Turner v. Comm'r of Corr.

• Decision Date: 08 May 2018
• Docket Number: AC 39131
• Citation: 187 A.3d 1163,181 Conn.App. 743
• Court: Connecticut Court of Appeals
• Parties: Kurtis TURNER v. COMMISSIONER OF CORRECTION

181 Conn.App. 743

187 A.3d 1163

Kurtis TURNER

v.COMMISSIONER OF CORRECTION

AC 39131

Appellate Court of Connecticut.

Argued December 7, 2017

Officially released May 8, 2018

Vishal K. Garg, Wethersfield, assigned counsel, for the appellant (petitioner).

Stephen M. Carney, senior assistant state's attorney, with whom, on the brief, was Michael L. Regan, New London, state's attorney, for the appellee (respondent).

Sheldon, Keller and Eveleigh, Js.

EVELEIGH, J.

The petitioner, Kurtis Turner, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal, and (2) improperly concluded that there were no violations of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963), at his underlying criminal trial.¹ For the reasons set forth herein, we agree with the petitioner and conclude that the habeas court abused its discretion in denying the petition for certification to appeal and in denying the petition for a writ of habeas corpus. Accordingly, we reverse the judgment of the habeas court and remand the matter for a new trial.

The following facts and procedural history are relevant to our resolution of this appeal. After a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a–54a(a) and sentenced to sixty years incarceration. Our prior decision on the petitioner's direct appeal in State v. Turner , 133 Conn. App. 812, 37 A.3d 183, cert. denied, 304 Conn. 929, 42 A.3d 390 (2012), set forth the following facts: "In June, 2007, the [petitioner] was living in an apartment in New London with Curtis McGill. McGill had, on several occasions, sold the drug PCP to Lakisha Alexander, the sister of Vernall Marshall, the victim. At some point during or near in time to April, 2007, Alexander stole some PCP from McGill's apartment. McGill later discovered that she had done so and told her that she owed him a favor.

"On June 19, 2007, Alexander, the victim, and two of the victim's friends encountered McGill, who was alone, on Bank Street in New London. The victim approached McGill, and the two of them conversed apart from the others. During the conversation, the victim told McGill that he would not let McGill disrespect his sister. After talking with McGill for two to five minutes, the victim walked back to Alexander and the others. McGill appeared to be upset, remarking several times that he felt threatened.

"Subsequent to this encounter with the victim, McGill made a telephone call, and, three to five minutes later, a car came down Bank Street and parked next to McGill. Three individuals got out of the car, one of whom was the [petitioner], who was holding a gun. The [petitioner] waved the gun in the air and pointed it at the victim, proclaiming, ‘I'll do anybody out here,’ ‘You want to die?’ and, ‘somebody is going to die.’ After approximately one minute, McGill told the [petitioner] to stop, and the [petitioner] lowered the gun and returned to the car with the other two individuals. The three of them left in the car, and McGill walked away from the victim, Alexander and the others. On the way back to the apartment, the [petitioner] repeatedly remarked that ‘[w]ithin forty-eight hours somebody is going to die.’

"On the night of June 20, 2007, the victim was in New London having drinks with friends. He had gone into New London with his friend, Shannon Johnson, and later that evening he met up with Alexander. In the early morning hours of June 21, 2007, the victim again met up with Johnson on the sidewalk just outside the front entrance to Ernie's Café on Bank Street. At this time, the [state claims, the petitioner] approached the victim and shot him in the head. Emergency personnel took the victim by ambulance to a nearby hospital, where, after approximately twelve minutes of medical care, he was pronounced dead.

"On January 8, 2008, the state filed an information charging the [petitioner] with murder in violation of § 53a–54a(a). On May 28, 2008, attorney Raul [Davila–Carlos] was appointed as a special public defender to represent the [petitioner], which he did for approximately one year without complaint. Beginning on the first day of jury selection on May 28, 2009, the [petitioner] made several requests that the court remove [Davila–Carlos] as his counsel and either appoint new counsel or allow him to represent himself. The court denied the [petitioner's] requests to have new counsel appointed, noting that the requests were made on the eve of trial. The trial then proceeded with [Davila–Carlos] representing the [petitioner] ....

"On July 16, 2009, at the conclusion of the state's case-in-chief, the [petitioner] made an oral motion for a judgment of acquittal, asserting that the evidence was insufficient to establish guilt beyond a reasonable doubt, which the court denied. The jury returned a verdict of guilty, and the [petitioner] was sentenced to sixty years incarceration." Id., at 814–16, 37 A.3d 183. This court affirmed the petitioner's conviction on direct appeal. See id., at 814, 37 A.3d 183.

On March 1, 2013, the petitioner, in a self-represented capacity, filed a petition for writ of habeas corpus. On May 8, 2015, the petitioner, represented by appointed counsel, filed the amended petition operative in this appeal. In the amended petition, the petitioner alleged that (1) his constitutional right to the effective assistance of trial counsel was violated, (2) his right to due process was violated by the prosecuting authority's knowing presentation of false testimony, and (3) his right to due process was violated by the prosecuting authority's failure to disclose material exculpatory evidence.² The habeas trial was held over three days from September 28, 2015 to September 30, 2015. The petitioner presented the testimony of, inter alia, Raul Davila–Carlos, the petitioner's trial counsel, and John P. Gravelec–Pannone, the prosecuting attorney in the petitioner's case. Following the trial, the habeas court, Sferrazza, J. , denied the petition in a written decision in which it concluded that the petitioner had not met his burden to prove ineffective assistance of counsel or a violation of his due process rights. Thereafter, the habeas court denied the petition for certification to appeal, and this appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal from the denial of his petition for a writ of habeas corpus with respect to his claim of due process violations. We agree.

"Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). First, [the petitioner] must demonstrate that the denial of his petition for certification constituted an abuse of discretion .... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits .... To prove that the denial of his petition for certification to appeal constituted an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further ....

"In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria ... adopted by [our Supreme Court] for determining the propriety of the habeas court's denial of the petition for certification." (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction , 169 Conn. App. 813, 821–22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017).

As discussed in part II of this opinion, because the resolution of the petitioner's underlying claim involves issues that are debatable among jurists of reason and could have been resolved by a court in a different manner, we conclude that the habeas court abused its discretion in denying certification to appeal from the denial of the petition for a writ of habeas corpus.

II

The petitioner claims that his due process rights were violated by the prosecuting attorney's knowing presentation of false or misleading testimony and failure to disclose material impeachment evidence as required by Brady v. Maryland , supra, 373 U.S. at 83, 83 S.Ct. 1194. Specifically, the petitioner argues that (1) Gravelec–Pannone failed to correct the false testimony of Alice Philips, a cooperating witness for the prosecution, that she had not received consideration in exchange for her testimony; and (2) the prosecution failed to disclose the material exculpatory evidence that the state had provided consideration in exchange for the testimony of Philips, who was a friend of the victim and testified on behalf of the state about the dispute among the petitioner, McGill and the victim.

The following additional facts are relevant to this issue. In her initial statement to the police, Philips told them that McGill was the individual who said that somebody was going to be dead within...