Walker v. Commissioner of Correction

• Decision Date: 04 September 2007
• Docket Number: No. 27072.,27072.
• Citation: 930 A.2d 65,103 Conn.App. 485
• Court: Connecticut Court of Appeals
• Parties: Michael WALKER v. COMMISSIONER OF CORRECTION.

930 A.2d 65

103 Conn.App. 485

Michael WALKER v. COMMISSIONER OF CORRECTION.

No. 27072.

Appellate Court of Connecticut.

Argued March 15, 2007.

Decided September 4, 2007.

James B. Streeto, assistant public defender, for the appellant (petitioner).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, Michael E. O'Hare, supervisory assistant state's attorney, and Jo Anne Sulik, senior assistant state's attorney, for the appellee (respondent).

SCHALLER, DiPENTIMA and WEST, Js.

DiPENTIMA, J.

The petitioner, Michael Walker, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) concluded that he failed to prove that the state, at his criminal trial, had suppressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), (2) excluded evidence at the habeas hearing that might have revealed a Brady violation, (3) found that one of the state's primary witnesses testified truthfully in all material respects at the criminal trial and (4) excluded certain police reports from evidence in the habeas hearing. We affirm the judgment of the habeas court.

The facts underlying the petitioner's conviction were recounted in the decision of our Supreme Court disposing of his direct appeal: "The record discloses that the [petitioner] and Tracey Fisher were arrested in connection with the death of Thomas Dixon and the wounding of Barrington Solomon. The shooting occurred on the evening of May 12, 1987. Dixon and Solomon were seated, conversing on the first floor rear porch of a multiple family dwelling located at 104 Enfield Street in Hartford. The [petitioner] and Fisher approached the dwelling and fired bursts from a .30 caliber automatic or semi-automatic weapon at the men on the porch. The shots killed Dixon instantly and severely wounded Solomon. The shooting was apparently motivated by the [petitioner's] desire to avenge his brother, Robert Walker, who, on a previous occasion, had been shot by Solomon and, as a result, was paralyzed.

"At the [petitioner's] trial the state offered Lehman Brown as a witness. Brown testified that he knew the [petitioner] and Fisher, and that he had been with them early in the day on May 12, 1987. Thereafter, he said, he had gone to visit a friend, Dion Smith, at her apartment. Brown testified that Smith resided at 98-100 Enfield Street, the premises adjoining 104 Enfield Street, where Dixon and Solomon were shot. Brown stated that he had fallen asleep at 98-100 Enfield Street and that upon awakening in the evening he had gone out on a rear porch. While there, he observed the [petitioner] and Fisher come through the back lot behind 98-100 Enfield Street. Fisher was in possession of an automatic weapon. Brown stated that he then saw Fisher scale a fence between the properties and fire a series of shots at the men on the porch. Fisher then returned to where the [petitioner] was standing and handed him the gun. The [petitioner] then fired a burst from the weapon at the porch. Fisher and the [petitioner] then ran from the scene." State v. Walker, 214 Conn. 122, 124-25, 571 A.2d 686 (1990). Following Brown's direct testimony, the petitioner extensively cross-examined him regarding his motivation for testifying against the petitioner.

"Smith, Brown's friend, did not testify in the state's case-in-chief nor did she testify for the defense. After the [petitioner] had rested his case, however, the state called her as a witness on rebuttal. Smith testified that she had known Brown for approximately two and one-half years. She stated that, although she had been with Brown on May 12, 1987, she had never been with him in or near an apartment at 98-100 Enfield Street in Hartford. Smith was not cross-examined by the [petitioner].

"During the state's closing argument to the jury the prosecuting attorney noted that he had called Smith as a witness because he had a duty to see that the [petitioner] received a fair trial and that he was obligated to produce all the relevant evidence whether it helped or hurt the state's case. He then stated that Smith's testimony indicated that the state's witness, Brown `was probably not on the porch at 100 Enfield Street on the night in question.'" Id.

The petitioner received a total effective sentence of eighty years incarceration. Id., at 123, 571 A.2d 686. His conviction was affirmed on direct appeal. Id., at 124, 571 A.2d 686.

On January 16, 1996, Brown signed an affidavit recanting his trial testimony. The petitioner then instituted a habeas corpus proceeding on December 4, 1996,¹ claiming that Brown had committed perjury during the petitioner's trial, which the state either knew or should have known. The habeas court held hearings from September 27 through 29, 2004, and then again on October 15 and 26, 2004. During the hearings, on October 15, the habeas court allowed the petitioner to amend his petition to add an allegation that the state had failed to disclose material, exculpatory evidence in violation of Brady v. Maryland, supra, 373 U.S. at 87, 83 S.Ct. 1194.

The habeas court issued a written memorandum of decision, filed November 24, 2004, concluding that the state did not knowingly present perjured testimony and that there was no Brady violation. The court based those conclusions on its factual findings that Brown had testified truthfully in all material respects at the petitioner's criminal trial and that there never was any agreement between Brown and the state that should have been disclosed pursuant to Brady. Thus, the court declined to issue the petitioner a writ of habeas corpus. On October 17, 2005, the court granted the petitioner certification to appeal. This appeal followed. Additional facts will be set forth as necessary.

I

On appeal, the petitioner first claims that he was denied due process of law and his right to a fair trial because the habeas court improperly concluded that he failed to prove that the state had suppressed exculpatory evidence in violation of Brady v. Maryland, supra, 373 U.S. at 87, 83 S.Ct. 1194. Specifically, the petitioner contends that the prosecutor failed to disclose to the defense that Brown, who was in police custody on charges related to a robbery, had his bond reduced to a written promise to appear in exchange for a written statement against the petitioner. The respondent, the commissioner of correction, responds that the court correctly concluded that the petitioner failed to prove the existence of such an agreement with Brown. We agree with the commissioner.

At the outset, we state the standards by which we review the petitioner's claims. The question of whether there existed an agreement between Brown and the state is a question of fact, which we review under the clearly erroneous standard. See State v. Floyd, 253 Conn. 700, 737, 756 A.2d 799 (2000). "When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous.... This court does not retry the case or evaluate the credibility of the witnesses.... Rather, we must defer to the [trier of fact's] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.... 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." (Internal quotation marks omitted.) Reid v. Commissioner of Correction, 100 Conn.App. 59, 62-63, 917 A.2d 1001, cert. denied, 282 Conn. 907, 920 A.2d 309 (2007).

Whether 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. See Quintana v. Commissioner of Correction, 55 Conn.App. 426, 435-36, 739 A.2d 701, cert. denied, 252 Conn. 904, 743 A.2d 614 (1999). "The conclusions reached by the [habeas] court in its decision to dismiss the habeas petition are matters of law, subject to plenary review.... Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct ... and whether they find support in the facts that appear in the record." (Internal quotation marks omitted.) Wilson v. Office of Adult Probation, 67 Conn.App. 142, 145, 786 A.2d 1120 (2001).

The following relevant testimony was elicited at the hearing on the petitioner's habeas petition. Brown recanted the testimony he had given in the petitioner's criminal trial. He also testified that once he had provided the police with a statement incriminating the petitioner, the charges against Brown "miraculously disappeared." Brown, however, did not refer to anything specific that was offered or said, instead claiming that "nothing was said in direct fashion, everything was indirect." Attorney Thomas R. Gerarde, who had represented Brown, testified that his goal would have been to ensure that once Brown gave a statement, he did not return to jail and that he must have received consent to that, but he was just not sure how it happened. He further testified that he had a specific memory of not getting a promise from then state's attorney, James E. Thomas, for favorable treatment on the criminal charges against Brown. Gerarde also stated that his notes indicated, "no promises from JET," which he said referred to Thomas.² Detective Clyde Mitchell, the police officer who had interviewed Brown, also testified that the police had made no specific promises to Brown. Thomas testified that he could not recall whether he had entered into an agreement with Brown to recommend a written promise to appear in return for his cooperation.

"In [Brady v. Maryland, supra, 373 U.S. at 83, 83 S.Ct. 1194] ... the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused ......