John Ingram v. State of Connecticut (2013)

MEMORANDUM OF DECISION RE RESPONDENT'S MOTION FOR SUMMARY JUDGMENT

The petitioner, John Ingram, filed a petition for a new trial, pursuant to General Statutes § 52–270 and Practice Book § 42–55, in which he raises three claims:  (1) he should be granted a new trial based on newly discovered evidence;  (2) the State failed to disclose exculpatory evidence;  and (3) the State allowed false testimony, which affected the judgment of the jury.   The State asserts that all three of the petitioner's claims are barred under the doctrine of res judicata.   After consideration of the parties' arguments and all the evidence, and for the reasons set forth below, this court finds that res judicata forecloses all of the petitioner's claims in the revised amended petition for a new trial.

FACTS

The petitioner was a defendant in a criminal case in the judicial district of Hartford, Docket No. CR07–212536.   On April 23, 2009, the petitioner was convicted by a jury of robbery in the first degree in violation of General Statutes § 53a–134(a)(3).   The court, Miano, J., sentenced the petitioner to a total effective sentence of twenty years incarceration.   The Connecticut Appellate court affirmed the judgment in State v. Ingram, 132 Conn.App. 385 (2011), cert. denied, 303 Conn. 932 (2012).

The specific facts underlying the petitioner's conviction are set forth in the Appellate Court's opinion.  Id., 388–90.   The following facts are relevant to the present proceeding.   While on patrol, East Hartford police officer James O'Connor heard a radio transmission describing the perpetrator of a recent robbery.   Officer O'Connor noticed a man matching that description walking through a parking lot, asked him to stop and chased after him when he fled.   The man ultimately climbed over a fence and ran into a wooded area.   Officer O'Connor chose not to follow the man at that point because East Hartford police officer Todd Mona and his canine Primo were responding to the scene.   Primo was sent over the fence to track the man.   Officer Mona was confident upon Primo's return that the man had been located and bitten.   Shortly thereafter, another officer arrested the defendant, who appeared physically drained and had puncture wounds on his ankle that looked like a dog bite.

At the time of the criminal trial, the defense had a copy of police report Supplement 1 (Supp.1);  however, the State did not provide the defense with a copy of police report number 2007–00022650, namely Supplement 3 (Supp.3).¹  Officer Mona testified at the criminal trial that he wrote Supp. 3 shortly after the incident occurred, but that Supp. 3 was subsequently lost.   Officer Mona stated that he wrote a new report, Supplement 9 (Supp.9), approximately ten months later.   The petitioner obtained a copy of Supp. 3 in January 2011, approximately twenty months after his conviction.   As it turned out, Supp. 3 was actually written by Officer O'Connor, and not Officer Mona. Officer Mona's trial testimony concerning his authorship of Supp. 3 was therefore incorrect.

II. PROCEDURAL HISTORY

The petitioner filed a petition for a writ of habeas corpus in the judicial district of Tolland (bearing Docket No. CV10–4003732) on August 23, 2010.   Some months later, on February 14, 2011, the petitioner filed the instant petition for a new trial with this court.   The two actions have since been proceeding simultaneously.

The petitioner filed a third amended petition for a writ of habeas corpus dated January 3, 2013.   In said petition, the petitioner argued in claim II that his right to a fair trial and due process were violated by the prosecuting authority's failure to disclose materially favorable evidence (including, but not limited to, Supp. 3), and furthermore argued in claim III that Supp. 3 constituted newly discovered evidence and would have resulted in the acquittal of the petitioner.

Through appointed counsel, the petitioner filed an amended petition for a new trial dated January 29, 2013, as well as a revised amended petition for a new trial dated February 21, 2013.   In these amended petitions, the petitioner again argues the discovery of Supp. 3 constitutes newly discovered evidence and, as such, the petitioner should be granted a new trial (claim I);  that the State suppressed Supp. 3 in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (claim II);  and Officer Mona proffered false testimony which affected the judgment of the jury (claim III).   Notably, also on February 21, 2013, the court (Sferrazza, J.) rendered a decision, following a full evidentiary hearing, denying the petitioner's request for habeas corpus relief.

On April 29, 2013, the respondent filed a motion for summary judgment against the petitioner's request for a new trial arguing that res judicata foreclosed the petitioner in pursuing the current claims due to the habeas court's decision.   On May 17, 2013, the respondent also filed a motion to dismiss raising the same grounds articulated in its motion for summary judgment.   The respondent attached as Appendix A the petitioner's third amended petition for writ of habeas corpus, as well as the decision denying said habeas relief as Appendix B.

Oral argument regarding the motion to dismiss was heard on May 20, 2013, at which time the petitioner submitted Exhibits 1 through 4,² and the respondent submitted both appendices as Exhibits A and B, as well as a transcript of the habeas trial from January 10, 2013, as Exhibit C. All exhibits submitted by the petitioner and respondent were entered by agreement of the parties.   On May 21, 2013, the respondent filed a supplemental memorandum indicating that its initial motion for summary judgment, and not the motion to dismiss, is the more appropriate vehicle by which to address the res judicata claim.³  On June 27, 2013, this court granted the respondent permission to substitute Exhibit C, which was entered during the May 20 motion to dismiss hearing, as an additional Exhibit for the respondent's motion for summary judgment.   The petitioner subsequently filed a motion requesting that an earlier motion for summary judgment filed by the respondent on October 5, 2011, and heard by the court (Bright, J.) on November 11, 2011,⁴ along with a transcript of the hearing arguing said motion,⁵ be submitted as exhibits.   The motion was granted by agreement on July 10, 2013.   The transcript of the November 11 hearing was submitted to this court on September 5, 2013, thereby constituting the close of evidence.⁶

III. DISCUSSION OF LAW

Summary judgment “shall be rendered forthwith if the 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.”  Practice Book § 17–49.  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law ․” (Internal quotation marks omitted.)  SS–II, LLC v. Bridge Street Associates, 293 Conn. 287, 293–94, 977 A.2d 189 (2009).

“The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue ․ The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist ․ To oppose a motion for summary judgment successfully, the non-movant must recite specific facts ․ which contradict those stated in the movant's affidavits and documents ․ The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue ․ The existence of the genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence.”  (Internal quotation marks omitted.)  Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 464–65, 976 A.2d 23 (2009).  “Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202–03, 663 A.2d 1001 (1995).

“Summary judgment is appropriate to determine whether a claim is barred by the doctrine of res judicata ․” (Citations omitted.)  Santorso v. Bristol Hosp., 127 Conn.App. 606, 614, 15 A.3d 1131 (2011), aff'd on other grounds, 308 Conn. 338, 63 A.3d 940 (2013).  “Under the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim.   A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose ․ The doctrine of res judicata [applies] ․ as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction ․ The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.”  (Internal quotation marks omitted.)  Mulero v. Board of Education, 142 Conn.App. 808, 810, 66 A.3d 929 (2013) (per curiam).

“To determine whether two claims are the same for purposes of res judicata, [the court] compare[s] the pleadings and judgment in the first action with the complaint in the subsequent action ․ The judicial [doctrine] of res judicata ․ [is] based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate ․ [W]here a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding.”  (Citation omitted;  internal quotation marks omitted.)  Thorpe v. Commissioner of Correction, 73 Conn.App. 773, 777, 809 A.2d 1126 (2002).

“[l]n criminal proceedings the interest in achieving finality underlying the doctrine of res judicata must be balanced against the interest in assuring that no individual is deprived of his liberty in violation of his constitutional rights ․” (Citations omitted;  internal quotation marks omitted.)   Asherman v. State, 202 Conn. 429, 443, 521 A.2d 578 (1987).

a. Newly Discovered Evidence Claim

In his first claim, the petitioner asserts that he should be granted a new trial based on the discovery of new evidence.  “The standard that governs the granting of a petition for a new trial based on newly discovered evidence is well established.   The petitioner must demonstrate, by a preponderance of the evidence, that:  (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence;  (2) it would be material on a new trial;  (3) it is not merely cumulative;  and (4) it is likely to produce a different result in a new trial ․ In determining the potential impact of new evidence, the trial court must weigh that evidence in conjunction with the evidence presented at the original trial ․” (Internal quotation marks omitted.)  Williams v. Commissioner of Correction, 100 Conn.App. 94, 100–01, 917 A.2d 555, cert. denied, 282 Conn. 914, 924 A.2d 140 (2007).

In the petitioner's current request for a new trial, he argues that Supp. 3 is newly discovered evidence that would be material to a new trial, is not merely cumulative, and is likely to produce a different result in a new trial.⁷  Likewise, in the third amended petition for a writ of habeas corpus, dated January 3, 2013, the petitioner argued in claim three that newly discovered evidence, including the discovery of Supp. 3 and Officer Mona's false testimony regarding Supp. 3, would have resulted in his acquittal.   The petitioner asserted that the prosecuting authority failed to disclose police Supp. 3, which was “missing” prior to and throughout the defendant's criminal trial ⁸ and inconsistent with testimony presented by the State.⁹  The habeas court addressed this issue when testimony was heard regarding Supp. 3, and the contents of Supp. 3 were examined by the court alongside Supp. 1, an earlier report that was available to the defense at the time of the criminal trial.¹⁰

The habeas court in its decision essentially found, by a fair preponderance of the evidence, that Supp. 3 was not newly discovered, and therefore cumulative, in its response to the petitioner's due process and new evidence claims.   It specifically found that “[t]he missing supplement to the police incident report was supplement 3. Since the criminal trial, supplement 3 was discovered to be merely a duplicate of an earlier report.   Any inconsistency in the criminal trial testimony as to the content of supplemental 3 was insignificant.”   Ingram v. Warden, Superior Court, judicial district of Tolland at Somers, Docket No. TSR CV 10 4003732 (Feb. 19, 2013, Sferrazza, J.).   In its analysis of the new evidence claim, the court reiterated that “the petitioner has failed to meet his burden of proving that the prosecution at his criminal trial withheld any evidence favorable to the petitioner.   Supplement 3 provides no evidence beneficial to the petitioner because it was merely a duplicate of another report already known and available to the petitioner at the time of his criminal trial.   Given the mountain of incriminating evidence against the petitioner, the confusion surrounding supplement 3 was inconsequential.”   Id.

As the habeas court's former judgment on the claim of newly discovered evidence pertaining to Supp. 3 was rendered on the merits following a full habeas trial, it is therefore a bar to the current action involving the same claim.   As such, the respondent's motion for summary judgment as it pertains to the petitioner's first claim of newly discovered evidence in his petition for new trial is granted.

b. Brady Claim

In claim two of his petition for a new trial, the petitioner alleges that the State failed to disclose exculpatory material, namely Supp. 3, in violation of Brady v. Maryland, supra, 373 U.S. 83.   Specifically, the petitioner claims that Supp. 3 demonstrates inconsistencies in Officer Mona's testimony, which could have been used as impeachment material and produced a different result at trial.¹¹  In claim two of his third amended petition for a writ of habeas corpus, the petitioner alleged that the State failed to disclose Supp. 3, and that had the evidence been disclosed the petitioner would have been acquitted at trial.¹²

“It is well established that suppression by the prosecution of evidence favorable to an accused ․ violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.  [Id.] ․ To establish a Brady violation the [petitioner] bears the burden of demonstrating:  (1) that the prosecution suppressed evidence;  (2) that the evidence was favorable to the defense;  and (3) that it was material.”  (Internal quotation marks omitted.)  Small v. State, 143 Conn.App. 655, 663, 70 A.3d 180 (2013), quoting Demers v. State, 209 Conn. 143, 149–50, 547 A.2d 28 (1988);  see also Davis v. Commissioner of Correction, 140 Conn.App. 597, 605–06, 59 A.3d 403, cert. denied, 308 Conn. 920, 62 A.3d 1133 (2013).   A petitioner must satisfy all three prongs before he is entitled to relief.  State v. Thompson, 128 Conn.App. 296, 309–10, 17 A.3d 488 (2011), cert. denied, 303 Conn. 928, 36 A.3d 241 (2012).   “Impeachment evidence as well as exculpatory evidence falls within Brady 's definition of evidence favorable to an accused.”  Davis v. Commissioner of Correction, supra, 606.

Although there is a variation of the wording used in the habeas petition and the petition for a new trial—the claim being pleaded more generally in the habeas petition—the substance of the suppression of evidence claims raised in each is the same.   The habeas court found that the petitioner failed to prove the State withheld favorable evidence—a necessary element required for the suppression claim in the habeas petition, as well as for the petition for a new trial.   The habeas court determined that “[s]upplement 3 provides no evidence beneficial to the petitioner because it was merely a duplicate of another report already known and available to the petitioner at the time of his criminal trial.¹³  Given the mountain of incriminating evidence against the petitioner, the confusion surrounding supplement 3 was inconsequential.”   Ingram v. Warden, supra, Superior Court, Docket No. TSR CV10 4003732.

Based on a review of the pleadings and the habeas court's memorandum of decision, this court finds that there was a prior judgment on the merits of the suppression of evidence claim;  therefore, claim two of the petition for a new trial is foreclosed under the doctrine of res judicata.

c. Giglio 14 Claim

In the third claim of the petition for a new trial, the petitioner argues that Officer Mona's testimony concerning Supp. 3 was false, that the State had actual or constructive knowledge of the false testimony, and that there was a reasonable likelihood that Officer Mona's false testimony could have affected the judgment of the jury.   The petitioner specifically claims that Officer Mona falsely testified that he wrote Supp. 3 when in fact Supp. 3 was written by Officer O'Connor ¹⁵ and “[Supp.] 3 is evidence that Officer Mona's testimony about his K–9 locating and biting the petitioner was false.” ¹⁶

“The jury's estimate of the truthfulness and reliability of a ․ witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend.”  (Internal quotation marks omitted.)   Adams v. Commissioner of Correction, 309 Conn 359, 369 (2013).  “[A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury ․ This standard ․ applies whether the state solicited the false testimony or allowed it to go uncorrected ․ This strict standard of materiality is appropriate in such cases not just because they involve prosecutorial misconduct, but more importantly because they involve a corruption of the truth-seeking function of the trial process ․ [B]ecause the state's use of false testimony is fundamentally unfair, prejudice sufficient to satisfy the materiality standard is readily shown ․ such that reversal is virtually automatic ․ unless the state's case is so overwhelming that there is no reasonable likelihood that the false testimony could have affected the judgment of the jury.”  (Citations omitted;  internal quotation marks omitted.)  Id., 371–73.

The petitioner included in his habeas petition both an ineffective assistance of counsel claim and the aforementioned Brady violation.   The petitioner argued that Supp. 3 “would have been used to contradict testimony given by the [S]tate, specifically the testimony of Officer Todd Mona who testified in two hearings under oath that the reason why he wrote supplemental report # 9 one year after the fact is because his report, supplemental report # 3 was lost and he wrote that immediately after the fact, when in reality it appears that Officer O'Conner wrote supplemental report # 3 and it has nothing to do with Mona's activities.” ¹⁷  The petitioner further alleged that the “prosecuting authority also failed to disclose [Supp.] 3, which was ‘missing’ prior to and throughout the defendant's criminal trial.   Officer Todd Mona testified at trial that this particular report was missing.   This report has been found and is inconsistent with testimony adduced at trial by the State of Connecticut.” ¹⁸

In the habeas petition, the petitioner alleged—although in more general terms than what was set forth in the petition for a new trial—that Officer Mona's testimony concerning Supp. 3 was inconsistent with information within the report and that Officer Mona testified falsely as to his authorship of the report.¹⁹  The record demonstrates that the petitioner presented the habeas court with testimony, evidence and exhibits relating to Officer Mona and Supp. 3. Specifically, the habeas court heard evidence regarding the authorship of Supp. 3, along with testimony about how its appearance or absence may or may not have affected trial strategy.²⁰  In its decision, the habeas court found that Supp. 3 provided no benefit to the petitioner because “it was merely a duplicate of another report” that was available to the petitioner at the time of trial;  that “[a]ny inconsistency in the criminal trial testimony as to the content of supplemental 3 was insignificant;” and given the overwhelming evidence against the petitioner “the confusion surrounding supplement 3 was inconsequential.”  Ingram v. Warden, supra, Superior Court, Docket No. TSR CV10 4003732.

The petitioner had the opportunity through his habeas action to address specifically the testimony he believed to be false and how that false testimony may have affected the judgment of the jury.   He does not now get a second chance to do so by deconstructing the due process claim previously asserted in the habeas action and recomposing it as two claims that are more specifically pleaded.  “[T]he doctrine of res judicata provides that [a] judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose ․ The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.”  (Internal quotation marks omitted.)  Weiss v. Weiss, 297 Conn. 446, 463, 998 A.2d 766 (2010);  see also Thorpe v. Commissioner of Correction, supra, 73 Conn.App. 777.   Accordingly, claim three of the petition for a new trial is barred.

IV. CONCLUSION

Based on the foregoing, respondent's motion for summary judgment is granted.

Judge Jason M. Lobo

FOOTNOTES

FN1. Respt.'s Ex. C, Tr. 1/10/13, p. 36..  FN1. Respt.'s Ex. C, Tr. 1/10/13, p. 36.

FN2. Exhibit 1 is a motion of written oral argument in support of petitioner's habeas corpus proceeding, dated 1/31/13;  Exhibit 2 is a partial transcript, dated 4/14/08;  Exhibit 3 is petitioner's affidavit of material issues in dispute, dated 5/11/13;  Exhibit 4 is plaintiff's motion in opposition to the defendant's motion for summary judgment, dated 5/11/13;  and Exhibit 5 is habeas trial testimony..  FN2. Exhibit 1 is a motion of written oral argument in support of petitioner's habeas corpus proceeding, dated 1/31/13;  Exhibit 2 is a partial transcript, dated 4/14/08;  Exhibit 3 is petitioner's affidavit of material issues in dispute, dated 5/11/13;  Exhibit 4 is plaintiff's motion in opposition to the defendant's motion for summary judgment, dated 5/11/13;  and Exhibit 5 is habeas trial testimony.

FN3. Respondent cited Santorso v. Bristol Hosp., 127 Conn.App. 606, 614, 15 A.3d 1131 (2011), aff'd on other grounds, 308 Conn. 338, 63 A.3d 940 (2013), in support of the supplemental memorandum..  FN3. Respondent cited Santorso v. Bristol Hosp., 127 Conn.App. 606, 614, 15 A.3d 1131 (2011), aff'd on other grounds, 308 Conn. 338, 63 A.3d 940 (2013), in support of the supplemental memorandum.

FN4. Marked as petitioner's Exhibit 6 for this proceeding..  FN4. Marked as petitioner's Exhibit 6 for this proceeding.

FN5. Marked as petitioner's Exhibit 7 for this proceeding..  FN5. Marked as petitioner's Exhibit 7 for this proceeding.

FN6. Due to a scrivener's error there is no petitioner's Exhibit 5..  FN6. Due to a scrivener's error there is no petitioner's Exhibit 5.

FN7. Am. Pet. ¶¶ 68 through 83..  FN7. Am. Pet. ¶¶ 68 through 83.

FN8. Respt.'s Ex. A, ¶ 31 (incorporated into claim III by reference through ¶ 34) and ¶ 35 (including all evidence previously mentioned in the habeas petition, including Supp. 3, as newly discovered evidence)..  FN8. Respt.'s Ex. A, ¶ 31 (incorporated into claim III by reference through ¶ 34) and ¶ 35 (including all evidence previously mentioned in the habeas petition, including Supp. 3, as newly discovered evidence).

FN9. Respt.'s Ex. A, ¶ 32;  see also Respt.'s Ex. A, ¶ 24(E) and (F) (incorporated into claim III by reference through ¶ 34)..  FN9. Respt.'s Ex. A, ¶ 32;  see also Respt.'s Ex. A, ¶ 24(E) and (F) (incorporated into claim III by reference through ¶ 34).

FN10. Respt.'s Ex. C, Tr. 1/10/13, pp. 34–36..  FN10. Respt.'s Ex. C, Tr. 1/10/13, pp. 34–36.

FN11. Am. Pet. New Trial ¶¶ 89 (which incorporates by reference ¶¶ 1–83) through 92..  FN11. Am. Pet. New Trial ¶¶ 89 (which incorporates by reference ¶¶ 1–83) through 92.

FN12. Respt.'s Ex. A, ¶¶ 26 (which incorporates by reference ¶¶ 1–25), 28, 29, and 31–33..  FN12. Respt.'s Ex. A, ¶¶ 26 (which incorporates by reference ¶¶ 1–25), 28, 29, and 31–33.

FN13. Respt.'s Ex. C, Tr. 1/10/13, pp. 34–36..  FN13. Respt.'s Ex. C, Tr. 1/10/13, pp. 34–36.

FN14. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)..  FN14. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

FN15. Am. Pet. New Trial ¶¶ 76–77..  FN15. Am. Pet. New Trial ¶¶ 76–77.

FN16. Am. Pet. New Trial ¶ 78..  FN16. Am. Pet. New Trial ¶ 78.

FN17. Respt.'s Ex. A, ¶ 24(F)..  FN17. Respt.'s Ex. A, ¶ 24(F).

FN18. Respt.'s Ex. A, ¶¶ 31 and 32..  FN18. Respt.'s Ex. A, ¶¶ 31 and 32.

FN19. Respt.'s Ex. A, ¶¶ 24(E) and (F), 26, 29, 31–33..  FN19. Respt.'s Ex. A, ¶¶ 24(E) and (F), 26, 29, 31–33.

FN20. Respt.'s Ex. C, Tr. 1/10/13, pp. 14–20, 34–37, 103–06..  FN20. Respt.'s Ex. C, Tr. 1/10/13, pp. 14–20, 34–37, 103–06.

Lobo, Jason M., Judge