Opinion
No. CV 05 4000513
August 12, 2008
Memorandum of Decision
The petitioner was tried and convicted of sale of narcotics by a non-drug dependent person and sale of narcotics within 1500 feet of a public elementary school. The court, Conway, J., imposed a net effective sentence of twelve years in prison. The Appellate Court affirmed and the Supreme Court denied further review. State v. Sargent, 87 Conn.App. 24, 864 A.2d 20, cert. denied, 273 Conn. 912, 870 A.2d 1082 (2005). The petitioner then filed this habeas corpus petition alleging ineffective assistance of his trial counsel and actual innocence. The court denies the relief sought in the petition.
I
The opinion of the Appellate Court sets forth the following facts that the jury could reasonably have found. "In November 2000, several members of the narcotics enforcement unit of the New Haven police department were assigned to conduct a narcotics sting operation. In connection with the investigation, Officer Rachel Inconiglios was sent to purchase drugs in the area of 87 Kensington Street in New Haven. Inconiglios was working undercover in plain clothes and wearing a body microphone that allowed her to communicate to Detective Burnell A. Burrell and Detective Brian Mauro, backup officers who were monitoring her from a safe distance in unmarked vehicles. Also present was Sergeant Michael Canning, who supervised the operation. Inconiglios drove to 87 Kensington Street in an unmarked vehicle and stopped at an alleyway where a small group of men were gathered. After she got out of her vehicle, one of the men asked "how much" she wanted. She responded "one" and handed the man $20 in bills issued by the police department. She received a small ziplock bag containing a white rock substance that appeared to be crack cocaine. After the purchase, Inconiglios got back into her vehicle and relayed into the body microphone a brief description of the suspect.
"Inconiglios then drove to meet the backup officers at a prearranged location a few blocks away. She repeated to the officers a description of the suspect as a black male, about six feet tall, weighing 200 pounds, wearing a black knit cap, a black jacket, a blue polo shirt and tan moccasins. She testified that she took particular note of the suspect's footwear because in her years of participating in undercover narcotics purchases, she had never seen a suspect wearing moccasins. Canning then relayed that description by cellular telephone to Officer Vincent Anastasio, a uniformed officer who was patrolling the area. Canning instructed Anastasio to drive to 87 Kensington Street and look for someone matching the description provided by Inconiglios. After reaching the location, Anastasio observed four men gathered, three of whom were approximately five feet, seven inches to five feet, eight inches tall and a fourth man who was about six feet, one inch to six feet, two inches tall. From Anastasio's experience patrolling the area and from having had direct contact with the defendant on about six prior occasions, Anastasio was able to recognize the taller man in the group as the defendant. Anastasio also was able to identify by name one of the other men in the group, but did not know the names of the other two men, although he did recognize them. From his vantage point about twenty-five feet away from the group, Anastasio observed that the defendant was the only person wearing moccasins. He testified that in his several years working in the area, he had never seen a suspect wearing moccasins. Anastasio telephoned the backup officers and provided the name of the defendant as the man fitting the description provided by Inconiglios. In the meantime, a field test of the substance purchased from the defendant revealed that it was cocaine. A full test of the suspected narcotics was later conducted and confirmed that the substance was freebase cocaine.
"Burrell compiled a photographic array that included the defendant's photograph and those of seven other men similar in appearance. On December 20, 2000, twenty days after the narcotics transaction at issue, Inconiglios viewed the array and identified the defendant as the person who sold her the drugs. She later made an in-court identification of the defendant. Burrell also compiled a police report of the narcotics transaction. The report, purportedly prepared on December 11, 2000, did not mention Anastasio or his identification of the defendant immediately following the transaction but described Inconiglios' identification of the defendant from the photographic array, which did not occur until December 20, 2000, nine days after the report was prepared." Id., 26-28.
The Appellate Court also recounted the following additional facts. "At trial, the defendant raised alibi and mistaken identity defenses, claiming that on the day in question, he had been at the Roger Everson House (Everson House), a residential facility that houses men on probation or parole. Records introduced at trial showed that the defendant was staying at the Everson House on the day in question and that he did not sign out to leave the facility at any time that day. [footnote 1: "There was evidence, however, that the facility's alarm system was not functioning properly at the time and that during the facility's fourteen years in operation, there were about a dozen known instances of residents missing."] According to the testimony of one witness, it was possible to exit the facility through windows on the second floor, where the defendant's bedroom was located. A staff member testified that when doing his rounds on the day in question, he thought he saw the defendant in his bed, but did not enter the defendant's room or pull back the bedsheets to confirm the defendant's presence. There was evidence that the Everson House is approximately a six minute drive or fifteen minute walk from 87 Kensington Street." Id., 28-29.
II
The petitioner claims that trial counsel, attorney Tara Knight, rendered ineffective assistance in failing to pursue a motion to suppress the in-and out-of court identifications of the petitioner by Inconiglios. A petitioner claiming ineffective assistance of counsel must prove both deficient performance and prejudice. See Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187 (2006). To prove deficient performance, the petitioner must show that defense counsel's representation "fell below an objective standard of reasonableness . . ." Duperry v. Solnit, 261 Conn. 309, 335, 803 A.2d 287 (2002). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005). "In order to show ineffective assistance for the failure to make a suppression motion, the underlying motion must be shown to be meritorious." (Internal quotation marks omitted.) Harvey v. Commissioner of Correction, 98 Conn.App. 717, 725, 912 A.2d 497 (2006), cert. denied, 281 Conn. 914, 916 A.2d 55 (2007).
The petitioner filed a motion to suppress identification testimony five days before the start of evidence. State v. Sargent, supra, 87 Conn. 29. Two days after filing the motion, Knight told the court; "The defense is requesting that the motion go off and we are not pursuing that motion. I discussed it with Mr. Sargent and for tactical reasons we are not pursuing it." (Exhibit (Ex.) 2, p. 72.) Knight testified credibly at the habeas trial that she did not think she had a good chance of winning and that, by litigating the motion, she would give the participating police officers a dry run through the questions she would ask at trial.
Although the motion literally applied to all identifications, which would include the identification by Anastasio, the petitioner's brief focuses only on the identification by Inconiglios.
Knight's assessment of the merits of the motion was valid. "[T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances . . ."Because, [g]enerally, [t]he exclusion of evidence from the jury is . . . a drastic sanction, one that is limited to identification testimony which is manifestly suspect . . . [a]n identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification . . . To determine whether a photographic array is unnecessarily suggestive, a . . . court considers various factors, including, but not limited to: (1) the degree of likeness shared by the individuals pictured . . . (2) the number of photographs included in the array . . . (3) whether the suspect's photograph prominently was displayed or otherwise was highlighted in an impermissible manner . . . (4) whether the eyewitness had been told that the array includes a photograph of a known suspect . . . (5) whether the eyewitness had been presented with multiple arrays in which the photograph of one suspect recurred repeatedly . . . and (6) whether a second eyewitness was present during the presentation of the array." (Citations omitted; internal quotation marks omitted.) State v. Randolph, 284 Conn. 328, 384-86, 933 A.2d 1158 (2007).
In this case, Inconiglios saw one photo array containing eight photographs of young black males with reasonably similar appearance. (Ex. B.) There is nothing particularly suggestive about the petitioner's inclusion in the photo array. There is no evidence, either from the criminal trial or the habeas trial, that other police officers told Inconiglios anything about the suspect or about who would be included in the array. Thus, the photo array was not unnecessarily suggestive.
Contrary to the petitioner's argument, the fact that Detective Burrell's December 11, 2000 police report states that Inconiglios identified the petitioner — an event that did not occur until December 20, 2000 — does not establish that Burrell knew in advance, as a result of information given to Inconiglios, that she would make the identification. There was simply no evidence that Inconiglios knew anything about the suspect's identity or about the photo array prior to her identification. The court credits Burrell's testimony that he started writing the report on December 11 and later added the facts concerning the December 20 identification by Inconiglios but mistakenly failed to change the date on the report.
Although the trial court could have denied the motion on this ground alone, the petitioner would not likely have prevailed even if the trial court had reached the issue of reliability. "[R]eliability is the linchpin in determining the admissibility of identification testimony . . . To determine whether an identification that resulted from an unnecessarily suggestive procedure is reliable, the corruptive effect of the suggestive procedure is weighed against certain factors, such as the opportunity of the [witness] to view the criminal at the time of the crime, the [witness's] degree of attention, the accuracy of [the witness's] prior description of the criminal, the level of certainty demonstrated at the [identification] and the time between the crime and the [identification]." (Citation omitted; internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 553, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082 (2006).
In this case, Inconiglios viewed the suspect face-to-face in the daylight for approximately thirty seconds. (Ex. 3, pp. 82, 84-89.) Thus, the officer had a good opportunity to view the suspect. See State v. Ledbetter, 185 Conn. 607, 609, 615, 441 A.2d 595 (1981) ("a good hard look" — there, ten to twenty seconds face to face twenty feet apart — "will pass muster even if it occurs during a fleeting glance"). With regard to her degree of attention, Inconiglios (now Sergeant Ross) testified credibly at the habeas trial that she observed the suspect without staring at him. Inconiglios knew, as a trained police officer, that she would have to provide a description and make an identification later, and thus would naturally have focused on the suspect's appearance. (Ex. 3, pp. 81, 89, 92, 107.) Inconiglios also testified at the habeas trial that she would not have identified the suspect unless she were one hundred percent certain. She described the suspect as a black male, approximately six feet tall, 200 pounds, wearing a black knit cap, a black coat, a blue tee shirt, and tan moccasins. (Ex. 3, pp. 58-59.) The description of the race, gender, height and weight generally match that of the petitioner. Although the officer did not provide a description of the suspect's face or hair, she instead provided a description of exterior clothes that would more readily assist fellow officers in apprehending the suspect on the street. Finally, the identification twenty-one days after the crime was a relatively short time. See State v. Howard, 221 Conn. 447, 454-55, 604 A.2d 1294 (1992) (two and one-half months not unreliable). On the whole, these factors weigh in favor of a finding of reliability and consequent admission of the out-of-court identification.
Knight measured the reduced likelihood of suppression against the tactical advantage gained from denying the officers a preview of her cross-examination. She employed this tactical advantage effectively at trial by surprising the state with the fact that Burrell's police report, dated December 11, states that Inconiglios made an identification on December 20. See note 2 supra. Because Knight waived a hearing on the motion to suppress, Knight was able skillfully to ask foundation questions concerning this discrepancy on cross-examination of Burrell and then argue in summation that the discrepancy showed a "sloppy investigation here, it is fraught with problems." (Ex. 3, pp. 132, 145-46; Ex. 5, p. 30.) The element of surprise in making this argument prompted the state to commit what the Appellate Court labeled as misconduct in its rebuttal argument. State v. Sargent, supra, 87 Conn.App. 39-41. The jury then asked a question about the discrepancy, which led to a motion for mistrial by the petitioner. Id. Although the court denied the motion, and the Appellate Court ultimately held that the misconduct did not require reversal; id.; Knight's tactic in raising the discrepancy in dates for the first time at trial rather than at a motion to suppress clearly had the potential to derail the state's case.
At trial Knight also elicited the fact that Inconiglios had made two other undercover buys within the same time frame, thus suggesting that she might have confused the suspects. (Ex. 3, pp. 72-73.) In addition, Knight brought out that Inconiglios made particular note of the suspect's height and moccasin shoes, yet the photographs she viewed in the array did not show these features. (Ex. 3, pp. 109-10.) Essentially, Knight had several cards to play, and she quite reasonably chose to play them to a jury rather than to a judge trained in the law.
The Appellate Court has recognized the validity of this strategy. The Court held in Williams v. Bronson, 21 Conn.App. 260, 573 A.2d 330 (1990), as follows: "[i]t was the conscious decision of trial strategy, rather than neglect, that led counsel not to seek suppression of the show-up identification . . . Such a decision has specifically been held to constitute part of a defense counsel's trial strategy . . . A decision of counsel to try to discredit an identification through cross-examination rather than through a motion to suppress may be a sound decision. Whether to afford a witness an opportunity to rehearse his testimony at a suppression hearing, especially when the prospects of suppression are negligible, is very much a tactical decision, not easily characterized as ineffective assistance of counsel." (Citations omitted; internal quotation marks omitted.) Id., 266. Accordingly, because the petitioner has not proven that a motion to suppress would have been meritorious, and because Knight had a valid, alternative strategy for confronting the identification issue in the case, the petitioner's ineffective assistance of counsel claim does not withstand scrutiny.
There would be no merit to any challenge to an in-court identification because there was no taint from the out-of-court identification. See State v. Smith, 200 Conn. 465, 469, 512 A.2d 189 (1986).
III
The petitioner also alleges that he is actually innocent of sale of narcotics. An actual innocence claim requires that the petitioner "establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, [he] must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 101 Conn.App. 465, 470, 922 A.2d 221 (2007). In addition, under binding Appellate Court precedent, "a claim of actual innocence must be based on newly discovered evidence," which is defined as evidence that "could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence." (Internal quotation marks omitted.) Id., 470-71.
Our Supreme Court has not yet decided the issue of whether an actual innocence claim requires newly discovered evidence. See id.
The petitioner's actual innocence case rests on the startling testimony of his brother, Ernest Sargent, that it was Ernest, and not Theo, Sargent who actually committed the sale of narcotics on November 30, 2000 from the area of 87 Kensington Street in New Haven. The court does find that the physical appearance of Ernest bears a strong resemblance to that of the petitioner. Further, the court credits Ernest's testimony that he was a drug dealer in that area at the time.
Ultimately, however, the petitioner's case does not meet the required standards. First, the testimony of Ernest Sargent that he committed the narcotics sale in question, and that the petitioner was not present at the time, is not "newly discovered evidence." The court cannot accept the petitioner's testimony at the habeas trial that it did not "cross his mind" that his brother might have committed the crime. According to the evidence at the habeas trial, Ernest and the petitioner lived in the same area, police officers and other people confused the two, and Ernest sold drugs on a daily basis at the time and place when and where the controlled buy took place. Thus, with due diligence, it would surely have occurred to the petitioner, if he were actually innocent and truly not present at the scene of the crime, that the police had arrested the wrong Sargent brother and that he should have his attorney investigate the culpability of Ernest Sargent. The petitioner, however, produced no evidence that he attempted to investigate his brother during the pendency of his criminal case. Thus, the petitioner did not act with due diligence and the testimony of Ernest Sargent does not qualify as newly discovered evidence.
Second, the proof does not establish that the petitioner is actually innocent with the requisite "clear and convincing evidence." The court has grave doubts about the veracity of Ernest Sargent's belated admission of criminal culpability. If Ernest actually committed the crime, he had to know that the petitioner, his own brother, was being tried and convicted for something that the petitioner did not do, especially because Ernest attended the trial on one or two occasions. And yet Ernest did nothing as his brother, supposedly an innocent man, went to prison for a twelve-year term. He knew that his family, including his mother and his grandmother, suffered as the petitioner sat in prison. It defies imagination, even given the amoral nature of the drug world, to believe that one brother could have such depraved and callous indifference to another. Ernest Sargent's testimony strikes the court as contrived.
Further, the court accepts the testimony of the police officers who made the identification of the petitioner in 2000 and excluded Ernest Sargent as the suspect at the habeas trial. Sergeant Inconiglios testified credibly that she would not have made the photo array identification of the petitioner if she were not one hundred per cent certain. She added that she would not have selected a contemporaneous photo of Ernest Sargent because he had a clean shaven head, whereas the suspect (like the petitioner) had hair. The court also credits the testimony of Officer (now Sergeant) Anastasio, who was familiar with the petitioner from past encounters and who recognized him at the crime scene on November 30. Anastasio rejected the possibility that he had actually seen Ernest Sargent rather than the petitioner at the crime scene because he had never seen the petitioner with the shaven head that the pictures of Ernest Sargent revealed and because the petitioner has a larger stature than his brother.
Finally, although the petitioner had a plausible alibi, the jury rejected it, revealing that it was not foolproof. For all these reasons, the petitioner has failed to "establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted." (Internal quotation marks omitted.) Id., 470.
IV
The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. The petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.