Opinion
No. CV96-002314
November 15, 2004
MEMORANDUM OF DECISION
The petitioner, Michael A. Walker, alleges in his petition for a Writ of Habeas Corpus initially filed on December 4, 1996 and amended for the final time on October 13, 2004, that his Constitutional rights to due process under the Fourteenth Amendment to the United States Constitution and Article I, §§ 8 and 9 were violated when the prosecutor at his original criminal trial knowingly presented perjured testimony. The petitioner further alleges that a further due process violation when the prosecution failed to disclose exculpatory information. Consequently he argues that his conviction should be set aside and his case returned to the docket. In essence, the petitioner argues that a witness at his criminal trial, one Landon Brown, lied when he provided testimony that inculpated the petitioner. Furthermore, the petitioner asserts that the state's attorney assigned to prosecute the matter, Attorney James Thomas, knew that Landon Brown was lying and knowingly presented perjured testimony. Additionally, the petitioner asserts that there was an agreement between state's attorney Thomas and Landon Brown to the effect that Brown would be released on a written promise to appear for a pending robbery case if he presented the false testimony necessary to convict the petitioner. The petitioner alleges that this fact constituted exculpatory material that should have, but was not, revealed to his trial defense counsel. For the reasons set forth more fully below, the petitioner has failed in meeting his burden of proof and the petition shall be denied.
The petitioner was charged with murder in violation of CGS § 53a-54a, Conspiracy to commit murder in violation of CGS §§ 53a-54a and 48 and Assault in the 1st degree in violation of CGS § 53a-59 in the Judicial District of Hartford/New Britain under docket No. 53458. This case arose out of the killing of Thomas Dixon and the wounding of Barrington Solomon on May 12, 1987. He was convicted and sentenced to a term of eighty years. This case was subsequently upheld on direct appeal. See State v. Walker, 214 Conn. 122 (1990). Moreover, the petitioner was also denied relief at sentence review. See State v. Walker, No. 53458 (Dec. 10, 1990), 1990 CT.Sup. 4470.
It must be noted that this is not the first habeas petition filed by this petitioner in connection with this particular murder conviction. He has previously argued that his trial defense counsel, Attorney Michael Dodson, was ineffective in his representation of him at trial. This habeas petition was captioned Walker v. Warden, No. CV 90 0000913 (Mar. 17, 1994). The Court, Sferrazza, J. denied the petition and was affirmed on appeal. See, Walker vs. Commissioner of Correction, 38 Conn.App. 99, cert. den. 234 Conn. 920 (1995). Given all of the previous cases filed by the petitioner seeking to collaterally attack his conviction, the issues before this habeas court were, therefore, severely limited.
Indeed, the petitioner has also been convicted of another murder and sentenced to sixty years. The details of that incident may be found in State v. Walker, 33 Conn.App. 763, cert. den. 229 Conn. 913 (1994). "The victim, Sylvester Meade, was shot and killed outside the Blue Hills Cafe in Hartford. Four witnesses identified the petitioner as the person who shot the victim . . . the victim's niece testified that she saw the shooting while standing next to a car in front of the cafe and saw the shooter run towards Adams Street in Hartford. She recognized the gunman as the petitioner, but because she was afraid of the petitioner, did not immediately identify him to the police and instead gave a deliberately inaccurate description of the shooter." Other witnesses also provided some cloudy identifications of the petitioner. He was, nonetheless, convicted and sentenced to a term of sixty years. In the habeas petition attacking this conviction for the Meade murder, the petitioner essentially argued his trial defense counsel in that case was ineffective. The habeas was denied and his appeal of that habeas denial was also affirmed. Walker v. Commissioner of Correction, 73 Conn.App. 629 (2002).
This matter came on for trial before this Court on September 27-29, 2004, and again on October 15th, and 26th. The petitioner called nineteen witnesses on his behalf and introduced twenty-four pieces of documentary evidence. The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
Findings of Fact
1. The petitioner was the defendant in a criminal case, captioned State v. Walker, in the Judicial District of Hartford/New Britain under Docket Number 53458 in which he was charged with: Murder in violation of CGS § 53a-54a, Conspiracy to commit Murder in violation of CGS §§ 53a-48 and 54a, and Assault in the first degree in violation of CGS § 53a-59.
2. Following a trial to the jury, the petitioner was found guilty of murder, felony murder, conspiracy to commit murder, kidnapping in the 2nd degree and conspiracy to commit kidnapping.
3. The petitioner came back before the Court for sentencing on November 10, 1988. At that time, the Court, Higgins, J. imposed a total effective sentence of imprisonment for eighty years.
4. The following facts were found by the Supreme Court in its decision, State v. Walker, 214 Conn. 122 (1990).
The record discloses that the defendant and Tracey Fisher were arrested in connection with the death of Thomas Dixon and the wounding of Barrington Solomon. The shooting occurred on the evening of May 12, 1987. Dixon and Solomon were seated, conversing on the first floor rear porch of a multiple family dwelling located at 104 Enfield Street in Hartford. The defendant and Fisher approached the dwelling and fired bursts from a .30 caliber automatic or semi-automatic weapon at the men on the porch. The shots killed Dixon instantly and severely wounded Solomon. The shooting was apparently motivated by the defendant's desire to avenge his brother, Robert Walker, who, on a previous occasion, had been shot by Solomon and, as a result, was paralyzed.
At the defendant's trial the state offered Lehman Brown as a witness. Brown testified that he knew the defendant and Fisher and that he had been with them early in the day on May 12, 1987. Thereafter, he said, he had gone to visit a friend, Dion Smith, at her apartment. Brown testified that Smith resided at 98-100 Enfield Street, the premises adjoining 104 Enfield Street where Dixon and Solomon were shot. Brown stated that he had fallen asleep at 98-100 Enfield Street and that upon awakening in the evening he had gone out on a rear porch. While there, he observed the defendant and Fisher come though the back lot behind 98-100 Enfield Street. Fisher was in possession of an automatic weapon. Brown stated that he then saw Fisher scale a fence between the properties and fire a series of shots at the men on the porch. Fisher then returned to where the defendant was standing and handed him the gun. The defendant then fired a burst from the weapon at the porch. Fisher and the defendant then ran from the scene.
Lehman Brown and Landon Brown are the same individual.
Smith, Brown's friend, did not testify in the state's case-in-chief nor did she testify for the defense. After the defendant had rested his case, however, the state called her as a witness on rebuttal. Smith testified that she had known Brown for approximately two and one half years. She stated that, although she had been with Brown on May 12, 1987, she had never been with him in or near an apartment at 98-100 Enfield Street in Hartford. Smith was not cross-examined by the defendant.
During the state's closing argument to the jury the prosecuting attorney noted that he had called Smith as a witness because he had a duty to see that the defendant received a fair trial and that he was obligated to produce all the relevant evidence whether it helped or hurt the state's case. He then stated that Smith's testimony indicated that the state's witness, Brown "was probably not on the porch at 100 Enfield Street on the night in question."
5. On January 16, 1996, Landon Brown signed an affidavit recanting his trial testimony saying that he had lied when he testified at the petitioner's trial.
6. The Court will discuss additional facts as necessary. CT Page 17337
Discussion
It is important at the outset to understand a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 143 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994). Consequently, even though "a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial," Summerville v. Warden, 229 Conn. 397 at 422 (1994), the burden of proving this rests with the petitioner. "Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, infra. at 422.The petitioner now comes before this Court with a claim that the prosecutor suborned the perjurious testimony of Landon Brown. Mr. Brown has clearly engaged in at least one act of perjury. At the habeas trial, he testified that he had not been at the scene when Mr. Dixon was murdered and did not see the petitioner shoot the weapon. At the petitioner's criminal trial, Mr. Brown testified that he was at the scene and saw the petitioner shoot Mr. Dixon and Mr. Solomon. Since these two pieces of sworn testimony are clearly mutually exclusive, it is obvious that Landon Brown has lied at least one time as a sworn witness before a Superior Court. Based upon all of the available evidence, however, this court concludes that it was his testimony at the habeas trial, not the petitioner's original criminal trial, that is unworthy of belief.
"Recantation as a grounds for a new trial has always been viewed with skepticism. Well over a hundred years ago, our Supreme Court enunciated this skepticism in Shields v. State, 45 Conn. 270 (1877), as follows: `After the trial is over and the accused stands convicted, with the heavy penalty of law impending and just ready to fall upon him, how easy by artful or even honest suggestion to awaken sympathy in the heart of the victim who was the main, perhaps only witness against the accused, and who naturally feels responsible for the conviction; and how easy for such witness by a process of speculation, colored by feeling, to feel and express doubt about the correctness of the opinion entertained at the time of the transaction.'" Channer v. State, 54 Conn.App. 620, 629-30 (1999). Here, the petitioner is not directly asking for a new trial on the basis of recanted testimony so this court need not go through the three-part analysis mandated in Johnson v. State, 36 Conn.App. 59, cert den. 231 Conn. 946 (1994). Instead, the resolution of this habeas petition revolves around the issue of whether the state's attorney knowingly presented perjured testimony. Since this court finds that Landon Brown testified truthfully, at least in material parts, there is no perjury.
The recantation of Landon Brown is not worthy of belief. First, he gave a detailed statement to the police on October 2, 1987 some five months after the shootings. This statement, admitted as Respondent's Exhibit A clearly, and with great detail, inculpates the petitioner. Second, Landon Brown's testimony at the petitioner's original trial is consistent with this statement given to the police. Third, other witnesses at the trial corroborated Landon Brown's testimony in all material respects. Fourth, Landon Brown also testified at the trial of his cousin, Tracey Fisher and this caused a rift in the family. Fifth, Landon Brown is now incarcerated in the Department of Correction and subject to direct pressure that could be brought to bear on him by the petitioner. Sixth, Landon Brown did not bother to come forward with his recantation until some eight years after his original trial testimony, long after the statute of limitations for a perjury prosecution had passed.
The petitioner has asserted that this case is governed by the holding of the United States Court of Appeals for the Second Circuit's case Ortega v. Duncan, 333 F 3rd 102 (2nd Circ. 2003). This court agrees. In Ortega, the Second Circuit reversed a habeas decision of the Federal District Court for the Southern District of New York. In a fact pattern similar to the case at bar, the Federal District Judge was presented with a situation where a witness recanted his earlier testimony at the criminal trial of a habeas petitioner. The Judge denied the habeas petition finding that the witness who recanted was unworthy of belief. In so doing, Judge Gleeson denied the petition without an examination of the underlying trial testimony. In reversing, the Second Circuit held that "because we find that the district court erred in focusing solely on the credibility of [the witness's] recantation rather than on the question of whether [the] trial testimony was perjured, we reverse." Consequently, it is clear under Ortega, that this court must conduct a two-part analysis of the Landon Brown recantation.
Tuning to the case at bar, this court is convinced that Landon Brown is not credible when he recants his earlier trial testimony. Moreover, this court specifically finds that the testimony of Landon Brown at the original criminal trial was truthful, in all material respects. Consequently, in accordance with Ortega, this court is on solid ground to deny the habeas petition.
Even assuming that Landon Brown did perjure himself at the original trial, this fact, in and of itself, would not entitle the petitioner to a new trial. As noted in the Ortega case, "a showing of perjury at trial does not in itself establish a violation of due process warranting habeas relief [citation omitted]. Instead, when false testimony is provided by a government witness without the prosecution's knowledge, due process is violated only if the testimony was material and the court is left with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted." (Internal citations omitted), Ortega v. Duncan, 333 F.3rd 102, 108 (2003). As previously noted, this court has found that Landon Brown was truthful in all material respects when he testified at the petitioner's original trial. This once again brings us back to the question of the involvement of the prosecutor, if any.
It is true, of course, that Landon Brown was not completely truthful when he testified at the original trial. It is also fairly clear from all of the evidence at the habeas trial as well as the transcript from the original trial that Landon Brown was lying when he said he observed the murder and assault from the rear porch of a neighboring apartment. Indeed, it was the state's attorney himself who presented evidence to the jury that proved that Landon Brown was lying about his location. Notwithstanding, it is clear that the material parts of Brown's testimony as to what he observed was accurate. It would be speculative to attempt to ascertain why Landon Brown lied on the minor point of where he was when he observed the murder, but not the details of what he saw. The operative and material parts of the Brown testimony have been corroborated by testimony from other witnesses such as Janet Douglas, Barrington Solomon, John Cunningham, Michael Dakin, Nadine Collier and Regina Tillis. When this court considers all of the testimony of these witnesses and compares it to what Landon Brown said took place, it is clear that Landon Brown was, in fact, an eyewitness to these shootings and testified truthfully about what he saw.
The state's attorney who prosecuted this case, rather than being accused of knowingly presenting perjured testimony, should be commended for doing exactly what an ethical prosecutor should do. Once it became apparent that his star witness had testified falsely in part of his testimony, rather than let it lie and run the risk of the jury believing a lie, the prosecutor chose to present testimony from a witness, Dion Smith, that clearly demonstrated this lie. "It cannot be overemphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown [state] considers to be evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings." Boucher v. The Queen, 110 Can CC 263, 270 (1954). At the risk of having the star prosecution witness disbelieved in the entirety, the prosecutor presented the appropriate evidence of that witness's mendacity as to a small point.
The petitioner was tried before a jury of his peers to which all of the evidence was presented and found to be guilty beyond all reasonable doubt. The right to a trial by jury is one of our most sacred rights in the Anglo-American system of jurisprudence with its roots running back to that field at Runnymeade in 1215 AD where King John was forced by his nobles to sign that document we still call Magna Carta. Courts have, and continue to, afford extraordinary deference to a decision made by the jury. This jury in the petitioner's case had a full set of evidence from which to make the appropriate findings of fact. There is no evidence, whatsoever, to support a claim that the prosecution knowingly presented perjured testimony. Landon Brown's recantation is, in and of itself, incredible. His original trial testimony, while tainted to some small degree, is, nonetheless, credible.
It is interesting to note that King John was such a weak, ineffectual and disliked monarch that by tradition, no English monarch has ever been named John since that day.
The second count of the petition alleges that the prosecution committed a violation of the holding in the U.S. Supreme Court case of Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose important exculpatory evidence to the defense. The petitioner alleges that this important exculpatory evidence consisted of a deal between the prosecutor and Landon Brown that would have Landon Brown testify against the petitioner in exchange for a release from pretrial confinement on a written promise to appear. Unfortunately for the petitioner's case, there never was such a deal. It was clear to this court from the testimony of Attorney Thomas Gerarde who represented Landon Brown on his robbery charge, that there never was any sort of deal between the prosecutor and Mr. Brown. Attorney Gerarde made it clear that there were no promises extended to him by the prosecutor and Attorney Gerarde communicated this to Mr. Brown. It is true that Attorney Gerarde wanted to have Mr. Brown released from pretrial confinement because he felt that it might be dangerous for him to remain in custody if word of his cooperation in the prosecution of Michael Walker and Tracey Fisher were to get out. However, it was the Judge who presided over Mr. Brown's arraignment who set the bond, not the prosecutor. Indeed, it was Landon Brown who approached the prosecutors with his offer to supply information about the murder of Mr. Dixon, not the other way around.
The petitioner has failed in his burden of proof to establish the allegation contained within paragraph 6 of his second count. It is clear from all of the testimony that there was no deal between the state and Landon Brown as regards his testimony against the petitioner and Tracy Fisher. Given this, there is nothing that the prosecutor would have been required to disclose, so there cannot be any Brady violation flowing therefrom. Moreover, it again was the prosecutor in his direct examination of Landon Brown who addressed the question of the witness receiving favorable consideration in exchange for his testimony.
Q [Atty. Thomas]: Did there come a point in time when you did actually talk to the police?
A [Landon Brown]: Yes.
Q: Did you give them a statement?
A: Yes.
Q: You remember when that was?
A: Not exactly, no.
Q: Had you been arrested at that point?
A: Yes.
Q: What were you under arrest for?
A: A robbery case.
Q: And is that case still pending in this court?
A: Yes.
Q: Are you represented by an attorney?
A: Yes.
Q: You know if you have been offered anything in return for your testimony with respect to that case?
A: Yes.
Q: Pardon?
A: Yes.
Q: What was that?
A: Nothing.
Q: What?
A: Nothing.
Q: You do know, but you haven't been offered anything?
A: Yes.
Q: What is the status of that robbery case right not?
A: Waiting for trial?
See Petitioner's Exhibit 1, pp 155-56.
It is clear from the testimony of Landon Brown at the original criminal trial that there never was any sort of "deal" between the state of Connecticut and him as regards his testimony.
The Petition for a Writ of Habeas Corpus is, therefore, denied.
S.T. Fuger, Jr., Judge