Gomez v. Comm'r of Corr.

• Decision Date: 12 December 2017
• Docket Number: AC 39328
• Citation: 178 Conn.App. 519,176 A.3d 559
• Court: Connecticut Court of Appeals
• Parties: Jamie R. GOMEZ v. COMMISSIONER OF CORRECTION

178 Conn.App. 519

176 A.3d 559

Jamie R. GOMEZ

v.COMMISSIONER OF CORRECTION

AC 39328

Appellate Court of Connecticut.

Argued September 11, 2017

Officially released December 12, 2017

Andrew P. O'Shea, assigned counsel, for the appellant (petitioner).

Stephen Carney, senior assistant state's attorney, with whom, on the brief, were Michael L. Regan, state's attorney, and Theresa Anne Ferryman, senior assistant state's attorney, for the appellee (respondent).

Lavine, Kahn and Bishop, Js.^*

LAVINE, J.

The petitioner, Jamie Gomez, appeals from the judgment of the habeas court denying his second petition for a writ of habeas corpus. Following that denial, the court granted his petition for certification to appeal. On appeal, the petitioner claims that the habeas court erred when it concluded that (1) his state and federal constitutional due process rights were not violated by the state's suppression of material exculpatory evidence concerning agreements or understandings that it allegedly had with two of its witnesses, (2) the state did not violate his state and federal constitutional rights to due process by knowingly presenting, and failing to correct, the false testimony from those witnesses, and (3) he was not denied his state and federal constitutional rights to the effective assistance of counsel when his trial counsel failed to properly cross-examine those witnesses regarding their alleged agreements or understandings with the state. Because we conclude that the petitioner failed to prove that the agreements or understandings were not disclosed, we are unpersuaded by the petitioner's first and second claims. We are also unpersuaded by the petitioner's third claim because, even if it is assumed that his trial counsel provided constitutionally deficient representation, the petitioner failed to prove that he was prejudiced. Accordingly, we affirm the judgment of the habeas court.¹

The following facts and procedural history are relevant. In connection with the murder of Darrell Wattley, the state charged the petitioner and his codefendants, Anthony Booth and Daniel Brown, each with one count of murder in violation of General Statutes § 53a–54a, one count of felony murder in violation of General Statutes § 53a–54c, and one count of conspiracy to commit murder in violation of General Statutes §§ 53a–48 (a) and 53a–54a.² The factual backdrop underlying the charges is set forth in our Supreme Court's decision and need not be repeated in full for this appeal. See State v. Booth , 250 Conn. 611, 614–17, 737 A.2d 404 (1999) (consolidated trial with three codefendants and Supreme Court consolidated appeals), cert. denied sub nom. Brown v. Connecticut , 529 U.S. 1060, 120 S.Ct. 1568, 146 L.Ed. 2d 471 (2000).

The following facts from that decision, however, provide context for the petitioner's second habeas petition. On July 4, 1995, James "Tiny" Smith and Wattley fought one another at a party. Id., at 614, 737 A.2d 404. During the fight, Wattley sliced Smith's throat with a box cutter, wounding him. Id. On July 13, 1995, when Smith, Brown, and the petitioner were at Booth's apartment in New London, "Booth told them that he had asked Angeline Valentin, who lived in the same building, to call Wattley over to the building so that Wattley and Smith could fight." Id.

"When Valentin called to say that Wattley was on his way, the four men left the building and went outside. [The petitioner] and Brown went to the north side of the building while Smith and Booth went to the south side and hid behind a bush. While they were waiting, Booth was talking on a cellular telephone to either Brown or [the petitioner]. After approximately fifteen minutes, a car arrived and Wattley got out. Wattley walked toward the north end of the building, where Brown and [the petitioner] were waiting. Smith and Booth then entered the building on the south side and began to ascend the stairs. When Smith and Booth reached the third floor, where Valentin's apartment was located, they heard gunshots below. Smith and Booth then ran to exit the building. As they descended the stairs, they saw Wattley lying face down in the second floor hallway with blood everywhere. Booth then stabbed Wattley a couple of times before Smith and Booth fled the building." Id., at 614–15, 737 A.2d 404. Shortly after the incident, the petitioner drove his codefendants and Smith across town, where they all agreed to come up with alibis. Id., at 615, 737 A.2d 404.

Following a consolidated jury trial, the petitioner and his codefendants were found guilty of murder and conspiracy to commit murder. Id., at 613, 737 A.2d 404. During the consolidated trial, John F. Cocheo, now deceased, represented the petitioner, Jeremiah Donovan represented Brown, and Bruce Sturman represented Booth. On January 7, 1997, the court, Parker, J. , sentenced the petitioner to a term of imprisonment of fifty years on the murder conviction and a concurrent sentence of fifteen years on the conspiracy to commit murder conviction, for a total effective sentence of fifty years to serve. Our Supreme Court affirmed the petitioner's conviction. See id., at 617, 663, 737 A.2d 404.

On September 18, 2000, the petitioner filed his first self-represented petition for a writ of habeas corpus (first petition). In a two count revised petition, he alleged ineffective assistance of counsel against Cocheo and actual innocence. The habeas court denied his first petition, and this court affirmed the denial. See Gomez v. Commissioner of Correction , 80 Conn. App. 906, 836 A.2d 1279 (2003), cert. denied, 267 Conn. 917, 841 A.2d 219 (2004).

On May 16, 2013, the petitioner filed a second self-represented petition for a writ of habeas corpus. In his amended petition (present petition), he first alleged that the state violated his right to due process by failing to disclose material exculpatory evidence. Specifically, he alleged that the state told Smith and Valentin that, in exchange for their testimony, it would assist in (1) reducing their bonds and (2) disposing of their charges in a manner favorable to them, and that it failed to disclose this information.³ He also alleged that the state violated his right to due process when the prosecutor failed to correct the false testimony of Smith and Valentin, who both testified at the consolidated trial that the state had not offered them "consideration" in exchange for their testimony. Additionally, he alleged that Cocheo's failure to adequately impeach Valentin and Smith deprived him of his right to the effective assistance of trial counsel.⁴ The respondent, the Commissioner of Correction, filed his return on January 12, 2016, denying the material allegations of the present petition.⁵

On May 23, 2016, the habeas court denied the present petition in a written decision. It made several relevant findings of fact, including: "(a) The petitioner has failed to demonstrate that underlying trial counsel (Cocheo) was unaware of the existence of an agreement between Smith and Valentin and the prosecuting authority to bring their cooperation to the attention of the judicial authority posttrial. The evidence demonstrated that at least one other defense attorney in the consolidated trial was made aware of the agreement; (b) The petitioner has failed to demonstrate that the underlying trial testimony of Smith and Valentin was ‘false’ as suggested by the petitioner, as opposed to, for example, their uncertainty as to the likely posttrial sentencing scenario. The nature and circumstances of Smith and Valentin's ‘agreements' were thoroughly explored and dissected on both direct and cross-examination. There is no reasonable probability that the jury was misled in this regard; (c) Nothing about the nature of the agreements or their disclosure was violative of Brady⁶ or Giglio [v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed. 2d 104 (1972) ]⁷ ; and (d) The petitioner has failed to demonstrate, as was the case in the first habeas trial, that Attorney Cocheo was deficient in any regard, including cross-examining Smith and Valentin." (Footnotes added.)

The petitioner filed a motion for articulation, which the habeas court denied on September 23, 2016. He did not seek review of that denial. See Practice Book §§ 66–5 and 66–7. This appeal followed. Additional facts will be set forth as necessary.

"In evaluating the merits of the underlying claims on which the petitioner relies in the present appeal, we observe that [when] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct ... and whether they find support in the facts that appear in the record.... To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous.... [A] finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Diaz v. Commissioner of Correction , 174 Conn. App. 776, 785–86, 166 A.3d 815, cert. denied, 327 Conn. 957, 172A.3d 204 (2017). Because the issues presented in this appeal involve mixed questions of law and fact, our review is plenary. See, e.g., George M. v. Commissioner of Correction , 290 Conn. 653, 659, 966 A.2d 179 (2009).

I

We begin with the petitioner's claim that the state failed to disclose the "consideration" that it had allegedly offered Valentin and Smith in exchange for their testimony. We understand his claim to be supported by two separate arguments. First, he appears to argue that express agreements existed between the state and the witnesses to bring their cooperation to the attention of the sentencing court, and that the state failed to disclose them.⁸ Second, he appears to argue that the state failed to...