Opinion
CV154007247S
12-12-2017
Kevin JACKSON v. WARDEN, STATE PRISON
UNPUBLISHED OPINION
OPINION
Sferrazza, J.
The petitioner, Kevin Jackson, seeks habeas corpus relief from a total, effective sentence of fourteen years imprisonment and six years special parole, imposed after a bench trial, for the crimes of assault first degree and witness tampering. The petitioner appealed from that judgment of conviction, and the Appellate Court heard oral argument on October 12, 2017, State v. Jackson, AC 38227.
The petitioner asserts two grounds for habeas corpus relief, viz. ineffective assistance of defense counsel, Attorney Beth Merkin; and a freestanding due process violation stemming from the state’s failure to preserve the petitioner’s automobile which itself was or contained relevant evidence.
Judge Fischer made the following findings: " That on February 10, 2014, at 135 4th Street in Hamden, Connecticut, at approximately 8:20 in the evening Geoffrey Golding was stabbed by Kevin Jackson with a knife four times. The address is where Geoffrey Golding resided with his girlfriend at the time and their young children. His girlfriend’s name is Sammantha Wright. Kevin Jackson, the defendant, is a friend of Mr. Golding and he has come over to his residence the past several years, either on a monthly or a bi-monthly basis. Mr. Jackson resides in the Philadelphia area down in Pennsylvania. They had been friendly for approximately two years or so. Geoffrey Golding is 25 years old. Mr. Golding was stabbed three times in his abdomen, and one time on his left elbow. He underwent surgery for his stab wounds. He had a lacerated liver. He had numerous puncture marks to his small intestines and part of his small intestine was removed. He was hospitalized for several days after the surgery. The medical records are indicated in State’s Exhibit number 18. The injuries to Mr. Golding were serious and they were life threatening. The surgical risks as this court finds credible were infections, extensive bleeding, potential obstructions in his intestines, and his liver was lacerated which is a vital organ. He did have extensive bleeding as a result of his injuries. He has extensive, Mr. Golding has [sic] extensive scarring in his stomach area, also to his elbow area, and a puncture in his abdomen and this court did observe that scarring and would refer to it as extensive scarring.
Mr. Goldling did not look to see who stabbed him. There was no other adult that was in the home at that time besides Sammantha Wright and the defendant, Kevin Jackson. Samantha Wright has known the defendant for approximately two years. Sammantha Wright was in the bedroom, sitting on her bed at approximately 8:20 when she saw the defendant stabbing Mr. Golding in the hallway outside her bedroom. Again, no other adults were in the home but Mr. Golding and the defendant. Miss Wright was approximately 10 feet away from the defendant when he was stabbing Mr. Golding. The court finds that her testimony is credible. The hallway was well illuminated and her bedroom was also illuminated. Miss- Ms. Wright saw the faces of Mr. Golding and Mr. Jackson.
The defendant did not have a mask or a hoodie on at all, nothing that was concealing his face. Miss Wright was 100% sure it was the defendant who was stabbing Mr. Golding. She then sees Mr. Golding, her boyfriend, bleeding, and she then calls 911, and as the evidence shows she tells the dispatcher that Kevin Jackson just stabbed Mr. Golding. The defendant leaves the house after the stabbing. The defendant, a short time later is detained at the Walmart in New Haven, I think it’s approximately 90 minutes later. At that time he was in the Walmart and he was shoplifting a machete. Sammantha Wright is brought to the Walmart and she positively identifies Mr. Jackson as the person who did the stabbing. He had the same clothing on that he had on during the stabbing. Also, on Mr. Jackson’s presence was the kitchen knife he used to stab the victim, Mr. Golding.
On the blade of the knife was blood stains that were confirmed by DNA analysis to be the blood of the victim, Mr. Golding, that’s State’s number 27. In the defendant’s car, this is Mr. Jackson’s car, he had a three-piece cutlery set, State’s Exhibit number 21. The knife he used was one of the three pieces, the smaller piece from that cutlery set, that smaller knife had been removed from the packet and it was identical to the other two knives from that set, same color, same style. The defendant testified and he alleges that two other men entered the home that evening. The court does not find credible his testimony of others in the home that evening. The court does not find credible his denial of stabbing Mr. Golding. Mr. Jackson has two felony convictions.
Now, Mr. Golding, after he returned home after the surgery he did receive a letter from the defendant which is State’s Exhibit 13B. He did read the letter but he did not understand the letter. Now, Sammantha Wright also received a letter from the defendant shortly after the stabbing which is State’s Exhibit 15B. It was addressed to her and the letter states in part, and I quote directly from the letter, " Sam, please tell them you are not sure who it was. They think it’s me." She was scared and upset after receiving the letter, reading the letter, she immediately called the police department after the receipt of the letter."
" The fourth and final count concerns a letter that was received by Sammantha Wright, and again I put on the record my finding and this is different than count three, where he specifically says, this is the defendant in the letter, " Sam, please tell them you are not sure who it was, that they think it’s me." And it’s directed to Sammantha Wright, signed by the defendant and I do make a finding that each and every element of the elements needed in tampering with a witness have been proven on that count, the fourth count. So Madam Clerk, on the fourth count it’s a finding of guilty. She read it. She was upset by it. She was scared. She called the police right away, " State v. Jackson, Superior Court, New Haven Judicial District, d.n. CR 14-277293 (November 26, 2014), transcript pp. 41 to 48.
Ineffective Assistance Claim
Our Supreme court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, that his attorney’s performance was substandard and that there exists a reasonable likelihood that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that habeas counsel’s representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra.
This standard of reasonableness is measured by prevailing, professional practices. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel’s conduct from that attorney’s perspective at the time of the representation. Id.
If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel’s competence. Pelletier v. Warden, 32 Conn.App. 38, 46 (1993). In order to satisfy the prejudice prong of Strickland test, the petitioner must prove that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640 (1985). Reasonable probability means a probability sufficient to undermine confidence in the outcome. Daeira v. Commissioner, 107 Conn.App. 539, 542-43 (2008), cert. denied, 289 Conn. 911 (2008).
The petitioner alleges that Attorney Merkin represented him deficiently in the following specific ways:
1. she failed to conduct an adequate investigation into the facts and circumstances of the case;
2. she failed to consult with, retain, and present the testimony of an expert witness with expertise in crime scene reconstruction;
3. she failed to consult with, retain, and present the testimony of an expert witness with expertise in blood spatter patterns;
4. she failed to file a motion to dismiss the case or seek other appropriate remedies under State v. Morales, 232 Conn. 707 (1995) based on the police’s disposal of evidence relevant to the defense;
5. she failed to obtain and present an accurate diagram of the floorplan of the house where the crime occurred;
6. she failed to adequately cross examine, impeach, and otherwise challenge the testimony of Sammantha Wright;
7. she failed to adequately cross examine, impeach, and otherwise challenge the testimony of Geoffrey Golding; and,
8. she failed to present the testimony of Samiya Williams.
Because the state’s evidence of the petitioner’s guilt was overwhelming and the petitioner’s version of events so implausible, the court addresses the prejudice component of the Strickland standard directly.
A careful examination of the trial transcript and exhibits admitted at the criminal trial, in conjunction with the credible evidence adduced at the habeas trial, the court makes the following findings of fact and rulings of law. The petitioner and the victim met as participants in a clinical trial conducted at Yale University. The petitioner resided in Philadelphia, Pennsylvania, and commuted to New Haven to attend the clinical trials. Occasionally, the victim of the alleged assault permitted the petitioner to stay overnight at the victim’s home in Hamden, Connecticut. The victim resided in a small house with his girlfriend, Ms. Wright, and their two children. When the petitioner stayed over, he slept in the bedroom of the couple’s two-year-old son.
On February 10, 2014, the petitioner arrived at the victim’s home at around ten or eleven a.m., and spent most of that day at that residence. Because the petitioner was in the process of moving his residence, he carried packed luggage in the trunk of his car, a blue Buick, and kept a crate with personal items in the passenger compartment. On that day, he had parked his car on a street adjacent to the victim’s house. The victim and Ms. Wright had known the petitioner for around two years at that time. The victim and Wright both testified at the criminal trial that no other visitors or other individuals entered their home throughout that day and evening.
Around eight p.m., Wright sat on a bed situated in the middle of the couple’s bedroom while she folded laundry. She glanced out of her bedroom doorway into the hallway and saw the petitioner positioned just behind the victim. The petitioner was stabbing at the victim. She assumed this was horseplay and admonished the two men to cease this activity. At the moment when the victim and the petitioner were at the threshold of the bedroom doorway, Wright saw the petitioner stab at the victim’s left side.
The victim closed the bedroom door and clutched his arm against his chest. When he lowered that arm, Wright observed that he was bleeding. Wright immediately became distraught and quickly locked the door and called 911 for an ambulance. In that call, she identified the petitioner as the victim’s assailant by name, stated that he was from Philadelphia, and that he was a family friend.
From their bedroom window, the victim and Wright could see the petitioner’s Buick. Once assured that the car had left, they ventured out of the bedroom. The police and emergency personnel arrived very soon thereafter. Wright described the petitioner, his clothing, and his vehicle bearing Pennsylvania plates.
Both Wright and the victim testified that no hostility or dispute preceded the petitioner’s attack upon the victim. The victim had three stab wounds to his abdomen, a wound on his left elbow, two wounds on his right side, and one on his left side. The victim underwent surgery to repair a lacerated liver and to remove a damaged portion of his small intestines.
Throughout the police investigation and the pretrial and trial stages of the case against the petitioner, the victim declined to identify his attacker because he " just didn’t want to be involved with the police or anything ..." However, he confirmed that the only persons present in the home at the time of the attack were himself, Wright, their two small children, and the petitioner.
Around ten p.m., the night of the incident, a New Haven police officer approached the petitioner while the petitioner attempted to steal a machete from a Walmart store. Store security and New Haven police officer Douglas Cargill had watched the petitioner on a store surveillance screen as he handled an item containing the machete that was exposed for sale. The petitioner retrieved a small paring knife from his jacket pocket, pried open the packaging, and removed the machete. He then concealed the machete under his jacket.
Officer Cargill and other New Haven police officers confronted and apprehended the petitioner, after a brief struggle, as the petitioner exited the store. The New Haven police seized identification documents as well as the paring knife from the petitioner’s person.
As these events unfolded, a store security employee heard a police bulletin that indicated the petitioner was wanted for the stabbing in Hamden. As a result, the New Haven officers kept the petitioner in custody at the Walmart location until Hamden police officers arrived. The Hamden officers took custody of the paring knife, the petitioner’s car keys, and his cell phone. Although the petitioner appeared to have no blood on his clothes, the blade of the paring knife did.
The state laboratory later analyzed the blood staining on the paring knife and determined that the victim’s blood was there. Lacking a sample of the petitioner’s DNA, no comparison of the other deposits of DNA that were detected with the petitioner’s DNA was performed.
The police also seized the petitioner’s Buick at the Walmart location. The doors were locked, showed no signs of damage or forced entry, and the police unlocked the car using the petitioner’s keys without difficulty. The vehicle was towed and impounded.
The Hamden police obtained a search warrant and conducted a search of the Buick. That search revealed the presence of a three-piece knife set, with the paring knife missing. The paring knife recovered from the petitioner matched the other knives in the set.
The petitioner contends that this was a case of misidentification by Wright and an unfortunate string of seemingly inculpatory events. He testified at the criminal trial that the victim had another unidentified guest at the home besides the petitioner. When the petitioner stepped outside the house to smoke, he noticed the driver of a red car suspiciously casing the area. Later, he observed a male, possibly the driver of the red car, cover his lower face with a black shirt and head toward the victim’s residence. The petitioner thought nothing of this activity because it was a cold, winter evening.
Eventually, he was surprised to see that the interior lights of his car were on. Upon checking the vehicle, he realized that his laptop computer, a Play Station console, DVDs and CDs, and some clothes were missing. He exited his car and reentered the victim’s house. Within seconds, he saw a masked individual rapidly departing. He spotted the paring knife on the living room floor and heard a commotion emanating from his host’s bedroom. " Instinctively, " he picked up the knife, pursued the intruders, and shouted at them.
During this confrontation, he became concerned that one of the two men he faced might have a firearm. This apprehension caused the petitioner to run to his car and flee the area. Rather than seek refuge in his friend’s home, phone for help, or drive for aid, the petitioner drove to Walmart to steal a machete he had seen there previously. He reasoned that, so armed, he could safely return to the victim’s residence.
He explained the absence of evidence of a forced entry into his car on the possibility that the thieves discovered that a faulty rear window in the Buick easily slid open, allowing access to his car. He had inserted a piece of cardboard to stop the window from accidentally opening, and he speculated that the perpetrators recognized that as a sign that the malfunctioning window could allow access to his car.
As enumerated above, the petitioner alleges that Attorney Merkin inadequately cross examined the victim and Ms. Wright. The petitioner presented the testimony of a legal expert, Attorney Kenneth Simon. Attorney Simon voiced no criticism of Attorney Merkin with respect to her cross examination of these witnesses. The court’s own review of that material shows that Attorney Merkin thoroughly and admirably executed that task. The petitioner has never particularized the allegation of this deficiency, and the court cannot discern any prejudice to the petitioner derived therefrom.
The petitioner also pleads that Attorney Merkin ought to have presented the testimony of Samiya Williams at the criminal trial. She never testified at the habeas trial, either. It is incumbent upon the petitioner to establish the ways in which defense counsel’s failure to interview and/or present a witness negatively affected the pertinent proceeding, Henderson v. Commissioner, 129 Conn.App. 188, 195 (2011). " [P]rejudice cannot be demonstrated with regard to trial counsel’s failure to interview potential witnesses where petitioner fails to call those witnesses to testify at the habeas trial or offer proof that their testimony would have been favorable to him at the criminal trial." Id.
The petitioner’s central complaints about Attorney Merkin’s representation revolve around the failure to offer proof that Wright had no available line-of-sight from her seated position on the bed to view the attack upon the victim. He decries her failure to consult with and present the testimony of a crime scene reconstructionist with respect to blood spatter patterns and the floorplan of the home. The court determines that these purported deficiencies played no role in the jury’s assessment of the petitioner’s guilt.
The victim, himself, testified that the stabbing began in the hallway that provided access to a bathroom, living room, and the bedrooms, and began nearest to his son’s bedroom doorway. His assailant continued to deliver blows as the victim fled toward his bedroom where Ms. Wright was. The petitioner’s forensics expert, Peter Valentin, testified at the habeas trial and confirmed this path of attack through his inspection of the police photographs of the blood droplets on the floor of the hallway.
Valentin had no opinion as to whether the assault continued up to the threshhold of Ms. Wright’s bedroom as both Wright and the victim had avowed. At that threshhold, the flooring changed from wood to carpeting, and large blood stains saturated the carpet in the bedroom. Even though Wright’s view into the hallway was limited, she testified she chided the victim and the petitioner about what she initially perceived as friendly foolery.
Also, the evidence disclosed no plausible explanation for why the victim, who testified " reluctantly, " and Ms. Wright both denied the presence of other persons in their home at the time of the stabbing. If these witnesses wished to conceal, through false statements, the true identity of the victim’s attacker, they could simply have claimed that the perpetrator(s) was or were unknown intruders, as the petitioner testified. There was no motive or need to cast blame on the petitioner, a family friend. Wright’s frantic 911 call disspells any argument that Wright and the victim contrived a false accusation sometime after the incident.
Also, the petitioner’s version is devoid of any credence. He constructs a scenario where he is situated, smoking, just outside the victim’s residence, and, yet, masked intruder(s) still choose to enter the home and attack the victim. He is compelled to claim that one or more unknown persons broke into his car, without leaving signs of forced entry, discovered his three-piece knife set, removed only a paring knife, and then used that serendipitous find as the weapon of choice to assault the victim for no apparent reason. The assailants then leave the knife on the living room floor, where the petitioner quickly finds it, and decides his best course of action is to put it in his jacket pocket.
The petitioner also avowed that the theft from his car occurred during the time period while he exited and reentered the residence to smoke cigarettes. He accosted the suspected thieves, thought better of it, and drove to Walmart where he might steal a machete with which, presumably, to drive back and defend himself in case the perpetrators lingered there. Never once did the petitioner claim to have inquired about the welfare of his host and friend and his family.
The petitioner’s story, under oath, defies logic and a commonsense understanding of human nature. An error-free diagram of the crime scene and information from a crime scene reconstructionist would have simply no effect on the outcome of this case in light of the petitioner’s own conduct and the absurdity of his account of his actions.
Next, the court addresses the petitioner’s contention that the unavailability of his car for examination by the defense prejudiced him. When the Buick was impounded on February 10, 2014, Hamden police officer, William Iannone filled out and filed a " Notice of Motor Vehicle Tow" form. Seven days later, Detective William Onofrio again filled out such a form, permitting the Buick to be stored with Lombard Motors of Hamden. That form contained a comment stating, " *Can Release to Owner- Kevin Jackson*." Detective Onofrio authored a third version of the form on September 12, 2014, which form contained the same comment.
As early as March 5, 2014, prior defense counsel, Attorney Scott Jones, filed a generic motion to preserve all " material" evidence. That motion lacked specific reference to the Buick. Judge Clifford granted the motion on April 16, 2014. Despite this order, the storage company sold the vehicle at auction before the petitioner’s criminal trial. Attorney Merkin never moved for sanctions based on that failure to preserve. It should be noted that the evidence seized from the vehicle was preserved and available for examination along with police photographs of the Buick around the time of seizure.
In State v. Morales, 232 Conn. 707 (1995), our Supreme Court declined to adopt the holding of the United States Supreme Court in Arizona v. Youngblood, 488 U.S. 51 (1988), regarding the failure of the prosecution/police to retain the victim’s jacket for possible use by the defense as evidence in a criminal trial. In Arizona v. Youngblood, supra, the high court held that a defendant was only entitled to dismissal of charges related to lost evidence if law enforcement acted in bad faith, Id., 58. The Connecticut Supreme Court applied, instead, the balancing test as set forth in State v. Asherman, 193 Conn. 695 (1984). That analysis requires a trial court faced with a lost evidence issue to consider the materiality of the missing evidence; the likelihood of mistaken interpretation of it by witnesses or factfinders; the reason for unavailability; and the prejudice resulting from nonavailability, State v. Morales, supra, 719-20.
However, in State v. Morales, supra, our Supreme Court also held that " the court is not required to dismiss charges, even if the state’s failure to preserve evidence has adversely affected the petitioner’s right to a fair trial, " Id., 728-29. The trial court is free to " fashion another remedy that appropriately ameliorates or offsets the prejudice, " Id., 729. " In some extreme cases, the trial court may have no choice but to dismiss the charges ..." Id. (emphasis added).
In the present action, a physical inspection of the body of the Buick would have had only slight, peripheral, and immaterial value for the petitioner. The petitioner’s ownership and possession of the vehicle was uncontroverted. The crime occurred at a distant location from the seizure of the vehicle. The government acquired no forensic evidence from the car. The contents of the car were preserved. The petitioner admitted ownership of the knife set and paring knife. The jury heard the petitioner’s testimony about the malfunctioning window. The petitioner has never claimed that the vehicle actually exhibited signs of forced entry. Photographs amply depicted the car’s appearance when it was impounded, and the defense had full access to use that visual evidence.
The feebleness of the petitioner’s credibility, as explicated earlier, minimized any remote value that an in-person examination of the Buick might have afforded. The petitioner’s possession of the paring knife with the victim’s blood on it was entirely unrelated to preservation of the vehicle. The court finds that the petitioner has failed to prove that a reasonable likelihood exists that, but for the absence of a motion for sanctions based on the missing vehicle, the motion would have been successful nor that the outcome of the criminal trial more favorable.
Therefore, the court denies relief as to the ineffective assistance claim.
Due Process Claim
The second count of the amended petition asserts that the loss of the opportunity for the defense to examine the Buick after seizure constitutes a due process violation under State v. Morales, supra, warranting habeas corpus relief. As just found, however, the inabililty of the defense team to inspect the vehicle, in person, had negligible impact on the outcome of the criminal case. The sole pertinent use of such inspection would have been to corroborate the presence of a cardboard remedy for a loose window. That evidence would have been cumulative of photographic evidence that was still available.
Except in a situation of so-called " structural" error, in order to demonstrate a denial of due process because of erroneous conduct, the petitioner needed to prove actual harm, State v. Mercer, 208 Conn. 52, 58-59 (1988). In Mercer, supra, the trial judge gratuitously disclosed to prospective jurors that the defendant had AIDS, a totally irrelevant fact in that case, Id. Our Supreme Court held that the defendant failed to demonstrate actual juror bias because of that revelation, and therefore, the defendant had a fair trial despite trial judge error, Id., 62-63. Except for the case where the possibility of prejudice is virtually unavoidable, there is no presumption of a denial of due process, Id., 60.
A showing of actual prejudice must also be made in the context of the destruction or loss of evidence situation, State v. Smith, 174 Conn.App. 172, 183-84 (2017). The court’s evaluation of all the evidence presented compels the conclusion that the premature relinquishment of the Buick caused no actual prejudice in this particular case.
For these reasons the court denies the amended petition for habeas corpus relief.