Robinson v. Comm'r of Corr.

• Decision Date: 11 May 2021
• Docket Number: AC 43041
• Court: Connecticut Court of Appeals
• Parties: Tyrone ROBINSON v. COMMISSIONER OF CORRECTION

204 Conn.App. 560

253 A.3d 1040

Tyrone ROBINSON

v.COMMISSIONER OF CORRECTION

AC 43041

Appellate Court of Connecticut.

Argued March 2, 2021

Officially released May 11, 2021

Naomi T. Fetterman, assigned counsel, for the appellant (petitioner).

Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Sharmese L. Walcott, state's attorney, and Jo Anne Sulik, senior assistant state's attorney, for the appellee (respondent).

Alvord, Alexander and Vertefeuille, Js.

Opinion

PER CURIAM.

The petitioner, Tyrone Robinson, appeals, following the granting of his petition for certification to appeal, from the judgment of the habeas court denying both counts of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) determined that the state did not violate his rights to due process and a fair trial by failing to disclose material, exculpatory evidence at his criminal trial and (2) denied his claim of ineffective assistance by the habeas counsel who represented him with respect to a prior habeas petition. We affirm the judgment of the habeas court.

The following recitation of facts was set forth by this court in the petitioner's direct appeal from his conviction. "At the time that the victim, Leonard Lindsay, was shot, the [petitioner] was living with his girlfriend, Lashonda Barno. On occasion, the [petitioner] exhibited jealousy and controlling behavior toward Barno, particularly with regard to the victim.

"Sometime in the spring of 2001, the victim, who had known Barno for fifteen years because they had gone to school together, manhandled her at a dance club. When the [petitioner] learned about this incident, he became upset and confronted the victim. Following the incident at the dance club, rumors of a sexual relationship between Barno and the victim began to circulate in the neighborhood.

"In the early morning of October 6, 2002, the victim drove into a gasoline station on Albany Avenue in Hartford and parked his car so that the driver's side window faced the street. Following a report of gunshots fired at the station, the police found the victim in his car with a gunshot wound to the head and a bullet hole in the driver's side window of the car. The victim was transported to a hospital, where he died later that day. The [petitioner] was not immediately identified as having committed the crime.

"At trial, the state presented evidence that the [petitioner] had admitted to four individuals that he had killed the victim. Immediately after having shot the victim, he confessed the killing to Barno and to her cousin. In September, 2004, he similarly confessed to Eric Smith, a longtime friend, who so informed the police in 2005, when Smith was incarcerated. In April, 2008, the [petitioner] confessed to Larry Raifsnider, a fellow inmate in a federal prison in Pennsylvania. Although the [petitioner's] earlier confessions were consistent with his claim, at trial, that he had intended only to frighten the victim, his confession to Raifsnider described a planned killing." State v. Robinson , 125 Conn. App. 484, 486–87, 8 A.3d 1120 (2010), cert. denied, 300 Conn. 911, 12 A.3d 1006 (2011).

The state charged the petitioner with murder in violation of General Statutes § 53a-54a and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). Id., at 486, 8 A.3d 1120. After a jury trial on the murder charge, the petitioner was found guilty. The weapons charge was thereafter tried to the court, which found him guilty and sentenced him on both counts to a total effective term of fifty years of incarceration. Id. This court affirmed the judgment of conviction on appeal. Id., at 489, 8 A.3d 1120.

The petitioner filed his first petition for a writ of habeas corpus on September 9, 2008, which subsequently was amended by his assigned counsel, Attorney Robert Rimmer, on May 8, 2012. The petitioner alleged three counts of ineffective assistance of trial counsel, arguing that his trial counsel was ineffective during both the trial and the sentencing phase. The court denied the first habeas petition. This court subsequently dismissed the appeal. Robinson v. Commissioner of Correction , 167 Conn. App. 809, 144 A.3d 493, cert. denied, 323 Conn. 925, 149 A.3d 982 (2016).

The petitioner filed his second petition for a writ of habeas corpus, which is the subject of this appeal, on November 30, 2015, which was then amended on June 6, 2018. In the first count, the petitioner alleged a violation of his right to due process at his criminal trial, as guaranteed by Brady v. Maryland , 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),¹ because the state had failed to disclose all relevant details surrounding an alleged bank fraud scheme between the victim and a third party, Robert L. Hudson, Jr. The second count alleged that Attorney Rimmer rendered ineffective assistance at the first habeas trial by failing to investigate and to present the Brady claim that the petitioner now advances.

A trial was held on the petitioner's second habeas petition in December, 2018. The petitioner entered into evidence a sworn statement that Hudson had provided to the Bloomfield Police Department in October, 2002, ten days after the victim was found dead. Hudson explained in the statement that he worked as a bouncer at a bar in Hartford and had become acquainted with a man named "Lenny," who drove a black BMW or Mercedes Benz. Lenny asked Hudson to open a bank account for him and to provide him with an account number. He explained that he would then deposit $23,000 into the account and Hudson could withdraw $10,000. Lenny also told Hudson that, if the plan worked, he could make more money in the future. A couple of days later, Hudson heard that a man in a black BMW or Mercedes Benz had been murdered at a gas station in Hartford and wondered if it was Lenny who had been shot. Later, while attempting to withdraw more money from the account, Hudson was apprehended by police officers. Along with Hudson's statement, the petitioner also entered into evidence bank records from Fleet National Bank, which had been acquired through a police investigation on October 18, 2002, showing the relevant deposits, withdrawals, and fraudulent checks. This information eventually was acquired by the Hartford Police Department.² Hudson was called to testify at the habeas trial, but after consultation with an attorney from the Office of the Public Defender, he invoked his fifth amendment privilege against self-incrimination in response to every question except to state his name and address.

The petitioner argued that Hudson's statement to the police and the bank records should have been provided to the petitioner's trial attorneys as exculpatory information and viable evidence to support a third-party culpability defense. The petitioner claimed that the failure to disclose this information violated his due process rights under Brady . The court denied the claim, finding no reasonable probability that this information would have been relevant or admissible third-party culpability evidence. The court denied the second count of the habeas petition because the ineffective assistance of habeas counsel claim was premised on Attorney Rimmer's failure to investigate and to present the Brady claim. The court then granted the petitioner's petition for certification to appeal, and this appeal followed.

The petitioner claims that the court improperly determined that the evidence was not material, stressing that the documents could have led to the discovery of further evidence and that the court should have drawn an adverse inference from Hudson's invocation of his fifth amendment privilege. In response, the respondent, the Commissioner of Correction, argues that the habeas court properly determined that the petitioner failed to establish that the documents constituted material exculpatory evidence. We agree with the respondent.

We first set forth the applicable standard of review. "The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. ... [T]his court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous .... The application of the habeas court's factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review." (Citation omitted; internal quotation marks omitted.)

Godfrey v. Commissioner of Correction , 202 Conn. App. 684, 693, 246 A.3d 1032 (2021). Moreover, "[w]hether the petitioner was deprived of his due process rights due to a Brady violation is a question of law, to which we grant plenary review." Walker v. Commissioner of Correction , 103 Conn. App. 485, 491, 930 A.2d 65, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007).

"In [ Brady v. Maryland , supra, 373 U.S. 83, 83 S.Ct. 1194 ] ... the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. To establish a Brady violation, the [petitioner] must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the [petitioner], and (3) it was material [either to guilt or to punishment]." (Internal quotation marks omitted.) Floyd v. Commissioner of Correction , 99 Conn. App. 526, 533–34, 914 A.2d 1049, cert. denied, 282 Conn. 905, 920 A.2d 308 (2007). All three components must be established in order to warrant a new trial. See Lapointe v. Commissioner of Correction , 316 Conn. 225, 262, 112 A.3d 1 (2015).

The habeas court in the present case addressed only the third prong of the Brady test, finding that the proffered evidence was not material. "The test for materiality is well established. The United States Supreme Court ... in ...