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Gaskin v. Commissioner of Correction

Court of Appeals of Connecticut

July 24, 2018

CHRISTOPHER GASKIN
v.
COMMISSIONER OF CORRECTION

          Argued February 1, 2018

         Procedural History

         Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Fuger, J.; judgment denying the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Reversed in part; judgment directed; further proceedings.

          Jennifer L. Bourn, assistant public defender, with whom, on the brief, was Denis J. O'Malley, certified legal intern, for the appellant (petitioner).

          Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

          Sheldon, Bright and Flynn, Js.

          OPINION

          FLYNN, J.

         It has been usual for trial judges, when instructing jurors on how to weigh the credibility of witnesses, to tell them to consider whether the witness has an interest of whatever sort in the outcome of the trial that might influence or color the witness' testimony. In the petitioner's criminal trial, however, the jury never received important evidence of a cooperating witness' interest in the outcome. This appeal requires us to examine a situation where a necessary cooperating witness, the only one who put the defendant at the crime scene with the likely murder weapon in his hand, falsely denied before the jury any promise from the state in exchange for his testimony and such falsity was not disclosed to the jury, but the prosecutor argued in summation to the jury that the witness had ‘‘everything to lose, nothing to gain, '' by giving statements to the police and testifying. We hold this scenario to be antithetical to due process under the fourteenth amendment to the United States constitution.

         The petitioner, Christopher Gaskin, filed this appeal 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. On appeal, the petitioner claims that the court: (1) abused its discretion in denying his petition for certification to appeal; (2) erred in finding that the petitioner's due process claim[1]was procedurally defaulted; and (3) in addressing the merits, erred in finding that the state did not deprive the petitioner of his due process rights when it did not correct a witness' known false testimony at the underlying criminal trial. We agree with all of the petitioner's claims as they pertain to his underlying convictions of murder and conspiracy to commit murder under General Statutes §§ 53a-54 and 53a-48, respectively. Accordingly, we reverse in part the judgment of the habeas court and remand the case to the habeas court with instruction to render judgment granting the petition for a writ of habeas corpus, vacating the petitioner's underlying convictions of murder and conspiracy to commit murder, and ordering a new trial on those charges. We affirm the judgment as to the petitioner's underlying conviction of tampering with a witness under General Statutes § 53a-151.

         The record reveals the following facts and procedural history. The underlying criminal proceedings stem from the shooting death of Kendall Williams-Bey in Hartford on July 6, 1998. The petitioner eventually was charged with Williams-Bey's murder and with tampering with a witness.[2]

         At trial, only two witnesses implicated the petitioner in Williams-Bey's murder: Benjamin Ellis and Evelyn Douglas.[3] Ellis, a cooperating witness, testified that he drove the petitioner and another man, later identified as Trevor Bennett, [4] past the crime scene and then parked nearby. While Ellis waited in the car, the petitioner and Bennett got out of the vehicle carrying guns, the petitioner carrying a revolver and Bennett carrying an ‘‘automatic.'' Shortly thereafter, Ellis testified that he heard gunshots and then the petitioner and Bennett returned. Ellis then drove his passengers away from the area and dropped them off at various points in Hartford. James Stephenson, the state's firearms identification and testing expert, testified that the bullet that killed Williams-Bey was fired from a revolver.

         Douglas, the petitioner's girlfriend with whom he lived at the time, testified that the petitioner admitted to her that he shot Williams-Bey. She testified that, prior to the shooting, the petitioner arrived home with a busted lip and told Douglas he had gotten into a fight with London Johnson at a nightclub in Springfield, Massachusetts. She stated that the petitioner said he was going to ‘‘get'' Johnson. She said that when the petitioner came back to her apartment later, he said, ‘‘I just f----d up. . . . I didn't mean to shoot Kendall.'' She testified that he meant to shoot Johnson, who was near the crime scene when Williams-Bey was shot. Douglas' testimony did not tie the petitioner to the murder scene or possession of a revolver of the kind that killed the victim. Only Ellis' testimony established that.

         Many times prior to Ellis' trial testimony, the petitioner's trial counsel asked for any information on agreements or promises the state may have made with any witnesses, particularly Ellis. Because Ellis also was being charged with Williams-Bey's murder, the petitioner's trial counsel wanted to know if the state had promised anything to him in exchange for his testimony. The prosecutor denied that any deal had been made. Just prior to trial, the following colloquy between the trial court and the prosecutor took place:

‘‘The Court: . . . Now, was anything offered to [Ellis]?
‘‘[The Prosecutor]: No, Your Honor. It's standard routine, no offers are made. When I have a case, they are told that I will not make any agreement with them. They have to testify, and if they expect something that's within their-it's not-not something-I-I do not or neither does my inspector, anybody involved with me, make any offers.
‘‘The Court: Right. Well, in the old days what used to be done was, the phrase, as I recall it, was, make your truthful cooperation-truthful and full cooperation known to the sentencing judge.
‘‘[The Prosecutor]: Yes.
‘‘The Court: Was that done in this case?
‘‘[The Prosecutor]: Yes. The sentencing judge would be told that he gave a statement, but the thing he was told is he has to tell the truth, and it's not within my province, it's within the sentencing judge's province, which is the standard procedure . . . .''

         During the trial, the prosecutor asked Ellis whether he was made any promises in exchange for his testimony, which Ellis denied. The prosecutor asked Ellis why he gave his statements to the police, to which Ellis replied that he ‘‘felt bad about the incident.'' Ellis also stated that he was happy he was ‘‘doing the right thing.'' On cross-examination, the petitioner's trial counsel engaged in the following questioning of Ellis:

‘‘Q. . . . Have you met with [the prosecutor] at any time in this case?
‘‘A. With [the prosecutor] and my lawyer.
‘‘Q. Okay. . . . The answer to that, I take it, is yes?
‘‘A. Yes.
‘‘Q. Okay. And was it your understanding as a result of the meeting that the state wanted you to testify truthfully?
‘‘A. Yes.
‘‘Q. Okay. And was it your understanding that if you testified truthfully, the state would take that into consideration in deciding what would happen in the case in which you're charged?
‘‘A. No. I wasn't made any promises.
‘‘Q. I didn't ask you, sir . . . if you were made any promises. What I asked you was-was it your understanding that if you testified truthfully, the state would take that into consideration in deciding the outcome of your case?
‘‘A. I'm not sure.
‘‘Q. You're not sure?
‘‘A. No.
‘‘Q. Was it discussed?
‘‘A. No.''

         Later, the petitioner's trial counsel questioned Ellis as follows:

‘‘Q. Is it your understanding that after you testify, by truthful testimony, that the state will bring your cooperation and truthfulness to the attention of the court?
‘‘A. I was never told that.
‘‘Q. And you don't have that expectation?
‘‘A. No.
‘‘Q. And you are aware, because of your experience in the system, that the state can change any of the charges it wants against you . . . ? Do you want me to rephrase that?
‘‘A. No. I understand.
‘‘Q. You are aware of that?
‘‘A. I wasn't sure of that, but now I know.''

         During closing argument, after Ellis had given testimony inculpating the petitioner in the killing, the prosecutor stated that Ellis ‘‘wanted to get [his testimony] off his chest. He knew and knows that his statements put him in the mix.'' On rebuttal, the prosecutor then argued that Ellis ‘‘had everything to lose, nothing to gain, by giving these statements'' and that Ellis ‘‘has been charged with this crime, too. And his position is he's only the driver, he had nothing to gain by giving both statements. He clearly said he wasn't made any promises. Does he expect something? That's in his mind. I don't know. But the reality is: he is in the mix.''

         The record reveals that the prosecutor never corrected Ellis' testimony before the jury in which Ellis told the jury that he had never been told that, after he testified truthfully, the state would bring his cooperation and truthfulness to the attention of the sentencing court.

         On July 7, 2003, the jury found the petitioner guilty of all the charges. He was sentenced to a total effective sentence of sixty years imprisonment. On December 30, 2003, the petitioner filed a direct appeal. His appointed counsel later moved to withdraw as appellate counsel, filing an Anders[5] brief on December 29, 2004, in which she stated that there were no nonfrivolous issues for appeal, and was permitted to withdraw by a judge of the Superior Court on September 11, 2006. The petitioner then represented himself pro se until withdrawing his direct appeal seven years later on April 10, 2013.

         After testifying at the petitioner's and Bennett's criminal trials, Ellis, on November 4, 2004, pleaded guilty to violating General Statutes § 53a-59 (a) (3), accessory to assault in the first degree.[6] The prosecutor, the same as in the petitioner's case, recommended a sentence of twenty years, suspended after five years, with five years probation, to run concurrently with a sentence Ellis then was serving for the commission of an unrelated crime. As promised, the prosecutor made the sentencing judge aware of Ellis' involvement in the petitioner's criminal trial. On September 7, 2005, Ellis' sentence was reduced to twenty years, execution suspended after three years, with five years probation. Ellis' prior sentence, which he was serving at the time of the petitioner's criminal trial, also later was reduced in 2005 by three years on the prosecutor's recommendation for ‘‘[s]ubstantial aid and cooperation in several serious felony cases.'' That sentence could only be modified by reduction pursuant to General Statutes § 53a-39 (b), [7]which requires the assent of the prosecuting authority prior to its reduction.

         On September 10, 2012, the petitioner filed a pro se petition for a writ of habeas corpus. Then, after counsel was appointed, the petitioner filed his operative petition on December 9, 2014. The petitioner alleged that the prosecutor violated his constitutional rights in failing to correct Ellis' false testimony and in failing to disclose exculpatory materials. Specifically, the petitioner alleged that Ellis lied at the petitioner's criminal trial when he testified that he did not receive or expect to receive any consideration for his testimony against the petitioner. The respondent, the Commissioner of Correction, filed his amended return on February 11, 2015, denying the allegations and claiming that the petitioner procedurally defaulted on his claim because he did not directly appeal his underlying criminal conviction on the grounds raised in his petition and that he established neither cause nor prejudice for his procedural default. In his reply, filed February 26, 2015, the petitioner denied procedurally defaulting his claim, but also stated that, if he did procedurally default his claim, there was cause and prejudice for doing so. Specifically, the petitioner stated that cause existed because ‘‘at the time his appeal was pending, there was no additional evidence available to the petitioner or his appellate attorney which could have shown that Benjamin Ellis received consideration for his testimony. It was not until later that evidence became available to prove this claim.'' The petitioner stated that he also was ‘‘prejudiced because the jury hearing his criminal trial did not know of Benjamin Ellis' self-serving motivations for testifying against the petitioner, and the [prosecutor] allowed him to testify in an untruthful manner without correcting his testimony.''

         The matter proceeded to a habeas trial, which included the testimony of Ellis; John L. Stawicki, Ellis' attorney at the time of his testimony and in his subsequent pleas; and Victor Carlucci, Jr., the prosecutor in the petitioner's criminal trial and Ellis' later pleas. Ellis testified that he was made no promises for a reduction in his charges or anything else in exchange for his testimony, although he said that he hoped his testimony would help him. Stawicki and the prosecutor both testified that the prosecutor made no specific promises, other than to convey Ellis' cooperation to his sentencing judge.

         In its memorandum of decision dated June 23, 2016, the habeas court denied the petition on the ground that the petitioner procedurally defaulted his claim and failed to establish cause and prejudice for his default. Nonetheless, the court also addressed the merits of the petitioner's claim, finding that, although Ellis testified falsely, the prosecutor had disclosed his promise to Ellis to the petitioner's trial counsel, which obviated any need to correct the false testimony. The petitioner requested certification to appeal, which was denied by the habeas court on July 6, 2016. This appeal followed.

         On appeal, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal; erred in finding that the petitioner's due process claim was procedurally defaulted; and in addressing the merits, erred in finding that the state did not deprive the petitioner of his due process rights when it did not correct a witness' false testimony at the petitioner's criminal trial and then subsequently relied on that testimony in closing arguments.

         ‘‘Before we turn to the petitioner's claims we set forth our standard of review for habeas corpus appeals. The underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. . . . Questions of law and mixed questions of law and fact receive plenary review.'' (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 174, 982 A.2d 620 (2009). The petitioner generally does not challenge the habeas court's factual findings. Thus, each of his claims raises either questions of law or mixed questions of law and fact, over which we exercise plenary review.

         I

         The petitioner first claims that the habeas court abused its discretion in denying his petition for certification to appeal from the denial of his habeas petition. Specifically, he argues that both the issue of procedural default and the issue of whether his due process rights were violated are debatable among jurists of reason, could be resolved ...


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