Moore v. Comm'r of Corr.

321 A.3d 470

227 Conn.App. 487

Darnell MOORE

v.COMMISSIONER OF CORRECTION

(AC 45842)

Appellate Court of Connecticut.

Argued April 15, 2024

Officially Released August 20, 2024

Denis J. O’Malley III, assistant public defender, for the appellant (petitioner).

Danielle Koch, assistant state’s attorney, for the appellee (respondent).

Elgo, Moll and Clark, Js.

CLARK, J.

The petitioner, Darnell Moore, 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. The petitioner claims that (1) the habeas court erred in rejecting his claim that the state violated his right to due process during his underlying criminal trial by (a) failing to disclose an alleged cooperation agreement with a witness who testified at his criminal trial and (b) knowingly soliciting that witness’ allegedly false and misleading testimony and allowing that testimony to go uncorrected, and (2) this court should (a) revisit its prior ruling on his motion for review and grant the relief requested therein to supplement the record in this appeal with transcripts and a court file from a witness’ criminal case that were not before the habeas court, or, in the alternative, (b) take judicial notice of those materials. We conclude that the habeas court properly denied the petitioner’s petition for a writ of habeas corpus on the ground that the petitioner failed to prove that the state violated his due process rights, and we decline the petitioner’s invitation to revisit this court’s prior ruling on his motion for review or to take judicial notice of materials that were not before the habeas court. Accordingly, we affirm the judgment of the habeas court.

The following facts, as set forth by this court in the petitioner’s direct appeal and as found by the habeas court, are relevant to our resolution of this appeal. "[D]uring the evening of August 26, 2010, in the vicinity of Lake Street in Norwich, the [petitioner] and the victim, Namdi Smart,¹ became embroiled in an argument over liquor. The [petitioner], known as ‘Boo’ or ‘Boo-Boo,’ was accompanied during this initial altercation by his friend, Tjamel Hendrickson, known as ‘Soda Pop.’ During the course of the loud, verbal dispute, the victim ripped the [petitioner’s] T-shirt. As the [petitioner] walked away from the scene, he was observed pointing to the victim, and was overheard uttering an expletive and stating that he would return to ‘get’ the victim.

"Shortly thereafter, Hendrickson called Samuel Gomez on the telephone. He requested that Gomez come to Norwich with a firearm. Gomez drove to Spaulding Street in Norwich, where he met with Hendrickson and the [petitioner]. Gomez handed a .45 caliber handgun to the [petitioner]. Gomez drove the [petitioner] and another man, Jordan Brown, to the vicinity of Lake Street so that the [petitioner] could search for the victim. After the [petitioner] identified the victim, the three men returned to Spaulding Street for a period of time. Thereafter, Gomez drove the [petitioner] and Brown to yet another location, where Gomez parked his automobile. The [petitioner] exited the automobile and, within a few minutes, he shot the victim on Lake Street, causing his death. The shooting was witnessed by three bystanders who lived near the scene of the shooting: Kimberly Harris, Roslyn Hill, and Laryssa Reeves. The [petitioner], who was dressed in a black hooded sweatshirt, a black hat, a black mask, and jeans, returned to the automobile still in possession of the gun that Gomez had delivered to him. The [petitioner] gave possession of the gun to Brown, who later exited the automobile with it. Gomez drove the [petitioner] to his mother’s residence before returning to New London." (Footnote in original.) State v. Moore, 169 Conn. App. 470, 473-74, 151 A.3d 412 (2016), appeal dismissed, 334 Conn. 275, 221 A.3d 40 (2019) (certification improvidently granted).

The petitioner subsequently was arrested and charged with murder in violation of General Statutes § 53a-54a. On December 11, 2012, at the petitioner’s criminal trial, the state offered Gomez as a witness. "[Counsel for the petitioner, Attorney Norman] Pattis informed the court that ‘Gomez was arrested pursuant to a warrant. That warrant was perfected on May 19, 2011, and he was charged with a series of crimes related to his conduct in this case, including carrying a pistol or revolver without a permit and hindering prosecution in the second degree. The warrant was signed by Judge Kwak and bond was set in the amount of $100,000. That case is open and pending in … the New London Superior Court. It’s my understanding that [Gomez] intends to testify. I asked the state whether there was any understanding or cooperation agreement…. [T]he state says that his counsel, meaning Attorney [Peter] Catania, has not been given any assurances whatsoever even that favorable consideration could be expected from the state in the event that his client testified truthfully here.’ …

"Pattis argued that ‘competent and capable counsel would [not] permit … a client facing felony charges to testify basically inculpating himself in the very offense for which he stands trial without any understanding from anyone, whether it be the state or the judge, that his client would be given favorable consideration.’ … Pattis requested permission to call Catania as a witness ‘to inquire of him not of that information which is privileged—to wit, what he may or may not have said to his client—but on the scope of his conversation with members of the state’s attorney’s office and potentially with the presiding judge in the New London district.’ … The state, represented by [Assistant State’s] Attorney David Smith, objected to this request, which the court denied. …

"Pattis extensively cross-examined Gomez. … The cross-examination often focused on eliciting from Gomez some acknowledgment that he was receiving a benefit from the state in exchange for his testimony. Gomez answered ‘no’ when asked if anyone had led him to believe that testifying might benefit him. … Pattis asked Gomez why he had not yet pleaded guilty to his pending charges and if he committed those offenses. … Gomez admitted that he had committed the charged offense but did not answer why he had not resolved the charges. … Catania requested a recess so that he could advise Gomez about invoking his rights. After the trial resumed, Gomez answered that he did not know why the charges had not been resolved and that he was still going to court for his cases. … At the conclusion of his cross-examination, Pattis asked Gomez if he ‘fully intend[ed] to cut a deal with the state after [his] testimony in this case’ and if what he was ‘hoping for in this case is that the testimony [he] offer[ed] helps [him] out at sentencing. … Gomez answered [that] he was ‘hoping for the best’ and ‘yeah.’ " (Citations omitted.)

On December 19, 2012, the jury found the petitioner guilty of murder in violation of § 53a-54a, and, on March 5, 2013, the court, Jongbloed, J., sentenced the petitioner to a total effective sentence of fifty-three years of incarceration. See State v. Moore, supra, 169 Conn. App. at 474, 151 A.3d 412. The petitioner appealed from his conviction to this court, which affirmed the trial court’s judgment of conviction. Id., at 499, 151 A.3d 412.

"On March 14, 2013, Gomez pleaded guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to one count of hindering prosecution in the third degree in violation of General Statutes § 53a-167. Attorney Stephen Carney, the prosecutor, stated the supporting facts and informed the court that his ‘recommendation in regards to this matter [was] five years, suspended, with three years [of] probation. Your Honor, we make the recommendation with the acknowledgement that [Gomez] did testify at the trial regarding [the petitioner], as I indicated. And I under-stand that [Smith] found his testimony to be both credible and highly probative, and I believe that the conviction was secured largely because this individual came forward with some peril to himself and gave forthright information to the jury. We are, in consideration, recommending a fully suspended sentence then.’ … The court canvassed Gomez, accepted his plea, and continued the matter for sentencing and a presentence investigation report. Catania indicated for the record that ‘for [Pattis’] benefit … there [were] no prior deals, prior to today, nothing arranged with the state. I know [Pattis] carried on quite a bit on the record during … [the petitioner’s] trial that I must have been an idiot or struck a deal with the state; one or the other, and— despite the request of [Pattis] that I be forced to get on the stand and testify during that—that trial, I didn’t have the chance to defend myself.’ …

"On June 21, 2013, with Attorney Paul Narducci filling in for Carney, Gomez was sentenced in accordance with his plea agreement and the state nolled all other charges in three part B cases…. Narducci told the court that he had ‘spoken with [Carney] on this. Your Honor is fully aware with the underlying factual basis for this. [Carney] informs me that as part of an agreement [Gomez] has pled to the hindering prosecution [charge].’ " (Citations omitted.)

The petitioner commenced this habeas action in 2015. On April 29, 2021, he filed the operative third amended petition for a writ of habeas corpus, which contained three counts, one of which is relevant to this appeal. In the third count, the petitioner alleged prosecutorial misconduct stemming from Gomez’ testimony at the petitioner’s criminal trial. Specifically, the petitioner alleged that "the state failed to disclose exculpatory information regarding an informal agreement or understanding or an expectation of leniency between the state and [Gomez] regarding favorable consideration in exchange for his cooperation in testifying at the...