Marquis Jackson v. Warden

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Superior Court of Connecticut.

Marquis Jackson v. Warden

TSRCV054000578

Decided: March 22, 2011

Memorandum of Decision

The petitioner, Marquis Jackson, has filed a petition for a writ of habeas corpus attacking his convictions related to a 1999 armed robbery in New Haven in which one victim died.   The court conducted an eight-day trial on the habeas petition.   For the following reasons, the petition is denied.

I

The opinion of the Appellate Court set forth the facts that the jury could reasonably have found at trial.  “On January 24, 1999, at approximately 3:30 a.m., [Marquis] Jackson and [Vernon] Horn, along with Steven Brown, [footnote 5:  ‘Steven Brown pleaded guilty and testified as a witness for the state.’] entered the Dixwell Deli on Dixwell Avenue in New Haven, wearing masks and carrying handguns.   As Horn entered the deli, he fired five or six shots from a nine millimeter pistol.   One bullet struck Caprice Hardy, a customer, and killed him.   A second bullet struck Abby Yousif, an owner of the deli, in the shoulder.   Brown and Jackson followed Horn into the deli.

“Jackson then went behind the counter and attempted to open the cash register.   Horn and Brown went to the deli's back room where they found Vernon Butler, an off-duty employee, and Warren Henderson, a homeless man who helped out around the store.   Butler was hit on his head with the butt of a gun, searched for money and taken to the front of the store by Horn to open the cash register.   When Butler could not open the register, Jackson took the cash that Yousif had in his pockets.   Butler's cellular telephone was also stolen.   The telephone was subsequently used the day after the robbery by Marcus Pearson, who had obtained it from Horn.

“During the course of the robbery, two customers, one of whom was Kendall Thompson, entered the deli.   Upon entering, each individual was forced to the ground at gunpoint and ordered to turn over whatever money they possessed.

“In the back room, Brown rifled through Henderson's pockets, looking for any money that he may have had.   Finding no money on Henderson's person, Brown searched the cigar boxes in the back room to see if there was any cash hidden there.   After searching the back room, Brown returned to the front of the deli, where Horn was shouting orders by the door and Jackson was still behind the counter near the cash register.   Upon hearing the sound of sirens, Jackson, Horn and Brown fled the scene.

“The police processed the crime scene and found latent fingerprints on a cigar box in the back room.   The prints matched Brown's fingerprints on file with the Bridgeport police department.   When interviewed by the New Haven police, Brown admitted his participation in the January 24, 1999 robbery and identified Jackson and Horn as the other individuals involved.   Jackson and Horn were arrested and tried jointly.   Jackson was found guilty of eight of the ten counts on which he was charged and sentenced to a total effective sentence of forty-five years imprisonment.   Horn was found guilty of all ten counts on which he was charged and sentenced to a total effective sentence of seventy years imprisonment.”  State v. Jackson, 73 Conn.App. 338, 342–43, 808 A.2d 388, cert. denied, 262 Conn. 929, 814 A.2d 381 (2000).

At the criminal trial, which took place in April 2000, attorney Michael Moscowitz represented the petitioner, attorney Leo Ahearn represented Horn, and Judge Robert Devlin presided.   The petitioner was convicted of three counts of robbery in the first degree, two counts of attempt to commit robbery in the first degree, and one count each of felony murder, conspiracy to commit robbery in the first degree, and carrying a pistol without a permit.   The petitioner was acquitted of assault in the first degree and burglary in the first degree.   The Appellate Court affirmed the convictions and the Supreme Court denied certification in 2002.  Id.

Some two and one-half years later, in July 2005, the petitioner filed a pro se habeas petition.   The petitioner's current habeas counsel filed an appearance in September 2005.   For the next three years, the file reveals no activity in the case.   The petitioner, through counsel, filed an amended petition in October 2009.   There followed a series of continuance motions.   The court granted some, though not all, of these motions for good cause.   Trial of this case took place in January and February 2011.

The delayed commencement and lethargic movement of this case is contrary to society's “need for finality of convictions”;  Young v. Commissioner of Correction, 104 Conn.App. 188, 192, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008) (internal quotation marks omitted);  and to society's concern for avoiding the injustice of incarcerating an innocent person.   The delay is also contrary to the statute governing habeas matters, which provides that the “court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts or issues of the case ․” General Statutes § 52–470(a).   Finally, the delay hurts the ability of both parties to present witnesses who can honestly recall events at the time of the crime or the trial, and concomitantly makes it more difficult for the court to discern the true facts of the case.

II

The first count in the amended petition alleges that Moscowitz rendered ineffective assistance as trial counsel.  “To determine whether the petitioner has demonstrated that counsel's performance was ineffective, we apply the two part test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   Claims of ineffective assistance during a criminal proceeding must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance ․” (Internal quotation marks omitted.)  Jarrett v. Commissioner of Correction, 108 Conn.App. 59, 70, 947 A.2d 395, cert. denied, 288 Conn. 910, 953 A.2d 653 (2008).  “It is well settled that in order to prevail on a claim of ineffective assistance of counsel, the petitioner must prove both prongs of the Strickland test.   A reviewing court [therefore] can find against a petitioner on either ground, whichever is easier.”  (Internal quotation marks omitted.)  Lacks v. Commissioner of Correction, 87 Conn.App. 225, 231, 866 A.2d 660, cert. denied, 273 Conn. 922, 871 A.2d 1027 (2005).

“The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the [s]ixth [a]mendment.”  (Internal quotation marks omitted.)  Jarrett v. Commissioner of Correction, supra.   In this regard, “[j]udicial scrutiny of counsel's performance must be highly deferential.   It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable ․ A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.   Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.”  (Internal quotation marks omitted.)  Bryant v. Commissioner of Correction, 290 Conn. 502, 512–13, 964 A.2d 1186, cert. denied, 130 S.Ct. 259, 175 L.Ed.2d 242 (2009) (quoting Strickland v. Washington, supra, 466 U.S. 689).

A

The strongest claim of ineffective assistance lodged by the petitioner concerns Moskowitz's decision not to allow into evidence a written recantation by state's witness Shaquan Pallet.   As the Appellate Court noted:  “Pallet testified at the trial that he worked with the victim [Caprice Hardy] on the morning of the murder.   After work, Pallet and the victim shared a taxicab.   The taxicab initially went to the Dixwell Deli, where the victim was dropped off shortly before 3:30 a.m. to purchase some cigarettes.   Outside the deli, Pallet testified that he saw Jackson and Horn smoking ‘wet.’   After receiving a cigarette from Hardy, Pallet left in the taxicab.   Hardy remained at the deli.”  State v. Jackson, supra, 73 Conn.App. 377.   Pallet also testified that he saw a third person outside the deli whom he did not recognize.   (Exhibit 30, pp. 125–26.) 1

During his direct examination, Pallet recounted that he had identified the petitioner and Horn from photo arrays on two separate occasions prior to trial as persons whom he saw outside the deli.  (Exhibit 30, pp. 141–46.) 2  He testified that he was “absolutely certain” that he saw the petitioner and Horn outside the deli.  (Exhibit 30, pp. 175–76;  Exhibit 31, p. 59.)

Also during direct examination, the state showed Pallet a letter that he had written.   When offered as a full exhibit by the state, neither defense attorney objected.   The state then read the letter to the jury:  “I'm writing this concerning [the] Marquis Jackson case.   I gave a statement to the police concerning that case, I gave some false information in that statement.   I said I saw Marquis Jackson at the scene where my friend, Caprice Hardy, was murdered.   I'm deeply sorry, but this is untrue.   The only reason that I said that—the only reason that I said that I saw Marquis Jackson at the scene was because a lot of people told that he was one of the guys that had something to do with my friend, Caprice Hardy, being murdered.   Truth is I didn't see anybody that I recognized that night.   Signed, Shaquan Pallet.”  (Exhibit 30, pp. 149–50;  Exhibit 41.)

Pallet added that he wrote the letter while he was in jail after somebody slipped a note under his cell door “telling me to write that.”  (Exhibit 30, p. 150.) 3  At that point Moscowitz objected on the ground that the state was trying to make an inference that the petitioner had written the note and that such an inference was highly prejudicial without proof of who in fact had done so.  (Exhibit 30, p. 150–51.)   A lengthy colloquy ensued outside the jury's presence.   The state explained that it offered the letter preemptively because it believed that it would come out on cross-examination.   Moscowitz asked the court on two occasions to strike the portion of the testimony concerning the note.   The court declined to do so, remarking that it would have sustained an objection to the note without proof that it came from one of the defendants, but the letter had come in without objection, giving the state the right to put the letter into context and show the circumstances.  (Exhibit 30, pp. 151–68.)

There was also a discussion concerning the origins of the note.   The state claimed it had no knowledge of its origins.   Pallet testified that he received the note while detained at the Whalley Avenue jail and then gave the note to a female counselor.   Moscowitz suggested that it was unclear whether the petitioner was housed at the same jail as Pallet.   Moscowitz then asked for some time to investigate, which the court granted with the suggestion that he issue a subpoena to the department of correction.  (Exhibit 30, pp. 151–68.)

Although Moscowitz initially complained about the difficulty of issuing subpoenas in his role as a special public defender, the court took a recess and Moscowitz began to proceed to an office from which he could issue a subpoena.   Apparently on the way, Moscowitz had a change of heart and decided to move to strike the entire line of testimony concerning the letter and the note.   Moscowitz and the other counsel also met with the court in a chambers conference.  (Exhibit 30, pp. 168–71.)   On the record, Moscowitz noted that “my client is adamant against what I'm saying, but I'm not quite sure whether the Court is leaving the choice up to my client or myself.”   Moscowitz then reiterated that he wanted the entire testimony stricken and “[i]f Mr. Jackson wants to take action against me at a later date, he can.”  (Exhibit 30, pp. 171–73.)   The state then disclosed that there was another similar document in the possession of Horn or his counsel.   The court replied that it would take that matter up in due course.   The court thereupon summoned the jurors, informed them that it had stricken the testimony, and provided them a curative instruction to disregard it.4

The petitioner now apparently claims that it was ineffective assistance for Moscowitz to move to strike Pallet's letter.5  Although there is undoubtedly some facial appeal in arguing that defense counsel should not seek to strike a letter of recantation written by a crucial state's witness, a close examination of the facts reveals that Moscowitz's decision was a reasonable professional judgment.

Moscowitz testified credibly at the habeas trial, as he argued at the criminal trial, of his concern that the prejudicial effect of the inference that the petitioner had pressured Pallet into writing the letter might outweigh the probative value of the letter of recantation.   He believed that the safer course was to do without both the letter and the note.

It is true that Moscowitz did not take advantage of the opportunity offered him by the trial court to investigate the question of who wrote the note.   In this respect, Moscowitz was remiss.   But the only evidence at the habeas trial of what further investigation would have revealed was a stipulation that both the petitioner and Horn were housed at the McDougall–Walker Correctional Center on September 24, 1999, when Pallet was detained at the Whalley Avenue jail.6  Presumably, Moscowitz could easily have obtained this same information at the criminal trial simply from inquiries of his client and Horn's counsel, without the need for any sort of further investigation.   Although it is true that this evidence makes it less likely that the petitioner (or Horn) could have supplied the note to Pallet, Moscowitz correctly observed in his testimony that the petitioner and Horn were nevertheless the two people with the strongest motive to influence Pallet.   Thus Moscowitz sensibly was concerned that, regardless of what an investigation revealed regarding who wrote the note, the jury would still draw a negative inference against his client.   Moscowitz also sensed that, if he attacked Pallet for lying about the existence of the note, that the jury might also find Pallet to be lying about the letter of recantation, thus defeating the purpose.   Hence, regardless of what an investigation might show, allowing in the testimony about the note was an option fraught with peril.

Against this prejudicial effect must be weighed the probative value of the letter of recantation.   There is no denying that Pallet's recantation went to the heart of the state's case.   But a recantation is viewed with skepticism by the law and, presumably, by a jury.   See Channer v. State, 54 Conn.App. 620, 629, 738 A.2d 202, cert. denied, 251 Conn. 910, 739 A.2d 1247 (1999).   Further, this recantation did not come in the form of live testimony by the witness, but rather consisted of a prior, out-of-court statement.   It did not come unblemished, but rather attached to testimony that someone had pressured the writer into making it.   All these considerations reduced the letter's probative value.

In short, Moscowitz made a reasonable evaluation of the costs and benefits of admitting the letter.   It is clear, from the fact that Moscowitz had no objection to the admission of the letter by itself, that Moscowitz understood the possible benefits of admission.   But he also understood that the letter was a two-edged sword, and that the other edge could hurt his case.   Moscowitz opted for a careful approach.

This “heat of battle” decision is exactly the type that the Strickland standard protects.   It is easy to say now that the petitioner has been convicted that Moscowitz made the wrong decision, but “[j]udicial scrutiny of counsel's performance must be highly deferential.”  (Internal quotation marks omitted.)  Bryant v. Commissioner of Correction, supra, 290 Conn. 512–13 (quoting Strickland v. Washington, supra, 466 U.S. 689).   The court cannot “second-guess counsel's assistance after conviction or adverse sentence,” and “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.”  Id. Further, “[a]n attorney's line of questioning on examination of a witness clearly is tactical in nature ․ The fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance.”  (Internal citations omitted;  quotation marks omitted.)  Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).   Accordingly, indulging in the “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance”;  Bryant v. Commissioner of Correction, supra, 290 Conn. 512–13 (quoting Strickland v. Washington, supra, 466 U.S. 689);  the court concludes that Moscowitz's handling of the recantation issue constituted acceptable trial strategy.

B

1

The court next considers various specifications of ineffective assistance that the petitioner summarizes in his pretrial brief as a failure to investigate and present available evidence that would have severely damaged the prosecution's case.   The first specification is an alleged failure to call alibi witnesses.

In general, Moscowitz took the case very seriously, hired an investigator, reviewed all police reports and statements, and consulted with his client.   From his review, Moscowitz realized that the petitioner did not have a complete alibi.   Indeed, the petitioner admitted at the criminal trial that, sometime after 2 a.m. on January 24, he and Horn drove to Genesee Street in New Haven to a party and then to the Dixwell Deli. The petitioner claimed that he did not remember the time at which he arrived at the deli, but a police detective told the jury in the state's rebuttal case that the petitioner had made the damaging admission to her shortly after the crime that he was at the deli at 3:30 a.m., precisely the time of the crime.  (Exhibit 34, pp. 43–51, 132.)   The petitioner also testified at the criminal trial that, after going to the deli, he dropped off Horn and Zanetta Berryman on West Ivy Street, visited his mother, and then went to the apartment of Lateisha Smith, where he stayed for the remainder of the night.  (Exhibit 34, pp. 51–56.)

Despite his client's admission to stopping at the deli on the morning of the crime, Moscowitz did present two alibi witnesses.   Adrienne Debarros, a high school acquaintance of the petitioner and sister of Lateisha Smith, testified that she saw the petitioner and Horn leaving the Alley Cat Club at approximately 1:45 to 2:00 a.m. that morning.  (Exhibit 33, pp. 75–82.)   Smith, a female friend of the petitioner, then testified that she met the petitioner at the Alley Cat Club, left around 2 a.m., went to her home in New Haven where the petitioner arrived sometime around 3 a.m. The petitioner, according to Smith, stayed until late morning.  (Exhibit 33, pp. 116–27.)   Moreover, counsel for Horn called John Crenshaw to testify that he saw Horn at a card game on the evening of January 23 on West Ivy Street in a property that Crenshaw owned with Kevin Spann.   The apartment house contained a room rented by the petitioner.   (Exhibit 33, pp. 55–68.) 7

At the habeas hearing, the petitioner presented five additional alibi witnesses.   Mildred Spann testified that she saw the petitioner at the card game on West Ivy Street until about midnight on January 24, before he left for a club, but did not see anyone who looked like Steven Brown.   Ken Ransome stated he saw the petitioner at the Alley Cat Club and then at the Athenian Diner around 2 a.m. that morning, but did not see Steven Brown.   Shamar Maden added that he saw both the petitioner and Horn at the club at that time.   These witnesses essentially established that the petitioner was not with Steven Brown in Bridgeport or New Haven shortly before the crime.

The other two alibi witnesses—Derrick Gilliam and Cheryl Miller Denis—related that, sometime between 2 and 3 a.m. on January 24, after attending a party on South Genesee Street in New Haven, they observed Zanetta Berryman have a friendly conversation with the occupants of a car that had driven up, and then enter into the car before it drove off.   The import of this testimony was to corroborate the petitioner's testimony that he and Horn had driven to this party after 2 a.m. that morning.

At least some of these alibi witnesses—Ransome, Gilliam, Spann—were available to defense counsel and may even have spoken to their investigators.   There was, however, no ineffective assistance by Moscowitz in failing to call them as witnesses for the criminal trial.   Essentially, they duplicated the alibi defense that Moscowitz and Ahearn presented.   Their testimony merely confirmed the defense evidence at the criminal trial showing that, beginning in the evening of January 23, the petitioner and Horn attended a card game in New Haven, then went to a club, a diner, and finally a party where they may have picked up Zanetta Berryman—all before the robbery and murder occurred.

The state, furthermore, did not dispute this evidence.   As the prosecutor argued during summation:  “The last time Miss Debarros saw these two defendants together was some hour and a half before the shooting and murder of Caprice Hardy at the Dixwell Deli.” (Exhibit 35, pp. 118–19.)   Thus, the witnesses presented by the petitioner at the habeas hearing merely proved what Moscowitz believed—that the petitioner's alibi was incomplete.   These new witnesses did not provide an alibi for the petitioner for the precise time when the crime occurred.

Of course, the alibi evidence presented by Moscowitz tended to show that the petitioner and Horn were not with Steven Brown until at least sometime after 2 a.m. Thus, Moscowitz argued to the jury that “it does not fit” to suggest that “Steven Brown is with these individuals all along, never at the Alley Cat Club.” (Exhibit 35, p. 88.)   While the additional alibi witnesses called by the petitioner at the habeas trial would have reinforced this point, it would not have taken the time line any further into the early morning hours.

In any event, here as well the state did not challenge this aspect of the petitioner's alibi.   It is true that Brown testified at the criminal trial on cross-examination by Moscowitz that he had told the police that he had met the petitioner and Horn at the White Eagle Club in Bridgeport late in the evening of January 23.8  If that evidence were all the state had, then the petitioner's partial alibi would have assumed paramount importance, as it would have directly contradicted Brown's version of the events of that evening.   On direct examination by the state, however, Brown stated that he had met the petitioner and Horn at a party several weeks before January 23 and that he could only remember that he had met the two in Bridgeport on January 23 but could not remember precisely where and when.  (Exhibit 31, pp. 115–16, 168–71.)   On redirect examination, Brown claimed that he had met the two at the White Eagle Club several weeks before the incident and that, on the night of the shooting, he met them at a club but could not remember which one.  (Exhibit 32, pp. 113–14.)   This testimony allowed the state to argue on summation that “I believe he indicated, Mr. Brown did, that he met them a couple of weeks before [January 23] at the White Eagle Club and he, frankly, did not remember where he met them again on the night in question.”  (Exhibit 35, p. 118.)

Thus, the petitioner's alibi was not a complete defense.   Even if the additional alibi witnesses had testified credibly at the criminal trial, their testimony would not have precluded the possibility that the petitioner and Horn could have traveled to Bridgeport, particularly after stopping at the Genesee Street party sometime after 2 a.m., and met with Brown at some undisclosed location in Bridgeport, after which they returned to New Haven.   For these reasons, the additional alibi witnesses presented at the habeas trial would not have significantly helped the defense.   There was therefore no ineffective assistance in Moscowitz's actions in not presenting them at the criminal trial.

2

The petitioner next faults Moscowitz for failing to present evidence of third-party culpability.   During the direct examination of Steven Brown, Moscowitz stated to the court, with the jury out, that there was some evidence that a Willie Sadler may have been with Brown at the time of the crime.   The state objected that there was no evidence that Sadler had anything to do with the crime, and Moscowitz did not pursue it further at that time.  (Exhibit 31, p. 152–53.)   On cross-examination of Brown, however, Moscowitz elicited that Brown knew Sadler, who may have met the height description of one of the robbers.   Moscowitz also brought out that Brown knew a Mario Macklin, who was Sadler's cousin.   The court sustained the state's objection when Moscowitz asked Brown whether he knew that Macklin was a suspect.   Moscowitz then asked Brown whether he would rob with a stranger and with someone he knew.  (Exhibit 31, pp. 202–07.)

As he explained at the habeas trial, Moscowitz knew that the standard for admission of third-party culpability required more than a bare suspicion of third-party involvement and that he could not get past that hurdle.   Of course, the failure to present a “relevant, plausible third party culpability defense [can constitute] deficient performance on the part of defense counsel under Strickland.”  Bryant v. Commissioner of Correction, supra, 290 Conn. 517–18.   But the rule applicable at a criminal trial is that, while a defendant does have the right to introduce evidence that someone other than the defendant committed the crime, the defendant must “present evidence that directly connects a third party to the crime ․ It is not enough to show that another had the motive to commit the crime ․ nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused.”  (Internal quotation marks omitted;  citations omitted.)  State v. Cerreta, 260 Conn. 251, 262–63, 796 A.2d 1176 (2002).

The petitioner has not shown that Moscowitz reasonably could have obtained evidence that met this standard.   The petitioner argues that Moscowitz should have presented evidence that Sadler, William Newkirk, and Marlo Macklin had involvement in the crime.   But the petitioner himself was unable to produce any of these three persons at the habeas trial.   Instead, the petitioner could only introduce Sadler's and Newkirk's out-of-court statements made to an investigator.9  The upshot of these statements, along with the criminal records of all three and the live testimony of Steven Brown, was that Sadler, Newkirk, and Macklin all knew Brown from drug activity in Bridgeport.10  In addition, Macklin went by the nickname of “Troy,” which is similar to the name of “Tray” or “Tie” that Brown associated with Horn. At least two of the three roughly met the height and weight descriptions of the robbers.

Given these facts, Moscowitz did not render deficient performance.   There is no showing that Moscowitz could even have produced Sadler, Newkirk, and Macklin for the criminal trial, a point emphasized by the petitioner's inability to produce them at the habeas trial.   Even their out-of court statements do not directly connect them to the crime.   None of them admitted any involvement in the robbery.   There is no physical evidence linking them to the scene.   No witness identified any of them as being at the deli on January 24.   The fact that they engaged in drug activities with Brown, or may have had similar height and weight to some of the suspects, does not significantly tie them to the scene.

In sum, although Moscowitz attempted to raise the suggestion of third-party culpability on several occasions, the court's rulings initially prevented him from questioning further.   The additional evidence presented by the petitioner that might have been available to Moscowitz at the criminal trial does not take the case beyond the “bare suspicion” standard.   Accordingly, the petitioner has not proven that Moscowitz was ineffective on this issue.

3

The petitioner next claims that Moscowitz did not properly demonstrate the implausibility of the state's proposed time line of calls from Vernon Butler's stolen cell phone.   There are several aspects to this claim.   The first aspect is the suggestion that Moscowitz should have investigated the possibility that Crystal Sykes, who did not testify at the criminal trial, could nonetheless have testified there that, contrary to the testimony of Marcus Pearson at the criminal trial, she did not receive a phone call from Pearson at 11:07 a.m. on January 25.   This testimony would supposedly have refuted Pearson's additional claim that, while he was home in New Haven at the time, Horn gave him a cell phone to make that call.   Because the evidence indisputably showed that the phone responsible for the 11:07 call was Butler's stolen cell phone, Pearson's testimony essentially put Horn in possession of the proceeds of the robbery.   Horn's possession of Butler's cell phone in turn linked the petitioner to the crime because Horn and the petitioner were together on the night of the crime.

To refute this point, the petitioner called Sykes, now Sykes–Newkirk, to testify at the habeas trial.   Sykes–Newkirk gave conflicting and reluctant testimony on exactly when the call occurred, but was certain that she received a call from Pearson, from whom she would purchase marijuana, during that general time period.   She also stated that she was living in West Haven with another family as a home health aid and denied living with Willie Newkirk at the time of the call.11  With no acknowledgment that Newkirk was staying with her at the time, the defense would have been unable to show, as it might have desired to do, that Newkirk, rather than Sykes, received the 11:07 call, and that the call came from Bridgeport, not New Haven.   On balance, the court cannot say that Sykes–Newkirk was a witness who would have especially helped the petitioner at the criminal trial.12

The second aspect of the petitioner's claim concerning the time line of phone calls is his contention that Moscowitz was deficient in failing to call Sholanda Jenkins to testify that Horn never provided a cell phone to Marcus Pearson on January 25.   Jenkins testified at the habeas trial that she was a cousin of Horn's who accompanied him to Pearson's house on the morning of January 25.   She claimed that Horn neither gave Pearson a cell phone and nor did Pearson make a call during their meeting.

The court has doubts about Jenkins's ability accurately to remember this otherwise uneventful incident twelve years later.   First, Jenkins, whose nickname was “Yogi,” admitted that she went to Pearson's to buy marijuana.   While the fact that she was involved in drug activity does not necessarily distinguish her from many of the state's witnesses, it still raises questions about her abilityDP1⌑Further, Jenkins claimed on the stand that she was never contacted by investigators for the defense attorneys or by the defense attorneys themselves.   The transcript of the trial, however, reveals facts to the contrary.   On the second day of defense testimony, Ahearn told the court that Jenkins “was here all day yesterday—I shouldn't say that.   She was here from two to five yesterday, we didn't get her on.   She is not here today.   I called her this morning.   So, it's my client's sister is in the—I spoke to her maybe 45 minutes ago, they are in the process of trying to pick her up and bring her here.”  (Exhibit 34, pp. 29–30.)   After a short recess, Ahearn reported that Jenkins was not in court.   The defense rested later that day without calling her.  (Exhibit 34, pp. 33, 114–19.)

This portion of the record reveals two points of significance.   First, it shows that Jenkins' memory of that time period was inaccurate in that, contrary to her testimony in the habeas trial, some members of the defense team had obviously contacted her and obtained her presence in court for at least one afternoon.   Second, the transcript reveals that the defense team had made efforts to obtain her testimony but were unsuccessful.   The petitioner has not now made any showing of how those efforts were deficient.

Finally, while Jenkins's testimony, if believed, would have been important in the criminal trial, Moscowitz had two other avenues of attack that he employed.   The first was to emphasize the circumstances leading up to Pearson's admission to the police and testimony in court about the phone call.   On cross-examination, Moscowitz elicited that, before Pearson told the police that he had used Horn's cell phone on January 25, the police had informed him that Crystal Sykes had already stated to the police that Pearson had called her that morning.   Moscowitz also brought out that the police had visited his house four times and had supposedly been harassing him into giving a statement.  (Exhibit 28, pp. 23–24, 32–33.)   Thus, Moscowitz essentially developed the theme that Pearson's statements about the phone call were the product of police suggestivity and overreaching.

The second avenue was to argue that the state's theory concerning the time line of calls from the stolen cell phone was incredible.   Moscowitz initially pursued this issue on cross and recross-examination of Steven Brown.   Moscowitz first followed up on testimony from the direct examination establishing that Brown used the stolen cell phone to call Willie Sadler in Bridgeport at 4:14 a.m. on January 24, shortly after the robbery.  (Exhibit 31, pp. 143–50.)   Moscowitz next established that Brown had made a call to a different Bridgeport phone number at 10:48 p.m. on January 24.   Continuing, Moscowitz asked Brown whether he made a call to a third Bridgeport number on January 25 at 10:40 a.m. Brown first answered:  “Bridgeport, I made it,” but then later stated “I don't know.   I don't get it.”  (Exhibit 37;  Exhibit 31, pp. 216–19.)   Brown then denied making the next call, at 11:07 on January 25, to the number of Crystal Sykes in New Haven.14  He also denied making the last call at 2:32 p.m. on January 25, even though the call was to Willie Sadler.  (Exhibit 31, pp. 216–20;  Exhibit 32, pp. 124–25.)   Brown contended that he had met Horn in Bridgeport during this time period and given him back the phone.  (Exhibit 31, pp. 148–49, 218–19.)

This evidence gave Moscowitz the opportunity to argue, or the jury at least to infer, that it was impossible for Brown to have made calls to Bridgeport up until 10:40 a.m. on January 25, for Brown to have then given the phone to Horn in Bridgeport, and for Pearson then to have called Sykes with the same phone in New Haven at 11:07 a.m. Further, even though Brown denied Moscowitz's suggestion that Brown had used the phone to call Willie Sadler at 2:32 p.m. that day, the jury could have inferred that Brown did make that call from the fact that he had used that same phone to make that same call the day before.   Thus, Moscowitz could argue that a second call by Brown to Sadler made it even more unlikely that Horn was in possession of the stolen phone in New Haven at 11:07.

Moscowitz accordingly made the following argument to the jury:  “You saw Steve Brown get on that stand and testify.   And when I questioned him about January 24th at 4:14, Bridgeport, I gave the number, the number was Willie Sadler's number.   When I gave him the next call, January 24th, 10:48, Bridgeport, 375–4651, he said that was Sandra Moore's number.   He knew that individual.   Then on January 25th at 10:40 a.m. he makes a phone call to 696–1494, 95, excuse me, and that's the phone number of Crystal Sikes, no, of Floyd Jackson.   He makes that phone call.   Then January 25th, 11:07, New Haven, phone call is made, (203) 933–5833.   Crystal Sikes' number.

“Was it made on that phone or the other cell phone that Marcus Pearson had?   Because on January 25th at 2:32, Bridgeport, Willie Sadler is called again.   Steve Brown says he didn't think he made that call.   However, he reversed that, said he did make that phone call.   How does that phone get back to Bridgeport?   How does that phone get back to Steven Brown?   You need to weigh that.   You need to discuss that in your deliberation.   You need to look at this phone catalog, this log, and see how these phone calls were made.   Yes, there is a time period between 11:07 and 2:32 where that phone could have gone from New Haven to Bridgeport, but it didn't.   There's been no testimony to that.”   (Exhibit 35, p. 71–72.)

Thus, Moscowitz clearly and deliberately addressed the implausibility of the state's theory regarding the cell phone calls.   While one could critique his performance in hindsight, the petitioner's right is to effective representation, not perfect representation.   See Johnson v. Commissioner of Correction, 36 Conn.App. 695, 701, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995).   Moscowitz rendered effective assistance in this area.

4

The petitioner's final specification of ineffective assistance is that Moscowitz did not prepare the petitioner adequately to testify.   All the evidence is to the contrary.   Just prior to calling the petitioner to the stand at the criminal trial, Moscowitz stated on the record that he previously had some discussions with the petitioner on the issue of testifying, that he had informed the petitioner he could not force him to testify or not testify, and that he had given him certain other advice.   Moscowitz also suggested that he had hoped to speak to the petitioner more about the matter on that day, but was unable to do so because of the lack of privacy.   The court then provided a thorough explanation of the risks and benefits that each defendant should contemplate and emphasized that, while they should consider their lawyer's advice, ultimately the decision was up to them.   The court thereupon took a short recess.   After the recess, Moscowitz informed the court that the petitioner wished to testify.  (Exhibit 34, pp. 30–33.)

At the habeas trial, Moscowitz confirmed that he spoke to the petitioner several times about testifying, he explained the risks of testifying, and he advised the petitioner not to testify.   The petitioner, however, made his own decision to testify.   Given that decision, Moscowitz prepared the petitioner by going over the questions he would ask.

Moscowitz acted properly by giving the petitioner legal advice but leaving the ultimate decision whether to testify up to the petitioner.   See State v. Gore, 288 Conn. 770, 779 n. 9, 955 A.2d 1 (2008).   He then prepared the petitioner for his testimony.   The petitioner does not now identify any way in which this preparation was unreasonable or deficient.15  Accordingly, the court finds that Moscowitz rendered effective assistance of counsel.16

III

The petitioner's final claim is actual innocence.17  “[T]he proper standard for evaluating a freestanding claim of actual innocence ․ is twofold.   First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence—both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial—he is actually innocent of the crime of which he stands convicted.   Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom ․ no reasonable fact finder would find the petitioner guilty of the crime.”  (Internal quotation marks omitted.)   Sargent v. Commissioner of Correction, 121 Conn.App. 725, 734, 997 A.2d 609, cert. denied, 298 Conn. 903, 3 A.3d 71 (2010).   In addition, under binding Appellate Court case law, “[a] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered ․ This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence.”  (Internal quotation marks omitted.)  Id. at 734–35.

The petitioner offers two pieces of newly discovered evidence.   Both are recantations.   The first is an additional recantation from Shaquan Pallet.   In this version, Pallet was detained in a New Haven jail cell with Eaker Stancil in May or June 1999, when Pallet apparently saw either Horn or the petitioner.   Pallet became scared and nervous.   Soon thereafter he informed Stancil that, although he told the police that he saw Horn and the petitioner at the deli at the time of the crime, his statement to the police was not true.   He added that he lied to “dig himself out of hole” because he himself was arrested for other robberies in March 1999.18

The court places little weight on this recantation.   As mentioned, the law views such recantations with skepticism.   See Channer v. State, supra, 54 Conn.App. 629.   Such skepticism is particularly appropriate in this instance.   Pallet's May or June recantation consisted of an out-of-court statement not made under oath to another prisoner when Pallet was apparently prompted by concern for his own safety or motivated by his own case.19  The respondent did not have an opportunity to cross-examine Pallet and the court did not have an opportunity to see him.   In April 2000, after this recantation (and after his second recantation in September 1999), Pallet testified in court under oath and subject to cross-examination that he was “absolutely certain” that he saw the petitioner, Horn, and a third person whom he did not recognize outside the deli at approximately 3:30 a.m. on January 24.   Thus, Pallet recanted his recantation.   The court rejects it as well.

The second recantation came from Marcus Pearson.   Pearson testified at the habeas trial that Horn did not provide him a cell phone, nor did he use a cell phone, to call Crystal Sykes on January 25 at 11:07 a.m. He added that he lied at the criminal trial out of fear, particularly that, if he did not cooperate, the state would violate his probation for sale of controlled substances, take custody of his children, or implicate him in the Dixwell Deli murder.

While Pearson at times seemed like a credible witness, the respondent cast doubt on his recantation.   It suggested a motive for the recantation in that Pearson was friends with Horn. The respondent also showed that Pearson exaggerated the threats that the probation office had supposedly made toward him.   Pearson is now incarcerated as a result of three recent convictions for felony controlled substance offenses and three violations of probation.

The question of whether Pearson made the 11:07 phone call to Sykes with Vernon Butler's stolen phone remains shrouded in doubt.   All the witnesses were involved in drug dealings.   The evidence clearly establishes that Pearson did call Crystal Sykes on that day concerning a marijuana purchase, but Sykes was not sufficiently certain that the call came at 11:07.   Pearson, of course, now denies making the call at that time with a cell phone.

The petitioner produced evidence that Willie Sadler may have called Willie Newkirk at the apartment of Crystal Sykes with Steven Brown's cell phone sometime after the murder.   If this evidence were true, it would provide an alternative and, to the petitioner, innocent explanation for the call.   However, the evidence consisted of out-of-court statements, some of which were double hearsay.20  Further, the out-of-court statements revealed that Newkirk received the call from Sadler while staying with Sykes at her apartment in New Haven, while the evidence clearly establishes that the cell phone call went to a residence in West Haven where Sykes served as a live-in health care aid.

Ultimately, even if the court were to discredit the state's theory that Horn was in possession of the stolen cell phone, it could not conclude that the petitioner is actually innocent.   In particular, the petitioner has not met the first part of the actual innocence test, which is to “establish by clear and convincing evidence that, taking into account all of the evidence—both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial—he is actually innocent of the crime of which he stands convicted.”  (Internal quotation marks omitted.)  Sargent v. Commissioner of Correction, supra, 121 Conn.App. 734.   It is true that there was no physical evidence directly linking the petitioner to the crime, especially when one discounts Pearson's original testimony about the phone call.   The state instead premised its case on identification evidence.   Although very little of that evidence is indisputable, most of that evidence is at least incriminating.   Steven Brown, while very vague on details twelve years after the crime, remains resolute that he committed the crime with the petitioner and Horn. Shaquan Pallet recanted twice while in jail before his testimony, but in his actual testimony under oath he was absolutely certain that he saw the petitioner, Horn, and an unidentified third person outside the deli at the time of the crime.   Kendall Thompson, a customer who walked into the deli at the time of the robbery, made an out-of-court identification of the petitioner and Horn as the two gunmen whom he saw, though he backed off that identification at trial.  State v. Jackson, supra, 73 Conn.App. 360–65.   Regina Wolfinger, another inmate who had been using drugs that night, identified a photo of Horn with 75% certainty as the person whom she saw standing outside the deli and then leaving just after the robbery.  (Exhibit 29, pp. 117–34.)   Vernon Butler, an employee and a victim, testified that Horn knew about the backroom of the store from prior visits there.  (Exhibit 26, pp. 67–68.)   The petitioner himself admitted to the police that he had been at the deli around 3:30 a.m. that night.

Thus, while few things were clear and convincing in this complicated case, there remains a significant amount of evidence pointing to the petitioner's guilt.   While the state's case was not overwhelming, it was clearly sufficient.   While Pearson has now recanted, he was far from the sole witness against the petitioner.

Moreover, although it is not necessary for the petitioner to prove who committed the crime, it is still relevant that the proof against the third parties whom he suggests did do so is very thin.   There is no physical evidence linking Sadler, Newkirk, or Macklin to the crime scene.   No one has identified them as being there at the time of the crime.   They have never admitted involvement.   Thus, the court simply cannot conclude the evidence clearly and convincingly establishes the petitioner's innocence.

With Pearson's recantation and the other evidence presented by the petitioner, the court can only go so far as to say that it has a reasonable doubt about the petitioner's guilt.   But that finding falls short of holding that the petitioner has proven his innocence by clear and convincing evidence.   Nor can the court conclude that the petitioner has proven the second prong of the test that “no reasonable fact finder would find the petitioner guilty of the crime.”  Id. The jury that convicted the petitioner heard many of the same arguments made in the current petition:  the petitioner's alibi, the possibility of third-party involvement, and the inconsistencies in the explanation of the calls from the stolen cell phone.   That jury rejected those arguments, and the court cannot say that it acted unreasonably in doing so.   Even with Pearson's recantation, there was sufficient identification evidence, as discussed above, to justify a different fact-finder's conclusion that the state had proven guilt beyond a reasonable doubt.   Therefore, the court ultimately rejects the petitioner's claim of actual innocence.

IV

The petition for a writ of habeas corpus is denied.   Judgment shall enter for the respondent.   Petitioner shall submit a judgment file within thirty days of the date of this decision.

It is so ordered.

Carl J. Schuman Judge, Superior Court

FOOTNOTES

1.  FN1. Pallet did not testify at the habeas trial.   All references are to his testimony in the criminal trial.

2.  FN2. The Appellate Court upheld the trial court's decision to admit these identifications.  State v. Jackson, supra, 73 Conn.App. 376–79.

3.  FN3. Throughout this discussion, the court will refer to the letter of recantation as the “letter,” and the note slipped under Pallet's door as the “note.”

4.  FN4. On appeal, Horn argued that the court should have declared a mistrial sua sponte because the jury heard evidence of “possible witness tampering.”   The Appellate Court rejected the claim, observing that Horn failed to object at the time and that there was no reason to believe that the jury could not follow the court's curative instruction.  State v. Jackson, supra, 73 Conn.App. 383–86.

5.  FN5. The petitioner, however, relegates the matter to a footnote in his petition.   See Amended Petition, pp. 13–14 n.12. The petitioner's pretrial brief discusses the incident, but suggests only that counsel should have investigated Pallet's statements further and that, despite the court's curative instruction, the jury might still have inferred that the petitioner had tampered with a witness.   Petitioner's Brief, pp. 42–45.   Because, however, both sides had ample opportunity at the habeas trial and in their post-trial briefs to address the question of whether Moscowitz should have objected to the admission of the letter of recantation, the court reviews the matter fully on the merits.As mentioned, the Appellate Court rejected the petitioner's claim that the curative instruction was not sufficient to address the situation.  State v. Jackson, supra, 73 Conn.App. 383–86.

6.  FN6. Thus, the petitioner misstates the facts in his petition when he alleges:  “Pallet forwarded a note in his own distinct handwriting to the Petitioner while they were incarcerated together on September 24, 1999 in which Pallet acknowledged that his statements to the police were a lie.”   (Emphasis added.)  (Amended Petition, pp. 13–14 n.12.)

7.  FN7. In addition, Ahearn called Zanetta Berryman and Moscowitz also conducted direct examination of her.   During these direct examinations, Berryman testified that, around 2 a.m. on January 24, she left a party on South Genesee Street and entered a car with Horn and the petitioner.   They drove to the deli, where Horn and the petitioner exited the car for a few minutes, and then drove to a West Ivy Street residence.   Berryman and Horn entered the residence, where Berryman used the bathroom for a number of minutes.   When she reemerged, the car with the petitioner was gone.   Berryman and Horn then walked the short distance back to the deli, where they learned that the crime had occurred.   At no point, according to Berryman, did she see any masks, guns, or any criminal activity.   Nor did she see or recognize Steven Brown.  (Exhibit 33, pp. 152–96.)   On cross-examination by the state, Berryman could not state what time she arrived at West Ivy Street, other than sometime after 2 a.m., or account for the activities of Horn while she was in the bathroom.  (Exhibit 33, pp. 210, 214.)

8.  FN8. Moscowitz also called Vincent Knapczyk to state that, as manager of the White Eagle Club in Bridgeport and president of the Polish National Alliance, he knew that there were no African–Americans such as Steven Brown, the petitioner, and Horn at the club on the night of January 23.

9.  FN9. The court admitted these statements under the residual exception to the hearsay rule, but indicated that the respondent's objections, notably that it had no opportunity to cross-examine the declarants, might affect the weight that the statements would receive.

10.  FN10. The court admitted the criminal records at the habeas trial under the rule in State v. Hedge, 297 Conn. 621, 629–54, 1 A.3d 1051 (2010).

11.  FN11. The petitioner introduced a prior inconsistent statement of Sykes in which she stated that she was living with Newkirk at her apartment on Liberty Street in New Haven.   The statement did not come in for the truth.   Further, the statement shows only that Newkirk might have been living with Sykes in New Haven, and not at the West Haven home which, according to the undisputed testimony, was the location to which the 11:07 phone call went.

12.  FN12. Sykes–Newkirk testified that someone contacted her prior to the criminal trial, presumably about testifying, but she could not remember who it was.

13.  FN13. Although Jenkins denied smoking any marijuana at Pearson's house, Pearson testified at the habeas trial to the contrary.

14.  FN14. Sykes–Newkirk testified that she actually was working in West Haven at the time.   Presumably the designation of New Haven in the phone records includes the town of West Haven.

15.  FN15. The petitioner argues in his brief that, had he not testified, the state could not have used his statements to Detective Adger, such as his admission that he arrived at the deli at 3:30 a.m., to impeach him.   This argument misconceives counsel's role.   As stated, the decision whether to testify is a personal one for the defendant to make, not counsel.   See State v. Gore, supra.   Had counsel prevented the petitioner from testifying against the petitioner's wishes, then a valid basis for an ineffective assistance would exist.   Moreover, the state could have admitted the petitioner s statements to the police during its case-in-chief as admissions.   Although it is not clear why the state waited until rebuttal to introduce these statements, it is clear that the petitioner's decision to testify did not affect their admissibility.

16.  FN16. The court has reviewed the other allegations of ineffective assistance in the petition and finds no merit to them.   For example, Moscowitz made and renewed his motion for severance about five times, prompting the court to say:  “You have been very vociferous in pressing your claim in argument.   I understand the general nature of your claim.”   (Exhibit 27, p. 165.)   On appeal, the Appellate Court rejected Horn's claim that the trial court erred in denying his motion to sever.  State v. Jackson, supra, 73 Conn.App. 365–72.

17.  FN17. Counts two and three of the amended petition appear to allege trial court error and constitutional violations aside from ineffective assistance of counsel and actual innocence.   The return makes a broad claim of procedural default and the reply suggests that there was cause and prejudice, but does not specifically mention that phrase.   The petitioner did not brief these claims.   On this incomplete state of the record, the court considers these claims abandoned.

18.  FN18. The court admitted the recantation as an excited utterance over the respondent's hearsay objection.   The respondent did not, however, challenge the notion that the recantation was newly discovered evidence.   This forbearance was correct because Stancil did not come forward with information about Pallet's recantation until the petitioner's investigator interviewed Stancil in 2007.

19.  FN19. Pallet's September 1999 recantation, discussed above, was also apparently prompted by concerns for his own security.

20.  FN20. The court admitted the testimony of defense investigator Gerald O'Donnell as to what various witnesses had told him under the residual exception to the hearsay rule because O'Donnell was a former police officer and inspector who made a written report of his conversations and because some of the witnesses had proven difficult to subpoena.

Schuman, Carl J., J.

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