Opinion
CV144006592S
09-17-2018
Corey TURNER (Inmate #231802) v. WARDEN
UNPUBLISHED OPINION
OPINION
Westbrook, J.
The petitioner, Corey Turner, initiated this petition for a writ of habeas corpus, claiming that his due process rights were violated as a result of newly discovered evidence of perjured testimony, the state’s suppression of exculpatory evidence, and the state’s failure to properly preserve exculpatory evidence. The petitioner seeks an order from this court vacating the judgment in his criminal case and ordering a new habeas trial, ordering a new criminal trial, restoring the case to the criminal trial court docket for further proceedings, voiding the finding of probable cause and the warrant for his arrest and dismissing the charges against him. The court heard evidence on July 26, 2017, and September 20, 2017. Having considered the credible evidence and the arguments of the parties, the court dismisses count one of the petition, and denies counts two and three of the petition.
I
PROCEDURAL HISTORY
The petitioner stands convicted, after a jury trial, of murder in violation of General Statutes § 53a-54a and assault in the first degree in violation of General Statutes § 53a-59. On October 10, 1997, the trial court, Koletsky, J., imposed a total effective sentence of sixty years of incarceration. The petitioner was represented by Attorney Leon Kaatz. The petitioner’s conviction was upheld by our Supreme Court in State v. Turner, 252 Conn. 714, 751 A.2d 372 (2000).
The following findings of the Supreme Court are relevant to a disposition of the instant petition:
On the evening of August 11, 1995, Corey Turner and Richard Woods, the victim, had an argument in front of Betty Lewis’ house at 141 Homestead Avenue in Hartford. At approximately 11 p.m. that night, Darius Powell, Kendrick Hampton, Lewis and Woods were together in front of Lewis’ house. Blanchard Baisden, also known as "Weedy," Armando Colon, also known as "Mondo," and Lillian Williams also were standing nearby at that time. Corey Turner and Charles Turner drove down the street in a tan Oldsmobile. Shortly thereafter, Charles Turner, now alone in the car, drove back up Homestead Avenue. Charles Turner parked the car at the corner of Homestead Avenue and Edgewood Street, across the street from where Woods and his friends were standing. He then exited the car and began "dancing around." As Powell, Hampton and Woods watched Charles Turner, Corey Turner, wearing a mask and dark clothing, approached the group and shot at Woods with a handgun. The first two shots hit Woods in the leg, and three of the following six shots struck him in the hip. During the attack, Woods shouted "Boku shot me. Boku did it." "Boku" is Corey Turner’s street name. Powell and Hampton, who were familiar with Corey Turner from the neighborhood, recognized him as the assailant. After the shooting, Corey Turner escaped through the yards behind the apartment building. Charles Turner, who had jumped back into the tan Oldsmobile when the shooting began, drove down Homestead Avenue and picked up Corey Turner four houses away. Woods later died at the hospital from the gunshot wounds.State v. Turner, supra, 252 Conn. 717-18.
The petitioner brought his first habeas petition on August 17, 1998, alleging claims of ineffective assistance of trial and appellate counsel. The habeas court, White, J., denied the petition on January 4, 2002. The petitioner appealed the habeas court’s decision, and the petitioner’s appeal was dismissed. Turner v. Commissioner of Correction, 86 Conn.App. 341, 861 A.2d 522 (2004), cert. denied, 272 Conn. 914, 866 A.2d 1286 (2005).
"Since his original petition for a writ of habeas corpus, the petitioner has sought the review of the appellate courts multiple times including unsuccessfully filing and appealing: (1) three other petitions for a writ of habeas corpus, (2) a writ of error coram nobis, and (3) a motion to open and set aside judgment of the underlying conviction in the criminal trial court. See Turner v. Commissioner of Correction, 118 Conn.App. 565, 984 A.2d 793 (2009), cert. denied, 296 Conn. 901, 991 A.2d 1104 (2010); Turner v. Commissioner of Correction, 97 Conn.App. 15, 902 A.2d 716, cert. denied, 280 Conn. 922, 908 A.2d 546 (2006); Turner v. Dzurenda, 596 F.Supp.2d 525 (D.Conn. 2009), aff’d, 381 Fed.Appx. 41 (2d Cir. 2010), cert. denied, 562 U.S. 1032, 131 S.Ct. 574, 178 L.Ed.2d 419 (2010); Turner v. State, 134 Conn.App. 906, 40 A.3d 345, cert. denied, 307 Conn. 904, 53 A.3d 219 (2012); State v. Turner, 139 Conn.App. 906, 55 A.3d 626 (2012), cert. denied, 308 Conn. 946, 67 A.3d 289 (2013)." Turner v. Commissioner of Correction, 163 Conn.App. 556, 558 n.1, 134 A.3d 1253 (2016).
The petitioner initiated the present habeas petition on September 10, 2014. In his last amended petition, filed on May 31, 2017, the petitioner raises the following claims: (1) that his due process rights were violated because the respondent elicited perjured, false or misleading testimony from the petitioner’s trial counsel, Attorney Kaatz, falsely accusing the petitioner of attempting to fabricate an alibi; (2) that his trial counsel was ineffective for failing to rehabilitate the petitioner’s and his alibi witness’ credibility after they were impeached by the prosecution with a false claim of a recently fabricated alibi defense; (3) that his trial counsel was ineffective for failing to investigate deficiencies in the police investigation; (4) that his due process rights were violated by the state’s suppression of exculpatory and impeachment evidence; and (5) that his due process rights were violated by the police department’s failure to preserve exculpatory evidence.
A trial was held on July 26, 2017, and September 20, 2017, at which the petitioner called Thomas LaPointe, Jacqueline Bainer, Assistant State’s Attorney Angela Macchiarulo, Attorney Leon Kaatz, Sergeant Pedro Rivera and retired Sergeant Stephen O’Donnell as witnesses. Prior to the commencement of trial, the court heard argument on the respondent’s motion to dismiss counts one, two and three of the petition on grounds of res judicata and successive petition filed on July 19, 2017. The petitioner subsequently withdrew counts two and three of his petition. The petitioner presented dozens of exhibits to the court, including transcripts of prior proceedings and police reports. Both parties submitted posttrial briefs. Additional facts will be set forth as necessary.
II
DISCUSSION
A
In count one, the petitioner alleges that his due process rights were violated due to newly discovered evidence that perjured testimony was presented at his first habeas trial in 2002. Specifically, the petitioner alleges that his underlying trial counsel, Attorney Kaatz, testified falsely that the petitioner sent two women to him to offer an alibi for the petitioner, and that he had a strategic reason for not wanting the jury to hear a taped conversation between the petitioner and his alibi witness, Fonda Williams, because the jury could have concluded that the petitioner was coaching and offering to compensate her for her testimony. This claim must be dismissed.
The following additional facts are relevant to this claim. On July 27, 2011, the petitioner filed a motion to open and set aside the judgment in his 2002 habeas matter. In his motion, the petitioner claimed that Attorney Kaatz perjured himself during his habeas testimony, and that respondent’s counsel had elicited this testimony despite knowing that it was false. The habeas court, Cobb, J., denied the petitioner’s motion to open and set aside the judgment due to the petitioner’s failure to prove that the judgment was based on fraud.
The petitioner appealed the court’s denial of his motion to open and set aside the judgment, and the appeal was denied. Turner v. Commissioner of Correction, supra, 163 Conn.App. 556. In its decision, the Appellate Court set forth the following relevant findings:
During his 2002 habeas trial, the petitioner alleged that his criminal trial counsel had been ineffective for failing to convince the criminal trial court to admit evidence that supported his defense of alibi. The petitioner had testified, during his criminal trial, that he was with an acquaintance at the time of the murder. He called the acquaintance witness to testify and she repeated the same story. During cross examination of the petitioner, the state questioned him about a recorded prison phone call between the petitioner and the acquaintance witness, suggesting that he had fabricated the story. In an attempt to refute the state’s rebuttal evidence, the petitioner’s criminal trial counsel attempted to admit into evidence the recording of the phone call between the petitioner and the acquaintance witness, but the trial court sustained the state’s objection.
In his first habeas trial, the petitioner called his criminal trial counsel as a witness in an effort to elicit testimony that would show that he had been ineffective by failing to have the recorded phone call admitted as evidence in the criminal trial. On cross examination, the petitioner’s criminal trial counsel testified that the petitioner presented him with two witnesses who would testify to an alibi, in addition to and separate from the acquaintance witness. The petitioner’s criminal trial counsel testified that initially during the trial, he interviewed one of the two additional witnesses and found that she was not credible and thus did not present their testimony in the petitioner’s defense. The petitioner, representing himself at the habeas trial, attempted to impeach his criminal trial counsel through use of a prior inconsistent statement concerning the additional witnesses. The petitioner sought to admit as evidence the criminal trial counsel’s written response to a 1997 grievance that was filed against him by the petitioner. The petitioner claimed that the written response proved that the petitioner provided his criminal trial counsel with only the one acquaintance witness in regard to his alibi, contradicting counsel’s habeas testimony. However, the habeas court sustained the objection of the respondent, the Commissioner of Correction, to the introduction of this extrinsic evidence because the habeas court concluded that the statements would be cumulative and involved a collateral matter. The next day, the petitioner moved for a mistrial because he claimed that his criminal trial counsel had perjured himself and the court had denied him the opportunity to present evidence that would have supported that claim. The court denied the motion. Ultimately, the habeas court, White, J., denied the petitioner’s writ of habeas corpus. The petitioner appealed from the judgment of the habeas court, but he did not argue that the court had erred by sustaining the state’s objection to his admission of the grievance response into evidence. This court dismissed the appeal.
(Footnote omitted.) Turner v. Commissioner of Correction, supra, 163 Conn.App. 559-61. The Appellate Court further noted in dismissing the petitioner’s appeal of his motion to open and set aside the judgment that "the petitioner did not develop any new facts or claims to support his assertion of fraud. The petitioner instead seeks to set aside the habeas court’s judgment with facts that were known to him, as well as to the habeas court, at the time of his first petition for a writ of habeas corpus." Id., 565-66.
The respondent argues that the petitioner’s claim should be dismissed for lack of justiciability. "A court will not resolve a claimed controversy on the merits unless it is satisfied that the controversy is justiciable ... Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power ... and (4) that the determination of the controversy will result in practical relief to the complainant." (Internal quotation marks omitted.) Mejia v. Commissioner of Correction, 112 Conn.App. 137, 146, 962 A.2d 148, cert. denied, 291 Conn. 910, 969 A.2d 171 (2009).
"Habeas corpus is a civil proceeding." (Internal quotation marks omitted.) Foote v. Commissioner of Correction, 125 Conn.App. 296, 300, 8 A.3d 524 (2010). The petitioner’s available avenues for relief as to his claims that a witness testified falsely in a habeas action were to file (1) a motion to open and set aside the judgment pursuant to General Statutes § 52-212a and Practice Book § 17-4; or (2) a petition for a new trial pursuant to General Statutes § 52-270 and Practice Book § 17-4A. This court cannot set aside or vacate the prior habeas court’s judgment. See Valvo v. Freedom of Information Commission, 294 Conn. 534, 543-45, 985 A.2d 1052 (2010) (providing authority that a trial court lacks the authority to reverse the rulings of another court). Thus, there is no practical relief available as to these claims. As a result, this court lacks subject matter jurisdiction over count one of the petition because the petitioner’s claims are not justiciable. Moreover, the court notes that even if count one was justiciable, the court would have denied it because it is clear that the evidence submitted by the petitioner in support of his claims is not newly discovered.
Pursuant to the foregoing, count one of the petition is dismissed.
B
In counts two and three, the petitioner alleges that his due process rights were violated by the state’s suppression and the police department’s failure to preserve evidence relating to the use of a K-9 during its investigation of the underlying crime. These claims must be denied.
The record reveals the following additional relevant facts. At the petitioner’s criminal trial, Officer Mark Castagna, Detective Jim Chrystal and Detective Keith Knight were all questioned on whether a K-9 unit was present at the crime scene during the investigation on August 11, and August 12, 1995, and none of the witnesses could recall seeing one there. At the present habeas trial, the petitioner presented the court with a supplemental police report involving the crime scene filed by now retired Sergeant Stephen O’Donnell. The supplemental report does not reference any use of a K-9. The petitioner also presented documentary evidence indicating that retired Sergeant O’Donnell attended a K-9 training program from February 2, 1992 to April 17, 1992.
Private investigators Thomas LaPointe and Jacqueline Bainer testified at the habeas trial as to interviews they each had with retired Sergeant O’Donnell. LaPointe’s report, submitted into evidence, indicates that retired Sergeant O’Donnell informed him that he had a vague recollection of performing a K-9 track in the area the crime occurred, but that he had performed tracking in that area on other occasions so he could not be certain that his recollection was related to the petitioner’s case. Bainer’s report, also submitted into evidence, indicates that retired Sergeant O’Donnell informed her that he could not recall if he was handling a K-9 during the investigation of the petitioner’s case, but that he would have reported it if the dog had hit upon a scent.
At the habeas trial, retired Sergeant O’Donnell testified that on the night of the underlying incident, he responded to the crime scene as a patrol sergeant. He also testified that he believed he was a K-9 handler during that time, but that there was a period of time where he stopped being a K-9 handler so that he could accept a promotion to sergeant. Retired Sergeant O’Donnell further testified that he does not recall whether a track was performed that night, but that he would have written a report if he had performed one. The court finds retired Sergeant O’Donnell’s testimony to be credible.
1
In count two, the petitioner alleges that the state suppressed evidence of a K-9 track used during the police investigation in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This claim must be denied.
"In Brady, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process [when] the evidence is material either [as] to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution ... In Strickler v. Greene, 527 U.S. 263, [281-82] 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the United States Supreme Court identified the three essential components of a Brady claim, all of which must be established to warrant a new trial: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the [s]tate, either [wilfully] or inadvertently; and prejudice must have ensued ... Under the last Brady prong, the prejudice that the defendant suffered as a result of the impropriety must have been material to the case ... State v. Ortiz, 280 Conn. 686, 717, 911 A.2d 1055 (2006). [T]he evidence will be deemed material only if there would be a reasonable probability of a different result if the evidence had been disclosed ... State v. Jordan, 314 Conn. 354, 370, 102 A.3d 1 (2014). This standard is met if the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict ... State v. Ortiz, supra, at 717, 911 A.2d 1055." (Internal quotation marks omitted.) Lapointe v. Commissioner of Correction, 316 Conn. 225, 262-63, 112 A.3d 1 (2015).
In the present case, there was no evidence presented that a K-9 track actually occurred during the course of the police investigation in the petitioner’s case. The police officers who were present at the scene and testified at the underlying criminal trial could not recall the use of a K-9 during the investigation. Retired Sergeant O’Donnell, a trained K-9 handler present at the crime scene, testified that he could not recall the use of a K-9 during the investigation of the petitioner’s case. There is no reference to the use of a K-9 team in any of the police reports submitted. As a result, a claim that the state suppressed such evidence that has not been proven to exist cannot survive.
Pursuant to the foregoing, count two of the petition is denied.
2
In count three, the petitioner alleges that the police failed to preserve evidence of a K-9 track used during the police investigation in violation of Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). This claim must also be denied.
This court notes at the outset that our Supreme Court has "rejected the bad faith litmus test from Youngblood as inadequate to determine whether the defendant had been afforded due process under the state constitution, and instead [the court] incorporated the Asherman balancing test as the appropriate framework for deciding whether the failure of the police to preserve evidence deprived the defendant of his state constitutional rights to due process [see State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985) ] ... Accordingly, applying the Asherman test, [the court] weigh[s] the reasons for the unavailability of the evidence, the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury and the prejudice to the defendant." (Citations omitted.) State v. Estrella, 277 Conn. 458, 483, 893 A.2d 348 (2006).
As discussed herein, there is no proof that the evidence the petitioner alleges the police failed to preserve actually existed. Therefore, this claim must also fail.
Pursuant to the foregoing, count three of the petition is denied.
III
CONCLUSION
Accordingly, count one of the petitioner’s habeas petition is dismissed, and counts two and three of the petition are denied.