Opinion
No. TSR CV 08 4002178
October 29, 2010
Memorandum of Decision
In this habeas corpus case, the petitioner claims that he is actually innocent of a 1999 murder of which he stands convicted. Primarily because he has not presented any newly discovered evidence, the court denies the petition.
I
In 2000, the petitioner was convicted after trial and sentenced to a term of forty-five years for the shooting murder of Shawn Jeffries in Bridgeport on March 6, 1999. On appeal, the Appellate Court affirmed the convictions for murder and commission of a class A felony with a firearm and reversed a conviction for criminal possession of a pistol or revolver. State v. Hair, 68 Conn.App. 695, 792 A.2d 179, cert. denied, 260 Conn. 925, 797 A.2d 522 (2002). Because the firearms sentences ran concurrently, however, the petitioner's net effective sentence remained forty-five years.
In 2001, the petitioner filed a habeas petition alleging ineffective assistance of counsel and failure of the state to disclose evidence. The court, Fuger, J., denied the petition in 2005. The Appellate Court dismissed an appeal and the Supreme Court denied certification. Hair v. Commissioner of Correction, 98 Conn.App. 903, 908 A.2d 1153 (2006), cert. denied, 281 Conn. 909, 916 A.2d 50 (2007).
The petitioner filed his latest petition in 2008 alleging actual innocence.
The respondent fails to allege that the petitioner has procedurally defaulted by failing to include his actual innocence claim in his 2001 petition. See Henderson v. Commissioner of Correction, 104 Conn.App. 557, 570, 935 A.2d 62 (2007), cert. denied, 285 Conn. 911, 943 A.2d 470 (2008).
II
The Appellate Court concluded that the jury could reasonably have found the following facts: "On March 6, 1999, the defendant and the victim, Shawn Jeffries, had an altercation in a parking lot near the victim's apartment. A neighbor observed the victim pushing the defendant into a utility box. The victim returned to his apartment upset. The victim's fiancee, Ebony Harper, went outside to find out from the defendant why the victim was upset. Soon thereafter, the victim went outside to join Harper, who had just approached the defendant. As the victim reached Harper's side, the defendant shot the victim twice. The defendant ran to a white vehicle and drove away. The victim died soon thereafter. A .45 caliber bullet and spent casing were found at the scene.
"Three days later, the defendant was arrested in a friend's apartment. During a search of the apartment, the police found a nine millimeter handgun in a closet. The defendant admitted that the handgun was his and that he had purchased it for his protection two days after the shooting because he was warned that people were after him." State v. Hair, supra, 68 Conn.App. 697.
III
"[T]he proper standard for evaluating a freestanding claim of actual innocence . . . is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence-both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial-he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty of the crime." (Internal quotation marks omitted.) Sargent v. Commissioner of Correction, 121 Conn.App. 725, 734, 997 A.2d 609, cert. denied, 298 Conn. 903 (2010).
In addition, under binding Appellate Court case law, "[a] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered . . . This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence." (Internal quotation marks omitted.) Id. at 734-35.
IV
In this case, the petitioner, aside from his own testimony, presented testimony only from forensic firearms examiner James Gannalo. Neither witness offered newly discovered evidence, as the case law has defined that concept. Gannalo testified concerning the trajectories of the bullets that killed the victim and the possible movements of the victim that might have led to those trajectories. This testimony could well have been discovered by due diligence prior to the petitioner's trial and presented then since it relied on a review of the existing autopsy reports and photos and did not rely on any new technology that arose after the trial. Thus, Gannalo's testimony does not constitute newly discovered evidence.
The petitioner testified at the habeas trial that he was present at the shooting and shot twice at the victim in self-defense. The petitioner's testimony was obviously not newly discovered. Although he apparently chose not to present this testimony at his criminal trial, it is self-evident that he has known all along what constitutes his own version of the events on the day of the murder. The petitioner's apparent decision not to testify at his criminal trial is simply one of the difficult choices that a defendant charged with a crime must make; see Chaffin v. Stynchcombe, 412 U.S. 17, 32 (1973); and does not mean that he could not have presented his side of the story at the time of the criminal trial if he had made a different choice. Accordingly, there was no newly discovered evidence.
The court relies on the representation of petitioner's counsel that the petitioner did not testify at the criminal trial. The petitioner failed to submit the entire trial transcript, thus hampering review.
V
Because there was no newly discovered evidence, the petitioner's actual innocence claim must fail. Sargent v. Commissioner of Correction, supra, 121 Conn.App. 734-35. Therefore, the petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Petitioner shall submit a judgment file within thirty days of the date of this decision.
The court adds that the petitioner also did not prove his actual innocence under the prevailing standards. To begin with, the petitioner did not submit the full trial transcript, thus making it difficult to assess the "evidence adduced at the original criminal trial." (Internal quotation marks omitted.) Sargent v. Commissioner of Correction, supra, 121 Conn.App. 734. Substantively, Gannalo testified only that it was "possible" that the victim's abdominal wound, which was one of two gunshot wounds that he received, was consistent with being self-inflicted. This testimony amounts to little more than sheer speculation. The petitioner, in fact, admitted shooting twice, thus providing a more plausible explanation for the victim's two wounds. Further, Gannalo's testimony does not provide any conceivably innocent explanation for the victim's other gunshot wound, which resulted from a bullet entering the victim's left rear shoulder. It is hard to imagine how the petitioner's shot to the victim's backside could amount to justifiable self-defense. The petitioner introduced no other evidence — such as an actual gun possessed by the victim, gunshot residue on the victim indicative of firing at close range, or any supportive eyewitness testimony to the shooting — that corroborated his theory of self-defense. Thus, the petitioner produced virtually no credible evidence, and certainly no clear and convincing evidence, that he is actually innocent of the murder for which he stands convicted. Id.
It is so ordered.