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Marquez v. Commissioner of Correction

Supreme Court of Connecticut

January 15, 2019

JULIAN MARQUEZ
v.
COMMISSIONER OF CORRECTION

          Argued March 26, 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 the Appellate Court, DiPentima, C. J., and Mullins and Foti, Js., which dismissed the appeal, and the petitioner, on the granting of certification, appealed to this court. Affirmed.

          James E. Mortimer, assigned counsel, for the appellant (petitioner).

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

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

          OPINION

          D'AURIA, J.

         In this certified appeal, we are asked to consider whether the state violated the due process rights of the petitioner, Julian Marquez, by not disclosing an alleged agreement between the state and Edwin Soler, a testifying accomplice in the petitioner's underlying criminal case, and by failing to correct Soler's allegedly false testimony that no such agreement existed. The state charged the petitioner and Soler with felony murder and robbery related charges following the murder of Miguel Delgado, Jr., during the course of a robbery at Delgado's apartment. After Soler provided testimony implicating the petitioner as the person who murdered Delgado, and after the petitioner was convicted of felony murder, the state declined to prosecute the felony murder charge against Soler. Although the prosecutor denied during the petitioner's criminal trial that the state had entered into any formal arrangement with Soler in exchange for his testimony, he acknowledged that he had presented to Soler's attorney potential ‘‘hypothetical'' outcomes that could come about if Soler were to testify truthfully against the petitioner.

         On appeal to this court, the petitioner asks us to conclude, contrary to the determination of the habeas court and the Appellate Court; Marquez v. Commissioner of Correction, 170 Conn.App. 231, 240, 154 A.3d 73 (2017); that the state had an agreement with Soler that it had not disclosed to the petitioner in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); see also Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); and in contravention of the fourteenth amendment to the federal constitution. U.S. Const., amend. XIV, § 1. The petitioner also asks us to conclude that the nondisclosure of this agreement was ‘‘material, '' warranting the relief he sought from the habeas court.

         We do not consider whether the state had an undisclosed deal with Soler because, even if we assume that such an agreement was struck, we are nonetheless persuaded that there is no reasonable likelihood that disclosure of the agreement would have affected the judgment of the jury. Consequently, we conclude that there was no due process violation because the lack of any disclosure was immaterial under Brady v. Maryland, supra, 373 U.S. 87, and, therefore, we affirm the judgment of the Appellate Court on that alternative basis.

         I

         A

         At the petitioner's criminal trial, the state presented evidence to establish the following facts, as recounted in our prior review in the petitioner's direct appeal. See State v. Marquez, 291 Conn. 122, 967 A.2d 56, cert. denied, 558 U.S. 895, 130 S.Ct. 237, 175 L.Ed.2d 163 (2009). In 2003, two friends, Mark Clement and Christopher Valle, were visiting Delgado, a mutual friend, at Delgado's apartment in Hartford, where the robbery and murder took place. Id., 126. Others joined them to socialize at the apartment, as was the regular practice on the weekends at this location. Id.

         The front door of the apartment opened to the living room, and the apartment had a small game room and a kitchen connected to the living room. Id., 126-27. On the evening of the murder, the living room was illuminated only indirectly by light emanating from the kitchen and the game room. Id., 127. There was a couch on the back wall of the living room that faced the front door. Id. The front door opened into a lighted common hallway. Id., 126.

         Several people visited the apartment intermittently throughout the night, while Delgado, Clement and Valle primarily remained in the game room playing games and drinking alcoholic beverages. Id., 127. At around midnight, Valle was preparing to leave the apartment when he exited the game room to say goodbye to Del-gado, who was standing just inside the front door attempting to get rid of two men who stood in the hallway. Id. As Valle approached the front door, he saw someone with a gun in the hallway and described him as a Hispanic male in his early twenties, wearing braids and black clothing. Id. The gunman then pointed a handgun directly at Valle and entered the apartment, along with another man. Id.

         Valle, Delgado, Clement, and one other man present in the apartment were ordered to sit down on the couch. Id. After the men were gathered on the couch in the living room, the two intruders were only a few feet away for a period of several minutes. Id. Both Valle and Clement had multiple opportunities to see the intruders' faces. Id., 127-28. Valle saw the gunman's face in the brightly lit hallway prior to his entrance into the apartment and, when Valle was seated in the living room, saw the gunman's face illuminated by light from the kitchen. Id., 128. Clement first saw the gunman's face when the gunman entered the apartment and briefly walked into the lighted game room, and, again, when they were all in the living room that was illuminated by the kitchen light. Id.

         The intruders ordered the men to surrender their valuables, which they did. Id. The intruders were dissatisfied with Delgado's offer of a small amount of marijuana, believing Delgado had money and drugs elsewhere in the apartment. Id. When the intruders sought access to the bedroom of the apartment, which was attached to the kitchen, Delgado suddenly rushed the gunman and grabbed him, causing a struggle to ensue between Delgado and the gunman. Id., 127-28. Three shots rang out, and Clement and Valle fled to the game room as Delgado fell to the floor. Id., 128. When it was apparent that the intruders had fled, Valle emerged from the game room to discover Delgado lying in a pool of blood and called the police. Id. When the police arrived, both Valle and Clement stated that they would be able to identify the gunman. Id., 128-29.

         Four days later, while making his regular visit to his parole officer, Valle observed the petitioner at the parole office, and immediately recognized him as the gunman. Id., 129. He reported this to office personnel, who conveyed the information to the detective who was leading the investigation into the incident. Id. On the basis of this information, the detective presented Valle with a photographic array consisting of eight photographs fitting the description Valle provided, including one photograph of the petitioner. Id. Valle immediately selected the photograph of the petitioner. Id., 130.

         Several days later, the detective contacted Clement and requested that he view a photographic array that included one photograph of the petitioner. Clement was immediately drawn to one photograph but did not want to be too hasty in making an identification. Id. Initially, he eliminated all but two photographs as possibilities but kept returning to one photograph, that of the petitioner, that had initially attracted his attention. Id. Clement stated that his identification was based primarily on his recognition of the petitioner's eyes, which were the same eyes as the gunman. Id., 130-31.

         On the basis of Valle's and Clement's identifications, the police obtained an arrest warrant for the petitioner, and executed it several days later. Id., 131. The state filed a five count information charging the petitioner with one count of felony murder, three counts of robbery in the first degree, and one count of attempt to commit robbery in the first degree. Id.

         B

         The following additional evidence presented at the petitioner's criminal trial is relevant to this appeal. As recounted previously, at trial, the state presented testimony from two of the robbery victims, Valle and Clement, who described the events of the night of the robbery and the murder of Delgado. Both Valle and Clement identified the petitioner as the person who entered with the gun.

         In light of these identifications, the petitioner was arrested. He subsequently gave a statement to the police, blaming the murder on Soler. Soler's photograph was placed in a photographic array and shown to Valle, who identified Soler as the person who had assisted the gunman during the course of the robbery. Soler was arrested and charged with the same offenses as the petitioner.

         The state called Soler to testify at the petitioner's criminal trial. Soler's account of the incident in question was largely similar to Valle's and Clement's testimony describing the incident, and Soler testified that the petitioner was the gunman. He also testified that during a chance encounter at the prison medical unit, the petitioner asked Soler to recant the statement he had already given to the police about the incident. Soler also testified that the petitioner questioned him about whether he would testify against the petitioner at his trial.

         On direct examination, the prosecutor asked Soler if he had been promised any benefits from the state in exchange for his testimony, which Soler denied. When prodded on cross-examination about his motivation for testifying, Soler stated: ‘‘I'm testifying cuz it's the right thing to do.'' Soler further stated that he was not offered any particular deal by the state and that he did not know whether he would receive any kind of consideration as a result of testifying. Soler also testified that he would not lie about the events of the night in question in order to benefit himself.

         Following Soler's testimony, and outside the presence of Soler and the jury, defense counsel requested that the court inquire of the state, on the record, if there were any discussions relayed to Soler about his cooperation being brought to his sentencing court's attention. Specifically, defense counsel questioned whether Soler was told that the felony murder charge would be dropped if he were to testify in accordance with the facts that existed.

         In response, the prosecutor explained that, because Soler testified at trial, ‘‘some credit perhaps would be due him. What the extent of that credit is, I don't know. I know counsel has suggested that perhaps I would reduce the charge. We've had discussions that maybe that would happen. I can't say that it would. In my discussions with [Soler], I've indicated to him that I hadn't made any promises to him, so we have not come to a disposition or an understanding as to what any testimony would be. . . . [His testimony] potentially ultimately would be presented to a sentencing judge . . . . I don't see how that would not happen.''

         The court responded by stating that ‘‘some favorable consideration is something that [the state] would certainly consider at some point in time, but no promises have been made.'' The prosecutor replied, ‘‘[r]ight.'' The prosecutor further explained that ‘‘[the petitioner] was deciding to elect trial, so essentially for [Soler], we sort of tabled his case because he was available and willing to participate in [the petitioner's] trial.'' When defense counsel questioned whether Soler's testimony would mean that ‘‘his charges could be lowered and he would not face a mandatory minimum of twenty-five years, '' the prosecutor responded by stating that, ‘‘I've not conveyed that to him . . . my conversations with him were that there are no offers on the table. . . . [H]ow this works out is still yet to be determined.''

         Soler's defense attorney then stated: ‘‘We have discussed the possibility of there being a benefit. We had at one point, I believe, discussed the possibility of coming down to twenty-five years if a variety of things fell into place. I do not believe that I've ever indicated to my client that I had received an offer because there has never been an offer from the state in this case or an indication from the state that they would be inclined to drop the charge . . . .''

         The court summarized: ‘‘[T]here's been no fixed offer. And that's the way it should be characterized . . . . It doesn't rise to the level of a promise. It's not a promise.'' The prosecutor affirmed her understanding that, if benefits had been offered in exchange for testimony, the state would have been obligated to disclose such information. The court, therefore, accepted the prosecutor's representation that no agreement existed.

         In addition to the testimony of two of the robbery victims, the state also presented a statement the petitioner had given to the police after his arrest, in which he blamed the murder on Soler. The statement was read into the record at trial. In the statement, the petitioner admitted to the police that he had gone to Delgado's apartment on the night of the robbery with Soler, whom the petitioner referred to by his nickname, ‘‘Monstruo.'' He claimed that they briefly stopped in at the apartment, looking to obtain marijuana, which they bought, and, just as they were about to leave, Soler stopped him and was holding a gun. According to the petitioner's statement, Soler proceeded to rob the victims, at one point asking the petitioner to hold the gun for him. The petitioner stated that, after he returned the gun to Soler, Delgado approached and grabbed Soler, leading to a struggle during which Delgado was shot. See footnote 4 of this opinion.

         The state also presented testimony at the petitioner's criminal trial from an inmate, David Williams, who had been incarcerated in the same facility as the petitioner and Soler while they awaited trial. Williams had previously known both Soler and the petitioner for about ten years. Williams testified that, while they were incarcerated, the petitioner asked Williams if he knew Soler. When Williams confirmed that he knew Soler, the petitioner informed Williams that Soler was his accomplice in the incident giving rise to the petitioner's arrest and incarceration.

         Williams testified that the petitioner eventually told him that ‘‘he could help [Williams] with [his] case, [Williams] could help [the petitioner] with his case . . . .'' The help that the petitioner sought was for Williams ‘‘to give [the petitioner's] lawyer a statement . . . that [Soler] had told [Williams] he had shot somebody . . . [a]nd that they had somebody else for the murder.''

         Williams further testified that the petitioner wrote what he wanted Williams to say in the false confession in a letter. The petitioner then instructed Williams to convey the details of the letter to his attorney, who would then get in touch with the petitioner's attorney or investigator. Williams testified that the petitioner ‘‘said to memorize it and rip it up when I finish memorizing, '' before speaking to his attorney. Instead, Williams gave the letter to his attorney and told him how he had received it.[1]

         Williams testified that the petitioner was urging him to claim that this was a conversation between Williams and Soler while they were on the same cellblock, even though Williams and Soler were actually on the cell-block together for only ‘‘a couple hours'' total, and did not speak to each other in that time. Williams testified that the ...


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