Andre Johnson v. State of Connecticut (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

The plaintiff, Andre Johnson, pursuant to Connecticut Practice Book § 17-44 et seq., moved for summary judgment on June 19, 2009.   On October 20, 2009, the State objected to this motion.   On March 29, 2010 the court heard the argument of the parties.   After reviewing the factual allegations and the relevant case law, the court denies the plaintiff's motion for summary judgment.

The plaintiff claims two grounds for summary judgment.   First, he argues that New Haven Police Detective Clarence Willoughby is a corrupt officer and that his testimony should not be credited.   The plaintiff claims that if the court were to make such a finding, he would be entitled to a new trial by way of summary judgment.   The plaintiff's second claim is that the State had previously entered a nolle prosequi on the docket number which he was tried before a jury, convicted, and sentenced by the court (Thompson, J.).   The plaintiff argues that as a result of the State's action, no valid conviction or sentencing exists in his case as a matter of law.   The court finds neither of the plaintiff's grounds persuasive.

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  Wilson v. New Haven, 213 Conn. 277, 279 (1989).

In his first claim, the plaintiff requests that the court find no genuine issue of material fact as it relates to the allegations of corruptness and bias of Detective Willoughby.   The State argues that this is a conclusory opinion of the plaintiff and one that the State disputes.  “[S]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions.”  Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111 (1994).

The court finds that while the plaintiff clearly holds the subjective belief that Detective Willoughby is not a credible witness for a variety of reasons, none of those reasons compel the granting of the motion for summary judgment.   Practice Book Section 17-46 sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding.   The material must:  “(1) be based on personal knowledge;  (2) constitute facts that would be admissible at trial;  and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit.”  Barrett v. Danbury Hospital, 232 Conn. 242, 251 (1995).  “It is especially appropriate to hold an affidavit submitted by a moving party to a stringent standard.”  Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 516 (1978).

“Mere assertions of facts ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].”  Zielinski v. Kotsoris, 279 Conn. 312, 319 (2006).  “Such assertions are insufficient regardless of whether they are contained in a complaint or a brief.”  McKinney v. Chapman, 103 Conn.App. 446, 451 (2007).   Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.   The court finds that the plaintiff has failed to meet this requirement in his first claim for summary judgment and therefore cannot prevail on this ground.

As it relates to the plaintiff's second ground for summary judgment, the court finds the following facts to be credible:  The plaintiff was originally arrested on April 26, 1999 in docket number NNH-CR-99 479443 and charged with Assault in the First Degree.   He was subsequently arrested on May 7, 1999 in docket number NNH-CR-99-479 860 and charged with Murder, as a result of the victim dying on May 6, 1999.   Both these docket numbers relate to the same incident:  the April 26, 1999 allegation that the plaintiff shot the victim in his apartment at 273 Sherman Avenue, New Haven in the early morning hours.   The second docket number only reflects the resultant death of the victim, Mr. Vaughn, and is not different in any other way from the first.   Essentially, the dockets were duplicates of each other as both arose out of the April 26, 1999 incident.   At a court hearing on July 8, 1999, before Fasano, J., probable cause was established on the charge of Murder.   According to the transcript, the State entered a nolle prosequi as to docket NNH-CR-99479860 (Transcript of Probable Cause Hearing, July 8, 1999, page 128).   However, subsequent proceedings show that the State filed its long form information on the docket number that it had previously entered the nolle prosequi.

In fact, an entire trial was conducted on this docket number, commencing with voir dire on June 7, 2000, the start of evidence on June 27, 2000 and concluding on July 10, 2000, with a verdict of guilty on the lesser included offense of Manslaughter in the First Degree with a Firearm.   Neither the plaintiff nor his attorney objected to the trial proceeding on this docket number.   Clearly, the trial had commenced within the thirteen-month period which would permit the State to reopen the case pursuant to Connecticut General Statutes § 54-142a had the plaintiff or his attorney made such a request.

More importantly in going forward on this docket number, the State did not violate double jeopardy, as the plaintiff claims, because the State never attempted to try the allegations from the incident twice or sentence the plaintiff twice based upon the same circumstances.   The trial proceeding on one docket number as opposed to the second docket number was merely a ministerial act which did not affect any substantive rights of the plaintiff.   The claim by the plaintiff that a technical or scrivener's error in the court's docketing mandates this court to vacate his conviction and sentencing and dismiss the case, pursuant to the erasure statute associated with the entry of a nolle prosequi, is not persuasive.

In analogous situations, courts have routinely found that what is essentially a “scrivener's error” does not require the imposition of draconian actions by the court, such as the suppression of evidence or the dismissal of charges.   For example, not every discrepancy in an affidavit supporting a search warrant is fatal.  “[R]eference to a year other than the current year will not invalidate the warrant if the circumstances fairly indicate that the intended reference was to the current year.”   2 W. LaFave, Search and Seizure (3d Ed.1996) § 3.7(b), p. 362.   Other jurisdictions have held that a common sense reading of the affidavit justified the conclusion that a misstated date was mere scrivener's error.   See State v. White, 368 So.2d 1000, 1001 (La.1979);  State v. Marquardt, 43 Or.App. 515, 517, 603 P.2d 1198 (1979);  Green v. State, 799 S.W.2d 756, 759 (Tex.Crim.App.1990).

In those cases, the courts have rejected a hyper-technical application of the “four corners” rule that governs the judicial review of the adequacy of search warrant affidavits.   The findings of the courts indicated that a common sense application was appropriate when reviewing this type of error.  “The purpose of the affidavit ․ is to enable the issuing authority to weigh the persuasiveness of the facts relied upon by the affiant or complainant, and, from them, to determine whether the necessary probable cause exists for the issuance of the warrant.”  State v. Colon, 230 Conn. 24, 34 (1994).

“[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ․ [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815 (2003).  “[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556 (2002).

“A genuine issue has been variously described as a triable, substantial or real issue of fact ․ and has been defined as one which can be maintained by substantial evidence.”  United Oil Co. v. Urban Development Commission, 158 Conn. 364, 378 (1969).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500 (1988).

The court finds that the plaintiff has not met his burden of proof in establishing his basis for summary judgment on either of his claimed grounds.   For all the foregoing reasons, the plaintiff's Motion for Summary Judgment is denied.

By the Court:

Alexander, J.

Alexander, Joan K., J.