Superior Court of Connecticut, Judicial District of Tolland, Rockville, Geographic Area 19
MEMORANDUM OF DECISION
Hon. Vernon D. Oliver, J.
The petitioner, Michael Smith, initiated this petition for a writ of habeas corpus, claiming that his underlying criminal counsel provided him ineffective legal representation. He also asserts Actual Innocence. He seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The court finds the issues for the respondent and denies the petition.
In the criminal matter State v. Morgan, CR01-0264414, in the New London Judicial District, the petitioner was charged with one count of Murder in violation of Connecticut General Statutes § 53a-54a, and one count of Criminal Possession of a Firearm in violation of statutes § 53a-217. At his jury trial, the petitioner was represented by attorney William Gerace. The petitioner was convicted after jury trial of Criminal Possession of a Firearm. After the jury could not reach a verdict on the Murder charge, a mistrial was declared on that count. Thereafter, the petitioner was sentenced to five years to serve, two years of which were nonsuspendable on the firearm charge. The petitioner appealed this conviction and in State v. Smith, 91 Conn.App. 133, 880 A.2d 959, cert. denied, 276 Conn. 917, 888 A.2d 86 (2005), the judgment was affirmed. The following procedural history and findings from that matter are relevant to a resolution of the instant matter.
The defendant, Michael G. Smith, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a firearm in violation of General Statutes § 53a-217. On appeal, the defendant claims that (1) the trial court denied him due process of law by admitting consciousness of guilt evidence, and (2) the prosecutor engaged in misconduct during rebuttal argument to the jury. We affirm the judgment of the trial court.
The jury reasonably could have found that the defendant, the victim, Eric Dames, and others were at a bar on Route 12 in Groton during the early morning hours of November 8, 2001. The victim was involved in a verbal and physical exchange with a group of men outside the bar, and he scuffled with the defendant. The victim broke away, and the defendant pursued him. The victim was shot in the back and died of his injuries. The defendant left the scene and was arrested on unrelated charges in Westerly, Rhode Island, in December 2001. He was returned to Connecticut and charged with multiple crimes.
At trial, the state presented the eyewitness testimony from three people who knew the defendant and saw him with a gun at the time of the shooting or saw him shoot the victim. The defendant called no witnesses. Following his conviction, the defendant was sentenced to five years in the custody of the commissioner of correction, two years of which were nonsuspendable. The defendant appealed.
The following facts are relevant to the defendant's claim. The state proffered the testimony of Bishop Jones, who was the boyfriend of Dominique McGuire, who had witnessed the shooting and had given a statement to the police implicating the defendant. McGuire testified consistently with that statement.
Jones then was called to testify before the jury. He testified that the defendant had approached him about the statement McGuire had given the police. The defendant said that what McGuire did was wrong " because I can't go to jail for that." Jones further testified that the defendant told him that for $500 to $1, 500, he could have the house that Jones shared with McGuire shot up. The court then intervened to instruct the jurors that they were the finders of fact and the judges of the credibility of the witnesses. The court told the jurors that the purpose of the testimony concerned consciousness of guilt and that it would give them further instructions later. The defendant did not object to the testimony.
The defendant's theory of the case was that others involved in the altercation with the victim shot him or possessed the firearm. His counsel argued that theory before the jury. His counsel also argued that the state failed to call others who were involved in the verbal and physical altercation on the night in question. In response to the defendant's closing argument, the prosecutor argued: " Counsel asked what happened to Bugga? What happened to John Thomas? What happened to the defendant's friends that were with him at that time? What happened to the people he was with at the bar that night? I could be asking the same questions. Counsel now has a theory on perhaps Bugga did the shooting, how he was held up tight. Perhaps Bugga's left-handed. Ladies and gentlemen, Bugga was never seen with the gun. In fact, the last person holding the gun was [the defendant]."
The defendant objected at trial to that portion of the prosecutor's rebuttal argument stating that the state had shifted the burden to him to prove his innocence and had indicated that he should have produced his friends from the bar. The defendant requested a curative instruction. In response to the defendant's objection, the court stated: " I see fit to give an instruction reminding the jury that [the defendant] has no obligation and there was no evidence, in my mind, that anyone at the scene was a friend of the defendant."
The court instructed the jury that the state bears the burden of proof and that the defendant is not required to prove anything.
State v. Smith, supra, 91 Conn.App. at 134.
The petitioner was subsequently retried on the Murder charge and three lesser included offenses. The petitioner was convicted after jury trial of Manslaughter with a Firearm in violation of general statutes § 53a-55(a)(1). The court, McMahon, J., imposed a sentence of thirty-three years to serve. The petitioner's appeal of his conviction was affirmed. State v. Smith, 112 Conn.App. 592, 963 A.2d 104, cert. denied, 291 Conn. 912, 969 A.2d 176 (2009). The following procedural history and facts found are relevant to this court's resolution of the instant petition.
The defendant, Michael G. Smith, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § § 53a-55 (a)(1) and 53a-55a. On appeal, the defendant claims that the trial court improperly admitted into evidence the prior sworn testimony of a witness from the defendant's previous trial. We disagree and, accordingly, affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On November 8, 2001, the victim, Eric Dames, went to the Sports Bar in Groton. Also present at the Sports Bar were the defendant and John Thomas. Approximately one week prior to November 8, 2001, Thomas and the victim had a verbal confrontation. There were no problems inside the Sports Bar, however, on November 8, 2001. When Thomas left the Sports Bar, the victim approached Thomas outside, and the two argued. The argument escalated into a physical fight. At this point, the defendant, who was armed with a gun, came to Thomas' defense. During the course of the fight between the victim and the defendant, the victim punched the defendant in the face, and the defendant dropped the gun. The defendant retrieved the gun, and, when the victim fell, the defendant pulled the victim's jacket over his head and shot the victim. The bullet injured the victim's aorta, causing him to bleed to death.
The defendant was charged with murder and criminal possession of a firearm in connection with this incident. At his trial in 2004, the defendant was convicted of criminal possession of a firearm, but the jury was unable to reach a verdict on the murder charge. State v. Smith, 91 Conn.App. 133, 135 n.1, 880 A.2d 959, cert. denied, 276 Conn. 917, 888 A.2d 86 (2005). Following retrial on the murder charge in 2006, the defendant was convicted of the lesser ...