Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gomez v. Commissioner of Correction

Court of Appeals of Connecticut

December 12, 2017

JAMIE R. GOMEZ
v.
COMMISSIONER OF CORRECTION

          Argued September 11

          Andrew P. O'Shea, assigned counsel, for the appellant (petitioner).

          Stephen Carney, senior assistant state's attorney, with whom, on the brief, were Michael L. Regan, state's attorney, and Theresa Anne Ferryman, senior assistant state's attorney, for the appellee (respondent).

          Lavine, Kahn and Bishop, Js. [*]

          OPINION

          LAVINE, J.

         The petitioner, Jamie Gomez, appeals from the judgment of the habeas court denying his second petition for a writ of habeas corpus. Following that denial, the court granted his petition for certification to appeal. On appeal, the petitioner claims that the habeas court erred when it concluded that (1) his state and federal constitutional due process rights were not violated by the state's suppression of material exculpatory evidence concerning agreements or understandings that it allegedly had with two of its witnesses, (2) the state did not violate his state and federal constitutional rights to due process by knowingly presenting, and failing to correct, the false testimony from those witnesses, and (3) he was not denied his state and federal constitutional rights to the effective assistance of counsel when his trial counsel failed to properly cross-examine those witnesses regarding their alleged agreements or understandings with the state. Because we conclude that the petitioner failed to prove that the agreements or understandings were not disclosed, we are unpersuaded by the petitioner's first and second claims. We are also unpersuaded by the petitioner's third claim because, even if it is assumed that his trial counsel provided constitutionally deficient representation, the petitioner failed to prove that he was prejudiced. Accordingly, we affirm the judgment of the habeas court.[1]

         The following facts and procedural history are relevant. In connection with the murder of Darrell Wattley, the state charged the petitioner and his codefendants, Anthony Booth and Daniel Brown, each with one count of murder in violation of General Statutes § 53a-54a, one count of felony murder in violation of General Statutes § 53a-54c, and one count of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a.[2] The factual backdrop underlying the charges is set forth in our Supreme Court's decision and need not be repeated in full for this appeal. See State v. Booth, 250 Conn. 611, 614-17, 737 A.2d 404 (1999) (consolidated trial with three codefendants and Supreme Court consolidated appeals), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S.Ct. 1568, 146 L.Ed.2d 471 (2000).

         The following facts from that decision, however, provide context for the petitioner's second habeas petition. On July 4, 1995, James ‘‘Tiny'' Smith and Wattley fought one another at a party. Id., 614. During the fight, Wattley sliced Smith's throat with a box cutter, wounding him. Id. On July 13, 1995, when Smith, Brown, and the petitioner were at Booth's apartment in New London, ‘‘Booth told them that he had asked Angeline Valentin, who lived in the same building, to call Wattley over to the building so that Wattley and Smith could fight.'' Id.

         ‘‘When Valentin called to say that Wattley was on his way, the four men left the building and went outside. [The petitioner] and Brown went to the north side of the building while Smith and Booth went to the south side and hid behind a bush. While they were waiting, Booth was talking on a cellular telephone to either Brown or [the petitioner]. After approximately fifteen minutes, a car arrived and Wattley got out. Wattley walked toward the north end of the building, where Brown and [the petitioner] were waiting. Smith and Booth then entered the building on the south side and began to ascend the stairs. When Smith and Booth reached the third floor, where Valentin's apartment was located, they heard gunshots below. Smith and Booth then ran to exit the building. As they descended the stairs, they saw Wattley lying face down in the second floor hallway with blood everywhere. Booth then stabbed Wattley a couple of times before Smith and Booth fled the building.'' Id., 614-15. Shortly after the incident, the petitioner drove his codefendants and Smith across town, where they all agreed to come up with alibis. Id., 615.

         Following a consolidated jury trial, the petitioner and his codefendants were found guilty of murder and conspiracy to commit murder. Id., 613. During the consolidated trial, John F. Cocheo, now deceased, represented the petitioner, Jeremiah Donovan represented Brown, and Bruce Sturman represented Booth. On January 7, 1997, the court, Parker, J., sentenced the petitioner to a term of imprisonment of fifty years on the murder conviction and a concurrent sentence of fifteen years on the conspiracy to commit murder conviction, for a total effective sentence of fifty years to serve. Our Supreme Court affirmed the petitioner's conviction. See id., 617, 663.

         On September 18, 2000, the petitioner filed his first self-represented petition for a writ of habeas corpus (first petition). In a two count revised petition, he alleged ineffective assistance of counsel against Cocheo and actual innocence. The habeas court denied his first petition, and this court affirmed the denial. See Gomez v. Commissioner of Correction, 80 Conn.App. 906, 836 A.2d 1279 (2003), cert. denied, 267 Conn. 917, 841 A.2d 219 (2004).

         On May 16, 2013, the petitioner filed a second self represented petition for a writ of habeas corpus. In his amended petition (present petition), he first alleged that the state violated his right to due process by failing to disclose material exculpatory evidence. Specifically, he alleged that the state told Smith and Valentin that, in exchange for their testimony, it would assist in (1) reducing their bonds and (2) disposing of their charges in a manner favorable to them, and that it failed to disclose this information.[3] He also alleged that the state violated his right to due process when the prosecutor failed to correct the false testimony of Smith and Valentin, who both testified at the consolidated trial that the state had not offered them ‘‘consideration'' in exchange for their testimony. Additionally, he alleged that Cocheo's failure to adequately impeach Valentin and Smith deprived him of his right to the effective assistance of trial counsel.[4] The respondent, the Commissioner of Correction, filed his return on January 12, 2016, denying the material allegations of the present petition.[5]

         On May 23, 2016, the habeas court denied the present petition in a written decision. It made several relevant findings of fact, including: ‘‘(a) The petitioner has failed to demonstrate that underlying trial counsel (Cocheo) was unaware of the existence of an agreement between Smith and Valentin and the prosecuting authority to bring their cooperation to the attention of the judicial authority posttrial. The evidence demonstrated that at least one other defense attorney in the consolidated trial was made aware of the agreement; (b) The petitioner has failed to demonstrate that the underlying trial testimony of Smith and Valentin was ‘false' as suggested by the petitioner, as opposed to, for example, their uncertainty as to the likely posttrial sentencing scenario. The nature and circumstances of Smith and Valentin's ‘agreements' were thoroughly explored and dissected on both direct and cross-examination. There is no reasonable probability that the jury was misled in this regard; (c) Nothing about the nature of the agreements or their disclosure was violative of Brady[6]or Giglio [v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)][7]; and (d) The petitioner has failed to demonstrate, as was the case in the first habeas trial, that Attorney Cocheo was deficient in any regard, including cross-examining Smith and Valentin.'' (Footnotes added.)

         The petitioner filed a motion for articulation, which the habeas court denied on September 23, 2016. He did not seek review of that denial. See Practice Book §§ 66-5 and 66-7. This appeal followed. Additional facts will be set forth as necessary.

         ‘‘In evaluating the merits of the underlying claims on which the petitioner relies in the present appeal, we observe that [when] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record. . . . To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous. . . . [A] finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'' (Internal quotation marks omitted.) Diaz v. Commissioner of Correction, 174 Conn.App. 776, 785-86, 166 A.3d 815, cert. denied, 327 Conn. 957, A.3d (2017). Because the issues presented in this appeal involve mixed questions of law and fact, our review is plenary. See, e.g., George M. v. Commissioner of Correction, 290 Conn. 653, 659, 966 A.2d 179 (2009).

         I

         We begin with the petitioner's claim that the state failed to disclose the ‘‘consideration'' that it had allegedly offered Valentin and Smith in exchange for their testimony. We understand his claim to be supported by two separate arguments. First, he appears to argue that express agreements existed between the state and the witnesses to bring their cooperation to the attention of the sentencing court, and that the state failed to disclose them.[8] Second, he appears to argue that the state failed to disclose impeachment evidence relating to how the state assisted in reducing the witnesses' bonds. The respondent argues that the record demonstrates that the state had disclosed the existence and terms of any agreement between the state and the witnesses. Additionally, the respondent argues that any statements made during the bond hearings for Valentin and Smith, which form the basis of the petitioner's claim, ‘‘were public proceedings, open to anyone with interest, and transcripts were presumably available upon request.'' We agree with the respondent.

         The following additional facts and procedural history are relevant. On September 13, 1995, Valentin testified during a probable cause hearing for Booth that implicated Booth in Wattley's murder. During Valentin's bond hearing on October 5, 1995, Bernard Steadman, her attorney, represented: ‘‘I have discussed this matter with the state and they would-my understanding is that there would be no objection to her moving out of state, should she be released on a bond, and provided that she maintain contact with-to or with their office either through me or directly.'' Steadman asked the court to consider releasing Valentin on a promise to appear and allowing her to travel to New Jersey given her cooperation with the state and because Wattley's murder appeared to be gang related. Paul E. Murray, the supervisory assistant state's attorney (prosecutor), [9]informed the court: ‘‘I did indicate to [Steadman], Your Honor, that I would bring to the court's attention [Valentin's] cooperation, and I think I've done that.'' The prosecutor also informed the court that he had spoken with Valentin's mother about Valentin going to New Jersey and that ‘‘both [Valentin] and her mother have agreed . . . to keep the state apprised as to her location and how she can be reached . . . .'' In the event that she did not keep the state apprised of her location, the prosecutor stated that ‘‘[the state] will find her and she will have forfeited whatever benefits she has gained from her cooperation to this point.'' He also stated: ‘‘I'm not sure whether a promise to appear is the appropriate thing, but I think certainly a substantial reduction in her bond is appropriate.'' Thereafter, the prosecutor stated that he would not object to a written promise to appear and informed the court: ‘‘I think if I were in your position, I would not be averse to a written promise to appear. I'm trying to be careful as to-as to the record I'm making.''

         After considering, inter alia, the ‘‘cooperative aspects of this matter, '' the court, Purtill, J., reduced Valentin's bond from $100, 000 to a written promise to appear and permitted her to reside in New Jersey. Immediately following that decision, the following colloquy took place in open court:

‘‘[The Prosecutor]: . . . For the record, I would indicate I do not disagree at all with the court's decision. I was trying to be careful with the record because of obvious cross-examination effect. In consideration, I want the record to be clear that the only representations made to [Valentin] were that any cooperation would be brought to the attention of the sentencing court. There was no quid pro quo for a specific bond recommendation.
‘‘[Steadman]: That is true, Your Honor.'' (Emphasis added.)
On March 14, 1996, during a consolidated probable cause hearing for Brown and the petitioner, Smith provided testimony that implicated Brown and the petitioner in Wattley's murder. The petitioner and Cocheo attended this hearing, and so did Donovan, Brown's lawyer. At the beginning of Smith's testimony, the following examination took place in open court:
‘‘[The Prosecutor]: And you are in fact charged with murder, felony murder, and conspiracy to commit murder with respect to the case that we are going to talk about, is that right?
‘‘[Smith]: Yes.
‘‘[The Prosecutor]: And is it fair to say that other than bringing your cooperation to the attention of the sentencing court, you haven't been promised anything in return for your testimony?
‘‘[Smith]: No.
‘‘[The Prosecutor]: You say ‘no.' That is the truth, isn't it?
‘‘[Smith]: That's the truth.'' (Emphasis added.)

         On May 3, 1996, approximately two months after Smith testified at the consolidated probable cause hearing, the court, Parker, J., addressed Smith's motion for modification of his bond. The state did not object to the motion. Counsel for Smith represented that the reasons for requesting a bond modification were that Smith's life had been threatened and he had cooperated with the state. Thereafter, the court reduced Smith's bond from $500, 000 to $100, 000 and permitted him to travel throughout the continental United States.

         On May 10, 1996, the court, Purtill, J., amended the terms of Smith's bond, making it a $100, 000 nonsurety bond with a nominal real estate bond. During this hearing, the prosecutor stated that the state had been in contact with a parole officer in Alabama, who agreed to arrange weekly reporting with Smith if he were allowed to reside there. The court asked that the state ‘‘reduce that condition to writing and give a copy to . . . Smith.'' Smith was then permitted to be released on bond.

         At his habeas trial on the present petition, the petitioner called Donovan, trial defense counsel for Brown, and Sturman, trial defense counsel for Booth, to testify. Many of the questions that the petitioner asked on direct examination related to whether Donovan or Sturman had seen the bond hearing transcripts for Valentin and Smith, and whether they would have impeached Valentin and Smith with the information contained in those transcripts. Specifically, the petitioner asked Donovan and Sturman whether they would have impeached Valentin and Smith regarding the state's promise to bring their cooperation to the attention of the sentencing judge and whether they would have impeached those witnesses with the ‘‘connection'' between their cooperation and their reduced bonds. Donovan and Sturman both testified that they would have used the testimony from those transcripts to impeach Valentin and Smith. And neither Donovan nor Sturman recalled seeing the bond modification hearing transcripts prior to testifying at the habeas trial on the present petition.

         Donovan also testified that, on four or five occasions, ‘‘[the prosecutor] told me . . . that the only promise that had been [made] to [Valentin and Smith] is [that] their cooperation would be brought to the attention of the judge.'' On the basis of his extensive experience dealing with the New London County Office of the State's Attorney, he also testified that the general procedure was not to offer specific ‘‘deals.''

         Contrary to Donovan's testimony, Sturman testified that, although he knew that Valentin had been released on a reduced bond, he was never informed that the state had offered any promises to either Valentin or Smith in exchange for their cooperation. He echoed Donovan's testimony, however, that the standard procedure in New London ‘‘was that no specific deals were made between a cooperating witness and the prosecution.''

         The respondent did not call any witnesses or present any evidence beyond cross-examination of Donovan and Sturman. During his argument to the habeas court, the petitioner focused on the contents of the bond hearing transcripts in support of his Brady claim, noting that Donovan and Sturman ‘‘had never seen these proceedings. They didn't know this information [contained in the witnesses' bond hearing transcripts].''

         ‘‘The defendant has a right to the disclosure of exculpatory evidence under the due process clauses of both the United States constitution and the Connecticut constitution. . . . In order to prove a Brady violation, the defendant must show: (1) that the prosecution suppressed evidence after a request by the defense; (2) that the evidence was favorable to the defense; and (3) that the evidence was material. . . . Any . . . understanding or agreement between any state's witness and the state police or the state's attorney clearly falls within the ambit of Brady principles. . . .

         ‘‘The question of whether there existed an agreement between [a witness] and the state is a question of fact.'' (Citations omitted; internal quotation marks omitted.) Elsey v. Commissioner of Correction, 126 Conn.App. 144, 152-53, 10 A.3d 578, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011). ‘‘Furthermore, the burden is on the defendant to prove the existence of undisclosed exculpatory evidence.'' State v. Floyd, 253 Conn. 700, 737, 756 A.2d 799 (2000).

         As previously noted, the petitioner essentially makes two separate arguments in support of his Brady claim. First, he contends that express agreements existed between the state and Valentin and Smith to bring their cooperation to the attention of the sentencing court, and that the state failed to disclose them. Second, the petitioner argues that the state failed to disclose impeachment evidence relating to how the state assisted in reducing the bonds for Valentin and Smith. We reject each argument and address them in turn.

         A

         The petitioner first argues that express agreements existed between the state and the witnesses to bring their cooperation to the attention of the sentencing court, and that the state failed to disclose them. We agree that the state had express agreements with Valentin and Smith to bring their cooperation to the attention of the sentencing court, but disagree that the state failed to disclose them.

         The habeas court found: ‘‘The petitioner has failed to demonstrate that underlying trial counsel (Cocheo) was unaware of the existence of an agreement between Smith and Valentin and the prosecuting authority to bring their cooperation to the attention of the judicial authority posttrial. The evidence demonstrated that at least one other defense attorney in the consolidated trial was made aware of the agreement.'' This finding is relevant in two material respects. First, it indicates that the habeas court found that agreements did, in fact, exist, and that they were limited to ‘‘bring[ing] [Valentin's and Smith's] cooperation to the attention of the judicial authority posttrial.'' Second, the court's finding indicates that another defense attorney was aware of these agreements that the state had with Valentin and Smith and that the petitioner failed to prove that Cocheo was unware of such agreements.

         On the basis of our review of the record, we conclude that the habeas court's finding that agreements existed between the state and the cooperating witnesses, and that the agreements were limited to bringing their cooperation to the attention of the judicial authority post-trial, was not clearly erroneous. The prosecutor's statements during Valentin's bond hearing on October 5, 1995, indicate that an agreement existed with Valentin. The prosecutor's direct examination of Smith during the petitioner's consolidated probable cause hearing on March 14, 1996, which Cocheo and the petitioner attended, also indicates that the state had an agreement with Smith. During Valentin's bond hearing, Valentin's attorney confirmed that the agreement with Valentin was limited to bringing her cooperation to the attention of the sentencing authority and that it did not include a quid pro quo for a specific bond recommendation. Additionally, Donovan testified that the prosecutor informed him on multiple occasions that agreements existed, but that the only promise was to bring the cooperation of Valentin and Smith ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.