Opinion
CV064021601S
08-22-2016
James A. Mitchell v. State of Connecticut
UNPUBLISHED OPINION
State v. Mitchell, 110 Conn.App. 305, 955 A.2d 84, (2008)
MEMORANDUM OF DECISION RE PETITION FOR NEW TRIAL
Edward J. Mullarkey, Judge
I
STANDARD
" The standard that governs the granting of a petition for a new trial based on newly discovered evidence is well established. The petitioner must demonstrate, by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been--discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial . . . This strict standard is meant to effectuate the underlying equitable principle that once a judgment is rendered it is to be considered final, and should not be disturbed by posttrial motions except for a compelling reason . . . In determining the potential impact of new evidence, the trial court must weigh that evidence in conjunction with the evidence presented at the original trial. . . . It is within the discretion of the trial court to determine, upon examination of all the evidence, whether the petitioner has established substantial grounds for a new trial, and the judgment of the trial court will be set aside on appeal only if it reflects a clear abuse of discretion. (Citations omitted; internal quotation marks omitted.) Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987).
" Evidence is newly discovered if it was not available at the time of trial, or it could not have been obtained by the exercise of reasonable diligence." Carter v. State, 159 Conn.App. 209, 223, 122 A.3d 720, cert. denied, 319 Conn. 930, 125 A.3d 204 (2015). " The trial court must always consider the newly discovered evidence in the context of the evidence presented in the original trial. In so doing, it must determine, first, that the evidence passes a minimum credibility threshold. That is, if, in the court's opinion, the newly discovered evidence simply is not credible, it may legitimately determine that, even if presented to a new jury in a second trial, it probably would not yield a different result and may deny the petition on that basis . . . If, however, the trial court determines that the evidence is sufficiently credible so that, if a second jury were to consider it together with all of the original trial evidence, it probably would yield a different result or otherwise avoid an injustice, the fourth element of the Asherman test would be satisfied." (Internal quotation marks omitted.) Adams v. State, 259 Conn. 831, 838, 792 A.2d 809 (2002).
II
FACTS
The facts in the underlying trial are summarized in:
1. State v. Mitchell, 110 Conn.App. 305, 955 A.2d 84, cert. denied, 289 Conn. 946, 959 A.2d 1012 (2008).
2. Mitchell v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-10-4003523, (August 1, 2013, Cobb, J.).
3. Mitchell v. Commissioner of Correction, 156 Conn.App. 402, 114 A.3d 168, cert. denied, 317 Conn. 904, 114 A.3d 1220 (2015).
4. State v. Hampton, 293 Conn. 435, 978 A.2d 1089 (2009).
A jury convicted the petitioner of attempted murder in violation of General Statutes § § 53a-49(a), 53a-8, and 53a-54a, conspiracy to commit murder in violation of General Statutes § § 53a-48(a) and 53a-54a, kidnapping in the first degree in violation of General Statutes § § 53a-8 and 53a-92(a)(2)(A), conspiracy to commit kidnapping in the first degree in violation of General Statutes § § 53a-48 and 53a-92(a)(2)(A), sexual assault in the first degree in violation of General Statutes § § 53a-8 and 53a-70(a)(1), conspiracy to commit sexual assault in the first degree in violation of General Statutes § § 53a-48 and 53a-70(a)(1), assault in the first degree in violation of General Statutes § § 53a-8 and 53a-59, conspiracy to commit assault in the first degree in violation of General Statutes § § 53a-48 and 53a-59(a)(5), and criminal possession of a firearm in violation of General Statutes § 53a-217(a)(1).
On October 12, 2005, the court sentenced the petitioner to fifty-seven years incarceration.
The petitioner appealed his conviction to the Appellate Court, which affirmed the decision. See State v. Mitchell, 110 Conn.App. 305, 955 A.2d 84, cert. denied, 289 Conn. 946, 959 A.2d 1012 (2008).
" The jury reasonably could have found the following facts. On August 23, 2003, following an evening at a nightclub, the victim was dropped off at a friend's house in East Hartford. Wanting to return home, and with her residence too distant to walk, the victim called the defendant for a ride. The victim chose to call the defendant because she knew that Denasha Sanders, the mother of one of the defendant's children, had lived in the same building as the victim and that the defendant was frequently in the vicinity. The defendant and the victim's brother had had a prior confrontation concerning the fact that the victim's brother had dated Sanders. Shortly before August 23, the victim's brother and Sanders had moved to North Carolina with the child of Sanders and the defendant.
" The defendant arrived driving a gold Nissan Altima accompanied by another man, unknown to the victim at the time, but later identified as Travis Hampton. The victim agreed to go with the defendant and Hampton to downtown Hartford to get something to eat. Upon leaving a restaurant, the defendant became violent with the victim, striking her with his cell phone and demanding to know the location of the victim's brother. Out of fear that the defendant would harm her, the victim lied to the defendant and told him that her brother was at her grandfather's house. The victim attempted to leave the car, but the defendant pulled her by the hair and locked the doors. During this time, Hampton remained in the backseat of the vehicle.
" The defendant subsequently determined that the victim's brother was not at her grandfather's house. He drove the victim and Hampton to his mother's house in Hartford and ordered the victim out of the car. The victim briefly complied and then returned to the vehicle while the defendant and Hampton entered the house. When the defendant and Hampton returned, the three proceeded to leave the area by car. The defendant apologized to the victim for hitting her and offered her marijuana, which she accepted. Instead of driving the victim home, however, the defendant drove to Market Street in Hartford and parked his vehicle. The defendant told the victim he wanted to have sex with her and proposed that they go to a hotel or to Sanders' house.
" The victim refused and got out of the car, intending to walk home. The defendant produced a shotgun, which he gave to Hampton, who pointed the weapon at the victim's face. The defendant and Hampton told the victim to remove her pants. The victim testified that the defendant raped her vaginally from behind. When the defendant was finished, he forced the victim to perform fellatio on Hampton. The victim complied briefly, and Hampton proceeded to rape her vaginally, while the defendant regained and held the shotgun. The victim grabbed her pants and yelled at the defendant to let her leave. The defendant told the victim she could get into a nearby dumpster or run. As the victim attempted to run, the defendant shot her in the side of the stomach. The victim continued her attempt to run away, followed by Hampton, who now had the shotgun. The defendant pursued the victim in the car and blocked her path. Hampton shot the victim again. He and the defendant then left the scene. Shortly thereafter, the defendant and Hampton returned briefly and then left the area again. The victim dragged herself to the street, where she was found by a passing driver. The police and paramedics were summoned, and the victim was taken to Hartford Hospital for treatment." (Footnote omitted.) State v. Mitchell, supra, 110 Conn.App. 308-10.
III
FINDINGS
A
The Video
At the original criminal jury trial, the video shown to the jury was one obtained by Lindsay Hawk from the Traveler's Security System. She testified at this trial that " new developments" in technology make for newly discovered evidence. Despite thirty years in the business, the expert gave no additional testimony about her technical education, industry standards, peer reviews, or " new developments" in the field except unexplained " filters" for the previous six to eight months. This barren claim does not approach the type of technological leap that leads to newly discovered evidence. Additionally, this evidence of events on Market Street would not be material at a new trial. The jury saw the video, both the victim and the petitioner testified about their actions on Market Street. There was no dispute between them as to the passenger exiting the vehicle. One of the security personnel, Charles Oliver, thought the driver exited the vehicle. See Trial Transcript, September 2, 2005, p. 29. As did the other guard, Joshua Maize. See Trial Transcript, September 8, 2005, p. 129. This is not material in that the vehicle was parked on the wrong side of the street so that the passenger side was into the travel lane with the driver side next to the curb. At this point in the crime scenario, the crimes were complete and Travis Hampton was just checking that the victim was dead; the charging documents included accessorial, conspiratorial, and Pinkerton liability.
Also, this video evidence is merely cumulative and would not produce a different result at a new trial given the overwhelming evidence against the defendant, including his self-serving testimony. This claim has already been thoroughly vetted in the habeas trial and the petitioner's appeal. See Mitchell v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-10-4003523, (August 1, 2013, Cobb, J.); Mitchell v. Commissioner of Correction, 156 Conn.App. 402, 114 A.3d 168, cert. denied, 317 Conn. 904, 114 A.3d 1220 (2015).
Having sat as the trial judge at the jury trials of both defendants, this " new evidence" would not affect the outcome at all, especially since the defendant's testimony placed him at the scene. He blamed the co-defendant for all the crimes, and he apparently did not understand the liability imposed by the doctrines of accessory, conspiracy, and Pinkerton .
B
Detective Alfred Henderson
The internal affairs investigation into Detective Alfred Henderson did not begin until four months after the petitioner's conviction on September 22, 2005, according to the credited testimony of Internal Affairs Detective Dwayne Martinez-Baiz. Detective Henderson entered a nolo contendere plea to forgery on February 4, 2008; two years and five months after the petitioner's conviction. While this would have provided strong impeachment evidence, it would not have yielded a different result. The victim knew the petitioner before the crimes; the petitioner admitted on the stand that he was present, just not culpable.
Here, the evidence is newly discovered, however, it is not material. Ironically the same newly discovered evidence against the same detective was presented in Thomas v. State, 52 Conn.Supp. 69, 24 A.3d 630 (2009), aff'd, 130 Conn.App. 533, 24 A.3d 12, cert. denied, 302 Conn. 945, 30 A.3d 2 (2011), in which the court, Hon. John F. Mulcahy, Jr., judge trial referee, wrote: " The second Asherman prong is that the newly discovered evidence would be material on retrial. Evidence is material when it involves a central issue in the case and is not collateral . . . Evidence is admissible if it is offered to prove a material fact, namely, those facts directly in issue or those probative of matters in issue . . . It has been long established that [t]he general rule is . . . a new trial will not be granted on account of newly discovered evidence to impeach the character of witnesses sworn on a former trial . . . The state contends that the petition must fail under this second prong because the newly discovered evidence, that is, the 2008 convictions of Ortiz and Henderson, are not material in that such evidence is collateral and could be used only for impeachment. The Connecticut Supreme Court has stated: we note that [n]ew trials [typically] are not granted upon newly discovered evidence which discredits a witness unless the evidence is [both so] vital to the issues and . . . strong and convincing . . ." (Citations omitted; internal quotation marks omitted.) Thomas v. State, 52 Conn.Supp. 69, 109-10, 24 A.3d 630 (2009), aff'd, 130 Conn.App. 533, 24 A.3d 12, cert. denied, 302 Conn. 945, 30 A.3d 2 (2011).
During the Thomas case, Detective Henderson and another disgraced detective, Nathaniel Ortiz, both testified to separate prior misconduct on the part of Thomas involving narcotics. The court gave a limiting instruction on the use of such eyewitness testimony. Subsequent to that trial, Detective Ortiz entered an Alford plea to false statements, which were made in an affidavit supporting a search warrant.
In Thomas, elements of crimes charged in the information included intent to sell and knowing possession. The court charged at length of those elements; the testimony of Detectives Ortiz and Henderson regarding the petitioner's prior and subsequent crimes was admitted as some evidence for the jury to consider just with respect to those elements. In both the charge and the cautionary instructions, the very limited purpose for which the " other crimes" evidence could be considered was articulated explicitly and emphatically. The evidence related to necessary elements and issues central to the case. Although the witnesses were thoroughly cross-examined, and although the date of one incident was quite remote, a factor the jury could consider respecting weight, and although there was other evidence pertaining to the necessary elements, the " other crimes" evidence was quite powerful, respecting its limited purpose, and went in virtually unimpeached. While it is a close question, in the unique circumstances of this case, it is the court's view that the convictions of these witnesses, stemming from criminal activity occurring before, during, and after the petitioner's trial, are material.
Judge Mulcahy's decision was upheld in Thomas v. State, 130 Conn.App. 533, 24 A.3d 12, cert. denied, 302 Conn. 945, 30 A.3d 2 (2011).
In the present case, although Detective Henderson was the lead detective, he testified late in the state's criminal case due to a death in his family. During the investigation, Detective Henderson did only two things alone. The first was to get a copy of Traveler's surveillance video, which was not shown to the jury. The second act he did alone was transport a blood sample and release for testimony. The court will note that the reason for the late delivery of the blood sample was never explained during this trial on the petition. He did testify about the final video shown to the jury. He testified that the passenger got out of the vehicle on Market Street--supporting the petitioner's claim. The jury saw the video and drew its own conclusions. He took a statement from the petitioner while his partner was present. He arrived at the Market Street scene after it was already taped-off and being processed by the ESD. Detective Henderson never went behind the Citgo Station that night. Detective Henderson showed a photoboard to the victim at Hartford Hospital accompanied and witnessed by Detective William Siemionko, who was also present in the petitioner's interview/statement on August 27 and 28, 2003. Detective Siemionko also witnessed the co-conspirator's, Travis Hampton's, statement on August 28, 2003, as well as the victim's photo identification of Travis Hampton on August 25, 2003. Detective Siemionko also conducted the petitioner's photo of his co-conspirator, Travis Hampton, on August 28, 2003. See Transcript of Travis Hampton's Trial, January 11, 2006.
Misconduct on the part of police must be put to test against the highest standards. Although impeachment by misconduct evidence provides only a collateral attack on the credibility of Detective Henderson, the real question is whether or not it was vital to the issues. See Adams v. State, 259 Conn. 831, 839, 792 A.2d 809 (2002). Given the overwhelming evidence against the petitioner, the small role played by Detective Henderson, and the petitioner's own testimony, the court finds that the petitioner has not met his burden of proof on materiality.
The new impeachment evidence is not cumulative, however, the petitioner has not met his burden of persuasion on this issue. In fact, the likelihood that he would again be convicted approaches 100%. Four months after the petitioner's criminal trial, his co-conspirator was tried by this judge with a different jury. See State v. Hampton, 293 Conn. 435, 978 A.2d 1089 (2009). Detective Henderson's malefactions were known by then. He did not testify but his partner Detective Siemionko did.
The state based its next case on the same evidence plus a statement Travis Hampton gave to the police. Hampton did not testify. The statement directly implicated the petitioner. Hampton was convicted of all counts in which he shared criminal liability with the petitioner. In the one count of which he was found not guilty, Hampton was charged as a principal only.
C
Prosecutorial Misconduct
The petitioner makes six claims under this title. All six claims fail because there is no evidence or newly discovered evidence which would be material.
The first claim in count two, paragraph 6(a) of the petitioner's amended petition for new trial fails. Assistant State's Attorney Sandra Tullius' late disclosure of the final video was known to trial counsel, discussed in open court, and the provision for viewing was made. No continuance was requested by defense counsel. See Trial Transcript, September 13, 2005, pp. 90-92.
The second claim in count two, paragraph 6(b) of the petitioner's amended petition for a new trial fails. This is a completely undefined claim with no evidence and it is of no merit.
The third claim in count two, paragraph 6(c) of the petitioner's amended petition for new trial fails. Again, this is a completely undefined claim with no evidence and it is of no merit.
The fourth claim in count two, paragraph 6(d) of the petitioner's amended petition for new trial fails. There is no credible evidence that Detective Henderson was convicted of these domestic charges. They were not admissible, as they were, at most, arrests in Massachusetts. It is also collateral and not vital to the issues. See Thomas v. State, 52 Conn.Supp. 69, 24 A.3d 630 (2009), aff'd, 130 Conn.App. 533, 24 A.3d 12, cert. denied, 302 Conn. 945, 30 A.3d 2 (2011). In addition, they were not admissible under Connecticut's Rules of Evidence.
The petitioner has withdrawn this claim at hearing of June 6, 2016.
The fourth and fifth claims in count two, paragraphs 6(d) and (e) of the petitioner's amended petition for new trial fail. There is no evidence that the victim received any inducement to testify. Nolles of her domestic violence and motor vehicle files were entered in November 2003, before the preparations for the petitioner's criminal trial began claim 6(f) is without evidence or merit.
The petitioner has withdrawn this claim at hearing of June 6, 2016.
Finally, the petitioner's counsel seems to be fixated with a release signed by the victim on April 26, 2005, to get her blood tested--the day after Judge Miano ordered the test at the defense counsels' request. There is no evidence that a release had been signed earlier by the victim and, if so, whether it was lost. Only one blood sample taken from the victim was tested. While the petitioner did not like the negative results, the criminal trial judge allowed the petitioner to put on the state's leading expert in such matters, Dr. James O'Brien, about the effects that such claimed drugs would have had on the victim's perception. The second release to have her blood sample tested was offered by the testimony of state toxicologist Mark Anderson. He tested the same sample as had been tested at the state forensic lab for rape allegations by Joy Reho; see Trial Transcript, January 11, 2016; is of no material value, did not effect the validity of the verdict, and would not lead to a new result at a new trial.
IV
CONCLUSION
In reviewing all of the claims and evidence put before this court, the petitioner has not produced any evidence that is likely to produce a different result at a new trial. For the reasons stated above, the petitioner has not met his burden of proof and his petition for a new trial is denied.