Brown v. Comm'r of Corr.

179 Conn.App. 358

179 A.3d 794

Danny BROWN

v.COMMISSIONER OF CORRECTION

AC 39476

Appellate Court of Connecticut.

Argued November 13, 2017

Officially released January 23, 2018

James E. Mortimer, assigned counsel, with whom, on the brief, was Michael D. Day, assigned counsel, for the appellant (petitioner).

Theresa Anne Ferryman, senior assistant state's attorney, with whom, on the brief, were Michael L. Regan, state's attorney, and Stephen M. Carney, senior assistant state's attorney, for the appellee (respondent).

DiPentima, C.J., and Elgo and Flynn, Js.

ELGO, J.

The petitioner, Danny Brown, known also as Daniel Brown,¹ appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion by denying his petition for certification to appeal, and by rejecting his claims that (1) the state violated his rights to due process and a fair trial by failing to disclose material exculpable evidence and failing to correct false testimony from certain witnesses at his criminal trial, and (2) his criminal trial counsel rendered ineffective assistance. We conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal and, therefore, dismiss the appeal.

This case involves a homicide in New London. As the Supreme Court recounted in the petitioner's direct appeal, "James 'Tiny' Smith and Darrell Wattley fought at a party on July 4, 1995. Wattley sliced Smith's throat with a box cutter, wounding him superficially. On the afternoon of July 13, 1995, [the petitioner] and [Jamie] Gomez picked Smith up at the house of Smith's mother, and drove him to [Anthony] Booth's apartment at 93 State Pier Road in New London. When the three men arrived at Booth's apartment, Booth told them that he had asked Angeline Valentin, who lived in the same building, to call Wattley over to the building so that Wattley and Smith could fight. Booth, [the petitioner], Gomez and Smith watched television while they waited for Wattley to arrive. During their wait, and while [the petitioner] was rummaging through a grey knapsack, Booth asked [the petitioner] whether he '[had worn] gloves when he loaded it.' Booth also had a knife in his hand. When Smith asked Booth why he needed the knife, Booth replied: '[D]on't worry about it, we are just going to fight him.'"When Valentin called to say that Wattley was on his way, the four men left the building and went outside. Gomez and [the petitioner] went to the north side of the building while Smith and Booth went to the south side and hid behind a bush. While they were waiting, Booth was talking on a cellular telephone to either [the petitioner] or Gomez. After approximately fifteen minutes, a car arrived and Wattley got out. Wattley walked toward the north end of the building, where [the petitioner] and Gomez were waiting. Smith and Booth then entered the building on the south side and began to ascend the stairs. When Smith and Booth reached the third floor, where Valentin's apartment was located, they heard gunshots below. Smith and Booth then ran to exit the building. As they descended the stairs, they saw Wattley lying face down in the second floor hallway with blood everywhere. Booth then stabbed Wattley a couple of times before Smith and Booth fled the building.

"The four men ran to a red Mitsubishi, which was parked on State Pier Road, east of the building. This car was owned by Gomez' girlfriend, Dawn Waterson. Gomez sat in the driver's seat, and [the petitioner], Smith and Booth sat in the passenger seats. As they drove away, [the petitioner] said 'I robbed that nigger too.' [The petitioner] had a knife in his lap, which he threw out of the window while they were driving. Gomez drove Waterson's car across town and parked it behind a mall. The four men walked through a cemetery before splitting up. In the cemetery, Booth told them that, if questioned, he and [the petitioner] would say that they had been together. In addition, Booth told Smith and Gomez to come up with an alibi. The four men then separated.

"A few hours after the murder, Booth approached Valentin in the parking lot of 93 State Pier Road. Booth told her that they shot 'him.' Booth also told Valentin that he knew that she would not have lured Wattley to the building if she had known that they intended to murder him." (Footnote omitted.) State v. Booth , 250 Conn. 611, 614–15, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut , 529 U.S. 1060, 120 S.Ct. 1568, 146 L.Ed.2d 471 (2000).

The petitioner subsequently was arrested and a consolidated trial with Booth and Gomez followed, at the conclusion of which the jury found all three defendants guilty of murder in violation of General Statutes § 53a–54a, and conspiracy to commit murder in violation of General Statutes §§ 53a–54a and 53a–48 (a).² Id., at 613, 737 A.2d 404. The petitioner directly appealed from that judgment of conviction, which our Supreme Court affirmed in a consolidated appeal with Booth and Gomez. Id., at 663, 737 A.2d 404.

The petitioner commenced this habeas action in 2013. On March 15, 2016, he filed a second amended petition for a writ of habeas corpus that contained two counts. The first alleged ineffective assistance on the part of his criminal trial counsel, Attorney Jeremiah Donovan, in failing to adequately cross-examine and impeach the testimony of Smith and Valentin.³ In the second count, the petitioner alleged a due process violation stemming from the state's handling of allegedly exculpatory evidence regarding the testimony of Smith and Valentin. More specifically, the petitioner alleged that the state "failed to disclose material favorable evidence to the petitioner with respect to an express or implied agreement" with both Smith and Valentin "for favorable treatment in [their] then pending criminal case[s] and failed to correct [their] false or misleading testimony concerning the same ...."

A habeas trial was held on March 5, 2016, at which Donovan was the sole witness.⁴ In its subsequent memorandum of decision, the habeas court rejected the petitioner's claims. With respect to his ineffective assistance of counsel claim, the court concluded that the petitioner failed to satisfy the prejudice prong of Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his claims regarding the suppression of allegedly exculpatory evidence, the court found that the petitioner failed to prove the existence of an agreement between the state and Smith and Valentin that the state had suppressed. In so doing, the court acknowledged that Donovan, in his habeas testimony, confirmed that the state had assured Smith and Valentin that their "cooperation [at the petitioner's criminal trial] would be taken into consideration upon sentencing." The court nonetheless found that the petitioner had not met his burden in demonstrating that the state suppressed evidence of that assurance. The court further found that "even if the [state] had suppressed evidence, the petitioner also failed to prove that this evidence would have been material." The court, therefore, denied the petition for a writ of habeas corpus. The petitioner then filed a petition for certification to appeal to this court, which the habeas court denied, and this appeal followed.

On appeal, the petitioner claims that the court abused its discretion in denying the petition for certification to appeal. Our standard of review for such claims is well established. "Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). First, [the petitioner] must demonstrate that the denial of his petition for certification constituted an abuse of discretion.... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits.... A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason ... [the] court could resolve the issues [in a different manner] ... or ... the questions are adequate to deserve encouragement to proceed further.... In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous." (Citation omitted; internal quotation marks omitted.) Ramos v. Commissioner of Correction , 172 Conn. App. 282, 294, 159 A.3d 1174, cert. denied, 327 Conn. 904, 170 A.3d 1 (2017). With that standard in mind, we turn to the substantive claims raised by the petitioner.

I

The petitioner first contends that the court abused its discretion in denying his petition for certification to appeal because the state violated his right to due process and a fair trial by failing to disclose material exculpatory evidence in contravention of Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963). The petitioner claims that the state suppressed evidence of an agreement between the state and Smith and Valentin in exchange for their testimony at the petitioner's criminal trial.

"The law governing the state's obligation to disclose exculpatory evidence to defendants in criminal cases is well established. The defendant has a right to the disclosure of exculpatory evidence under the due process clauses of both the United States constitution and the Connecticut constitution.... In order to prove a Brady violation, the defendant must show: (1) tha...