Brown v. Comm'r of Corr.

222 Conn.App. 278

304 A.3d 862

Christopher BROWN v. COMMISSIONER OF CORRECTION

AC 45756

Appellate Court of Connecticut.

Argued September 7, 2023

Officially Released November 7, 2023

Julia K. Conlin, assigned counsel, with whom was Emily Graner Sexton, assigned counsel, for the appellant (petitioner).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Sharmese L. Walcott, state's attorney, and David Carlucci, former senior assistant state's attorney, for the appellee (respondent).

Prescott, Clark and Bear, Js. ^*

BEAR, J.

The petitioner, Christopher Brown, appeals following the denial of his petition for certification to appeal from the habeas court's judgment denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal, and (2) improperly concluded that his trial counsel's failure to call an eyewitness identification expert at the petitioner's criminal trial did not constitute constitutionally deficient performance that prejudiced the petitioner. We agree with the petitioner that the habeas court abused its discretion in denying his petition for certification to appeal. We agree, however, with the respondent, the Commissioner of Correction, that the petitioner failed to establish that his trial counsel rendered ineffective assistance. Accordingly, we affirm the judgment of the habeas court.

This court's decision in the petitioner's direct appeal sets forth the following relevant facts, which the jury in the petitioner's criminal trial reasonably could have found. "In the early morning of August 4, 2012, the [petitioner] and two associates abducted the victim, Neville Bar, and brought him to an abandoned building located at 27 Glendale Avenue in Hartford. The [petitioner] and his two associates brought the victim to the basement of 27 Glendale Avenue, tied his wrists and ankles with rope, and threatened him at gunpoint, demanding to know where he kept his supply of marijuana and cash. During the incident, the [petitioner] and his associates stabbed the victim in the leg, hit him in the face with a gun several times, and tortured him by melting a plastic water bottle onto his arms. Before leaving the abandoned basement, the three men took the victim's wallet, which contained $700, tied him with a blanket and a string of Christmas lights, and left him in a bathtub.

"On the morning of August 5, 2012, Hartford police officers found the victim in the basement of 27 Glendale Avenue after a neighbor heard him screaming for help. When discovered, the victim was standing in the bathtub, covered in feces and urine, and bound by rope, the string of Christmas lights, and the blanket. He was confused and could only provide disjointed answers to police questioning about the incident and the identity of his assailants. He was then sent to Hartford Hospital for treatment of his wounds and dehydration.

"Later that day, Hartford police Detective Richard Salkeld visited the victim at the hospital at which time the victim informed Salkeld that the three assailants were black Jamaican men, one of whom had a ‘milky-white’ left eye.

"Following his conversation with the victim, Salkeld spoke to the victim's wife, Margaret Bar, and his niece, Karina Reed.

Reed informed Salkeld that she knew a Jamaican male who had recently been evicted from 27 Glendale Avenue, but still used that location as a place to party. She identified the Jamaican male as ‘Banit’ and described him as having only ‘one eye.’

"On the basis of the descriptions provided by the victim and Reed, Salkeld searched the Hartford [p]olice database for black Jamaican men associated with 27 Glendale Avenue. That search revealed that the [petitioner] had recently been a resident of 27 Glendale Avenue. A physical description of the [petitioner] in the police booking system indicated that one of the [petitioner's] eyes was ‘whited over.’

"In the morning of August 6, 2012, Hartford police Detective Renee LeMark-Muir received information from a registered confidential informant who, in the past, had provided the police with credible and reliable information that had led to the identification and location of suspects. The confidential informant told LeMark-Muir that on August 5, 2012, Reed had contacted the informant, asked whether the informant had information regarding the abduction of the victim, and asked whether a Jamaican male known as ‘Banit’ had been involved. The informant told the detective that the informant had then spoken to the [petitioner], whom the informant knew by his street name ‘Banit.’ The informant stated that the [petitioner] had confessed to kidnapping, tying up, beating, and melting a plastic bottle on the victim. The informant also stated that the [petitioner] did not believe that the victim would identify him or his two associates because the victim was afraid of them.

"On the basis of the results of the police database search, the descriptions of the assailants from the victim and Reed, and the information from the confidential informant, Hartford police Detective David [Richter] prepared a photographic array consisting of eight photographs, one photograph of the [petitioner] and seven of black men of similar age, appearance, and dress. To further make uniform the appearance of the individuals and eliminate the distinct characteristic of the [petitioner's] eye, [Richter] blacked out the left eye of each individual in the photographic array.

"At approximately noon, on August 6, 2012, [Richter] and Salkeld visited the victim in the hospital. They administered the standard witness identification instructions and also gave the victim a form containing the same instructions. The victim initialed each instruction and signed the form, indicating that he understood each instruction. The detectives then presented the photographic array to the victim, who selected the photograph of the [petitioner], whom he knew as ‘Banit.’ He then provided the police with a signed voluntary statement stating ‘this is the guy who robbed me and kidnapped me.’

"The [petitioner] was subsequently arrested pursuant to a warrant and charged in a five count long form information with: kidnapping in the second degree in violation of [General Statutes] § 53a-94 (a) ; assault in the second degree in violation of General Statutes [(Rev. to 2011)] § 53a-60 (a) (2); robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) ; conspiracy to commit kidnapping in the second degree in violation of [General Statutes] §§ 53a-48 (a) and 53a-94 (a) ; and conspiracy to commit assault in the second degree in violation of §§ 53a-48 (a) and 53a-60 (a) (2)." (Footnote omitted.) State v. Brown , 161 Conn. App. 483, 485–88, 128 A.3d 553 (2015). Attorney Dennis McMahon represented the petitioner in the underlying criminal proceedings.

Prior to the criminal trial, the petitioner filed a motion to suppress the victim's identification of the petitioner as one of the kidnappers because the process used by the police to present the photographic array to the victim was unnecessarily suggestive and the identification was not reliable under the totality of the circumstances. In particular, he contended that the eyewitness procedure was flawed because the photographs were not presented sequentially or in double-blind format, the victim was not told that he should not feel compelled to make an identification or that he should take as much time as he needed, and the victim could not read the instructions on the bottom corner of the photographic array. See General Statutes § 54-1p. ¹ In opposition to the motion, the state contended that the identification procedure was not unnecessarily suggestive because the left eyes of all the individuals in the photographs were blacked out so that the petitioner's distinctive cloudy eye was not visible; the petitioner was provided with the witness identification form and clear verbal instructions, which included the information that he was not required to select any of the photographs and that the suspect may not be in the photographic array; and the victim was intimately familiar with the petitioner's face because he spent fifteen to twenty minutes in close proximity to the petitioner during the incident. After an evidentiary hearing at which the court heard the testimony of the victim and Richter, the court denied the petitioner's motion to suppress. ²

During the petitioner's criminal jury trial, McMahon's strategy was to focus on the fact that the victim was not consistent in his recollection of the details of the incident. Particularly, McMahon extensively cross-examined the victim as to the inconsistencies in his testimony on direct examination, as compared to his prior statements to the police while he was at the hospital and his prior testimony at the pretrial motion to suppress hearing. Some of the contradictions included the victim's shifting testimony as to which of the kidnappers burned him; whether he identified the kidnappers by name while he was at the hospital despite the fact that he did not know their names prior to the incident; why he did not initially mention the petitioner's cloudy eye to the police at the scene; and whether he was located on the grass, on the curb, or in his locked or unlocked car when he was kidnapped. With respect to the identification of the petitioner, McMahon elicited testimony from the victim as to how the identification progressed from his initial statement to the police at the scene of the incident that he was unable to identify his kidnappers, to his identification of his kidnappers by their nicknames while he was at the hospital, and to his subsequent identification from the photographic array of the petitioner as one of his kidnappers. McMahon also elicited testimony from the victim that he was inebriated at the time of the incident, as he had...