Robinson v. Commissioner of Correction

R
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         TYRONE ROBINSON v. COMMISSIONER
                 OF CORRECTION
                    (AC 43041)
                   Alvord, Alexander and Vertefeuille, Js.

                                  Syllabus

The petitioner, who had been convicted of murder and criminal possession
   of a firearm, sought a second writ of habeas corpus, claiming, inter alia,
   that the state violated his right to due process, pursuant to Brady v.
   Maryland (

373 U.S. 83

), when it failed to disclose to him at his criminal
   trial certain information concerning an alleged bank fraud scheme
   involving a third party, H, and the victim. H had given the police a sworn
   statement asserting that an individual he knew as Lenny had asked him
   to open a bank account and to provide him with an account number.
   H alleged that Lenny would then deposit money into the account after
   which H could withdraw a certain amount. H’s statement to the police
   and certain bank records were admitted into evidence in the petitioner’s
   second habeas trial, at which H invoked his fifth amendment privilege
   against self-incrimination and refused to testify. The petitioner, who
   had admitted to several individuals that he shot the victim, claimed that
   H’s statement and the bank records constituted exculpatory information
   and viable evidence that should have been provided to him to support
   a third-party culpability defense. The habeas court rendered judgment
   denying the habeas petition, concluding, inter alia, that there was no
   reasonable probability that H’s statement or the bank records would
   have been relevant or admissible third-party culpability evidence at the
   criminal trial. On the granting of certification, the petitioner appealed
   to this court. Held that the habeas court properly denied the petition
   for a writ of habeas corpus, as the proffered evidence, which did not
   establish a direct connection to the victim’s murder, was not material
   and, thus, the state’s failure to disclose it did not constitute a Brady
   violation: the possibility that H may have had a motive to kill the victim
   to withdraw the remaining funds from the bank account was insufficient
   to establish a direct connection to the crime, as the evidence, at best,
   created a mere suspicion of a connection between H and the victim,
   and, even if it were assumed that Lenny and the victim were the same
   person, the documents established only that H and the victim knew
   each other for a short time and were engaged in a fraud scheme, which
   did not rise to the level of a legitimate third-party culpability defense,
   particularly in light of the petitioner’s multiple confessions; moreover,
   as a Brady claim is resolved by determining whether the suppressed
   evidence itself is material, the proffered evidence did not create a reason-
   able probability of a different result at the petitioner’s criminal trial on
   the basis of a mere possibility that it could have led to the discovery
   of further evidence, and, contrary to the petitioner’s assertion, the habeas
   court did not improperly decline to consider the effect of the proffered
   evidence in conjunction with an adverse inference from H’s invocation
   of his privilege against self-incrimination, as the finder of fact would
   be prohibited from drawing any adverse inferences from H’s decision
   to invoke the privilege, which could not have affected the petitioner’s
   criminal trial without constituting error; furthermore, because the peti-
   tioner’s claim of ineffective assistance on the part of his prior habeas
   counsel was premised on that counsel’s failure to advance the Brady
   claim in the first habeas proceeding, the habeas court properly denied
   the petition as to that claim.
             Argued March 2—officially released May 11, 2021

                             Procedural History

  Amended petition for a writ of habeas corpus, brought
to the Superior Court in the judicial district of Tolland
and tried to the court, Newson, J.; judgment denying
the petition, from which the petitioner, on the granting
of certification, appealed to this court. Affirmed.
  Naomi T. Fetterman, assigned counsel, for the appel-
lant (petitioner).
  Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Sharmese L. Walcott,
state’s attorney, and Jo Anne Sulik, senior assistant
state’s attorney, for the appellee (respondent).
                          Opinion

   PER CURIAM. The petitioner, Tyrone Robinson,
appeals, following the granting of his petition for certifi-
cation to appeal, from the judgment of the habeas court
denying both counts of his petition for a writ of habeas
corpus. On appeal, the petitioner claims that the court
improperly (1) determined that the state did not violate
his rights to due process and a fair trial by failing to
disclose material, exculpatory evidence at his criminal
trial and (2) denied his claim of ineffective assistance by
the habeas counsel who represented him with respect
to a prior habeas petition. We affirm the judgment of
the habeas court.
   The following recitation of facts was set forth by this
court in the petitioner’s direct appeal from his convic-
tion. ‘‘At the time that the victim, Leonard Lindsay,
was shot, the [petitioner] was living with his girlfriend,
Lashonda Barno. On occasion, the [petitioner] exhibited
jealousy and controlling behavior toward Barno, partic-
ularly with regard to the victim.
  ‘‘Sometime in the spring of 2001, the victim, who had
known Barno for fifteen years because they had gone
to school together, manhandled her at a dance club.
When the [petitioner] learned about this incident, he
became upset and confronted the victim. Following the
incident at the dance club, rumors of a sexual relation-
ship between Barno and the victim began to circulate
in the neighborhood.
   ‘‘In the early morning of October 6, 2002, the victim
drove into a gasoline station on Albany Avenue in Hart-
ford and parked his car so that the driver’s side window
faced the street. Following a report of gunshots fired
at the station, the police found the victim in his car
with a gunshot wound to the head and a bullet hole in
the driver’s side window of the car. The victim was
transported to a hospital, where he died later that day.
The [petitioner] was not immediately identified as hav-
ing committed the crime.
   ‘‘At trial, the state presented evidence that the [peti-
tioner] had admitted to four individuals that he had
killed the victim. Immediately after having shot the vic-
tim, he confessed the killing to Barno and to her cousin.
In September, 2004, he similarly confessed to Eric
Smith, a longtime friend, who so informed the police
in 2005, when Smith was incarcerated. In April, 2008,
the [petitioner] confessed to Larry Raifsnider, a fellow
inmate in a federal prison in Pennsylvania. Although
the [petitioner’s] earlier confessions were consistent
with his claim, at trial, that he had intended only to
frighten the victim, his confession to Raifsnider
described a planned killing.’’ State v. Robinson, 

125
Conn. App. 484

, 486–87, 

8 A.3d 1120

(2010), cert. denied,

300 Conn. 911

, 

12 A.3d 1006

(2011).
tion of General Statutes § 53a-54a and criminal posses-
sion of a firearm in violation of General Statutes § 53a-
217 (a) (1).

Id., 486.

After a jury trial on the murder
charge, the petitioner was found guilty. The weapons
charge was thereafter tried to the court, which found
him guilty and sentenced him on both counts to a total
effective term of fifty years of incarceration.

Id. This
court affirmed

the judgment of conviction on appeal.


Id., 489.

   The petitioner filed his first petition for a writ of
habeas corpus on September 9, 2008, which subse-
quently was amended by his assigned counsel, Attorney
Robert Rimmer, on May 8, 2012. The petitioner alleged
three counts of ineffective assistance of trial counsel,
arguing that his trial counsel was ineffective during both
the trial and the sentencing phase. The court denied the
first habeas petition. This court subsequently dismissed
the appeal. Robinson v. Commissioner of Correction,

167 Conn. App. 809

, 

144 A.3d 493

, cert. denied, 

323
Conn. 925

, 

149 A.3d 982

(2016).
   The petitioner filed his second petition for a writ of
habeas corpus, which is the subject of this appeal, on
November 30, 2015, which was then amended on June
6, 2018. In the first count, the petitioner alleged a viola-
tion of his right to due process at his criminal trial, as
guaranteed by Brady v. Maryland, 

373 U.S. 83

, 87, 

83
S. Ct. 1194

, 

10 L. Ed. 2d 215

(1963),1 because the state
had failed to disclose all relevant details surrounding
an alleged bank fraud scheme between the victim and
a third party, Robert L. Hudson, Jr. The second count
alleged that Attorney Rimmer rendered ineffective
assistance at the first habeas trial by failing to investi-
gate and to present the Brady claim that the petitioner
now advances.
   A trial was held on the petitioner’s second habeas
petition in December, 2018. The petitioner entered into
evidence a sworn statement that Hudson had provided
to the Bloomfield Police Department in October, 2002,
ten days after the victim was found dead. Hudson
explained in the statement that he worked as a bouncer
at a bar in Hartford and had become acquainted with
a man named ‘‘Lenny,’’ who drove a black BMW or
Mercedes Benz. Lenny asked Hudson to open a bank
account for him and to provide him with an account
number. He explained that he would then deposit
$23,000 into the account and Hudson could withdraw
$10,000. Lenny also told Hudson that, if the plan worked,
he could make more money in the future. A couple of
days later, Hudson heard that a man in a black BMW
or Mercedes Benz had been murdered at a gas station
in Hartford and wondered if it was Lenny who had been
shot. Later, while attempting to withdraw more money
from the account, Hudson was apprehended by police
officers. Along with Hudson’s statement, the petitioner
also entered into evidence bank records from Fleet
National Bank, which had been acquired through a
police investigation on October 18, 2002, showing the
relevant deposits, withdrawals, and fraudulent checks.
This information eventually was acquired by the Hart-
ford Police Department.2 Hudson was called to testify at
the habeas trial, but after consultation with an attorney
from the Office of the Public Defender, he invoked his
fifth amendment privilege against self-incrimination in
response to every question except to state his name
and address.
   The petitioner argued that Hudson’s statement to the
police and the bank records should have been provided
to the petitioner’s trial attorneys as exculpatory infor-
mation and viable evidence to support a third-party
culpability defense. The petitioner claimed that the fail-
ure to disclose this information violated his due process
rights under Brady. The court denied the claim, finding
no reasonable probability that this information would
have been relevant or admissible third-party culpability
evidence. The court denied the second count of the
habeas petition because the ineffective assistance of
habeas counsel claim was premised on Attorney Rim-
mer’s failure to investigate and to present the Brady
claim. The court then granted the petitioner’s petition
for certification to appeal, and this appeal followed.
  The petitioner claims that the court improperly deter-
mined that the evidence was not material, stressing that
the documents could have led to the discovery of further
evidence and that the court should have drawn an
adverse inference from Hudson’s invocation of his fifth
amendment privilege. In response, the respondent, the
Commissioner of Correction, argues that the habeas
court properly determined that the petitioner failed to
establish that the documents constituted material
exculpatory evidence. We agree with the respondent.
   We first set forth the applicable standard of review.
‘‘The habeas judge, as the trier of facts, is the sole
arbiter of the credibility of witnesses and the weight
to be given to their testimony. . . . [T]his court cannot
disturb the underlying facts found by the habeas court
unless they are clearly erroneous . . . . The applica-
tion of the habeas court’s factual findings to the perti-
nent legal standard, however, presents a mixed question
of law and fact, which is subject to plenary review.’’
(Citation omitted; internal quotation marks omitted.)
Godfrey v. Commissioner of Correction, 202 Conn.
App. 684, 693,            A.3d        (2021). Moreover,
‘‘[w]hether the petitioner was deprived of his due pro-
cess rights due to a Brady violation is a question of
law, to which we grant plenary review.’’ Walker v. Com-
missioner of Correction, 

103 Conn. App. 485

, 491, 

930
A.2d 65

, cert. denied, 

284 Conn. 940

, 

937 A.2d 698

(2007).
  ‘‘In [Brady v. 

Maryland, supra

, 

373 U.S. 83

] . . . the
United States Supreme Court held that the suppression
by the prosecution of evidence favorable to an accused
. . . violates due process where the evidence is mate-
rial either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution. To establish
a Brady violation, the [petitioner] must show that (1)
the government suppressed evidence, (2) the sup-
pressed evidence was favorable to the [petitioner], and
(3) it was material [either to guilt or to punishment].’’
(Internal quotation marks omitted.) Floyd v. Commis-
sioner of Correction, 

99 Conn. App. 526

, 533–34, 

914
A.2d 1049

, cert. denied, 

282 Conn. 905

, 

920 A.2d 308

(2007). All three components must be established in
order to warrant a new trial. See Lapointe v. Commis-
sioner of Correction, 

316 Conn. 225

, 262, 

112 A.3d 1

(2015).
   The habeas court in the present case addressed only
the third prong of the Brady test, finding that the prof-
fered evidence was not material. ‘‘The test for material-
ity is well established. The United States Supreme Court
. . . in United States v. Bagley, 

473 U.S. 667

, 682, 105 S.
Ct. 3375, 

87 L. Ed. 2d 481

(1985), [held] that undisclosed
exculpatory evidence is material, and that constitu-
tional error results from its suppression by the govern-
ment, if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of
the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine con-
fidence in the outcome. . . . [A] showing of materiality
does not require demonstration by a preponderance
that disclosure of the suppressed evidence would have
resulted ultimately in the defendant’s acquittal.’’ (Inter-
nal quotation marks omitted.) Elsey v. Commissioner
of Correction, 

126 Conn. App. 144

, 157, 

10 A.3d 578

,
cert. denied, 

300 Conn. 922

, 

14 A.3d 1007

(2011). ‘‘[A]
trial court’s determination as to materiality under Brady
presents a mixed question of law and fact subject to
plenary review, with the underlying historical facts sub-
ject to review for clear error.’’ (Internal quotation marks
omitted.) Lapointe v. Commissioner of 

Correction,
supra

, 

316 Conn. 264

.
   In order for evidence related to a third-party culpabil-
ity defense to be material, it would first have to meet
the relevancy requirements for such a defense. ‘‘The
admissibility of evidence of [third-party] culpability is
governed by the rules relating to relevancy. . . . Rele-
vant evidence is evidence having any tendency to make
the existence of any fact that is material to the determi-
nation of the proceeding more probable or less probable
than it would be without the evidence. . . . Accord-
ingly . . . the proffered evidence [must] establish a
direct connection to a third party, rather than raise
merely a bare suspicion regarding a third party . . . .
Such evidence is relevant, exculpatory evidence, rather
than merely tenuous evidence of [third-party] culpabil-
ity [introduced by a defendant] in an attempt to divert
from himself the evidence of guilt. . . . In other words,
evidence that establishes a direct connection between
a third party and the charged offense is relevant to the
central question before the jury, namely, whether a
reasonable doubt exists as to whether the defendant
committed the offense. Evidence that would raise only
a bare suspicion that a third party, rather than the defen-
dant, committed the charged offense would not be rele-
vant to the jury’s determination. A trial court’s decision,
therefore, that [third-party] culpability evidence prof-
fered by the defendant is admissible, necessarily entails
a determination that the proffered evidence is relevant
to the jury’s determination of whether a reasonable
doubt exists as to the defendant’s guilt.’’ (Emphasis
added; internal quotation marks omitted.) Johnson v.
Commissioner of Correction, 

330 Conn. 520

, 564–65,

198 A.3d 52

(2019).
   The petitioner has failed to establish a direct connec-
tion between the proffered evidence and the victim’s
murder. As the respondent points out, the petitioner
failed to establish that the individual known as Lenny,
with whom Hudson had entered into the check-cashing
scheme, was the murder victim, Leonard Lindsay. Even
if we assume that the Lenny in the sworn statement
and the murder victim are the same person, as the
habeas court did, the documents establish only that
Hudson and the victim knew each other for a short
time and were engaged in a fraud scheme together. This
evidence does not rise to the level of a legitimate third-
party culpability defense, particularly in light of the
petitioner’s multiple detailed confessions.3 The possibil-
ity that Hudson may have had a motive to kill the victim
to withdraw the remaining funds from the bank
account, is insufficient to establish a direct connection
to the crime. See State v. Hedge, 

297 Conn. 621

, 634–35,

1 A.3d 1051

(2010) (explaining that, without evidence
that directly connects third party to crime, ‘‘[i]t is not
enough to show that another had the motive to commit
the crime’’ (internal quotation marks omitted)). The
proffered evidence, at best, creates a mere suspicion
of a connection between Hudson and the victim and
is, therefore, not material.
   As to the petitioner’s argument that the documents
could have led to the discovery of further evidence, a
Brady claim is resolved by determining whether the
suppressed evidence itself is material. Lapointe v. Com-
missioner of 

Correction, supra

, 

316 Conn. 263

(‘‘materi-
ality is established if the withheld evidence is of suffi-
cient import or significance in relation to the original
trial evidence’’ (emphasis added)). We cannot conclude
that these documents create a reasonable probability
of a different result at trial on the basis of a mere
possibility that they could have led to the discovery of
further evidence.4
  Last, the petitioner argues that the habeas court
should have considered the effect of the evidence in
conjunction with an adverse inference from Hudson’s
invocation of the privilege against self-incrimination.
As the respondent correctly points out, however, in a
criminal trial ‘‘a witness may not be called to the [wit-
ness] stand in the presence of the jury merely for the
purpose of invoking his privilege against self-incrimina-
tion.’’ State v. Dennison, 

220 Conn. 652

, 660, 

600 A.2d
1343

(1991). Further, if Hudson did invoke the privilege,
the finder of fact would be prohibited from drawing
any adverse inferences from this decision. See

id.,
660–62;

State v. Bryant, 

202 Conn. 676

, 683–84, 

523 A.2d
451

(1987). Accordingly, if Hudson’s invocation of the
privilege could not have affected the petitioner’s crimi-
nal trial without constituting error, it was not improper
for the habeas court to decline to consider Hudson’s
invocation of the privilege.
   In light of the applicable standard, and after a careful
review of the record, we conclude that the habeas court
properly determined that the state’s failure to disclose
evidence of the bank fraud scheme did not undermine
confidence in the jury’s verdict. This evidence, there-
fore, was not material, and the state’s failure to disclose
it did not constitute a Brady violation.
  Because the petitioner’s claim of ineffective assis-
tance on the part of his prior habeas counsel is premised
on Attorney Rimmer’s failure to advance the Brady
claim, we also conclude that the court properly denied
the habeas petition with respect to this claim.5
      The judgment is affirmed.
  1
     ‘‘In [Brady v. 

Maryland, supra

, 

373 U.S. 83

], the United States Supreme
Court held that the suppression by the prosecution of evidence favorable
to an accused upon request violates due process [when] the evidence is
material either [as] to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.’’ (Internal quotation marks omitted.) Lapointe
v. Commissioner of Correction, 

316 Conn. 225

, 262, 

112 A.3d 1

(2015).
   2
     The habeas court explained that it was not contested that the ‘‘informa-
tion, which was originally gathered by the Bloomfield Police Department,
was turned over to the Hartford Police Department and was contained in
the file related to the murder of the victim. What is not clear, nor established
by any evidence before this court, is exactly when it was delivered to the
Hartford police, or why.’’
   3
     ‘‘Whether a defendant has sufficiently established a direct connection
between a third party and the crime with which the defendant has been
charged is necessarily a fact intensive inquiry. In other cases, this court has
found that proof of a third party’s physical presence at a crime scene,
combined with evidence indicating that the third party would have had the
opportunity to commit the crime with which the defendant has been charged,
can be a sufficiently direct connection for purposes of [third-party] culpabil-
ity. . . . Similarly, this court has found the direct connection threshold
satisfied for purposes of [third-party] culpability when physical evidence
links a third party to a crime scene and there is a lack of similar physical
evidence linking the charged defendant to the scene. . . . Finally, this court
has found that statements by a victim that implicate the purported third
party, combined with a lack of physical evidence linking the defendant to
the crime with which he or she has been charged, can sufficiently establish a
direct connection for [third-party] culpability purposes.’’ (Citations omitted.)
State v. Baltas, 

311 Conn. 786

, 811–12, 

91 A.3d 384

(2014). For example, in
Baltas, our Supreme Court found that the defendant was not entitled to a
jury instruction on a third-party culpability defense even when it was undis-
puted that the third party was physically present at the crime scene and
the third party’s clothing was stained with a victim’s blood.

Id., 812.
4

     The petitioner argues that our Supreme Court has ‘‘explicitly rejected
such a restrictive approach to Brady violations,’’ citing to language from
Lapointe v. Commissioner of 

Correction, supra

, 

316 Conn. 262

n.34. The
language cited, however, refers not to materiality but to the favorability
prong of Brady and clarifies that evidence does not have to be admissible
in its present form to be deemed favorable and subject to mandatory disclo-
sure.

Id. The state must

disclose ‘‘material information potentially leading
to admissible evidence favorable to the defense’’; (internal quotation marks
omitted) id.; but that does not necessarily mean that information that could
potentially lead to favorable evidence is material under Brady.
   5
     ‘‘In Strickland v. Washington, [

466 U.S. 668

, 687, 

104 S. Ct. 2052

, 80 L.
Ed. 2d 674 (1984)], the United States Supreme Court established that for a
petitioner to prevail on a claim of ineffective assistance of counsel, he must
show that counsel’s assistance was so defective as to require reversal of
[the] conviction . . . . That requires the petitioner to show (1) that coun-
sel’s performance was deficient and (2) that the deficient performance
prejudiced the defense. . . . Unless a [petitioner] makes both showings, it
cannot be said that the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable. . . . Because both
prongs . . . must be established for a habeas petitioner to prevail, a court
may dismiss a petitioner’s claim if he fails to meet either prong.’’ (Internal
quotation marks omitted.) Vazquez v. Commissioner of Correction, 

128
Conn. App. 425

, 430, 

17 A.3d 1089

, cert. denied, 

301 Conn. 926

, 

22 A.3d 1277

(2011). Because the proffered evidence is not material, the habeas court
correctly concluded that the petitioner did not suffer prejudice from his prior
habeas counsel’s failure to investigate and present the allegedly suppressed
documents.

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