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Bowens v. Commissioner of Correction

Supreme Court of Connecticut

October 22, 2019


         Argued February 19, 2019

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[Copyrighted Material Omitted]

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         Superior Court in the judicial district of Tolland and tried to the court, Sferrazza, J.


          Katharine Goodbody, assistant public defender, with whom was Alexandra Harrington, former deputy assistant public defender, for the appellant (petitioner).

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

          Judges: Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn and Ecker, Js. KAHN, J. In this opinion, ROBINSON, C. J., and McDONALD, D'AURIA and MULLINS, Js., concurred. ECKER, J., concurring in part and dissenting in part.


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          KAHN, J.

          The petitioner, Tyreese Bowens, appeals[1] from the judgment of the habeas court denying his second petition for a writ of habeas corpus challenging a 1998 murder conviction. On appeal, the petitioner claims, among other things, that the habeas court incorrectly concluded that (1) he did not establish by clear and convincing evidence that he is actually innocent of the murder, (2) the identification procedures employed in his criminal case did not violate his due process rights, (3) his first habeas counsel did not provide ineffective assistance of counsel, and (4) his cruel and unusual punishment claims were barred by the doctrine of res judicata. We affirm the judgment of the habeas court.

          On direct appeal, the Appellate Court briefly summarized the facts of the case as follows: " On August 18, 1996, Kevin Hood,

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the victim, and [T'lara] Phelmetta were riding around New Haven in [the victim's] car. [Shortly after 11 p.m., they stopped in front of Mike's] convenience store at the well lit intersection of Columbus Avenue, Arch Street and Washington Avenue. [The victim] made some purchases at the convenience store, and, upon his return to the car, Phelmetta noticed a man with a hooded jacket walking toward the car from Washington Avenue. The man came up to the front passenger seat window where she was seated and peered through from about three feet away. She was able to look closely at his facial features before he turned away and walked around the back of the car, appearing to head away from the car. Suddenly, the man changed course and again approached the car. As he walked up to the driver's side, Phelmetta saw him withdraw a gun from underneath his shirt. The man leaned into [the victim's] open window and shot [him] several times. Phelmetta jumped out of the car through her window and fled to safety.

          " Thereafter, officers from the New Haven [P]olice [D]epartment patrolling on Columbus Avenue came upon the victim. A few minutes later, Phelmetta returned to the scene and told a police detective that she had witnessed the shooting and gave a description of the shooter. The following day, on August 19, 1996, Phelmetta went to the police station, viewed a photographic array and identified the [petitioner] as the shooter." State v. Bowens, 62 Conn.App. 148, 149-50, 773 A.2d 977, cert. denied, 256 Conn. 907, 772 A.2d 600 (2001). The petitioner was arrested three days later on August 22, 1996.

          In 1998, the case was tried to a jury, which found the petitioner guilty of murder, in violation of General Statutes (Rev. to 1995) § 53a-54a (a). The trial court rendered judgment in accordance with the verdict and sentenced the petitioner to a term of imprisonment of fifty years. The conviction was affirmed on direct appeal. Id. , 149 .

          In 2004, the petitioner filed his first petition for a writ of habeas corpus, in which he alleged that his criminal trial counsel, Attorney Thomas J. Ullmann, had rendered ineffective assistance. Following a trial in 2005 (first habeas), the habeas court denied both the petition and the petitioner's petition for certification to appeal. See Bowens v. Commissioner of Correction, 104 Conn.App. 738, 936 A.2d 653 (2007) (dismissing appeal), cert. denied, 286 Conn. 905, 944 A.2d 978 (2008).

          In 2017, the petitioner filed a second petition for a writ of habeas corpus, which is the subject of the present appeal. Following a habeas trial, the court denied the petition but granted the petitioner's petition for certification to appeal. See footnote 1 of this opinion. Additional facts and procedural history will be set forth as necessary.


          The petitioner first contends that the habeas court incorrectly denied his claim that he is actually innocent of the victim's murder. He argues that the evidence presented at the two habeas trials, taken together with the evidence admitted at his criminal trial, establishes, clearly and convincingly, that he was actually innocent of the victim's murder. The respondent, the Commissioner of Correction, counters that the habeas court correctly concluded that (1) claims of actual innocence are only cognizable in the habeas context when founded on newly discovered evidence,[2] (2) much of the evidence presented by the

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petitioner at the habeas trial[3] was not newly discovered, (3) the petitioner's actual innocence claim is barred by the doctrine of res judicata, and (4) the petitioner failed to present sufficient affirmative proof to establish by clear and convincing evidence that he was actually innocent. We agree with the respondent's fourth point: even if we assume that the petitioner's claims were— or were not required to be— predicated on newly discovered evidence and, even if we assume that they were not barred by the doctrine of res judicata, the petitioner failed to sustain his burden of proving that he is actually innocent. For that reason, we need not address the other arguments presented by the respondent.


          Additional Facts

          The following additional facts, which the habeas court found or the jury reasonably could have found; see, e.g., Miller v. Commissioner of Correction, 242 Conn. 745, 748, 700 A.2d 1108 (1997); are relevant to the petitioner's actual innocence claim. Three interrelated factual questions dominated the petitioner's criminal and habeas trials: (1) whether eyewitnesses accurately identified the petitioner as the shooter; (2) whether he presented a believable alibi defense covering the time period when the murder occurred; and (3) whether a different individual, namely, the petitioner's cousin, Tyshan Napoleon, was the actual perpetrator. Each of these questions bears on the petitioner's actual innocence claim.


          Eyewitness Testimony

          At the time of the shooting, the victim's car was parked on the north side of Columbus Avenue, facing west, and just west of the Arch Street intersection, in front of what was known as Mike's convenience store. As we discussed, the state's case against the petitioner centered around the testimony of the victim's date, Phelmetta. She testified at the criminal trial that she observed the shooter as he crossed Columbus Avenue and walked up the street toward the passenger side of the vehicle where she was seated. The shooter drew her attention as he approached because, although " it was pretty warm that day," he was wearing a hooded sweatshirt (hoodie) with the hood up. Phelmetta watched the shooter walk approximately three feet up the sidewalk, peer at her and the victim through the passenger side window, circle back around the rear of the car, step into the street, quickly approach the car from the driver's side, pull a pistol from under his hoodie, lean into the open driver's window where the victim was seated, and begin firing at close range into the victim's chest. At that point, Phelmetta jumped out of the open car window and fled up Arch Street as she heard additional shots fired. In all, she recalled hearing approximately seven shots fired.

          Phelmetta also testified that she was able to observe the shooter's face and features as he initially approached the car from the driver's side, as he looked at her through the passenger side window, and as he approached the victim's side of the car. She described the shooter as a young, dark complexioned black male, approximately five feet nine inches, with squinty eyes, a wide nose, and full lips. The day following the shooting, Phelmetta identified the petitioner as the shooter from a photographic array.[4]

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She also identified the petitioner in court as the shooter.

          The state also called two additional witnesses who, although unable to identify the petitioner as the shooter, provided testimony that largely corroborated that of Phelmetta. The first, Daniel Newell, was a local resident who had just parked on the west side of Arch Street, at, and facing, the intersection with Columbus Avenue, when the shooting occurred. He testified that he saw a young black male wearing a hoodie cross Columbus Avenue from Washington Avenue and approach the victim's parked car from behind. He then heard shots and saw sparks coming out of the car as the young man stood at the driver's window. Newell then heard a young lady scream and saw her exit the passenger side of the car, without opening the door, and run past his car along Arch Street. After a couple more shots were fired, Newell saw the young man walk back across the street toward Washington Avenue and Frank Street, where he spoke with a young Hispanic looking male. A short time later, as Newell drove along Frank Street from the other direction, he saw the same young black man in the hoodie running or preparing to run down Frank Street, away from the crime scene. Finally, Newell testified that, although the intersection at Arch Street and Columbus Avenue was well lit, he did not pay close attention to the shooter's facial features.

          Next, another local resident, Hilda Diaz, testified that she was in her apartment on Frank Street at the time of the shooting when she heard gunfire. She looked out of her window and saw two young men— one black, one with a lighter complexion— running down the street. The men separated, and she watched the black man run up a driveway that went behind a yellow house across the street from her.

          Diaz believed that she recognized the young black male as a man whom she previously had seen frequenting the yellow house. Diaz testified that the black male " had his hair wild, standing up," just like the man whom she previously had seen on her street. She stated: " I said to myself . . . it looks like the guy. I know him." Although Diaz admitted that she did not see the man's face as he ran by, she repeatedly stated that she recognized him from his " wild" hair style. In court, Diaz identified the petitioner as the man whom she saw running on Frank Street after the shooting and whom she previously had seen in her neighborhood, although she noted that his hair was styled differently at the time of trial.[5]

          During the second habeas trial, the petitioner presented the expert testimony of Margaret Kovera, a professor of social psychology. Kovera testified regarding scientific research on the reliability of eyewitness identifications. She explained that studies have found that various factors may undermine the reliability of eyewitness identifications and that those factors may be counterintuitive to the average juror. Consequently, Kovera opined, expert testimony on the factors that impact the reliability of eyewitness identifications can sensitize jurors to those factors and help

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jurors to make decisions that reflect the types of variations in accuracy that have been observed through research.

          Kovera then testified that she had reviewed the circumstances surrounding Phelmetta's opportunity to observe the shooter, as well as the procedures used to obtain her identification of the petitioner from a photographic array and, subsequently, in court. Kovera opined that several " estimator factors" could have undermined the reliability of Phelmetta's identification. These included the presence of a weapon, the stress Phelmetta was under at the time of the shooting, that the shooter was wearing a hoodie that could have disguised his hairline, that the shooting took place at night, and that Phelmetta had a relatively short period of time in which to observe the shooter.

          Kovera also noted the presence of various " system variables" that could have undermined the accuracy of the identification. She opined that the composition of the photograph array, as well as the procedures surrounding Phelmetta's viewing of the array, undermined the reliability of her identification. With respect to the array itself, Kovera observed that many of the eight included photographs were " fillers" that did not look like the petitioner or closely match Phelmetta's description of the shooter. For example, the photograph of the petitioner was one of only two photographs that depicted individuals wearing hooded sweatshirts, one of only two photographs that depicted individuals with " puffy" or " pudgy" eyes, and one of only three photographs that had a yellow or sepia tone that caused them to " pop out from the other pictures." She also noted that not all of the photographs depicted individuals with broad noses and dark complexions.

          Kovera also noted that the police officers brought Phelmetta to the police station to make the identification, that they did not utilize a double-blind procedure, and that there was no indication that the administering officer ever advised her that the perpetrator might not be depicted in the array. As a result, Kovera concluded, Phelmetta might have surmised that the police had the shooter in custody, that his picture was included in the array, and that she could identify it simply by the process of eliminating those photographs that were inconsistent with her recollection. Kovera also opined that it was poor police procedure, and potentially biasing, for the police officers to have shown Phelmetta a second photographic array containing the petitioner's picture just prior to her in-court identification of him at trial.

          Finally, Kovera testified regarding Diaz' testimony that she recognized the man she saw running on Frank Street after the shooting as the petitioner because of his distinctive hair style. Kovera opined that the fact that Diaz observed the subject at night, from a distance, and while he was running and wearing a hoodie all could have impacted the reliability of her recognition of the petitioner. Kovera also assumed that Diaz' identification was a cross-racial identification, which, Kovera opined, was " problematic in that there's a very significant body of literature showing that people make more mistakes when identifying somebody of another race than they do of their own."

          The petitioner characterized Kovera's testimony as newly discovered evidence. In support of that position, Kovera testified that, although the first scientific studies of the reliability of eyewitness identifications were conducted in the late 1970s, it was not until the late 1980s or early 1990s that discussion began regarding whether scholars in her field could provide expert testimony

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in criminal trials. She stated that the " solidification" of the role of science in identifications occurred with the publication of a white paper by the American Psychology Law Society in 1998 but that eyewitness identification experts were not used in Connecticut's trial courts until 2012. She also highlighted some " really recent" research into the conditions under which the confidence of an eyewitness identification correlates with accuracy. Finally, she opined that her report would have assisted the jury in weighing the eyewitness testimony in the petitioner's criminal case.

          In support of his actual innocence claim, the petitioner argued that new science, encapsulated in Kovera's testimony, established that his conviction had been obtained solely on the basis of an unreliable eyewitness identification. In rejecting this claim, the habeas court ruled that (1) affirmative evidence of actual innocence necessary to support a habeas claim must be newly discovered, (2) Kovera's testimony was not newly discovered evidence; rather, it was a change in the rules of evidence that permitted the petitioner to proffer testimony regarding the reliability of eyewitness identification that he could not have introduced at his 1998 trial, and (3) in any event, Kovera's testimony, if credited, did not qualify as affirmative proof of the petitioner's innocence but, rather, merely weakened the state's case by casting doubt on the reliability of their star witness. The petitioner challenges all three conclusions on appeal.


          Alibi Defense

          The relevant facts regarding the petitioner's alibi defense are set forth in full in part III A of this opinion. In brief, the victim was killed at approximately 11:18 p.m. on August 18, 1996. The petitioner testified that he left his mother's house in Hamden at approximately 10 p.m., travelled by taxicab with his friend, Celena Jackson, to her cousin's birthday celebration in the Fair Haven section of New Haven, and then left Fair Haven by taxicab after midnight, returning to Hamden with Jackson around 1 a.m. Jackson's testimony largely mirrored that of the petitioner, and two of the other three adults who were allegedly at the celebration, her cousins Turquoise Cox and Stacy Bethea, also confirmed ...

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