Opinion
CV114004035S
10-04-2019
Marcus FAIR v. WARDEN
UNPUBLISHED OPINION
OPINION
Sferrazza, J.
The petitioner, Marcus Fair, seeks habeas corpus relief from a total, effective sentence of sixty-five years imprisonment, imposed after a jury trial, for the crimes of murder and criminal possession of a firearm. The Appellate Court affirmed the judgment of conviction on direct appeal, State v. Fair, 104 Conn.App. 519 (2007).
The Appellate Court succinctly recounted the evidence supporting the jury’s guilty verdict as follows:
"In the late evening of January 13, 2004, Dwayne Knowlin and Joshua Mims left Knowlin’s home on Nelson Street in Hartford to get something to eat. As they walked home, the defendant approached. The defendant wore a black mask that concealed his head; his face was visible from his lips to his eyebrows. The defendant stopped in front of Knowlin and Mims, took out a black revolver and opened fire. Knowlin and Mims immediately ran. After jumping a fence and with the defendant no longer in sight, Knowlin collapsed, informing Mims that he was shot. Knowlin’s breathing became labored, and Mims called for an ambulance. Knowlin died that evening.
The next day, Howard Fair, the uncle of the defendant, heard rumblings from family members that the defendant was involved in the shooting. He confronted the defendant, who admitted to shooting Knowlin. The defendant explained that he "had a beef" with the "kids on Nelson Street" and alleged that they had shot at him and his cousin a month earlier. The defendant told his uncle that he wanted revenge. As Howard Fair recounted, the defendant stated that "he was going to get back at them, no one in particular, just said he’s gonna, you know, they shot at him so he’s going to go shoot back at them." Fearing for his nephew’s safety, Howard Fair encouraged the defendant to turn himself in to the authorities. On January 16, 2004, the defendant and his uncle entered the Hartford police department. At that time, Howard Fair gave a statement implicating the defendant in Knowlin’s death, and the defendant was arrested. The police subsequently presented a photographic array to Mims, who immediately identified the defendant as the shooter. At trial, Mims testified that he had known the defendant for approximately five years and that he observed the defendant’s face "a whole minute" before the shooting," State v. Fair, supra, 521-22.
In his third, amended petition, the petitioner alleges in a first count that his confinement is unlawful because his defense counsel, Attorney Robert Meredith and Attorney Michael Isko, represented him ineffectively. The second count asserts a denial of confrontation rights, but the petitioner never discussed that claim in his posttrial brief, and the court regards that contention as abandoned.
Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims, Johnson v. Commissioner, 218 Conn. 403, 425 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, that his attorney’s performance was substandard and that there exists a reasonable likelihood that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that defense counsel’s representation fell below an objective standard of reasonableness, Johnson v. Commissioner, supra.
This standard of reasonableness is measured by prevailing, professional practices. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel’s conduct from that attorney’s perspective at the time of the representation. Id.
If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel’s competence, Pelletier v. Warden, 32 Conn.App. 38, 46 (1993). In order to satisfy the prejudice prong of Strickland test, the petitioner must prove that there exists a reasonable probability that, but for counsels’ unprofessional errors, the result of the proceedings would have been different, Levine v. Manson, 195 Conn. 636, 640 (1985). Reasonable probability means a probability sufficient to undermine confidence in the outcome, Daeira v. Commissioner, 107 Conn.App. 539, 542-43 (2008), cert. denied, 289 Conn. 911 (2008); that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt. Id. Thus, the failure of the petitioner to establish, by a preponderance of the evidence, the allegations against trial counsel or the requisite prejudice will defeat a claim for habeas corpus relief.
The amended petition avers sundry deficiencies by defense counsel, but his posttrial brief is limited to discussing the following specifications of ineffective assistance:
1. Defense counsels’ inability to introduce all the prior inconsistent statements of Mims regarding the description of the shooter; 2. Defense counsels’ failure to offer expert testimony as to Jamaican slang to impeach Mims and point to third-party culpability; 3. Defense counsels’ failure to offer expert testimony regarding the effects of phencyclidine (PCP), also known as "angel dust," as those effects bear on diminished capacity to form requisite intent and as to the reliability of the petitioner’s confessions; and 4. Defense counsel’s failure to demonstrate Mims’ motivation to cooperate with the police and falsely identify the petitioner as the shooter.
Lack of Expert Testimony re PCP Use
The petitioner decries his attorney’s failure to present an expert witness at his criminal trial to educate the jury as to the effects of inhalation of a marijuana blunt laced with PCP. The petitioner claims that the expert could have provided evidence that reduced the petitioner’s capacity to form the intent to kill and/or undermined the reliability of the petitioner’s confessions to his uncle and the police. However, the petitioner never introduced such expert testimony at his habeas trial either.
Quoting the petitioner’s post-trial brief, p. 25, "the effects of [PCP] would not be well-known to the common jury." Nor to a habeas court, either.
Do the effects of PCP dissipate quickly or linger over time? How does PCP influence perception? Does its use dull or exaggerate responsiveness? Does its use induce delusions or false memories? The answers to these types of questions remain unknown. Nor did the respondent have the opportunity to challenge the petitioner’s speculations about such effects and their utility to his case.
It is incumbent upon the petitioner to establish the ways in which defense counsel’s failure to interview and/or present a witness negatively affected the pertinent proceeding, Henderson v. Commissioner, 129 Conn.App. 188, 195 (2011). "[P]rejudice cannot be demonstrated with regard to trial counsel’s failure to interview potential witnesses where petitioner fails to call those witnesses to testify at the habeas trial or offer proof that their testimony would have been favorable to him at the criminal trial." Id.
Under our law, voluntary intoxication is not a defense to a criminal charge, General Statutes § 53a-7. Evidence of such intoxication may be admissible but only "whenever it is relevant to negate an element of the crime charged ..." § 53a-7. The petitioner explained to his uncle and the police that he shot at the victim because some residents in the Nelson Street area had shot at him on a previous occasion and may have killed his cousin. His motive was revenge.
Without having heard the expert testimony that would have been available to defense counsel, this court cannot find that those attorneys were deficient for failing to present such a witness.
Failure to Impeach Mims’ Motive to Lie
Defense counsel unsuccessfully attempted to cross examine Mims regarding whether he expected to receive some benefit in the form of the police ignoring the discovery of a baggie containing a black powder close to the victim’s body near 8 Clay Street. The trial judge sustained the state’s objection to this line of questioning because of insufficient nexus between Mims and the baggie to support an inference of favorable treatment by the police in exchange for Mims’ identification of the petitioner as the shooter.
The trial judge did allow cross examination as to whether the police inquired of Mims about the baggie. Mims testified that the police never mentioned that discovery at all. It should be recalled that at the time the baggie was seized, Mims refused to disclose that he knew who shot his friend. That identification came about one week later.
No credible evidence was adduced at the habeas trial to support the petitioner’s suspicion on this point. Mims conceded he withheld pertinent information from the police on the night of the homicide. The police received the petitioner’s admissions a few days later without any assistance from Mims. Mims’ later identification of the petitioner was not the basis for the petitioner’s arrest, but simply confirmed the veracity of the petitioner’s multiple admissions to the crime.
Also, defense counsel adequately cross examined Detective Gregory Gorr about whether the baggie or its contents were subjected to testing or further investigation. Detective Gorr acknowledged that they were not. The court finds that the petitioner has failed to prove deficient performance as to this specification of ineffective assistance.
Impeachment of Mim’s Identification of the Shooter
As noted above, if it is easier to address the prejudice component of the Strickland standard, the court may resolve that issue directly, and the court does so with respect to the remaining assertions of substandard representation. In doing so, the court assumes that such impeachment evidence was available to defense counsel.
The petitioner notes the following discrepancies or inconsistencies bearing on Mims’ identification of the petitioner as the perpetrator. Mims failed to tell the police he recognized the shooter on the night his friend was killed. Mims described the shooter as a Jamaican male with medium complexion. Mims stated the shooter wore all black clothing. Mims indicated the shooter wore a black mask, without characterizing it as a "football" type mask as he later testified. The shooter shouted the word "Bumbaclot" just before the incident.
"Bumbaclot" is a highly offensive Rastafarian insult. Defense counsel never produced expert testimony as to its meaning or culture of origin. In other words, the jury was never informed that the term was Jamaican slang.
At the criminal trial, Mims testified that he had heard the word previously, although he did not know its precise meaning. The petitioner argues that, had the jury known the term was Jamaican, it would have discredited Mims’ identification of the petitioner, who is not Jamaican, and cast doubt on the petitioner’s confession. The court rejects that conclusion.
Mims also testified that the shooter wore a fake, dreadlock wig and hat. That is, the shooter appeared to impersonate a person of Jamaican background. The use of a Jamaican insult is also consistent with Mims’ testimony on that issue. Under the particular circumstances before the jury in the petitioner’s case, such testimony was not unequivocally exculpatory or even significantly so.
Although in his testimony Mims denied that he initially described the shooter as Jamaican, the jury heard the evidence through a police witness that he had. Mims explained that he only characterized the perpetrator’s hat as Jamaican and not the person wearing it. In any event, the jury knew that Mims admitted deceiving the police on the night of the shooting.
The petitioner also tried to attach importance to the fact that Mims originally described the shooter as wearing a black mask, without modifying that description as a football type mask. The court regards that omission as trivial.
The evidence collection officer, Detective Gregory Gorr, avowed that the evening of January 13/14, 2004, was the coldest crime scene he had ever processed. He opined that it was windy and the temperature was below 0 degrees.
Mims’ detailed testimony about the mask discloses that he was not referring to a face mask attached to a football helmet, but rather the cold weather mask that football players wear under a helmet in frigid weather; namely apparel that covers the head and most of the face, except for the eyes and nose.
Also, Mims’ description of the shooter as dressed in black and of medium complexion carries little probative weight. Mims acknowledged trying to deceive the police about the fact he knew the shooter. He admitted he failed to tell the police about the fake dreadlocks. His initial description was rather nondescript; no distinctive clothing; medium complexion.
In his post-trial brief the petitioner characterized Mims as the "crux" of the state’s case. This is an overstatement of Mims’ role, although he was an important witness. The crux of the prosecution case was the petitioner’s multiple confessions to committing the crime. Those statements preceded Mims’ cooperation and identification of the shooter. Mims’ testimony was confirmatory rather than primary.
There was no credible evidence proffered at the habeas trial that Mims was coached to finger the petitioner nor that Mims even knew the police had a suspect in custody when he picked the petitioner’s photograph as the shooter from the photo array "immediately."
The court concludes that the petitioner has failed to meet his burden to demonstrate that, but for these alleged impeachment deficiencies, there exists a reasonable probability of acquittal.
For these reasons, the court denies habeas corpus relief.