Opinion
CV104003478S
09-05-2017
John Brewer v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
John F. Mulcahy, Judge Trial Referee.
The petitioner in 2006 brought his first petition for a writ of habeas corpus challenging convictions, after a jury trial, on murder and criminal possession of a firearm. After amending the petition, the various claims of ineffective assistance by trial counsel were tried to the first habeas court, Fuger, J., which denied the petition. The petitioner appealed from the denial of the petition for certification to appeal, and the Appellate Court dismissed the petitioner's appeal in Brewer v. Commissioner of Correction, 133 Conn.App. 904, 34 A.3d 480, cert. denied, 304 Conn. 910, 39 A.3d 1121 (2012).
The petitioner filed a second habeas corpus petition on or about April 1, 2010 challenging the same convictions. The petition was amended on June 5, 2013, and asserted claims in four counts. The second habeas court, Kwak, J., dismissed three of the counts for the grounds articulated in the signed transcript of its bench ruling. The second habeas court addressed the merits of the one remaining count and, for the reasons articulated in a memorandum of decision, denied that claim (ineffective assistance of appellate counsel on direct appeal). The petitioner appealed from the denial of the petition for certification to appeal and the Appellate Court in part affirmed and in part reversed the judgment of the second habeas court. Brewer v. Commissioner of Correction, 162 Conn.App. 8, 130 A.3d 882 (2015). The Appellate Court dismissed the appeal as to the claims of ineffective assistance of trial counsel (count one) and prosecutorial impropriety (count three); however, the Appellate Court concluded that the dismissal of the claim of ineffective assistance of prior habeas counsel (count four) was improper and, therefore, remanded back to the habeas court for further proceedings in accordance with law. The petitioner did not challenge the denied claim of ineffective assistance by appellate counsel.
Subsequent to the remand, the petitioner received new assigned counsel, who unsuccessfully sought permission to file a second amended petition. While the appeal from the second habeas court's judgment was pending, the petitioner filed a third habeas corpus petition alleging that second habeas counsel, Attorney Vicki Hutchinson (i.e., the predecessor to the petitioner's present habeas counsel), rendered ineffective assistance of habeas counsel. The third habeas corpus petition and the present matter were ordered consolidated by the court, Sferrazza, J., upon motion of the petitioner's present habeas counsel. The motion for permission to file a second amended petition, which was objected to by the respondent, sought to add to the remanded matter the claim that attorney Hutchinson was ineffective. The court, Oliver, J., denied said motion, sustained the respondent's objection thereto, further indicating the following: " As the issues to be considered on remand were specifically delineated and limited by the Appellate Court. The petitioner can augment, as necessary, any claims asserting ineffective assistance of habeas counsel."
The petitioner's claims in the third habeas petition have been rendered " moot" by the Appellate Court affirming Judge Kwak's dismissals and remanding the claim presently before this court.
The matter was thereafter assigned to this court for a trial on the remanded claim of ineffective assistance of habeas counsel.
I.
On December 29, 2001, Damian Ellis was shot and killed outside the Athenian Diner in Waterbury. The petitioner, John Brewer, was charged with the murder. The information (CR02-307016) charged Murder in violation of General Statutes Section 53a-54a(a), Criminal Possession of a Firearm in violation of General Statutes Section 53a-217 and Intimidating a Witness in violation of General Statutes Section 53a-151a(a)(2). The jury was instructed on the lesser included offense of Manslaughter with a Firearm in violation of General Statutes Section 53a-55a(a). In 2004, the petitioner's jury found the petitioner guilty of murder and criminal possession of a firearm, but found him not guilty of intimidating a witness. The trial court rendered judgment in accordance with the verdicts and the petitioner was sentenced to a total effective sentence of sixty years incarceration.
The conviction was affirmed on direct appeal. State v. Brewer, 283 Conn. 352, 927 A.2d 825 (2007). The Supreme Court's decision summarizes the facts as reasonably found by the jury.
The sole issue raised in the direct appeal concerned the propriety of an acquittal first instruction before reaching the lessor included as explicated in State v. Sawyer, 227 Conn. 566, 576, 630 A.2d 1064 (1993).
" In the early morning hours of December 29, 2001, the victim, Damian Ellis, was with his friends, Damian Wade and Arthur Hall, at the Athenian Diner in Waterbury (diner). The [petitioner] also was present at the diner with a group of friends that included Jason Greene, his brother, Michael Greene, and Gregory Hunter. The victim's group had a verbal altercation with the [petitioner] and Hunter that prompted the restaurant manager to eject both groups of men from the diner. The two groups engaged in some additional verbal sparring and then separated once outside the diner.
" The [petitioner's] group entered a black Lexus sport utility vehicle, driven by Hunter, and was exiting the diner parking lot when Hunter stopped the car in front of the victim, who was standing outside the entrance to the diner. Either Hunter or the victim reinitiated the dispute, and Hunter subsequently exited the vehicle and approached the victim's group with a knife in his hand. The victim backed away from Hunter, down a ramp on the side of the diner, as the [petitioner] exited the vehicle and moved to the corner of the building near the ramp. The [petitioner] walked up to the victim and shot him twice with a nine millimeter Cobray M-11 semiautomatic pistol. One shot entered the victim's brain and likely killed him within five seconds.
" Following the shooting, the [petitioner] got back into the Lexus, which was now driven by Jason Greene, and the two men left the scene. The [petitioner] threw the gun out of the car's window and shortly thereafter exited the vehicle. Jason Greene later directed the police to the area in which the [petitioner] had discarded the murder weapon." Id., 353-54.
Attorney John Cizik represented the petitioner in his criminal trial. Attorney Walter Bansley III represented the petitioner, as assigned counsel, in the first habeas proceeding. Attorney Vicki Hutchinson, also assigned counsel, represented the petitioner in the second habeas proceeding. The petitioner presently has substitute assigned counsel, who was assigned after the Appellate Court remanded the matter.
II.
The parties appeared before this court on March 16 and April 6, 2017 for a trial on the merits on the sole ground preserved under the limited remand. The court received testimony from the following witnesses: Dr. Mark Taff, the petitioner's forensic pathology and crime scene reconstruction expert; Attorney John Cizik, the petitioner's criminal trial attorney; Attorney Walter Bansley III, prior habeas counsel; and the petitioner. Additional evidence included transcripts of prior proceedings, copies of statements of witnesses to the authorities, copies of correspondence, certain pleadings, and documentation.
The parties filed simultaneous post-trial briefs.
III
Count Four of the June 4, 2013 amended petition alleges the claim of ineffective assistance of prior habeas counsel for failing to raise claims of ineffective assistance of trial counsel, as alleged in Count One. In his post-trial brief, the petitioner delineates the issues before the court under the remand order, as follows:
" 1. Whether Petitioner was denied effective assistance of counsel by trial counsel, John Cizik, in that he failed to properly and adequately research, investigate, and consult with an expert on the anatomical positioning of the victim vis a vis the shooter and that fact's relationship to the ability to reconstruct the accident, prejudicing Petitioner by conducting an uninformed and fatally incompetent cross examination of State's witnesses, depriving the jury of essential facts. " 2. Whether Petitioner was denied effective assistance of counsel by trial counsel, John Cizik, in that he failed to object to the admission of the prior inconsistent statements of Jason Greene and Michael Greene, prejudicing Petitioner by allowing damaging evidence to be admitted to the jury uncontested. " 3. Whether Petitioner was denied effective assistance of prior habeas counsel, Walter Bansley, III, in that he failed to allege trial counsel's failure [to perform as alleged in 1. above]. " 4. Whether Petitioner was denied effective assistance of prior habeas counsel, Walter Bansley, III, in that he failed to allege trial counsel's failure to object [as alleged in 2. above]."
IV.
At the habeas trial, Dr. Mark Taff testified that he is a self-employed physician, licensed to practice medicine in New York since 1981; his area of specialization is forensic medicine and pathology. He testified, " [b]asically I do the work of a medical examiner in investigating deaths." Currently, Dr. Taff's work is as a consultant to prosecutors' offices, defense attorneys, private families, and insurance companies.
Dr. Taff holds a Bachelor of Science degree from the University of Maryland and a medical degree from the University of Bologna in Bologna, Italy; he completed his residency in pathology, which is the study of diseases, at the Mount Sinai School of Medicine in Manhattan. He did other post-graduate work at Long Island Jewish Medical Center in Queens, and at the Wayne County Medical Examiner's Office in Detroit. He was Deputy Medical Examiner at the Nassau County M.E.'s office on Long Island, and Chief Medical Examiner in Rockland County for approximately four years.
Dr. Taff has provided services to five or six counties in the New York mid-Hudson Valley, where they had primarily, at that time, coroner systems. The work consisted of overseeing death investigations, working closely with the state police and different district attorney's offices. He has provided services to public defender offices in New Jersey, Massachusetts, and Connecticut. The doctor is board certified in anatomical and forensic pathology. He has served as a consultant to the New York Transit Authority, the New York Law Department, the New York City Housing Authority, and has done work for the Assigned Counsel Plan for indigents in the City of New York. He has an adjunct teaching position at the Mount Sinai School of Medicine. Dr. Taff was president of the New York City Medical Examiners, and the New York Society of Forensic Science. He testified that he has performed two to three thousand autopsies himself, supervised hundreds of others, and reviewed thousands of cases over the years; dozens of the autopsies involved deaths resulting from gunshot wounds. He states he has testified as an expert in forensic pathology over five hundred times in the courts in New York, Michigan, Pennsylvania, Massachusetts, and a few times in Connecticut. With reference to Connecticut, the doctor indicated has testified mostly for the public defender's office; as to post-conviction matters in this state, he has testified less than " a half of dozen times."
According to the doctor, his work in forensic pathology incorporates within it crime scene reconstruction based on the forensic pathology. He testified, " it's a multiple disciplinary approach . . . I would usually focus on the type, pattern, severity of the bodily injuries sustained by an individual who was . . . fatally wounded." He stated, " . . . we work backwards after the person has been shot . . . as to the position, the distance and location of the victim and the shooter based on the directionality of the bullet-wound tracts and the exit and entrance wounds in the corpse." Medical examiners based on their training look at the clothing of the victim, undertake to determine the type of firearm used (" we are trained to recognize the types of wounds created by types of weapons"), the directionality of the bullet as it passes through the corpse to see what organs or blood vessels are damaged, the amount of bleeding, and any metal fragments usable as ballistic evidence. Additionally, " [t]he sequence in order of wounding may come up as to which bullet entered the body first." Also, questions may arise as to how long it would take for the victim to die following the gunshot wound. As Dr. Taff testified, " [t]here are a lot of variables; it all depends on the issues of a particular case, different types of questions come up."
After being qualified, without objection, as an expert in forensic pathology and crime scene reconstruction, Dr. Taff testified that an autopsy was the third component of a medical examiner's six-stage " death investigation." The autopsy is a post-mortem surgical procedure by a licensed physician trained in pathology and it consists of two parts: an external exam and an internal exam. The sixth and final phase of the investigation is the report; that is, the medical examiner's opinion as to cause of death and manner of death. The witness was aware that the autopsy in this case was performed by Dr. Arkady Katsnelson, some sixteen years ago; cause of death, gunshot wounds to the head and chest; manner, homicide. Dr. Taff described the two types of gunshot wounds: perforating, the bullet traveling through the body; and, penetrating, the bullet lacking sufficient kinetic velocity to pass through the body and therefore does not leave an exit wound.
According to the petitioner's expert, medical examiners usually inspect the clothing worn by the victim at the time of the shooting. That is because when the gun discharges there is gunpowder as well as soot and smoke deposited on the victim's clothing and his or her skin at the entrance wound. The witness stated that where a person is from " two feet or three feet, four feet . . . rarely do you find gunshot residue in the wounds or on the skin around the entrance wounds or on the clothing overlying the gunshot wound of entrance." The term " stippling" refers to " burned gunshot--gunpowder that deposits either on the clothing or on the skin--surrounding the entrance wound." It can be seen by the naked eye and appears as " little red dots around the skin." Observance of stippling " usually means that the muzzle of the gun has been . . . from a few inches up to less than two feet away from the human target."
Regarding the trajectory of the bullet, the entry wound would not be particularly informative--it would simply indicate where the projectile entered the body. The rest of the track has to be ascertained through the internal examination; that is, the surgical examination where the medical examiner tracks the bullet as it passes through the internal organs leaving behind a trail of blood and tissue lacerations. Bullet wound tracks are described as front to back, back to front, right to left, left to right, and up/down, down/up. Significantly, when Dr. Taff was asked, " [d]oes that information give you a conclusive idea of where the discharged firearm originated from, " he responded: " [i]t may . . . it gives me an idea as where the shooter would be positioned with respect to the victim of the gunshot. There is going to be variations . . . but there is going to be variations because human beings are mobile, shootings are not always static, they're not freeze-framed where people just stop. Usually there is going to be--there could be movement of the shooter, movement of the gun and movement of the victim shortly before a gun discharges. So for me to say exactly where the shooter is positioned with respect to the victim, at best all I can do is give you an estimate--a general estimate as to where the two actors were positioned and their . . . [spatial] separation." The expert was next asked, " . . . could that same information eliminate a limited point of origin?" The witness answered " Right, " leading up to the question, " [i]f you find an entry in between the eyes of the [victim] . . . could that muzzle discharge come from behind the victim's head"; the answer was " [n]o, [u]nless . . . [he] can spin his head around . . . absolutely--it would be biologically impossible."
With respect to the instant case, Dr. Taff testified he was retained by the petitioner's counsel towards the end of December 2016. He received documentation comprising almost twelve hundred pages which included the autopsy report, investigative reports from the police, and testimony of the medical examiner from the criminal trial. As part of his review, the doctor looked at the scene and police autopsy photos, toxicology reports, handwritten notes from the police, and diagrams, in all amounting " to about twelve hundred pages."
Dr. Taff was somewhat critical of the Katsnelson autopsy report noting that no mention was made of the victim's clothing. He opined that if such clothing was unavailable at the time of the autopsy, it should have been retrieved for the purpose of inspecting it for any gunshot residue, which would assist in determining if the victim was shot at close range. The report, as stated, indicated the cause of death as gunshot wounds of head and chest. According to Dr. Katsnelson, the entrance head wound was to the right side of the head, and the entrance chest wound was centrally located in the middle of the victim's chest, around the heart area. As to trajectory, Dr. Taff observed the autopsy report indicates the bullet to the head traveled from right to left and upward; he further observed that Dr. Katsnelson testified: " I believe it is from front, from right to left, front to back, and I believe it is slightly downwards."
Dr. Taff observed that the autopsy report refers to stippling--" measuring up to three centimeters extending from the margins" of the wound; the witness questioned why there was no opinion stating " whether . . . this was consistent with a contact, near contact or close range shot." Dr. Katsnelson testified the victim " was shot from a distance approximately up to six feet . . . approximately, not exactly." Dr. Taff thinks six feet is " a little bit" two far out of range given the amount of stippling, but acknowledges that he does not have any details about the gun.
Concerning directionality, Dr. Taff testified that based on his review, since the bullet path was from right to left, front to back, the muzzle of the gun " most likely" was somewhere in front of the victim, slightly to the victim's right. He testified: " The bullet passed through the head from a right to left direction. The bullet in the chest went from right to left. So, the person who is shooting the victim, assuming it's a freeze-frame position, is going to be most likely somewhere in front of the victim, somewhere to the victim's right. Dr. Taff expressed the view that the position of the shooter in front of the victim, slightly to the right, is essentially beyond dispute absent a person, or persons, of extraordinary dexterity. He testified: " There is going to be a limit to the range of motion of the human body as far as swiveling of the hips . . . You can only turn a certain number of degrees to the right or to the left, otherwise you have to turn your entire body around." When asked " [w]hat if the victim turned before the shot was fired, " the answer was " [all] I know is . . . the most important thing is the whole wound track starts where the entrance wound is and then we have to track it out." Dr. Taff offered the opinion that given the front entrance wound and the directionality of the bullet track, the injuries sustained could not have occurred without the victim turning around.
On cross examination, it was brought out that Dr. Taff's report indicates that the only transcripts he saw were those of the eyewitness Gregory Hunter. The witness said he did review Dr. Katsnelson's report. Dr. Taff received from the petitioner's counsel some twenty-five pages of media articles, or as he put it--" news clips." He testified he did not put any credence in those articles or photographs " from the forensic point of view . . . that just provided the setting, the situation, the background information about the case." Also received were autopsy photographs; he did see color photos, Dr. Taff thinks from a drive disc, which were helpful, but the black and white are not good for evaluating post-mortem findings. The doctor acknowledged he did not receive any forensic reports or ballistic reports in this case, and that he is unaware of any information provided with regard to the firearm that was recovered, or any testing conducted. Dr. Taff's report sets forth a time frame that the shooting occurred around 2:30 a.m. to 5:00 a.m., but he knew the victim was pronounced dead at 3:00 a.m. He also acknowledged that as a medical examiner he very often obtained bodies, particularly from hospitals, that were unclothed, the clothing having been taken by the family at the hospital or the police. The doctor stated, however, that in a case carried as a homicide, usually the police would intervene immediately and procure the clothing. With reference to a head wound that shows stippling, clothing would have relevance only if the victim was wearing a hat. Concerning the doctor's estimation of the distance of the shooter from the victim, he conceded not all medical examiners will agree, " there will be differences."
The expert witness was questioned regarding the extent to which he took into account eyewitness testimony as to what happened before and after the shooting, or what activity occurred between the shots. He testified he would take such information into consideration, but as a medical examiner he would depend more heavily on body findings, having learned over the years that eyewitness accounts are not always accurate. Here, the body findings included the two wounds; they were both considered fatal--together they would have caused death, separately they would have caused death. One could not determine which shot was fired first from the body findings; that would require a reliable eyewitness or a videotape. Similarly, the amount of blood loss cannot be determined; however, based on the information that here the gunshot to the chest perforated the left ventricle of the heart and went into the left lung, the victim would have bled immediately and profusely. The person would probably be dead in about two minutes. If the chest wound came first, the victim would be able to move a short distance before collapsing--maybe ten or twenty feet, then they would collapse. Dr. Taff said gunshot wounds to the chest are certainly not unusual; death would take a little bit longer with a gunshot wound to the chest than one to the head.
Dr. Taff cannot tell which wound was inflicted first, but if it was the head wound, his reading of the Katsnelson analysis " sounded like" the bullet passed through the brain stem, which is where the medulla and the cerebellum come together. That is important for the beating of the heart and respirations. Usually if that is transected by a bullet, the person is going to die within seconds--a near instantaneous death. A person who sustained that type of injury may stumble or collapse within a few seconds. The doctor went on to state: " once these two wounds were sustained, assuming they were sustained within seconds or minutes of each other, [the victim] would have been dead within a few minutes." He testified he cannot tell the time span between the infliction of each wound.
On redirect, Dr. Taff testified ballistics examinations and time of death would not impact his opinion premised on the directionality of the bullet.
Attorney John Cizik, the petitioner's trial attorney, graduated from Pace University School of Law in 1996, and served as a Temporary Assistant Clerk in the Superior Court. He was admitted to the Bar in the fall 1996 and was hired by the Division of Public Defender Services, State of Connecticut, in February 1997, where he has served as a public defender since that time. He served in the Bantam court location for six years, and then went to the Waterbury Part A (major felonies) court. He has handled murder cases, taken jury trials to verdict, and has dealt with issues of co-defendants and co-accused testifying at trial. Attorney Cizik was familiar with State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986).
Having been designated to represent the petitioner, Attorney Cizik communicated with him through visits to the jail, phone calls, and letters. The petitioner was very actively involved, was interested in what was going on, and would direct counsel on what he wanted; he would have ideas, the lawyer would listen to his ideas, and they would discuss the case. In terms of overall strategy, from early on there were alibi witnesses that were talked to, and Attorney Cizik felt the forensic evidence (bullet wounds, the trajectory, positioning of the shooter versus the victim) in the case did not match with what the eyewitnesses were saying.
Attorney Cizik stated Jason Greene, a co-defendant, testified at the criminal trial. He had given a statement to the Waterbury Police on or about December 29, 2001, and then a second statement, both shortly after the incident. The attorney recalls that Greene's second statement recanted at least part of his first statement and, in his trial testimony, he further recanted part of that second statement. In his trial testimony, Greene stated that on one of the pages of his prior statement it was not his signature. He said he was held in a cell for thirteen hours before giving the statement. As to being sober that night, Greene said he was pretty " messed up, " having smoked marijuana and might have smoked PCP. Both of Jason Greene's statements were offered or admitted under Whelan as substantive evidence. Attorney Cizik testified he did not object because: " you basically got him admitting in one statement that he is a liar, and that could only be good thing for the jury to see."
Michael Greene, Jason Greene's brother, also a co-defendant, gave a statement to the Waterbury Police describing circumstances of the shooting. He claimed he initially told the police he did not see anyone with a gun and, only after the police threatened to charge him, did he tell them " what they wanted to hear." He said he was forced to sign his statement. Michael Green in his trial testimony said he asked for an attorney, but the police would not let him use the phone. The State moved to have Michael Green's statement admitted as substantive evidence and Attorney Cizik did not object; he was aware Whelan was not a " blanket rule" of admissibility.
The attorney, early on, and throughout the case, consulted and conferred with an expert: Dr. Peter DeForest. He first contacted Dr. DeForest in the fall of 2002 when he first became involved in the case, having taken it over from prior counsel. Dr. DeForest is a criminalist and Attorney Cizik was considering the possibility of a crime scene reconstruction, which was one of the things performed by that expert. Attorney Cizik had Dr. DeForest look at all the evidence, read all the reports, look at the photos and assist him in cross examination of witnesses. Dr. DeForest was unable to do a reconstruction because there was insufficient physical evidence in the case and there were too many variables in what evidence did exist. The attorney did not consult a forensic pathologist. He did review the postmortem report with Dr. DeForest and found the synopsis of the report accurate, thorough, and helpful in cross examination. The lawyer met with the expert " dozens of times during the case" and they went and looked at the scene; he kept notes of discussions with the expert. Attorney Cizik did not ask Dr. DeForest to prepare a report; the lawyer testified: " [i]t became fairly clear that I was not going to need him to testify in the case based on what he had told me about the reconstruction, so I didn't really need a report." When asked if he discussed the information he received from Dr. DeForest with the petitioner, the attorney replied: " I can't imagine I wouldn't have told [the petitioner] . . . everything that I was talking to Dr. DeForest about."
Concerning the Greene statements, Attorney Cizik reiterated on cross examination that he was familiar with Whelan, that its use was not uncommon in criminal trials, and he did not feel an objection, under the circumstances, would benefit his client. He was cross examined regarding his practice in deciding whether to object: " . . . is it your practice that you weigh the good versus the bad and make some type of strategic choice, or are you the type of attorney that you feel that you have to object whenever there is a possibility?" The response was: " I definitely do not object anytime there is a possibility. It's very much the strategy of trial." The lawyer commented further: " I didn't want the jury to believe anything that Jason Greene said, and in one of his statements he basically admitted to being a liar." The lawyer said it was basically the same with reference to Michael Greene. He also said all of the co-defendants were represented, so he was unable to speak to any of them.
Dr. DeForest was recommended to Mr. Cizik by the Public Defender's chief investigator. He was known to members of office and the lawyer was familiar with his qualifications. He had co-authored a book with Dr. Henry Lee on criminology and was often used by individuals in the court system. Although the attorney initially hoped a favorable crime scene reconstruction could be accomplished, he was dissuaded. Dr. DeForest felt there was not enough physical evidence. Attorney Cizic testified: " Where were shell casings that were found in the parking lot, but . . . the crime scene was not immediately secured, so there was no way to be certain if those shells were where they would have been when ejected from the gun . . . no photographs with the victim depicted in them . . . no way to know where the victim fell or how the victim fell." Additionally, it was Dr. DeForest's view that there were just too many variables in positioning. According to this expert, with a gunshot to the head, there are so many different ways that the head can be positioned that it would be almost impossible to reconstruct given the evidence available in this case.
As to why the defense did not retain a forensic pathologist, Attorney Cizik stated much of Dr. DeForest's advice covered that area, this was not a case where cause of death was questioned, and Dr. DeForest counseled him on some of the areas to get into with the medical examiner, as well as police officers who processed the evidence. The attorney recalls Dr. DeForest having questions on the medical examiner's report, but not being overly critical of it. He examined evidence at the police station, which included the victim's clothing and the firearm. With respect to the firearm, Attorney Cizik discussed with the expert the possibility of doing ejection pattern testing, having the gun fired to see where the shells would eject, but that was something the expert felt would not have been of much use because of so many variables in the case. It could not be said with any certainty that the shells, as they were found by the Waterbury police, were in the same position as when they were ejected from the gun.
As to stippling, gunshot residue, that was discussed with Dr. DeForest in the context of the medical examiner's report and what would be seen (soot or gunpowder) from shots that came from various distances as opposed to a contact wound. Attorney Cizik said there was disagreement between witnesses, the head of the Waterbury Crime Lab, and the medical examiner. Dr. DeForest assisted and rendered direction to the attorney on how to handle the examination of those witnesses. The attorney was satisfied with Dr. DeForest's analysis of the autopsy report. Attorney Cizik does not always ask experts for reports; if the expert testifies and there is a report, there are disclosure requirements. He did not feel there was a need to obtain a report from Dr. DeForest since the doctor was not going to testify, but was assisting as a consultant.
On redirect, the attorney was asked if the forensic evidence pointed to someone else's involvement in the shooting; the answer was: " No. No one specific." When asked if the evidence allowed for third-party culpability, counsel added it did not point to a specific third party, which would have been required.
Attorney Cizik testified that, had the petitioner asked him to pursue certain avenues, he would " definitely talk to the petitioner about it . . . listen to his ideas, and if they were good ideas, explore them."
Attorney Walter Bansley, III, a member of the Connecticut Bar since 1992, was the petitioner's prior habeas counsel. Attorney Bansley practiced since his admission to the Bar, forming his own law firm in 1997. The firm consists of three partners and several associates; it is a general practice with concentration in the criminal law.
Attorney Bansley has degrees from the University of San Diego and the Western State University Law School (J.D.). He previously served as an infantry officer in the United States Marine Corps for twenty years, attending law school nights. Upon graduation from law school, he transferred to the Judge Advocate Corps, spending the last eleven years of his service as a military lawyer going back and forth " . . . between prosecution and defense."
Prior to being appointed to represent the petitioner, Attorney Bansley had been doing habeas work for roughly five years; he tried to conclusion about fifteen habeas cases up to that point in time. In the initial stages of litigating habeas matters, the lawyer generally followed a somewhat standard procedure. First, he would hire a private investigator. He then would interview the client as soon as possible and undertake to get a factual summary of the case, which would include the complaints concerning trial counsel's representation. He would obtain all relevant records and documents, trial transcripts, investigative reports, court records, Department of Corrections data, pleadings, and everything else needed for thorough review and informed decision-making. Early on, the lawyer said, he begins thinking about the need for any potential experts.
In the instant case, Attorney Bansley, having been made aware that the petitioner was claiming an alibi defense, immediately retained a private investigator to interview witnesses relative to that defense. In the attorney's work over the years, he has had occasion to retain a forensic pathologist in criminal and habeas cases. In general, these were cases where there was a question regarding how the death occurred. He testified that in the handful of the cases where he used a forensic pathologist, the information provided was not that useful. However, he added it depends on the facts of the particular case. Attorney Bansley recalled reviewing the trial transcripts in this case and becoming aware that there were inconsistencies; that is, there was testimony by witnesses that was not corroborated by the physical evidence. He testified that because of such inconsistencies he did confer with a forensic pathologist, a doctor who he had used in other cases, and who was a former medical examiner in Connecticut. The attorney faxed down to the pathologist some of the crime scene reports and, thereafter, they conferred telephonically. The expert advised that he could not be of any help because there were problems with the crime scene, " things being moved around." Accordingly, a claim of ineffectiveness of trial counsel, premised on a failure to investigate and confer with an expert on the positioning of persons at the crime scene, was not pursued further. More importantly, Attorney Bansley stated he had reservations as to whether such a claim " fit the defense" which, as stated, was an alibi--I wasn't there.
Attorney Bansley testified that the physician/pathologist with whom he consulted retired out of state and passed away about three years ago.
Attorney Bansley testified he met with the petitioner at the prison at least three or four times before his first habeas trial [March 10, 2010]. There was discussion of what the petitioner's thoughts were: specifically, he wanted the attorney to interview a woman he claimed to be with at the time of the crime--an alibi witness. According to the lawyer, the petitioner emphasized his belief that his alibi defense had not been " perfected" since the alibi witnesses had not been interviewed soon enough after the murder.
Attorney Bansley obtained trial attorney Cizik's file and reviewed it in its entirety. He discussed with Attorney Cizik the petitioner's assertion that a principal prosecution witness (Gregory Hunter) " had a deal before he testified, " which was denied at trial. The petitioner maintained that letters authored by Hunter, indicative of " a deal, " and which trial counsel cross examined on, should have been admitted in evidence. Based thereon, the petitioner wanted Attorney Bansley to add to the amended petition a claim of prosecutorial impropriety by knowingly using perjured testimony of Gregory Hunter. The attorney did not undertake to amend the petition to allege use of perjured testimony in that he did not think there was any objective evidence that would support the claim; as he saw it, there was nothing more than speculation.
Mr. Bansley could not recall whether he obtained the file of Appellate Counsel Neal Cone. He does not believe he spoke with Mr. Cone. However, Attorney Bansley did review the Appellate briefs and, as stated, read the trial transcripts.
After reading the trial transcripts and the investigative reports, Attorney Bansley determined that certain claims the petitioner had articulated in their discussions and/or alleged in the pro se petition were of questionable merit. A principal claim was that, in view of the petitioner's alibi defense, trial counsel should not have requested (and received) the lesser included manslaughter instruction. Regarding the claims raised (or not raised) in the amended petition, Attorney Bansley testified he is confident he made the correct decisions.
As to the substantive admission, without objection, of inconsistent statements, Attorney Bansley is familiar with Whalen and acknowledges that it is not a blanket rule. The attorney also acknowledged that the rule certainly did not preclude trial counsel from objecting and that failure to do so was an issue that could be raised in a habeas petition. However, he did not raise an issue that trial counsel was ineffective for not objecting to the introduction of the prior inconsistent statements of Jason and Michael Greene given to the authorities on December 29, 2001 and, when asked why, the lawyer testified: " . . . considering [that the petitioner's] defense was an alibi . . . I thought based on my experience in review of the evidence, that the more inconsistent statements that were presented in court, were more effective to the defense in showing that these individuals were untruthful and shouldn't be believed. I thought that was more important than objecting to it. I don't personally believe in objecting just because you can and just because you can win an objection. You've got to look beyond that and see whether the evidence actually hurts, and in this case I thought it was helpful because it impeached the credibility of the witnesses . . ."
Attorney Bansely further explained that he clearly remembers that he thought it was better for the defense that the statements be presented to the jury. He stated: " Personally, I probably would have objected, because I know the trial judge was going to let it in." The attorney went on to state that based on his experience, he did not " have trouble" with the fact that Attorney Cizik didn't object.
Petitioner's counsel before this court went over, at great length, with Attorney Bansley, all of the statements of Jason and Michael Greene, their initial statements, the recantations and disavowals of those statements, and the circumstances surrounding the giving of the initial statements as set forth in their later statements and in their own testimony. When again asked why he did not raise as a habeas claim Attorney Cizik's not objecting to a Whalen admission, the lawyer stated: " I think I explained that earlier, because when I looked at the totality of the evidence and reviewed the transcripts, I thought it was more favorable that this evidence went in than not." When questioned as to why it would be more favorable to have evidence that was inconsistent with trial testimony, Attorney Bansley went on to state: " . . . both of these individuals were present at the scene. Easily, you could have pointed fingers at them, so they had a reason to lie. On top of that, they're talking about the police making threats. Frankly, I thought the combination of all that brought a fair amount of reasonable doubt."
With specific reference to Michael Greene, Mr, Bansley's assessment was essentially the same: " . . . I thought the admission of the inconsistent statements was more helpful to [the petitioner] than not. That was my judgment at the time."
Regarding Gregory Hunter, Attorney Bansley acknowledged a discrepancy between his testimony and that of Dr. Katsnelson, the medical examiner. Hunter testified that the petitioner came from behind the victim and shot him. The medical examiner describes the gunshot wound as entering the victim from the front. As to trial counsel's not conferring with, and/or retaining, a forensic pathologist, Attorney Bansley reiterated that while he initially thought a claim might have some merit, he felt otherwise after discussions with the pathologist whom he had used in other cases, with the private investigator he had hired, and after reviewing the transcripts. The attorney repeated, emphatically, his view that conferring with a forensic pathologist was not all that important because the petitioner was claiming an alibi. According, the claim was not pursued in the prior habeas.
Attorney Bansley testified that the crime scene reconstruction expert, John McNicholas, was retired from the New York City Police Department detective with twenty-eight years experience in many homicide investigations--" that's why we used him."
Normally, Attorney Bansley discusses with clients what claims he has chosen to pursue--" Ultimately, I'll make the decision, but I certainly listen closely to the client." He has no doubt that he had those discussions with the petitioner. He generally gets the amended petition to the client well in advance either by visiting the prison or by mail. He does not recall there being any strong objection on the part of the petitioner to the claims put forward in the prior petition. It is the lawyer's responsibility to select and assert what he or she feels are the strongest claims. When he first began doing habeas work, he states, he " would throw in everything but the kitchen sink." He rapidly came to the realization that he was wasting time and losing credibility with the court, so in past years, he would try to whittle it down to the stronger, more viable claims.
The attorney believed that the petitioner had expressed, as a possible claim, receipt by Gregory Hunter of sentencing consideration in exchange for his testimony. The lawyer believed he looked into that: " I don't know how we could get that evidence other than what was on the record. And it was pretty clear on the record, he wasn't offered promises. I've been doing this long enough to know that a lot of times there's tacit agreements . . . very few people, particularly co-defendants, testify unless they think they're getting something." Upon investigation, the attorney did not think the claim was worth pursuing.
Somewhat related to a sentencing consideration claim, Attorney Bansley was asked, on redirect, whether the petitioner ever indicated he wanted a claim in the petition alleging the State's knowing use of perjured testimony by Gregory Hunter. The lawyer said he recalled that, but did not add the claim to the amended petition. He stated that there was no objective evidence that would establish the State knowingly presented perjured testimony.
Attorney Bansley does not believe that the petitioner ever asked him to pursue a third-party culpability defense. While the attorney thought the evidence might support such an instruction, he observed that most of the individuals there, when interviewed immediately after the shooting, pointed to the petitioner as the potential shooter.
The attorney stated that to the best of his recollection he " pursued" all avenues that the petitioner had brought to his attention and wished to have examined further.
The petitioner testified that he was represented by Attorney Cizik at the criminal trial and through sentencing. A number of materials were received by Attorney Cizik from the Office of the State's Attorney through the discovery process. The attorney reviewed those materials with the petitioner. The materials included the statements of Gregory Hunter, Jason Greene, and Michael Greene. These three prosecution witnesses and the petitioner all grew up together and were " raised together as a family." According to the petitioner, Gregory Hunter bore animosity toward the victim, Damian Ellis, for implicating his (Hunter's) cousin, Tyson, in an earlier murder.
The petitioner stated: " me, Jason Greene, and Michael Greene are . . . blood cousins. Petitioner's father and Gregory Hunter's father were best friends . . . we were raised as cousins . . . we grew up as friends, but more so as family." Gregory Hunter was described as a " play cousin."
The petitioner stated he recalls several letters that were written by Gregory Hunter to the State's Attorney's Office making reference to a " deal in exchange for his testimony." He was made aware of the letters by Attorney Cizik, who did not receive them until 2003 before the criminal trial. Also in 2003, according to the petitioner, Attorney Cizic received Hunter's statement to the police; Mr. Cizik and the petitioner discussed the Hunter statement and its inculpatory impact at the trial. The petitioner maintains that the Hunter statement is entirely fallacious. He discussed that with the attorney, stating: first, he was not there at the time of the shooting, and second, the content of the statement, at substantial variance with the medical examiner's report, demonstrates, in petitioner's view, its patent falsity. He presented this view to Attorney Cizik who said he would look into it. The petitioner stated that as far as he knows, the attorney never reached a " scientific" conclusion as to Hunter's version of the incident.
In what the petitioner described as a partial letter he wrote to the attorney, and which begins " for the investigator to do, " he set forth directions such as: talk to certain detectives, contact Greyhound Bus Company to get proof of sale and use of bus ticket, E.T.A. in North Carolina, etc. (Petitioner's Exhibit #26.) In another letter to Attorney Cizik, dated August 20, 2003, the petitioner requested a whole litany of items including warrants, probable cause transcripts, supplementary reports, weather reports, blood tests of stains on clothing, statement of a witness concerning alibi, and " whatever else you have that I don't got." (Petitioner's Exhibit #27.) In another letter to Attorney Cizik (Petitioner's Exhibit #30), dated prior to Exhibit #27 (" Feb. 03"), he thanked the attorney for the items forwarded and then claims his lack of culpability for the death of Ellis based on a claimed discrepancy between Dr. Katsnelson's report and the eye witnesses' statements. Additionally, the petitioner entered into evidence a page of a document entitled " Habeas Trial Preparation" (Petitioner's Exhibit #29) which he testified he furnished his habeas attorney, Mr. Bansley; among the claims he (the petitioner) was pursuing on habeas was: " [f]ailure to present expert witness on forensics and crime scene reconstruction."
The petitioner asserted that although he made the above inquiries and demands, Attorney Cizik never informed him of the details or result of Dr. DeForest's investigation; did not furnish any reports or findings made by Dr. DeForest; did not reveal, or discuss with the petitioner, any conclusions reached by Dr. DeForest; did not reveal, or discuss, the particulars of any consultation with an expert that would assist in the cross examination of Gregory Hunter; and, at trial, did not call any expert to testify.
At the criminal trial, only two witnesses testified for the defense at the conclusion of the State's evidence: the petitioner and David Whitney. According to the petitioner, the purpose of David Whitney's trial testimony was to bolster his defense in this case: alibi I could not have shot the victim because I was not even at the diner. In such regard, petitioner testified before the court: " David Whitney was somebody that I ran into at Chuck and Gina's restaurant on the corner of Elizabeth Street and North Main Street in Waterbury . . . me and a female friend of mine who is actually a relative of Gregory Hunter, Tanya Parker . . . ended up at that restaurant, and then when we were at Chuck and Gina's there was a phone call came in . . . when the owner, Chuck, got off the phone, he said somebody just got shot at the diner . . . my response . . . was I hope it wasn't my cousin." The petitioner repeated his testimony that the reason for David Whitney's testimony was to bolster the defense of alibi.
The petitioner testified that Attorney Bansley was his appointed habeas counsel and he discussed with him the trial attorney's not consulting with an expert (other than Dr. DeForest). When he expressed his concerns to Mr. Bansley, he said he would look into it. In the petitioner's opinion, the habeas attorney did not do so. He testified the habeas attorney, in similarity to the claims against the trial attorney, did not share any conversations he had with any experts, did not share any investigative efforts he conducted with regard to the petitioner's concerns, and did not discuss with him the advisability of a crime scene reconstruction.
The petitioner further testified that he communicated with Attorney Bansley " a few times" during the pendency of the habeas action to discuss other issues in addition to a crime scene reconstruction. The other issues concerned alibi and the prosecution's knowing use of perjured testimony. He testified that he made Attorney Bansley aware of what he thought were the most important claims for habeas review: knowing use of perjured testimony, and failure to have a forensic expert.
V.
Challenges to the effectiveness of counsel are governed by certain well settled principles. " A criminal defendant constitutionally is entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). " This right arises under the sixth and fourteenth amendments to the United States constitution and article first, Section 8, of the Connecticut constitution." Copas v. Commissioner of Correction, 234 Conn. 139, 662 A.2d 718 (1995). As stated in Strickland : " [i]t 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 prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment." (Internal quotation marks omitted.) Sastrom v. Mullaney, 286 Conn. 655, 662, 945 A.2d 442 (2008); State v. Brown, 279 Conn. 493, 525, 903 A.2d 169 (2006). Put another way, the petitioner must demonstrate that his attorney's representation " was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law." (Internal quotation marks omitted.) Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006). In assessing the attorney's performance, courts must " indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Id.
With respect to assessing counsel's performance, the United States Supreme Court explained that " [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 . . . the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." Strickland v. Washington, supra, 466 U.S. at 689.
" To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . The claimant will succeed only if both prongs are satisfied." (Internal quotation marks omitted.) State v. Brown, supra, 279 Conn. 525.
" '[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland . . . standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding . . . [T]he petitioner will have to prove that [his] prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . .' Harris v. Commissioner of Correction, 108 Conn.App. 201, 209-10, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). Therefore, as explained by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice: he must 'prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective.' (Emphasis added.) Id., 842; see also Denby v. Commissioner of Correction, 66 Conn.App. 809, 812-13, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002)." Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 388, 966 A.2d 780 (2009).
" Unless a [petitioner] makes both [deficient performance and prejudice] showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unworkable . . . Only if the petitioner succeeds in [this] herculean task will he receive a new trial. This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel.' (Citation omitted; internal quotation marks omitted.) Lapointe v. Commissioner of Correction, 138 Conn.App. 454, 474-75, 53 A.3d 257 (2012)[, aff'd, 316 Conn. 225, 112 A.3d 1, (2015)]." Davis v. Commissioner of Correction, 140 Conn.App. 598, 603-04, 59 A.3d 403, cert. denied, 308 Conn. 920, 62 A.3d 1133 (2013).
Thus, a petitioner claiming ineffective assistance of one or more prior habeas counsel, based on ineffective assistance of trial counsel and/or appellate counsel, must satisfy the Strickland standard numerous times, once for each counsel. No matter how many attorneys are in the chain of representation, a petitioner must ultimately prove that trial counsel rendered ineffective assistance of counsel to undermine a habeas court's confidence in the outcome of the underlying criminal proceedings and in the conviction itself.
VI.
Count One of the amended petition (June 4, 2013) alleges that trial counsel was ineffective by failing to have a reconstruction expert testify at trial regarding the location of evidence recovered in the case and the position of the shooter relative to the victim in the case and had trial counsel done so, the result of the trial would have been favorable to the petitioner. This claim centers around the credibility of testimony (and a statement) given by an eyewitness, Gregory Hunter.
As respondent points out, the operative petition simply refers to a reconstruction expert; however, at this trial the claim was expanded to include a forensic and anatomical pathologist.
Evidence presented indicated the shooting occurred on a down slanted ramp off (and to the side of) the stairs leading to and from the doorway of the diner. Hunter acknowledged that the argument inside the diner escalated to the point that his group (Hunter, petitioner, and the two Greenes) and the victim's group (Ellis, AJ, and Damien Wade) were asked by the management to leave--" take it outside." In his statement to the police, Hunter described the circumstances of the shooting, as follows: " Once outside the argument got worse and we were yelling at each other. [Ellis] was yelling to me that me and my cousins were all snitches and I was yelling back at him that he was the snitch. We yelled at each other to go meet up at the hill to fight. Then me, the Greens and [the petitioner] walked to the Lexus and got in and wanted to drive out to go up to Long Hill to fight [Ellis]. I was driving. We were driving up the driveway toward the street and near the entrance on the ramp area I saw [Ellis] and he was yelling at me . . . I got pissed so I stopped the Lexus by the ramp and got out. I walked up the stairs toward [Ellis]. We were face to face on the ramp and . . . [Ellis] was walking backwards down the ramp and I was walking towards him. I had a folding knife out and I was holding it while walking at him. Mike Greene and some other people were trying to hold me back and telling me to chill. I saw [the petitioner] get out of the passenger side of the Lexus walking toward the corner side of the diner and he was holding his gun. [The petitioner's] gun was on a strap that was on his shoulder. Me and [Ellis] were still yelling at each other and we were near the corner of the diner. I could see [the petitioner] walk up to [Ellis] and [the petitioner] shot him in the right side of the head and [Ellis] spun around and started falling backward and [the petitioner] shot him again in the chest. I saw [the petitioner] run back into the Lexus and Jason [Greene] drove off. Me and Mike went across the street to the gas station and Mike saw some guy he knew and asked him for a ride and he gave us a ride to mother's house. Yesterday morning, 12/29/01, when the police came to talk to me I turned over to them the knife I had when I was arguing with [Ellis]."
Hunter's trial testimony was substantially consistent with his statement to the police. Prior to his testimony, the medical examiner, Dr. Arkady Katsnelson, had testified and the post-mortem report was put in evidence; as would be expected, given an obvious concern stemming from frontal entry wounds and right to left trajectories, Hunter was examined closely and extensively by both counsel concerning the positioning of himself and the petitioner at the time of the shooting. He testified on direct: By the time I pulled out my knife, the petitioner " came from behind him [Ellis] and shot him." Hunter testified the victim was facing him. " He [the petitioner] came . . . kind of like towards around from his back, like the right side of him." When asked where he was standing when he heard the gunshots, he answered, " on the ramp . . . with Ellis . . . looking toward" me. Hunter also stated he could see the gun in the petitioner's hand, a distinctive gun that he had seen the petitioner with earlier that evening.
On cross, Hunter said that at the time of the first shot, the gun was not pressed up against the side of the victim's head; he estimated that the gun was " about two or three feet away from Ellis when first fired. When asked from which side of Ellis the gun came into view, Hunter answered, " [l]ike towards . . . the back left side of him [Ellis]." On redirect, Hunter testified that at the time the shot was fired, the petitioner would have been behind Ellis to the left. On further examination, Hunter stated that the first shot hit Ellis in the head, Ellis spun around, " almost right in front of [the petitioner], but at that time, Mike Greene was . . . pulling me away and all I seen . . . was the back of . . . Ellis" when I (Hunter) heard the second shot. Hunter was asked " . . . as you sit here now, is there any doubt in your mind that [the petitioner] was the one who held the gun and pulled the trigger that fired the shots into [Ellis]?" The response was, " No."
Dr. Katsnelson testified that the bullet to the head penetrated the victim's skull from right to left and exited from the rear of the head; the bullet tract is front to back, right to left, and slightly downward. He testified that it is his opinion that there was only one shooter because the gunshot wounds are the same, right to left, and front to back, and the general direction of each bullet track is the same. He believes the two shots were fired within a short period of time because they are basically " in the same directions to the head and to the chest cavity"; he cannot be more specific about the length of time between the two shots, but " I can tell because the shots are in the same general directions . . . I believe there was an extremely short interval between the shots." Dr. Katsnelson testified that the entry wound to the head was not a contact wound; the muzzle of the gun was not pressed against the victim's head. He believed the shooter was in front of the victim and " the victim's right side was exposed to the gun." Because there was evidence of gun powder stippling on the skin of the head, he believes the victim was shot from a distance of approximately, not exactly, up to six feet--" [i]n my opinion, it's approximately in the range of six feet."
The M.E.'s report states " slightly upward" but that was corrected by Dr. Katsnelson in his testimony at the criminal trial. The bullet track of the head was slightly downward, and the tract of the chest was slightly upward.
On redirect, Dr. Katsnelson testified the range would be not less than three feet to approximately six feet, " maybe seven feet."
Dr. Katsnelson said he thought the shot to the head came from the front, but the shooter could have been on the side of the victim; it could have been from the side, from the front, but not from the back. And, the victim's head could have been turned to the side; " [d]epends on the position of the head in this time when he was shot." Dr. Katsnelson testified: " . . . I don't believe that somebody will see a gun [and] not try to turn the head or to move somewhere and he was even in the front of the shooter, probably the victim was trying to somehow instinctively . . . turn his head and received the bullet in the right side."
This court has the highest respect for both experts; both Dr. Katsnelson and Dr. Taff have impeccable credentials and years of experience in the field of forensic pathology. Each, according to the evidence, has performed thousands of autopsies. It certainly appears that Dr. Taff agreed with the medical examiner as to the likelihood of movement of victim and shooter while the murder unfolded; as his report states: " Just the sight of a gun pointed at a human target is enough to trigger a rapid, behavioral response in both the victim . . . and the shooter . . . which would change the spatial relationship between the actors." It is the court's view that what took place on that ramp did not occur in particularly slow motion, or in any sort of a " freeze-frame" manner. It is also the court's view that in the factual commission of the actual shooting there are, necessarily, many variables regarding positioning.
Dr. Taff postulated that an easy manner in which to reconstruct a shooting was to compare the victim to the sun at the center of the universe with the planets (shooters) orbiting around the victim. He testified that such " dynamic helps to understand all possible spatial relationships, distances, angles, heights, and movement of the individuals involved." However, Dr. Taff observed that " in contrast to solid planetary masses, human beings have articulated joints which are flexible and able to bend/change positions and alter body lengths." Here, both bullets passed through the victim front to back and right to left; therefore, Dr. Taff testified, " the person who is shooting the victim, assuming it's freeze-frame position, is going to be most likely somewhere in front of the victim, and somewhere to the victim's right." (Emphasis added.)
Seemingly predicated on an assumption of substantial immobility of shooter and victim, a courtroom demonstration with the doctor as the victim and counsel as the shooter was presented. This claimed demonstrative aid consisted of various scenarios, around four quadrants; in each, either party, the victim or the shooter, was presented as, or presumed to be, stationary. Such, in the court's view, was not particularly realistic considering the entire evidence, including Hunter's statement, his testimony, and the statements and testimony of others. The totality of the evidence does not readily lend itself to a brief series of still frames.
It is clear from the evidence that when Hunter jumped out of the Lexus, tempers were flaring; he was armed with a knife and walking at Ellis, with the latter moving backward down the ramp toward the corner of the building. The victim was being pursued by an enraged Hunter, armed with a knife, and, whether known or unknown, someone approaching him from behind with a gun. At the same time, Damian Wade was between the victim and Hunter trying to keep the two apart; also, at the same time, Michael Greene was grabbing Hunter attempting to hold him back. The evidence indicates, indeed, much movement; as the respondent argues, even a minor bend, twist, crouch, or a slight turn could have significant impact on any opinion as to the precise position of the shooter or the victim when the first shot was fired. Thus, there exist innumerable imponderables. Such, in the court's view, offers reasonable confirmation to what Dr. DeForest related to trial counsel and to what habeas counsel's forensic pathologist opined: there was not enough physical evidence to do a meaningful reconstruction.
What Dr. Taff's report and testimony do is highlight the obvious inconsistency between Dr. Katsnelson's findings and an isolated portion of Hunter's statement (and testimony) describing the actual shooting. But, that inconsistency was apparent from the very beginning and was addressed through examination of witnesses at trial, trial counsels' summations, and post-verdict discussions by first habeas counsel with a forensic pathologist. At the criminal trial, the petitioner's counsel cross examined Hunter on his version of the shooting and made reference to the inconsistent evidence in summation. The State certainly acknowledged the importance of the issue when, toward the end of its summation, it referred to " the physics of this, how it all happens, " and offered a somewhat plausible explanation. Thus, the issue was neither overlooked nor ignored by counsel. As Attorney Bansley put it, an expert was not needed to know that there was a discrepancy between the Katsnelson findings and part of the Hunter account of the incident.
The Assistant State's Attorney addressed the jury in closing argument: " Think about it. And I'm glad we all went out to the diner. Think about what's going through Damian Ellis's head. He is getting backed down--like if this was the handicapped rail, there's the front door of the diner--he's getting backed down to the corner of it. He's going to be looking at the knife. He's backed down until he gets right to the corner of the ramp and I would submit to you that based on this evidence, Mr. Brewer was standing right around the corner and when Damian Ellis gets to the corner and there's a railing behind him, there's nowhere to go. He's trapped. He's facing Gregory Hunter and now he's thinking, 'I got a railing behind me. I got to get out of here.' Turn to either go down the ramp for safety or turn to jump over the railing and as soon as you turn, there's the defendant, there's his gun, and it's two or three feet away from his right temple as he's trying to get the heck out of there before he gets stabbed and in that instant before he gets shot. That explains the physics of it. That's what the evidence supports. And then when he's standing here, and he gets shot right through the head, what's behind him? That's where the Lexus SUV is. That's how his brain ends up on the truck."
From the inception of his representation of the petitioner, and throughout the case, trial counsel, Attorney Cizik, consulted and conferred with his expert, Dr. DeForest, who advised that a crime scene reconstruction was not feasible given the many variables and the dearth of physical evidence. Dr. DeForest remained on in a consulting capacity aiding trial counsel, through his experience and expertise, in the preparation of the case and the cross examination of witnesses. Neither the evidence nor the record supports any finding of deficient performance on the part of trial counsel in not retaining the services of, or otherwise consulting with, a forensic pathologist relative to the anatomical positioning of shooter and victim.
Furthermore, the petitioner's defense in the criminal case, from the very beginning, was grounded on an alibi, as is apparent from the credible testimony of trial and prior habeas counsel before this court, the petitioner's testimony before the jury, the petitioner's testimony before Judge Fuger, and the presentation of the petitioner's alibi witness at the criminal trial, David Whitney. It would seem that positioning evidence related to shooter and victim--who was standing where when the gun was fired is of somewhat questionable materiality, even for impeachment purposes, when the petitioner claims he was not even there.
In post-conviction and sentencing communications with persons outside the Corrections facility, the petitioner undertook to contrive other defenses such as self-defense and an accidental/non-intentional killing (Manslaughter).
Based upon the foregoing, the court concludes that the petitioner has failed to show that Attorneys Cizik and Bansley rendered deficient representation in the criminal trial and the first habeas. Even if the court were to assume deficient performance has been proven, which it has not, the petitioner has not proven that he was prejudiced by such deficient performance by undermining this court's confidence in the outcome of the criminal trial.
VII.
Count One of the amended petition (June 4, 2013) also alleges that trial counsel was ineffective by failing to object at trial to the admission of Jason Greene's and Michael Greene's prior inconsistent statements, made at the Waterbury Police Department, and used by the State as substantive evidence in its case-in-chief. It is further alleged that had trial counsel objected to their admission and argued that the statements were unreliable and untrustworthy, the statements would have been excluded as substantive evidence and the result of the trial would have been favorable to the petitioner.
As stated, Jason Greene gave two statements to Waterbury Police Detective Kennelly on December 29, 2001, within hours of the murder. The statements are inconsistent in a number of respects. The most glaring inconsistency concerns his first statement reciting he saw the petitioner jump out of the Lexus and " walk up to Ellis point a gun at him and shoot him twice." In the second statement he changes his recollection of the shooting as follows: " . . . we all walked back to the Lexus . . . Greg was driving . . . Ellis was standing in the middle of the walkway and yelled something at us . . . Greg got out along with Michael and [the petitioner] . . . I watched Greg walked (sic) up the front stairs and down the walkway . . . [the petitioner] was walking down the driveway to the corner of the building . . . I got out of the rear seat and got in the driver's seat . . . Then I heard two shots behind me . . . looked back to see what was happening and [the petitioner] was getting into the front passenger seat . . . I looked down and saw a gun in his hand . . . I asked [the petitioner] what was going on and he said 'go, go, I shot that dude . . .'" In his trial testimony, he denied ever telling the police that he saw the petitioner shoot Damian Ellis. Detective Kennelly testified, credibly, to the circumstance surrounding the taking of both statements.
With respect to Michael Greene, he provided a statement on December 29, 2001, to Waterbury Police Sgt. Jannetty, also within hours of the murder, in which he said that at first he did not want to say anything about [the petitioner] shooting Damian Ellis " because [the petitioner's] my cousin, and I didn't want to see him go to jail." In the statement, Michael Greene gives the following account of what occurred: " . . . Ellis and Gregory kept arguing in the lobby . . . [the petitioner] also had some words with . . . Ellis . . . he seemed to be sticking up for Gregory . . . Ellis was saying he wanted to handle it all another day . . . [the petitioner] was saying '[Expletive] that, we ain't letten' this [expletive] ride' . . . We got in the Lexus I looked in the backseat and saw the petitioner holding a gun . . . the gun he always carries . . . When we got up to the front of the diner by the ramp . . . Ellis was saying something . . . Gregory jumped out of the driver's side to confront Ellis . . . Me and [the petitioner] ran out of the Lexus and I grabbed Gregory from behind . . . [the petitioner] walked up to Damian Ellis from behind, said '[Expletive], ' and held up the gun and shot him twice . . . Damian fell onto the ramp, and landed backwards on the side of the diner." In his trial testimony, Michael Greene basically repudiates critical portions of his December 29, 2001 statement denying that he actually saw the petitioner shoot Ellis, and that he observed the petitioner with a gun. Sgt. Jannetty testified, credibly, to the circumstance surrounding the taking of both statements.
Attorney Cizik, as an experienced criminal trial lawyer, was well aware of the evidentiary law on the substantive use of inconsistent statements under State v. Whelan, supra . He was also well aware that Whelan was not a " blanket rule" and of the trial court's limited " gate-keeping" function upon objection. The attorney testified, credibly, that he did not adhere to the concept of objecting for the sake of objecting, particularly where it appeared futile based on his assessment, and most especially when he believed the admission of the statements would benefit the defense by unveiling initial falsehoods and highlighting a witness's proclivity to fabricate. In the court's view, such was a prudential tactical determination on the part of counsel, and no evidence has been presented that, under these circumstances, the decision not to object rendered the representation, under the Strickland standard, " outside the range of competence displayed by lawyers with ordinary training and skill in the criminal law, " nor has the petitioner shown the required prejudice.
Pursuant to Whelan, Connecticut permits the substantive use of a prior inconsistent statement of a witness who testifies at trial if certain conditions are met: (1) the statement is in writing or otherwise reliably recorded; (2) the statement or recording is signed or duly authenticated; (3) the witness had personal knowledge of the contents; and (4) the witness testifies and is subject to cross examination. Once the statement meets the Whelan requirements the statement is presumptively admissible. State v. Mukhtaar, 253 Conn. 280, 306, 750 A.2d 1059 (2000). Notwithstanding, the " reliability generally inherent" in Whelan statements, the trial court must act as a " gatekeeper" to make sure that a Whelan statement is not made under circumstances that might " grievously undermine" that reliability. Tait and Prescott, Connecticut Evidence 5th Ed., Section 8.33.2 p. 612-13.
VIII.
Count One of the amended petition (June 4, 2013) also alleges that trial counsel was ineffective by failing to adequately develop a third-party culpability theory of defense for trial. It alleges that had counsel elicited testimony during his cross examination of the State's witnesses supporting this defense, and argued it in his summation, the results of the trial would have been favorable to the petitioner.
There was very little testimony before this court concerning the development of a third-party culpability defense. As stated heretofore, when Attorney Cizik was asked if the forensic evidence pointed to someone else's involvement in the shooting; the answer was: " No. No one specific." And, when asked if the evidence allowed for third-party culpability, he stated " it did not point to a specific third party, which would have been required." Attorney Bansley did not believe that the petitioner ever asked him to pursue a third-party culpability defense, and while he thought the evidence might support such an instruction, he observed that most of the individuals there, when interviewed immediately after the shooting, pointed to the petitioner as the potential shooter.
Similarly, there is no citing or analysis of the law governing the defense of third-party culpability in petitioner's post-trial brief (filed in lieu of oral arguments). Respondent has briefed the issue citing and relying on Mukhtaar v. Commissioner of Correction, 158 Conn.App. 431, 119 A.3d 607 (2015).
As set forth in Mukhtaar: " It is well established that a defendant has a right to introduce evidence that indicates that someone other than the defendant committed the crime with which the defendant has been charged . . . The defendant must, however, present evidence that connects the third party to the crime . . . It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused . . ." Mukhtaar v. Commissioner of Correction, 158 Conn.App. 431, 446, 119 A.3d 607 (2015), citing State v. Arroyo, 284 Conn. 597, 609-10, 935 A.2d 975 (2007).
Thus, evidence concerning a third person's responsibility for the crime charged would not be admissible unless there is evidence that directly connects that person with the crime. Evidence that merely offers a possible ground of suspicion against another is excludable. State v. Ortiz, 252 Conn. 533, 564-65, 747 A.2d 487 (2000); State v. Echols, 203 Conn. 385, 392-93, 524 A.2d 1143 (1987); State v. Giguere, 184 Conn. 400, 439 A.2d 1040 (1981). Evidence that another merely had a motive to commit the crime is also insufficient. To be admissible, the evidence must connect the third person to the crime with sufficient directness to satisfy the rules of relevancy. State v. Hill, 196 Conn. 667, 674, 495 A.2d 699 (1985); Siemon v. Stoughton, 184 Conn. 547, 440 A.2d 210 (1981).
" [T]hird-party culpability evidence is admissible if it raises more than a bare suspicion that someone else has committed the crime. See, e.g., State v. Arroyo, supra, 284 Conn. at 610, 612. Evidence that connects a third party to the charged offense by demonstrating that the third party possessed both a motive and an opportunity to commit the crime satisfies this standard when . . . that evidence is sufficient to give rise to a reasonable doubt concerning the defendant's guilt. In other words, if the jury reasonably might view such third-party culpability evidence as providing a credible, alternative theory as to who committed the crime, the defendant is entitled to have the jury consider that evidence in determining whether the state has proven its case against the defendant beyond a reasonable doubt . . . ('The primary object of third-party suspect testimony is not to prove the guilt of the third party but to disprove the guilt of the accused. If it raises a reasonable doubt of his guilt it accomplishes its object.')" State v. Hedge, 297 Conn. 621, 647, 1 A.3d 1051 (2010).
" [A]dmissibility of evidence of third-party culpability is governed by the rules relating to relevancy . . . 'Such evidence is relevant, exculpatory evidence, rather than merely tenuous evidence . . . [introduced by a defendant] in an attempt to divert from himself the evidence of guilt . . . In other words, evidence that establishes a direct connection between a third party and the charged offense is relevant to the central question before the jury, namely, whether a reasonable doubt exists as to whether the defendant committed the crime. Evidence that would raise only a bare suspicion that a third party, rather than the defendant, committed the charged offense would not be relevant . . ." Bryant v. Commissioner of Correction, 290 Conn. 502, 515, 964 A.2d 1186, cert. denied sub nom, Murphy v. Bryant, 558 U.S. 938, 130 S.Ct. 259, 175 L.Ed.2d 242 (2009). To be relevant to a defense of third-party culpability, the evidence need not exonerate the defendant, but it must provide a credible alternative theory as to who committed the crime. State v. Baltas, 311 Conn. 786, 812, 91 A.3d 384 (2014); State v. Hedge, supra, 297 Conn. 647.
" It is not ineffective assistance of counsel . . . to decline to pursue a third-party culpability defense when there is insufficient evidence to support that defense." Bryant v. Commissioner of Correction, supra, 290 Conn. 515. Here, the petitioner, having the burden of proof in this proceeding, has presented no neutral testimony on the issue, but appears to rely on the record with respect to Gregory Hunter's motive and presence at the scene; however, to the extent that alone might somehow constitute an alternative theory, it is not a credible one in that the victim died of two gunshots and, as the evidence stands, at the time of the incident, Hunter was armed with a knife.
As respondent's counsel alludes to in her brief, " Hunter was armed with only a knife . . . and was directly observed at the time of the shooting by multiple eyewitnesses as not culpable." The petitioner does not refer to any other potential third party in his brief.
On the totality of the record, the court is unable to conclude that trial counsel was deficient in not pursuing a third-party culpability defense, or that prior habeas counsel was remiss in not claiming ineffectiveness of trial counsel on that basis. Even if this court were to presume such deficient performance, the petitioner has failed to present any credible and persuasive evidence that undermines this court's confidence in the outcome of the criminal trial.
IX.
Count One of the amended petition (June 4, 2013) also alleges that trial counsel was ineffective by failing to investigate and request a hearing regarding any potential agreement between the State and Gregory Hunter regarding his trial testimony. The count further alleges that had counsel requested such a hearing, exculpatory evidence of an agreement between the State and Gregory Hunter would have been exposed and the result of the trial would have been favorable to the petitioner.
Here, the specific allegations are that habeas counsel was ineffective in failing to claim that trial counsel's performance was deficient in not investigating or requesting a hearing with respect to any potential agreements between the State and its principal witnesses (Hunter and the two Greenes). As respondent's counsel has pointed out in her post-trial brief, essentially no new testimonial evidence was presented to this court on the issue, and the petitioner's post-trial brief includes no legal analysis pertinent thereto. Since there is relevant documentation in the record, and as the claim has not been formally withdrawn, the respondent has addressed it in the post-trial brief " in an abundance of caution."
The court has reviewed the record of prior proceedings. The record from the criminal trial reflects that there was no agreement between the State and Gregory Hunter. He was questioned about whether there was an agreement and whether there was any benefit he expected in exchange for providing specific testimony; Hunter answered in the negative as to both. There was no evidence presented in the first habeas relevant to this claim. The evidence presented to Judge Kwak in the present matter is devoid of any evidence showing that there was a sentence agreement between the State and Gregory Hunter; instead, Attorney Avitabile, his former defense attorney, testified that there was no such agreement. The proceedings after the Appellate Court's remand did not supplement the record with new credible evidence in support of this claim.
Attorney Cone, the petitioner's appellate counsel on direct appeal, testified about his review of the criminal proceedings and whether there was a basis to request a hearing pursuant to State v. Floyd, 253 Conn. 700, 756 A.2d 799 (2000). The purpose of such a Floyd hearing is to ferret out whether a witness received favorable treatment after testifying for the state in a criminal trial. As Judge Kwak also noted, Attorney Cone was the appellate attorney in Floyd and, therefore, well acquainted with Floyd hearings. Attorney Cone found no basis to request a Floyd hearing in the instant petitioner's direct appeal. Additionally, he concluded such a hearing would not benefit the petitioner because it would not develop any additional information not already known by Attorney Cizik or presented to the jury.
Consequently, and based on this court's review of the record and the evidence presented in the present matter, the claim that Attorney Cizik was ineffective for failing to investigate and request a hearing on any purported agreement between the State and Gregory Hunter must be deemed abandoned. Wooten v. Commissioner of Correction, 104 Conn.App. 793, 801, 936 A.2d 263 (2007) (claim deemed " abandoned because the petitioner failed to present any evidence in support of his position"), cert. denied, 289 Conn. 911, 957 A.2d 868 (2008); Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001). (" The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner.") Furthermore, the petitioner has neither addressed this claim in his post-trial brief, nor provided any legal analysis on the claim, which are separate and independent bases to deem the claim abandoned. 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").
XI.
The court has reviewed the provided record of prior proceedings, in particular transcripts on the flash drive. (Petitioner's Exhibit 22, a full exhibit.) This review, together with the other evidence presented, leads the court to the conclusion that the petitioner, even if the court were to assume that he has proven deficient performance, has failed to affirmatively prove the resulting prejudice. Stated somewhat differently, the petitioner has in no way undermined the court's confidence in the outcomes of the criminal trial (Attorney Cizik) and the first habeas (Attorney Bansley).
The claim in count four is denied. Judgment shall enter for the respondent.
It is so ordered.
" We know exactly how it happened. We know whose feet were where. Do we know the distance or the timing between the first shot and the second shot? Absolutely not. We can't paint the perfect picture for you, but we can give you reasonable explanations for what happened and we can give you eyewitnesses that support those explanations, not wild speculation." One such witness was Damien Wade who identified the petitioner as coming out from around that corner of the building almost immediately after the shots were fired and getting into the Lexus as it drove off.