Crocker v. Comm'r of Corr.

220 Conn.App. 567

300 A.3d 607

Shawn CROCKER

v.COMMISSIONER OF CORRECTION

AC 45232

Appellate Court of Connecticut.

Argued March 7, 2023

Officially Released July 25, 2023

Robert L. O'Brien, assigned counsel, with whom, on the brief, was Christopher Y. Duby, assigned counsel, North Haven, for the appellant (petitioner).

Brett R. Aiello, assistant state's attorney, with whom, on the brief, were John P. Doyle, Jr., state's attorney, and Rebecca A. Barry, supervisory assistant state's attorney, for the appellee (respondent).

Prescott, Moll and Cradle, Js.

PRESCOTT, J.

The petitioner, Shawn Crocker, appeals from the judgment of the habeas court granting

in part and denying in part his petition for a writ of habeas corpus.¹ The petitioner claims on appeal that the court improperly rejected his claims that counsel in two previous habeas actions provided ineffective assistance of counsel by failing to raise claims that his criminal trial counsel rendered ineffective assistance by not conducting a proper investigation to identify exculpatory witnesses and/or by failing to call exculpatory witnesses to testify at his criminal trial. We disagree. Accordingly, we affirm the judgment of the habeas court.

The following facts underlying the petitioner's criminal conviction, which the jury reasonably could have found on the basis of the evidence admitted at trial, were set forth previously by this court in Crocker v. Commissioner of Correction , 126 Conn. App. 110, 10 A.3d 1079, cert. denied, 300 Conn. 919, 14 A.3d 333 (2011). "Shortly before 7:30 p.m. on October 27, 1997, George David Wright drove a stolen Jeep Cherokee [Jeep] to the Quinnipiac Terrace housing complex in New Haven, also known as the Island. ... [Daryl Price] was in the [front] passenger seat of the Jeep, and Calvin Taylor was seated in the back. At the housing complex, Wright and Taylor exited the vehicle, and Tacuma Grear [Tacuma] approached the Jeep to talk to [Price]. They talked about the [fatal shooting by Price] of [Tacuma's] brother, Corey Grear [Corey] ... which had occurred approximately one week earlier, for which [Price] ... apologized. [Corey] was a friend of the [petitioner], and the [petitioner] had held [Corey] in his arms after [Corey] was fatally shot by [Price]. The [petitioner] had witnessed [Price] shoot [Corey]. [Corey] was ... a member, as was the [petitioner], of the Island Brothers, a street gang into which [Price] had been introduced and sponsored by the [petitioner]. As his sponsor, the [petitioner] was responsible for

disciplining [Price] should [Price] kill a fellow gang member. As [Tacuma] walked away from the Jeep, the [petitioner] had come up to the driver's side of the Jeep carrying a handgun. He then leaned into the Jeep and fired four times into the vehicle. Two .45 caliber bullets hit [Price], killing him ...." (Internal quotation marks omitted.) Id., at 113–14, 10 A.3d 1079.

The petitioner subsequently was arrested and charged, inter alia, with murder in violation of General Statutes (Rev. to 1997) § 53a-54a (a) and criminal possession of a firearm in violation of General Statutes (Rev. to 1997) § 53a-217.² Id., at 114, 10 A.3d 1079. His first trial ended in a mistrial because the jury was unable to reach a unanimous verdict. Following a second jury trial, however, he was found guilty of murder and criminal possession of a firearm. At each trial, the jury heard conflicting testimony from witnesses regarding the events surrounding the shooting and the culpability of the petitioner.

As recognized by the habeas court in the present action, Tacuma was an important witness for the state because he was present when Price was shot and killed, and his testimony directly implicated the petitioner as the shooter. Tacuma testified at two probable cause hearings and at both criminal trials. At the second criminal trial, Tacuma "testified for the state that he talked to the police two days after the shooting and again on June 18, 1998, when he gave the police a tape-recorded statement, which was introduced into evidence. ... [Tacuma admitted to telling the police] that when four to five gunshots were fired, he saw someone who looked like the [petitioner] leaning toward the driver's side window of the vehicle in which the victim was a passenger and saw flashes."

State v. Crocker , 83 Conn. App. 615, 623, 852 A.2d 762, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004). Tacuma, however, was unwilling to testify directly that he in fact saw the petitioner shoot Price despite having previously told the police otherwise.

Wright also was an important witness for the state. Although he refused to testify at both trials despite offers of immunity and threats of contempt, his prior testimony from the first probable cause hearing was admitted at the second trial over the objection of the petitioner. Id., at 645–46, 852 A.2d 762. Specifically, "Wright had testified at the probable cause hearing that he saw someone fire gunshots from a .45 caliber semiautomatic pistol into the Jeep in which [Price] was sitting. As that person walked away, Wright recognized the [petitioner's] limp. Wright had known the [petitioner] for eight years. Wright also saw that that person was dressed in the same clothes Wright had seen the [petitioner] wearing approximately twenty minutes before the shooting. Wright testified that he told the police two days after the shooting that he was sure that it was the [petitioner] who had shot [Price]." Id., at 646, 852 A.2d 762.

Travis Jenkins, who had testified during the first criminal trial, was unavailable to testify at the second criminal trial. As a result, the court presiding over the second criminal trial permitted the state to read into the record (1) Jenkins’ testimony from the first trial and (2) the substance of a prior inconsistent statement that Jenkins had made to the police and that had been admitted for substantive purposes under Whelan³ at the first criminal trial. See id., at 651–53, 852 A.2d 762. In his prior trial testimony, Jenkins acknowledged having told the police that he had witnessed the events leading up to the shooting and that the petitioner was the shooter. Jenkins also asserted,

however, that his prior statement to the police was not true and that he had made the statement only because the police had threatened to charge him with conspiracy to murder Price. Id., at 652–53, 852 A.2d 762.

The defense called various witnesses at the second criminal trial to rebut the testimony by Tacuma, Wright, and Jenkins, each of whom directly or indirectly identified the petitioner as the shooter. Darrel Belton was the first defense witness to testify at the second trial. He testified that he was with Tacuma the entire day of the shooting. Belton asserted that he observed the scene from a distance while Tacuma spoke with Price, who was inside the Jeep. Belton testified that, after they spoke for a few minutes, he saw Tacuma back away from the Jeep and raise his hands in the air. Belton then heard shots fired, ducked for cover, and ran up a nearby hill. He did not see the shooter. Belton testified, however, that when he got to the top of the hill, the petitioner, whom Belton knew from childhood, was already there, the implication being that he could not have been the shooter. According to Belton, he had seen the petitioner earlier that day when the petitioner had approached the Jeep and spoke with Wright before the shooting. Belton explained that the petitioner appeared to ask Wright a question and, in response, Wright pointed toward the top of the nearby hill, and the petitioner walked away in that direction. Belton also stated that he did not see the petitioner carrying a gun.⁴

Linwood Stevenson, who lived at the housing complex where the shooting occurred and was outside fixing his car at the time of the shooting, also testified at

the second criminal trial that the petitioner was not the shooter. Unlike many of the other witnesses who testified during the criminal trial, Stevenson had no personal connection to the petitioner or any of the other persons present at the shooting. The habeas court summarized Stevenson's testimony as follows: "[H]e saw the [Jeep] with two people inside, several individuals near the vehicle, and one person [coming] down the hill to approach the Jeep. That individual walked toward the Jeep's rear, walked around the Jeep, and fired shots. Stevenson ... described the shooter as being short, about five feet tall, medium build, dark skin, with a clean-cut head. After firing the shots, the short individual turned and walked back up the hill where he had come from.

"Stevenson saw people around the Jeep immediately after the shooting. Stevenson saw someone standing not too far from him, someone he said had been standing there, toward the front of the Jeep, even before the shots occurred. According to Stevenson, that individual turned around and walked to the Jeep, looked inside, and then walked back to where he had been standing. Stevenson identified [the petitioner] as being that individual. Stevenson testified that [the petitioner] was not the person who fired shots into the vehicle and then walked up the hill. The police interviewed Stevenson [on] the evening of the shooting, and Stevenson conveyed his observations and the shooter's description to the police. According to Stevenson, the police never asked him to identify the shooter or look at a photographic board/lineup. Stevenson testified that at the time of the shooting, his cousin was the chief of the New Haven homicide unit. Stevenson spoke with his cousin and told him the same information he provided in his court testimony."

The defense also called James Benson as a witness. Benson asserted that he was not a witness to the shooting and provided no testimony regarding the identity

of the shooter. The purpose of Benson's testimony was to establish that Jenkins had been with Benson at the time of the shooting and thus could not have seen ...