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Horn v. Commissioner of Correction

Supreme Court of Connecticut

June 28, 2016

VERNON HORN
v.
COMMISSIONER OF CORRECTION

          Argued February 22-2016

          Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, Eugene R. Calistro, Jr., senior assistant state’s attorney, and Erika L. Brookman, assistant state’s attorney, for the appellant (respondent).

          Richard A. Reeve, with whom was Allison M. Near, for the appellee (petitioner).

          Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa and Robinson, Js.

          OPINION

          ESPINOSA, J.

         The issue that we must resolve in this appeal is whether the habeas court properly granted the petition for a writ of habeas corpus filed by the petitioner, Vernon Horn. After a joint jury trial with his codefendant, Marquis Jackson, the petitioner was convicted of ten offenses[1] in connection with a robbery and murder he committed in 1999 in New Haven. Following the petitioner’s direct appeal, the Appellate Court affirmed the judgment of conviction. State v. Jackson, 73 Conn.App. 338, 341, 808 A.2d 388, cert. denied, 262 Conn. 929, 930, 814 A.2d 381 (2002). Thereafter, the petitioner filed a petition for a writ of habeas corpus in which he claimed, among other things, that he was deprived of his sixth amendment right to effective assistance of counsel during his trial because his counsel had failed to conduct an adequate pretrial investigation and had failed to adequately present a defense at trial.[2] After a trial, the habeas court agreed with the petitioner’s claim, granted his petition for a writ of habeas corpus and ordered that the petitioner’s conviction be set aside. The respondent, the Commissioner of Correction, then filed this appeal from the judgment of the habeas court.[3] We conclude that the habeas court improperly granted the petitioner’s petition for a writ of habeas corpus. Accordingly, we reverse the judgment of the habeas court.

         The jury in the underlying criminal trial reasonably could have found the following facts, as set forth by the Appellate Court in its opinion addressing the petitioner’s direct appeal from the judgment of conviction. ‘‘On January 24, 1999, at approximately 3:30 a.m., Jackson and [the petitioner], along with Steven Brown, entered the Dixwell Deli [deli] on Dixwell Avenue in New Haven, wearing masks and carrying handguns. As [the petitioner] entered the deli, he fired five or six shots from a nine millimeter pistol. One bullet struck Caprice Hardy, a customer, and killed him. A second bullet struck Abby Yous if, an owner of the deli, in the shoulder. Brown and Jackson followed [the petitioner] into the deli.

         ‘‘Jackson then went behind the counter and attempted to open the cash register. [The petitioner] and Brown went to the deli’s back room where they found Vernon Butler, an off-duty employee, and Warren Henderson, a homeless man who helped out around the store. Butler was hit on his head with the butt of a gun, searched for money and taken to the front of the store by [the petitioner] to open the cash register. When Butler could not open the register, Jackson took the cash that Yousif had in his pockets. Butler’s [cell phone] was also stolen. The [cell phone] was subsequently used the day after the robbery by Marcus Pearson, who had obtained it from [the petitioner].

         ‘‘During the course of the robbery, two customers, one of whom was Kend[e]ll Thompson, entered the deli. Upon entering, each individual was forced to the ground at gunpoint and ordered to turn over whatever money they possessed.

         ‘‘In the back room, Brown [rifled] through Henderson’s pockets, looking for any money that he may have had. Finding no money on Henderson’s person, Brown searched the cigar boxes in the back room to see if there was any cash hidden there. After searching the back room, Brown returned to the front of the deli, where [the petitioner] was shouting orders by the door and Jackson was still behind the counter near the cash register. Upon hearing the sound of sirens, Jackson, [the petitioner] and Brown fled the scene.

         ‘‘The police processed the crime scene and found latent fingerprints on a cigar box in the back room. The prints matched Brown’s fingerprints on file with the Bridgeport [P]olice [D]epartment. When interviewed by the New Haven police, Brown admitted his participation in the January 24, 1999 robbery and identified Jackson and [the petitioner] as the other individuals involved. Jackson and [the petitioner] were arrested and tried jointly. Jackson was found guilty of eight of the ten counts on which he was charged and sentenced to a total effective sentence of forty-five years imprisonment. [The petitioner] was found guilty of all ten counts on which he was charged and sentenced to a total effective sentence of seventy years imprisonment.’’ (Footnotes omitted.) State v. Jackson, supra, 73 Conn.App. 342–43. The petitioner appealed from the judgment of conviction, and the Appellate Court affirmed the judgment. Id., 341.

         Thereafter, the petitioner filed a petition for a writ of habeas corpus, in which he claimed, among other things, that his trial counsel, Leo Ahern, had failed to provide effective assistance at trial. Specifically, he raised the following two claims that are relevant to this appeal. First, he claimed that Ahern did not adequately investigate the state’s theory that the petitioner was in possession of the cell phone that had been stolen during the course of the robbery and, if Ahern had investigated, he would have discovered witnesses who would have contradicted the state’s theory. Second, he claimed that Ahern did not adequately investigate Brown’s testimony that the petitioner had been with him before, during and after the robbery and murder and that, if Ahern had investigated, he would have discovered evidence that contradicted that testimony. In addition to these ineffective assistance of counsel claims, the petitioner claimed that he was deprived of his constitutional due process right to a fair trial because key state’s witnesses perjured themselves during trial and that he was actually innocent. The habeas court conducted a trial on the petition for a writ of habeas corpus over the course of eight days.

         After trial, the habeas court concluded that Ahern had failed to provide effective counsel to the petitioner when he failed to discover the evidence that undermined Brown’s testimony that the petitioner had been with him before, during and after the robbery and murder, but it concluded that that failure was not prejudicial because the new evidence did not provide a complete alibi to the petitioner. In addition, the habeas court rejected the petitioner’s constitutional and actual innocence claims. The habeas court also concluded, however, that, contrary to the state’s theory at trial, the testimony of the new witnesses at the habeas trial regarding the stolen cell phone established that the cell phone could not have been in the petitioner’s possession the day after the murder.[4] The habeas court further concluded that Ahern’s failure to obtain this information before the criminal trial was deficient performance and that the deficient performance had prejudiced the petitioner’s defense. Accordingly, the court granted the petitioner’s petition for a writ of habeas corpus and ordered that his conviction be set aside.

         On appeal, the respondent concedes that Ahern provided ineffective assistance of counsel by failing to adequately investigate who was in possession of the stolen cell phone in the days following the robbery and murder, but contends that the habeas court incorrectly determined that Ahern’s deficient performance was prejudicial to the petitioner. The petitioner disputes this claim and claims as alternative grounds for affirmance that the habeas court improperly determined that: (1) he was not prejudiced by Ahern’s failure to investigate and discover the evidence that undermined Brown’s testimony concerning the petitioner’s whereabouts before, during and after the robbery and murder; (2) the state’s use of perjured testimony did not deprive the petitioner of his constitutional due process right to a fair trial; and (3) the petitioner had failed to establish his claim of actual innocence. We agree with the respondent’s claim and reject the petitioner’s alternative grounds for affirmance.

         Before addressing the parties’ specific claims, we set forth the standard of review governing ineffective assistance of counsel claims. ‘‘The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review. . . .

         ‘‘A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings [pursuant to Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . As enunciated in Strickland v. Washington, supra, 687, this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel. . . . A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.’’ (Citations omitted; internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 509–10, 964 A.2d 1186, cert. denied sub nom. Murphy v. Bryant, 558 U.S. 938, 130 S.Ct. 259, 175 L.Ed.2d 242 (2009).

         ‘‘An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. . . . To satisfy the second prong of Strickland, that his counsel’s deficient performance prejudiced his defense, the petitioner must establish that, as a result of his trial counsel’s deficient performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. . . . The second prong is thus satisfied if the petitioner can demonstrate that there is a reasonable probability that, but for that ineffectiveness, the outcome would have been different.’’ (Citations omitted; internal quotation marks omitted.) Id., 522. ‘‘In making this determination, a court hearing an ineffectiveness claim [based on counsel’s failure to investigate] must consider the totality of the evidence before the judge or the jury. . . . Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.’’ Strickland v. Washington, supra, 466 U.S. 695–96.

         I

         We first address the respondent’s claim that the habeas court incorrectly determined that Ahern’s failure to adequately investigate who was in possession of the stolen cell phone was prejudicial under Strickland. We agree.

         The following additional facts and procedural history are relevant to this claim.[5] As we have indicated, Butler’s cell phone was stolen during the robbery. At the petitioner’s criminal trial, the state presented records from Omnipoint Communications regarding calls made from the cell phone after it was stolen. Those records showed that the following five calls had been made from the cell phone: (1) a call to a Bridgeport number on January 24, 1999, at 4:14 a.m. (first call); (2) a call to a Bridgeport number on January 24, 1999, at 10:48 p.m. (second call); (3) a call to a Bridgeport number on January 25, 1999, at 10:40 a.m. (third call); (4) a call to a New Haven number on January 25, 1999, at 11:07 a.m. (fourth call); and (5) a call to a Bridgeport number on January 25, 1999, at 2:32 p.m. (fifth call). Brown testified at the criminal trial that he had made the first call to Willie Sadler while he, Jackson and the petitioner were driving back to Bridgeport after the robbery, that he made the second call to a female acquaintance and that he made the third call to a drug dealing associate. Brown further testified that, after making the third call, he gave the cell phone to the petitioner, and he never saw it again. Brown and the petitioner were on Stratford Avenue in Bridgeport at the time. Brown denied that he or Sadler made the fourth call. Brown also denied that he made the fifth call.

         Pearson, who was an acquaintance of the petitioner’s and who was at the deli shortly before the robbery, testified at the criminal trial that, at approximately 11 a.m. on the morning of January 25, 1999, Shalonda Jenkins, whom Pearson knew only as ‘‘Yogi, ’’ and the petitioner came to his house in New Haven. During their visit, Pearson borrowed a cell phone from the petitioner and used it to make the fourth call to Crystal Sykes.[6]Pearson’s testimony on this point, however, was somewhat equivocal. He did not recall making the fourth call to Sykes when the police first questioned him. At some point, however, Pearson apparently came to believe that the police had cell phone records that showed that the fourth call had been made from his house.[7] It was not until the police told Pearson that Sykes had told them that he called her and showed Pearson the cell phone records indicating that the fourth call had been made to the residence where Sykes worked that Pearson remembered making the call. Pearson also testified that he believed that the police suspected him of being involved in the robbery and murder.

         At the habeas trial, the petitioner called Pearson, Sykes, Sadler, William Newkirk, who was Sykes’ boyfriend at the time of the robbery and murder, and Leroy Dease, a detective with the New Haven Police Department, as witnesses on this issue. Sykes testified that, in January, 1999, she was working at a residence at 59 Ivy Street in West Haven taking care of an incapacitated couple.[8] Counsel for the petitioner questioned Sykes about a statement that she had made to the New Haven Police Department on February 2, 1999. Sykes agreed that she had stated that she did not recall receiving a telephone call from Pearson while working at the 59 Ivy Street address, but she also stated that there was a ‘‘good possibility’’ that Pearson may have called her at ‘‘around eleven o’clock’’ on January 25, 1999. She initially thought, however, that the call had been made at 11 p.m. Sykes also testified at the habeas trial that she did not know who made the fourth call or if she received the call, and that was what she had tried to tell the police during the investigation. On cross-examination, Sykes testified that Pearson had called her several times at the 59 Ivy Street address. She further testified that she had ‘‘always admitted that [she] had gotten the call.’’ It was possible, however, that the call might have been from someone looking for Newkirk. Ultimately, the habeas court interrupted the examination of Sykes, stating that ‘‘[y]ou are not going to get any clarity on this particular . . . issue . . . .’’

         Newkirk testified at the habeas trial that the police told him that Sadler had called him from a cell phone that had been stolen during a robbery and murder.[9]Newkirk contacted Sadler and encouraged him to tell the police who had made the calls from the cell phone. On March 3, 1999, Newkirk called Dease and told him that Sadler was ready to talk about the calls from the cell phone. The next day, Newkirk and Sadler met with Dease at Sadler’s residence in Bridgeport. Newkirk testified that he told Sadler to tell Dease ‘‘who got that phone from where he called my cell phone from.’’[10]According to Newkirk, Sadler told Dease that Brown had allowed Sadler to use the cell phone. Newkirk also testified that Sadler had occasionally called him on the telephone at the 59 Ivy Street address in West Haven, because Newkirk’s cell phone did not work in that location. On cross-examination, Newkirk testified that he never told Dease that Sadler had made the fourth call to him. Newkirk also testified that he had received a telephone call from Sadler at the 59 Ivy Street address when Sadler was ‘‘trying to find [him].’’ He did not testify as to the date and time of that call.

         Dease testified that, on March 4, 1999, when he went to Sadler’s residence in Bridgeport to meet with Sadler and Newkirk, Sadler told Dease at that point that Brown had made the first and fifth calls to Sadler. Dease did not recall asking Newkirk at any time if Sadler made the fourth call to him, and Dease agreed with the statement that Newkirk ‘‘was not on his radar screen’’ as being the recipient of any of the cell phone calls.

         Pearson testified at the habeas trial that, contrary to his testimony at the criminal trial, he did not see a cell phone in the petitioner’s possession on the morning of January 25, 1999, that he did not borrow a cell phone from the petitioner and that he did not call Sykes. Pearson testified that he lied at the criminal trial because the police told him that, if he had not borrowed the cell phone from the petitioner, he must have stolen it during the robbery. Pearson was afraid that, if he refused to testify that he had borrowed the cell phone from the petitioner, he would go to jail and lose custody of his children for a crime that he did not commit. On cross-examination, Pearson testified that, during the week of January 23 through February 2, 1999, Sykes had called him ‘‘almost every day if not every other day’’ to arrange for marijuana purchases.

         Sadler testified at the habeas trial that Brown had made the first and fifth calls to him. Sadler also testified that he knew Newkirk and that he had been to the 59 Ivy Street residence with Newkirk. During his examination of Sadler, counsel for the petitioner requested that Sadler’s statement to the New Haven Police Department, given on March 5, 1999, the day after Sadler met with Newkirk and Dease in Bridgeport, be admitted as a prior inconsistent statement. In that statement, Sadler denied having made the fourth call.

         In addition to the testimony of these five witnesses, the petitioner presented in written form testimony that Jenkins had given at Jackson’s habeas trial. Jenkins was unavailable to testify at the petitioner’s habeas trial because she had died in the interim. Jenkins had testified at Jackson’s habeas trial that, on the morning of January 25, 1999, she walked to her grandmother’s house on Shelton Avenue in New Haven. The petitioner, who was Jenkins’ cousin, was in their grandmother’s house and asked Jenkins to take a walk with him. After approximately twenty minutes, Jenkins and the petitioner started walking to Pearson’s house at 12 Elizabeth Street in New Haven. Jenkins testified that the time was ‘‘between 9 and 10 [a.m.]. Around about that time. Because it was in the morning.’’ The walk took approximately fifteen minutes. They rang the doorbell at Pearson’s house, and Pearson’s mother answered the door. When Pearson came to the door, he did not leave the house, but stood in the doorway. Jenkins did not see the petitioner give a cell phone to Pearson and did not see a cell phone in the petitioner’s possession. After leaving Pearson’s house, Jenkins and the petitioner returned to their grandmother’s house. Although the petitioner was her cousin, Jenkins testified that she never gave this information to the police or to the petitioner’s attorney at the time of the criminal trial.[11] Jenkins testified that she was not aware at the time of the petitioner’s criminal trial that he had been arrested and charged with the robbery and murder.

         The habeas court concluded that this evidence ‘‘leads to only one conclusion as to the whereabouts of the cell phone over the two days. The cell phone was taken by Brown to Bridgeport on January 24, 1999, where it remained. The cell phone never came back to New Haven. . . . Therefore . . . Pearson never got the cell phone from the petitioner and never used it to call . . . Sykes as he testified at the criminal trial. Rather . . . Sadler got the phone from Brown and called . . . Newkirk at the residence of . . . Sykes. This evidence was elicited from Newkirk at the habeas trial.’’ In support of this conclusion, the habeas court appears to have relied heavily on the timing of the calls. Specifically, the habeas court found it ‘‘implausible’’ that Brown could have used the cell phone in Bridgeport at 10:40 a.m. on January 25, 1999, then given the cell phone to the petitioner, who, twenty-six minutes later, loaned it to Pearson at his residence in New Haven so that he could call Sykes, and then returned to Bridgeport where he gave the cell phone to Brown so that Brown could make the fifth call to Sadler at 2:32 p.m. As we have indicated, the habeas court concluded that the failure to present the new evidence at the criminal trial constituted ineffective assistance of counsel and undermined the court’s confidence in the jury verdict.

         We conclude that, contrary to the habeas court’s determinations, the new evidence relating to the use of the cell phone in the days after it was stolen neither conclusively established that Pearson, after borrowing the cell phone from the petitioner, could not have made the fourth call nor gave rise to a reasonable probability that the verdict would have been different if that evidence had been presented at the criminal trial.[12] As the habeas court itself recognized, Sykes’ testimony on the issue of whether she had received the fourth call from Pearson was hopelessly unclear. With respect to New-kirk’s testimony, although the habeas court stated that evidence that Sadler received the cell phone from Brown and made the fourth call to Newkirk ‘‘was elicited from Newkirk, ’’ Newkirk testified that the police had told him that Sadler had used the cell phone to call him. Newkirk also gave hearsay testimony that Sadler had stated at the March 4, 1999 meeting with Dease that he had used the cell phone to call the telephone at the 59 Ivy Street address, but Sadler denied having made the fourth call in his statement to the police on March 5, 1999. Moreover, Dease testified that he did not recall asking Newkirk whether Sadler had made the fourth call to him and that Newkirk ‘‘was not on [his] radar screen’’ as being a possible recipient of the call during the meeting with Newkirk and Sadler. Thus, even if Newkirk believed that he was testifying truthfully, the most reasonable explanation for this conflicting evidence is that Newkirk was simply confused about the evidence regarding the stolen cell phone and what had transpired at the March 4, 1999 meeting.[13]Moreover, although Newkirk testified that Sadler had occasionally called him at Sykes’ place of work, he did not testify as to the dates or times of those calls.

         With respect to Sadler’s testimony that Brown had made the first and fifth calls to him and that he knew Newkirk had been to the 59 Ivy Street address, this testimony, although consistent with the petitioner’s theory that the cell phone was continuously in Bridgeport and that Sadler had made the fourth call, certainly does not compel such a conclusion.

         As to Jenkins’ testimony at Jackson’s habeas trial that the petitioner had been with her for approximately thirty-five minutes before they arrived at Pearson’s house on the morning of January 24, 1999, and that she did not see the petitioner give the cell phone to Pearson, the habeas court in the present case had no opportunity to personally assess Jenkins’ credibility because the testimony was in written form. We note, however, that this testimony was given more than twelve years after the incident in question and that her memory of certain details was incorrect. Indeed, the transcript of Jenkins’ testimony at Jackson’s habeas trial reveals that she testified implausibly that she was not even aware that the petitioner had been arrested and charged with the crimes, in direct contradiction to Ahern’s testimony at the habeas trial, confirmed by the criminal trial transcript, that Jenkins had been present at the petitioner’s criminal trial. See footnote 11 of this opinion. Accordingly, we conclude that the jury would not have been compelled to believe this testimony. Indeed, neither the habeas court nor the petitioner relies on Jenkins’ testimony that the petitioner was with her for thirty-five minutes before they arrived at Pearson’s house. Rather, they rely solely on Jenkins’ testimony that she did not see the petitioner give the stolen cell phone to Pearson. With respect to that testimony, even if credited, it would not compel the conclusion that the event did not happen.

         Finally, as to Pearson’s recantation of his testimony at the criminal trial, we previously have recognized that ‘‘courts universally view recantation evidence with a healthy dose of skepticism.’’ Gould v. Commissioner of Correction, 301 Conn. 544, 568, 22 A.3d 1196 (2011). The sole basis for the habeas court’s determination that Pearson’s testimony at the petitioner’s criminal trial was false was ‘‘the evidence presented by the other witnesses’’ at the habeas trial. As we have explained, however, although the testimony of the other witnesses may have been consistent with the petitioner’s theory that Brown had continuous possession of the stolen cell phone over the course of the five calls, the testimony was far from conclusive on the issue.

         We conclude, therefore, that, far from compelling the conclusion that, contrary to Brown’s and Pearson’s testimony at the criminal trial, the stolen cell phone was continuously in Bridgeport in the days following the robbery and murder and Pearson could not have made the fourth call, the new evidence was extremely weak and confusing. Indeed, even if entirely credited, the testimony of Sykes, Newkirk, Sadler and Dease at the habeas trial merely left open the possibility that Sadler had made the fourth call.[14] Although Jenkins’ testimony that the petitioner was with her for thirty-five minutes before they arrived at Pearson’s house, if credited, would be very difficult to reconcile with the state’s ...


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