Gibson v. Comm'r of Corr.

• Decision Date: 01 May 2012
• Docket Number: No. 32299.,32299.
• Citation: 135 Conn.App. 139,41 A.3d 700
• Court: Connecticut Court of Appeals
• Parties: Jeffrey GIBSON v. COMMISSIONER OF CORRECTION.

135 Conn.App. 139

41 A.3d 700

Jeffrey GIBSON

v.COMMISSIONER OF CORRECTION.

No. 32299.

Appellate Court of Connecticut.

Argued Nov. 28, 2011.Decided May 1, 2012.

Damon A.R. Kirschbaum, for the appellant (petitioner).

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and David Clifton, deputy assistant state's attorney, for the appellee (respondent).

ROBINSON, ESPINOSA and PETERS, Js.

ESPINOSA, J.

The petitioner, Jeffrey Gibson, appeals following the habeas court's denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion in denying the petition for certification to appeal, claiming that (1) the court improperly excluded testimony concerning a confidential informant and failed to conduct an in camera review of records concerning the informant, (2) the court improperly excluded from the evidence a police report, (3) his due process right to a fair trial was violated when, during his criminal trial, the prosecutor failed to disclose material evidence that was favorable to the defense and (4) his counsel, during a prior habeas proceeding, rendered ineffective assistance. We conclude that the court did not abuse its discretion in denying certification to appeal and, therefore, dismiss the appeal.

The following procedural history underlies the present appeal. In 1997, the petitioner was convicted of the crimes of murder and carrying a pistol or revolver without a permit. At the petitioner's criminal trial, Kathryn Hutchings testified on behalf of the state as an eyewitness to the shooting incident underlying the petitioner's convictions. She testified that the petitioner was the initial aggressor in the shooting death of the victim. The petitioner was sentenced to a total effective term of incarceration of forty-five years. Following the petitioner's direct appeal, this court affirmed the judgment of conviction. State v. Gibson, 56 Conn.App. 154, 742 A.2d 397 (1999). In 2003, in a prior habeas proceeding, the petitioner filed an amended petition for a writ of habeas corpus in which he alleged that his trial counsel, special public defender Donald Dakers, provided ineffective assistance. The habeas court denied the petition and this court dismissed the petitioner's appeal from that judgment. Gibson v. Commissioner of Correction, 98 Conn.App. 311, 908 A.2d 1110 (2006), cert. denied, 281 Conn. 908, 916 A.2d 49 (2007).

In November, 2009, in the present habeas proceeding, the petitioner filed a second amended petition for a writ of habeas corpus in which he claimed that: (1) at his criminal trial, the state improperly failed to disclose material evidence that was favorable to the defense in violation of his due process right to a fair trial under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) his trial counsel, Dakers, rendered ineffective assistance and (3) his counsel in the prior habeas proceeding, Robert J. McKay, rendered ineffective assistance in that he failed to raise the claim that the state improperly failed to disclose material evidence at his criminal trial. The court dismissed the second count of the petition on the ground of res judicata, relying on the fact that, in his prior habeas petition, the petitioner raised an ineffective assistance of counsel claim concerning Dakers. Following an evidentiary hearing, the court, in a thorough memorandum of decision, rejected on their merits the remaining counts of the petition. The court concluded that the Brady claim lacked merit and, for that reason, the petitioner was unable to demonstrate that he was prejudiced as a result of McKay's failure to pursue the Brady claim in the prior habeas petition. The court denied the petitioner's petition for certification to appeal from its decision. This appeal followed.

In an attempt to discourage frivolous appeals; see Henderson v. Commissioner of Correction, 129 Conn.App. 188, 191, 19 A.3d 705, cert. denied, 303 Conn. 901, 31 A.3d 1177 (2011); our legislature enacted General Statutes § 52–470(b), which provides that a petitioner may not appeal from an adverse judgment in a habeas proceeding unless the habeas court certifies that one or more questions ought to be considered by a reviewing court. “Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion.... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits....

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.... The required determination may be made on the basis of the record before the habeas court and the applicable legal principles.... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citation omitted; internal quotation marks omitted.) Vazquez v. Commissioner of Correction, 128 Conn.App. 425, 428–29, 17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011). Having set forth the principles guiding our analysis, we turn to the claims set forth by the petitioner.

I

First, the petitioner claims that, during the present habeas proceeding, the court improperly excluded testimony concerning a confidential informant and failed to conduct an in camera review of records concerning the informant. The petitioner presented evidence that, prior to the shooting incident underlying the petitioner's arrest, Hutchings was a paid confidential informant in illegal drug cases for the New Haven police department. It was not disputed that the state did not disclose this information to the petitioner at the time of the criminal trial. During the petitioner's criminal trial, Hutchings testified on the state's behalf as an eyewitness, but there was no evidence presented at the criminal trial or in the present habeas trial that, in connection with the petitioner's case, Hutchings had provided information to the police or testified for the state as an informant.

At the habeas trial, the petitioner called New Haven police department record keeper Roger Young. Young, in accordance with a subpoena, brought confidential police records to court that included information about Hutchings' role as an informant in several criminal cases, all of which were unrelated to the petitioner's case. The respondent, the commissioner of correction, objected to the disclosure of any information from these records on the ground that they were privileged records relating to a confidential informant; see Roviaro v. United States, 353 U.S. 53, 59–62, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) (defining nature and scope of informer's privilege and establishing test for assessing challenges to privilege); and on the ground that the records were irrelevant to the present case.

The petitioner argued that the information concerning Hutchings' role as a confidential informant in other cases was relevant because it tended to prove his claim that the state failed to disclose information that would have been useful to the petitioner in confronting Hutchings at his criminal trial. Beyond stating that the evidence was necessary to confront the witness at trial, the petitioner did not elaborate with regard to the issue of relevancy. The court sustained the respondent's objection. The court reasoned that it already had before it ample evidence from police witnesses that Hutchings was a confidential informant. The court expressed its intent to protect the confidentiality of the records at issue absent a sufficient showing that they should be disclosed. Nonetheless, it based its decision to limit the petitioner's inquiry on the fact that the information sought by the petitioner was not relevant to the present case. As the court explained: “[F]urther details of whatever participation [Hutchings] may have had with the New Haven police department [are] not relevant to the [de]termination of this case. It matters not whether she was a confidential informant in one case or in a hundred cases. It matters not whether she provided useful information in several prosecutions or nonuseful information.” On this ground, the court precluded inquiry by the petitioner into any further details concerning Hutchings' status as a confidential informant, such as information about when she first was registered an informant, the first time she was paid as an informant, how much she was paid, how many times she was paid and which officers paid her.

Thereafter, the petitioner requested that the court conduct an in camera review of the subpoenaed records, which comprised fourteen banker's boxes. The petitioner argued that such a review was warranted to uncover information about Hutchings that would have been “material to the defense, material to the case,” yet had not been disclosed by the state. The petitioner argued that the information sought was related to Hutchings' status as a confidential informant, such as when she began to act as an informant, how much she was paid in connection with her role as informant and which officers paid her for information. The court denied the request because it determined that the information...