186 Conn. App. 366
Conn. App. Ct.2018Background
- Petitioner James L. Davis III was convicted after a third trial of manslaughter (lesser included), three counts of first‑degree assault, and carrying a pistol without a permit; sentenced to an effective 48 years. His convictions were affirmed on direct appeal (State v. Davis).
- Evidence at trial included spent .40 cal casings from the shooting, and a duffel bag seized from an apartment where petitioner had stayed containing guns and items stolen from a gun collector (Pepin); Pepin’s actual .40 Glock was not recovered but some casings matched those from the scene.
- Trial counsel Michael Fitzpatrick pursued a third‑party culpability defense (pointing to Ricky Gomez/Ballinger) and allowed admission of the firearms/firearm‑related items to support that theory rather than moving to exclude them.
- Petitioner filed a second amended habeas petition alleging ineffective assistance of trial counsel for (1) not filing a motion in limine to exclude the firearm evidence, (2) not consulting or presenting an eyewitness‑identification/memory expert, (3) not objecting under Crawford to a supervising lab criminalist’s testimony when the testing analyst did not testify, and (4) not preparing petitioner for the presentence interview.
- The habeas court credited Fitzpatrick’s testimony, found no deficient performance or prejudice under Strickland, denied the petition and certification to appeal; the Appellate Court dismissed the appeal.
Issues
| Issue | Plaintiff's Argument (Davis) | Defendant's Argument (Commissioner) | Held |
|---|---|---|---|
| 1) Failure to move in limine to exclude firearms/firearm‑related items | Items (e.g., Smith & Wesson revolvers) were irrelevant, more prejudicial than probative, and constituted inadmissible uncharged misconduct | Counsel reasonably used the items to support third‑party culpability; filing to exclude would have been tactically inconsistent and likely unsuccessful | Counsel’s performance was not deficient; no Strickland relief (tactics supported defense theory) |
| 2) Failure to consult/present eyewitness identification expert | An expert could have undermined eyewitness reliability (Ellis/Bickham) and altered outcome | At trial controlling law (Kemp) disfavored such experts; counsel pursued third‑party culpability, not misidentification, so expert was not required | No deficient performance or prejudice; counsel’s strategy was reasonable under then‑existing law |
| 3) Failure to object under Crawford to lab supervisor’s testimony when analyst didn’t testify | Supervisor’s testimony about another analyst’s testing violated Confrontation Clause per Crawford | At time of trial Crawford was recent and law re: "testimonial" was evolving; prosecution had earlier produced the analyst at prior trial; counsel reasonably declined to press a novel theory | No Strickland error; declining a novel confrontation theory was reasonable |
| 4) Failure to prepare petitioner for presentence interview | Counsel failed to prepare petitioner, who made admissions in PSI that influenced sentence | Counsel was present at the interview; petitioner’s admissions were not shown to have affected sentencing | No prejudice shown; insufficient to satisfy Strickland prejudice prong |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong test for ineffective assistance: performance and prejudice)
- State v. Davis, 283 Conn. 280 (Conn. 2007) (direct‑appeal opinion recounting trial facts)
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (reframed Confrontation Clause analysis; testimonial hearsay generally inadmissible without prior cross‑examination)
- Melendez–Diaz v. Massachusetts, 557 U.S. 305 (U.S. 2009) (certificates of forensic analysis can be testimonial)
- State v. Kemp, 199 Conn. 473 (Conn. 1986) (eyewitness expert testimony generally unnecessary and disfavored; jurors can assess reliability)
- State v. Guilbert, 306 Conn. 218 (Conn. 2012) (later overruling aspects of Kemp; relevant to standards governing eyewitness expert testimony)
- Bennett v. Commissioner of Correction, 182 Conn. App. 541 (Conn. App. 2018) (refusing ineffective‑assistance claim for not using eyewitness expert where counsel pursued other strategy)
- State v. Walker, 180 Conn. App. 291 (Conn. App. 2018) (forensic examiner testifying about work of another analyst did not violate confrontation when primary analyst testified)
- Ledbetter v. Commissioner of Correction, 275 Conn. 451 (Conn. 2005) (counsel need not advance novel legal theories; reasonable to operate within existing law)