Opinion
No. CV-98-0410003 S
June 5, 2006
MEMORANDUM OF DECISION RE AMENDED PETITION FOR A WRIT OF HABEAS CORPUS
Following a trial in the Judicial District of New Haven, the petitioner was convicted of the crimes of murder, General Statutes § 53a-54a, first degree burglary, General Statutes § 53a-101(a)(1), carrying a pistol without a permit, General Statutes § 29-35, and risk of injury to a minor, General Statutes § 53-21. "The jury reasonably could have found the following facts. On September 17, 1993, the victim, Curtis Meyers, was in the third floor apartment of Sheila White at 555 Winchester Avenue in New Haven. At some point during the day, White went out on a second floor porch and took part in a conversation with the defendant and others about fake narcotics that had been sold to one of the defendant's friends. The defendant, upon discovering through this conversation that the person who was selling bags of fake narcotics might have been Meyers, stormed into White's apartment. Meyers was in the bedroom with White's eighteen month old son. Meyers, using White as a shield, pushed her and the defendant out of the bedroom, managing to slam the door shut. The defendant fired three shots through the door, killing Meyers." State v. Pugh, 45 Conn.App. 261, 263, 696 A.2d 354 (1997). The court, Samuel Freedman, J., sentenced the petitioner to a total effective sentence of 60 years. The conviction was affirmed on appeal, State v. Pugh, 45 Conn.App. 261, 696 A.2d 354 cert. denied, 242 Conn. 910, 696 A.2d 354 (1997).
The petitioner has now brought this petition for a writ of habeas corpus in which his claim is one of actual innocence. He contends that newly discovered evidence, which was not discoverable earlier by trial counsel in the exercise of due or reasonable diligence, establishes that he is innocent, that no reasonable trier of fact would find him guilty in light of the newly discovered evidence, and that he is therefore entitled to a new trial.
The Connecticut Supreme Court has yet to resolve definitively the question of "whether a habeas petitioner's claim of actual innocence must be based on new evidence," therefore leaving it "an open question in our habeas jurisprudence." Clarke v. Commissioner of Correction, 249 Conn. 350, 358, 732 A.2d 754 (1999). The Appellate Court, however, has concluded that a claim of actual innocence must be supported by newly discovered evidence. Clarke v. Commissioner of Correction, 43 Conn.App. 374, 379, 682 A.2d 618 (1996), appeal dismissed, 249 Conn. 350, 358, 732 A.2d 754 (1999), citing Williams v. Commissioner of Correction, 41 Conn.App. 515, 527, 677 A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997). "This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence." (Internal quotation marks omitted.) Batts v. Commissioner of Correction, 85 Conn.App. 723, 726-27, 858 A.2d 856, cert. denied, 272 Conn. 907, 863 A.2d 697 (2004). "Due diligence does not require omniscience . . . Due diligence means doing everything reasonable, not everything possible . . . The petitioner for a new trial must be diligent in his efforts fully to prepare his cause for trial; and if the new evidence relied upon could have been known with reasonable diligence, a new trial will not be granted." (Citations omitted; internal quotation marks omitted.) Williams v. Commissioner of Correction, supra, 41 Conn.App. 528-29.
It is well settled in Connecticut that a claim of actual innocence may be raised in a petition for habeas corpus even where that claim does not allege that the petitioner's state or federal constitutional rights have been violated. Summerville v. Warden, 229 Conn. 397, 641 A.2d 1356 (1994). In order to prevail in such a claim, however, a petitioner must overcome two very large obstacles. "First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence . . . that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty." Miller v. Commissioner of Correction, 242 Conn. 745, 791-92, 700 A.2d 1108 (1997). Unlike the original criminal trial in which the burden of proving guilt beyond a reasonable doubt was on the state, in the habeas proceeding, the burden of proof here rests upon the petitioner. This is so because of the "fact that in many cases an order for a new trial may in reality reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence." Summerville v. Warden, supra, 427. Furthermore, there is a strong societal interest "in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility . . ." Id.
The burden of proof in a habeas corpus proceeding in which the claim is actual innocence requires that "the habeas court first must be convinced by clear and convincing evidence that the petitioner is actually innocent. The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt." Miller v. Commissioner of Correction, supra, 242 Conn. 794. Clear and convincing evidence must "induce in the mind of a trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Internal quotation marks omitted.) State v. Bonello, 210 Conn. 51, 66, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S.Ct. 2103, 104 L.Ed.2d 664 (1989).
This court heard testimony in this case on March 7 and 9, 2006. The petitioner's witnesses included David Bachman, now retired from the practice of law, who was the petitioner's trial counsel, Abdul-Azim J. Barr, formerly known as Nathaniel Edmonds, Daniel Henderson, and Officer Ronald Young, Records Officer with the New Haven Police Department.
Bachman described, in general terms, his representation of the petitioner, his hiring of an investigator, one George Lemieux, and his efforts to find witnesses to back up his client's claim that it was the petitioner's father, Richard Pugh, also known as "Kemp," who had committed the crimes and "framed" the petitioner. Bachman testified that at no point during the course of his representation of the petitioner was there any mention of the names Nathaniel Edmonds (as Barr was known at that time) or of Henderson.
Barr testified that he had intimate familiarity with the area around 555 Winchester Street, where the crimes occurred, as, for several months previous to the date of the crimes, he had regularly sold drugs on the corner of Winchester and Starr Streets, diagonally across the street from 555 Winchester. His "shift," as he called it, ran from about 5:30 or 6:00 A.M. until 3:00 or 4:00 in the afternoon, and that he worked this "shift" every day during the month of September of 1993, including September 17, 1993, the date on which the crimes occurred. Although he does not remember the specific date, he recalls being at that corner at around noon on a September day when he heard one or two shots. He ducked but could tell that the shots had come from not far away and from someplace across the street, although he could not determine whether it was from inside or outside the building and toward which direction the shots were being fired. Six or seven minutes later he saw "Kemp" exit 555 Winchester and go toward the garage at the rear of the building. Police vehicles soon arrived, and one officer chased a dark-skinned male, sixteen to eighteen years of age before any of the officers entered the building. The officer did not catch this individual and later returned, somewhat out of breath. Other officers arrived. One of them approached Kemp and another one approached Barr. Barr told him what he had heard. Eventually the area was secured, and finally an ambulance came and took what appeared to be a body out of the apartment. Barr now knows that the body was that of the deceased, Curtis Meyers, a person to whom he used to sell drugs. Barr stated that he never saw the petitioner, whom he knows, throughout these events. He also testified that he did not identify himself to anyone as a witness to the events and that the police did not take a statement from him.
Assuming for the moment that Barr's testimony is relevant and probative, it would certainly be subject to vigorous cross examination. He admitted to numerous felony convictions, including robbery, conspiracy, weapons possession, larceny, possession of a weapon in a correctional institution, receiving stolen property, and, most recently, in 2003, possession of narcotics. All but the last of these occurred when he was still known as Nathaniel Edmonds. He testified that "everyone," a term which, in the context of his testimony, this court construed as including the petitioner, knew that his street name at the time of these events was "Casanova" and that the northwest corner of the intersection of Winchester and Starr Streets was the area where he dealt drugs. Barr acknowledged that he has no precise recollection of the exact date on which all this occurred and is assuming that the incident which he is describing is the same one for which the petitioner was prosecuted.
Barr himself was arrested in November of 1993, beginning what would prove to be nine years of incarceration. He and the petitioner were both confined at the Whalley Avenue Correctional Center in New Haven while the disposition of their cases was still pending in the New Haven Judicial District Courthouse, and they also served time together at Cheshire. At some unspecified point during his incarceration, Barr and the petitioner spoke about this case, and the petitioner's investigator later contacted him.
In light of Barr's regular habit of selling drugs on a street corner diagonally opposite the building in which the shooting occurred, the fact that the defendant's father was known to have sold drugs from that building and also ran an automotive garage behind that building and the fact, acknowledged by Barr, that "everyone" knew that he, Barr, regularly sold drugs from that location, it is difficult for the court to conclude that the identification of Barr as a prospective witness, and his location within the corrections system thereafter, could not have been discovered through the exercise of due diligence. Surely, if "everyone" knew that Barr was at the corner of Winchester and Starr every day from 6:00 AM to 4 PM, there is no reason why the petitioner could not have brought his identity to the attention of his counsel who, in turn, could easily have located him since he was incarcerated from November of 1993 through some point in 2002.
Even if the court were to assume that Barr's identity and information were "newly discovered," however, it is even more difficult to see how that testimony, either alone or even combined with Henderson's testimony, could have changed the outcome of the trial. Both he and the second new witness, Daniel Henderson, as will be seen, would have been subject to substantial cross examination and impeachment on the basis of their criminal records. Barr himself would have been an incarcerated inmate at the time of the trial would have an even longer record at the time of any new trial. Barr's testimony that he did not see the petitioner is hardly dispositive of the petitioner's actual whereabouts at the time of the shooting. His testimony about "Kemp" Pugh's activities is consistent with evidence at trial to the effect that, in an effort to help his son, "Kemp" took the murder weapon from his son and hid it in the garage, where it was eventually recovered. It is noteworthy that, despite having his attention drawn to the building by the sound of gunshots, he did not see Henderson run from the building immediately thereafter, as Henderson testified he had done. Additionally, of course, given their status as convicted felons, the credibility of both Barr and Henderson as to the substantive nature of their testimony at the habeas trial, revealed for the first time more than a dozen years following the murder, is also substantially weakened.
At the time of the events in question, Daniel Henderson was a heroin addict. He testified that he had frequently bought drugs from the second-floor apartment at 555 Winchester Street and had traveled there again to purchase drugs on a day in September of 1993 (which the court will assume, for purposes of the resolution of this petition, to have been the 17th), gone to the second-floor apartment and was met by a man known to him as "Kemp," who had a gun tucked in his pants. Henderson stated that he had just paid $100 for some heroin when suddenly a small dark-skinned black woman ran downstairs screaming that the guy upstairs had done something to her. "Kemp" ran back up the stairs shortly afterwards, with Henderson's money but without his having given Henderson the heroin. Henderson assumed at first that he had been ripped off and considered following "Kemp" up the stairs. Then he heard shots and concluded that it would be wiser for him to leave, which he did. He did not know at the time that someone had been killed, but he assumes that this is the same event as the one which resulted in the petitioner's conviction, although he does not recall the precise date. Following the incident, Henderson never returned to the building. He was not interviewed by the police, and no one, including Barr (who described other comings and goings following the sound of gunshots), has confirmed his presence at the scene.
Given his immediate flight from the building, and with no evidence having been presented to lead the court to believe that the petitioner would have been aware of his presence there, the court concludes that Henderson's testimony is "newly discovered." Henderson, however, like Barr, was subject to impeachment at the habeas trial and would have been subject to impeachment at the petitioner's criminal trial as well, had he been called as a witness. He has numerous state and federal forgery convictions, and state convictions for promoting prostitution, failure to appear in court, and larceny. He is presently on parole. He also served time in Cheshire with Pugh, and he has testified that it was Pugh who contacted him about being a witness in this case.
Both Barr and Henderson, although certainly subject to having their credibility challenged, were candid about their pasts and were articulate as witnesses. Viewed in the best possible light, however, the combined testimony of Henderson and Barr establishes that neither of them saw the petitioner in or around the building at any time on the date of the events to which they testified. They did, however, both see the petitioner's father, known as "Kemp." Henderson's testimony puts a gun in "Kemp's" belt and has him going upstairs toward the third floor, where the crimes occurred, shortly before the sound of gunshots. Barr's testimony has Kemp leaving the building and going to the garage shortly after gunshots were fired.
To buttress the testimony of Barr and Henderson, the petitioner called Ronald Young, Records Officer of the New Haven Police Department, to establish that there was only one report of a shooting inside 555 Winchester during the month of September 1993. The Respondent brought out evidence of another shooting outside the building on September 30, but the police records concerning time and circumstances of that shooting make it clear that it could not have been the one referred to by Barr and Henderson. For purposes of this hearing, therefore, the court concludes that Barr and Henderson, assuming that they testified honestly on this point, were referring to a shooting that occurred on September 17, 1993.
At the original trial, the principal evidence against the petitioner came in the form of testimony from Sheila White, who claimed to be an eye witness to the shooting. Presumably (although not indisputably), she is the dark-skinned black female described by Henderson. In fact, however, White testified in person only at the probable cause hearing in this matter. When she could not be located by the state at the time of trial, the trial court found her to be "unavailable" and admitted the audiotape and transcript of her probable cause hearing testimony, which that court found to have the requisite indicia of reliability. Petitioner's trial counsel, David Bachman, did not pursue the theory that petitioner had been framed by his own father, having concluded that there was no evidence to support such a claim and that, without such evidence, the allegation could only tend to inflame the jury.
The admission of the audiotape was the principal issue on appeal, and, as already indicated, the petitioner's conviction was affirmed.
The petitioner now contends that with the addition of the testimony of Barr and Henderson, his trial counsel would have been able to advance this line of defense and that, once advanced, it would have produced a different verdict. Bachman was not asked if his recommendation not to pursue this defense would have changed had the testimony of Barr and Henderson been available to him. Given that the nature of the testimony of both men could easily be construed as consistent with the state's evidence at trial and that its tendency to establish that the petitioner was framed by his own father is marginal at best, there is no reason for the court to assume that Bachman's recommendation would have changed.
The petitioner characterizes the testimony of Barr and Henderson as "very powerful." This court disagrees. Even if the testimony of both Barr and Henderson could be deemed to be "newly discovered" (the court concludes that Henderson's is such and, for purposes of this analysis, the court will assume, without deciding, that Barr's is as well), the court has no basis for concluding that their testimony would likely change the outcome of the trial. The standard, of course, is not whether the "newly discovered evidence," would likely have changed the outcome, but whether it clearly and convincingly would have done so such that no reasonable trier of fact, confronted with this evidence, would have found the petitioner guilty. Despite the rather unusual circumstance that the principal and most damaging evidence at trial came from a witness who was not personally present at the trial and came instead from the transcript and tape of her probable cause hearing testimony, this court concludes that the proffered evidence falls far short of meeting this high standard.
The amended petition for a writ of habeas corpus is therefore dismissed.