Carmon v. Warden

Adam Carmon (#170101) v. Warden

No. CV134005289S

Superior Court of Connecticut, Judicial District of Tolland, Rockville, Geographic Area 19

June 13, 2016

June 13, 2016, Filed

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Hon Vernon D. Oliver, J.

The petitioner, Adam Carmon, initiated this fourth petition for a writ of habeas corpus, claiming that his underlying criminal counsel, direct appeal counsel, first habeas and second habeas counsel provided him ineffective legal representation. He further claims due process violations, Brady violations, prosecutorial impropriety, and actual innocence. He seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The respondent denies the claims and asserts several special defenses. The court finds the issues for the respondent and denies the petition.

Procedural History

In the criminal matter State v. Adam Carmon, CR94-0390840 in the New Haven Judicial District, the petitioner was charged with Murder in violation of Connecticut General Statutes § 53a-54a; Assault in the first degree in violation of Connecticut General; Statutes § 53a-59; and Carrying a Pistol without a Permit in violation of Connecticut General Statutes § 29-35(a).

At his jury trial, the petitioner was represented by attorney Richard Silverstein. After being convicted on all charges the trial court, Hadden, J., on May 26, 1995, sentenced the petitioner to a total effective sentence of eighty-five years to serve. The petitioner appealed the convictions. State v. Carmon, 47 Conn.App. 813, 709 A.2d 7, cert. denied 244 Conn. 918, 714 A.2d 7 (1998). In his direct appeal, the petitioner was represented by attorney Suzanne Zitser. The following findings of that court are relevant to a disposition of the instant petition:

" The jury reasonably could have found the following facts. On the night of February 3, 1994, Charlene Troutman was in the living room of her apartment located on Orchard Street in New Haven waiting for a taxicab. With her, among others, was her seven month old granddaughter. Shots fired from the street passed through the living room window killing the granddaughter and leaving Troutman permanently paralyzed. At the time the shots were fired, Jaime Stanley and Raymond Jones were stopped at a traffic light near Troutman's apartment and saw a man firing into the apartment. As the shooter ran away, both Stanley and Jones saw his face. Both witnesses identified the defendant during trial as the person who had fired the shots through the window of Troutman's apartment.

" The defendant first claims that the trial court improperly precluded the defendant from cross-examining Stanley regarding the reliability of her identification of the defendant as the shooter, thereby denying him his federal and state constitutional right to confront the witnesses against him. In particular, the defendant wanted to question Stanley about mistaken identifications that she may have made in the past. The trial court held that evidence of possible misidentifications in the past, on unrelated events, was irrelevant to the issue of whether she had in fact seen the defendant on the night of the shooting. We agree.

" In this case, the defendant extensively cross-examined Stanley about her ability to identify, and the conditions under which she identified the defendant. Stanley testified that she was in a position that enabled her clearly to see the defendant. In particular, Stanley testified that she saw the defendant fire a gun, stop, turn and face her, return to his original position and fire through the window a second time. Stanley testified that she was focused on the defendant because of his actions.

" Thereafter, the defendant posed a question to the witness that asked, in a very general way, if she had ever mistaken a person for someone else. That question was asked in the midst of extensive and detailed questioning and had no relevance to the circumstances surrounding the shooting and the subsequent identification of the defendant as the shooter.

" We agree with the trial court that, under the facts of this case, the fact that the witness may have incorrectly identified another person at some point in her life was irrelevant. This information would not have tended to show that her identification of the defendant on the evening of the shooting was unreliable. Without more, this question was not relevant to her ability to identify the defendant on the evening of the shooting.

" The day after the shooting, February 4, 1994, the police questioned Brantley because they had learned that Brantley had been involved in a heated argument with Troutman and other members of her family on the afternoon of the shooting. At that time, Brantley denied any involvement in or knowledge of the shooting. That statement was not made under oath. The next day, February 5, in response to police questions, he stated that, after an altercation with the Troutmans on February 3, he went to Fair Haven to seek the aid of Anthony Little and to find a gun to get revenge for his treatment by the Troutmans. That statement was made under oath.

" On February 7, Brantley told the police that on the evening of the shooting he, Anthony Little and Demetrious Bates drove to the Troutman residence with the intent to rob the Troutmans. While he and Little remained in the car, Bates went to Troutman's apartment window and fired several shots. Bates got back into the car and they drove away.

" On February 18, Brantley told the police that the only truth to the statements he had given on February 5 and 7 was that he had gotten into a fight at the Troutman apartment. Brantley said that the altercation occurred when the Troutmans did not give him the money they owed him for drugs that he had sold to them previously.

" At trial, the defendant called Brantley to the stand for the purposes of contesting the identification of the defendant as the shooter and presenting an alternative theory of liability. Once on the stand, however, Brantley testified that he was neither present at the shooting nor involved in any manner. Thereafter, the defendant was successful in having the court admit the two prior inconsistent statements given under oath by Brantley for substantive purposes under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986).

" Under cross-examination by the state, Brantley testified that the two statements he had given under oath were not true and the only true statement was the one giver on February 18. On the basis of that testimony, the court admitted into evidence, ostensibly under the Whelan doctrine, the February 18 statement Brantley made to the police in which he denied any involvement in the shooting.

" The defense admits that it called Brantley to present evidence that someone other than the defendant had committed the crime. Accordingly, the defendant reasons that any evidence that tended to weaken Brantley's credibility as a witness would be detrimental to the defendant's case and therefore constitute reversible error. This argument fails.

" Evidence of Brantley's tendency to make inconsistent statements regarding the Troutman shooting was first introduced to the jury by the defendant himself. The defendant's questioning of Brantley regarding his involvement prompted him to testify that he had given false statements on February 5 and 7. As a result of that testimony, the defendant was able to introduce those statements for substantive purposes. Likewise, the February 18 statement was introduced by the state to show that the witness' testimony, either live or taken from his sworn statements, was not trustworthy. Therefore, the February 18 statement can be characterized as additional evidence that Brantley's testimony was an accumulation of inconsistencies. Therefore, we conclude that admitting Brantley's February 18 statement was improper; however, it was not harmful under the facts of this case." State v. Carmon, supra, 47 Conn.App. 813-23.

The petitioner filed his first writ in the New Haven Judicial District in 1998 and was assigned docket number CV98-0411202. Attorney Richard Smith was assigned to represent the petitioner. The first habeas court, Meadows, JTR, in denying the petition made the following relevant findings:

" The petitioner in this habeas case claims his trial counsel denied him effective assistance of counsel.

" At the time of trial the petitioner failed to put on any evidence alleged in the amended petition dated October 30 2001 other than the claims that he was denied effective assistance of trial counsel, Richard Silverstein (Silverstein) because he did not investigate, disclose and present an alibi defense. (See Amended Petition paragraphs 3b and 3c.)

" At the habeas trial, the petitioner testified that he had gone to his girlfriend's house, Christal Batts (Christal) because it was her birthday.

" Carmon testified he had a call about a card game that Crystal drove him to at 701 Winchester Avenue 9:30 p.m. The game started at 10 p.m. Carmon stated that around 9:45 p.m. before the game started Mr. Brown arrived. According to Carmon's version, he left the card game at around 11:25, 11:30 p.m. (Transcript Habeas p. 41.) Carmon informed Attorney Silverstein of the name of Brown and when and where he was at the card game after his arrest. After Silverstein represented Carmon, he acknowledged Silverstein spoke to Mr. Brown.

" A claim not included in the amended petition involved an attempt by habeas counsel to bring the issue of police records before the court. The court rejected such an attempt when objected to by the respondent. The petitioner in his post trial brief raised the...