Wardenv.Boles

Connecticut Superior Court, Judicial District of New Haven at New HavenJul 28, 2003
2003 Ct. Sup. 8726 (Conn. Super. Ct. 2003)

No. CV-00-0438594-S

July 28, 2003


EXCERPT


RADCLIFFE, JUDGE.

THE COURT: All right; The Court has had an opportunity to hear the evidence presented, as well as to examine the pertinent portions of the exhibits and the materials that have been provided by way of evidence this morning.

I've also had an opportunity to examine the Supreme Court's decision in the matter of State v. Boles, which is cited at 223 Connecticut 235 in 1992.

And in both in that case and in the facts that have been presented in the record that was before me, the facts show that the victim and others were — or the jury could have found that the victim and others were in the hallway of a dwelling house, a dwelling house located at 127 Harris Circle in Waterbury.

That one Even Howard saw the defendant inflict the fatal wounds, which caused the death of the decedent. That Evan Howard then helped the decedent carry the body to the car, place it in the trunk, and remove it sometime later.

The testimony at trial and the evidence here today also gives indicates that Sherri Washington ran from the building at some point and, according to the Supreme Court decision, believed that she saw Howard and another individual exiting the building shortly thereafter.

I should note that in a prior habeas corpus proceeding, the petitioner alleged ineffective assistance of counsel. That matter was dismissed by Judge Stengel.

Here, the claims are those of actual innocence, and the operative pleadings at the beginning of this hearing were an amended petition dated January 2, 2001, and the return and answer dated January 23, 2001.

And it seems clear to the Court that based on those two pleadings, that the plaintiff has not made out a prima facie case. There is no evidence here of DNA. No evidence of examination of any DNA that could have demonstrated by clear and convincing evidence, which is the standard, a claim of actual innocence.

Nor was there any evidence presented of an entomological or insect report from the Federal Bureau of Investigation, which it was claimed in these pleadings that have been on file since January of 2001 would be shown at today's hearing.

Counsel for the petitioner made a move to amend the petition to conform with the proof. The Court granted that oral motion to determine the issues as they have been presented.

We heard testimony from Dr. Esposito and we have exhibits also in the form of the trial transcript, as well as other — the autopsy report and other exhibits, which were presented at trial.

The Court listened to Dr. Esposito's testimony and finds it compelling but not convincing on any of the issues that would be germane to this proceeding.

He testified that his investigation was made based upon a conversation with the victim, who's reliability as a historian is questionable. He also did not perform any tests or any other procedures to determine the actual date of the pregnancy or the term of the pregnancy at that point. And I think was quite candid in indicating that he could not be more precise.

So that particular testimony, although believable, does not demonstrate actual innocence in this case. And the Court does not find the academic testimony concerning what has been referred to as a confession, but which is really a statement given and signed, admittedly signed, by the petitioner to the police department as at all persuasive or compelling.

The Court can almost take judicial notice that at some time and in some place and under some circumstances, every confession may not be accurate. But that does not lend any support to the petitioner's claims in this particular proceeding.

In order to demonstrate actual innocence, the petitioner must satisfy a two-prong test. And based on, as counsel for the petitioner has indicated, the case of Miller versus the Commissioner of Correction, which is found at 42 Connecticut 745 at 791 and 92.

The first prong of that test is that based on the evidence at trial it must establish by clear and convincing evidence that the petitioner was actually innocent. And having established that prong by clear and convincing evidence must then establish that no reasonable jury could have found the petitioner guilty.

And based upon a review of the pertinent portions of the transcript, as well as the evidence presented here, the Court finds that the petitioner has not proven either prong of the Miller test. There is no proof of actual innocence.

We have here the testimony of an eyewitness who claims to have seen the fatal blow; claims to have assisted the petitioner in disposing of the body.

Another witness who was actually present during a portion of the argument, an argument evidentially that concerned narcotics, who claims to have seen the individuals leaving the building with the body and placing it in the trunk of a car.

There was some testimony here concerning whether or not tests could have been performed on semen or pubic hair. The Court would note that the charge in this case was homicide or murder. That that type of scientific evidence was not necessary to prove any element of the crime charged, nor was there any evidence that any affirmative defense would have been substantiated by that type of evidence.

There was evidence that the Waterbury Police Department did not conduct DNA testing at this particular time. That would seem to indicate that they would not have deliberately disposed of any materials to avoid DNA testing because they did not, in fact, engage in it at the time.

I would also note that there was no testimony here from any police officer of the City of Waterbury and no scientific evidence from which it could be determined that the DNA testing could have been conducted and would have been exculpatory at the time.

And even if some DNA evidence had proven the presence of another individual having sexual intercourse with the decedent at some time prior to this incident, that would not have been germane to any of the elements of the crime and a reasonable jury could still have believed the eyewitness testimony of one and perhaps two of the individuals who were present for all or a portion of this time.

So the Court finds that actual innocence has not then been proven and the amended petition dated January 2, 2001 is dismissed.

THE CLERK: Let the record reflect that the clerk is handing the petitioner notice of appeal procedures and application for waiver of fees, costs and expenses, and appointment of counsel on appeal.

THE COURT: All right. We'll stand in recess.

Radcliffe, J.