Myers v. Comm'r of Corr.
| Decision Date | 11 October 2022 |
| Docket Number | AC 44679, (AC 44736) |
| Citation | 215 Conn.App. 592,284 A.3d 309 |
| Parties | Ricardo MYERS v. COMMISSIONER OF CORRECTION Ricardo O. Myers v. State of Connecticut |
| Court | Connecticut Court of Appeals |
Vishal K. Garg, West Hartford, for the appellant in Docket Nos. AC 44679 and AC 44736 (petitioner).
Linda Frances Rubertone, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, former state's attorney, and Craig Nowak, senior assistant state's attorney, for the appellee in Docket No. AC 44679 (respondent).
Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, former state's attorney, and Craig Nowak, senior assistant state's attorney, for the appellee in Docket No. AC 44736 (state).
These two appeals arise out of two postconviction actions filed by the petitioner, Ricardo Myers.
In Docket No. AC 44679, the petitioner appeals, following the granting of his petition for certification to appeal, from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly (1) concluded that he failed to show that his trial counsel had performed deficiently, (2) rejected his actual innocence claim, and (3) determined that his due process rights were not violated. The petitioner further claims that the habeas court erred in denying his request for a capias and a continuance so that the petitioner could secure the appearance of an exculpatory witness at his habeas trial. In Docket No. AC 44736, the petitioner appeals, following the denial of his petition for certification to appeal, from the judgment of the trial court dismissing his petition for a new trial. The petitioner claims on appeal that the trial court erred in determining that his petition for a new trial was time barred pursuant to General Statutes § 52-582. As to AC 44679, we affirm the judgment of the habeas court. As to AC 44736, we dismiss the petitioner's appeal.
The following facts, as set forth by this court in the petitioner's direct appeal from his conviction and as supplemented by the record, and procedural history are relevant to our resolution of both appeals. "On May 17, 2013, the [petitioner], along with Dwight Crooks and Gary Pope, was at the Lazy Lizard club in New Haven. The club let out during the early hours of May 18, 2013, and the trio made its way out with the crowd. Once outside, an argument ensued between the [petitioner's] group and another group that was across the street. The argument escalated to a physical altercation before officers of the New Haven police stepped in and caused the groups to disperse. The [petitioner] and his friends then got into Pope's car and drove around before parking in a different lot not far from the club. The three then headed out on foot to meet someone they knew when they encountered again the group from [the] Lazy Lizard. Some provocative remarks were made and the two groups moved toward each other. Crooks testified at trial that, at this point, he heard gunshots, and he turned to see the [petitioner] holding a gun. Two bullets struck and killed Tirrell Drew, who was a member of the other group, and stray bullets injured two bystanders. The bullets recovered from Drew's body were found to have been fired from a .40 caliber semiautomatic Glock handgun owned by the [petitioner] and seized from his residence by the police on June 14, 2013, nearly a month after the shooting.
State v. Myers , 178 Conn. App. 102, 103–104, 174 A.3d 197 (2017). Rountree's interview with the police was video recorded.
The petitioner planned to call Rountree as a witness at his criminal trial and intended to use his testimony about the shooting as the basis for a third-party culpability defense. Id., at 104, 174 A.3d 197. The petitioner's trial counsel believed that Rountree's identification of Pope as the shooter was the strongest piece of evidence that the defense had to support its theory of defense.1 To that end, trial counsel hired Daniel Markle, a private investigator, to locate Rountree and serve him with a subpoena ad testificandum.
Markle located Rountree on May 28, 2015, after two and one-half weeks of searching and on the third day of the petitioner's criminal trial. That same day, Markle met Rountree at a McDonald's in North Haven and served him with a subpoena commanding him to appear in court the following day, May 29, 2015. According to Markle, Rountree was not happy to be served with the subpoena and left it behind after reading it.
On May 29, 2015, Rountree failed to appear in court. Trial counsel then requested that the court issue a capias warrant pursuant to General Statutes § 54-2a in order to secure Rountree's attendance.2 After Markle testified that he had located Rountree the day before and had served him with a subpoena, the court granted trial counsel's request, stating:
The authorities, however, were unable to locate Rountree by Monday. After learning that Rountree had not been found, trial counsel did not ask for a continuance or request that the authorities be given additional time to locate him. Instead, trial counsel moved to admit into evidence the video recording of Rountree's interview with the police, in which Rountree had identified Pope as the shooter. The court ruled that the recording was not admissible under the residual exception to the hearsay rule3 because it did not bear the requisite indicia of trustworthiness and reliability necessary for admission under the exception.4 See State v. Myers , supra, 178 Conn. App. at 104–105, 174 A.3d 197 ; id., at 105, 174 A.3d 197 n.2. Thereafter, the parties rested, and the matter was submitted to the jury. "On June 3, 2015, the jury found the [petitioner] guilty on all three counts, and the court rendered judgment accordingly." Id., at 105, 174 A.3d 197.
The petitioner then appealed from his judgment of conviction to this court, claiming that the trial court had abused its discretion in refusing to admit into evidence the video recording in which Rountree identified Pope as the shooter. We affirmed the judgment of the trial court, concluding that, because "the jury reasonably could have found that the [petitioner] shot Drew to death ... we are not convinced that any harm resulting from the exclusion of Rountree's interview is self-evident in light of the evidence presented at trial." Id., at 108, 174 A.3d 197. We further held that, "because the [petitioner] failed to brief and analyze ... the resulting harm from the court's exclusion of the video recording," we would not consider whether the trial court abused its discretion. Id. Additional facts and procedural history will be set forth as necessary.
On appeal, the petitioner challenges the habeas court's denial of his amended petition for a writ of habeas corpus, wherein he asserted that (1) his trial counsel was ineffective for failing to secure the testimony of Rountree and (2) he was actually innocent based on Rountree's identification of someone else as the shooter.5 The petitioner further claims that the habeas court abused its discretion when it denied his request to issue a capias warrant and to grant a continuance in order to secure Rountree's attendance and testimony at the petitioner's habeas trial.
We first set forth the following additional facts and procedural history, which are relevant to our resolution of these claims. On March 16, 2020, the self-represented petitioner filed a three count amended petition for a writ of habeas corpus, which is the operative habeas petition in the present case.6 In count one, the petitioner alleged that his right to effective assistance of counsel had been violated because his trial counsel had failed: (1) "to request [an] adjournment to locat[e] [Rountree]," (2) "to proffer a written or verbal request to the court for a third-party culpability jury instruction," (3) "to adequately search for [Rountree]," and (4) "to investigate to ensure the execution of [a] capias warrant." In count two, the petitioner alleged that he was actually innocent, based on Rountree's identification of Pope as the shooter. Last, in count three, the petitioner alleged that his state and federal due process rights had been violated by (1) the state marshal service's failure to execute the capias warrant and (2) the court clerk's failure to follow the proper procedures for issuing the capias warrant. See footnote 5 of this opinion.
On May 5, 2020, the respondent, the Commissioner of Correction, filed a return to the amended habeas petition, wherein he admitted the petitioner's procedural allegations but otherwise left the petitioner to his proof. Thereafter, on July 24, 2020, the petitioner filed two separate applications for issuance of subpoenas by a self-represented party pursuant to Practice Book § 7-19,7 seeking subpoenas for his trial counsel, Rountree, and Markle.8 On August 12, 2020, the habeas court granted the petitioner's applications, and subpoenas later were issued and served on trial counsel,...
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