Opinion
No. CV 03 0004228 S
March 24, 2009
MEMORANDUM OF DECISION RE MOTION FOR DISCOVERY NO. 152
The petitioner, Joshua Smith, filed a second amended petition on May 21, 2008, in which he alleged that his convictions were the result of ineffective assistance of trial counsel in violation of his rights under the sixth amendment to the United States constitution and article first, § 8 of the constitution of Connecticut. The respondent filed a return on June 16, 2008, denying the material allegations of the petition.
The case has been mired in discovery disputes for the past three years out of the six it has been pending on the docket. Originating with a motion for discovery (no. 118) filed by the petitioner on May 15, 2006 and granted by the court, Fuger, J. on June 20, 2006, the petitioner has unsuccessfully sought review of certain materials and documents purportedly in the state's file which the state claims are variously privileged, unavailable or irrelevant. The record reveals extensive negotiations and discussions, both in and out of court, by motion and informally, between the parties in efforts to resolve the disputes.
Presently before the court is the petitioner's motion for discovery (no. 152) filed on January 6, 2009, claiming to seek the same set of materials he has been seeking since Judge Fuger's original order in June 2006. The respondent filed an objection to the motion on January 16, 2009. Therein, the respondent argues that the petitioner's motion is vague and that he has not made a showing of entitlement for any of the requested materials. The respondent also asserts that many of the requested documents are not in his possession.
The petitioner subsequently filed a motion for supervisory order that relates back to Judge Fuger's original order. The petitioner has maintained, throughout, that Judge Fuger's order of June 20, 2006 is still operative and compels discovery of the very materials the present motion for discovery requests. This court's ruling on the latest motion for discovery should not be construed to conflict with or bear on the scope of Judge Fuger's motion, and the petitioner's motion for supervisory order shall be heard and evaluated independently of the motion for discovery.
DISCUSSION
Practice Book § 23-38 provides: "(a) Discovery, as of right, is limited to: (1) a list of witnesses, (2) A statement of the subject matter upon which any expert witness is expected to testify; (3) A statement of the opinions the expert is expected to render and the ground for each opinion.
"(b) The parties may cooperatively engage in informal discovery. The provisions of chapter 13, Discovery and Depositions of the rules of practice, do not apply to habeas corpus proceedings.
"(c) Upon motion, the judicial authority may order such other limited discovery as the judicial authority determines will enhance the fair and summary disposal of the case."
Thus, there is very little a habeas petitioner is absolutely entitled to from the respondent. Section 23-38 rarely appears in Connecticut case law; it appears that the court is vested with considerable discretion in applying § 23-38 and may compel discovery as it sees fit to further the interests of justice, but there is no question that such discovery is to be "limited." Considering the gravity of the rights at stake, a habeas petitioner should be entitled to obtain evidence sufficient to explore his claims and present his case, but there is no carte blanche right for a petitioner to fish through a state's file in search of fodder for unspecified and unpleaded claims. Most of the petitioner's requests are broad and unspecific; there is a great deal of requested evidence that is purportedly exculpatory "on information and belief" but with little indication as to how the evidence is exculpatory, or relevant to the petitioner's claims of ineffective assistance of counsel. While the petitioner suggests this creates an awkward catch-22 in that he must specify the need for evidence before obtaining it, but cannot know the need for it before reviewing it, there is no blanket privilege in habeas corpus for a petitioner to have access to any and all of the state's evidence to prospect for potential or speculative nuggets of relevant material. "A habeas corpus petition often arises long after memories have faded and evidence has disappeared. This collateral attack of a conviction conflicts with the strong interest in the finality of judgments and the interest in orderly trial procedure . . . As a result, the plaintiff in a habeas corpus proceeding bears a heavy burden of proof." Myers v. Manson, 192 Conn. 383, 387, 472 A.2d 759 (1984).
From the outset, the court notes that the respondent's reliance on Walker v. Commissioner of Correction, 103 Conn.App. 485, 498, 930 A.2d 65, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007), is in part misplaced. Walker's "showing of entitlement" requirement is only applicable if the requested materials are privileged. The respondent makes no claim of privilege as to any of the materials except for the last request, relating to disclosure of confidential informants. This request is governed by the standard set forth in State v. Jackson, 239 Conn. 629, discussed infra. As noted above, there is little if any authority governing the scope of the court's discretion over discovery in habeas matters.
The history of this case makes clear that petitioner's counsel has zealously and diligently pursued the claims of her client and made repeated good-faith attempts to obtain evidence from both the respondent and other offices of the state to further her client's interests. The court is not unsympathetic to the difficulties faced by the petitioner, but it has never been an easy task to undermine a criminal conviction, and the conviction is presumed to be valid unless and until an affirmative showing that a petitioner's rights were violated. While this task is no doubt made more difficult to accomplish without access to necessary or relevant evidence, in the present case, the vast majority of the requested material is of questionable relevance to his claims; indeed, much of it is of questionable existence at all. Because of the obvious time and energy spent in making and objecting to each request, the court will address each in turn.
1. Items (a), (c), (d), (i), (l), and (n)-(s) all request specified police reports somehow connected with the investigation of the petitioner. Insofar as the respondent's attorney conveyed to this court that he searched his files but could not find these reports, or even verify their existence, this court cannot order the respondent to produce something not in his possession. As frustrating as it no doubt has been for the petitioner, if these reports exist and there is truly evidence material to his present claims contained in any such report, his recourse lies elsewhere. Moreover, the petitioner has not provided even a threshold showing of what is expected to be in such reports, or how they are expected to be relevant to his case. These requests are denied.
Copies of correspondence submitted with both the petitioner's and respondent's briefs, on both this motion and a subsequent motion for supervisory order, suggest that certain of the petitioner's requests to the Norwalk police department are still open and, while the petitioner's history of persistent attempts makes the assumption dubious, may prove successful, thus obviating the need for a discovery order.
2. Item (b): The petitioner next requests the "List of photos contained in IDMO 110 and 113," photographs apparently shown to a non-eyewitness for the purposes of identifying the shooter shortly after the murder. The petitioner stands in receipt of certain other photographs shown to other witnesses, but not those now requested. The respondent maintains that he is not in possession of these photographs, and the court cannot order their disclosure given their unavailability. If, as suggested by petitioner, the respondent can be of assistance in obtaining these photographs, the court urges the respondent to do so, but will certainly not issue the burdensome order of having the respondent obtain the documents on the petitioner's behalf. This request, therefore, is denied.
3. Item (e): The petitioner requests "documentation concerning what was done with the black hat recovered by Detective Murphy . . ." Although the hat purportedly belonged to the "shooter," the hat was not referenced at the criminal trial, not used to implicate the petitioner in the crime, and has no apparent bearing on any of the petitioner's present claims. It is unclear whether the hat is presumed to be exculpatory, whether eyewitnesses testified to the shooter having worn the black hat, or whether it is in any way relevant at all. Furthermore, because the hat did not appear to be a factor in the state's criminal case, it is unlikely that the state's file would have information regarding the black hat at all. This court sees no reason to order the discovery of an item of questionable if any relevance that may or may not be in the respondent's possession at all. This request is denied.
4. Item (f): The petitioner next requests "Photographs of the crime scene taken 2/11/94 or relevant documentation," taken on the specified date pursuant to their mention in a police report of Detective Murphy on the same date. While the petitioner contends they contain exculpatory information, he does not specify how they are expected to be exculpatory. The petitioner has had the opportunity to review numerous other photographs of the crime scene and there is little, without further indication of relevance, to be gained from additional photographs. This request is denied.
5. Items (g) and (h): The petitioner next requests "Photographs of vehicle, [license plate] 274JDB, taken 2/12/94" and "Report and diagram concerning bullet holes" in the same vehicle. The respondent does not expressly deny having these materials but implies as much by suggesting that the petitioner direct his request to the Norwalk police department. Once again, the petitioner makes only a bare allegation that "upon information and belief, the photos constitute exculpatory or impeachment evidence" without any indication of how the photographs would prove exculpatory or relevant for impeachment. Without any indication that the respondent's file contains these photographs or a more concrete basis on how they will be helpful to the petitioner's case, these requests are likewise denied.
6. Item (j): The petitioner requests "Three photo lineups constructed by Detective Ellis on 2/12/94," which were referenced in Sergeant Mecozzi's 2/12/94 report. It is unclear to the petitioner, however, and equally so this court, whether these lineups include one lineup that was previously produced by the state, or whether the lineups were ever used for any purpose in this case at all. This is another instance where the petitioner has failed to demonstrate a need for the materials, or, moreover, that the respondent can even be expected to possess them. This request is denied.
7. Item (k): The petitioner next requests a "Photo array and report shown to neighbor of Janet Moodie on 2/13/94." This court has no information as to the relevance of this request. It is unclear whether the information supplied by Janet Moodie's neighbor was in any way used to inculpate the petitioner, or whether it could potentially lead to exculpatory information. The petitioner could certainly go to Janet Moodie's neighbor directly and ask her what she told the police. There is no need to go searching through the respondent's files for a report of questionable relevance that may not be there. This request is denied.
8. Item (m): The petitioner requests "Materials obtained from Enterprise Rent-a-car in Stamford by Officer Santo." The petitioner makes no assertion that this documentation, if it was ever obtained by Officer Santo in the first place, ever became a part of the state's file, and once again this court is powerless to order disclosure of materials that there is no indication are within the power of the respondent to produce. This request is denied.
9. Item (t): The petitioner's final request is the "Disclosure of identity of confidential informants." Whether a defendant is entitled to disclosure of the identity of confidential informants is governed by the standard set forth in State v. Jackson, 239 Conn. 629, 687 A.2d 485 (1997). This standard, however, is applicable in criminal proceedings and not necessarily in the context of a habeas action. Within the ambit of the petitioner's claim of ineffective assistance of counsel, this court must apply the Jackson standard as it would have been applied by the criminal trial court had counsel sought disclosure of the informant then. It is a different matter, however, for the petitioner to request disclosure of the informant now, post-conviction and when the informant's identity cannot be "essential to the defense" because the petitioner is not a criminal defendant.
What the petitioner must show, ultimately, is that had his trial attorney sought disclosure of the state's confidential informants, the court would have granted the request and compelled disclosure. The petitioner's overall burden is twofold, however, as in order to demonstrate the prejudice prong of Strickland he must prove that, in essence, the disclosure of the informant's identity would have led to a jury finding of not guilty. To do so will inevitably require the disclosure of the identity of the confidential informant, else the petitioner will be left without the ability to prove prejudice.
"In Roviaro v. United States, supra, 353 U.S. 53, the United States Supreme Court had occasion to define the nature and scope of the informant's privilege. What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law . . . The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation . . .
" Roviaro established a test for assessing challenges to the applicability of the informant's privilege. This test involves the balancing of two competing interests: (1) the preservation of the `underlying purpose' of the privilege; and (2) the `fundamental requirements of fairness.' . . . The underlying purpose of the privilege is to protect the public interest in the flow of information to law enforcement officials. The fundamental requirements of fairness comprise the defendant's right to a fair trial, including the right to obtain information relevant and helpful to a defense . . . Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." (Citations omitted; internal quotation marks omitted.) State v. Jackson, supra, 239 Conn. 632-33. "Four general principles should be considered in applying the privilege: (1) The communications must originate in a confidence that they will not be disclosed . . . (2) [t]his element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties . . . (3) [t]he relation must be one which in the opinion of the community ought to be sedulously fostered [and] (4) [t]he injury that would inure to the relation by the disclosure . . . must be greater than the benefit thereby gained [by disclosure]." (Internal quotation marks omitted.) Id., 633.
This court, however, is not currently in a position to evaluate whether (1) the privilege applies or (2) whether fundamental fairness demands disclosure of the informant's identity because it simply lacks the necessary information to make such a determination. The petitioner's claims that the informant "may have been involved in fabricating allegations against the petitioner," or that the informant's identity may lead to exculpatory evidence, or that it would have been useful in cross-examination of the witness who was believed to have testified at trial, are insufficient for this court to determine whether the informant's identity would have been of any benefit to the petitioner. The court does not possess the police reports that reference a confidential informant and has no indication of what information the informant gave, or what the circumstances of confidentiality were, or how the informant was involved in the investigation, or, indeed, any concrete evidence beyond the argument contained in briefs that a confidential informant existed at all. Cf. State v. Hernandez, 254 Conn. 659, 759 A.2d 79 (2000), in which the Supreme Court, upholding the trial court's order of disclosure of a confidential informant, recognized that the trial court correctly "made a predicate factual finding, based on the warrant affidavit, that the informant had observed [certain individuals] from within the defendant's apartment." Id., 663-64. Absent any such evidence on which to make a predicate factual finding of relevance and importance to the petitioner's case, it would be improper to order the disclosure of the confidentialty of the state's informant. At this time, therefore, the court denies this request.
The petitioner has not yet requested that the court conduct an in-camera review of any documents claimed to be privileged, which would almost certainly be required before the court could make the determination required by Jackson. In any event, pursuant to Walker v. Commissioner of Correction, 103 Conn.App. 485, 498, 930 A.2d 65, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007), the petitioner has failed to make a "sufficient showing of entitlement to warrant in camera review" of the privileged documents; at this time, the petitioner's request is wholly speculative.
This court finally notes that there is a pending motion for supervisory order filed by the petitioner in this case, relating back to Judge Fuger's order of June 20, 2006. The argument is that many of the requested materials were in fact already covered by that discovery request. None of the court's holdings today should be seen as overruling previous discovery orders should it be found that some of the materials presently requested were, in fact, encompassed by Judge Fuger's order and thus required to be disclosed. Further, this court continues to encourage the informal mutual discovery inherent to habeas cases and suggests that if the respondent comes across any of the requested materials that are not privileged, they should be produced to the petitioner. This court, however, sees no reason for any further orders of discovery in this case based on the information currently before it, and in consideration of the limited nature of the right to discovery in habeas cases generally. The petitioner's motion is, therefore, denied in its entirety.