Bowens v. Comm'r of Corr., SC 20204

• Decision Date: 22 October 2019
• Docket Number: SC 20204
• Citation: 333 Conn. 502,217 A.3d 609
• Court: Connecticut Supreme Court
• Parties: Tyreese BOWENS v. COMMISSIONER OF CORRECTION

333 Conn. 502

217 A.3d 609

Tyreese BOWENS

v.COMMISSIONER OF CORRECTION

SC 20204

Supreme Court of Connecticut.

Argued February 19, 2019

Officially released October 22, 2019

Katharine Goodbody, assistant public defender, with whom was Alexandra Harrington, former deputy assistant public defender, New Haven, Connecticut, 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, Palos Hills, Illinois, for the Appellee (respondent).

Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

KAHN, J.

The petitioner, Tyreese Bowens, appeals¹ 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, 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., at 149, 773 A.2d 977.

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.

I

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 petitioner at the habeas trial³ 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.

AAdditional 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 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...