Lapointe v. Comm'r of Corr.

• Decision Date: 21 April 2015
• Docket Number: SC19079
• Court: Connecticut Supreme Court
• Parties: LAPOINTE v. COMMISSIONER OF CORRECTION

LAPOINTE v. COMMISSIONER OF CORRECTION

SC19079

Supreme Court of Connecticut

April 21, 2015

FIRST DISSENT

ZARELLA, J., with whom ESPINOSA, J., joins, dissenting. Although I disagree with virtually all of the majority's analysis and conclusions, I write, in particular, to express my strong objection to the majority's creation and application of a new exception to our well established standard of review, an exception that allows this court to engage in a de novo review of live expert testimony presented in a habeas proceeding. This new standard is driven by the majority's disagreement with the habeas court's¹ credibility findings, which, if allowed to stand, are fatal to the claims raised by the petitioner, Richard Lapointe. The deferential clear error standard of review that applies to credibility assessments in this context bars the majority from substituting its own judgment for that of the habeas court; and the record, which contains ample support for the habeas court's findings, prevents a finding of clear error. Hopelessly trapped between its unwillingness to accept the habeas court's findings and its inability to overturn them under our clear error standard, the majority summons down its deus ex machina: a singular exception to our clear error standard of review, created just for this case and those cases "indistinguishable" from this one, that empowers the majority to reach its desired ending by retrying in this court the credibility issues settled in the habeas court. This court, however, is not a fact-finding court, and we do not judge the credibility of witnesses because we lack the constitutional authority to do so. By making its own findings about the credibility of expert testimony, the majority exceeds the limits of our jurisdiction and unjustifiably usurps the habeas court's role as fact finder, thereby turning the hearing in that court into little more than an exercise in futility.

The habeas court proceeding is more than just a conduit for logging the evidence, and that court's findings represent more than a suggestion. The habeas court is the sole trier of fact and assessor of credibility, with the exclusive power to determine the credibility of the testimony presented to it. See, e.g., Sanchez v. Commissioner of Correction, 314 Conn. 585, 604, 103 A.3d 954 (2014); Gaines v. Commissioner of Correction, 306 Conn. 664, 690, 51 A.3d 948 (2012). We consistently have deferred to its exclusive role in this regard, properly relegating our role to reviewing its fact and credibility findings only to determine whether they find support in the record. See, e.g., Sanchez v. Commissioner of Correction, supra, 604.

This court's power to draw conclusions of fact and credibility is proscribed not only by practical considerations—unlike the trier, we do not receive evidence firsthand—but also by the limits of our constitutional function. For more than one century, this court has repeat-edly recognized that it simply does not have the jurisdiction under our constitution to resolve disputed questions of fact or to assess the credibility of testimony, irrespective of the nature of the claim or the type of evidence presented to the trier of fact. Styles v. Tyler, 64 Conn. 432, 442, 30 A. 165 (1894). The bifurcation of the Superior Court from the appellate level courts leaves the Superior Court as the final arbiter of fact disputes and limits our role to resolving questions of law. Id., 444-47. Consequently, we lack jurisdiction to resolve disputed questions of fact and credibility, regardless of how this court may attempt to cast the nature of its inquiry. Dexter Yarn Co. v. American Fabrics Co., 102 Conn. 529, 538, 129 A. 527 (1925). Adhering to this principle, this court has repeatedly rebuffed suggestions by litigants—and even some judges of this court—that we may substitute our judgment for that of the trier of fact when the trier of fact has made credibility findings after receiving and weighing the evidence. See, e.g., Skakel v. State, 295 Conn. 447, 487 n.25, 991 A.2d 414 (2010) ("[t]his court . . . squarely has rejected the proposition that a less deferential standard than abuse of discretion should apply to review of decisions pertaining to evidence [even when such decisions are] not predicated on an assessment of the witness' demeanor").

By allowing this court to substitute its own judgment for that of the habeas court on questions about witness credibility, the majority has exceeded our jurisdiction. Our law is clear that assessing new witness credibility in the Strickland² prejudice/Brady³ materiality context presents a question of fact for the habeas court and that, consistent with our jurisdictional limits, we defer to its findings. See, e.g., Sanchez v. Commissioner of Correction, supra, 314 Conn. 604, 611; Gaines v. Commissioner of Correction, supra, 306 Conn. 690-91. Our constitution and case law simply do not permit this court to usurp the primary and exclusive function of the Superior Court. By granting itself a license to review de novo the live expert testimony presented to the habeas court, the majority has placed itself outside the limits of our authority and installed itself as both the trier and reviewer—a duality of power that this court previously has labeled as "evil . . . ." Styles v. Tyler, supra, 64 Conn. 449.

Compounding the impropriety of its analysis, the majority has adopted a standard allowing it to find facts even though neither party has asked this court to do so. Because the majority has adopted its new standard sua sponte, neither party had any notice or opportunity to brief the propriety of such a standard. Furthermore, neither party—most notably not even the petitioner—has claimed that the habeas court's credibility findings were incorrect, so neither party has briefed the merits of the credibility issues decided by the majority. Nevertheless, the majority has not asked the parties to provideany supplemental briefing, leaving the majority to engage in its new fact-finding role, which it has created sua sponte, without any meaningful notice to or guidance from the parties, in violation of the principles recently set forth in Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 128, 84 A.3d 840 (2014) (Blumberg).

Finally, although the majority arrogates to itself the responsibility to make its own findings of fact and determinations of credibility, it ultimately proves unequal to the task. Rather than expressing its own findings based on its review of the record, the majority launches a seemingly endless attack on the habeas court's findings—an unnecessary exercise in light of the majority's self-created fact-finding power. Furthermore, in carrying out its purportedly de novo analysis of the record, the majority utterly ignores testimony from the petitioner's own expert witnesses and other evidence that amply supports the habeas court's findings and casts serious doubt on the credibility of their testimony.

In short, although the majority goes out of its way to retry the case, I am constrained merely to review it. Deferring to the habeas court's fact-finding role, my own review of the record convinces me that its findings were not clearly erroneous. In light of its findings that the petitioner's new evidence did not reliably establish a burn time that supported the petitioner's alibi defense, I am persuaded that the petitioner has not met his burden under Strickland and Brady.

My analysis in this opinion will proceed in three parts: first, I address why the majority's new standard for reviewing the testimony of expert witnesses contravenes our law; second, I address why the majority's decision to decide issues that the parties have not raised or briefed violates the principles in Blumberg; and, third, I explain why the record supports the habeas court's findings, which leads to the conclusion that the petitioner has failed to meet his burden under Strickland and Brady.

I

STANDARD OF REVIEW

The principal issue presented in this appeal concerns the petitioner's burden, under the prejudice/materiality element of a Strickland or Brady claim, to prove the credibility of new witness testimony, and the habeas court's role in determining whether a petitioner has met that burden. Assessing credibility of new witness testimony in the Strickland and Brady context requires the habeas court to determine whether there is a reasonable probability that a new jury would credit the testimony, and it presents a question of fact that an appellate tribunal reviews only for clear error. See, e.g., Sanchez v. Commissioner of Correction, supra, 314 Conn. 604, 611. Although the habeas court in the present casedeclined to find the petitioner's new expert testimony credible and denied the petitioner's claim on that basis, the Appellate Court did not acknowledge the habeas court's role in making credibility assessments. See Lapointe v. Commissioner of Correction, 138 Conn. App. 454, 476-77 n.17, 53 A.3d 257 (2012). Instead, the Appellate Court decided that assessing the credibility of new witnesses should be left entirely to a new jury, and not the habeas court. Id. By determining that a jury, and not a court, should assess credibility, the Appellate Court effectively removed any requirement that the petitioner make a credibility showing as part of his Strickland and Brady claim. As a result, the Appellate Court analyzed the petitioner's claim by hypothesizing what a jury could find, if it credited the new evidence. See id., 476-78 and nn.17-20. The Appellate Court granted the petitioner a new trial on the basis of the results of this speculation. Id., 478, 480. The issue presented in this appeal is whether the Appellate Court properly concluded as it did.

The success of the petitioner's Strickland claim—which is based on his prior habeas counsel's failure to raise a Brady claim concerning the state's failure to disclose a certain note prepared by Detective Michael...