Outing v. Warden

• Decision Date: 20 November 2017
• Docket Number: CV104003816S
• Court: Superior Court of Connecticut
• Parties: J'Veil Outing (Inmate #324279) v. Warden

J'Veil Outing (Inmate #324279) v. Warden

No. CV104003816S

Superior Court of Connecticut, Judicial District of Tolland, Rockville, Geographic Area 19

November 20, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Vernon D. Oliver, J.

The petitioner, J'Veil Outing, initiated this petition for a writ of habeas corpus, claiming that his trial counsel and appellate counsel provided him ineffective legal representation. He also claims a due process violation and actual innocence. He seeks an order of this court vacating his conviction. The respondent denies the petitioner's claims and asserts the defense of procedural default. The court finds the issues for the respondent and denies the petition.

I PROCEDURAL HISTORY

The petitioner stands convicted, after a jury trial, of one count of murder in violation of General Statutes § 53a-54a. The petitioner was represented at trial by then-attorney, now Judge Auden Grogins and Attorney Gregory Cerritelli. On May 26, 2006, the trial court, Licari, J., sentenced the petitioner to fifty years of imprisonment. The petitioner's convictions were affirmed on direct appeal. State v. Outing, 298 Conn. 34, 3 A.3d 1 (2010). The Supreme Court held that the jury could have reasonably found the following facts:

At approximately 6:50 p.m. on June 23, 2005, Nadine Crimley was walking in a northerly direction on Canal Street in New Haven, pushing her infant son in a stroller. To her left, she saw her brother, Ray Caple, standing on the porch of her residence at 150 Canal Street. As Crimley walked up the street, she saw the defendant, whom she previously had seen in the neighborhood, pass her on his bicycle. Another unidentified man rode a bicycle in front of the defendant. Crimley then turned her attention back to her son. When she heard a series of popping noises, she looked. up and saw the defendant, who was about ten feet away from her, firing a gun at the victim, Kevin Wright. The victim fell to the ground and the defendant ran from the scene.

Caple, who had gone to high school with the defendant and had known him for three and one-half years, also watched the defendant as he rode his bicycle up Canal Street. As Caple watched, the defendant moved his right hand toward his waist. Caple believed that the defendant was reaching for a gun and was going to shoot him, but decided against doing so because Caple was holding his two year old daughter. Caple's mother and the victim were inside the residence at 150 Canal Street. Just after the defendant passed the residence on his bicycle, the victim exited through the back door of the residence, retrieved his bicycle from the backyard and walked with it in an easterly direction on Gregory Street toward its intersection with Canal Street. As Caple stood on the porch he heard a gunshot and the sound of a bicycle falling to the ground. When he looked around the corner of the porch, he observed Crimley and her son standing very close to the defendant, and he also saw the defendant, who had dismounted from his bicycle, fire three more shots at the victim. The defendant then ran away, leaving his bicycle in the street. Caple ran to the victim, who was unresponsive. The victim died from a single gunshot wound to the chest.

Shortly, after 10 p.m. on the day of the shooting, Crimley gave a statement to the New Haven police in which she indicated that she had been able to get a good look at the shooter and would be able to identify him. On June 27, 2005 four days after the shooting, Stephen Coppola, a New Haven police detective, interviewed Crimley and presented her with an array of eight photographs, including one of the defendant. Crimley identified the defendant as the shooter and signed and dated the photographic array. Coppola tape-recorded his interview of Crimley. On the same day Coppola also tape-recorded a statement from Caple and presented him with a second photographic array. Caple also identified the defendant as the shooter and signed and dated the photographic array.

Prior to trial, both Caple and Crimley recanted their statements to the police and their identifications of the defendant, claiming that they had been pressured by the police into giving the statements and making the identifications. Thereafter, the defendant filed motions to suppress the identification evidence, claiming that the evidence was unreliable and the product of an unnecessarily suggestive police identification procedure. At a hearing on the defendant's motions, both Crimley and Caple testified that they did not know who had killed the victim, that they had been pressured by the police to give false statements about the events surrounding the shooting, and that the police had pressured them to falsely identify the defendant as the shooter. Crimley and Caple acknowledged that they were extremely frightened about being called as witnesses for the state and identifying the defendant as the shooter. Coppola and Alfonso Vasquez, a New Haven police detective who had been present during Coppola's interviews of Crimley and Caple, testified that each of the witnesses had identified the defendant as the shooter by selecting the defendant's photograph from the photographic array spontaneously and without hesitation. The two detectives unequivocally denied that they had pressured or influenced either Crimley or Caple in any way.

At the conclusion of the detectives' testimony, the state maintained that the tape-recorded statements that Crimley and Caple had given to the police met the requirements for admissibility set forth in State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986). The trial court found that the testimony of Crimley and Caple that they had been pressured to give false statements and to falsely identify the defendant as the shooter was not credible. The court further concluded that the statements that they had given to the police met the Whelan admissibility requirements for purposes of the suppression hearing.

Thereafter, at a continuation of the suppression hearing, the defendant made an offer of proof regarding the testimony of his expert witness, Jennifer Dysart, concerning the reliability of eyewitness identifications. The state objected to the testimony, and the court sustained in part and overruled in part the state's objection to Dysart's proffered testimony. Dysart thereafter offered her opinion that the identification procedures used generally were not reliable. The trial court thereafter denied the defendant's motions to suppress the photographic identifications that had been made of the defendant by Crimley and Caple.

At trial, Crimley and Caple testified that the police had pressured them to give false statements and to falsely identify the defendant as the shooter. They further testified that the defendant definitely was not the shooter and that they did not know who had shot the victim. Upon the state's motion pursuant to Whelan, the trial court admitted redacted tape recordings of the statements Crimley and Caple had given to the police as prior inconsistent statements. The trial court also admitted as exhibits copies of the photographic arrays that Crimley and Caple had signed and dated. The defendant did not call Dysart as a witness at trial.

(Footnotes omitted.) Id., 38-41.

The petitioner initiated the present habeas petition on October 5, 2010. In his fifth amended petition, filed on February 26 2015, the petitioner set forth ineffective assistance of counsel claims as to trial counsel for the following alleged deficiencies: (1) failure to adequately prepare for and examine Nadine Crimley's testimony at the motion to suppress hearing; (2) failure to adequately prepare for and examine Ray Caple's testimony at the motion to suppress hearing; (3) failure to adequately prepare for and present the testimony of expert eyewitness identification witness Jennifer Dysart, at the motion to suppress hearing; (4) failure to present Dysart's expert testimony during trial concerning the simultaneous presentation of photographs, police instructions to the eyewitnesses, double-blind administration of the identification procedure and the theory of unconscious transference despite the court's ruling that such testimony was permitted; (5) failure to seek a ruling as to whether Dysart would be permitted to testify as to five additional factors: the perpetrator's use of a disguise; witness' focus on perpetrator's use of a weapon; lack of correlation between the reliability of an identification and the witness' confidence in the identification; the effect of a witness' stress on his ability to make an accurate identification; and witness collaboration; (6) failure to present Dysart's expert testimony at trial to challenge the accuracy of the eyewitness thereby failing to preserve the issue for appeal; (7) failure to adequately prepare for and cross examine Crimley at trial; (8) failure to adequately prepare for and cross examine Caple at trial; (9) failure to adequately cross examine or impeach testimony by state witnesses at the motion to suppress hearing; (10) failure to adequately cross examine or impeach testimony by state witnesses at the trial; (11) failure to adequately investigate and present a third-party culpability defense supported by witness testimony; (12) failure to adequately investigate and present an alibi defense supported by witness testimony; (13) failure to properly investigate Caple's claim that he was drinking at St. Martin's at the time of the shooting and that he was unable to observe the shooting from his location; (14) failure to consult with and present testimony of a fingerprint forensic expert; (15) failure to properly investigate and present evidence in support of a third-party...