Mourning v. Commissioner of Correction, 150 A.3d 1166

Background

In 2003 Mourning was tried for a shooting that killed Trevor Salley; jury convicted him of first‑degree manslaughter with a firearm, conspiracy to commit murder, and criminal possession of a pistol or revolver; sentence total 40 years.
On direct appeal this court affirmed the convictions (State v. Mourning).
Mourning filed a habeas petition alleging, among other claims, ineffective assistance of trial counsel for failing to move to exclude the state ballistics expert’s testimony. The habeas court held an evidentiary hearing and denied relief.
At trial the state’s firearms examiner, Marshall Robinson, testified that the fatal .38 caliber bullet was fired from the revolver Mourning had used and could not have been fired from the AK‑47 fired by a codefendant; defense counsel did not object or request a Porter (Porter/Daubert) reliability hearing.
At the habeas hearing Mourning called Robinson (who repeated his trial testimony), a criminal defense attorney (Riccio) about potential pretrial challenges, and a statistician (Carriquiry) who criticized firearms identification methodology but conceded she had no ballistics training or hands‑on examination experience. The habeas court found Robinson credible and Carriquiry not credible.
The habeas court concluded Mourning was not prejudiced by trial counsel’s alleged omission and denied certification to appeal; the Appellate Court dismissed Mourning’s appeal for lack of a debatable issue.

Issues

Issue	Mourning's Argument	Commissioner’s Argument	Held
Whether trial counsel was ineffective for failing to move to exclude ballistics testimony	Trial counsel performed deficiently by not challenging the ballistics expert under Porter/Daubert; expert’s conclusions lacked scientific basis	Either no deficiency or, even if deficient, no prejudice because evidence against Mourning was strong and ballistics testimony was credible	Court declined to decide deficiency; held Mourning failed to show prejudice and denied certification
Whether exclusion of the ballistics testimony would have created reasonable probability of different verdict	Mourning: exclusion would undermine state’s proof tying the fatal bullet to his revolver and could create reasonable doubt	Commissioner: ballistics testimony was credible and other evidence supported verdict; exclusion unlikely to change outcome	Held: no reasonable probability of a different result — prejudice not established
Admissibility standard for scientific expert testimony	Mourning: ballistics methods lack scientific validity and would not survive a Porter reliability assessment	Commissioner: expert testimony here was reliable and properly admitted at trial	Court applied Porter/Daubert framework as governing law but relied on habeas credibility findings; did not find a debatable Porter issue for appeal
Proper standard for habeas certification review	Mourning: habeas court abused discretion by denying certification because issues are debatable among jurists	Commissioner: habeas court correctly denied certification; record does not show debatable issues	Held: habeas court did not abuse discretion; issues not sufficiently debatable to warrant appeal

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑part test for ineffective assistance of counsel: performance and prejudice)
State v. Porter, 241 Conn. 57 (Conn. 1997) (adopting a Daubert‑style reliability assessment for scientific expert testimony)
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (U.S. 1993) (trial judge’s gatekeeping role for scientific evidence)
State v. Mourning, 104 Conn. App. 262 (Conn. App. 2007) (direct appeal affirming Mourning’s convictions)