188339 v. Warden, State Prison (2010)

MEMORANDUM OF DECISION

The petitioner, Anthony Carter, filed a petition for a writ of habeas corpus on October 11, 2007, challenging the legality of his detention.   On May 20, 2002, after trial by jury, he was found guilty in the judicial district of Hartford, under Docket No. CR01-553550, of assault in the first degree in violation of General Statutes § 53a-59(a)(5), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-59(a)(5), risk of injury to a minor in violation of § 53-21(a)(1) and criminal possession of a firearm in violation of General Statutes § 53a-217(a)(1).   On August 22, 2002, the court, (Mulcahy, J.), sentenced the petitioner to a term of twenty-seven years of imprisonment.   The petitioner was represented at trial by attorney Gerald Klein.   The petitioner unsuccessfully appealed his convictions.   See State v. Carter, 84 Conn.App. 263, 853 A.2d 565, cert. denied, 271 Conn. 932, 859 A.2d 931 (2004), cert. denied, 544 U.S. 1066, 125 S.Ct. 2529, 161 L.Ed.2d 1120 (2005).

The petitioner has previously filed two other petitions for a writ of habeas corpus.   The first petition was denied after a trial on the merits.   See Carter v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 04 4000182 (May 6, 2006, Fuger, J.).   The petitioner appealed the denial unsuccessfully to the Appellate Court.   See Carter v. Commissioner of Correction, 106 Conn.App. 464, 942 A.2d 494, cert. denied, 288 Conn. 906, 953 A.2d 651 (2008).   The second petition was dismissed as successive.   See Carter v. Warden, Docket No. CV 07 4001608.   The petitioner appealed the dismissal but the Appellate Court dismissed his appeal because the record was inadequate for review.  Carter v. Commissioner of Correction, 109 Conn.App. 300, 950 A.2d 619 (2008).

In October 2007, the petitioner initiated the present habeas corpus petition.   He amended his petition on December 17, 2007 and again on March 9, 2009 with permission from the court.   The parties appeared to present evidence on October 27, 2008, November 4, 2008, January 27, 2009 and March 9, 2009.   The petitioner tried his case pro se.   Testimony was taken from the petitioner, his former trial attorney, Gerald Klein, Detective Ursula Weibush and Cheryl Lewis, an assistant clerk in Hartford.   Transcripts, photos and other exhibits from the underlying trial and previous habeas trial were also admitted as exhibits in this case.

FINDINGS OF FACT

On direct appeal, the Appellate Court described the circumstances in which the petitioner was originally charged and convicted as follows:

“This case arises from the terrible consequences of a drug turf war.   During a Fourth of July block party in the area of Enfield and Garden Streets in Hartford, a seven year old girl was struck by a stray bullet that caused serious injuries.”  State v. Carter, supra, 84 Conn.App. 265.

The court then stated that the jury could reasonably have found the following facts:  “In the early part of July 2001, the defendant and Maurice Miller became involved in a dispute over the sale of marijuana in a particular area of Hartford.   On July 1, 2001, the defendant telephoned Miller and told him that he could either engage the defendant in a fair fistfight or the defendant would shoot him on sight.   In response, Miller armed himself with a Glock handgun.

“On the evening of July 4, 2001, Miller and another man called ‘Shorty’ were standing by the side of a building in or near an alleyway on Enfield Street.   The defendant arrived in a rented red Chevrolet Blazer (Blazer), exited the vehicle and then chased Miller along the alleyway while shooting at him.   Miller saw a handgun in the defendant's hand and noticed the muzzle flash.   A bullet fired from the defendant's gun struck and injured the victim, who was standing about one block away near a vehicle listening to music.   After the defendant stopped shooting, Miller turned around and began chasing him.   Miller fired his weapon repeatedly at the defendant until the defendant reentered the red Blazer.   Miller fired the weapon again as the defendant drove away in the red Blazer.

“The police arrived on the scene shortly after 6:45 p.m. They discovered eight .45 caliber shell casings.   Forensic analysis led to the conclusion that all eight had been fired from the same handgun.   The officers also discovered five nine millimeter Luger shell casings and one nine millimeter Luger metal jacket bullet.   Later forensic analysis established that all of the nine millimeter casings had been fired from the same handgun.

“On July 5, 2001, the defendant informed the Manchester police about a hole in his rented Blazer.   Though a forensic examination, the hole was identified as a bullet hole.   The defendant did not inform the police officer of the gunfight but implied that the damage might have been caused by fireworks.

“While incarcerated in September 2001, the defendant told William Brunson, his cell mate, about his dispute with Miller and the events of July 4, 2001.   He also admitted that a bullet fired from his gun struck the victim.”  Id., 266-67.

The transcript from the criminal trial in 2002 evidences testimony from Miller, also known as “Mo Cheddar,” regarding the foregoing.   Other witnesses during the criminal trial corroborated Miller's version of the events of this day.   Shirley Harris, a resident of Enfield Street, testified that she was sitting on her front porch at about 6:30 p.m. on July 4, 2001 when she observed an individual, whom she knew as “Shorty,” and Mo Cheddar standing nearby.   (Exhibit A, pp. 48-50.)   Harris said she heard a noise, looked over and saw a gun and then immediately called 911.   She described the sounds as gunshots coming from two different guns.   Harris testified that shortly thereafter she saw Mo Cheddar lifting his clothes as if to see if he had been shot.  (Exhibit A, pp. 50-52.)   Another individual, Darren Mack, who had been in the area at the time of the incident, testified he observed a man pull up in a “truck,” run up the alleyway and begin shooting.   Thereafter, the man ran out of the alleyway and jumped into his car, while whomever the man was shooting at was returning gunfire.  (Exhibit A, pp. 61-66.)

On rebuttal, another witness, Maurice Benfield, testified he was sitting near the alleyway on Enfield Street with Mack and Shorty when he saw Mo Cheddar approaching.  (Exhibit B, pp. 4-6.)   He then saw the petitioner, whom he knew as “Poopala,” come by in a burgundy Blazer, jump out and start shooting.   Benfield testified he saw Mo Cheddar run towards Garden Street while the petitioner was shooting at him.   He then saw the petitioner run back to his truck and jump into it.   While the petitioner was driving away, he was fired upon by Mo Cheddar.  (Exhibit B, pp. 6-11.)   The petitioner's former cellmate, William Brunson, also testified at the criminal trial.   He testified that the petitioner had admitted to him that he had shot a victim (minor T.G.) and had described the circumstances leading up to the gun battle.  (Exhibit A, pp. 3-46.)

At the criminal trial, an employee from Alamo National Rental Car also testified;  she testified that the petitioner rented a Chevy Blazer on July 3, 2001 and then returned the car on July 5, 2001 without reporting that the car had a bullet hole in it.  (Exhibit A, pp. 16-21.)   Lastly, a ballistics expert, Edward Jachimowicz, testified that two different types of shell casings, .45 caliber and 9 mm, were recovered from the scene of the shooting.  (Exhibit A, pp. 30, 34-35.)

DISCUSSION

The petitioner makes a number of claims in his amended petition filed on March 9, 2009.   In counts one, two and four, the petitioner alleges the prosecution withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1193, 10 L.Ed.2d 215 (1963), the fourteenth amendment to the United States constitution and article first, § 8 of the Connecticut constitution.   Indeed, counts one, two and four all allege a Brady violation premised upon the claimed nondisclosure of a nine-page report written by an investigating officer, Detective Edwin Soto. Count three alleges that Soto testified falsely at trial.   Central to all of these claims is the fact that Soto, in the nine-page report, identified an item depicted in police photo # 20 and tagged as evidence, “E-9,” as a .45 caliber shell casing.   Other more weighty evidence, including that from the ballistics expert, indicates that “E-9” was actually a 9 mm shell casing.   The petitioner seeks to construct a conspiracy/perjury/misconduct theory of constitutional significance on what this court views to be a typographical or scrivener's error.   Simply put, there is overwhelming evidence of the petitioner's guilt in the midst of which the petitioner has failed to establish that there is a reasonable probability that the evidence allegedly withheld would have changed the outcome of the proceeding.   In count five, the petitioner alleges that the prosecution used false evidence to obtain his conviction.   For the reasons set forth more fully below, the petition is denied.

In counts one and four of his amended petition, the petitioner alleges the state withheld exculpatory evidence in violation of Brady v. Maryland, supra, 373 U.S. 83.   Specifically, he contends that the state withheld a nine-page report prepared by Soto in which he misidentifies an item of evidence marked “E-9” as a .45 caliber shell casing.  “To establish a Brady violation, the defendant must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the defendant, and (3) it was material [either to guilt or to punishment].”  State v. Pink, 274 Conn. 241, 253, 875 A.2d 447 (2005).  “[E]vidence is favorable if it is either exculpatory or impeaching.”  Morant v. Commissioner of Correction, 117 Conn.App. 279, 285, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009).  “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  (Internal quotation marks omitted.)  State v. Floyd, 253 Conn. 700, 744, 756 A.2d 799 (2000);  see also Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

In this instance, it is not disputed that the victim was wounded as a consequence of the petitioner's attempt to shoot at Miller (“Mo Cheddar”).   Both Miller and the petitioner exchanged gunfire.   Two sets of bullet shells were recovered from the scene:  eight .45 caliber shell casings, all of which “were fired from the same handgun,” and five 9 mm Luger shell casings, all of which were “fired from the same handgun ․” State v. Carter, supra, 84 Conn.App. 267.   The shell casing designated # 9 or “E-9” clearly was a 9 mm shell casing.   Soto testified, at the criminal trial, that the shell casing was stamped “9 millimeter Luger.”  (Exhibit A, p. 102.)   Additionally, the shell casing, itself, was admitted as State's Exhibit 22 at the criminal trial.   (Exhibit A, p. 107.)   The shell casing was also a full exhibit in this habeas trial.  (Exhibit D.) A visual exam indicates that the shell casing, indeed, is stamped “9 mm Luger” and “WIN.” Furthermore, a firearms expert, Jachimowicz, testified at the criminal trial that “E-9” was a “Winchester fired cartridge case, caliber 9 millimeter Luger.”  (Exhibit A, p. 31.)

Assuming arguendo that the nine-page police report was withheld, its value is insignificant and hardly can be said to be “material.”   Doubtless, trial counsel may have had a momentary diversion on this shell misidentification issue;  however, viewed in the totality of all the evidence on this issue, Soto's mislabeling is picayune at best.   The petitioner does not prevail in his attempt to bootstrap this obvious nonsubstantive mistake into a claim of knowing perjury or misconduct of a constitutional dimension.   The jury would not likely be influenced by an argument the basis of which is one can infer from this scrivener's error that Soto lied about the evidence gathered and its relationship to the petitioner.   For these reasons, counts one and four fail.

The petitioner alleges in count two of his amended petition that the prosecutor withheld two reports, which he describes as “exculpatory.”   One report is the nine-page report discussed supra;  the other report is a two-page report prepared by Soto that the petitioner alleges puts a diagram prepared by Perez into its proper context.  (Exhibits 6 and F.) Specifically, the petitioner alleges that the two-page report excludes him as the shooter, as it states that the diagram depicts the distance “from where the victim was standing to where the shot was fired.”  (Exhibit 6.) The diagram measures the distance from where blood from the victim was found to where a .45 caliber shell casing, labeled “E-8,” was recovered.  (Exhibit F.) At the criminal trial, the prosecution argued that the location of the shell casings was consistent with Miller having a .45 caliber handgun and the petitioner using a 9 mm handgun.  (Exhibit B, p. 66.)   Moreover, although Miller denied knowing the caliber of the gun that he used that day, at the criminal trial, he admitted that he did not correct the prosecutor at his plea hearing when he said that he was armed with a .45 caliber weapon.  (Exhibit B, pp. 31-32.)   Based on the foregoing, the petitioner argues that the report inculpates Miller and exculpates him as the shooter.

At the criminal trial, Perez testified that the diagram, admitted into evidence as Defendant's B, contained measurements taken July 5, 2001.  (Exhibit A, p. 87.)   Neither Perez nor Soto could determine the point from which the bullet was fired.   Rather, according to Perez, in selecting the location where the shell casing identified as “E-8” was found, Soto determined “E-8” represented a point where the shot “may have come from.”  (Exhibit A, p. 89.)   At that time, seven .45 caliber shell casings and one 9 mm shell casing had been found.  (Exhibit A, pp. 97-103.)   As brought out on cross examination of Perez, “E-8” was the only shell casing thus found that was not directly in line with the building on the corner of Enfield Street.  (Exhibit A, p. 89.)   Twelve days later, on July 18, 2001, Soto and a number of police recruits returned to the scene, located and documented four additional 9 mm shell casings.  (Exhibit A, pp. 127-31.)   Hence, the diagram was prepared before the additional shell casings were found.

Petitioner's counsel was in possession of the diagram at the criminal trial and offered it into evidence.   In doing so, Klein cross examined Perez about its contents.   Moreover, Klein used the diagram during closing arguments to argue that there were discrepancies in the police conclusions of how T.G. was injured.  (Exhibit B, p. 58.)

There is simply no Brady violation under these circumstances.   Here, it is clear the police refined their theory of the location of the shot's origins after they obtained the additional shell casings found in another location on July 18, 2001.   Not having or using any report was of no consequence when the petitioner, through counsel, was able to fully cross examine both Perez and Soto about the diagram and the police theory of how the shooting occurred.   The defense was not hindered in its ability to rebut the police version of how the shooting occurred.   In other words, the petitioner has failed to establish that there is a reasonable probability that had the two-page report been disclosed the result of the proceeding would have been different.   Accordingly, count two fails.

Count three alleges that the prosecution knowingly used perjured testimony from Soto. This claim has no merit.  “The Supreme Court [of the United States] analyzes claims for wrongful conviction based on perjured testimony under the Due Process Clause of the Fourteenth Amendment ․ Under this standard, the Court has said that the conviction must be set aside if (1) the prosecution knew, or should have known, of the perjury, and (2) there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.”  (Citation omitted;  internal quotation marks omitted.)  Drake v. Portuondo, 321 F.3d 338, 345 (2d Cir.2003).   For reasons already discussed, much, if not all, of the petitioner's perjury claim is premised upon the notion that Soto created and then perpetuated a knowing falsity when he incorrectly documented a shell casing to be from a .45 caliber weapon rather than a 9 mm weapon.   Simply put, this court is convinced the mis-notation was, indeed, a scrivener's error.   There is no perjury.   The petitioner claims the prosecuting attorney knew or should have known that Soto's testimony was false or misleading.   There has been no showing that the prosecution was aware or should have been aware of a substantive falsehood sought to be advanced by Soto or any other witness.   A scrivener's error does not a falsehood make.   The third count has not merit.

In count five, to the extent the petitioner argues the prosecution knowingly elicited false testimony from William Brunson and this, too, should be a basis for granting habeas relief, the claim is unproven.   The petitioner contends that the prosecution's use of a diagram drawn by Brunson misled the jury to infer that the petitioner had told Brunson that he used a 9 mm handgun.   There is no evidence in the record from which one can reasonably infer that the petitioner told Brunson he used a 9 mm handgun on July 4, 2001.   At the criminal trial, Brunson revealed the essence of inculpatory admissions made by the petitioner while he and Brunson were cellmates.  (Exhibit A, pp. 3-18.)   Brunson testified the petitioner admitted using a gun in a shootout with “Mo Cheddar” and that he regretted that a young girl was shot.  (Exhibit A, pp. 3-9.)   Brunson also testified to making a diagram based upon a diagram made by the petitioner.   No mention was made of the caliber of weapon or gun used by the petitioner.  (Exhibit A, pp. 3-9.)   The prosecution never argued that the petitioner told Brunson that he used a 9 mm handgun.  (Exhibit B, pp. 30-32, 67-68.)   In short, the petitioner has failed to establish the prosecution elicited false and misleading evidence.   Count five has no merit.

CONCLUSION

The petition for a writ of habeas corpus is denied.   Judgment may enter in favor of the respondent.   The clerk is directed to advise the petitioner of his right to appeal.   Should the petitioner wish to appeal, the petitioner shall submit a judgment file to the clerk within thirty days.

BY THE COURT,

Nazzaro, J.

Nazzaro, John J., J.