Giraud v. State , CV–01–0809838.

• Citation: 50 A.3d 985,52 Conn.Supp. 389
• Decision Date: 12 August 2011
• Docket Number: No. CV–01–0809838.,CV–01–0809838.
• Parties: Rasheen GIRAUD v. STATE of Connecticut.
• Court: Connecticut Superior Court

52 Conn.Supp. 389

50 A.3d 985

Rasheen GIRAUD

v.STATE of Connecticut.^*

No. CV–01–0809838.

Superior Court of Connecticut,

Judicial District of Hartford.

Aug. 12, 2011.¹

John W. Watson, special public defender, for the petitioner.

Dennis J. O'Connor, senior assistant state's attorney, for the state.

MULLARKEY, J.

In August of 2001, the petitioner, Rasheen Giraud, filed a petition for a new trial based on a claim of newly discovered evidence pursuant to General Statutes § 52–270² and Practice Book § 42–55. ³The petitioner claims that certain posttrial admissions of witness Cleve Ward prove that Ward lied during his testimony at the petitioner's criminal trial, and, therefore, undermine Ward's credibility to such an extent that a new trial would likely produce a different result.

An evidentiary hearing was held before this court on May 14, 15 and 31, and December 14, 2007. Testimony was received from: the petitioner's criminal defense attorney, Martin Zeldis; Sergeant Timothy Madden; Assistant State's Attorney Kevin Russo; Cleve Ward's criminal defense attorney, Donald O'Brien; and Cleve Ward. In rendering its decision, this court has considered the testimony of the witnesses, as well as reviewed the complete transcript of the original trial, the DVD and transcript of Cleve Ward's polygraph examination, all relevant exhibits, and the parties' posttrial briefs.

For the reasons set forth below, the court denies the petition for a new trial.

FINDINGS OF FACT

ISummary

In June, 1998, the petitioner was convicted after a jury trial of murder, felony murder, robbery in the first degree, larceny in the second degree and kidnapping in the first degree.⁴ The petitioner was sentenced by the court ( Barry, J.) to a term of eighty-five years imprisonment. The conviction was affirmed on direct appeal. State v. Giraud, 258 Conn. 631, 783 A.2d 1019 (2001).⁵

As set forth by the Supreme Court's decision in the direct appeal, the jury could reasonably have found the following facts: “At about 2 a.m. on November 26, 1995, the [petitioner], Rasheen Giraud, observed the victim, Corey Gamble, pull up in a car to use the telephone at a telephone booth at a Hartford gas station. The [petitioner] approached the victim, asking for a ride to Charter Oak Terrace. Subsequently, the [petitioner] called his companion, Cleve Ward, over to the telephone booth and told Ward that they had a ride. The [petitioner] and Ward entered the car, the [petitioner] in the front passenger seat and Ward in the backseat on the passenger side. The [petitioner] then directed the victim to the boarded-up Rice Heights housing complex. There, the [petitioner] pulled out a gun, put it to the victim's head and ordered him out of the car. The [petitioner] took the victim to the back of the car and ordered him to remove his clothes. After the victim had removed his clothes, the [petitioner] ordered him to a grassy area and forced him to his knees. The [petitioner] then fired two gunshots at the victim, killing him. The [petitioner] gathered the victim's clothing and placed it in the backseat of the car. Then the [petitioner] drove the car from Rice Heights to Edwards Street, where he lived.

“Later in the morning of November 26, 1995, Hartford police officers were directed to the parking lot at the rear of a building where they discovered the body of the victim, who was wearing only socks. Thereafter, the police interviewed the victim's mother, who told the police that in the early morning hours of November 26, she had asked her son to move a car that she had rented, a blue 1995 Pontiac Grand Am, from the front of her apartment building.She told police that this was the last time she had seen the victim.

“The police then began searching for the car that the victim's mother had rented. At approximately 9:58 p.m. on November 27, 1995, Hartford police observed the car at a gas station in Hartford. The police pulled the car over a short time later. The [petitioner] was driving the car and was wearing boots and a leather coat that had belonged to the victim. In the pocket of the coat was the victim's electronic organizer. The police then obtained a search warrant for the [petitioner's] apartment, and there recovered more of the victim's belongings: a pair of pants, a black leather belt that went with the coat and a set of keys.” Id., at 633–34, 783 A.2d 1019.

IIThe Petitioner's Criminal Trial

At the petitioner's criminal trial, the testimony of Cleve Ward established the facts surrounding the death of the victim.⁶ Throughout the police investigation of Corey Gamble's murder, Ward provided three different versions of events pertaining to his knowledge of the crime. The police first interviewed Ward shortly after the homicide and the petitioner's arrest. At that time, Ward lived with his girlfriend, Ruby Rodriquez, and their infant daughter in a second floor apartment at [52 Conn.Supp. 393]104–106 Edwards Street. Ward denied any knowledge of the crimes against Corey Gamble. In October, 1996, the police again interviewed Ward. At the time of the second interview, Rodriquez was in jail and Ward was living at his mother's house with his daughter and Rodriquez' son. In a signed statement,⁷ Ward admitted to the police that he saw the petitioner—also known as “Swell-up”—at a club or bar the night of November 25 and that he unknowingly accepted a ride from the petitioner in the victim's car to the store on November 26. Ward further stated that during the ride to the store the petitioner displayed a handgun. He did not disclose any information concerning his knowledge of the robbery and murder.

Police received an anonymous tip, later learned to have come from Norman Edwards, who resided on the second floor of 104–106 Edwards Street. Edwards provided a written statement to the police in March, 1997, in which he stated that he heard Ward telling Rodriquez that he and another person killed a man in Rice Heights. Edwards also stated that Rodriquez had some jewelry that belonged to the victim. The police subsequently obtained a written statement from Rodriquez, in which she stated that Ward told her he and “Swell-up” (the petitioner) robbed, and that “Swell-up” shot, a man in Rice Heights. Rodriquez testified at the petitioner's criminal trial; however, Edwards did not testify. Neither statement was entered into evidence. Rodriquez' statement was used during her testimony, however, to refresh her recollection concerning assurance she gave to Ward that “Swell-up” was not a “snitch.”

On or about March 17, 1997, Ward was arrested for felony murder, murder (accessorial liability), robbery in the first degree, conspiracy to commit robbery in the first degree and larceny in the second degree. In Ward's postarrest statement to the police,⁸ as well as during his testimony at the petitioner's criminal trial, Ward admitted that he was with the petitioner at the time of the murder. He did not admit, however, to being anything other than an unaware and innocent observer of the crimes. Ward asserted that he went in the car with the victim and the petitioner because, although it was around 2:00 a.m., he wanted a ride to Charter Oak Terrace to visit his cousin, who had recently been released from jail. He stated that he believed the petitioner wanted a ride to meet up with some girls. Ward denied any knowledge of a plan to rob the victim, knowledge that the petitioner had a gun and any involvement in the murder. Ward stated that he did turn up the car radio upon instruction from the petitioner, and that after he did so he heard the petitioner shoot Corey Gamble.

In his March, 1997 statement to the police, Ward said: “A few days after Swell-up was arrested Ruby and me were on the back fire escape talking. I asked Ruby if Swell-up would snitch on me, Ruby told me Swell-up wouldn't snitch on nobody....” That portion of Ward's statement was entered as a full exhibit under State v. Whelan⁹ at the petitioner's criminal trial.

At the petitioner's criminal trial, on cross-examination the defense highlighted the omissions in, and evolution of, Ward's story to the police. The defense also got Ward to admit that he was untruthful in his October statement to the police. During closing argument, the defense argued to the jury that if they did not believe Ward's testimony then there would be reasonable doubt. The defense further stated to the jury: “[Y]ou cannot believe a word out of the mouth of Cleve Ward.” The jury was also made aware of Ward's arrest for accessory to the murder and that his cooperation in the petitioner's case would be made known to the judge at the time of sentencing.

In addition to Ward's testimony, the state's case focused on the petitioner's possession (actual and constructive) of the victim's personal property, the petitioner's misstatements to the police as evidence of consciousness of guilt, and the forensic evidence. Concerning the petitioner's possession of the victim's property, when the petitioner was arrested he was wearing the victim's leather coat and boots, carrying the victim's pocket organizer in the coat pocket, as well as driving the car which was rented by the victim's mother. The belt to the coat and the victim's pants, in addition to the victim's house keys, were located in the third floor Edwards Street apartment where the petitioner was staying.

As for the petitioner's misstatements to the police, upon his arrest the petitioner stated that he purchased the leather coat at a store called Jay Fashion and the boots at a store called New York Fashion. The buyers for those stores testified that those items were neither purchased for, nor carried in, their stores. The petitioner stated that the pocket organizer belonged to Jose Laureano, who resided in the third floor Edwards Street apartment.¹⁰ Laureano testified, however, that the pocket organizer did not belong to him. The petitioner also stated that a drug dealer named Michael Flemming gave him the keys to the...