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Brown v. Commissioner of Correction

Court of Appeals of Connecticut

January 23, 2018

DANNY BROWN
v.
COMMISSIONER OF CORRECTION

          Argued November 13, 2017

          James E. Mortimer, assigned counsel, with whom, on the brief, was Michael D. Day, assigned counsel, for the appellant (petitioner).

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

          DiPentima, C. J., and Elgo and Flynn, Js.

          OPINION

          ELGO, J.

         The petitioner, Danny Brown, known also as Daniel Brown, [1] appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion by denying his petition for certification to appeal, and by rejecting his claims that (1) the state violated his rights to due process and a fair trial by failing to disclose material exculpable evidence and failing to correct false testimony from certain witnesses at his criminal trial, and (2) his criminal trial counsel rendered ineffective assistance. We conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal and, therefore, dismiss the appeal.

         This case involves a homicide in New London. As the Supreme Court recounted in the petitioner's direct appeal, ‘‘James ‘Tiny' Smith and Darrell Wattley fought at a party on July 4, 1995. Wattley sliced Smith's throat with a box cutter, wounding him superficially. On the afternoon of July 13, 1995, [the petitioner] and [Jamie] Gomez picked Smith up at the house of Smith's mother, and drove him to [Anthony] Booth's apartment at 93 State Pier Road in New London. When the three men arrived at Booth's apartment, 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. Booth, [the petitioner], Gomez and Smith watched television while they waited for Wattley to arrive. During their wait, and while [the petitioner] was rummaging through a grey knapsack, Booth asked [the petitioner] whether he ‘[had worn] gloves when he loaded it.' Booth also had a knife in his hand. When Smith asked Booth why he needed the knife, Booth replied: ‘[D]on't worry about it, we are just going to fight him.'

         ‘‘When Valentin called to say that Wattley was on his way, the four men left the building and went outside. Gomez and [the petitioner] 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 [the petitioner] or Gomez. After approximately fifteen minutes, a car arrived and Wattley got out. Wattley walked toward the north end of the building, where [the petitioner] and Gomez 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.

         ‘‘The four men ran to a red Mitsubishi, which was parked on State Pier Road, east of the building. This car was owned by Gomez' girlfriend, Dawn Waterson. Gomez sat in the driver's seat, and [the petitioner], Smith and Booth sat in the passenger seats. As they drove away, [the petitioner] said ‘I robbed that nigger too.' [The petitioner] had a knife in his lap, which he threw out of the window while they were driving. Gomez drove Waterson's car across town and parked it behind a mall. The four men walked through a cemetery before splitting up. In the cemetery, Booth told them that, if questioned, he and [the petitioner] would say that they had been together. In addition, Booth told Smith and Gomez to come up with an alibi. The four men then separated.

         ‘‘A few hours after the murder, Booth approached Valentin in the parking lot of 93 State Pier Road. Booth told her that they shot ‘him.' Booth also told Valentin that he knew that she would not have lured Wattley to the building if she had known that they intended to murder him.'' (Footnote omitted.) State v. Booth, 250 Conn. 611, 614-15, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S.Ct. 1568, 146 L.Ed.2d 471 (2000).

         The petitioner subsequently was arrested and a consolidated trial with Booth and Gomez followed, at the conclusion of which the jury found all three defendants guilty of murder in violation of General Statutes § 53a-54a, and conspiracy to commit murder in violation of General Statutes §§ 53a-54a and 53a-48 (a).[2] Id., 613. The petitioner directly appealed from that judgment of conviction, which our Supreme Court affirmed in a consolidated appeal with Booth and Gomez. Id., 663.

         The petitioner commenced this habeas action in 2013. On March 15, 2016, he filed a second amended petition for a writ of habeas corpus that contained two counts. The first alleged ineffective assistance on the part of his criminal trial counsel, Attorney Jeremiah Donovan, in failing to adequately cross-examine and impeach the testimony of Smith and Valentin.[3] In the second count, the petitioner alleged a due process violation stemming from the state's handling of allegedly exculpatory evidence regarding the testimony of Smith and Valentin. More specifically, the petitioner alleged that the state ‘‘failed to disclose material favorable evidence to the petitioner with respect to an express or implied agreement'' with both Smith and Valentin ‘‘for favorable treatment in [their] then pending criminal case[s] and failed to correct [their] false or misleading testimony concerning the same . . . .''

         A habeas trial was held on March 5, 2016, at which Donovan was the sole witness.[4] In its subsequent memorandum of decision, the habeas court rejected the petitioner's claims. With respect to his ineffective assistance of counsel claim, the court concluded that the petitioner failed to satisfy the prejudice prong of Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his claims regarding the suppression of allegedly exculpatory evidence, the court found that the petitioner failed to prove the existence of an agreement between the state and Smith and Valentin that the state had suppressed. In so doing, the court acknowledged that Donovan, in his habeas testimony, confirmed that the state had assured Smith and Valentin that their ‘‘cooperation [at the petitioner's criminal trial] would be taken into consideration upon sentencing.'' The court nonetheless found that the petitioner had not met his burden in demonstrating that the state suppressed evidence of that assurance. The court further found that ‘‘even if the [state] had suppressed evidence, the petitioner also failed to prove that this evidence would have been material.'' The court, therefore, denied the petition for a writ of habeas corpus. The petitioner then filed a petition for certification to appeal to this court, which the habeas court denied, and this appeal followed.

         On appeal, the petitioner claims that the court abused its discretion in denying the petition for certification to appeal. Our standard of review for such claims is well established. ‘‘Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, [the petitioner] must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits. . . . A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason . . . [the] court could resolve the issues [in a different manner] . . . or . . . the questions are adequate to deserve encouragement to proceed further. . . . In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous.'' (Citation omitted; internal quotation marks omitted.) Ramos v. Commissioner of Correction, 172 Conn.App. 282, 294, 159 A.3d 1174, cert. denied, 327 Conn. 904, 170 A.3d 1 (2017). With that standard in mind, we turn to the substantive claims raised by the petitioner.

         I

         The petitioner first contends that the court abused its discretion in denying his petition for certification to appeal because the state violated his right to due process and a fair trial by failing to disclose material exculpatory evidence in contravention of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The petitioner claims that the state suppressed evidence of an agreement between the state and Smith and Valentin in exchange for their testimony at the petitioner's criminal trial.

         ‘‘The law governing the state's obligation to disclose exculpatory evidence to defendants in criminal cases is well established. 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. . . .

         ‘‘It is well established that [i]mpeachment evidence as well as exculpatory evidence [fall] within Brady's definition of evidence favorable to an accused. . . . [An express or implied] plea agreement between the state and a key witness is impeachment evidence falling within the definition of exculpatory evidence contained in Brady . . . .

         ‘‘The [United States] Supreme Court established a framework for the application of Brady to witness plea agreements in Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). . . . Drawing from these cases, [the Connecticut Supreme Court] has stated: [D]ue process is . . . offended if the state, although not soliciting false evidence, allows it to go uncorrected when it appears. . . . If a government witness falsely denies having struck a bargain with the state, or substantially mischaracterizes the nature of the inducement, the state is obliged to correct the misconception. . . . Regardless of the lack of intent to lie on the part of the witness, Giglio and Napue require that the prosecutor apprise the court when he knows that his witness is giving testimony that is substantially misleading. . . . A new trial is required if the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury.'' (Citations omitted; internal quotation marks omitted.) State v. Ouellette, 295 Conn. 173, 185-86, 989 A.2d 1048 (2010).

         As our Supreme Court has explained, ‘‘[t]he prerequisite of any claim under the Brady, Napue and Giglio line of cases is the existence of an undisclosed agreement or understanding between the cooperating witness and the state.'' Id., 186. In its memorandum of decision, the habeas court found that no specific agreement existed between the state and either Smith or Valentin, apart from the state's assurance that it would bring their cooperation to the attention of the court in their respective criminal proceedings.

         The petitioner now challenges the propriety of that determination. His claim is governed by the clearly erroneous standard of review. ‘‘The existence of an undisclosed plea agreement is an issue of fact for the determination of the trial court. . . . [W]here the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.'' (Citations omitted; internal quotation marks omitted.) State v. Floyd, 253 Conn. 700, 737, 756 A.2d 799 (2000). ‘‘[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.) Orcutt v. Commissioner of Correction, 284 Conn. 724, 742, 937 A.2d 656 (2007). In reviewing the factual findings of a habeas court, ‘‘[t]his court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [court's] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.'' (Internal quotation marks omitted.) Elsey v. Commissioner of Correction, 126 Conn.App. 144, 153, 10 A.3d 578, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011).

         In this habeas proceeding, the petitioner bore the burden ‘‘to prove the existence of undisclosed exculpatory evidence.'' State v. Floyd, supra, 253 Conn. 737. We agree with the habeas court that the petitioner did not satisfy that burden.

         A

         In its memorandum of decision, the court found that the state had assured both Smith and Valentin that it would bring their cooperation in the petitioner's criminal trial to the attention of the court in their respective criminal proceedings. The court further found that the state disclosed that agreement to the petitioner prior to his criminal trial.

         The evidence in the record substantiates those findings. Donovan testified at the habeas trial that, in multiple conversations with the prosecutor, he was apprised that the state made ‘‘no promises to[Smith and Valentin] other than to bring their cooperation to the attention of the sentencing judge'' in their respective proceedings. On the basis of his extensive experience dealing with the New London County Office of the State's Attorney, Donovan explained that the state's agreement to bring Smith's and Valentin's cooperation to the court's attention, but not make any specific promises or representations, was consistent with its general practice at that time. Donovan further confirmed that he was aware of that agreement prior to the petitioner's criminal trial. The court, as the sole arbiter of credibility, was free to credit that testimony. See Sanchez v. Commissioner of Correction, 314 Conn. 585, 604, 103 A.3d 954 (2014) (‘‘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]); Taylor v. Commissioner of Correction, 284 Conn. 433, 448, 936 A.2d 611 (2007) (‘‘[t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony'' [internal quotation marks omitted]). Moreover, at the conclusion of the habeas trial, the petitioner's counsel conceded that ‘‘[w]ith respect to the evidence that was introduced, [Donovan] was made aware that [Smith and Valentin's] cooperation would be brought to the sentencing judge's attention.''

         On the basis of that evidence, the court properly could find that the state disclosed to the petitioner its agreement with Smith and Valentin to bring their cooperation to the attention of the court in their respective criminal proceedings. That finding, therefore, is not clearly erroneous.

         B

         The petitioner nevertheless claims that, beyond the agreement addressed in part I A of this opinion, a specific agreement existed between the state and both Smith and Valentin regarding the lowering of their respective bonds, which was not disclosed to the petitioner.[5] Under Connecticut law, the petitioner bore the burden of proving the existence of that agreement. Walker v. Commissioner of Correction, 103 Conn.App. 485, 493, 930 A.2d 65, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007).

         The following additional facts, as reflected in the record and as recited in this court's recent decision on the habeas action involving one of the petitioner's coconspirators, [6] are relevant to this claim. ‘‘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.[7] Paul E. Murray, the supervisory assistant state's attorney (prosecutor), [8] 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.' . . .

         ‘‘On March 14, 1996, during a consolidated probable cause hearing for [the petitioner and Gomez], Smith provided testimony that implicated [them] in Wattley's murder. [Gomez and his trial counsel] attended this hearing, and so did Donovan, [the petitioner'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 ...


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