Opinion
No. CV 06 4001413
May 12, 2010
MEMORANDUM OF DECISION RE MOTION FOR RECONSIDERATION (#125)
The petitioner, Albert Stephens, is serving a sixty-year sentence, having been convicted, after a jury trial, of murdering Bernie Countryman. In his petition for a writ of habeas corpus, filed on October 3, 2006 and amended on April 7, 2009, he alleges that he was denied the effective assistance of trial counsel and prior habeas counsel. Specifically, he alleges that both attorneys rendered ineffective assistance by failing to present expert testimony regarding the significance of the absence of gunshot residue on Countryman and on the hat worn by Countryman at the time of the shooting.
The petitioner has filed at least one other petition for a writ of habeas corpus, which was denied. See Stephens v. Warden, Superior Court, judicial district of Hartford, Docket No. CV 00 0597296 (December 7, 2001, Rittenband, .J.T.R.), aff'd, 74 Conn.App. 901, 814 A.2d 441 (2002), cert. denied, 262 Conn. 949, 817 A.2d 109 (2003).
Presently before the court is the petitioner's motion for reconsideration of an evidentiary ruling made by the court during the first day of trial of the above matter. The trial of this matter commenced on January 21, 2010. On that date, the petitioner presented, inter alia, the testimony of Charles Haase, a former New York police officer who is presently a ballistics consultant for defense attorneys and insurance companies. The court accepted Haase as an expert in the field of ballistics as it relates to police investigation and in the field of crime scene investigation as it relates to ballistics. The petitioner questioned Haase extensively on the significance of the presence or absence of gunshot residue on Countryman and his hat. He then asked Haase whether he, the petitioner, could have fired the fatal shot that killed Countryman. The respondent objected to this question. The court upheld the objection and disallowed the question but granted the petitioner's request to file a motion for reconsideration of the ruling.
On March 31, 2010, the petitioner filed a motion for reconsideration and a memorandum of law in support thereof. On April 6, 2010, the respondent filed an objection. In his memorandum of law in support of his motion for reconsideration, the petitioner argues that Haase has the requisite expertise to opine that the firearm that shot Countryman was at least eighteen inches from his head based on the lack of gunshot residue around the wound and on the lack of any visible gunshot residue on Countryman's hat. The petitioner asserts that it thereby follows that Haase can opine that he could not have fired the fatal shot because as established by the eyewitnesses presented at his criminal trial, he was in closer proximity to Countryman when the fatal shot was fired. The respondent counters that the court should deny the petitioner's motion because Haase is not qualified to offer an opinion on whether the petitioner fired the fatal shot, it is improper for him to offer an opinion regarding an ultimate issue to be decided by the trier of fact and because his testimony will not assist the trier of fact, as it is based on speculation and assumptions of facts.
The petitioner filed the memorandum of law in support of his motion for reconsideration on March 22, 2010.
After reviewing the parties' submissions, the petitioner's motion for reconsideration is DENIED.
DISCUSSION
"It is well established that a trial court has broad discretion in ruling on evidentiary matters." State v. Smith, 73 Conn.App. 173, 196, 807 A.2d 500, cert. denied, 262 Conn. 923, 812 A.2d 865 (2002). "In the context of expert witness testimony, it is equally well settled that [a]n expert opinion cannot be based on conjecture or surmise but must be reasonably probable." (Internal quotation marks omitted.) State v. Coney, 266 Conn. 787, 804, 835 A.2d 977 (2003). Section 7-4(a) of the Code of Evidence provides: "An expert may testify in the form of an opinion and give reasons therefor, provided sufficient facts are shown as the foundation for the expert's opinion." "The facts upon which an expert's opinion is based are an important consideration in determining the admissibility of his opinion The question of whether a sufficient foundation was laid is a factual question for the court." (Citation omitted; internal quotation marks omitted.) Liskiewicz v. Leblanc, 5 Conn.App. 136, 141, 497 A.2d 86 (1985). "Where the factual basis of an [opinion] is challenged the question before the court is whether the uncertainties in the essential facts on which the [o]pinion is predicated are such as to make an opinion based on them without substantial value . . . The question is not whether the opinion would be more or less persuasive depending on the presence or absence of a given fact but rather whether the missing fact is such an essential part of the factual foundation for the opinion that its absence would rob the opinion of its persuasive force." (Citations omitted.) State v. Asherman, 193 Conn. 695, 716-17, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985).
In the present case, although Haase is qualified to discuss the use of gunshot residue to determine the distance between the muzzle of a firearm and a target, he does not have an adequate factual basis on which to opine whether the petitioner could have fired the gunshot that killed Countryman. Haase testified that he examined the police reports, the medical examiner's report, Countryman's hat, the crime scene (17 years later) and the eyewitness testimony presented at the petitioner's criminal trial. He did not examine the firearm used in the shooting because the police never recovered it. He testified that the type of firearm, including its age, manufacturer and barrel length, affects the presence and appearance of gunshot residue on a target. He also testified that an approximation of the distance from the muzzle of the firearm to the target could be made using the firearm and the target. In fact, in the cases relied on by the petitioner, in which an expert opined as to the distance between the muzzle of a firearm and a target, the expert based his opinion on tests conducted with the firearm used in the commission of the crime. See, e.g., State v. Coney, supra, 266 Conn. 794 ("[expert] testified, to a reasonable degree of scientific certainty, that the analysis he had performed on the weapon and on the victim's clothing allowed him to approximate the distances from the muzzle of the gun to the clothing for each of the three shots that had struck the victim"); State v. Dontigney, 215 Conn. 646, 577 A.2d 1032 (1990) ("[expert] gave his opinion as to the distance of the gun, when fired, from the head of the victim. [He] based his opinion on the results of experiments conducted with the murder weapon"); State v. Meikle, 60 Conn.App. 802, 813, 761 A.2d 247 (2000), cert. denied, 255 Conn. 947, 769 A.2d 63 (2001) (expert gave opinion regarding the distance at which the firearm had been fired, having "conducted four tests with the defendant's shotgun and [having] analyzed the victim's shirt, which contained a bullet hole").
Without the actual gun used in the crime, this court finds that essential facts on which to base an opinion as to whether the petitioner could have fired the fatal shot are missing. Accordingly, an opinion offered by Haase on this issue would not have substantial value nor would it likely assist the trier of fact, which is the court in this case. See Code of Evidence § 7-2 ("[a] witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue").
CONCLUSION
Based on the foregoing, the petitioner's motion for reconsideration is DENIED.