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.

Greene v. Commissioner of Correction

Supreme Court of Connecticut

August 28, 2018

MASHAWN GREENE
v.
COMMISSIONER OF CORRECTION

          Argued November 9, 2017

          Michael W. Brown, with whom was Desmond Ryan, for the appellant (petitioner).

          Timothy J. Sugrue, assistant state's attorney, with whom were Rebecca A. Barry, assistant state's attorney, and, on the brief, Patrick J. Griffin, state's attorney, for the appellee (respondent).

          Palmer, McDonald, Robinson, D'Auria, Mullins and Vertefeuille, Js. [*]

         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, Oliver, J.; judgment denying the petition, from which the petitioner, on the granting of certification, appealed. Affirmed.

          OPINION

          MULLINS, J.

         In this appeal, we must decide whether the habeas court erred in denying the petition for a writ of habeas corpus filed by the petitioner, Mashawn Greene.[1] The two primary issues are whether the habeas court properly determined that the petitioner's due process rights were not violated during the underlying criminal trial when the prosecutor failed: (1) to correct certain allegedly false testimony from one of the state's key witnesses, Markeyse Kelly, [2] and (2) to disclose certain evidence favorable to the petitioner. The third issue, which arose during the habeas trial, is whether the habeas court abused its discretion by denying the petitioner's request for a capias after Kelly failed to comply with a subpoena commanding his attendance at the habeas trial. We conclude that the habeas court properly determined that the state had not violated the petitioner's due process rights and that the habeas court did not abuse its discretion by denying the petitioner's request for a capias. Accordingly, we affirm the judgment of the habeas court.

         The jury in the underlying criminal case reasonably could have found the following facts, as set forth in this court's decision in State v. Greene, 274 Conn. 134, 139-40, 847 A.2d 750 (2005), cert. denied, 548 U.S. 926, 126 S.Ct. 2981, 165 L.Ed.2d 988 (2006). ‘‘On the evening of October 10, 2001, the [petitioner] purchased the following stolen firearms: a Smith & Wesson Daniels Cobray M-11 nine millimeter submachine gun (Cobray M-11); a Braco Arms .38 caliber pistol; and a Mossberg 500A shotgun. At the same time, the [petitioner] purchased stolen ammunition for the Cobray M-11 consisting of eight full thirty-five round magazines loaded with nine millimeter Luger Subsonic bullets. A Cobray M-11 is a semiautomatic or automatic assault weapon capable of emptying a thirty-five round magazine in [less than] two seconds.

         ‘‘On October 12, 2001, the [petitioner], Franki Jones . . . Kelly, Shaunte Little and Marquis Mitchell learned that individuals from the area of New Haven known as ‘the Tre' were planning to ‘shoot up' the area of New Haven known as ‘West Hills' in retaliation for a shooting that had occurred the night before. The Tre area includes Elm Street and Orchard Street and the West Hills area includes the McConaughy Terrace projects. Rather than wait for the retaliation, the [petitioner], Jones, Kelly, Little and Mitchell decided to ‘go through the Tre first.'

         ‘‘The [petitioner] drove the four men to Jones' house where those who were not armed already retrieved guns and those with lighter colored clothing changed into darker attire. The [petitioner] armed himself with the Cobray M-11. All five men got into Jones' grey Lincoln Town Car and drove to the Tre. After they saw a group of people on the corner of Edgewood Avenue and Orchard Street, Jones parked the car next to a vacant house on Orchard Street. The [petitioner], Jones, Kelly, Little and Mitchell walked to the corner of Orchard Street and Edgewood Avenue, opened fire on the people on the street corner, then ran back to the Lincoln Town Car and fled the scene. Six people were shot and one of the victims died from his wounds.'' Id.

         The petitioner was arrested and charged with various offenses in connection with the shooting. The petitioner elected a jury trial, at which his accomplices, Little, Jones, and Kelly all testified for the state against him. In particular, with respect to his own involvement in the shooting, Kelly testified that he had pleaded guilty to conspiracy to commit assault in the first degree and carrying a pistol without a permit.[3] Kelly further testified that, with respect to his guilty plea to those charges, it was his understanding that he was facing a maximum sentence of twenty-five years in prison, but that he did not know what his ultimate sentence would be. When the prosecutor, Christopher Alexy, asked Kelly if he had ‘‘any understanding as to what could happen if you came in here and testified, '' Kelly replied, ‘‘[n]ope.''

         Then, without any question pending from Alexy, Kelly began to explain the circumstances around a statement that he gave to the police after his arrest in connection with the shooting.[4] Specifically, Kelly testified that, ‘‘[w]hen I gave that statement, I ain't make no deal. They were trying to make a deal with my life. When I gave that statement, I ain't make no deals, no lawyer, no nobody, no nothing, just the cop, I ain't got no deal. I ain't got to hear saying anything. I ain't got no deal. I could have sat here. It ain't really matter.''

         On cross-examination, the petitioner's trial counsel, Paul Carty, further questioned Kelly about his ‘‘deal'' with the state. Specifically, Carty asked Kelly if he would have spent the rest of his life behind bars had he not worked out a deal to plead to the charges of conspiracy to commit assault in the first degree and carrying a pistol without a permit. Kelly responded, ‘‘I don't know nothing about no deals, none. I don't know nothing about no deals.'' Immediately thereafter, however, Kelly admitted that his lawyer did, in fact, work outa plea agreement with the state. Kelly acknowledged that the terms of that agreement required that he plead guilty to conspiracy to commit assault in the first degree and carrying a pistol without a permit. Kelly further admitted that, even though his purpose in going to Edge-wood Avenue on the night of this incident was to commit homicide, his plea agreement did not involve, nor did he plead guilty to, any homicide charges. Finally, Kelly explained that, pursuant to his plea agreement, the maximum sentence he could receive was twenty-five years of imprisonment.

         Carty then asked Kelly whether he had been informed that he could be sentenced to as little as one year in prison, which was the mandatory minimum sentence. Kelly responded that he did not know what the actual sentence would be, but that he did not expect that he would receive a sentence of one year. Rather, Kelly worried that he could receive the maximum twenty-five year sentence.

         During closing arguments, Carty stated the following to the jury: ‘‘[Kelly] claims he is not looking for a deal, but, think about it, he got the best deal of them all. His deal, he didn't even cop to a homicide [charge]. What did he plead to? Conspiracy to commit assault in the first degree and [carrying a] pistol without a permit. He claims not to be expecting anything in exchange for his testimony, but he knows good and well, as a veteran of the criminal justice system, which he told you he was, that he is going to be treated favorably at sentencing time. He knows how the system works. Give us your testimony, we'll take care of you. He didn't want to deal, but he was already treated favorably by not pleading to a homicide . . . .''

         The jury ultimately returned a verdict finding the petitioner guilty of manslaughter in the first degree with a firearm as an accessory in violation of General Statutes §§ 53a-8 (a) and 53a-55a, conspiracy to commit manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-48 (a) and 53a-55a, five counts of assault in the first degree as an accessory in violation of General Statutes §§ 53a-8 (a) and 53a-59 (a) (5), conspiracy to commit assault in the first degree in violation of §§ 53a-48 (a) and 53a-59 (a) (5), and possession of an assault weapon in violation of General Statutes § 53-202c. In addition, the petitioner pleaded guilty to three counts of theft of a firearm in violation of General Statutes § 53a-212 (a). See State v. Greene, supra, 274 Conn. 136-38. The trial court rendered judgment in accordance with the jury's verdict and sentenced the petitioner to sixty-five years of imprisonment.

         The petitioner appealed from the judgment of conviction to this court. Id. In that appeal, this court reversed the conviction of manslaughter in the first degree with a firearm as an accessory. Id., 174. Consequently, this court directed the trial court to modify the judgment to reflect a conviction of manslaughter in the first degree as an accessory in violation of §§ 53a-8 (a) and 53a-55 (a) (1) and to resentence the petitioner accordingly. Id. This court also reversed the judgment of conviction of conspiracy to commit manslaughter in the first degree with a firearm and directed the trial court to render a judgment of acquittal on that charge. Id. Thereafter, the trial court resentenced the petitioner to sixty years of imprisonment. See Greene v. Commissioner of Correction, 123 Conn.App. 121, 126, 2 A.3d 29, cert. denied, 298 Conn. 929, 5 A.3d 489 (2010), cert. denied sub. nom Greene v. Arnone, 563 U.S. 1009, 131 S.Ct. 2925, 179 L.Ed.2d 1248 (2011).

         In 2008, the petitioner filed his first petition for a writ of habeas corpus claiming, among other things, that he was denied the effective assistance of counsel in connection with his guilty plea on the three counts of theft of a firearm. The habeas court denied that petition. The petitioner then appealed to the Appellate Court, which ultimately concluded that the petition should have been granted with respect to these counts and, accordingly, reversed in part the judgment of the habeas court. Id., 136. Thereafter, the habeas court, Santos, J., vacated the petitioner's convictions on those three counts.

         In 2013, the petitioner filed his second petition for a writ of habeas corpus, which is the subject of the present appeal. That petition alleged, among other things, that the state violated the petitioner's due process rights during his criminal trial by failing to correct false testimony given by Kelly and by failing to disclose evidence favorable to him. See Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (state's failure to correct false testimony violates due process); see also Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (suppression by prosecution of evidence favorable to accused violates due process). The habeas court held a trial on his petition.

         At the habeas trial, the petitioner presented the transcript of Kelly's sentencing hearing as an exhibit. That transcript indicated that Kelley had pleaded guilty to conspiracy to commit assault in the first degree and carrying a pistol without a permit in connection with the shooting incident. The trial court, Fasano, J., noted at that hearing that ‘‘[t]here was no recommendation at the time of plea, and the understanding is that . . . the ultimate sentencing would depend in part on another trial that was to take place in the interim.''[5]Alexy, who was also the prosecutor in that proceeding, then stated that, ‘‘[s]ince the pleas were entered . . . Kelly complied with all the conditions of the plea agreement very satisfactorily. He was instrumental in helping [to] solve a very brutal shooting.'' Alexy recommended a sentence of ten years imprisonment for the charges to which Kelly had pleaded guilty. Alexy then noted that there were two additional charges pending against Kelly in an unrelated matter and that it was the state's intention to nolle those charges. The trial court imposed the recommended sentence of ten years imprisonment.

         At the habeas trial, Alexy testified that the state's plea agreement with Kelly provided that he could receive a maximum penalty of twenty-five years imprisonment for the two charges to which he pleaded guilty. Alexy acknowledged that it was possible that he could have charged Kelly with being an accessory to murder and conspiracy to commit murder. Alexy also acknowledged that, if Kelly had refused to testify at the petitioner's trial, or had testified falsely, Alexy would have recommended a higher sentence than ten years imprisonment. Alexy further testified that, before the criminal trial had commenced, he told Carty the terms of the state's plea agreement with Kelly. In particular, Alexy told Carty that Kelly would be testifying, that Kelly had entered a guilty plea, that ‘‘there was no specific plea agreement''[6] and that ‘‘any sentence would be determined by Judge Fasano, subsequent to the trial, if, in fact . . . Kelly did cooperate and testify at the petitioner's trial.''

         Alexy also testified about his own recollection of Kelly's testimony at the criminal trial. Specifically, when counsel for the petitioner asked Alexy whether Kelly had ‘‘denied that he was receiving any consideration in exchange for his testimony, '' Alexy responded, ‘‘[t]hat's correct.'' Counsel then asked whether Kelly had testified that ‘‘there was not an agreement, '' and Alexy responded, ‘‘[a]n agreement for a specific sentence, correct.'' When counsel asked whether Alexy believed that Kelly's testimony ‘‘fully summarizes the understanding that [Alexy] had with . . . Kelly about his testimony, '' Alexy responded, ‘‘Yes, it says right here that there ‘[wasn't] no understanding [about] what I was getting sentence[d] to,' which is . . . absolutely accurate.''[7]Counsel then asked Alexy specifically: ‘‘Does . . . Kelly's testimony accurately [reflect] the understanding that you had with him?'' Alexy responded: ‘‘To the extent that-yeah. Yeah.'' Counsel then asked: ‘‘What did [Kelly] say about what was going to happen at sentencing?'' Alexy responded: ‘‘He said he didn't know what he was going to be getting.''

         The petitioner's attorney at the criminal trial, Carty, also testified at the habeas trial. He explained that Alexy had told him before the criminal trial that all of the petitioner's codefendants, including Kelly, ‘‘were going to have their cooperation made known to the court at the sentencing of them on their respective cases.'' Carty further testified that, even though Kelly did not admit that he was hoping to benefit from his testimony, Carty still argued to the jury that Kelly was expecting to receive some benefit. Carty explained that ‘‘it's kind of disingenuous for someone who is looking at a lot of time to say, well, I am not expecting anything. Of course he is expecting something.'' Carty further testified that it is standard practice for a cooperating codefendant to plead guilty prior to the trial of a codefendant, to testify at trial, and then to be sentenced. Sentencing is delayed in order to ensure that the cooperating codefendant actually testifies.[8]

         The habeas court, Oliver J., found that ‘‘Alexy testified credibly that he properly disclosed to the defense that Kelly would testify against the petitioner, that Kelly had entered guilty pleas before trial, that there was no specific sentencing agreement for . . . Kelly, and that his cooperation would be made known to the sentencing judge after trial.'' The court concluded that Kelly's testimony at the petitioner's criminal trial ‘‘was not false or misleading. Though not a model of clarity, it sufficiently and accurately describes the . . . ‘agreement' [between Kelly and the state].'' The habeas court stated that it was aware of no authority ‘‘that supports the proposition that a cooperating witness must use or agree to certain ‘magic words' in describing the nature of the cooperation agreement. As, in this court's experience as the fact-finder, cooperating witnesses come from all walks of life and have various levels of education and proficiency with the English language, this court declines the invitation to require a cooperating witness to use certain words, including: ‘consideration,' ‘incentive,' ‘agreement,' ‘understanding' or ‘motive.' Reasonabl[y] competent counsel can draw the fact finder's attention to the witness' motive to testify, falsely in some cases, through proper cross-examination and closing argument, as in the instant matter.'' Accordingly, the habeas court denied the petitioner's second petition for a writ of habeas corpus. Thereafter, the habeas court granted the petitioner's petition for certification to appeal. This appeal followed.

         I

         We first address the petitioner's claim that the habeas court incorrectly concluded that his due process rights were not violated at his criminal trial when Alexy failed to correct Kelly's testimony. In particular, the petitioner asserts that Kelly and the state had reached an agreement that Kelly's testimony at the petitioner's criminal trial would benefit him-namely, that Kelly would receive leniency at his own sentencing in exchange for testifying against the petitioner. Thus, the petitioner claims, Kelly testified falsely when he stated that he had no ‘‘deal'' with the state and was expecting nothing in return for his testimony at the petitioner's criminal trial. As a result, the petitioner argues that Alexy had an obligation to correct Kelly's false testimony.[9]

         The respondent, the Commissioner of Correction, counters that there was no false or misleading testimony to correct. Specifically, the respondent argues that the context surrounding Kelly's testimony makes it clear that, when he testified that he had no ‘‘deal, '' he was not broadly denying that he had received any benefit in exchange for his testimony. Rather, the respondent contends that Kelly's testimony related only to the sentencing component of his agreement with the state, and that Kelly only denied that he knew what specific sentence he would receive or whether he would receive any leniency at all. This, the respondent contends, was not false. We agree with the respondent.

         We begin with the standard of review. Whether a prosecutor knowingly presented false or misleading testimony presents a mixed question of law and fact, with the habeas court's factual findings subject to review for clear error and the legal conclusions that the court drew from those facts subject to de novo review. See Hafdahl v. Johnson, 251 F.3d 528, 533 (5th Cir. 2001), cert. denied sub nom. Hafdahl v. Cockrell, 534 U.S. 1047, 122 S.Ct. 629, 151 L.Ed.2d 550 (2001).

         ‘‘The rules governing our evaluation of a prosecutor's failure to correct false or misleading testimony are derived from those first set forth by the United States Supreme Court in Brady v. Maryland, [supra, 373 U.S. 86-87], and we begin our consideration of the [petitioner's] claim with a brief review of those principles. In Brady, the court held that ‘the suppression by the prosecution of evidence favorable to an accused upon request violates due process [when] the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the [prosecutor].' Id., 87; accord State v. Cohane, 193 Conn. 474, 495, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984). The United States Supreme Court also has recognized that ‘[t]he jury's estimate of the truthfulness and reliability of a . . . witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend.' Napue v. Illinois, [supra, 360 U.S. 269]. Accordingly, the Brady rule applies not just to exculpatory evidence, but also to impeachment evidence; e.g., United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); which, broadly defined, is evidence ‘having the potential to alter the jury's assessment of the credibility of a significant prosecution witness.' '' (Footnote omitted.) Adams v. Commissioner of Correction, 309 Conn. 359, 369-70, 71 A.3d 512 (2013).

         ‘‘[D]ue process is . . . offended if the state, although not soliciting false evidence, allows it to go uncorrected when it appears. Napue v. Illinois, supra, [360 U.S.] 269. 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. Giglio v. United States, supra, [405 U.S. 153]; Napue v. Illinois, supra, 269-70. Regardless of the lack of intent to lie on the part of the witness, Giglio and Napue require the prosecutor to apprise the court whenheor she knows that the witness is giving testimony that is substantially misleading. United States v. Harris, 498 F.2d 1164, 1169 (3d Cir.), cert. denied sub nom. Young v. United States, 419 U.S. 1069, 95 S.Ct. 655, 42 L.Ed.2d 665 (1974).'' (Internal quotation marks omitted.) State v. Ouellette, 295 Conn. 173, 186, 989 A.2d 1048 (2010); see also State v. Satchwell, 244 Conn. 547, 560-61, 710 A.2d 1348 (1998).

         Our review of Kelly's testimony during the underlying criminal trial reveals that the petitioner has taken Kelly's testimony about his agreement with the state out of context.[10] We first look to the statements Kelly made during direct examination.

         On direct examination, Alexy asked Kelly ‘‘what was your understanding of what your sentence would be?'' (Emphasis added.) Kelly responded, ‘‘[i]t wasn't no understanding; what I was getting sentenced to . . . was just that.'' Then, after acknowledging that he faced a maximum of twenty-five years of imprisonment, Alexy asked whether Kelly had ‘‘any understanding as to what could happen if you came in here and testified?'' Kelly responded: ‘‘Nope.''[11]

         The petitioner highlights Kelly's answer of ‘‘[n]ope'' in connection with the question of whether he had any understanding of what could happen if he testified against the petitioner as evidence of false testimony. At first blush, this isolated response by Kelly could appear to be a blanket denial of any deal or agreement whatsoever. Kelly's statement, however, cannot be divorced from the context surrounding it. Indeed, immediately before this testimony, Alexy asked whether Kelly knew what sentence he would receive. In response to that question, Kelly explained that he was looking at a maximum sentence of twenty-five years of imprisonment, but that he did not know what his sentence would be. It only was at that point that Kelly responded ‘‘[n]ope'' to the question regarding his understanding of what could happen if he came in and testified.

         It is clear to us, therefore, that Kelly's claim that he had no understanding of what would happen if he cooperated with the state related to whether he had an understanding of the specific sentence that he expected to receive and was not substantially misleading. This testimony neither denies the existence of Kelly's plea agreement with the state nor mischaracterizes its terms.

         The evidence adduced at the habeas trial further bolsters our conclusion that Kelly's testimony on this issue was not substantially misleading. First, Alexy gave testimony-which the habeas court credited-indicating that when he heard Kelly say ‘‘[n]ope, '' and represent that he ‘‘had no understanding'' of what would happen if he testified, Alexy understood that he was referring to the fact that he did not know what specific sentence he would receive.[12] This is entirely reasonable given the fact that the line of questioning at that juncture related only to Kelly's understanding of the sentence he expected to receive.

         Second, the transcript from Kelly's plea hearing, which was introduced as an exhibit at the habeas trial, further demonstrates that there was no agreed upon sentence, only a maximum exposure of twenty-five years of imprisonment. See footnote 5 of this opinion. Indeed, Alexy never asked Kelly whether he expected that his cooperation would be made known to the sentencing judge, and Kelly never testified on that precise issue.[13] Thus, when viewed in the context of the questions that were asked and the responses given, Kelly's testimony on direct examination was not substantially misleading. This conclusion also is consistent with the other evidence at the habeas trial.

         To the extent that the petitioner's claim involves statements Kelly made during his cross-examination, those statements also cannot be evaluated in isolation, unconnected to the context in which they were made. Specifically, Carty asked Kelly the following question: ‘‘Had you not worked that deal out [to plead to nonhomicide charges, you were] looking at basically spending the rest of your life behind bars.'' In response to that inquiry, Kelly testified as follows: ‘‘I don't know nothing about no deals, none. I don't know nothing about no deals.'' Carty then sought to clarify this testimony, and asked Kelly directly: ‘‘You worked out a plea, right?'' Kelly responded: ‘‘My lawyer, I guess, I don't know. I know he told me what I was copping out to, and I took it.'' This testimony was not substantially misleading.

         Again, when evaluated in context, specifically with respect to the questions asked, Kelly's statements did not categorically deny any deal with the state. Kelly's response and, more particularly, his clarification demonstrate that he was denying that he had worked out a plea agreement directly with the state himself, but that it was his lawyer who had worked out the deal. To be sure, immediately following his admission that his lawyer worked out a plea deal, Kelly admitted that he did, in fact, plead guilty to nonhomicide charges for his part in the shooting incident, rather than homicide.[14] This obviously was not a denial of any deal with the state or a mischaracterization of his plea agreement.

         Finally, at another point during cross-examination, Carty asked Kelly about his expectations regarding his sentence. Kelly responded: ‘‘I ain't expecting nothing, but I know that I could do the time.'' As with Kelly's previous testimony, the petitioner takes these statements out of context in an attempt to claim that Kelly denied receiving any benefit for his testimony.

         Just before Kelly made these statements, Carty had asked him if he knew that he could receive a sentence requiring as little as one year of imprisonment. Kelly responded that he was not expecting a sentence of only one year but, rather, was thinking about having to serve the full twenty-five years, and potentially more, given that he had other charges pending. In response this testimony, Carty asked the following: ‘‘That's not what are you expecting out of this?'' Kelly answered: ‘‘I don't know what I'm getting.'' Carty then stated ‘‘that's not what I'm asking you, '' and repeated his question: ‘‘What are you expecting?'' Kelly responded: ‘‘I ain't expecting nothing, but I know that I could do the time.''[15]

         It is evident that Kelly was responding to questions regarding the length of the sentence he expected to receive, not whether he expected any benefit whatsoever. His response that he could ‘‘do the time'' further shows that Kelly understood the question to be directed at the sentence he expected to receive. Because there was no agreement with respect to his specific sentence, Kelly's testimony was not substantially misleading.

         This testimony, when considered in context, simply does not suggest that Kelly was denying that he had any expectation regarding whether the state would make his cooperation known to the sentencing judge, as the petitioner suggests. We note that Carty never specifically asked Kelly whether he was aware that the state intended to bring his cooperation to the ...


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.