Greene v. Comm'r of Corr.

• Decision Date: 28 August 2018
• Docket Number: SC 19961
• Citation: 330 Conn. 1,190 A.3d 851
• Court: Connecticut Supreme Court
• Parties: Mashawn GREENE v. COMMISSIONER OF CORRECTION

330 Conn. 1

190 A.3d 851

Mashawn GREENE

v.COMMISSIONER OF CORRECTION

SC 19961

Supreme Court of Connecticut.

Argued November 9, 2017

Officially released August 28, 2018

Michael W. Brown, Wethersfield, with whom was Desmond Ryan, for the appellant (petitioner).

Timothy J. Sugrue, Rocky Hill, assistant state's attorney, with whom were Rebecca A. Barry, assistant state's attorney, and, on the brief, Patrick J. Griffin, Palos Hills, state's attorney, for the appellee (respondent).

Palmer, McDonald, Robinson, D'Auria, Mullins and Vertefeuille, Js.^*

MULLINS, J.

In this appeal, we must decide whether the habeas court erred in denying the petition for a writ of habeas corpus filed by the petitioner, Mashawn Greene.¹ The two primary issues are whether the habeas court properly determined that the petitioner's due process rights were not violated during the underlying criminal trial when the prosecutor failed: (1) to correct certain allegedly false testimony from one of the state's key witnesses, Markeyse Kelly,² and (2) to disclose certain evidence favorable to the petitioner. The third issue, which arose during the habeas trial, is whether the habeas court abused its discretion by denying the petitioner's request for a capias after Kelly failed to comply with a subpoena commanding his attendance at the habeas trial. We conclude that the habeas court properly determined that the state had not violated the petitioner's due process rights and that the habeas court did not abuse its discretion by denying the petitioner's request for a capias. Accordingly, we affirm the judgment of the habeas court.

The jury in the underlying criminal case reasonably could have found the following facts, as set forth in this court's decision in State v. Greene , 274 Conn. 134, 139–40, 874 A.2d 750 (2005), cert. denied, 548 U.S. 926, 126 S.Ct. 2981, 165 L.Ed.2d 988 (2006). "On the evening of October 10, 2001, the [petitioner] purchased the following stolen firearms: a Smith & Wesson Daniels Cobray M-11 nine millimeter submachine gun (Cobray M-11); a Braco Arms .38 caliber pistol; and a Mossberg 500A shotgun. At the same time, the [petitioner] purchased stolen ammunition for the Cobray M-11 consisting of eight full thirty-five round magazines loaded with nine millimeter Luger Subsonic bullets. A Cobray M-11 is a semiautomatic or automatic assault weapon capable of emptying a thirty-five round magazine in [less than] two seconds.

"On October 12, 2001, the [petitioner], Franki Jones ... Kelly, Shaunte Little and Marquis Mitchell learned that individuals from the area of New Haven known as 'the Tre' were planning to 'shoot up' the area of New Haven known as 'West Hills' in retaliation for a shooting that had occurred the night before. The Tre area includes Elm Street and Orchard Street and the West Hills area includes the McConaughy Terrace projects. Rather than wait for the retaliation, the [petitioner], Jones, Kelly, Little and Mitchell decided to 'go through the Tre first.'"The [petitioner] drove the four men to Jones' house where those who were not armed already retrieved guns and those with lighter colored clothing changed into darker attire. The [petitioner] armed himself with the Cobray M-11. All five men got into Jones' grey Lincoln Town Car and drove to the Tre. After they saw a group of people on the corner of Edgewood Avenue and Orchard Street, Jones parked the car next to a vacant house on Orchard Street. The [petitioner], Jones, Kelly, Little and Mitchell walked to the corner of Orchard Street and Edgewood Avenue, opened fire on the people on the street corner, then ran back to the Lincoln Town Car and fled the scene. Six people were shot and one of the victims died from his wounds." Id.

The petitioner was arrested and charged with various offenses in connection with the shooting. The petitioner elected a jury trial, at which his accomplices, Little, Jones, and Kelly all testified for the state against him. In particular, with respect to his own involvement in the shooting, Kelly testified that he had pleaded guilty to conspiracy to commit assault in the first degree and carrying a pistol without a permit.³ Kelly further testified that, with respect to his guilty plea to those charges, it was his understanding that he was facing a maximum sentence of twenty-five years in prison, but that he did not know what his ultimate sentence would be. When the prosecutor, Christopher Alexy, asked Kelly if he had "any understanding as to what could happen if you came in here and testified," Kelly replied, "[n]ope."

Then, without any question pending from Alexy, Kelly began to explain the circumstances around a statement that he gave to the police after his arrest in connection with the shooting.⁴ Specifically, Kelly testified that, "[w]hen I gave that statement, I ain't make no deal. They were trying to make a deal with my life. When I gave that statement, I ain't make no deals, no lawyer, no nobody, no nothing, just the cop, I ain't got no deal. I ain't got to hear saying anything. I ain't got no deal. I could have sat here. It ain't really matter."

On cross-examination, the petitioner's trial counsel, Paul Carty, further questioned Kelly about his "deal" with the state. Specifically, Carty asked Kelly if he would have spent the rest of his life behind bars had he not worked out a deal to plead to the charges of conspiracy to commit assault in the first degree and carrying a pistol without a permit. Kelly responded, "I don't know nothing about no deals, none. I don't know nothing about no deals." Immediately thereafter, however, Kelly admitted that his lawyer did, in fact, work out a plea agreement with the state. Kelly acknowledged that the terms of that agreement required that he plead guilty to conspiracy to commit assault in the first degree and carrying a pistol without a permit. Kelly further admitted that, even though his purpose in going to Edgewood Avenue on the night of this incident was to commit homicide, his plea agreement did not involve, nor did he plead guilty to, any homicide charges. Finally, Kelly explained that, pursuant to his plea agreement, the maximum sentence he could receive was twenty-five years of imprisonment.

Carty then asked Kelly whether he had been informed that he could be sentenced to as little as one year in prison, which was the mandatory minimum sentence. Kelly responded that he did not know what the actual sentence would be, but that he did not expect that he would receive a sentence of one year. Rather, Kelly worried that he could receive the maximum twenty-five year sentence.

During closing arguments, Carty stated the following to the jury: "[Kelly] claims he is not looking for a deal, but, think about it, he got the best deal of them all. His deal, he didn't even cop to a homicide [charge]. What did he plead to? Conspiracy to commit assault in the first degree and [carrying a] pistol without a permit. He claims not to be expecting anything in exchange for his testimony, but he knows good and well, as a veteran of the criminal justice system, which he told you he was, that he is going to be treated favorably at sentencing time. He knows how the system works. Give us your testimony, we'll take care of you. He didn't want to deal, but he was already treated favorably by not pleading to a homicide ...."

The jury ultimately returned a verdict finding the petitioner guilty of manslaughter in the first degree with a firearm as an accessory in violation of General Statutes §§ 53a-8 (a) and 53a-55a, conspiracy to commit manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-48 (a) and 53a-55a, five counts of assault in the first degree as an accessory in violation of General Statutes §§ 53a-8 (a) and 53a-59 (a) (5), conspiracy to commit assault in the first degree in violation of §§ 53a-48 (a) and 53a-59 (a) (5), and possession of an assault weapon in violation of General Statutes § 53-202c. In addition, the petitioner pleaded guilty to three counts of theft of a firearm in violation of General Statutes § 53a-212 (a). See State v. Greene , supra, 274 Conn. at 136–38, 874 A.2d 750. The trial court rendered judgment in accordance with the jury's verdict and sentenced the petitioner to sixty-five years of imprisonment.

The petitioner appealed from the judgment of conviction to this court. Id. In that appeal, this court reversed the conviction of manslaughter in the first degree with a firearm as an accessory. Id., at 174, 874 A.2d 750. Consequently, this court directed the trial court to modify the judgment to reflect a conviction of manslaughter in the first degree as an accessory in violation of §§ 53a-8 (a) and 53a-55 (a) (1) and to resentence the petitioner accordingly. Id. This court also reversed the judgment of conviction of conspiracy to commit manslaughter in the first degree with a firearm and directed the trial court to render a judgment of acquittal on that charge. Id. Thereafter, the trial court resentenced the petitioner to sixty years of imprisonment. See Greene v. Commissioner of Correction , 123 Conn. App. 121, 126, 2 A.3d 29, cert. denied, 298 Conn. 929, 5 A.3d 489 (2010), cert. denied sub. nom Greene v. Arnone , 563 U.S. 1009, 131 S.Ct. 2925, 179 L.Ed.2d 1248 (2011).

In 2008, the petitioner filed his first petition for a writ of habeas corpus claiming, among other things, that he was denied the effective assistance of counsel in connection with his guilty plea on the three counts of theft of a firearm. The habeas court denied that petition. The petitioner then appealed to the Appellate Court, which ultimately concluded that the petition should have been granted with respect to these counts and, accordingly, reversed in part the judgment of the habeas court. Id., at 136, 2 A.3d 29. Thereafter, the habeas court, Santos, J. , vacated the petitioner's convictions on those three counts.

In 2013, the petitioner filed his second petition for a writ of habeas corpus, which is the...