Opinion
CV164007857
09-13-2018
Edgar TATUM v. WARDEN
UNPUBLISHED OPINION
Hon. John M. Newson, Judge
I. Procedural History
The petitioner was convicted of murder following a jury trial in the matter of State v. Edgar Tatum, CR4-161659 in the Judicial District of Waterbury and sentenced to serve sixty years incarceration on April 6, 1990. The petitioner appealed his conviction, and has filed several petitions for habeas corpus prior to the present matter, the substance of which will be discussed only to the extent they are relevant to the present motion. The present petition was filed on February 2, 2016. The Fourth Amended Petition, which is the subject of the present motion, was filed on June 26, 2018, and the respondent moved to dismiss some or all of said petition on July 20, 2018. The petitioner filed a timely objection, and argument was presented to the court on August 8, 2018. Further facts and procedural details will be provided as necessary in the remainder of this decision.
II. Law and Discussion
When adjudicating a motion to dismiss, "a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Citation omitted; quotation marks omitted.) Lawrence Brunoli, Inc. v. Town of Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999). "Because subject matter jurisdiction implicates the authority of the court, the issue, once raised, must be resolved before proceeding to the merits of the case ..." (Citation omitted.) State v. Fowler, 102 Conn.App. 154, 158, 926 A.2d 672, cert. denied, 284 Conn. 922, 933 A.2d 725 (2007).
Count One- Ineffective Assistance of Trial Counsel
In Count One of the Fourth Amended Petition, the petitioner asserts a direct claim of ineffective assistance against his criminal trial counsel, Thomas McDonough. Specifically, the petitioner claims that Attorney McDonough: 1. failed to consult with an expert on eye-witness identification issues; 2. failed to waive the petitioner’s presence at the probable cause hearing, allowing eyewitnesses to view the petitioner at the hearing; 3. failed to file a motion to suppress a witness named Lombardo’s identification; 4. failed to request a hearing on a motion to suppress a witness named Lavasseur’s identification; 5. failed to make an adequate record of the number of times a witness named Lombardo had participated in identification procedures and had been shown photographs of the petitioner prior to the probable cause hearing; 6. failed to object to the court’s instruction on eyewitness identification, in favor of one that McDonough had proposed, 7. failed to adequately cross examine witnesses Lombardo and LaVasseur about certain factors that could have impacted their identification; and 8. failed to call Miguel Vargas, an eye-witness, to present testimony that could have called into question the petitioner’s identity as the shooter. The respondent asserts that this claim of ineffective assistance should be dismissed on grounds of res judicata.
"The doctrine of res judicata provides that a former judgment [on the merits] 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 ..." (Emphasis added.) Johnson v. Commissioner of Correction, 168 Conn.App. 294, 305, 145 A.3d 416, cert. denied, 323 Conn. 937, 151 A.3d 385 (2016). "[A] final judgment, when rendered on the merits, is an absolute bar to a subsequent action, between the same parties or those in privity with them, upon the same claim." Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 812, 695 A.2d 1010 (1997)
"[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.) Carter v. Commissioner of Correction, 133 Conn.App. 387, 393, 35 A.3d 1088 (2012). "[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." Id.
"In the context of a habeas action, a court must determine whether a petitioner actually has raised a new legal ground for relief or only has alleged different factual allegations in support of a previously litigated claim. Identical grounds may be proven by different factual allegations, supported by different legal arguments or articulated in different language ... They raise, however the same generic legal basis for the same relief ... Thus, a subsequent petition alleging the same ground as a previously denied petition will elude dismissal if it alleges grounds not actually litigated in the earlier petition and if it alleges new facts or proffers new evidence not reasonably available at the time of the earlier petition." (Citations omitted, internal quotation marks omitted.) Johnson v. Commissioner of Correction, 168 Conn.App. 294, 305-06, 145 A.3d 416, cert. denied, 323 Conn. 937, 151 A.3d 385 (2016).
"By ground, we mean simply a sufficient legal basis for granting the relief sought by the [petitioner]. For example, the contention that an involuntary confession was admitted in evidence against him is a distinct ground for federal [habeas] relief. But a claim of involuntary confession predicated on alleged psychological coercion does not raise a different ‘ground’ than does one predicated on alleged physical coercion ... Should doubts arise in particular cases as to whether two grounds are different or the same, they should be resolved in favor of the applicant. The prior denial must have rested on an adjudication of the merits of the ground presented in the subsequent application ... This means that, if factual issues were raised in the prior application, and it was not denied on the basis that the files and records conclusively resolved these issues, an evidentiary hearing was held." (Citations omitted.) Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).
The petitioner litigated the alleged ineffectiveness of his criminal trial counsel in his first habeas, CV91-1263. Tatum v. Warden, Superior Court, judicial district of Tolland at Somers, Docket No. CV91-1263 (March 3, 1999, Zarella, J.). In that case, among other specific claims, the petitioner alleged that his criminal trial counsel failed to "properly and fully utilize certain evidence consistent with third-party guilt and misidentification," that he failed to waive his presence at the hearing in probable cause, thus allowing witnesses the opportunity to identify the petitioner in court, and that trial counsel failed to call certain witnesses who would have provided a description of the perpetrator as someone looking distinctly different from the petitioner. Id., p. 15. The petitioner also made a claim in that prior petition that trial counsel had failed to take proper exception to the jury instructions given by the court. Id. So, while the petitioner may have repackaged and reworded claims attacking the way trial counsel’s handled issues surrounding his identification and the jury instructions at trial, the present claims cannot be said to raise any distinct issue that has not previously been litigated, nor can it be said that these issues surrounding eyewitness identification are based on new facts or proffer new evidence not reasonably available to the petitioner at the time of the earlier case. So, while the specific claims asserted in the present petition relate to his identification by witnesses different than those who actually testified at his trial or that he pointed to in his prior habeas petition, the issue regarding trial counsel’s handling of his identification was readily available to the petitioner at the time of his prior habeas trial. Since the petitioner had a prior opportunity to fully litigate a claim of ineffectiveness against his criminal trial counsel, the present allegations are barred by the doctrine of res judicata . Johnson v. Commissioner of Correction, supra, 168 Conn.App. 307 ("The allegations within the petitioner’s [current] habeas petition claiming ineffective assistance of trial counsel constituted the same legal ground as those found in the [prior] habeas petitions, simply expressed in a reformulation of facts. These ‘new’ allegations could have been raised in those petitions").
Count Two- Ineffective Assistance of Appellate Counsel
In the second count of the present petition, the petitioner asserts that Attorneys Sally King, Steven Barry, and Alicia Davenport, who handled the petitioner’s direct appeal from his criminal conviction, were ineffective for failing to raise issues on appeal that the petitioner’s due process rights were violated by unduly suggestive identification procedures at the hearing in probable cause, and by the unduly suggestive identification procedures surrounding a witness named LaVasseur’s in and out of court identifications of the petitioner. By way of additional background, the petitioner’s convictions were affirmed on appeal in State v. Tatum, 219 Conn. 721, 595 A.2d 322 (1991). The respondent has asserted that this claim of ineffective assistance is barred by the doctrine of res judicata or has been procedurally defaulted.
The petitioner did assert the claim that his due process rights were violated by unnecessarily suggestive identification procedures in his direct appeal. Specifically, he claimed that "Lombardo’s in court identification of him ... was tainted by an unnecessarily suggestive pretrial identification procedure in that Lombardo had viewed the defendant at the probable cause hearing ... He claim[ed] that Lombardo’s subsequent identification of him at trial was the product of that unnecessarily suggestive procedure ..." Id., 725. "The doctrine of res judicata bars [a] petitioner from obtaining habeas review of [claims that have been] raised, litigated and decided on direct appeal." Robinson v. Commissioner of Correction, 129 Conn.App. 699, 707, 21 A.3d 901, cert. denied, 302 Conn. 921, 28 A.3d 342 (2011). While the petitioner adds facts in the current petition asserting unnecessarily suggestive identification procedures involving a different witness, LaVasseur, than the witness specified in the direct appeal, the substantive claim- due process violation due to unnecessarily suggestive identification procedures- and the relief- vacating his conviction- are the same as he sought in his direct appeal. Additionally, since LaVasseur testified at the petitioner’s trial, the facts supporting a claim that the identification procedures used by the police were unnecessarily suggestive were readily available to the petitioner at the time of the appeal. Johnson v. Commissioner of Correction, supra, 168 Conn.App. 305-06. The Appellate Court has already rejected this claim, so relitigating it here is precluded on grounds of res judicata . Robinson v. Commissioner of Correction, supra, 129 Conn.App. 707.
"At the probable cause hearing and at the trial, both Lombardo and LaVasseur identified the [petitioner] as the man who had short Lombardo and Parrett." State v. Tatum, 219 Conn. 721, 725, 595 A.2d 322 (1991).
Count Three- Ineffective Assistance of Habeas Counsel (Lorenzen)
In his first habeas, the petitioner was represented by Attorney Bruce Lorenzen. That petition was denied by the court following a trial on the merits. Tatum v. Warden, Superior Court judicial district of Tolland at Rockville, Docket No. CV91-1263 (Zarella, J., March 3, 1999). In a subsequent petition for habeas corpus, the petitioner alleged, among other claims, ineffective assistance of counsel against Attorney Lorenzen for his representation in CV91-1263. In that petition against Attorney Lorenzen, the petitioner alleged that Attorney Lorenzen was ineffective for failing to raise claims of ineffectiveness against his criminal trial counsel for: 1. failing to obtain evidence documenting which witnesses for the State were promised or received benefits for their testimony; 2. failing to challenge the intent instruction given by the court, which embraced both specific and general intent; and 3. failing to preserve the intent instruction issue for appellate review. Following a trial on the merits, the court, Nazzaro, J., denied the petition. Tatum v. Warden, Superior Court judicial district of Tolland at Rockville, Docket No. CV03-0004175 (Nazzaro, J., March 23, 2010).
The petitioner also asserts a direct claim of ineffective assistance against Attorney Lorenzen in the present petition. The substance of the allegations in the present petition surround Attorney Lorenzen’s alleged failure to raise and litigate various claims against petitioner’s criminal trial and appellate counsel relating to the eyewitness identification instructions, identification procedures, and general investigation into various issues related to the identification of the petitioner as the perpetrator of this offense. Again, while some of the facts supporting the claims of ineffectiveness may be different than the specific facts the petitioner alleged against Attorney Lorenzen in CV03-0004175, given the fact that his 1991 appeal; State v. Tatum, supra, 291 Conn. 726-27; and his 1999 habeas trial; Tatum v. Warden, supra, Docket No. CV91-1263; focused extensively on issues related to the identification of the petitioner as the perpetrator and the identification procedures employed as to various witnesses who identified him, it is not reasonable that the particular facts to support this factual claim of ineffectiveness against Attorney Lorenzen were not reasonably available to the petitioner when he brought a claim of ineffective assistance against him in 2009 (CV03-0004175). "The allegations within the petitioner’s [current] habeas petition claiming ineffective assistance of trial counsel constitute[ ] the same legal ground as those found in the [prior] habeas [petition], simply expressed in a reformulation of facts. These ‘new’ allegations could have been raised in [the prior petition." Johnson v. Commissioner of Correction, supra, 168 Conn.App. 307. As such, the current claims are barred by res judicata . Id.
Count Four- Ineffective Assistance of Habeas Counsel (DeMarco) and Count Five- Ineffective Assistance of Habeas Counsel (Kraus)
The petitioner also brings direct claims of ineffective assistance of counsel in the present case against Attorney Chris DeMarco, who represented him in a petition filed in the year 2000 in the Judicial District of New Haven under docket no. NNH-CV00-0440732, and Attorney Paul Kraus, who represented him in CV03-0004175. According to both parties, the matter in which he was represented by Attorney DeMarco was dismissed by the Court without a trial on the merits. The 2003 habeas petition, in which he was represented by Attorney Kraus, was denied following a trial on the merits. Tatum v. Warden, Superior Court judicial district of Tolland at Rockville, Docket No. CV03-0004175 (Nazzaro, J., March 23, 2010). In reviewing the records and other information provided by the parties, it does not appear that the petitioner has ever previously alleged or litigated a direct claim of ineffective assistance against either of these attorneys. As such, these direct claims of ineffective assistance would not be barred by the doctrine of res judicata, and may proceed. See, Johnson v. Commissioner of Correction, supra, 168 Conn.App. 307.
Count Six- Due Process (Federal and State)
The petitioner alleges in count six that his due process rights under the fourteenth amendment to the Constitution of the United States, and article first, § 8 and nine of the Connecticut Constitution were violated, on the basis that the identification procedures used with certain witnesses were unduly suggestive and that the jury instructions were insufficient to educate jurors on the possibility of certain factors that could adversely impact eyewitness identification. The respondent asserts that these claims are barred by the doctrine of res judicata, because the petitioner raised such claims in his direct appeal, or alternatively that they are procedurally defaulted. The Court agrees with the respondent that this claim is barred on grounds of res judicata .
"The doctrine of res judicata bars [a] petitioner from obtaining habeas review of [claims that have been] raised, litigated and decided on direct appeal." Robinson v. Commissioner of Correction, supra, 129 Conn.App. 707. In his direct appeal, the petitioner raised the claim "that the trial court deprived him of his due process rights" by admitting Lombardo’s identification of him, which he alleged was tainted by unduly suggestive procedures. State v. Tatum, supra, 219 Conn. 725. He also brought a claim in his direct appeal that the trial court’s jury instruction was inadequate with respect to advising jurors of factors relating to the dangers of eyewitness misidentification. Id., 732. The Appellate Court determined that Lombardo’s identification of the petitioner "was not the result of an unnecessarily suggestive procedure"; Id. ; and that "[t]he instructions given included the material portions of both the [model jury charge] and the defendant’s request and, as such, provided sufficient guidance to the jury on the issue of eyewitness identification." Id., 735. Since the petitioner has previously raised and litigated the claimed violation of his due process rights due to improper identification procedures on direct appeal, he cannot now attack them collaterally before the habeas court. Robinson, supra, 129 Conn.App. 707.
Count Seven- Newly Discovered Evidence
The petitioner’s claim in count seven is titled "newly discovered evidence." While there is no recognized habeas claim this court is aware by such a name, in reading the complaint in the light most favorable to the petitioner; Lawrence Brunoli, Inc. v. Town of Branford, supra, 247 Conn. 410-11; this could best be characterized as a claim of actual innocence. See, Lewis v. Commissioner of Correction, 116 Conn.App. 400, 409 n.6, 975 A.2d 740, 747, cert. denied, 294 Conn. 908, 982 A.2d 1082 (2009). Specifically, the petitioner asserts that there have been significant advancements in the science of mistaken eyewitness identification since the time of the petitioner’s trial which, if presented to jurors, would have resulted in a different outcome. In other words, even giving the petitioner the benefit of the doubt the law requires, he is not actually claiming that there is "new" evidence, as in a previously undiscovered witness, an unknown video of the incident, or bodily fluids not previously subject to DNA testing. What the claim really amounts to is that subsequent developments in the science of eyewitness identification have changed the information and instructions a jury can be given in a criminal trial and, if the jurors in the petitioner’s trial were allowed to apply the "new" science and instructions to the same "old" evidence presented at the petitioner’s trial, they may have viewed the testimony of the eyewitnesses who identified the petitioner differently and come to a different conclusion. Alternatively, there is also a claim that some or all of the in-court identifications of the petitioner would have been prohibited under this "new" law. The court agrees with the respondent that this claim should be dismissed.
First, as was discussed earlier in this decision, the Appellate Court has already heard and decided that, "the trial court properly admitted Lombardo’s identification of the [petitioner] at trial since Lombardo’s previous identification of him at the probable cause hearing was not the result of an unnecessarily suggestive procedure ." (Emphasis added.) State v. Tatum, supra, 219 Conn. 732. Therefore, any claim that Lombardo’s in-court identifications should have been prohibited on the grounds that it was the result of an "unnecessarily suggestive" procedure is barred by res judicata . Robinson v. Commissioner of Correction, supra, 129 Conn.App. at 707. The doctrine of res judicata would also prohibit the petitioner from being able to relitigate this issue by changing the facts to focus on the identification procedures used in connection with witness LaVasseur, because neither the grounds nor the requested relief is any different than the issue raised on appeal. Id.
The court also agrees with the respondent that the allegations fail to state a claim upon which relief can be granted. "Actual innocence, also referred to as factual innocence ... is different than legal innocence. Actual innocence is not demonstrated merely by showing that there was insufficient evidence to prove guilt beyond a reasonable doubt." (Citations omitted, internal quotation marks omitted.) Gould v. Commissioner of Correction, 301 Conn. 544, 560-61, 22 A.3d 1196 (2011). "Rather, actual innocence is demonstrated by affirmative proof that the petitioner did not commit the crime." Id., 561. "Affirmative proof of actual innocence is that which might tend to establish that the petitioner could not have committed the crime even though it is unknown who committed the crime, that a third party committed the crime or that no crime actually occurred." (Italics in original.) Id., 563.
In the present case, as referenced above, the petitioner has not alleged a single new "fact" related to his case. There is no new witness, no new affirmative test result on a piece of evidence, no recantation of a statement, and no allegation of a previously unknown piece of evidence. Instead, taken in their best light, the allegations assert that if the jurors in the petitioner’s case had been allowed to consider additional information in the way of expert testimony, studies, and broader instructions on the fallibility of eyewitness identification, and if certain in-court identification procedures had been put into place, all based on holdings which Connecticut courts did not adopt until some twenty-two and twenty-six years, respectively, after the petitioner’s conviction, the identifications by Lombardo and LaVasseuer would not have been admitted into evidence and, even if they were admitted, the jury would likely have come back with a different result and.
The petitioner relies on the decisions in State v. Guilbert, 306 Conn. 218, 49 A.3d 705 (2012):
The court finds, as a matter of law, that new case decisions changing the way in which evidence may be presented to a jury does not constitute "newly discovered" evidence in the sense intended under our case law. See, Gould v. Commissioner of Correction, supra, 301 Conn. 560-61 ("Rather, actual innocence is demonstrated by affirmative proof that the petitioner did not commit the crime"). There is nothing within the Guilbert or Dickinson decisions that could reasonably indicate either was to be retroactive application or was intended to provide an avenue for collateral relief for those cases which had already gone to verdict; compare, State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008); not has the petitioner presented any such legal authority.
State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), which held that in order for a defendant to be convicted of a kidnapping in conjunction with another crime, the jury must be instructed that, "to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime." Id., 542. The Salamon decision modified the long-standing interpretation of the kidnapping statute, so those who were convicted prior to the Salamon decision are entitled retroactively to the benefit of the new interpretation to collaterally challenge their convictions as a matter of State common law. Luurstema v. Commissioner of Correction, 299 Conn. 740, 751, 12 A.3d 817 (2011). ---------
Based on the foregoing, count seven is also dismissed for failing to state a claim upon which relief can be granted.
III. Conclusion
Based on the foregoing, the respondent’s motion to dismiss is GRANTED as to counts one, two, three, six, and seven of the Fourth Amended Petition dated June 26, 2018. The motion is DENIED as to counts four and five.
We depart from [our prior decisions] mindful of recent studies confirming what courts have long suspected, namely, that mistaken eyewitness identification testimony is by far the leading cause of wrongful convictions. A highly effective safeguard against this serious and well documented risk is the admission of expert testimony on the reliability of eyewitness identification ...
In summary, we conclude that the reliability of eyewitness identifications frequently is not a matter within the knowledge of an average juror and that the admission of expert testimony on the issue does not invade the province of the jury to determine what weight to give the evidence. Many of the factors affecting the reliability of eyewitness identifications are either unknown to the average juror or contrary to common assumptions, and expert testimony is an effective way to educate jurors about the risks of misidentification. To the extent that [our prior decisions] held to the contrary, they are hereby overruled.Guilbert, supra, 306 Conn. at 248-53, and State v. Dickson, 322 Conn. 410, 141 A.3d 810 (2016), cert. denied, 137 S.Ct . 2263, 198 L.Ed.2d 713 (2017):
In the absence of unduly suggestive procedures conducted by state actors, the potential unreliability of eyewitness identification testimony ordinarily goes to the weight of the evidence, not its admissibility, and is a question for the jury ... Principles of due process require exclusion of unreliable identification evidence that is not the result of an unnecessarily suggestive procedure "[o]nly when [the] evidence is so extremely unfair that its admission violates fundamental conceptions of justice ..." To assist the jury in determining what weight to give to an eyewitness identification that is not tainted by an unduly suggestive identification procedure, the defendant is entitled as a matter of state evidentiary law to present expert testimony regarding a variety of factors that can affect the reliability of such testimony. State v. Guilbert, 306 Conn. 218, 248, 49 A.3d 705 (2012) ("[an] expert should be permitted to testify ... about factors that generally have an adverse effect on the reliability of eyewitness identifications and are relevant to the specific eyewitness identification at issue").
A different standard applies when the defendant contends that an in-court identification followed an unduly suggestive pretrial identification procedure that was conducted by a state actor. In such cases, both the initial identification and the in-court identification may be excluded if the improper procedure created a substantial likelihood of misidentification ... "A primary aim of excluding identification evidence obtained under unnecessarily suggestive circumstances ... is to deter law enforcement use of improper lineups, show-ups, and photo arrays in the first place."
In determining whether identification procedures violate a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on examination of the totality of the circumstances. (Citations omitted; internal quotation marks omitted.)State v. Dickson, supra, 322 Conn. 419-21.