it was Daryl Valentine who caused the death of Harry [sic] Poole and Andrew Paisley, then you must find the defendant not guilty of these charges.
(March 24, 1993 T. at 91.) Under these circumstances, the State agrees that, in order to convict Adams of aiding and abetting, it was obliged to prove beyond a reasonable doubt that Valentine was the shooter.
IV. THE NEW EVIDENCE
The Petition now before the Court has come about because of the appearance of a new witness, Crystal Jackson, in the 1994 trial of Valentine I. (At the time of Valentine I, the witness was named Crystal Greene. By the time of the hearing in the present case, her name had become Crystal Jackson. In the interest of consistency, she will be referred to as "Jackson" throughout this decision.) Jackson is related to Roach by both blood and marriage and is a close friend of Valentine's sister. She offered testimony concerning statements assertedly made by Roach during the course of two conversations with her after the Adams trial but before Valentine I.
Valentine I
Jackson was not allowed to testify before the jury in Valentine I. She testified outside the presence of the jury that she had seen Roach at a club prior to the Valentine I trial. According to her testimony, Roach told her that he could not discuss the case with her. She said "Well, what about an innocent man." Roach replied, "I can't talk about it. I didn't see what happened." He added that, "Somebody has to pay the price. Somebody has to go." Jackson additionally testified that some time after the conversation just related, she encountered Roach at the train station. She asked him, "Did Daryl do it?" He replied, "I can't say that because I didn't see it." (April 19, 1994 T. 89.) The trial court's exclusion of this proffered testimony ultimately caused Valentine I to be reversed. 240 Conn. at 402-05.
Valentine II
In 1998, Jackson testified before the jury in Valentine II. She testified that the club conversation had taken place at Page One Cafe. Roach was reluctant to discuss the case, but Jackson admitted to "pushing the issue." (Ex. 10 at 161.) After much "pushing," the following exchange ensued,
I told Chris that I didn't think that it was fair, you know, that he couldn't talk to me, and I wanted to know what was going on. He wouldn't tell me, he kept saying I can't talk about it. I can't talk about it. And I asked him. I said, what about an innocent man? And his words, quote, were it's none of your business, you need to leave it alone. And I said, but I need to know. And Chris kept trying to push me off, blow me off, and I asked him the last time, I just yelled at him I need to know. And he yelled back at me, somebody has to pay the price, somebody has to go.
( Id.)
Jackson further testified that subsequently, at the train station, Roach said that he "didn't see who did it." ( Id. at 160.)
On cross-examination in Valentine II, Roach denied that these conversations had occurred. (January 12, 1998 T. 108.) The jury delivered verdicts of guilty.
The Present Case
Jackson again testified at the hearing on the Petition now before the Court. She testified that the Page One incident occurred in September or October 1993. Her testimony concerning that incident was as follows:
I asked Chris about the trial. I asked him about an innocent man, well, Daryl, and his exact words to me was somebody has to pay.
He didn't — he didn't see it. Those were his words to me. He didn't see who did it but somebody has to pay.
(May 28, 2003 T. 18.)
Jackson additionally testified that later, at the train station, Roach said, "I can't say Daryl did it. I didn't see who did it." ( Id. 12.)
The Court additionally heard testimony from Valentine's attorney, Thomas Ullman. Ullman credibly testified that he first became aware of Jackson's story during the early part of the evidentiary phase of Valentine I. It appears that this initial disclosure occurred in approximately March of 1994.
Roach did not testify at the hearing in the present case.
V. THE SHABAZZ TEST
The test for granting a petition for a new trial has been clarified by Shabazz v. State, 259 Conn. 811, 792 A.2d 797 (2002). Shabazz explains that, "[A] court is justified in granting a petition for a new trial when it is satisfied that the evidence offered in support thereof: (1) is newly discovered such that it could not have been discovered previously despite the exercise of due diligence; (2) would be material to the issues on a new trial; (3) is not cumulative; and (4) is likely to produce a different result in the event of a new trial." Id. at 820-21.
VI. THE FIRST THREE SHABAZZ FACTORS
The first three Shabazz factors are satisfied in this case. Thompson, J. found them satisfied in his Memorandum of Decision in the present case, and the Supreme Court did not disagree. 259 Conn. at 839-40. On my own review of the evidence, I make a similar determination.
(1) The evidence in question is newly discovered such that it could not have been discovered previously despite the exercise of due diligence. It is clear from the evidence that the conversations described in Jackson's testimony occurred subsequent to the Adams trial if they occurred at all.
(2) The evidence would be material to the issues on a new trial. The Supreme Court explained in Valentine I that, "The subject matter of these statements, namely, the identity of the shooter and whether Roach knew that identity, was material to the central issue in the case and, therefore, was not collateral." 240 Conn. at 404.
(3) The new evidence is not cumulative. The Supreme Court explained in Valentine I that in spite of the fact that other impeachment evidence was already in the case, that factor was "insufficient to outweigh" the potential force of Jackson's testimony. 240 Conn. at 405.
VII. THE FOURTH SHABAZZ FACTOR
The Supreme Court recognized that the fourth Shabazz factor whether the new evidence "is likely to produce a different result in the event of a new trial" — is crucial in the context of the present case. 259 Conn. at 840. The Court explained that the trial court is obliged to make "an independent credibility assessment under the fourth prong." Id. In addition, the court must consider "the heightened standard for granting a new trial based on newly discovered impeachment evidence set forth in Turner v. Scanlon . . . 146 Conn. [149,] 163[, 148 A.2d 334 (1959)]." 259 Conn. at 846-47. Turner states that, "New trials [typically] are not granted upon newly discovered evidence which discredits a witness unless the evidence is [both] vital to the issues and . . . strong and convincing . . ." 146 Conn. at 163.
I have been charged with the responsibility of making a "credibility evaluation" of Jackson's testimony. 259 Conn. at 842. In making this evaluation, I have had the advantage of personal observation of the Jackson testimony in the context of a careful review of the other evidence submitted in the case. In evaluating this testimony I have been cognizant of the credibility factors that juries are routinely instructed to consider: the witness's appearance on the stand, her interest in the outcome of the trial, her opportunity and ability to observe facts correctly and to remember them truly and accurately, the reasonableness of what she says, the consistency or inconsistency of her testimony, and the relationship of her testimony to facts otherwise proven.
After a full consideration of all these factors, I cannot believe Jackson's testimony. The changing nature of Jackson's testimonial evidence, the timing of its initial disclosure, and its improbability in light of the other evidence in the case are matters of particular importance.
The evolution of Jackson's testimony is readily apparent from the summary in Part IV. Each time Jackson tells her story, new details are added and inconvenient details are omitted. The evolution of the contextual details of the Page One incident is particularly striking. Jackson's testimony in the present case was notable for its lack of detail concerning the "pushing" and "yelling" match described in her testimony in Valentine II. Her apparent suggestion — a suggestion affirmatively seized upon by Adams in argument — was that Roach's disclosure to her was an act of confidence. Jackson's Valentine II testimony, in its original detail, cannot be squared with this new emphasis. This testimonial evolution is not helpful to Jackson's credibility.
In addition, the timing of the initial disclosure of this evidence renders it suspicious in the extreme. Jackson testified that the Page One incident occurred in September or October of 1993. The initial disclosure of the incident did not occur until approximately March of 1994. Jackson testified that she was extremely close to Valentine's family. If the Page One incident happened, why did she wait so long to disclose it? At argument, Adams gamely suggested that the Page One incident might not have seemed important at the time. If Jackson's Valentine II testimony is to be believed, however, she repeatedly "pushed" Roach to provide the admission in question and was, to say the least very much engaged in the process. This internal tension in Jackson's testimony cannot be resolved. Unhappily, the most plausible explanation for the timing is that the Page One incident was simply fabricated. This conclusion necessarily casts grave doubt on the train station incident as well.
The substance of Jackson's testimony is also highly improbable. There is no plausible reason to believe that Roach "didn't see it," and it is difficult to conclude that he would have said any such thing to Jackson under the circumstances she described. Roach was plainly present and wounded in the attack. (The Adams jury had an opportunity to observe his injury.) There is absolutely no reason to believe that "he didn't see who did it." He gave detailed testimony — under oath and subject to cross-examination — in three different trials (Adams' trial and both Valentine trials) concerning who and what he saw. His testimony in Adams' trial is described in Part III. That testimony did not describe a fleeting occurrence that Roach might or might not have observed depending on which way his head was turned. His testimony, instead, described the shooting of three people, the last of whom was Roach himself. In fact, Roach's injury occurred precisely because he saw Valentine with the gun and put up his arm in reaction. This testimony fully justified a finding of Valentine's guilt beyond a reasonable doubt. There is simply no reason to believe that Roach "didn't see who did it." The more likely testimony is that given by Roach himself and apparently believed by the jury, in Valentine II — the conversations related by Jackson simply never occurred.
Considering all of the evidence, I cannot find that Jackson's testimony is credible. Even if I were to find it credible (which I do not), I could not find it "sufficiently strong and convincing as to warrant a new trial." 259 Conn., at 847. The fourth Shabazz factor is thus not satisfied.
VIII. CONCLUSION
The petition for new trial is denied.
Jon C. Blue Judge of the Superior Court