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Westberry v. Commissioner of Correction

Court of Appeals of Connecticut

December 20, 2016


          Argued October 13, 2016

         Appeal from Superior Court, judicial district of Hartford, Schuman, J.

          Naomi Fetterman, with whom, on the brief, was Aaron J. Romano, for the appellant (petitioner).

          Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellee (respondent).

          DiPentima, C. J., and Alvord and Gruendel, Js.


          ALVORD, J.

         The petitioner, Troy Westberry, appeals from the judgment of the habeas court denying his second petition for a writ of habeas corpus.[1] On appeal, the petitioner claims that the habeas court erred by rejecting his claim that perjured testimony was used at his criminal trial, in violation of the fourteenth amendment to the federal constitution, and that he is actually innocent. We disagree and, accordingly, affirm the judgment of the habeas court.

         At trial, the jury reasonably could have found the following facts. The events giving rise to the petitioner's conviction were the culmination of a period of animosity between a group of individuals that included the petitioner and Jesse Pope and another group of individuals that included Gerald Jenkins, Dwayne Stewart, and the victim, Anthony Bennefield. That hostility manifested itself in several violent altercations between members of the two groups.

         On May 5, 1999, Jenkins unsuccessfully attempted to drive Pope off the road with his Chevrolet Lumina, and, when he was unsuccessful, Jenkins fired shots in Pope's direction as he drove away. Around 8 p.m. that same day, Stewart saw the petitioner driving a gold Chevrolet Monte Carlo along the same street as the victim was walking. He then heard the sound of two gunshots and observed the victim ‘‘hit the ground.'' After the petitioner drove away, the victim approached Stewart and told him that the petitioner had fired the shots in his direction but that he was unsure whether the petitioner was trying to shoot him. Later that night, the victim, Stewart, and others celebrated the victim's birthday at a local night club. At some point that evening, the victim went outside and fell asleep in the Lumina, which was parked in front of the club. At around 1:30 a.m., Stewart, Joseph Smith, and two other men, left in the Lumina with the victim, who was still asleep. Shortly after driving away from the club, Stewart pulled over to the side of Lenox Street, and several of the vehicle's occupants smoked marijuana.

         Thereafter, the petitioner pulled very closely along the driver's side of the Lumina in the Monte Carlo and fired four shots in its direction. After the petitioner had driven away, Stewart and the other men in the Lumina realized that the victim had been shot. Police and emergency medical personnel arrived on the scene shortly after one of the men summoned help, but the victim ultimately died from his injuries.

         On May 6, 1999, the day after the shooting, the police took a voluntary statement from Smith, who recalled another passenger yelling, ‘‘that's Troy, '' when the Monte Carlo pulled up. On May 8, 1999, the police took a voluntary statement from Stewart, who recalled hearing someone yell, ‘‘Yo, that's Troy, '' and observed someone that appeared to be the petitioner just before shots were fired. On May 13, 1999, the police took a voluntary statement from Jesse Campbell. Campbell explained that just prior to the shooting the petitioner pulled into a Kentucky Fried Chicken restaurant in a Monte Carlo and parked next to him. Campbell stated that he recognized the petitioner because they had lived near each other for about two years, and they waved to each other while in the parking lot. A short while later, Campbell watched as the Monte Carlo turned off its headlights, proceeded down Lenox Street, and drove alongside the Lumina. He then heard shots being fired and observed flashes coming from the Monte Carlo. The Monte Carlo sped away, and Campbell observed the petitioner as its only occupant. Campbell identified a picture of the Monte Carlo as the vehicle he saw the petitioner driving on night of the shooting, and he identified a photograph of the petitioner from a photographic array.

         The petitioner was tried and convicted of murder in violation of General Statutes § 53a-54a in Hartford in 2000. At trial, the state's evidence included the following relevant testimony from Campbell, Smith, and Stewart. Campbell testified about his observation of the Monte Carlo and the petitioner on the night of the shooting. He also identified the petitioner in court, and he identified the photograph of petitioner he selected from a photographic array he was shown when he gave his statement to the police. Smith testified that he was a passenger in the Lumina when the shooting occurred, but he stated that he did not see who fired the shots because he ‘‘ducked'' down until after the shooter drove away. He also explained that he did not remember much about the night of the shooting because he had consumed about six shots of alcohol and six marijuana joints and had suffered permanent memory loss from a brain injury in August 1999. Finally, Stewart testified that he was driving the Lumina on the night of the shooting and that he remembered a Monte Carlo pulling up very closely alongside the Lumina. Stewart testified that he looked into the Monte Carlo to see who was driving and, seconds before the shots were fired, shouted, ‘‘That's Troy!'' Stewart also stated that he recognized the Monte Carlo as being the same vehicle that he had seen the petitioner driving earlier that evening. After his conviction, the petitioner filed a direct appeal, and this court affirmed the petitioner's conviction on March 19, 2002. State v. Westberry, 68 Conn.App. 622, 638, 792 A.2d 154, cert. denied, 260 Conn. 923, 797 A.2d 519 (2002).

         On December 30, 2003, Campbell and his mother had a conversation over a monitored telephone line while he was incarcerated on unrelated criminal charges. During that conversation, Campbell opined that the prosecutor recently discussed in open court the fact that he testified for the state in the petitioner's criminal trial. In the recorded conversation, Campbell repeatedly expressed his concern that people in jail were going to find out that he testified for the state. At one point during the conversation, Campbell said: ‘‘Well of course that I lied; I don't know nothing about that shit, what?'' The recording of the conversation between Campbell and his mother subsequently was disclosed to the petitioner.

         On January 14, 2003, the petitioner filed his first petition for a writ of habeas corpus, in which he claimed actual innocence and a due process violation based on Campbell's purported perjury. Westberry v. Commissioner of Correction, Superior Court, judicial district of New Haven, Docket No. CV-03-0473101-S, (September 15, 2011), aff'd, 141 Conn.App. 901, 59 A.3d 1205 (2013). On June 7, 2011, the first habeas court, Zoarski, J., conducted an evidentiary hearing at which the petitioner presented the testimony of James Ouludsen, the petitioner's investigator, and Assistant State's Attorney Vicki Melchiorre.[2] Ouludsen testified that on June 17, 2007 he interviewed and took a statement from Campbell. In that statement, Campbell denied knowing the petitioner or seeing him at the time of the shooting incident and admitted to lying at the petitioner's criminal trial. Melchiorre testified that she was the attorney that prosecuted the petitioner at his criminal trial. She testified that Campbell was reluctant to testify at the petitioner's criminal trial because he was concerned about his safety in prison and because ‘‘he didn't want to be labeled as a snitch.'' On September 15, 2011, the first habeas court denied the petitioner's first habeas petition because the petitioner failed to establish that he was actually innocent of murder or that his conviction was the result of a due process violation. Westberry v. Commissioner of Correction, supra. In particular, the first habeas court found that it could not ‘‘judge the credibility of the alleged recantations of Jesse Campbell in the absence of his testimony under oath and subject to cross-examination.'' Id. This court summarily affirmed the judgment of the first habeas court. Westberry v. Commissioner of Correction, 141 Conn.App. 901, 59 A.2d 1205 (2013).

         On June 5, 2012, Smith participated in a proffer session[3] with federal authorities in which he stated that he had lied at the petitioner's criminal trial about not remembering anything about the shooting incident. He claimed that when the petitioner pulled alongside the Lumina, he observed ‘‘Bub, '' subsequently identified as Lorenza Mack, in the front passenger seat of the Monte Carlo . At the proffer session, Smith stated that he attempted to fire a nine millimeter firearm at the Monte Carlo, but the firearm malfunctioned and did not fire.[4]Smith then claimed that he saw Mack produce a firearm and shoot at the Lumina before he and the petitioner drove away. After the proffer session, a federal agent that participated in the proffer session prepared a written report summarizing Smith's statements (proffer statement). A copy of the proffer statement was subsequently provided to Smith and the petitioner.

         On November 19, 2014, the petitioner filed an amended petition for a writ of habeas corpus (second habeas petition), which is the subject of this appeal. In this action, the petitioner alleged actual innocence and a due process violation based on the purported perjury of Campbell and Smith at his criminal trial.[5] On January 5, 2015, the second habeas court, Schuman, J., conducted hearing trial at which the petitioner presented the testimony of the following witnesses.[6]

         The first witness presented by the petitioner was Smith, who testified by telephone from a federal correctional facility. During his testimony, Smith stated that he never reviewed the proffer statement, and he disagreed with the federal agent's summary of his statements on multiple occasions, particularly concerning the order of events during the shooting incident.[7] Smith also provided equivocal testimony concerning the shooting itself. Smith stated on multiple occasions that he ‘‘believed'' that Mack was the shooter rather than petitioner[8] because that was the rumor on the street. In particular, Smith explained that ‘‘being that I was younger than most of them, I never really knew them [i.e., the petitioner or Mack], but I was in the car that night and that's who everybody believes it was [i.e., Mack]. That was the rumor on the street.''

         The petitioner then presented the testimony of Jill Therriault, a forensic firearms examiner, and Stewart to corroborate Smith's proffer statement to federal authorities. Therriault testified that she inspected the unfired nine millimeter cartridges that were recovered from the scene of the shooting, but she could not identify or eliminate them as having been cycled through the type of firearm Smith said he attempted to shoot at the Monte Carlo. Stewart testified that a defense investigator had shown him Smith's proffer statement, but, during the second habeas trial, he gave equivocal testimony concerning its accuracy. On direct examination, Stewart was asked whether Smith's proffer statement said that ‘‘Mack was the shooter and that he fired and Troy drove away, '' and Stewart replied, ‘‘Yes.'' Stewart was then asked, ‘‘isn't that true?'' and he replied, ‘‘Yes.'' On cross-examination, however, Stewart acknowledged that in his statement to the police on May 8, 1999, two days after the shooting, he never mentioned Mack. He also acknowledged that he never mentioned Mack at trial and that he testified that he yelled, ‘‘That's Troy, '' when the Monte Carlo pulled up next to them. On redirect examination, Stewart was asked again if Smith's proffer statement was ‘‘the true version of the events, '' and he replied, ‘‘Sort of, yes.'' Later, when asked about whether he remembered Smith attempting to shoot at the Monte Carlo, Stewart replied, ‘‘I don't know about that, '' and when he was asked if he wanted to look at Smith's statement again, he replied, ‘‘Something ain't right.''

         The petitioner's final two witnesses were Thomas Davis and Jason Douglas, who were called to establish that Mack shot the victim, not the petitioner. Davis testified that Mack was ‘‘jumped'' by the victim and two other men three months before the shooting. Douglas, a defense investigator, testified about his interview of Guy Eugene, who is currently serving a sentence for killing Mack. Douglas explained that Eugene told him that he killed Mack in retaliation for the victim's death, and he then prepared a written statement of their discussion. Douglas stated that he gave Eugene an opportunity to look at his notes but that Eugene declined to sign the statement he prepared.

         In addition to the testimony of these witnesses, the habeas court admitted several exhibits, including all of the transcripts from the petitioner's criminal trial, the transcripts from the petitioner's first habeas trial, Campbell's telephone conversation with his mother, Campbell's sworn statement, [9] Smith's proffer statement, [10] and the affidavit by Douglas in which he memorialized Eugene's purported statements to him (Eugene's statement).[11]

         On February 18, 2015, the second habeas court issued a written memorandum of decision denying the petitioner's second habeas petition. In that memorandum, the court discredited the testimony and statements of Smith and Stewart as well as the statements made by Campbell and Eugene.[12] Concerning Smith, the court found that his testimony at the hearing was not credible because ‘‘his testimony at the hearing on the shooting was hesitant, saying he does not ‘believe' the shooter was the petitioner and that he ‘believes' the shooter was Lorenza Mack. He also admitted that some of his proffer, particularly concerning the order of events during the shooting incident, was wrong.'' The court observed: ‘‘It is hard to see how he could have remembered so little in 2000, one year after the shooting, perhaps understandably because he was under the influence of alcohol and drugs, and yet recant and identify the shooter twelve and fourteen years after the incident.''

         Concerning Stewart, the court noted that Stewart's testimony was ‘‘extremely hesitant'' and that ‘‘[h]e provided only reluctant answers in response to leading questions.'' The court observed: ‘‘There was no mention in [Stewart's] virtually contemporaneous [sworn] statement [to the police two days after the shooting] of Lorenza Mack or Bub, thus casting grave doubt on the veracity of Stewart's testimony at the habeas trial over fourteen years later.''

         Concerning Campbell, the court found that, after reviewing Campbell's phone call and sworn statement, ‘‘it cannot put any weight on his alleged recantations in the absence of seeing Campbell in person and having him face cross-examination.''

         Finally, the court ‘‘attach[ed] no weight to Eugene's statement'' because ‘‘[t]he affidavit consisted of the investigator's rendition of Eugene's oral statements, '' ‘‘Eugene himself declined to sign a written statement, '' and the affidavit stated that Eugene would be willing to testify in court, which was untrue. The court also observed: ‘‘Eugene's motive or state of mind as to why he would kill Mack is essentially irrelevant and does not in any way constitute reliable evidence as to who killed [the victim].''[13]

         In its memorandum of decision, the second habeas court also rejected the petitioner's actual innocence and due process claims. The court articulated several bases for its conclusion. In relevant part, the court rejected the petitioner's actual innocence claim on the merits because he ‘‘failed to prove by clear and convincing evidence that he is actually innocent of murder and that no reasonable jury would find him guilty.'' In particular, the court observed that ‘‘[t]he petitioner's case instead rested almost entirely on the recantations of the key witnesses, '' and ‘‘[o]ur law views such recantations with skepticism.'' Furthermore, the court explained that ‘‘there are good reasons to remain highly skeptical of the recantations in this case. In addition to those specific reasons, there is the more general concern that the petitioner did not offer any valid explanation, such as a mistaken identification, why the recanting witnesses would all proceed to provide false testimony at the criminal trial and, with the exception of Smith, implicate the petitioner.''

         The court also rejected the petitioner's due process claim on the merits. The court first explained that the petitioner had withdrawn the claim in his petition that the state knew or should have known that false testimony was presented at the criminal trial. Nonetheless, the court explained that the petitioner, relying on Ortega v. Duncan, 333 F.3d 102 (2d Cir. 2003), claimed that ‘‘the court should grant habeas relief because the jury relied on perjured, material testimony, even if the state did not know . . . of the perjury.'' Although the court observed that ‘‘Connecticut . . . has not adopted the Ortega rule, '' it nonetheless held that, regardless, the defendant could not prevail under the Ortega standard because he failed to establish that ‘‘the witnesses presented false testimony at trial and that their recantations are true.''


         We first address the petitioner's claim that the habeas court erroneously concluded that his due process rights were not violated by the use of perjured testimony at his criminal trial. The petitioner has withdrawn any claim that the state knew or should have known that it was presenting purportedly perjured testimony, and, instead, he argues that ‘‘the use of perjured testimony [in his criminal trial], even absent the [s]tate's knowledge, is a violation of due process. . . .'' It remains an open question in Connecticut whether the state's unknowing use of perjured testimony at trial can violate due process. Gould v. Commissioner of Correction, 301 Conn. 544, 570-71 and n.18, 22 A.3d 1196 (2011). The majority of jurisdictions require a habeas petitioner to prove that the state knew or should have known that it was presenting false testimony to raise a due process claim. Id., 570 n.18. However, a minority of jurisdictions, including the United States Court of Appeals for the Second Circuit, have held that the use of perjured testimony at trial by itself, even without the state's knowledge of its falsity, can give rise to a due process claim. Id; see, e.g., Ortega v. Duncan, supra, 333 F.3d 108. We conclude that it is unnecessary for us to resolve whether Connecticut recognizes a due process claim based on the state's unknowing use of perjured testimony because we agree with the second habeas court that the petitioner failed to establish that perjured testimony was used at his criminal trial.

         To support his claim that his conviction was based on the use of perjured testimony, the petitioner relies on Campbell's and Smith's recantations. However, the habeas court explicitly discredited these recantations. It is well established that ‘‘[t]his court does not retry the case or evaluate the credibility of witnesses. Rather, we must defer to the [trier of fact's] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.'' (Internal quotation marks omitted.) Jackson v. Commissioner of Correction, 149 Conn.App. 681, 711, 89 A.3d 426 (2014), appeal dismissed, 321 Conn. 765, 138 A.3d 278 (2016) (certification improvidently granted). We cannot disturb the underlying credibility determinations or facts found by the habeas court unless they are clearly erroneous. State v. Buhl, 321 Conn. 688, 708, 138 A.3d 868 (2016). The petitioner has failed to establish that the second habeas court's credibility determinations were clearly erroneous.

         Concerning Campbell, the court reasonably concluded that ‘‘it [could not] put any weight on [Campbell's] alleged recantations in the absence of seeing Campbell in person and having him face cross-examination.'' The petitioner maintains that the court could have, and should have, credited Campbell's recantation because Campbell invoked his fifth amendment right against self-incrimination and his statements were admitted as statements against penal interest, which requires ‘‘a judicial determination of trustworthiness'' and ‘‘must be accorded equivalent consideration as testimony . . . .''[14] We disagree. The court acted well within its discretion by declining to speculate as to why Campbell invoked his fifth amendment right not to testify. See Skakel v. State, 295 Conn. 447, 500, 991 A.2d 414 (2010). The petitioner also erroneously conflates admissibility with weight. When the habeas court determined that Campbell's statements were admissible, it was engaging in a gatekeeping function. See id. The court simply determined that the evidence met the threshold that would allow it to consider the evidence. It was not acting in its capacity as the trier of fact to determine whether it would find the evidence credible. See id., 479.[15] The mere fact that a court determines that evidence is admissible under the Connecticut Code of Evidence does not mean that the trier of fact must ultimately credit that evidence.

         The court also had an adequate factual basis for discrediting Smith. Smith's testimony was hesitant and equivocal, and he merely stated that he ‘‘believes'' that Mack was the shooter, not that he knows that Mack was the shooter. Additionally, Smith repeatedly corrected portions of the proffer statement, particularly the details concerning the order of events during the shooting. The petitioner maintains that the court clearly erred in its credibility determination because Smith's recantation was corroborated by Eugene's statement and Stewart's and Theriault's testimony. However, the court discredited Eugene's statement because it was neither written nor signed by him and the investigator's affidavit contained an incorrect assertion that Eugene was willing to testify at the habeas trial. Additionally, Eugene's statement merely addressed his purported reason for killing Mack. The court also discredited Stewart's recantation because his testimony about the night of the shooting was ‘‘extremely hesitant'' and he was reluctant to answer even leading questions. Finally, although the court credited Theriault's testimony, that testimony merely established that two nine millimeter bullets were recovered from the Lumina and that they would fit in Smith's firearm, not that Smith saw Mack during the shooting incident.

         Therefore, we conclude that the second habeas court did not err in rejecting the petitioner's due process claim.


         We now turn to the petitioner's claim that he is actually innocent. We begin our analysis by setting forth the relevant legal principles and standard of review that governs our analysis. In Miller v. Commissioner of Correction, 242 Conn. 745, 791-92, 700 A.2d 1108 (1997), our Supreme Court articulated the standard of proof that a habeas corpus petitioner must satisfy in order to prevail on a claim of actual innocence: ‘‘First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, as that standard is properly understood and applied in the con- text of such a claim, [16] that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that, after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty.''[17] (Footnote added.) Id., 791-92.

         Under the first Miller prong, actual innocence means ‘‘factual innocence, '' not ‘‘legal innocence, '' and must be ‘‘demonstrated by affirmative proof that the petitioner did not commit the crime.'' (Emphasis added.) Gould v.Commissioner of Correction, supra, 301 Conn. 560-61. ‘‘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.'' (Emphasis in original.) Id., 563. ‘‘Recantations of inculpatory criminal trial testimony undoubtedly are relevant to a determination of ...

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