Stevenson v. Comm'r of Corr.

165 Conn.App. 355

139 A.3d 718

Terrance STEVENSON

v.COMMISSIONER OF CORRECTION.

No. 37559.

Appellate Court of Connecticut.

Argued Jan. 12, 2016.

Decided May 10, 2016.

Stephen A. Lebedevitch, for the appellant (petitioner).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Adrienne Maciulewski, assistant state's attorney, for the appellee (respondent).

DiPENTIMA, C.J., and LAVINE and KELLER, Js.

DiPENTIMA, C.J.

The petitioner, Terrance Stevenson, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court erred when it concluded that (1) the state did not commit a Brady¹ violation and (2) there was no reasonable likelihood that the false testimony of a state's witness affected the judgment of the jury. We affirm the judgment of the habeas court.

The facts underlying the petitioner's conviction were recounted in this court's decision disposing of his direct appeal: “On March 21, 1994, Jeffrey Dolphin became involved in a dispute with James Baker and the [petitioner] over a lost quantity of cocaine. At some point during this dispute, Baker, Dolphin and the [petitioner] were joined by Jermaine Harris, also known as ‘Chico,’ and Trent Butler. While Dolphin maintained that a third party lost the cocaine, the [petitioner] blamed Dolphin for the missing cocaine and pulled a gun on him.

“Thereafter, Baker asked, ‘Why don't we make this motherfucker do it?’ The [petitioner] pointed the gun at Dolphin again and forced him into the back of an old white station wagon driven by Baker. Butler, Harris, and the [petitioner] were also in the car. Butler then told Dolphin that they wanted him to shoot somebody to make up for the money that he had lost, which Dolphin refused to do.

“Upon Dolphin's refusal, Harris stated that he would shoot the victim, Amenophis Morris. At that point, Baker parked the vehicle on Exchange Street in New Haven, about one-half block from the victim's home. Harris got out of the car, put on a mask and walked to the victim's home accompanied by the [petitioner], while the others remained behind. Both of the men were armed. Dolphin then heard nine or ten gunshots from the direction of the victim's home, although he could not see who was shooting. When Harris and the [petitioner] returned to the vehicle, Harris shouted, ‘I got him!’ The victim had been shot to death as he sat on his front porch eating dinner.

“When the men let Dolphin out on another street, they threatened him and told him not to say anything about what had happened. Approximately one month after the homicide, the New Haven police department arrested Dolphin on unrelated narcotics charges. While in custody, Dolphin provided the police with information implicating Baker, Butler and Harris in the homicide. Dolphin did not give the police the [petitioner's] name or his street name, ‘Joe the Flea.’ The following day, Dolphin made a photographic identification of Harris.

“In February, 1995, in a tape-recorded statement, Dolphin informed Butler's attorney, Leo Ahern, that the information he had told the police was false. Thereafter, in early March, 1995, in another conversation with the New Haven police, Dolphin made photographic identifications of Butler and Baker. At that time, Dolphin stated to the police that he did not recognize anyone else in the array of photographs, including the [petitioner]. In September, 1995, Dolphin informed the state's attorney's office that the statement that he made to Ahern was false. It was not until October 31, 1995, that Dolphin informed the police that the fourth individual involved in the homicide was ‘Joe the Flea,’ and that his real name was Terrance Stevenson, the [petitioner].” State v. Stevenson, 53 Conn.App. 551, 553–55, 733 A.2d 253, cert. denied, 250 Conn. 917, 734 A.2d 990 (1999).

The habeas court found the following additional facts and provided the procedural history underlying this appeal. “Dolphin was the key state's witness against the petitioner, placing him at the scene of the crime and confirming his participation in the shooting and its planning. Thus, Dolphin's credibility was a key issue at the criminal trial.

“At the criminal trial, on direct examination, the jury was informed about Dolphin's inconsistent statements to police and ... [to] Ahern regarding his identification of the petitioner, including that he lied to police and to Ahern. The petitioner's trial counsel also highlighted on cross-examination other important inconsistent statements made by Dolphin.

“Dolphin testified at the criminal trial that the reason he did not initially identify the petitioner was because he had been threatened by the petitioner's codefendants and others on a number of different occasions before and while he was incarcerated. In particular, Dolphin testified that immediately after the shooting, he did not report events to the police because he had been threatened by the petitioner and the codefendants, and as a result he was concerned for his mother and sister. He also testified that while he was incarcerated at the [New Haven Correctional Center], on several different occasions, he was threatened by the petitioner's codefendants and others not to testify against them.

“Dolphin testified as to one of these events in particular that he believed occurred on March 8, 1995, when he was transferred to the New Haven courthouse. On that date, he was threatened twice, once by Butler at the [New Haven Correctional Center] bull pen prior to being transferred to court and then later in the courthouse lockup by other inmates who roughed him up. When he returned to [the New Haven Correctional Center], Butler approached the petitioner and asked him ‘if he got the message.’

“The petitioner claims that [Department of Correction (department) ] documents, not disclosed to him by the state, show that Dolphin and Butler were not transferred together to the New Haven courthouse on March 8. The petitioner claims that the state had a duty to produce these documents to him at the time of the trial to impeach Dolphin as to his claim that he was threatened on March 8. The petitioner also claims that the state failed to correct Dolphin's testimony as to which date he was threatened.

“At the habeas trial, the petitioner introduced internal administrative [department] information profile screens, known as ‘RT–42s.’ The purpose of this document is to identify inmates who should be separated from each other. A prosecutor may request that [the department] keep inmates separated at [department] facilities. The RT–42s are not contained in an inmate's master file, and not everyone at [the department] has clearance to review such documents. A person would have to know of the existence of such documents and expressly request them in order to obtain a copy.

“The petitioner introduced an RT–42 for Dolphin, indicating that he should be kept separated from Butler and Baker because Dolphin was expected to testify against them.... [Michael] Pepper, [an assistant state's attorney] who prosecuted the petitioner's criminal case, did not request that [the department] keep Dolphin separate from Baker and Butler, and was not aware of the existence of the RT–42 in this case.... Pepper did not have this document or any other [department] administrative documents in his file.

“Other [department] documents, including the continuance mittimuses, showed that while Dolphin had a court date on March 8, Butler did not.... Pepper was aware of this fact and at the criminal trial presented the testimony of a [department] employee, James Barone, during his rebuttal case to clarify that Butler and Dolphin were not transported together on March 8. However, Barone confirmed that the two were housed together at [the New Haven Correctional Center] around the time of the threats.

“Other [department] internal administrative documents, known as RT–60s, which show inmate movements, established that on February 22, 1995, Dolphin and Butler were together at the [New Haven Correctional Center]. A [department] transfer list from February 23, 1995, shows that Butler and Dolphin were transferred from [the New Haven Correctional Center] on that day.”

“The petitioner was convicted after a jury trial of murder as an accessory in violation of General Statutes §§ 53a–54a (a) and 53a–8 and conspiracy to commit murder in violation of General Statutes §§ 53a–54a and 53a–48 (a). He was sentenced to sixty years in prison.

“The petitioner appealed his convictions ... [and the Appellate Court] rejected [his] claims and affirmed the convictions. [State v. Stevenson, supra, 53 Conn.App. at 553, 733 A.2d 253]. [Our] Supreme Court denied [his] petition for certification. State v. Stevenson, 250 Conn. 917, 734 A.2d 990 (1999).

“The petitioner has brought two prior petitions for habeas relief, asserting claims that his trial counsel, habeas counsel and appellate counsel were all ineffective.... Both prior petitions were denied, and the decisions were affirmed on appeal. See Stevenson v. Commissioner of Correction, 112 Conn.App. 675, 963 A.2d 1077, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009) ; Stevenson v. Commissioner of Correction, 67 Conn.App. 908, 792 A.2d 909, cert. denied, 260 Conn. 905, 795 A.2d 547 (2002).

“In this, the petitioner's third habeas petition, he claim[ed] that his constitutional right to due process was violated (1) as a result of the state's failure to disclose [department] documents that were material and exculpatory; and (2) by the prosecutor's failure to correct [Dolphin's] purported false testimony....” The court found that the petitioner had not proven either of his claims because the department was not an investigative arm of the state and there was no reasonable likelihood that Dolphin's false testimony could have affected the judgment of the jury. The petition for certification was granted by the court....