Opinion
CV144006310S
07-21-2017
Michael Holbrook v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
John F. Mulcahy, Judge Trial Referee.
The petitioner initially brought a pro se petition for a writ of habeas corpus on or about June 19, 2007 challenging convictions, after a jury trial, on Manslaughter in the First Degree and commission of a Class A Felony with a Firearm. The petition was amended on September 3, 2010, October 5, 2010, and November 19, 2010. The third amended petition, citing roughly twenty-seven different deficiencies in trial counsel's representation, was denied after a trial on August 22, 2012. On or about June 12, 2014, the petitioner, again acting pro-se, filed the petition for a writ of habeas corpus resulting in the present action; following court appointment, the Ruane Law Film filed its appearance on or about August 7, 2014. The final (operative) amended petition, filed December 19, 2016, alleges, in three counts, ineffective assistance of trial counsel, ineffective assistance of habeas counsel, and failure of the State to produce Brady information.
In its comprehensive memorandum of decision, the court (Santos, J.) addressed only those claims briefed by the petitioner's habeas counsel. The denial of the November 19, 2010 habeas petition was affirmed, Holbrook v. Commissioner of Correction, 149 Conn.App. 901, 87 A.3d 631, cert. denied, 311 Conn. 952, 91 A.3d 464 (2014).
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
I.
On December 8, 1996, John Fred Dean was shot and killed inside a Bridgeport nightclub known as the Factory. The petitioner, Michael Holbrook was charged with the murder. The information (CR00-163353) charged Murder in violation General Statutes Section 53a-54(a) and using a firearm in the commission of a felony in violation of General Statutes Section 53-202k. In 2003, the petitioner's first jury trial ended in a mistrial when the jury was unable to reach a unanimous verdict. After a second trial in 2004, the jury found the petitioner not guilty of murder, but guilty of the lesser included offense of Manslaughter in the First Degree in violation of General Statutes Section 53a-55a(a). The jury also made a finding that he committed a Class A, B, or C Felony with a Firearm in violation of Section 53-202k. The trial court rendered judgment in accordance with the verdict and the petitioner was sentenced to a total effective term of thirty-five years incarceration.
The conviction was affirmed on direct appeal. State v. Holbrook, 97 Conn.App. 490, 906 A.2d 4, cert. denied, 280 Conn. 935, 909 A.2d 962 (2006).
Attorney Frank J. Riccio, Sr. represented the petitioner in both jury trials. Attorney Michael Day represented the petitioner, as court-appointed counsel, in the prior habeas proceeding.
II.
The parties appeared before this court on March 30, 2017 for a trial on the merits. The court received testimony from Cherise Chamberlain, a.k.a Cherise Thomas; Attorney Michael Day, prior habeas counsel; C. Robert Satti, Senior Assistant State's Attorney, Fairfield Judicial District; and Attorney Vicki Hutchinson, petitioner's expert witness. Additional evidence presented included transcripts on a digital jump drive of prior proceedings, copies of Ms. Cherise Thomas' two statements to the authorities, pleadings, other documentation, and memorandum of decision in the prior habeas proceeding. The petitioner did not testify. The parties presented oral summations.
Attorney Frank J. Riccio, Sr., the petitioner's trial counsel, did not testify having died before the present habeas trial.
III.
The petitioner's claims of ineffective assistance allege failure by criminal trial counsel to investigate and call a purported eye-witness, Cherise Thomas, and failure by habeas counsel to pursue such deficiency as a ground for the granting of the petition. The Brady claim stems from testimony by a witness, Gary Browning, at the 2010 habeas proceeding that his criminal trial testimony was false, having been elicited and rendered in return for consideration by the State in an unrelated, pending prosecution.
The documentation submitted to the court also refers to Ms. Thomas as " Sherese."
Gary Browning did not testify in the present habeas proceeding.
At the habeas trial, Cherise Thomas testified that she is a resident of Bridgeport, attended Central High School, and Butler Business School. She testified that she could not remember the night of the incident, the facts of the shooting, or any of the events of December 8, 1996. While initially she did not remember even being at the " Factory, " she afterwards was able to recall being there with petitioner, but nothing else. While she acknowledged being with the petitioner that evening, she could not recall any activities or what occurred. She claimed no recollection of giving a written statement to Sergeant Wargo at the Bridgeport police station on December 10, 1996, in the presence of Attorney Riccio, which statement essentially exculpated the petitioner from any material role in the shooting. When shown the statement, Ms. Thomas acknowledged it was her signature on the document. Similarly, she claimed no recollection of giving a second signed statement to the Bridgeport police some nine months later, on September 17, 1997. Ms. Thomas also indicated that she was never contacted or subpoenaed in either of petitioner's two jury trials or in the prior habeas case.
Attorney Michael Day testified he was court appointed to represent the petitioner in the prior habeas proceeding. He obtained court records and documents from Attorney Riccio and from the public defender. He had documentation from the court file, read the transcript of the trial(s), and subsequently went to Attorney Riccio's office and picked up copies from the lawyer's file. Attorney Day employed a private investigator, and witnesses were interviewed. Since the defense at trial centered primarily on misidentification of petitioner as the shooter, Attorney Day challenged the veracity of the State's witnesses. Accordingly, some witnesses were called to testify in the habeas proceeding, others were not. The lawyer testified, " I tried to prioritize in the claims I made." In such regard, Attorney Day stated it was his practice to employ " some degree of strategy." Although the attorney testified he had no specific recollection, he indicated the decision not to pursue a claim based on the Thomas statements would have been in accordance with his usual practice of selectively litigating those claims which he believed were the strongest and the most viable.
Demetrius Brown testified at the prior habeas trial. In late 1997, Brown gave the police statements indicating that he was at the Factory on the night of the shooting and had seen the petitioner, whom he knew as " Dashieki, " fighting with Dean, taking a gun from his sleeve, and shooting Dean. Brown was a principal State's witness at the probable cause hearing and at both criminal trials and was the subject of extensive and vigorous cross examination by Attorney Riccio. There was also defense evidence relating to his credibility.
As indicated, the prior petition alleged multiple claims of ineffective trial representation; included among those claims was trial counsel's failure " to call Cherise Thomas as a witness in the defense of the petitioner." Attorney Day's list of witnesses included some forty-six individuals, including Ms. Thomas. The attorney, in determining which claims to press in the habeas, did not brief a ground premised trial counsels' decision not to have Cherise Thomas testify. While the lawyer was aware of Ms. Thomas' two statements, and believed Attorney Riccio had been aware of them since he was a signatory to the first statement, he had no recollection of discussing Cherise Thomas with the petitioner or placing her under subpoena to testify at the prior habeas. Attorney Day felt the claims he did pursue were his strongest, and observed that the second Thomas statement changed certain language contained in the first. Nevertheless, he acknowledged her statement(s) to the police lent some support to the petitioner's defense that he was not the shooter.
Concerning Gary Browning's prior habeas testimony essentially recanting his initial police statement and his criminal trial (2004 trial) testimony, claiming the statement and the trial testimony were untrue (lied about everything) and had been given for anticipated consideration in an unrelated pending case, Attorney Day acknowledged he did not move to amend the habeas pleadings to allege non-disclosure of any such consideration as an additional ground. Attorney Day testified his recollection of Browning's habeas testimony was that he had simply hoped for " something in return."
Attorney Vicki Hutchinson, a member of the Connecticut Bar, testified she holds degrees from the University of California, San Diego, and Quinnipiac Law School (1982); her practice is almost exclusively criminal law, having handled numerous murder and serious felony cases, many of which have gone to jury, and well over one hundred habeas corpus petitions. She has testified several times as an expert witness in the Connecticut Superior Court.
Preparatory for her testimony, Attorney Huchinson reviewed pertinent documentation including: the two statements of Cherise Thomas, statements of witnesses, transcript of the hearing in probable cause, the trial transcripts, prior habeas transcript, and the habeas petition.
Attorney Hutchinson opined that with reference to both a trial and a habeas proceeding, if a known witness was in the company of a defendant/petitioner at the time of the incident, that witness should be interviewed to ascertain as much information as possible about what happened and what was observed. Potential testimony should be discussed thoroughly with the witness and if the testimony would be advantageous to the petitioner's position, either at a criminal trial or a habeas, the witness should be called, or if necessary compelled by process, to testify.
As to Ms. Thomas, the attorney viewed it significant, considering the defense of mis-identification, that her initial statement was given to the police within forty-eight hours of shooting, she was spatially proximate to petitioner when the shots were heard and, unlike a number of the State's crucial witnesses, did not have a criminal record. She garnered from her review of the trial transcripts that two or more of the crucial State's witnesses had lengthy criminal histories and/or pending cases.
Acknowledging that the Thomas statements put the petitioner in the Factory at the time of the shooting, that a degree of bias could be brought out given Ms. Thomas' relationship with the petitioner, and that the change contained in the second statement might prove somewhat harmful to the defense and to the witness' credibility, Attorney Hutchinson nevertheless felt the Thomas testimony, and/or the statements, would have been useful at the trial and in the habeas. She suggested the statements likely could have been admitted as past recollection recorded and, given any inconsistency, under 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). As Mr. Riccio was asserting a defense of mistaken identity, and concentrating on discrediting the testimony of the State's identifying witnesses as to exactly where the petitioner was, and what he was doing, at the time shots were fired, Attorney Hutchinson felt the Thomas statements would offer an " alternative theory" (or version) as to whether he (petitioner) was engaged in an altercation with the victim and/or was the actual shooter. If a defense attorney is of a view that a particular witness' testimony is of potential benefit to the defense, that attorney then must undertake to determine if there is anything about that testimony, or the witness, that could prove harmful to the defense--or as the witness put it, " come back and bite us in the butt." The criminal defense attorney has to weigh any potential benefit from the testimony against harm or potential damage to the defense case.
Petitioner's presence at the Factory at the time of the shooting does not appear to have been in dispute.
On cross examination, however, Attorney Hutchinson acknowledged that the more preferable person to assess the trial value and usefulness of the Thomas statement(s) was trial counsel, Mr. Riccio, who was present at the taking of the statement, and was able, thereby, to first hand evaluate Ms. Thomas. As far as the change from the original statement, it might prove problematical depending on the degree of change and its materiality. With reference to being hit, the attorney did not think that would be problematical since there was no embellishment of what was meant by " hit." But Attorney Hutchinson agreed that if Ms. Thomas, in her second statement, denied ever telling the police that he said he was hit, that contradiction could be potentially problematical. Other potential problems: bias (relationship with petitioner, spent that night together at Ms. Thomas' home) and sudden amnesia (can't remember any details of the event, who brought them to the police station to give the statement, who was present, ) could affect credibility.
With regard to the prior habeas proceeding, Attorney Hutchinson opined that for habeas counsel, it would be a similar process.
Regarding the Brady claim, Ms. Hutchinson iterated the basic rule: if the State has information that is exculpatory, or may be exculpatory, or leads to exculpatory information, it is required to produce or disclose that information. She testified that the transcript of the second criminal trial reflects Gary Browning's testimony that he faced up to twenty years on a pending case (robbery and larceny), that no offer had been made, and that he could be facing a violation of probation. At the prior habeas trial, Browning testified, he was sentenced on the pending robbery and larceny charges after he testified at the petitioner's second criminal trial. At the time of his sentencing, Browning had been in jail for eighteen months. It is Attorney Hutchinson's opinion that a reasonably competent habeas attorney would have filed a motion for a permission to file a late amendment to the habeas petition alleging as an additional ground non-disclosed receipt of consideration, by a State's witness, in return for testimony at the petitioner's criminal trial. That, Attorney Hutchinson states, would have enabled prompt litigation of the Brady claim. In Attorney Hutchinson's view, a reasonably competent habeas attorney, at least, would have filed a motion to amend the civil pleading.
As to the claim that the prosecutor failed to disclose potentially exculpatory evidence to the defense (that Browning received a sentence offer in exchange for his testimony), Attorney Hutchinson acknowledged that Browning testified at the first habeas that an offer would not be forthcoming until after he testified in the criminal trial. Attorney Day could have sought to conform the pleadings to the proof, according to Attorney Hutchinson, and thereby more effectively litigated the Brady claims. On cross examination, Attorney Hutchinson acknowledged that Browning merely hoped for a sentence " deal" to be made after his testimony; he did not actually have a sentence agreement in place at the time he testified at the petitioner's second criminal trial.
However, in full recognition of requirements for disclosure of consideration extended a witness in return for testimony or cooperation, Attorney Hutchinson maintained the view that given the testimony of the witness, Gary Browning, at the 2010 habeas trial that he lied at the petitioner's criminal trial, seeking consideration on pending charges, an amendment of the petition adding, and thereafter pursuing, a further ground would have been appropriate.
Gary Browning testified at the 2004 criminal jury trial that he was at the Factory and saw muzzle flashes, but did not see the petitioner firing a gun. At the 2010 habeas trial, he testified that he lied about seeing the petitioner shoot Dean and seeing muzzle flashes. This testimony at the habeas proceeding was contrary to his 1999 statement to the police and prior trial testimony. When asked why he lied at the trial of the petitioner, he stated: " I had a case pending for robbery and I was just . . . trying to get out of jail . . . I was hoping they would throw my case out for testimony at his trial." When asked if he ever received any consideration for his testimony, Browning stated, " Well, after the trial was over, they gave me a deal. I got eighteen months."
Senior Assistant State's Attorney Satti testified that he represented the State in both of the petitioner's two criminal trials. He stated that Gary Browning was a State's witness and had a robbery and larceny case pending in the Fairfield Judicial District. He testified that he was not involved in Browning's robbery and larceny case .and did not believe he was involved in any of Gary Browning's cases at all. The Assistant State's Attorney testified that, to his knowledge, at no time before or after the criminal trials was Browning promised or given anything in exchange for his testimony. He stated he did not know who handled the Browning case(s), did not know the disposition of the case(s), and does not know if an offer was ever made in those case(s). When asked if there would be any truth to Browning's testimony that he had received consideration, the witness responded " I would have no way of knowing." Further, " [t]here was no deal offer to Gary Browning. I did not withhold it." Attorney Satti noted on cross examination that Browning's testimony during the petitioner's criminal trial was not particularly helpful to the State, since the State had to use a prior statement pursuant to State v. Whelan, supra .
IV.
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, 153, 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, 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.
V.
Alleged Ineffective Assistance as to Trial Counsel (Count One)
The amended petition first alleges that trial counsel, Attorney Riccio, was ineffective because he failed to subpoena and call Ms. Thomas as a witness. The petitioner further alleges, in support of this alleged deficient performance, that he " urged Attorney Riccio to subpoena and call Cherise Thomas to testify as a witness, indicating that [she] was with Petitioner before, during, and after the incident involving the shooting of John Fred Dean." Amended Petition, p. 9. The petitioner also alleges that he " specifically requested trial counsel to investigate Cherise Thomas, her potential eyewitness testimony, and calling [sic] [her] as a witness to testify on the stand, but trial counsel failed to do this."
As stated, neither the petitioner nor trial counsel, Attorney Riccio, testified before this court. There is no evidence or proof whatsoever that the petitioner ever requested or urged the attorney to further investigate and/or call (or subpoena) Ms. Thomas to testify.
The respondent's return raises certain defenses to the claim in count one: first, that the petitioner is barred by laches from now litigating a claim of ineffectiveness by Attorney Riccio; second, that the doctrine of successive petitions bars the petitioner from litigating a claim against trial defense counsel; and third, that the petitioner has procedurally defaulted, has already litigated a claim of ineffective assistance by Attorney Riccio, and now cannot show good cause and prejudice for not raising this claim in the first habeas matter. The petitioner's reply to the return essentially denies that laches bars the petitioner's claim, and that a claim of ineffective assistance of prior habeas counsel is sufficient to rebut the defenses of laches, successive petition, and procedural default.
Although the return does not explicitly assert res judicata as a defense, a review of the asserted defenses shows that the respondent premises the defenses of laches and successive petition on the assertion that the petitioner previously litigated the identical legal claim of ineffective assistance by Attorney Riccio. A reasonable interpretation of the defenses in the return leads this court to the conclusion that the respondent substantively asserts res judicata as a basis for dismissal of count one. See, e.g., Travelers Ins. Co. v. Namerow, 261 Conn. 784, 795, 807 A.2d 467 (2002) (" [T]he interpretation of pleadings is always a question of law for the court . . . The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . [A pleading] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties"); Broadnax v. New Haven, 270 Conn. 133, 174, 851 A.2d 1113 (2004) (" Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension").
A.
The claim in count one, according to the respondent, is a claim that could have been raised in the petitioner's first habeas petition. The respondent further asserts that Attorney Riccio deceased approximately two years after testifying in 2010 in the first habeas trial and two years prior to the filing of the instant matter in 2014. The lengthy delay since the petitioner's conviction in 2004, combined with the death of trial defense counsel subsequent to the adjudication of the first habeas petition, now places the respondent at a significant disadvantage in defending against allegations of deficient performance by trial counsel. Return, p. 2. The petitioner previously raised and litigated a claim of ineffective assistance by Attorney Riccio in his prior habeas corpus petition, and the respondent now seeks dismissal of count one because the petitioner has previously litigated the identical (i.e., successive) claim. See, e.g., Carter v. Commissioner of Correction, 109 Conn.App. 300, 305-06, 950 A.2d 619 (2008) (" [A] petitioner may bring successive petitions on the same legal grounds if the petitions seek different relief . . . But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition").
" 'Our courts have repeatedly applied the doctrine of res judicata to claims duplicated in successive habeas petitions filed by the same petitioner . . . Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights . . . the application of the doctrine of res judicata . . . [is limited] to claims that actually have been raised and litigated in an earlier proceeding.' (Citation omitted; internal quotation marks omitted.) Moody v. Commissioner of Correction, 127 Conn.App. 293, 297-98, 14 A.3d 408, cert. denied, 300 Conn. 943, 17 A.3d 478 (2011). " 'The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made . . . The doctrine . . . applies to criminal as well as civil proceedings and to state habeas corpus proceedings . . . However, [u]nique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner . . . Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights . . . the application of the doctrine of res judicata . . . [is limited] to claims that actually have been raised and litigated in an earlier proceeding.' (Emphasis added; internal quotation marks omitted.) Diaz v. Comm'r of Corr., 125 Conn.App. 57, 63-64, 6 A.3d 213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150 (2011). Thus, an ineffective assistance of counsel claim is precluded if the petitioner previously raised such a claim as to the same attorney. Johnson v. Commissioner of Correction, 288 Conn. 53, 67, 951 A.2d 520 (2008) (" second habeas court properly concluded that the judgment rendered by the first habeas court constituted a judgment on the merits on the issue of ineffective assistance of counsel at the petitioner's murder trial" and " properly found that the petitioner had an opportunity to litigate fully the effectiveness of his trial counsel in his first habeas proceeding"), citing Brown v. Commissioner of Correction, 44 Conn.App. 746, 751-52, 692 A.2d 1285 (1997) (rejecting petitioner's claim of ineffective assistance of counsel as barred under doctrine of res judicata where petitioner, after having fully litigated effectiveness of counsel in petition for new trial, made additional ineffective assistance claim as to same attorney before habeas court but cited different factual grounds in support thereof). This is true even . . . if the new claim is premised on purportedly different underlying facts. Johnson v. Commissioner of Correction, 168 Conn.App. 294, 307, 145 A.3d 416, cert. denied, 323 Conn. 937, 151 A.3d 385 (2016), citing Brown v. Commissioner of Correction, supra, 44 Conn.App. 751-52.
" To determine whether two claims are the same for purposes of res judicata, [courts must] compare the pleadings and judgment in the first action with the complaint in the subsequent action." (Internal quotation marks omitted.) Henderson v. Commissioner of Correction, 129 Conn.App. 188, 200, 19 A.3d 705, cert. denied, 303 Conn. 901, 31 A.3d 1177 (2011).
The first count of the amended petition alleges ineffective assistance by Attorney Riccio. As relief, the petitioner requests that the habeas court vacate his underlying criminal judgment and conviction, remand the case to the trial court for a new trial on the merits, and order such relief as law and justice may require. A review of the operative petition (i.e., third amended petition dated November 10, 2010) in the first habeas shows that the petitioner there raised a claim of ineffective assistance by trial counsel premised on approximately two dozen alleged failures. As relief, the petitioner sought to have the habeas court vacate the judgment in the underlying criminal case, direct the respondent to release the petitioner from confinement, and order whatever other relief that law and justice require.
It seems apparent from comparing the third amended petition from the first habeas and the first count of the present amended petition that the petitioner has previously raised and litigated a claim of ineffective assistance of trial counsel and sought the same relief. Consequently, res judicata operates as an absolute bar to the petitioner again litigating the identical legal claim and seeking the identical relief. Diaz v. Comm'r of Corr., supra, 125 Conn.App. 63-64. The claim in count one must be dismissed on the grounds of res judicata and that the claim is successive.
B.
Even if not barred by res judicata, the court concludes that the petitioner's claim in count one is barred by laches. The respondent avers that the petitioner again asserts deficient performance by Attorney Riccio for failure to present Cherise Thomas's testimony at the criminal trial, in a petition filed approximately two years after his death, and several years after the conviction, which places the respondent at a significant disadvantage. The petitioner previously raised the identical ground in his first habeas corpus petition, but it was abandoned. Now, thirteen years after his conviction and some years after Attorney Riccio's death, the respondent indicates that the petitioner's reassertion of the same claim (ineffective assistance of counsel) places the respondent at a considerable disadvantage in defending against the Thomas claim. The petitioner's reply to the return alleges that ineffective assistance of prior habeas counsel is sufficient to rebut the defense of laches.
" The defense of laches, if proven, bars a plaintiff from seeking equitable relief . . . First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant. (Internal quotation marks omitted.) . . . 'The burden is on the party alleging laches to establish that defense.' Cummings v. Tripp, 204 Conn. 67, 88, 527 A.2d 230 (1987). 'The mere lapse of time does not constitute laches . . . unless it results in prejudice to the [opposing party] . . . as where, for example, the [opposing party] is led to change his position with respect to the matter in question.' (Internal quotation marks omitted.) Fromm v. Fromm, 108 Conn.App. 376, 385-86, 948 A.2d 328 (2008)." (Internal citation and quotation marks omitted.) Caminis v. Troy, 112 Conn.App. 546, 553, 963 A.2d 701 (2009), aff'd on other grounds, 300 Conn. 297, 12 A.3d 984 (2011). The use of laches as a defense to habeas corpus claims is an issue that has not yet been fully addressed and developed on the merits. See, e.g., Dickinson v. Mullaney, 92 Conn.App. 689, 693, 887 A.2d 390 (2005) ( Dickinson I ) (reversing judgment of the habeas court and remanding for further proceedings), reversed, 284 Conn. 673, 677-78, 937 A.2d 667 (2007) (Dickinson II ) (reversing the Appellate Court with direction to affirm the judgment of the habeas court).
The petitioner has the burden of proving both ineffective assistance of prior habeas counsel and ineffective assistance of trial counsel. Cherise Thomas never testified prior to the present habeas trial and it is unknown how her testimony would have differed, if at all, had she testified in any of the prior proceedings. Additionally, Attorney Riccio is strongly presumed to have made all decisions in furtherance of a reasonable trial strategy. The evidentiary void created by Attorney Riccio's unavailability affects both parties: the petitioner is unable to affirmatively prove trial counsel was ineffective, and the respondent can only rely on the strong presumption that counsel was effective and not present direct evidence to affirmatively rebut the allegations.
The delay in bringing the claim now directly against Attorney Riccio is " inexcusable, " especially given that the identical basis for ineffective assistance was alleged in the petitioner's first habeas corpus. There is no evidence from the prior habeas proceeding that directly addresses, furthers, or substantiates, one way or the other, the claim in count one of the present matter. The passage of time, combined with Attorney Riccio's death, prejudices the respondent because the respondent cannot call Attorney Riccio to rebut the allegations or cross examine him.
The court, therefore, concludes that the petitioner's delay in alleging ineffective assistance by Attorney Riccio is " inexcusable, " prejudices the respondent, and is barred by laches; it must be dismissed on that alternative ground.
C.
Even if neither of the aforesaid defenses preclude the petitioner from having the claim in count one decided on the merits, the petitioner has failed to meet his burden of proof and that claim must be denied.
Judging from certain statements on the record, it appears that both counsel in this proceeding acknowledge that Attorney Frank Riccio, Sr., now deceased, was an exceedingly experienced, skilled, and proficient criminal defense attorney. He testified at the prior habeas trial that he practiced in Bridgeport since 1968, the majority of his practice was in the criminal law, and that he had tried thirty-five or forty murder cases. There was also evidence that Attorney Riccio had considerable familiarity with federal criminal practice.
Due to his demise, this court has not had the testimonial benefit of hearing, directly, from Attorney Riccio his strategy in not offering the Thomas statements. However, some relevant information may be gleaned from the criminal trial transcript(s), Mr. Riccio's summation(s), his testimony before the habeas court, and the content of the statements themselves. (Exhibits 16 and A.) As is apparent from the record, the State's case, in terms of the petitioner's actual commission of the crime, rested almost entirely on the testimony of five witnesses: Demetrius Brown, Gary Browning, Corey Williams, Tawana Allen, and Joyel Smith.
Brown gave two statements to the police: one dated October 14, 1997, and the other November 12, 1997. His statements and testimony were essentially as set forth in fn.#3, supra (at the Factory . . . [saw] the petitioner, whom he knew as " Dashieki, " fighting with Dean, taking a gun from his sleeve, and shooting Dean). Browning gave a statement to the police on July 1, 1999 in which he indicated that he had witnessed the December 8, 1996 shooting; that Dean slapped a woman, she went " and got some dude [identified as petitioner] . . . [t]hey started fighting" and Dean was beating him (the petitioner) up and the petitioner shot the victim, Dean. At the 2004 criminal trial, Browning testified that he heard gunshots and saw muzzle flashes near the petitioner's hand, but did not actually see the gun. Williams gave a written statement to the police on November 17, 1997 indicating that the petitioner, shortly after the shooting, told him he had shot Dean. Tawana Allen's statement to the police, dated July 13, 2000, indicated she had seen the petitioner, immediately after the shooting, with a gun holding a person (Jesus, a friend of Dean's) pinned up against the wall; Ms. Allen observed " smoke coming out of the gun." Joyel Smith said in her statement that she saw the petitioner with a gun during the summer preceding the shooting; she described the gun as " a thick silver gun, had a clip and it keeps shooting, like an automatic--I think it was a Smith and Wesson." The petitioner did not testify, but his statement, given to the authorities in Attorney Riccio's presence, was admitted.
According to Williams, the petitioner said his sister was slapped by Dean, he came out to talk to the kid (Dean) about what had happened, there came a point when he thought the kid (Dean) was " reaching, " and that was when the shots were fired.
The State's witnesses connecting the petitioner to the shooting brought to the criminal trials considerable " baggage" in terms of prior criminal histories, inconsistent statements, losses of memory, and recantations. Similarly, certain of the defense witnesses were impeachable, unavailable, and/or not entirely consistent. Numerous prosecution witnesses had given statements, and as Attorney Riccio stated: " we'd been Whelan'd up to our eyebrows . . . I don't know whether there were seven, eight, or nine Whelans used . . . but that's why I say, this is a should be a classroom text in State v. Whelan ." The lawyer further commented: " I've tried a lot of cases, and I've never seen it [ Whelan ] used as much as it was in this particular case." In his summation, Attorney Riccio understandably detailed the major variations between what had been related to the investigating officers and the witnesses' subsequent testimony or diminished recollection. At one point, he advised the jury: " You have to look at whether or not there are any defects in their testimony which render it improbable or, and then you have to evaluate other evidence which is in direct conflict with prior testimony or prior statements. You may in some cases, and that's depending on the way you feel, there is greater credibility in the opposing statements than there were in the preliminary statements." It is a fair assessment that this seasoned criminal lawyer was emphasizing to the jury the several Whelan admissions required to prove the State's theory in the case. An offer and admission of the Thomas statements by the defense would introduce yet another (in the court's view, material) inconsistency, resulting quite likely in another Whelan admission, this time involving a defense witness. Such would render less persuasive a defense argument in summation that the State's witnesses were all over the place, could not remember, and were inconsistent.
State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986). Rule allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross examination. State v. Holbrook, 97 Conn.App. 490, 499 fn.2, 906 A.2d 4 (2006).
Against the aforesaid backdrop are the petitioner's statement in evidence and the Ms. Thomas statements, never offered. The petitioner's statement was given to the Bridgeport police (Sgt. Wargo) on December 9, 1996, after an advisement of rights and with trial counsel, Frank Riccio, present. Respecting the Thomas statements, it must be emphasized, at the outset, that this clearly is not a case where the trial attorney failed to investigate and/or was unaware of a witness' potential testimony. To the contrary, Attorney Riccio, having sat in on Ms. Thomas' first police interview (and as a signatory to her first statement) was acutely aware of Ms. Thomas, and of her version of the Factory shooting.
In pertinent parts, the petitioner's statement read: " I got there [Factory] between about one and two in the morning. Sherese Thomas went there with me. We got there and we had a few drinks. I think I had one drink . . . We danced on and off. We were there about forty-five minutes to an hour and The Factory was closing . . . We were holding hands and began walking toward the door. Then a lot of people started fighting and somebody hit me and knocked me down. People were still fighting. I heard some shots so I stayed down until Sherese pulled my hand." According to his statement, the petitioner did not see who hit him, did not see anyone with a gun, and did not see anyone who was shot. Further on in his statement, the petitioner indicated that he did not have any words or problems with anyone that night, and that he did not know a Fred Dean. The petitioner stated that when Sharise pulled him up he ran out of the club and got into a car and left; they went to her house in PTB. He stated he did not learn someone had been shot until he was told that the detectives were at his grandmother's house looking for him. The petitioner stated he got punched and knocked to the floor, did not have a gun that night, and did not know who shot John Fred Dean. When asked by the police officer how many times he was hit, the petitioner responded: " [o]nce to knock me down and at least once while I was down." Further, that he had not argued with Dean, and did not know who punched him. The petitioner's statement was marked as a full exhibit and read to the jury by Attorney Satti.
On the next day, December 10, 1996, Ms. Thomas gave her first statement to Sgt. Wargo. The statement confirms arriving at the Factory with the petitioner at about one-thirty and states she did not dance with him, but sat in the back on a bench while he walked around, talked to his friends, and danced. She stated: There was a fight when we were going out and I heard gunshots; the gunshots were from inside the club. We were near the door, there were a lot of people, and I did not see who was shooting. I've known [the petitioner] " personally" for about a year, and we knew each other before that; he did not have a gun that night, and I have never seen him with a gun. The petitioner did not have an argument with anyone when he was at the club. We were between the bar and the door, on the way out, [when] someone started shooting and everybody jumped on the floor. It was crowded; we were in the middle of a mob. I was directly behind him. My right hand was across his back and in his left hand. Upon getting outside, " we jumped in the car and left." We went to nay house and stayed the night. " When we got outside the club he [the petitioner] told me he was hit. I didn't see it. He was leading me by the hand."
Ms. Thomas' second statement was given, as stated, to Detective Kirkland on September 17, 1997, approximately nine months after her first statement. It recites: " This statement is supplemental to the statement Cherise Thomas had given on December 9, 1996, taken by Sergeant Paul Wargo in the presence of attorney Frank Riccio." The statement reiterates their going to the Factory together, Ms. Thomas sitting on the benches on the side of the bar, her not observing anything unusual prior to the shots being fired, and her not being aware of the petitioner having been engaged in any argument. She does not remember any fight in the Factory; the petitioner never told her he was involved in the fight inside the club. In the statement, Ms. Thomas says that at the time she heard the shots, which sounded very close, the petitioner was with her shoulder to shoulder; the statement continues: " [w]hen the shooting started people were running trying to get out, A lot of people fell to the floor and a lot of people were pushing their way out . . . In my previous statement, I meant that both of us fell to the floor." Significantly in this second statement, Ms. Thomas changed the " hit" portion of her earlier statement where she had related, as stated: " When we got outside the club he [the petitioner] told me he was hit. I didn't see it." Some nine months later, she told the police: " I don't remember him supposedly being hit." In this second statement, she twice adds that she did not remember the petitioner telling her that he had been " hit."
There is conflicting information in both of Ms. Thomas' statements, and certain inconsistencies between those statements and that of the petitioner. In the first statement, Ms. Thomas says there was a fight and she heard gunshots; in the second statement, " I don't remember [there] being a fight." The Ms. Thomas statements were consistent in reciting that when the shooting began everyone jumped or fell to the floor, and lot of people were pushing their way out-- " both of us fell to the floor." However, the petitioner's statement recites his getting " punched out and knocked to the floor-- not one punch, but at least two. Yet, although according to Ms. Thomas they were walking out " shoulder to shoulder" and holding hands, she does not remember " him supposedly being hit."
As the respondent has observed, another rather curious aspect of the two Ms. Thomas statements concerns their leaving the club " shoulder to shoulder" holding hands. She states her " right hand was across his back and in his left hand." The respondent suggests that such would be likely only if they were exiting the club back to back, which itself would be somewhat odd, and not, it would seem, shoulder to shoulder.
Attorney Riccio was certainly well-aware of the Ms. Thomas statements; as stated, he signed the first as a witness. Nevertheless, he chose not to call her as a witness in either criminal trial. If she had been called and testified, it is most likely the inconsistent content of both statements would have been before the jury, either through Whelan or otherwise. Aside from the inconsistencies referred to above, as well as Ms. Thomas' relationship with the petitioner, the principal difficulty stems from her first stating the petitioner told her he was hit, and then nine months later changing her statement to, " don't remember him supposedly being hit" and does not remember saying in her previous statement the petitioner told me he was hit. The initial statement might be viewed as consistent with the petitioner's claim that he was physically hit after the shots were fired while trying to exit the club. However, the petitioner's statement to Ms. Thomas that he was " hit" might well lend support also to the State position (as related by its witnesses) that the petitioner was engaged in a physical fight with Dean which precipitated the shooting. Additionally, the intentional change as set forth in the September 1997 statement (" don't remember him supposedly being hit" and don't remember being told he had been hit) rather dispels the petitioner's version of the exit from the club, and, more importantly, might be interpreted as purposeful change made in reaction to the State's contention that the petitioner was fighting with Dean, was being physically struck, losing the fight, all of which, as per the State's witnesses, led to the shooting of Dean by the petitioner.
Attorney Riccio heard and observed Ms. Thomas at the time of her statement(s) to the authorities, and had her two seemingly inconsistent statements. He was in a unique position to evaluate her as a potential witness and weigh the risks of putting her on, or not putting her on. The lawyer's assessment would have involved, quite likely, consideration of Ms. Thomas' not having a criminal record balanced against the inconsistencies referred to above, her relationship to the petitioner, the undesirability of a Whelan as part of the defense, and the possible supportive effect to the State's theory of the case (as propounded by witnesses highly vulnerable to impeachment) if the second statement was viewed by the jury as an intentional redaction/removal of the former " been hit" language. Attorney Riccio, a skilled and proficient criminal lawyer, would have had to have made, and inferentially did make, a presumptively prudential decision on whether to use the additional Thomas evidence or present the case to the jury essentially relying on exhaustive impeachment evidence, some evidence relating to firearms and residue, and the petitioner's December 9, 1996 statement. Doing so, under these circumstances, did not constitute ineffective or inadequate representation. Regardless of the outcome, this would be a tactical, strategy decision which should not now be second guessed.
Finally, Ms. Thomas's testimony in the present matter is of no assistance to the petitioner's claims. It is entirely speculative how she would have testified in 2004. Had Thomas testified consistent with her statements, it is unknown how that jury would have viewed her testimony, nor is it known to what extent it would have been credited by the jury. Had she testified inconsistently with one of her statements, whichever statement was inconsistent could have been used pursuant to Whelan to undermine her credibility.
Based upon the foregoing, that Count One claim must fail because the petitioner cannot meet his burden of proving that Attorney Riccio rendered deficient performance and that he was prejudiced thereby.
VI.
Brady Claim (Count Two)
Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or punishment, irrespective of the good faith or the bad faith of the prosecution. Brady v. Maryland, supra, 373 U.S. at 87-88. Following Brady, it has been held that the duty to disclose is applicable even though there has been no request by the accused. United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). The duty encompasses impeachment evidence as well as exculpatory evidence. United States v. Bagley, 473 U.S. 667, 674-76, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 155, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); cf. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). " Because a plea agreement is likely to bear on the motivation of a witness who has agreed to testify for the state, such agreements are potential impeachment evidence that the state must disclose." Adams v. Commissioner of Correction, 309 Conn. 359, 370, 71 A.3d 512 (2013). Such evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); United States v. Bagley, supra, 473 U.S. 682. " A 'reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Id.
On July 1, 1999, Gary Browning gave a written statement to Bridgeport Detective McBride stating that he saw the petitioner shoot Fred Dean. The statement recites his being shown a photo array and picking out the petitioner as the shooter. As to the incident, Browning indicated " . . . some girls started fighting and then [Dean] and some girl started to fight . . . [Dean] slapped her and she went and got some dude . . . They started fighting [Dean] and the dude [petitioner] and [Dean] was beating him beating him up and then the dude [petitioner] shot him." The statement further recites: " This guy named K-Jax was with [Dean] and two light skinned dudes were with the kid [petitioner] that shot him . . . The two light skinned dudes were fighting with K-Jax while [Dean] was fighting with the guy that shot him."
In his statement, Browning indicated that at the time of making the above observations, he " was like a few feet away from them." The statement adds, " I couldn't see the gun because it was kinda dark with those funny lights but I did see the flame from the gun and the flame came from his hand and I heard the gunshots, blam, blam." Browning told Detective McBride he heard " about four gunshots." When asked if he was sure the petitioner was the person he saw shoot Dean, he told the detective, " Yes, I'm sure."
The hearing in probable cause was held November 16, 2000; Gary Brown's testimony was substantially consistent with the July 1, 1999 statement. There was cross examination regarding a pending, unrelated murder case and whether there was any offer by the police regarding help on that case in return for his statement. Browning testified that he did not want, or get, any assistance from the authorities in that case and was eventually found not guilty after a trial. Prior to Attorney Riccio's cross examination, Attorney Satti put on the record that he had furnished the defense with Browning's statement, his criminal record, and exculpatory information in the State's file.
The first criminal trial commenced on February 10, 2003. Prior to the testimony of Gary Browning, Attorney Satti stated on the record: " . . . as part of my ongoing duty of disclosure, I've disclosed to Mr. Riccio the most updated criminal record . . . [for Browning] . . . including the fact that Mr. Browning has a pending case that was transferred between Part B and he is to be arraigned sometime at the end of this month in Part A and the Bridgeport record which shows that arrest was provided to Mr. Riccio. The state police doesn't show that yet so I've indicated he has a criminal record in the past [and] pending charges so that will be available for cross examination for Mr. Riccio . . ."
At the first criminal trial, Browning testified he was incarcerated at the Bridgeport Correctional Center. He testified to a felony conviction on May 8, 2001, and having received a suspended sentence and probation. He also had a felony conviction on December 18, 2001 where he received a jail sentence. In addition to the two felony convictions, and serving a sentence, he had another charge pending, apparently to be transferred to Part A.
In his 2003 trial testimony, Browning acknowledged telling Detective McBride most of the information contained in the July 1, 1999 statement. He said there was a fight, and that it involved Dean, whom he knew as Freddy Fred, another dude (K-jax) he was with, and three other guys. " When they was fightin' people was runnin' out and then the gunshots." Substantially deviating from his 1999 statement, Browning then testified: " I just seen the fight and then we heard gunshots. We stayed but we ain't really seen, like the--I didn't really, like, see the shooter. I was only sayin' that this guy was the shooter because, you know what I'm sayin, ' like hearsay 'cus we was watchin' the fight." Further: " I never really seen him shoot nobody." He admitted looking at the photo array prepared by Detective McBride, circling the petitioner's photo, and telling the detective he was sure the petitioner was the shooter. Thus, the July 1, 1999 statement was admitted into evidence under Whelan .
The second criminal trial commenced May 4, 2004. Gary Browning testified he was currently incarcerated at the Bridgeport Correctional Center as a result of a January 2003 arrest on charges of larceny and robbery; he indicated those charges were pending in Bridgeport and that his lawyer was present in the courtroom. He indicated that his maximum exposure on the pending case(s) was twenty years. Browning testified that no offers had been made " in reference to a resolution" of those matters. Also, as a result of a December 2001 conviction he was on probation and a violation apparently had been filed.
Gary Browning testified that he was at the Factory with " his boy" Carl on December 7, 1996 and into the morning hours of December 8. His aunt (the bartender) and other family members were also there. Later in the evening he saw the fight in which Freddie Fred (Dean), K-jax, petitioner, and two other guys were involved. The witness knew the petitioner by the name " Dashieke." They were all fighting and throwing punches. More specifically, Dean was fighting with the petitioner. Dean was winning the fight over the petitioner. We were watching the fight and no one was blocking our view. While they were still watching, Freddie Fred got shot. Browning testified he heard gun shots and saw one or two muzzle flashes. He testified that at the time he saw the muzzle flashes the petitioner was standing next to Dean. After hearing the gunshots and seeing the muzzle flashes, he observed Dean " laid out." Browning said he did not see a gun in the petitioner's hand, and did not see him firing a gun. He stated that after the gunfire he ran " out of the establishment" running around the body and through the door. With respect to what he observed, Browning stated he was about ten feet away, or not even, when he saw muzzle flashes in the petitioner's hands. Again, the July 1, 1999 statement was admitted into evidence under Whelan .
During the cross examination in 2004, Browning was (as during the probable cause hearing) questioned regarding a pending, unrelated attempted murder case and whether there was any offer by the police regarding help on that case in return for his 1999 statement. Browning testified that Detective McBride said, when he first came to the witness' house, " I know you have an attempted murder case pending . . . if you give us some help, we can give you some help." Browning again stated he did not get any assistance from the authorities in that case and was eventually found not guilty after a trial.
Browning was cross examined extensively about what he meant when he stated in the first criminal trial " I was saying this guy was the shooter because . . . like, hearsay because we were watching the fight." When asked if he meant someone told him what happened and who supposedly did it, he responded: " I just didn't want to be involved . . . no more. I was just trying to get out of it." After being told that he had taken an oath to tell the truth and, therefore, his former testimony at the 2003 trial was perjurious, Browning stated: " I'm telling you I ain't want to be involved because I ain't want to get myself in trouble on the street." He admitted to lying at the first (2003) criminal trial.
At the previous habeas trial (2010), Gary Browning was called as a petitioner's witness. He testified that at petitioner's 2004 criminal trial his identification of Holbrook as the shooter was false--untruthful. He stated that he was at the Factory on the night of the shooting (12/8/96), Freddy Fred was shot, but he did not see who shot him. More specifically, Browning testified he did not see the petitioner shoot Dean. He said he lied at the 2004 criminal trial " [b]ecause I had a case pending for robbery and I was just I was being stupid, trying to get out of jail." When asked if he was hoping to achieve anything by lying, he stated " I was hoping that they would throw my case for testimony at his trial." As to receiving any consideration, Browning said, " [w]ell after the trial was over they gave me a deal. I got eighteen months."
The first habeas court's memorandum of decision addressed Mr. Browning's representation that he lied in its discussion of the actual innocence claim, as follows:
. . . At the petitioner's 2004 trial, during cross examination, Browning admitted that the oath to tell the truth means nothing to him and that he will lie to protect himself. His testimony regarding the shooting has been all over the place. First, in his 1999 police statement, he states that he saw the petitioner shoot Dean. Specifically, he states: " I couldn't see the gun because it was kinda dark with those funny lights but I did see the flame from the gun and the flame came from his hand and I heard the gunshots, blam, blam." At the petitioner's 2003 trial, Browning testified that he really did not see the shooter and that he identified the petitioner as the shooter based on hearsay. At the petitioner's 2004 trial, he testified that he saw muzzle flashes but did not see the petitioner firing a gun. He further testified at that trial that he testified that he did not really see the shooter at the 2003 trial because he was scared and did not want to be involved anymore. Finally, at the habeas trial, he is attempting to testify that he lied about everything. Most notably, that he did not see who actually shot Dean and that he did not see any muzzle flashes. His habeas testimony is not credible, especially in light of the above.Petitioner's Exhibit 15, pgs. 14-15.
The first habeas court did not find Browning to be a credible witness. Browning did not testify in the present matter. This court cannot assess credibility by comparing and contrasting the various transcripts of prior proceedings. However, this court did receive credible evidence on the Brady claim from Senior Assistant State's Attorney Satti.
" Our Supreme Court has recognized that evidence that merely suggests an informal understanding between the state and a state's witness may constitute impeachment evidence for purposes of Brady. State v. Floyd, 253 Conn. 700, 740, 756 A.2d 799 (2000). Such evidence is by no means limited to the existence of plea agreements. 'Any . . . understanding or agreement between any state's witness and the state police or the state's attorney clearly falls within the ambit of Brady principles . . . An unexpressed intention by the state not to prosecute a witness does not . . . 'The question of whether there existed an agreement between [a witness] and the state is a question of fact . . .'" Diaz v. Comm'r of Corr., 174 Conn.App. 776, 798 (July 18, 2017).
Here, the petitioner has failed to present any credible evidence that there was an actual or implied agreement between the State and Gary Browning that the State failed to disclose. To the contrary, Assistant State's Attorney Satti testified, credibly, that there was no agreement with Gary Browing and, therefore, nothing to disclose. Consequently, there cannot be a Brady violation. The claim in count two is denied.
VII.
Alleged Ineffective Assistance as to Prior Habeas Counsel (Count Three)
The petitioner predicates his claim of ineffectiveness of habeas counsel on his failure to call Cherise Thomas as a witness, and, failure to press the Brady claim. As stated, the Ms. Thomas claim was one of many included in the petition filed by Attorney Day, while the Brady claim was not so listed. Mr. Day testified candidly and credibly that it was his practice, upon reviewing the entire record, to list in the petition filings all of the claims he initially viewed as possibly viable (here, some twenty-seven) and then, as the case developed, and upon further investigation, review, and analysis, determine which allegations were preferably to be litigated. Although he has no specific recollection, the attorney stated his not pressing or briefing the Ms. Thomas claim would have been in line with his usual procedure of ultimately identifying from the list, and then proceeding on, the stronger claims those he considered viable.
A fair assessment of Attorney's Day's testimony is that he included, in an abundance of caution, all twenty-seven claims which initially he felt could have possible merit. Upon further analysis, he ended up focusing on six of the listed grounds, four of which alleged deficient representation by trial counsel, Attorney Frank Riccio. Those four asserted grounds were: failure to properly and adequately investigate the whereabouts (in California or at the Factory) of Demetrius Brown (who testified as an eyewitness to the crime) on December 8, 1996; failure to adequately cross examine, impeach and otherwise challenge the testimony of Brown; failure to effectively cross examine Gary Browning (also an eyewitness); and failure to adequately cross examine, impeach and otherwise challenge the testimony of Tawana Allen (witness who observed petitioner with the " smoking gun") and Joyelle Smith (saw the petitioner during the past summer with a purportedly similar firearm). The two remaining claims made and pressed under the prior petition were ineffective assistance of appellate counsel (double jeopardy claim premised on penalty enhancement under General Statutes Section 53-202k) and actual innocence based on habeas testimony of Gary Browning that all of his previous versions of what he observed at the Factory on December 8, 1996 were untrue.
It is the court's view that Attorney Day's procedure of exercising professional judgment in selecting which grounds to proceed on in requesting habeas relief does not, of itself, constitute deficient performance. This court certainly respects Attorney Hutchinson's position that considering the nature of a habeas proceeding, a better practice would be to present substantially all claims for consideration by the habeas court; however, Attorney's Hutchinson acknowledged that not all attorneys take that position.
As indicated, the reasoned opinion of petitioner's respected expert notwithstanding, the court is unable to conclude that Attorney Day's winnowing down from the long list of claims initially thought to be possibly viable, and thereby not pressing the Ms. Thomas claim, constituted deficient professional representation. Even if professional inadequacy on the part of habeas counsel were found, which it is not, the court would be unable to find the necessary prejudice; that is, based on the previous analysis of trial counsel's tactical decision regarding the Thomas statements, the court is unable to find a reasonable probability that the result of the habeas trial would be a reversal of the conviction and a new trial.
VIII.
The court has reviewed the provided record of prior proceedings, in particular transcripts on the flash drive. (Petitioner's Exhibit 1, 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 second criminal trial and first habeas.
The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent.
It is so ordered.