Davis v. Commissioner of Correction, 160 Conn.App. 444

Background

Larry Davis was convicted in 2004 of charges arising from two incidents (a 1998 shooting of Victoria Standberry and a 2002 armed robbery of Lenwood Smith); he received an effective 80-year sentence. His convictions were affirmed on direct appeal.
In a subsequent habeas petition, Davis alleged trial counsel was ineffective for failures related to eyewitness identification: failing to retain an expert, failing to challenge photo-array procedures, and failing to make clear various factors that undermine identification reliability.
The habeas court treated the operative claim as counsel’s failure to retain/use an eyewitness-identification expert as a trial witness and denied relief, reasoning that expert testimony on identification was disfavored at the time and would likely not have been admissible or outcome-determinative.
On appeal from denial of the habeas petition, Davis argued additionally that counsel was ineffective for failing to educate himself about eyewitness identification research (e.g., by consulting an expert), and thus was unprepared to frame identification issues for the jury.
The Appellate Court held that the habeas petition did not distinctly plead the separate claim that counsel failed to self-educate/consult an expert, the habeas court never ruled on that distinct theory, and therefore the claim is unreviewable on appeal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for failing to educate himself about eyewitness-identification research (including consulting an expert)	Davis: counsel was ill-prepared without consulting an expert and thus failed to frame identification weaknesses for the jury	State: claim was not distinctly pleaded below and the habeas court did not rule on it; thus it's not reviewable	Unreviewable — petitioner did not distinctly plead or press this separate claim; habeas court never decided it
Whether counsel was ineffective for failing to retain/call an eyewitness-identification expert at trial	Davis: counsel should have called an expert to attack identifications	State: trial counsel chose cross-examination instead; expert testimony was generally disfavored then	Denied — habeas court concluded counsel’s failure to call such an expert was not deficient or prejudicial given contemporaneous law and witnesses’ familiarity with Davis
Whether photo-array procedure and identification issues were sufficiently challenged	Davis: police used simultaneous arrays, not double-blind forms, and other flaws undermined IDs	State: counsel challenged IDs by cross-examination; petition did not separately assert counsel’s failure to consult an expert	Court treated these allegations as part of the expert-witness claim and found no ineffective assistance in not calling an expert
Whether appellate review can consider claims not distinctly raised or decided below	Davis: attempts to rely on posttrial briefing and ambiguous petition language to preserve claim	State: claims raised first in posttrial brief or ambiguously pleaded are not properly preserved	Held that appellate review is barred for claims not distinctly alleged and ruled on by the habeas court; posttrial brief arguments do not preserve new claims

Key Cases Cited

State v. Davis, 286 Conn. 17 (Sup. Ct.) (recitation of facts and convictions affirmed on direct appeal)
Greene v. Commissioner of Correction, 131 Conn. App. 820 (Ct. App.) (habeas pleadings must distinctly raise claims; review limited to pleaded issues)
Grant v. Commissioner of Correction, 121 Conn. App. 295 (Ct. App.) (ambiguous pleading and failure to advise court of theory supports dismissal)
Thiersaint v. Commissioner of Correction, 316 Conn. 89 (Sup. Ct.) (appellate courts decline newly articulated claims not raised below)
Henderson v. Commissioner of Correction, 129 Conn. App. 188 (Ct. App.) (reviewing court will not consider claims not raised or decided by habeas court)
State v. Outing, 298 Conn. 34 (Sup. Ct.) (historical treatment: courts disfavored eyewitness-identification expert testimony because it encroached on jury role)
State v. Guilbert, 306 Conn. 218 (Sup. Ct.) (discussion of history and reasons for routine exclusion of eyewitness-identification expert testimony)
State v. King, 187 Conn. 292 (Sup. Ct.) (earlier precedent on expert testimony referenced in pleadings)
State v. Payne, 303 Conn. 538 (Sup. Ct.) (later overruling authority referenced in motion for articulation)