Miller v. Commissioner of Correction, No. 15421

• Court: Supreme Court of Connecticut
• Writing for the Court: BORDEN; BERDON; McDONALD
• Citation: 700 A.2d 1108,242 Conn. 745
• Parties: Lawrence J. MILLER v. COMMISSIONER OF CORRECTION.
• Decision Date: 26 August 1997
• Docket Number: No. 15421

Page 1108

700 A.2d 1108 242 Conn. 745 Lawrence J. MILLER
v.
COMMISSIONER OF CORRECTION. No. 15421. Supreme Court of Connecticut. Argued March 25, 1997.
Decided Aug. 26, 1997.

Page 1110

[242 Conn. 746] James A. Killen, Assistant State's Attorney, with whom, on the brief, was Patricia M. Gilbert, Supervisory Assistant State's Attorney, for appellant (respondent).

Joseph G. Bruckmann, Public Defender, with whom was Eugene J. Riccio, for appellee (petitioner).

Before BORDEN, BERDON, PALMER, McDONALD and PETERS, JJ.

BORDEN, Associate Justice.

In Summerville v. Warden, 229 Conn. 397, 422, 641 A.2d 1356 (1994), this court held that "a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial." This appeal presents a question that we found unnecessary to answer in Summerville, namely, "what is the legal standard [of persuasion] that must be met by a habeas corpus petitioner claiming actual innocence in order to gain a new trial at which his guilt or innocence will again be determined?" Id., at 432, 641 A.2d 1356.

The respondent, the commissioner of correction, appeals from the judgment of the habeas corpus court. ¹ That court granted the writ and the request of the petitioner, Lawrence J. Miller, for a new trial for the crimes of which he currently stands convicted, and ordered [242 Conn. 747] the petitioner released unless the state's attorney for the judicial district of Danbury files a timely written notice of intention to retry him for those crimes. The respondent claims that: (1) the habeas court employed an improper standard for evaluating the petitioner's claim of actual innocence; and (2) under the respondent's proposed standard, or under any appropriate standard, the evidence does not support the determination of the habeas court that the petitioner is actually innocent. We conclude that the proper standard for evaluating a freestanding claim of actual innocence, like that of the petitioner, is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence--both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial--he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime. Because the habeas

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court employed the proper standard of persuasion, and because the determinations by the habeas court that the petitioner is actually innocent and that no reasonable fact finder would find the petitioner guilty withstand the appropriate scope of our appellate review of those determinations, we affirm the judgment of the habeas court.

In July, 1982, the petitioner was charged with two counts of assault in the first degree in violation of General Statutes § 53a-59 (a)(1), ² arising out of an incident involving two teenage victims on the evening of August [242 Conn. 748] 20, 1981. After a jury trial that was held in November, 1983, the petitioner was found guilty on both counts and, in January, 1984, the trial court, W.J. Sullivan, J., sentenced him to two consecutive sentences of sixteen years each, for a total effective sentence of thirty-two years. On direct appeal, this court affirmed his convictions in March, 1987. State v. Miller, 202 Conn. 463, 522 A.2d 249 (1987). In November, 1992, the petitioner filed a pro se petition for a writ of habeas corpus claiming, among other things, that "I am factually innocent of the crimes of which I was convicted." Ultimately, habeas counsel was appointed to represent the petitioner, and an amended petition was filed that reasserted that "[t]he [p]etitioner is factually innocent of the charges." ³ After an extensive evidentiary hearing held in late 1995 and early 1996, the habeas court, Bishop, J., agreed with the petitioner's contention, and rendered judgment granting the writ and a new trial, and ordering the petitioner's conditional release. This appeal followed.

I

In order to understand the issues in this case, it is necessary to review both the facts that the jury could reasonably have found in the petitioner's criminal trial, as described in the criminal appeal, and the facts as found by the habeas court. We therefore set them out separately.

A

The Criminal Appeal

On the petitioner's direct appeal from his convictions, this court described the facts that the jury reasonably could have found as follows. "On the evening of August 20, 1981, at approximately 8:30 p.m., fifteen year old [242 Conn. 749] Elizabeth, and a sixteen year old male friend, William, were viciously assaulted behind the United Methodist Church on Clapboard Ridge Road in Danbury. The assault took place in an area used as a gathering place by neighborhood youths. Their assailant was a white male whom the couple encountered as they were leaving the area to walk to Elizabeth's house a short distance away. When he approached the young people, the assailant, who was wearing a bandanna across the lower portion of his face, grabbed William's arm, displayed a handgun and identified himself as a police officer.

"The couple was forced at gunpoint to walk to a grassy area where William was made to kneel. The assailant produced handcuffs and, using one hand, quickly handcuffed William's wrists behind his back. William was instructed to lie on his stomach and the assailant removed his own belt, and bound William's ankles. He then grabbed Elizabeth's arm and pulled her down an embankment out of William's sight. She was ordered to remove her jacket and, when she refused, a struggle ensued. During the struggle, the girl punched and scratched her assailant, and the man struck her several times on the head with the gun. In the course of the struggle with Elizabeth, the bandanna, which the assailant had been wearing, came off his face. Thereafter, Elizabeth stumbled, fell to the ground and lost consciousness. When she revived, the man, his face uncovered, was crouched a few feet from where she lay. He then grabbed her foot and began dragging her further down

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the embankment. While he was doing so, Elizabeth's sneaker came off. She recovered it and threw it at her assailant, striking him in the crotch area. This precipitated another struggle during which the assailant kicked Elizabeth in the stomach, and repeatedly struck her about the head with the gun until she again lost consciousness.

[242 Conn. 750] "Approximately five or ten minutes after pulling Elizabeth down the embankment the man returned to William. He removed the belt from around William's ankles and placed it around William's chin. The assailant then pulled on the belt and shoved the gun in William's mouth, injuring him. The belt was then slipped around William's neck and tightened, strangling him until he lost consciousness. When William regained consciousness, the man was gone and William made his way to Elizabeth's house where he alerted her parents and help was summoned. A search was immediately launched and Elizabeth was found lying in the area behind the church in a semiconscious state, partially naked and covered with blood.

"Both victims were taken to the Danbury Hospital that night. Elizabeth's injuries consisted of a laceration of the liver, a fractured jaw, fractures of her hands, and numerous head and facial lacerations. She required surgery, and was hospitalized for a period of three to four weeks, a portion of which she spent in intensive care. William's injuries included multiple head and facial lacerations, and a laceration of the soft palate caused when the barrel of the assailant's gun was jammed into his mouth. He was confined to the hospital for a week.

"At trial Elizabeth made a 'positive' in-court identification of the [petitioner] as her assailant. She also testified that she had made an out-of-court photographic identification of the [petitioner] at Danbury police headquarters on April 1, 1982. She further testified that she had positively identified the [petitioner] as her assailant at a chance meeting in the area of the checkout counters at the Bradlees Department Store [Bradlees] in Danbury on July 12, 1982. It is undisputed that the meeting at Bradlees was inadvertent and that it was not arranged by the police. William, who never saw his assailant without the bandanna covering the lower portion of his [242 Conn. 751] face, was unable to make an identification of the [petitioner].

"The [petitioner], who was employed at the time of the crime as a correction officer at the federal correctional institution in Danbury, testified at his trial. He denied his involvement in the incident, offered an alibi defense and testified that at the time of the crime, he was visiting at the home of his sister in Brewster, New York. His testimony was supported by the testimony of his sister, his mother, his wife and a friend of the [petitioner's] sister." State v. Miller, supra, 202 Conn. at 465-67, 522 A.2d 249.

This court also addressed the petitioner's claim on his direct appeal "that his federal and state constitutional rights to due process of law were violated by the trial court's denial of his motion to suppress both the out-of-court and in-court identifications of him made by Elizabeth." Id., at 470, 522 A.2d 249. Because these identifications played a significant role in the habeas court's findings, we summarize our discussion of the petitioner's claims on direct appeal.

We first agreed with the trial court's determination that the identification procedures were not suggestive. Id., at 471, 522 A.2d 249. In support of that determination, we referred to the following evidence adduced at the...