Davis v. Comm'r of Corr.

315 A.3d 426

225 Conn.App. 263

Paul DAVIS

v.COMMISSIONER OF CORRECTION

(AC 46237)

Appellate Court of Connecticut.

Argued February 1, 2024

Officially Released May 7, 2024

Deren Manasevit, assigned counsel, for the appellant (petitioner).

Meryl Gersz, assistant state’s attorney, with whom, on the brief, were Sharmese L. Hodge, Danbury, state’s attorney, and Angela R. Macchiarulo, supervisory assistant state’s attorney, for the appellee (respondent).

Moll, Cradle and Westbrook, Js.

CRADLE, J.

₂₆₄The petitioner, Paul Davis, appeals following the granting of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus, in which he alleged a due process violation and ineffective assistance of his trial and appellate counsel. On appeal, the petitioner claims that the habeas court violated his constitutional right to due process and abused its discretion when it denied his motion for a continuance ₂₆₅to afford him additional time to secure the testimony of a witness. We affirm the judgment of the habeas court.

The following facts, as set forth by this court in the petitioner’s direct appeal from his criminal conviction, and procedural history are relevant to the petitioner’s claims on appeal. "[The petitioner] was a member of a gang in Hartford. On May 28, 2006, in retaliation for a shooting that occurred earlier that day in which another member of [the petitioner’s] gang was shot, [the petitioner], Ackeem Riley and Dominique Mack discussed conducting a drive-by shooting in the Nelton Court area of Hartford. The trio had no specific victim intended.

"[The petitioner] drove himself, Riley and Mack toward the Nelton Court area in a car he had borrowed. Riley was armed with a nine millimeter Glock handgun. Mack was armed with a nine millimeter Taurus. As [the petitioner] drove, he, Riley and Mack saw a group of children at the corner of Elmer and Clark Streets. Riley and Mack fired at lease seventeen shots from their handguns at the group, striking two boys. One of the victims … a fifteen year old boy, was hit by five bullets, resulting in his death. The other victim … a fourteen year old boy, was hit by three bullets, resulting in serious injury.

"After the shooting, [the petitioner], Riley and Mack fled the scene and left the car on Guilford Street. From there, they summoned a cab to take them to 140 Oakland Terrace. Riley, Mack and another man later returned to the vehicle and set it on fire.

"On June 7, 2006, [the petitioner] agreed to speak with members of the Hartford Police Department, and he provided them with information about the shooting. He told the officers about the planning of the shooting, the types of firearms used and where they could be found. He also told them how the vehicle used in the shooting later was set on fire. [The petitioner], however, ₂₆₆did not disclose his involvement in the shooting until almost three years later, in May, 2009, when he again spoke to the police and provided a written statement." State v. Davis, 163 Conn. App. 458, 460-61, 136 A.3d 257 (2016), cert. granted, remanded for reconsideration, 325 Conn. 918, 163 A.3d 618 (2017), aff’d, 178 Conn. App. 324, 175 A.3d 71 (2017), cert. denied, 327 Conn. 1001, 176 A.3d 1194 (2018).

Following the disclosure of his involvement in the May 28, 2006 shooting, the petitioner was charged with accessory to capital felony in violation of General Statutes § 53a-8 (a) and General Statutes (Rev. to 2005) § 53a-54b (8),¹ accessory to murder in violation of General Statutes §§ 53a- 8 (a) and 53a-54a (a), conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a), and attempt to commit murder in violation of General Statutes 53a-49 (a) (2) and 53a-54a (a). After a jury trial—during which the prosecution admitted into evidence, inter alia, the petitioner’s confession and the testimony of Lamel Brooks and Nikkia Parks, who implicated the petitioner in the shooting, the petitioner was convicted of all the charges except accessory to capital felony. The court, Dewey, J., sentenced him to 100 years of incarceration.

This court affirmed the petitioner’s judgment of conviction on direct appeal. State v. Davis, supra, 163 Conn. App. at 460, 136 A.3d 257. Our Supreme Court granted certification and remanded the case to this court for consideration of a plain error claim.² State v. Davis, 325 Conn. 918, 918, ₂₆₇163 A.3d 618 (2017). On remand to this court, that claim was denied. State v. Davis, 178 Conn. App. 324, 326, 175 A.3d 71 (2017), cert. denied, 327 Conn. 1001, 176 A.3d.1194 (2018).

The petitioner filed a petition for a writ of habeas corpus in 2018. On September 15, 2021, the petitioner filed an amended three count petition alleging (1) violations of his due process rights, (2) ineffective assistance of his trial counsel, Dennis McMahon, and (3) ineffective assistance of his direct appellate counsel, Mary Beattie.³ At his habeas trial, which took place on September 15, November 9 and December 8, 2022, the petitioner withdrew all but his claims alleging that (1) the ₂₆₈state had violated his constitutional right to due process and a fair trial in failing (a) to "disclose that it had offered consideration to … Brooks for his cooperation in the peti- tioner’s case" and (b) to "correct … Brooks’ false or substantially misleading testimony that he received no consideration for his cooperation with the state during the petitioner’s criminal trial, which the state knew, or should have known to be false or misleading," and (2) McMahon was ineffective in failing (a) to "adequately cross-examine, impeach, and otherwise challenge the testimony of … Brooks" and (b) to "adequately investigate and present evidence of … Brooks' cooperation with the state for favorable consideration in exchange for his cooperation."

At the petitioner’s habeas trial, he presented his own testimony and the testimony of McMahon; Attorney John Fahey, who prosecuted the petitioner; Attorney Keith Dubay, who represented Brooks between 2011 and 2013; Attorney Richard Rubino, who prosecuted Brooks in 2012; and Attorney Michael Weber, who prosecuted Brooks in 2013, directly after the petitioner’s criminal trial. Although the petitioner successfully offered into evidence, inter alia, two letters written by Brooks; court documents related to Brooks’ criminal cases that resulted in convictions in 2007, 2012, and 2013; transcripts related to Brooks’ 2012 and 2013 convictions; and transcripts of his testimony at the petitioner’s criminal trial, the petitioner did not present Brooks as a witness.

At a pretrial conference prior to the petitioner’s habeas trial, the petitioner’s habeas attorney, James Mortimer, indicated that he thought there would be "some issues with respect to at least one witness." On September 15, 2022, the first day of the petitioner’s habeas trial, the court, Bhatt, J., noted for the record that Mortimer had been unable to subpoena Brooks and Parks, whose testimony was essential to the petitioner’s ₂₆₉claims. The court suggested that the parties agree on an additional trial date in order to accommodate another attempt to subpoena those witnesses.

The trial continued on November 9, 2022, and Mortimer was still unable to secure the presence of Brooks and Parks. Mortimer stated that he had served a number of subpoenas at Brooks’ abode and had engaged Brooks' parole officer, who indicated that Brooks was aware of the proceedings.⁴ Mortimer requested that the court issue a capias and offered into evidence three subpoenas that had been served at Brooks’ abode and testimony from Ana Cantanhede, a private investigator who had located Brooks and served the subpoenas. The court found that "Brooks knows of today’s proceeding. He knows it’s in the afternoon. He’s been properly served, and he’s received the subpoena." The court then issued a capias and set the next trial date for December 8, 2022.

On December 8, 2022, Brooks was again absent despite the capias. Mortimer indicated that he had spoken to Brooks’ parole officer, who informed him that Brooks "was aware that a capias had been issued" and that Brooks would try to avoid appearing in court. Mortimer requested a continuance "to afford additional time to gain custody of [Brooks] and bring him in to testify …." The court, Bhatt, J., denied the continuance, stating, "I understand that he’s a necessary witness to your claims, but we’ve issued a subpoena. I’ve issued a capias. I don’t know how much longer I can allow this to proceed in the … hope that, maybe, someday he’ll agree to show up. I don’t know that that’s something that the court can agree to. So, I’ll deny the motion for continuance."

₂₇₀Following trial, the habeas court, Bhatt, J., issued a memorandum of decision, dated December 15, 2022, in which it denied the petition, holding that "[the petitioner] has not proven his claims …."

In its memorandum, the habeas court noted that "the following evidence was presented to the court…. On March 14, 2007, Brooke pleaded guilty to one count of conspiracy to commit robbery in violation of General Statutes § 53a-134. He received a sentence of fifty months to serve. On March 9, 2008, while incarcerated, he wrote a letter to the Hartford Police Department, offering information about unsolved crimes, including the one that [the petitioner] was eventually convicted of. Not receiving a response, he then wrote a letter to the [office of the state’s attorney for Hartford] on April 2, 2008, reiterating that he had information about unsolved homicides including the one that [the petitioner] was eventually convicted of. In that letter he indicated that he was serving a sentence and stated, ‘I’m bringing this to the [state’s] attention because I need your help and I will gladly help the [office of the state’s attorney] if they please help me.’ Brooks then gave a statement to police on April 16, 2008. In that statement, he stated that he saw [the pet...