Holbrook v. Warden, State Prison
| Decision Date | 21 July 2017 |
| Docket Number | CV144006310S |
| Court | Connecticut Superior Court |
| Parties | Michael Holbrook v. Warden, State Prison |
UNPUBLISHED OPINION
The petitioner initially brought a pro se petition for a writ of habeas corpus on or about June 19, 2007 challenging convictions, after a jury trial, on Manslaughter in the First Degree and commission of a Class A Felony with a Firearm. The petition was amended on September 3, 2010, October 5, 2010 and November 19, 2010. The third amended petition, citing roughly twenty-seven different deficiencies in trial counsel's representation, was denied after a trial on August 22, 2012.[1] On or about June 12, 2014, the petitioner, again acting pro-se, filed the petition for a writ of habeas corpus resulting in the present action following court appointment, the Ruane Law Film filed its appearance on or about August 7, 2014. The final (operative) amended petition, filed December 19, 2016, alleges, in three counts, ineffective assistance of trial counsel, ineffective assistance of habeas counsel, and failure of the State to produce Brady information.[2]
On December 8, 1996, John Fred Dean was shot and killed inside a Bridgeport nightclub known as the Factory. The petitioner Michael Holbrook was charged with the murder. The information (CR00-163353) charged Murder in violation General Statutes Section 53a-54(a) and using a firearm in the commission of a felony in violation of General Statutes Section 53-202k. In 2003, the petitioner's first jury trial ended in a mistrial when the jury was unable to reach a unanimous verdict. After a second trial in 2004, the jury found the petitioner not guilty of murder, but guilty of the lesser included offense of Manslaughter in the First Degree in violation of General Statutes Section 53a-55a(a). The jury also made a finding that he committed a Class A, B, or C Felony with a Firearm in violation of Section 53-202k. The trial court rendered judgment in accordance with the verdict and the petitioner was sentenced to a total effective term of thirty-five years incarceration.
The conviction was affirmed on direct appeal. State v. Holbrook, 97 Conn.App. 490, 906 A.2d 4, cert. denied, 280 Conn. 935, 909 A.2d 962 (2006).
Attorney Frank J. Riccio, Sr. represented the petitioner in both jury trials. Attorney Michael Day represented the petitioner, as court-appointed counsel, in the prior habeas proceeding.
The parties appeared before this court on March 30, 2017 for a trial on the merits. The court received testimony from Cherise Chamberlain, a.k.a Cherise Thomas; Attorney Michael Day, prior habeas counsel; C. Robert Satti, Senior Assistant State's Attorney, Fairfield Judicial District; and Attorney Vicki Hutchinson, petitioner's expert witness. Additional evidence presented included transcripts on a digital jump drive of prior proceedings, copies of Ms. Cherise Thomas' two statements to the authorities, pleadings, other documentation, and memorandum of decision in the prior habeas proceeding. The petitioner did not testify. The parties presented oral summations.
Attorney Frank J. Riccio, Sr., the petitioner's trial counsel, did not testify having died before the present habeas trial.
The petitioner's claims of ineffective assistance allege failure by criminal trial counsel to investigate and call a purported eye-witness, Cherise Thomas, [3] and failure by habeas counsel to pursue such deficiency as a ground for the granting of the petition. The Brady claim stems from testimony by a witness, Gary Browning, at the 2010 habeas proceeding that his criminal trial testimony was false, having been elicited and rendered in return for consideration by the State in an unrelated, pending prosecution.[4]
At the habeas trial, Cherise Thomas testified that she is a resident of Bridgeport, attended Central High School, and Butler Business School. She testified that she could not remember the night of the incident, the facts of the shooting, or any of the events of December 8, 1996. While initially she did not remember even being at the " Factory, " she afterwards was able to recall being there with petitioner, but nothing else. While she acknowledged being with the petitioner that evening, she could not recall any activities or what occurred. She claimed no recollection of giving a written statement to Sergeant Wargo at the Bridgeport police station on December 10, 1996, in the presence of Attorney Riccio, which statement essentially exculpated the petitioner from any material role in the shooting. When shown the statement, Ms. Thomas acknowledged it was her signature on the document. Similarly, she claimed no recollection of giving a second signed statement to the Bridgeport police some nine months later, on September 17, 1997. Ms. Thomas also indicated that she was never contacted or subpoenaed in either of petitioner's two jury trials or in the prior habeas case.
Attorney Michael Day testified he was court appointed to represent the petitioner in the prior habeas proceeding. He obtained court records and documents from Attorney Riccio and from the public defender. He had documentation from the court file, read the transcript of the trial(s), and subsequently went to Attorney Riccio's office and picked up copies from the lawyer's file. Attorney Day employed a private investigator, and witnesses were interviewed.[5] Since the defense at trial centered primarily on misidentification of petitioner as the shooter, Attorney Day challenged the veracity of the State's witnesses. Accordingly, some witnesses were called to testify in the habeas proceeding, others were not. The lawyer testified, " I tried to prioritize in the claims I made." In such regard, Attorney Day stated it was his practice to employ " some degree of strategy." Although the attorney testified he had no specific recollection, he indicated the decision not to pursue a claim based on the Thomas statements would have been in accordance with his usual practice of selectively litigating those claims which he believed were the strongest and the most viable.
As indicated, the prior petition alleged multiple claims of ineffective trial representation; included among those claims was trial counsel's failure " to call Cherise Thomas as a witness in the defense of the petitioner." Attorney Day's list of witnesses included some forty-six individuals, including Ms. Thomas. The attorney, in determining which claims to press in the habeas, did not brief a ground premised trial counsels' decision not to have Cherise Thomas testify. While the lawyer was aware of Ms. Thomas' two statements, and believed Attorney Riccio had been aware of them since he was a signatory to the first statement, he had no recollection of discussing Cherise Thomas with the petitioner or placing her under subpoena to testify at the prior habeas. Attorney Day felt the claims he did pursue were his strongest, and observed that the second Thomas statement changed certain language contained in the first. Nevertheless, he acknowledged her statement(s) to the police lent some support to the petitioner's defense that he was not the shooter.
Concerning Gary Browning's prior habeas testimony essentially recanting his initial police statement and his criminal trial (2004 trial) testimony, claiming the statement and the trial testimony were untrue (lied about everything) and had been given for anticipated consideration in an unrelated pending case, Attorney Day acknowledged he did not move to amend the habeas pleadings to allege non-disclosure of any such consideration as an additional ground. Attorney Day testified his recollection of Browning's habeas testimony was that he had simply hoped for " something in return."
Attorney Vicki Hutchinson, a member of the Connecticut Bar, testified she holds degrees from the University of California, San Diego, and Quinnipiac Law School (1982); her practice is almost exclusively criminal law, having handled numerous murder and serious felony cases, many of which have gone to jury, and well over one hundred habeas corpus petitions. She has testified several times as an expert witness in the Connecticut Superior Court.
Preparatory for her testimony, Attorney Huchinson reviewed pertinent documentation including: the two statements of Cherise Thomas, statements of witnesses, transcript of the hearing in probable cause, the trial transcripts, prior habeas transcript, and the habeas petition.
Attorney Hutchinson opined that with reference to both a trial and a habeas proceeding, if a known witness was in the company of a defendant/petitioner at the time of the incident, that witness should be interviewed to ascertain as much information as possible about what happened and what was observed. Potential testimony should be discussed thoroughly with the witness and if the testimony would be advantageous to the petitioner's position, either at a criminal trial or a habeas, the witness should be called, or if necessary compelled by process, to testify.
As to Ms. Thomas, the attorney viewed it significant, considering the defense of mis-identification, that her initial statement was given to the police within forty-eight hours of shooting, she was spatially proximate to petitioner when the shots were heard and, unlike a number of the State's crucial witnesses, did not have a criminal record. She garnered from her review of the trial transcripts that two or more of the crucial State's witnesses had lengthy criminal histories and/or pending cases.
Acknowledging that the Thomas statements put the petitioner in the Factory at the time of the shooting, [6] that a degree of bias could be brought out...
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