Opinion
No. CV 02 820074
September 5, 2003
MEMORANDUM OF DECISION
I. Introduction
Mark Daniels, petitioner, was convicted by a jury of the crimes of Burglary in the First Degree, a violation of General Statutes Sec. 53a-101 (a)(2), Robbery in the First Degree, a violation of General Statutes Sec 53a-134 (a)(3) and Assault in the Second Degree, a violation of General Statutes Sec. 53a-60 (a)(2) and sentenced.
The petitioner filed a Petition for New Trial and claims there is newly discovered evidence that merits the court granting the petitioner a new trial.
On or about January 16, 2002, Mark Daniels filed a Motion for New Trial pursuant to Practice Book § 42-53. The trial court denied that Motion in a Memorandum of Decision dated April 10, 2002.
II. ISSUE PRESENTED
Is the proffered testimony of such a nature that if admitted in the re-trial of Mr. Daniels it will probably result in a different verdict? The court must answer the inquiry in the negative. Accordingly, the PETITION FOR NEW TRIAL IS DENIED.
III. PETITION FOR NEW TRIAL
"A petition for a new trial is a civil action. The (petitioner) has the burden of proof, by the preponderance of the evidence." Lombardo v. State, 172 Conn. 385, 390-91, 374 A.2d 1065 (1977). "A petition will never be granted except on substantial grounds." State v. Grimes, 154 Conn. 314, 325, 228 A.2d 141 (1966). In considering a petition, trial judges must give first consideration to the proposition that there must be an end to litigation. Krooner v. State, 137 Conn. 58, 68, 75 A.2d 51 (1950), quoted in Johnson v. Henry, 38 Conn. Sup. 718-19, 461 A.2d 1001 (1989).
The standard that governs the granting of a petition for a new trial based on newly discovered evidence is well established. The petitioner must demonstrate, by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial. (Internal citations omitted.) Asherman v. State, 202 Conn. 429, 434 (1987). This strict standard is meant to effectuate the underlying "equitable principle that once a judgment is rendered it is to be considered final, and should not be disturbed by post-trial motions except for a compelling reason." (Citations omitted.) Id.
Under Asherman the petitioner for a new trial must establish each of the four prongs in order to be accorded a new trial. In light of the court's findings relevant to the fourth prong there is no need for the court to address the other three prongs of Asherman.
This court will enter the Asherman analysis through the fourth prong: Whether the proffered evidence is likely to produce a different result.
In its analysis under the fourth prong the court must engage in some form of credibility analysis in order to determine, under Asherman, whether the newly discovered evidence offered in support of a petition is likely to produce a different result. In determining the potential impact of new evidence, the trial court must weigh that evidence in conjunction with the evidence presented at the original trial. (Citations omitted.) Id. 434.
A. TRIAL TESTIMONY
At the trial Mr. Pusey, the victim, testified to the confrontation he had with his assailant in his apartment on the night of December 9, 2000. Mr. Pusey testified that the perpetrator was wearing a type of "screem" that concealed the perpetrator's identity, "I pull the screem, and when I pull the screem I saw him (sic) face." Transcript, 11/5/01, p. 47. Mr. Pusey further testified that the perpetrator wielded a gun and Mr. Pusey jumped the perpetrator, that both fell to the floor and struggled. During the struggle Mr. Pusey removed the "screem" from the perpetrator. "I didn't get it off completely but I saw his face . . . I saw the whole of his face and that's the time when he butt me across here." Id. 48 "He butt me with the gun." Id. 49 "We was . . . rumbling for at least sixty second on the ground from . . . in . . . inside of the kitchen." Id., 50.
Alternatively identified as a black screen or "screem" over the perpetrator's face. Transcript, November 5, 2001, page 47. Further described, "It wasn't a mask it was a screem, a piece of cloth. Black . . ." Id., page 83. "It's a black screem just like when somebody getting married and they have a screem over their face but it was black." Transcript, November 5, 2001, page 115. "All I know it cover his face, came down." Id. Not a mask, a screem . . . I pull it off of his face and then I pull it he butt me across here with the gun." Id., p. 119. "Yeah, I pull it off. Pull it . . . pull it . . . I pull it all the way off. Id., p. 120.
Mr. Pusey further testified that he recognized the assailant. "I saw his face . . . I know him. I know him personally. I know him just like I know Tiandra." Id. Mr. Pusey further described that he observed the assailant earlier that same evening, "I saw him before and I saw him when I was leaving the bar coming over pass him right by Bernies . . . right by Bernies, in between Bernie's and Jerry Mack coming up the Avenue. I saw him coming up with an umbrella that evening." Id., 51. Mr. Pusey further testified that he was acquainted with the assailant, "Yeah, I know him before." Id., 53. "He came to my house . . . He came to my house come look for Tiandra when Tiandra . . . when Tiandra were . . . were living there." Id. That he did know the defendant for over a year prior to December 9, 2000. Id., 59. Mr. Pusey testified that he had seen the defendant on prior occasions, "I see him a few times. I see him a few times pass by some day. He came by my house a couple of . . . `bout two, three time he came by my house (looking for Tiandra) . . . One time he came there come look for me too, come check me and ask me about Tiandra . . ." Id. Mr. Pusey related that he told police, "Yeah, I said, Mark . . . Mark is the one who did it." Id., p. 63.
Id. Ms. Tiandra Johnson did not testify at the trial or at the hearing on the petition. The trial testimony revealed that Ms. Johnson accompanied Mr. Pusey on the day and evening of the incident of December 9, 2000. Upon returning to Mr. Pusey's apartment on the evening of the incident, Mr. Pusey gave Ms. Johnson the keys to his apartment in order for Ms. Johnson to use the bathroom facilities while Mr. Pusey went to a nearby store to make some purchases. When Mr. Pusey returned to his apartment shortly thereafter he observed Ms. Johnson in the hallway speaking with the superintendent and his apartment door was in an opened condition. Ms. Johnson advised Mr. Pusey that she had to leave for the store in order to exchange one of the food items Mr. Pusey had just purchased. Mr. Pusey entered his apartment. Ms. Johnson returned to Mr. Pusey's apartment some five or six minutes later and went into the bathroom. Shortly thereafter Mr. Pusey was accosted by the assailant who was apparently secreted in his apartment. Mr. Pusey testified that he suggested that Ms. Johnson had set him up the night of the incident. There were no signs of forced entry into Mr. Pusey's apartment.
During the state's case in chief expert testimony was offered which corroborated essentially the testimony of Mr. Pusey relevant to the nature of the wounds inflicted upon him.
It is noteworthy that during the state's case in chief an emergency medical technician dispatched to the scene described the injuries he observed on the person of Mr. Pusey and testified that Mr. Pusey was bleeding from the back of his neck, upset and yelling that his "`stepdaughter's boyfriend' or `niece's boyfriend' that did it." Id., 181.
A detective of the Hartford Police Department did testify that as part of the investigation into the assault he met with Mr. Pusey at the Hartford Police Department and displayed to Mr. Pusey a photo array of suspects in order to assist Mr. Pusey in any identification and Mr. Pusey selected the photograph of the defendant and his words were "200% certainty." Id., p. 195.
In the defense case, the defendants father did provide an alibi wherein he testified that the defendant was with him at home the entire night in question. It was also revealed to the jury that Mr. Pusey had two prior felony convictions one in 1992 the other in 1995.
B. PETITION TESTIMONY
On April 29, 2003, this court did conduct an evidentiary hearing on the petition for a new trial. The court did entertain the testimony of Ms. Sharon Williams and an investigator for the defense.
Mr. Pusey and Ms. Williams were married July of 1983. They separated in 1985 and the divorce was not finalized until 2001. They have maintained a friendship. At the time of the incident Ms. Williams resided on the second floor and Mr. Pusey on the third floor of the same building, 1142 Albany Avenue, Hartford.
Ms. Sharon Williams testified at the hearing on the petition that on December 10, 2000, the day after the incident, Ms. Williams went to St. Francis Hospital to visit Mr. Pusey, the victim. During the hospital visit Mr. Pusey, according to Ms. Williams, informed her that he "did not see the person who assaulted him — the person had a stocking mask on his face." Transcript, 4/29/03, p. 19. Ms. Williams did not make that information known to authorities.
Approximately one year later, in December of 2001, Mr. Pusey asked Ms. Williams to come to his apartment on the third floor so that Ms. Williams could read a letter to Mr. Pusey that he had received. The letter was from the petitioner, Mark Daniels, who was at the time incarcerated for the subject offense. After Ms. Williams read the letter to Mr. Pusey, Ms. Williams inquired if he (Pusey) was sure Mr. Daniels was the assailant and Ms. Williams testified that Pusey answered "yes" and eventually said "And he — he said whether he did it or not, he didn't care." Id., 23.
Id., 23. At the evidentiary hearing the proponent of the admissibility of the comment, upon a hearsay objection by the state, claimed as grounds for the admissibility of the comment various theories i.e. admission, inconsistent statement and within the residual hearsay exception. The court sustained the objection. Though the proponent did not articulate specifically that the offer was to impeach the credibility of the victim, that essentially was the nature of the offer. The court will admit the comment (s) relevant to the evidentiary hearing on the petition.
IV. DISCUSSION
The petitioner claims two grounds of newly discovered evidence, to wit: two comments attributed to Mr. Pusey, the victim: First, Ms. Williams is prepared to testify that on December 10, 2000, at St. Francis Hospital, Mr. Pusey related to her that "he did not see (the assailant) . . . And they had a stocking mask, so he could not see the person's face . . ." Id. 19. Second, Ms. Williams is prepared to testify that sometime in December 2001 after reading a letter from the defendant to Mr. Pusey and upon inquiring of Mr. Pusey "You're sure that this boy did this?" And Mr. Pusey said "Yes . . . And he — he said whether he do or not, he didn't care." Id. 23.
New trials are not granted upon newly discovered evidence which discredits a witness unless the evidence is so vital to the issues and so strong and convincing that a new trial would probably produce a different result . . . The basic question which the trial court has to decide is whether upon all the evidence an injustice had been done. (Citations omitted.) State v. Roberson, 62 Conn. App. 422, 426 (2001).
Prior case law confirms that a trial court must engage in some form of credibility analysis in order to determine, under Asherman, whether the newly discovered evidence offered in support of a petition is likely to produce a different result on retrial. (Citations omitted.) [I]n analyzing petition for new trial "it [is] necessary for the [trial] court to consider the credibility of the witnesses to determine whether it [is] probable that the testimony of those witnesses would result in a different verdict." (Citations omitted.) Shabazz v. State, 259 Conn. 811, 822 (2002).
Accordingly, the court has had two opportunities to observe and consider the credibility of Ms. Sharon Williams. This court finds Ms. Williams sufficiently credible.
Ms. Williams testified relevant to the Motion for a New Trial on February 6, 2002 and on the instant petition.
We must further analyze the standard that the court must utilize in determining the probable effect, if any, of the newly discovered evidence in any retrial.
Our Supreme Court observed that "[w]hether a new trial should be granted does not turn on whether the evidence is such that the jury could extend credibility to it. The [petitioner] must persuade the court that the new evidence he submits will probably, not merely possibly, result in a different verdict at a new trial . . . It is not sufficient for him to bring in new evidence from which a jury could find him not guilty it must be evidence which persuades the judge that a jury would find him not guilty." (Citations omitted; emphasis altered; internal quotation marks omitted.) Id., 823.
Although the court finds Ms. Sharon Williams to be sufficiently credible, the nature of her testimony — whereby she engaged Mr. Pusey in conversation on two occasions after the fact, although apparently to be offered to impeach the credibility of Mr. Pusey is not of such a nature whereby this court could reasonably conclude that the newly discovered testimony probably would, if heard by the jury, result in a different verdict. Mr. Pusey's credibility was challenged at trial by the testimony of the EMT, the introduction of his criminal felony record and the alibi presented by the defendants father and withstood that challenge.
Upon a review of the trial testimony and the testimony presented at the evidentiary hearing on the petition this court can only conclude that it is possible that the proffered testimony would result in a different verdict. This court cannot find that the nature of the proffer is such that it is probable that its admission would result in a different verdict.
Accordingly, the petition must fail. The Petition for New Trial is DENIED.
BY THE COURT
Miano, J.