Opinion
TSRCV134005405
11-26-2019
Marquis Jones (Inmate #311844) v. Commissioner of Corrections
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Newson, John M., J.
MEMORANDUM OF DECISION
Hon. John M. Newson, J.
I. Procedural History
According to the allegations, the petitioner was the defendant in a matter pending in the Fairfield Judicial District under Docket No. CR08-0223569-T, where he was charged with Murder, in violation of General Statutes § 53a-54a, and Felony Murder, in violation of General Statutes § 53a-54c, relating to the death of one Horace Cheatam on December 27, 2002. At all times relevant to the claims in this petition, he was represented before the criminal court by Attorney Jeffrey Beck. From the summary provided by the Appellate Court, the jury could have reasonably found the following facts beyond a reasonable doubt:
On the evening of December 26, 2002, the eighteen year old victim, accompanied by his cousin, Sam Moore, attended a party at a club in Bridgeport. The defendant was at the club at the same time as the victim and Moore. After leaving the club, the victim and Moore went to a nearby restaurant. The defendant, who was armed with a gun, arrived at the same restaurant at approximately 1 a.m. While there, the defendant learned that the victim and Moore were interested in purchasing marijuana. The defendant told an acquaintance, Gary Browning, that the victim and Moore had money and that he wanted to rob them. Browning arranged to sell marijuana to the victim and led him to a nearby backyard to complete the sale. Thereafter, the defendant approached the victim from behind and stated: "You know what time it is, run that shit." As Browning walked away from the victim, the defendant shot the victim in the back of the head and took money and drugs from him. The gunshot caused the victim’s death. The victim’s body was found on the snow coated ground the next morning.State v. Jones, 135 Conn.App. 788, 791, 44 A.3d 848, cert. denied, 305 Conn. 925, 47 A.3d 885 (2012). The matter was tried to a jury, who found the petitioner guilty of the Felony Murder charge on March 29, 2010. On May 28, 2010, the trial court imposed a sentence of forty (40) years to serve. The petitioner appealed his conviction, which was affirmed. Id.
The petitioner commenced the present action on May 2, 2013. The Revised Third Amended Petition for Writ of Habeas Corpus dated May 10, 2019, alleges ineffective assistance against the petitioner’s former trial counsel in count one, and violation of due process based on the State’s alleged failure to disclose certain exculpatory evidence in counts two and three. The matter was tried before the Court on various dates from August 27, 2018, through June 2, 2019, after which the parties were given the opportunity to file post-trial briefs. Further procedural and factual background will be discussed as necessary throughout the remainder of this decision.
II. Law and Discussion
"The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id., 688. "[T]he performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances." Id. "Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id., 689. "Thus, a court ... must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. [The petitioner] must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance ... [T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id., 690.
Under the second prong of the test, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id., 691. "[A]ctual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." Id., 693. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. "The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., 694. "An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like." Id., 695. The court "must consider the totality of the evidence before the judge or jury." Id. "In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner’s failure to prove either is fatal to a habeas petition." (Internal quotation marks omitted.) Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).
Ineffective Assistance of Trial Counsel
The petitioner first claims that Attorney Beck failed to "conduct a timely and thorough investigation." The petitioner has failed to support his claim with any credible, previously undiscovered evidence or witnesses that could have been uncovered if trial counsel had conducted a more thorough investigation. "[T]he failure of defense counsel to call a potential defense witness [or to find certain evidence] does not constitute ineffective assistance unless there is some showing that the testimony [or evidence] would have been helpful in establishing the asserted defense." (Citation omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 681, 51 A.3d 948 (2012). Therefore, the first claim fails. Nieves v. Commissioner of Correction, 51 Conn.App. 615, 623, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999) (for the notion that failure to present evidence or testimony is fatal to a petitioner’s claim).
The petitioner’s next claim is that Attorney Beck denied him the right to testify at his own criminal trial, despite the fact that he wanted to testify. Attorney Beck had a vague memory of discussing the possibility of testifying with the petitioner, and that he likely advised him not to testify, but no specific memory of any intense argument with the petitioner. The petitioner claims that he got extremely upset, because he was insisting on testifying, which resulted in the Court granting a brief recess for the parties to discuss the matter. During that recess, he insists he reiterated his desire to testify, but that counsel just went back out on the record and rested the defense case without calling him. In order to accept the petitioner’s claim, this Court would need to believe that he insisted on testifying, that it caused the trial court to call a recess specifically so he and Attorney Beck could discuss the issue, but that, despite the petitioner still insisting that he be allowed to exercise his constitutional right to testify, counsel simply rested, and that the trial court allowed this to occur. This, the Court simply did not find this credible or probable. Therefore, this claim fails.
A transcript of this portion of the hearing likely could have offered some clarification about exactly what happened. Strangely, although submitted as an ID exhibit (Petitioner’s Exhibit #13), the transcript from the underlying criminal trial was never offered as a full exhibit at the habeas trial.
The petitioner next claims that Attorney Beck failed to present the testimony of Samuel Moore as contradictory to that of Gary Browning. Mr. Browning was not called to testify at the habeas trial. "The failure of the petitioner to offer evidence as to what [a witness] would have testified is fatal to his claim." Nieves v. Commissioner of Correction, 51 Conn.App. 615, 623, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999). Therefore, this claim also fails.
Mr. Browning, the co-defendant, ultimately agreed to cooperate and testified for the State at the petitioner’s trial.
Next, the petitioner claims that Attorney Beck failed to adequately present a third-party culpability claim that a Rafial Ferrer was the perpetrator. Some additional background information is necessary to understand this claim. The defendant commenced jury selection for his trial on or about February 16, 2010. Approximately three months earlier, November 21, 2009, an offender hit notification was generated by the State Forensic Laboratory (Exhibit #17) indicating that a previously unidentified sample of blood taken off of the seat of the victim’s car had generated a preliminary match to a Rafial Ferrer in a State or National DNA database. The notice further indicated that confirmatory testing would be done upon the submission of a known biological sample from the identified offender, meaning Mr. Ferrer. There does not appear to be any dispute that this notice was delivered to the Office of the State’s Attorney and to the Bridgeport Police Department. There also does not appear to be any dispute that this notice was not disclosed to Attorney Beck prior to trial.
There is no evidence that Attorney Beck ever received a copy of the hit notification form or that he was aware of its existence. His unchallenged testimony was that the habeas trial was the first time he became aware of the form. Counsel cannot inadequately use information that he was never in possession of. There is also nothing in the record to support a claim that Attorney Beck should have known about the hit notification form or the information contained therein. This claim fails, because there is no evidence that Attorney Beck’s performance was deficient. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
In fact, the petitioner raises a separate claim in Count Three that his due process rights were violated because the State failed to turn the hit notification over as part of discovery.
The petitioner’s next two claims are that Attorney Beck failed to adequately cross examine Gary Browning about the condition of Mr. Cheatam’s body at the scene of the crime and that he also failed to adequately cross examine Mr. Browning about perjured testimony he allegedly gave in other cases. Again, however, the petitioner failed to call Mr. Browning as a witness during the habeas trial to offer the additional information he claims counsel should have elicited through cross examination. This is fatal to both claims. Nieves v. Commissioner of Correction, supra, 51 Conn.App. 623.
The petitioner next asserts that Attorney Beck failed to have an independent expert examine the forensic evidence from the crime scene. Although the petitioner did present the testimony of Peter Valentin as an expert in crime scene forensic investigation, his testimony was neither compelling nor enlightening. He was not present at the scene of the crime and did not examine any of the actual physical evidence from the scene. He also did not speak directly to anyone who was present at the scene. In fact, from best the Court can determine, he only reviewed photographs and reports from the crime scene, from which he generated opinions of possible alternative meanings to the evidence or alternative avenues of investigation that he would have advised defense counsel to pursue. What was wholly lacking, however, were any concrete scientific or factual findings that undermined the jury’s determination of guilt in this case. As such, this claim also fails, because the petitioner has failed to establish prejudice. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
The petitioner’s next claim is that Attorney Beck failed to adequately cross examine the State’s witnesses regarding the identification of shoe prints left in the snow near the victim’s body as coming from Converse sneakers. Again, some additional background information is necessary to understand this claim. According to the evidence, there was snow on the ground at the time Cheatam was killed, and a print apparently identified as being made by a Converse shoe was located nearby. There does not appear to be any dispute that this print came from Browning, the co-defendant. The substance of the petitioner’s claim is that there was only a single set of footprints from Converse sneakers near Cheatam’s body, so there could only have been a single robber or shooter, which had to be Browning. Said another way, the petitioner asserts that the identification of only Browning’s shoe print near the body should eliminate him as a suspect. The petitioner’s view of the evidence, however, is too simplistic.
Reviewing the crime scene photographs, there are footprints and tracks literally everywhere one can see in the frame of the photographs. While some of these may be legitimately attributable to law enforcement officers who came to the scene, the plaintiff has provided no credible way to differentiate between those and prints associated with the crime. To claim that Mr. Browning’s footprint is the "only" footprint near the crime scene is not accurate. It is more accurate to say that the Converse print was the only identifiable print found near the victim’s body, or that it was the only print that could be linked conclusively to any of the people known to have been at the crime scene. Further, the petitioner failed to present any evidence establishing how the inclusion of Browning’s footprint near the victim’s body, an admitted co-conspirator, arguably excludes the petitioner. The petitioner, again, has failed to prove that he was prejudiced. Hall v. Commissioner of Correction, supra .
E.g., State’s Exhibit #8, which is included in Petitioner’s Exhibit #15, Certified Copy of Trial Court File.
The petitioner’s next claim is that Attorney Beck failed to adequately "pursue the issue" of the condition of Mr. Cheatam’s body and what happened to it after he was shot. Specifically, the petitioner claims that crime scene evidence supports the fact that Mr. Cheatam’s body may have been moved a few feet after he had been shot and fell to the ground, that crime scene photographs show that his pants had been pulled down below his buttocks and that his coat hat been removed. Even if true the petitioner has failed to present any evidence from which a rational and reasonable person could find that this information had any impact whatsoever on the outcome of his trial or whether he and Browning conspired to rob the victim. Again, this claim fails, because the petitioner is unable to prove that he suffered any prejudice. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
Actually, if one believes that Browning and the petitioner’s intent was to rob Cheatam of drug money during a drug deal, the fact that Cheatam’s clothing appears to have been gone through after he was incapacitated makes complete sense.
The petitioner’s final claim of ineffectiveness against Attorney Beck is that he failed to follow up on information regarding blood stains on the seat of the victim’s vehicle that were seized by the police at the time of the crime. As discussed above, shortly before the trial, the State Forensic Laboratory received a DNA hit notification that one of the two blood stains on the seat of Mr. Cheatam’s vehicle matched a known convict by the name of Rafial Ferrer. There was never a match to the second blood stain on the seat. To the extent that this claim rests on the results ultimately disclosed in the hit notification form, as already discussed above, the undisputed evidence is that this information was never disclosed to Attorney Beck, nor is there any evidence that he should have been independently aware of its existence. Therefore, the petitioner has failed to prove that Attorney Beck’s performance was deficient. Id.
Further, the petitioner has failed to present any evidence that the victim’s vehicle, or anything inside of it, bore any material relationship to the crime. There appears to be no dispute that the victim and co-defendants drove to the scene in an unrelated vehicle, that that the keys to the victim’s car were found near his body, or that the victim’s car was locked when the police later located it. Other than the fact that these two blood samples were inside the victim’s vehicle, the petitioner has provided no rational connection between them and Mr. Cheatam’s murder. Finally, while a Mr. Rafial Ferrer was identified as the likely source of one of the blood stains, the petitioner has provided no credible evidence establishing when that sample was deposited in the car or placing Ferrer even within the State of Connecticut at the time of the crime. Therefore, even if the Court were to assume that counsel should have followed up on this line of inquiry independently, the petitioner did not suffer any prejudice, because the information is irrelevant to the case. Id.
The petitioner’s own testimony at the habeas trial supports the irrelevance of anything found inside of Cheatam’s vehicle. He testified that the parties were all near a Chinese Restaurant in downtown Bridgeport, where the petitioner had ordered food. He saw Gary Browning and Marcus Williams about to get into a vehicle together and called over to ask if they could give him a ride. He said Williams was driving and Browning was in the front passenger seat. As they were all about to drive away, he claims the victim flagged Browning down, and also got into the vehicle. After a couple of quick stops, the four drove over to Bunnell Street, and Williams parked in a driveway. The petitioner claims that Browing and Cheatam then got out of the vehicle and walked into the back yard together, out of sight. The two were gone for about 5-10 minutes, when he heard a gunshot. He said Williams turned on the vehicle headlights, which illuminated the rear yard, and he could see Browing bent over and waving his arms at them. He says Williams then drove away, apparently leaving Browning behind, and brought him home. Nowhere in his testimony did the petitioner reference anything to do with the Cheatam’s vehicle, nor did he ever reference any "unknown male" supposedly being in the vehicle with them or at the scene of the shooting. The common description for a claim like this is a "red herring."
Due Process: Brady Violation- Cross Examination Evidence
In Count Two, the petitioner alleges that his due process rights were violated because the State allegedly failed to disclose certain cross examination evidence that Gary Browning allegedly admitted to testifying falsely under oath in the trial of a Michael Holbrook and also allegedly admitted that he would lie under oath to protect himself. The petitioner failed to address this issue at all in his post-trial brief. "Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned ... These same principles apply to claims raised in the trial court." Walker v. Commissioner of Correction, 176 Conn.App. 843, 856, 171 A.3d 525 (2017). Therefore, the Court considers the claim to have been abandoned, and it is dismissed. ld.
There were no transcripts or other documentary evidence placed into evidence to establish exactly what Browning allegedly admitted to in those prior proceedings.
Another deficiency with the petitioner’s claim is that he has failed to present any actual evidence that these transcripts of Mr. Browning’s testimony actually exist. Although Attorney Beck did have some memory of cross examining Mr. Browning about having lied in other proceedings, he testified to no memory of ever having been provided transcripts from any specific proceedings. The petitioner’s failure to support his claim with affirmative evidence is another reason the claim fails. Nieves v. Commissioner of Correction, supra, 51 Conn.App. 623.
Finally, even if not considered abandoned, or fatally defective due to the petitioner’s failure to present the alleged transcripts he claims should have been disclosed, the petitioner has failed to establish a Brady violation. "Due process principles require the prosecution to disclose to the defense evidence that is favorable to the defendant and material to his guilt or punishment ... In order to obtain a new trial for improper suppression of evidence, the petitioner must establish three essential components: (1) that the evidence was favorable to the accused; (2) that the evidence was suppressed by the state-either inadvertently or wilfully; and (3) that the evidence was material to the case, i.e., that the accused was prejudiced by the lack of disclosure ..." Holbrook v. Commissioner of Correction, 189 Conn.App. 108, 116, 206 A.3d 246, 251-52 (2019). This is commonly referred to as a Brady violation. See, Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
"It is well established that impeachment evidence may be crucial to a defense, especially when the state’s case hinges entirely upon the credibility of certain key witnesses ... The rule laid out in Brady requiring disclosure of exculpatory evidence applies to materials that might well alter ... the credibility of a crucial prosecution witness." (Citation omitted.) Ham v. Commissioner of Correction, 187 Conn.App. 160, 185-86, 201 A.3d 1074, 1089 (2019). "Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial ... United States v. Bagley, [ 473 U.S. 667, 675, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)]. In a classic Brady case, involving the state’s inadvertent failure to disclose favorable evidence, the evidence will be deemed material only if there would be a reasonable probability of a different result if the evidence had been disclosed. Bagley ’s touchstone of materiality is a reasonable probability of a different result, and the adjective [reasonable] is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A reasonable probability of a different result is accordingly shown when the government’s evidentiary suppression undermines confidence in the outcome of the trial ... In evaluating the reasonable probability standard, we should be aware of what adverse effect the nondisclosure may have had on the defendant’s preparation or presentation of his case and that we should act with an awareness of the difficulty of reconstructing in a posttrial proceeding the course that the defense and the trial would have [otherwise] taken ... On the other hand, we must also recognize that the mere possibility that an item of undisclosed evidence might have helped the defense or might have affected the outcome of the trial, however, does not establish materiality in the constitutional sense." (Citations omitted; internal quotation marks omitted.) State v. Bryan, 193 Conn.App. 285, 317 (2019). "However, new impeachment evidence is not material, and thus a new trial is not required ‘when the suppressed impeachment evidence merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable.’ " United States v. Wong, 78 F.3d 73, 79 (2d Cir. 1996)
Browning was the only person directly connecting the petitioner to the murders, so his testimony was definitely critical to the State’s case. Id. While Attorney Beck had no memory of receiving disclosure of testimony Browning gave in other proceedings from the State’s Attorney, he did remember cross examining him about having lied in other court proceedings. Therefore, Browning’s testimony in the Holbrook case would merely have been cumulative evidence impeaching his credibility, which would not meet the materiality standard under Brady. Id. Since Attorney Beck’s testimony, the only evidence on this issue before the Court, supports that the jury heard of Browning’s questionable credibility, there is no reasonable probability that additional cross examination evidence of the same character would have resulted in a more favorable outcome or that it would have materially changed the defense theory. Id. As such, the petitioner has failed to establish prejudice, so his claim fails. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
Attorney Beck’s general memory was the only evidence placed before the Court on this issue. The transcript of Beck’s cross examination of Browning at the criminal trial was not entered into evidence at the habeas trial. In other words, there is no evidence before this Court that Browning denied having previously lied under oath or stating that he would lie under oath to protect himself when Beck cross examined him. This is noteworthy, because it is the plaintiff’s burden to present affirmative evidence in support of his claims. Nieves v. Commissioner of Correction, 51 Conn.App. 615, 622-24, 724 A.2d 508, cert. denied, 248 Conn . 905, 731 A.2d 309 (1999). Here, for instance, that would require some evidence that Attorney Beck failed to cross examine Browning on these matters, or that Browning denied making such statements in his previous testimony, and Beck that was unable to challenge him because of the State’s alleged failure to turn over this exculpatory material.
Due Process: Brady Violation- Exculpatory Information
Finally, the petitioner alleges in Count Three that the State’s failure to disclose the November 21, 2009, notification from the State Forensic Laboratory (Exhibit #17) indicating Rafial Ferrer as the possible source of one of the unidentified samples of blood taken from the seat of the victim’s car constituted a Brady violation. As already discussed above, this piece of evidence fails the Brady materiality test, because the petitioner has not established any reasonable connection between the blood stains on the seat and the victim’s murder, nor has he placed Rafial Ferrer near the scene of the crime. (See, also Footnote 6.) Since the petitioner cannot establish a reasonable probability that this evidence would have had any impact on the outcome of his case or the establishment of a defense theory, the claim fails. Id.
III. Conclusion
Based on the foregoing, the petition for writ of habeas corpus is DENIED.