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Johnson v. Commissioner of Correction

Court of Appeals of Connecticut

June 14, 2016

CARVAUGHN JOHNSON
v.
COMMISSIONER OF CORRECTION

          Argued December 10, 2015

         Appeal from Superior Court, judicial district of Tolland, Cobb, J.

          James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Adrienne Maciulewski, deputy assistant state’s attorney, for the appellant (respondent).

          Damon A. R. Kirschbaum, with whom, on the brief, was Vishal K. Garg, for the appellee (petitioner).

          Beach, Keller and Mullins, Js.

          OPINION

          KELLER, J.

         Upon a grant of certification to appeal, the respondent, the Commissioner of Correction, appeals from the judgment of the habeas court granting in part the amended petition for a writ of habeas corpus filed by the petitioner, Carvaughn Johnson. The respondent claims that the court improperly concluded that the petitioner proved a violation of his right to a fair trial because he did not receive effective assistance from his trial counsel. We agree with the respondent and, accordingly, reverse in part the judgment of the habeas court.

         The following procedural history underlies this appeal. Following a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a-54a (a) and carrying a pistol without a permit in violation of General Statutes § 29-35. The petitioner was sentenced to a total effective term of imprisonment of forty-three years. The petitioner brought a direct appeal to our Supreme Court, which affirmed the judgment of conviction. State v. Johnson, 288 Conn. 236, 951 A.2d 1257 (2008). Our Supreme Court set forth the facts that reasonably could have been found by the jury in returning its verdict: ‘‘The [petitioner] shot and killed the sixteen year old victim, Markeith Strong, on the evening of October 10, 2001, in New Haven. In the weeks prior to that evening, the [petitioner] and the victim had been at odds with each other. Approximately three weeks prior to the shooting, the victim’s teenage sister, L’Kaya Ford, was sitting with the victim at the corner of Read and Shepard Streets when she observed the [petitioner] approach.[1] The [petitioner] walked toward Ford and the victim, called the victim ‘a punk, ’ and threatened to assault him. The victim said nothing, and the [petitioner] walked away.

         ‘‘The victim next encountered the [petitioner] in the late afternoon of September 29, 2001, and the two engaged in a dispute over a bicycle. The victim and Ralph Ford[2] were around the intersection of Read and Shepard Streets, where the victim either was riding his bicycle or standing near it, when the [petitioner] stopped him, declared that the bicycle belonged to him and demanded that the victim give it to him. The victim refused and informed the [petitioner] that he had found the bicycle about one month earlier and had fixed it up. The victim told the [petitioner] that he owned the bicycle. The [petitioner] asked for the bicycle a second time, and, when the victim refused, the [petitioner] said, ‘[d]on’t make me do something to you.’ The [petitioner] then punched the left side of the victim’s head twice, which caused a small cut near the victim’s left ear. During this encounter, the [petitioner] may have been carrying a gun.[3] The [petitioner] then took the bicycle and rode away.

         ‘‘After this encounter, the victim, accompanied by Ralph Ford, returned home, where his family contacted the New Haven police to report the incident. After speaking with the victim, the police officers radioed a description of the [petitioner] and notice of a possible robbery and larceny. The police did not apprehend any suspect that day. Over the next few days, the [petitioner] approached the victim and L’Kaya Ford about the police report, asserted that he was not going to jail, apologized to the victim and told him not to press charges. Toward the end of September, the [petitioner] also expressed concern to his friend, Tashana Milton Toles, about the possible criminal charges that he faced as a result of the bicycle incident and specifically remarked to her that he thought he might be going back to jail.

         ‘‘On the morning of October 10, the [petitioner] approached L’Kaya Ford while she was waiting for a bus. The [petitioner], who was driving a black car that L’Kaya Ford described as an Acura or Ford Probe, pulled the car alongside of her and accused her of being a snitch. The [petitioner] insulted her, told her he did not like snitches and that she knew what happened to ‘snitches in the hood.’ That night, the victim, L’Kaya Ford, Ralph Ford, and other friends gathered on the corner of Read and Shepard Streets to celebrate L’Kaya Ford’s birthday. Some of the group, but not Ralph Ford or the victim, were drinking alcohol and smoking marijuana. Around 10 p.m., the victim and Ralph Ford departed together. The neighborhood around Read, Shepard, Huntington and Newhall Streets affords many shortcuts through the yards of houses that are occupied by neighborhood residents. On that night, however, Ralph Ford did not take his usual shortcut but parted from the victim, who took the shortcut home. Ralph Ford then continued walking alone on Read Street and proceeded around the corner to his house on Newhall Street.[4] Upon arriving at his house, Ralph Ford heard a gunshot coming from the backyard of the house across the street. Ralph Ford then entered his front hallway. Ralph Ford heard someone running from the yard across the street and saw the [petitioner] run into the driveway leading to Ford’s house.[5] Ralph Ford saw the [petitioner] carrying a semiautomatic handgun and entering a black Acura as it exited the driveway.[6] James Baker, who lived near the crime scene, heard someone run past his window, jump the fence outside his house and head into the backyard, toward Huntington Street. Approximately five minutes later, and around 10:20 p.m., Baker heard a single gunshot coming from behind his house. LaMont Wilson, who had left the group earlier than Ralph Ford and the victim, lived on Read Street and also heard a gunshot from the direction of his backyard, sometime between 10 and 10:45 p.m. Baker called the police at approximately 10:45 p.m. to report the gunshot but did not initially identify himself because he feared retaliation from ‘certain individuals’ for contacting the police. Joanie Joyner, a resident of Hunting-ton Street and the victim’s next-door neighbor, also heard a loud ‘boom’ from the direction of her backyard and then, sometime after 11 p.m., saw something in her yard. At approximately 11:25 p.m., she also called the police.

         ‘‘The [petitioner] contacted Toles by telephone between 9:45 and 10 p.m., told her that he was about five minutes away from her dormitory at Southern Connecticut State University, and asked if he could visit her. Toles agreed. The [petitioner] did not arrive at the dormitory until 11 p.m., at which time he phoned Toles from the lobby, and she came down to the lobby to register him as a visitor at the security desk.[7] The [petitioner] was with a friend, Travis Scott.[8] To enter the dormitory, the [petitioner] was required to provide identification at the security desk where security personnel record the information. The sign-in sheet at Toles’ dormitory indicated that she signed the [petitioner] into her building at 11:10 p.m. Shortly after they signed in, a fire alarm required all residents and visitors to evacuate the building. The alarm occurred at approximately 11:30 p.m., and the fire department and university police responded to the scene. The [petitioner] and Scott waited with Toles and her roommate until the university permitted students to reenter the building. They retrieved their identification from the security desk and departed. During the investigation, Detective Daryl Bre-land of the New Haven police department drove from Ralph Ford’s house to Toles’ dormitory, recorded the distance to be about three miles and noted that the trip took approximately ten minutes.

         ‘‘Officers Mark Taylor and Brian Pazsak of the New Haven police department were on patrol in the Newhall and Huntington Street area on the night of October 10, 2001, and received the dispatch related to Baker’s and Joyner’s calls. Police responded first to Baker’s call and investigated the general area, but saw nothing amiss. After responding to Joyner’s call around 11:35 p.m., the officers found the victim lying face down in Joyner’s backyard. The victim appeared to be unconscious and bleeding from the mouth. The officers also found a spent nine millimeter shell casing nearby. New Haven fire department personnel were called but were unable to resuscitate the victim, who was pronounced dead at the Hospital of Saint Raphael in New Haven.

         ‘‘Arkady Katsnelson of the chief medical examiner’s office performed an autopsy of the victim on October 11, 2001, and determined that he had died of a single gunshot wound to the right side of his face.[9] Katsnelson concluded that the bullet penetrated the victim’s face and neck, and completely severed the spinal cord, instantly incapacitating the victim.’’ (Footnotes in original.) Id., 239–43.

         Thereafter, the petitioner brought an amended petition for a writ of habeas corpus in which he raised two types of claims. In the first count of his petition, the petitioner alleged that his right to conflict free trial counsel had been violated because his trial counsel, Scott Jones and Beth Merkin, had an actual conflict of interest that adversely affected their performance. In the second count of his petition, the petitioner alleged a violation of his right to the effective assistance of counsel. The second count involved trial counsel’s failure to present (1) a third party culpability defense and (2) an alibi defense that explained his whereabouts at the time of the shooting. With respect to the third party culpability defense, the petitioner alleged that his trial counsel had ‘‘failed to adequately cross-examine Ralph Ford about . . . his possession of a pistol that was consistent with the pistol that discharged the bullet that killed the victim in the days before the shooting; and . . . about his prior statement that he did not see anything on the night of the shooting, and that he felt pressure from the police, the victim’s family, and his family to implicate the petitioner in the shooting . . . .’’ Also, the petitioner alleged that his trial counsel had ‘‘failed to present the testimony of William Holly about Ralph Ford’s possession of a pistol that was consistent with the pistol that discharged the bullet that killed the victim in the days before the shooting . . . [and] they failed to present the testimony of . . . Matthew Whalen [an investigator for the public defender’s office] about William Holly’s statement that he saw Ralph Ford in possession of a pistol that was consistent with the pistol that discharged the bullet that killed the victim in the days before the shooting . . . .’’[10] With respect to the alibi defense, the petitioner alleged that his trial counsel had ‘‘failed to present the testimony of Joyce Johnson, the petitioner’s sister, about the petitioner’s presence at their home at the time of the shooting; and . . . they failed to present the testimony of Taylor Allen about the petitioner’s presence at his home at the time of the shooting.’’

         The respondent denied that the petitioner’s right to conflict free representation had been violated or that he had been denied his right to effective representation at trial. Additionally, the respondent raised the special defense of procedural default with respect to both counts of the petition for a writ of habeas corpus. In a reply to the respondent’s return, the petitioner denied the special defense.

         Over the course of five days, the habeas court held an evidentiary hearing with respect to the claims set forth in the petition. In addition to other evidence, the petitioner presented testimony from Jones; Merkin; Holly; Thomas Farver, former counsel for Holly; Whalen; Johnson; Allen; Gerard Petillo, a firearms examiner and shooting incident reconstruction consultant; and Thomas Ullmann, public defender for the New Haven judicial district who supervised Jones and Mer- kin in their trial representation of the petitioner. The respondent presented testimony from Marc Caporale and Breland, former detectives with the New Haven Police Department who had been involved in the investigation into the victim’s death. At a separate, subsequent hearing, the court heard lengthy closing arguments, which was followed by the parties’ submission of post-trial briefs.

         In a thorough memorandum of decision, the habeas court ruled in favor of the respondent with respect to the conflict of interest claim. With respect to the ineffective assistance claim, the court determined that the petitioner’s right to the effective representation of counsel had been violated by counsel’s failure to present a third party culpability claim and by counsel’s failure to present an alibi defense.

         The habeas court set forth the following findings of fact: ‘‘In the petitioner’s first criminal trial, the court declared a mistrial due to a hung jury. The state presented testimony at the first criminal trial from an eyewitness, Ralph Ford, who testified consistent with his statements to the police that he heard a gunshot and saw the petitioner run out of the backyard across the street carrying a black gun in his hand. At the first trial, trial counsel presented a partial alibi defense with testimony indicating that the petitioner was at Southern Connecticut State University around 11 p.m. on the night of the murder. [The defense] did not explain the petitioner’s whereabouts between 10 and 11 p.m. After the first trial resulted in a hung jury, a juror indicated that it would have been helpful for the jury to know where the petitioner was at the time of the shooting [which occurred] prior to 11 p.m.

         ‘‘At the petitioner’s second criminal trial, the state’s key witness, Ford, recanted his prior statement and testimony that he had seen the petitioner running from the crime scene with a gun. Instead, Ford testified that the police forced him to make those statements. Ford’s prior inconsistent statements at the first criminal trial were admitted for substantive purposes in the second criminal trial pursuant to [the doctrine set forth in State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986)].

         ‘‘At the second trial, trial counsel’s defense strategy was that the state failed to prove the petitioner’s guilt beyond a reasonable doubt, that Ford was not credible, and that it was Ford that had accidentally shot the victim, who was Ford’s friend. The petitioner’s trial attorneys disagreed over whether to present an alibi, including the petitioner’s whereabouts between 10 and 11 p.m. or a third party culpability defense; Attorney Jones wanted to present both defenses and Attorney Merkin did not. Attorney Merkin prevailed and trial counsel did not present either defense at the second trial.’’ (Footnote omitted.)

         In addressing the aspect of the petitioner’s ineffective assistance of counsel claim that involved the failure of his trial counsel to present evidence in support of a third party culpability defense, the court set forth relevant legal principles and stated in relevant part: ‘‘The petitioner claims that trial counsel were ineffective for failing to call Holly or Inspector Whalen as witnesses to support the theory that Ford accidentally committed the murder, or investigate whether Holly could identify a photograph of the pistol as being the weapon he saw Ford in possession of [on] the day of the shooting. . . .

         ‘‘At the second criminal trial, the state established that the bullet recovered from the victim was from a Hi-Point nine millimeter pistol or semiautomatic rifle. At the habeas trial, the petitioner established that Ford showed Holly a black handgun that Ford had tucked into the waistband of his pants on the afternoon of the shooting. Holly believed that a photograph of the Hi-Point nine millimeter pistol used in the shooting looked like the gun that he saw Ford carrying. The murder weapon and Ford’s gun both had ridges above the handle, and ridges were not a common feature on the guns that Holly had seen.

         ‘‘The petitioner’s trial attorneys disagreed as to whether the third party culpability defense should be presented to the jury. Attorney Jones believed that Holly’s testimony should have been presented and Attorney Merkin did not, even though she admitted that Holly’s testimony was consistent with the defense theory of the case, which was that Ford accidentally shot the victim. The court finds the third party culpability defense consisting of the facts that (1) Ford had been the last person seen with the victim, (2) was in close proximity to the location of the shooting at the time of the shooting, and (3) had been seen with a gun matching the description of the murder weapon on the day of the shooting, were consistent with and relevant to the defense theory that it was Ford who shot the victim by accident.

         ‘‘Both Attorney Jones and Attorney Merkin thought that they would not be able to present Holly’s testimony without Ford first admitting that he knew Holly. Trial counsel believed, incorrectly, that they needed, and did not have, a foundation to introduce third party culpability evidence-that is, the testimony of Holly-once Ralph Ford denied knowing Holly while on the witness stand at the petitioner’s criminal trial. At the habeas trial, Attorney Merkin conceded that the presentation of Holly’s testimony was not contingent upon Ford admitting that he knew Holly. The issue with presenting testimony supporting a third party culpability defense is not about presenting a foundation for admitting the evidence; it is about the petitioner’s constitutional right to present a defense and relevant evidence in support of that defense. . . .

         ‘‘[T]he standard for determining whether evidence of third party culpability is admissible is whether the presented evidence is relevant. Here, it was. Holly’s testimony regarding Ford’s possession of the same type of gun that was used to kill the victim on the day of the shooting, as well as other facts pointing to Ford as the shooter, would have established the necessary factual nexus for a third party culpability claim regardless of whether Ford knew Holly. The court finds it reasonably likely that the trial court would have allowed Holly’s testimony.

         ‘‘The [respondent] argues that Attorney Farver communicated to the court on Holly’s behalf that Holly would assert his fifth amendment privilege and refuse to testify if he was called [as a witness]. However, both Attorney Farver and Attorney Merkin testified that they were uncertain that Holly would have been permitted to invoke his fifth amendment privilege at the petitioner’s criminal trial due to the fact that Holly’s pending charges were unrelated to the petitioner’s case. At the criminal trial, Farver reported to the court: ‘I met with Mr. Holly this morning and discussed with him his rights and whether to testify or not to testify if called upon to do so. I explained to him, if he, well, first of all, let me say that he does not wish to testify. It is his position at this point as he expressed to me that he, first of all, would exercise a fifth amendment right, although I candidly don’t know how far the testimony or the inquiry would be going [or] whether he has such a right. Quite honestly, I know that he has pending charges of his own here in the courthouse. I don’t believe those are related to this case. However, he would first of all have to assert a fifth amendment right. The court may choose to find that he does not have a fifth amendment right as to this particular information that is being sought. If the court were to rule in that fashion and order him to testify, I have explained to him that he could be found in contempt of court if he continues to decline to testify; he has indicated to me that his position would still be that he would refuse to testify because he has pending charges and he does not want to testify.’ . . .

         ‘‘In the present case, Holly’s pending charges were unrelated to the petitioner’s case, and there is no indication that Holly’s testimony that he saw Ford with a gun on the day of the shooting would have exposed him to any criminal prosecution in the petitioner’s or any other case. Fear of potential prosecutorial retaliation in an unrelated case does not constitute sufficient grounds to invoke the fifth amendment, as it is a mere subjective belief, not a reality, and the actual testimony would not have been incriminating in any way. Therefore, the court finds that it is not reasonably likely that Holly would have been permitted to invoke his privilege against self-incrimination in the petitioner’s criminal case had trial counsel proffered him as a defense witness to support the third party culpability defense. . . .

         ‘‘In the present case, the court finds that trial counsel was deficient for not pursuing the petitioner’s third party culpability defense because it was supported by a neutral, credible witness, and the evidence was relevant to the central issue of whether a reasonable doubt existed as to whether the petitioner committed the crime. . . . [I]n light of all of the circumstances here, particularly the recanted testimony of Ford, whose testimony served as the state’s primary evidence, and the facts pointing to Ford’s culpability, trial counsel’s failure to . . . present the third party culpability defense fell below an objective standard of reasonableness, and therefore constitutes deficient performance pursuant to [Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)].

         ‘‘The court also further finds that trial counsel’s failure to present the third party culpability defense prejudiced the petitioner because there is a reasonable probability that the outcome of the proceedings would have been different had the defense been presented to the jury. As a result, the court finds that the petitioner has satisfied the prejudice prong of Strickland as to this claim.’’ (Citations omitted.)

         In addressing the aspect of the petitioner’s ineffective assistance of counsel claim that involved the failure of his trial counsel to present evidence in support of an alibi defense that involved the testimony of Johnson and Allen to explain his whereabouts at the time of the shooting, the court set forth relevant legal principles and stated in relevant part: ‘‘The petitioner claims that trial counsel were ineffective for failing to call Johnson and Allen as witnesses to testify that he was home at the time of the shooting in support of an alibi defense. The court agrees with the petitioner on this claim. . . .

         ‘‘The petitioner’s trial counsel [was] aware of the two alibi witnesses, Allen and Johnson, who could testify as to [the] petitioner’s whereabouts between 10 and 11 p.m. on the evening of the shooting, but disagreed as to whether an alibi defense should be presented. They were also aware that the jury in the first trial wanted to know where the petitioner was between 10 to 11 p.m. Attorney Jones wanted to present the alibi defense because he believed the witnesses were credible and their testimony explained the petitioner’s whereabouts at the time of the shooting in response to the first jury’s concerns as to where the petitioner was between 10 and 11 p.m. Attorney Merkin does not like alibi defenses generally, and her practice was not to present an alibi defense unless it was rock solid. Attorney Jones conceded to Attorney Merkin’s decision to not present the alibi defense because she was more senior to him.

         ‘‘At the second criminal trial, James Baker, a Read Street resident, testified that at 10:20 p.m., he heard a gunshot. Baker did not call the police until 10:45 p.m. Prior to the petitioner’s first criminal trial, Attorney Merkin had inaccurate information about the time of the shooting. She mistakenly believed that the shooting occurred at 10:45 p.m. Counsel’s notice of alibi, dated July 29, 2003, inaccurately reported that Baker called the police at 10:45 p.m., immediately after the shooting occurred. It was only when Baker testified at the petitioner’s first criminal trial that counsel became aware that the correct time of the shooting was 10:20 p.m.

         ‘‘Johnson and Allen testified credibly at the habeas trial as to the petitioner’s whereabouts on the night of the shooting. Johnson testified that the petitioner was home between 5and11p.m. on the night of the shooting. During that time, Johnson was home with her young son and was for the most part in the living room in the front of the apartment watching television. From her position, she would have been able to see if the petitioner had left the house during that time. At some point, Johnson was aware that the petitioner and his friend were at the house and ordered a pizza. The living room had two large windows facing the driveway, and any movement outside would have activated the motion sensor lights in the driveway. If the petitioner had left through the back door, Johnson would have heard him because that door screeched loudly when [it was] opened. At approximately 11 p.m., Johnson heard a horn honk outside, and she saw the petitioner leave the house with Allen.

         ‘‘Allen, who also testified at the habeas trial credibly, called the petitioner’s cell phone at 10:20 p.m., and he asked her to call his home telephone number. Allen immediately hung up and called the petitioner at home on his landline. Allen and the petitioner spoke for approximately ten to fifteen minutes on the petitioner’s home phone. The petitioner then called Allen again from his home telephone around 10:40 p.m. or 10:45 p.m. Shortly thereafter, Allen drove to the petitioner’s home, picked him up at approximately 10:50 p.m. or 10:55 p.m. and drove him to Southern Connecticut State University.[11] The court finds that the testimony of Allen and Johnson would have been helpful to the petitioner’s defense.

         ‘‘Inspector Whalen testified that he interviewed Allen and Johnson. Johnson informed him that the petitioner was at home with a friend on the night of the shooting and someone picked the petitioner up between 10:45 p.m. and 11 p.m. Allen told Inspector Whalen that she called the petitioner at his home at 10:20 p.m., and she picked the petitioner up around 10:35 p.m. or 10:40 p.m. to drive him to Southern Connecticut State University. At the time of his interview with Allen, Inspector Whalen was aware of the fact that the victim was shot at 10:20 p.m. Inspector Whalen reported the information he received from Johnson and Allen to the petitioner’s trial counsel.

         ‘‘Trial counsel also had the partial alibi presented at the first criminal trial of Toles, who testified that the petitioner arrived at the Southern Connecticut State University to visit her at approximately 11:10 p.m. on the night of the shooting.

         ‘‘The court finds that trial counsel was aware of the statements of Johnson and Allen, that their testimony was credible and that production of such testimony at trial would have been helpful to the defense. . . .

         ‘‘[H]ere, trial counsel’s decision to not call the alibi witnesses was not based on the witnesses’ credibility. Both Attorney Jones and Attorney Merkin found Johnson and Allen to be credible witnesses. Moreover, the court finds that their testimony would have been helpful to the petitioner’s defense that he was home at the time of the shooting.

         ‘‘Attorney Merkin decided to not present Johnson’s testimony because she was related to the petitioner, the shooting occurred in close proximity to the petitioner’s home and it was unclear whether the petitioner was in her direct vision for the entire evening. Attorney Merkin did not present Allen’s testimony because she believed that Allen estimated the times of the phone calls, and the petitioner’s close proximity to the crime scene would have allowed him to commit the murder despite receiving and making the phone calls at the times indicated by Allen. Trial counsel acknowledged at the habeas trial, however, that they failed to investigate Johnson’s ability to provide an alibi at the times when the petitioner was not in her direct view. Johnson testified that the motion sensor lights and the screeching back door would have prevented the petitioner from leaving the house without Johnson’s knowledge. Moreover, the times of the phone calls between Allen and the petitioner were seen on Allen’s caller identification. That evidence, if presented, would have established that the petitioner was at home using his landline at the time the shooting occurred. Further, while Attorney Merkin was concerned that the alibi defense would place the petitioner in close proximity to the crime scene, there was already evidence before the jury that the petitioner was at Southern Connecticut State University, close to the crime scene, shortly before 11 p.m. on the night of the victim’s murder. In addition, the evidence from the three alibi witnesses covered the time period between 10 and 11 p.m., making it highly unlikely that the petitioner could have committed the shooting.

         ‘‘The court is particularly influenced by the fact that when trial counsel decided notto submit the petitioner’s alibi, they were aware that the first jury was conflicted about the petitioner’s guilt, which resulted in a hung jury, and [counsel] knew that the first jury wanted to know where the petitioner was at the time the shooting occurred. While each jury is different, having this information in the petitioner’s second criminal ...


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