Lead Opinion
Opinion
In Summerville v. Warden,
The respondent, the commissioner of correction, appeals
The record reveals the following undisputed facts and procedural history. On July 4, 1993, at 5:08 a.m., Eugenio Vega, the owner of La Casa Green, a retail store on Grand Avenue in the Fair Haven section of New Haven, entered the store and deactivated its alarm system. At 5:42 a.m., the police received a 911 call alerting them to suspicious activity at the store from Mary Boyd, a regular customer who became concerned when she could not locate Vega inside or outside of the open store. At 6:05 a.m., two officers from the New Haven police department arrived at the store. Upon entering and searching the premises, the officers went to the back of the store where they noticed an open safe and a wallet, lying in plain view, which contained no cash. Officer Keith Wortz opened the door to a nearby walk-in freezer and found Vega inside, slumped over in a semiseated position with his hands bound in front of him with an electrical extension cord. Vega had been fatally shot at close range by a single gunshot to his left temple.
In the following days, the police canvassed the neighborhood and obtained interviews from several people who had either seen Vega or been in the vicinity of the store between 5 and 6 a.m. on the morning of the shooting. The petitioners were among those who eventually were interviewed. In the course of those interviews, they admitted that they had gone out together to raise money to buy drugs in the vicinity of La Casa Green, first at 11:30 p.m. on July 3, 1993, and later at approximately 3 a.m. on July 4, 1993.
The petitioners were arrested and charged with murder in violation of General Statutes § 53a-54a (a), felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2) and 53a-8, criminal attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2), 53a-8 and 53a-49, and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (2). At a joint trial before a jury, the state’s theory was that the petitioners had robbed and killed Vega as part of a night long spree to obtain more drugs. The state’s key witness was Stiles, who presented the only evidence directly connecting the petitioners to the crimes. Boyd and Youmans also testified about their observations, consistent with their latest statements to the police. In support of the robbery related charges, Susana Negron, Vega’s daughter and the store’s bookkeeper, testified that she had not made her usual weekly bank deposit for the store’s cash receipts the week before her father was shot and that, several months earlier, she had seen jewelry, cash and coins in the safe. The petitioners did not testify. In their defense, they attempted to discredit Stiles, to call into question whether a robbery had occurred and to underscore the absence of
The jury acquitted the petitioners of the murder charge but convicted them on all of the other counts. The trial court, Fracasse, J., thereafter sentenced each petitioner to a total effective sentence of eighty years imprisonment. The petitioners directly appealed to this court, which affirmed the judgment, with the exception of Taylor’s conviction of attempt to commit robbery in the first degree.
In October, 2003, the petitioners filed petitions for writs of habeas corpus. Following continuances to, inter alia, obtain DNA testing of the cord used to tie Vega’s hands, in May, 2009, the petitioners filed the amended petitions at issue in the present appeals. In those petitions, they sought relief on the grounds of ineffective assistance of counsel and actual innocence.
The habeas court, Fuger, J., rejected the ineffective assistance of counsel claim, but agreed with the petitioners that the evidence demonstrated their actual innocence. The court began its memorandum of decision with a discussion of the legal requirements for a claim of actual innocence. It concluded that it was bound by Appellate Court case law holding that the petition must be predicated on newly discovered evidence, but found that the recantations by Stiles and Boyd met this requirement.
With these requirements in mind, the habeas court turned to the evidence in the case before it. The court began by noting its agreement with the prosecutor’s statement to the jury in closing argument in the petitioners’ joint criminal trial: “ ‘[T]his case rises and falls on the testimony of . . . Stiles.’ ” Because Stiles had disavowed her criminal trial testimony at the habeas trial, the habeas court determined that Stiles had committed perjury at one of those trials. The court noted that, because Stiles’ criminal trial testimony had been presented by way of videotape,
The habeas court first set forth the following account of the events of July, 4, 1993, that Stiles originally had offered at the criminal trial. Stiles left her home at approximately 4 a.m. and arrived at the intersection of Grand Avenue and Ferry Street at approximately 4:35 a.m. Fifteen minutes later, after walking down Grand Avenue toward La Casa Green, she was one block away from the store when she saw a menacing looking black male walking toward the store. Because the man’s demeanor frightened her, Stiles walked as quickly as she could to an alley at the side of the store and hid there, close to the building. Stiles heard arguing coming from three distinct voices in the store, one of which she recognized as Vega’s. Although many of the words were muffled, she distinctly heard two angry voices saying something about money and opening the safe, and Vega’s screaming response in Spanish. After a couple of minutes, she heard a single gunshot. Stiles initially froze out of fear, but then left the alley as quickly as she could. She saw two black men exit the store, look around, cross the street and head back in the direction from which the menacing looking man had come. Although the men did not see Stiles, they glanced in her general direction, allowing her to see their faces for one or two seconds. Stiles had identified the man she first saw outside the store as Gould, and the other man leaving the store with him as Taylor.
The habeas court then contrasted Stiles’ criminal trial testimony with the following account that she had offered in her habeas testimony. At approximately 4:30 a.m. on
The habeas court noted the following factors that demonstrated the credibility of Stiles’ account at the habeas trial. Although the statute of limitations to prosecute Stiles for perjuring herself at the criminal trial had passed, she had exposed herself to the risk of prosecution if she had perjured herself at the habeas trial. In terms of demeanor, Stiles had appeared drawn, haggard and hostile during her criminal trial testimony, whereas she appeared healthy and nonevasive at the habeas trial. In addition, the timelines provided by Stiles and Boyd in their original testimony were inconsistent with Stiles’ testimony that she had seen the petitioners flee the crime scene. The timeline offered in the criminal trial would have had Stiles arrive at La Casa Green before Vega even had deactivated the alarm, and a different timeline that Stiles had provided at the probable cause hearing would have had her arrive while Boyd was coming in and out of the store looking for Vega, even though Boyd never had seen Stiles there.
The habeas court also considered the following explanation offered by Stiles as to why she had lied at the criminal trial. After the police arrested Stiles on July 29, 1993, they pressed her to tell them what she knew about the shooting. Stiles repeatedly denied having any knowledge but, several hours later, after feeling “dope-sick” and wanting to go home, she felt pressured to tell the police what she thought they wanted to hear. Stiles picked up on what she perceived as nonverbal clues by the interrogating officers as to correct answers, picked the petitioners’ photographs from a photographic array and eventually gave a statement inculpating the petitioners. During the interview, one of the officers promised to help her get some heroin if she helped them. After she did so, they gave her $60 and drove her to a location where she used that money to purchase heroin. On the night before the probable cause hearing, some New Haven police officers put her up in a hotel and helped her obtain more heroin. The habeas court noted that the testimony of several New Haven police detectives had confirmed much of Stiles’ account, except they had denied providing money to Stiles for drugs. Ultimately, the habeas court concluded that Stiles had lied because, at the time of the criminal trial, she was a deeply troubled woman supporting a ten bag a day heroin addiction by engaging in prostitution.
Finally, the habeas court identified the following weaknesses in the state’s case. First, there were facts that raised questions regarding the robbery motive for Vega’s killing: the perpetrator had not taken money from obvious sources, namely, a cash register keyed open and a large wad of dollar bills in Vega’s front pocket; the evidence was “sketchy at best” that any jewelry had been in the safe; and there was no sign of any struggle.
Ultimately, the habeas court concluded: “[T]he evidence of a murder having taken place is clear. What is not proven is that it was [the petitioners] who committed this crime. There was no fingerprint evidence, there was no murder weapon recovered, there were no ‘fruits of the crime’ recovered and there was no DNA evidence at the crime scene that in any way linked the petitioners to this crime. . . . [Stiles’] statement is the keystone of the evidence upon which these convictions rest.
“Moreover, upon closer examination of the criminal trial testimony of [Stiles and Boyd], now considered in the light of the recanted testimonies of both women, it can clearly be seen that the story told by . . . Stiles [at the probable cause hearing and at the criminal trial] in 1993 [and] 1995 simply cannot be true.”
Applying these facts to the claims raised in the petition, the habeas court concluded that the petitioners had established their entitlement to relief on the basis of actual innocence. The court reasoned: “In short, the finding that . . . Stiles was not telling the truth in 1993 [and] 1995 not only renders the ultimate conviction unreliable, it wholly vitiates all of the proceedings against [the petitioners]. These cases, in fact, go way beyond ‘actual innocence.’ The criminal cases never should have been initiated in the first place! These men deserve immediate relief.” (Emphasis in original.) Accordingly, the habeas court granted the petitions, vacated the convictions and ordered the respondent to immediately and unconditionally release the petitioners.
The respondent claims that the habeas court improperly: (1) failed to apply the Miller test and found that the petitioners had proven actual innocence in the absence of affirmative evidence that the petitioners did not commit the crimes of which they were convicted; (2) found Stiles’ recantation credible; and (3) exceeded its authority even if the petitioners were entitled to habeas relief by ordering their immediate and unconditional release instead of a new trial. In response, the petitioners contend that the habeas court applied the proper standard and that overwhelming evidence, including third party culpability evidence, supports that court’s findings that the recantations of Stiles and Boyd were credible. The petitioners further contend that the habeas court had discretion to order their release. We agree with the respondent’s first claim. Because this conclusion requires us to reverse the judgments and remand the cases for a new trial consistent with the proper application of the Miller test, we need not consider the respondent’s second and third claims.
The question of whether the habeas court applied the correct standard is a question of law subject to plenary review. Cf. In re Tayler F.,
In the present case, it is difficult to ascertain whether the habeas court recognized that it was required to apply this test. The habeas court mentioned the second prong of the Miller test seventeen pages into its discussion of the proper legal standard for a claim of actual innocence. Nowhere in that discussion did it mention the first prong of the test. This omission is curious given not only our succinct statement of the test, but also the scores of appellate decisions that have set forth this test verbatim. See, e.g., Mozell v. Commissioner of Correction,
Nonetheless, the habeas court did incorporate the language of the first prong when rejecting the petitioners’ ineffective assistance of counsel claim fifty-three pages into its decision: “Despite the fact that this habeas court is convinced with clear and convincing evidence that the petitioners are actually innocent of the charges in this case and will grant relief on that basis, the court does not find that the trial defense counsel were ineffective.” This reference, in conjunction with the earlier references to the Miller decision, persuades us that the habeas court was aware of the Miller test. The question therefore becomes whether it actually applied the standard that Miller intended.
The respondent conceded at oral argument before this court that, if Stiles’ recantation properly can be credited, the second prong of the Miller test undoubtedly would be satisfied, given that no reasonable juror who believed her recantation would find the petitioners guilty. We therefore focus our attention on the first prong of the Miller test. Put another way, this appeal essentially raises the question of whether satisfaction of the second prong of the Miller test necessarily dictates that the first prong of that test has been met. We conclude that it does not.
When this court first recognized actual innocence as a basis for habeas relief, we reasoned that only an extraordinary circumstance could justify such relief because: (1) the petitioner would have been convicted in a trial that was free of any antecedent constitutional defect; and (2) the legislature had determined that petitions for a new trial on the basis of newly discovered evidence generally can only be brought within three years of the rendition of judgment; General Statutes §§ 52-270 (a) and 52-582;
Our use of the term “actual innocence” is of paramount significance. Actual innocence, also referred to as factual innocence; Bousley v. United States,
Rather, actual innocence is demonstrated by affirmative proof that the petitioner did not commit the crime. See Carriger v. Stewart,
Affirmative proof of actual innocence is that which might tend to establish that the petitioner could not have committed the crime even though it is unknown who committed the crime, that a third party committed the crime or that no crime actually occurred. See, e.g., Miller v. Commissioner of Correction, supra,
Recantations of inculpatory criminal trial testimony undoubtedly are relevant to a determination of actual innocence. But evidence of that nature must be accompanied by affirmative evidence of innocence to meet Miller's standard of clear and convincing evidence of actual innocence. A recent case from the Supreme Court of Missouri is illustrative. The petitioner was convicted on the basis of the testimony of three purported eyewitnesses to the crime who had identified the petitioner as the perpetrator. State ex rel. Amrine v. Roper,
With these principles in mind, we turn to the question of whether the habeas court in the present case applied the proper standard when concluding that the petitioners had met their burden of proof on their claims of actual innocence. Our review of that decision makes clear that the habeas court’s finding of actual innocence rested essentially on the recantation by Stiles, with Boyd’s recantation considered to a lesser extent. Indeed, the habeas court characterized the claims as ones “premised almost entirely, if not solely, on a recantation.” Because the recantations in the present case, in and of themselves, cannot affirmatively demonstrate that the petitioners did not commit the crimes of which they were convicted, the habeas court’s reliance on the recantations reflects that it did not apply the proper standard under Miller.
Although the petitioners claim that new evidence also inculpated DeLeon, the habeas court viewed that evidence equivocally and as relevant only to the extent that it related to the credibility of Stiles’ recantation. It first stated: “The petitioners were also able to present credible evidence
The petitioners also point to an audiotaped interview of Youmans by their investigator, which they claim lends support to their theory that DeLeon murdered Vega and that Youmans was present when the murder occurred. See footnote 12 of this opinion. The habeas court made no findings, however, as to the credibility or import of Youmans’ statements on that tape, or another taped interview that was consistent with Youmans’ criminal trial testimony in which she stated that she had left the store before the shooting and had no knowledge of who had committed the crime. Nonetheless, the petitioners suggested at oral argument that this court could consider the audiotape on which they rely to support the habeas court’s finding. They point to our statement in Miller that “[t]he appropriate scope of review [for the first prong] is whether, after an independent and scrupulous examination of the entire record, we are convinced that the finding of the habeas court that the petitioner is actually innocent is supported by substantial evidence.” Miller v. Commissioner of Correction, supra,
Appellate courts never act as finders of fact. State v. Parker,
In sum, the recantations by Stiles and Boyd may demonstrate that there no longer is any credible evidence that the petitioners did commit the crimes of which they were convicted. What the habeas court’s decision lacks is any discussion of affirmative evidence that would prove by clear and convincing evidence that the petitioners did not commit the crimes. We therefore conclude that the habeas court’s judgments must be reversed and the cases must be remanded for consideration of the petitions under the proper application of the Miller standard.
In so concluding, we are mindful that it may seem unjust to allow a conviction to stand when the evidence on which the conviction rested has been discredited. It must be remembered, however, that, once properly convicted, the petitioners no longer are cloaked in the mantle of the presumption of innocence. See Summerville v. Warden, supra,
We underscore, however, what is not at issue in the present case. First, this case is not one in which there was irrefutable evidence that Stiles could not have seen or heard the petitioners at the crime scene. For exam-pie, there was no videotape of Stiles at another location at the time the crime occurred. Had there been such evidence, this case would not simply be one in which no reasonable juror would find the petitioners guilty. Rather, it would be a case in which no reasonable juror could, as a matter of law, find the petitioners guilty. Under circumstances where new, irrefutable evidence is produced that so completely eviscerates the prosecution’s case such that the state would have no evidence to go forward with upon retrial, perhaps a functional equivalent to actual innocence might credibly be claimed. Indeed, such an approach might be reconciled with the statutory limitation period for filing a petition for a new trial on the basis of newly discovered evidence because DNA, one form of irrefutable exculpatory evidence, is not subject to the statute of limitations. See General Statutes § 52-582.
Unlike such irrefutable evidence, however, the habeas court’s decision in the present case rests on a witness’ recantation of sworn testimony. Although a recantation that provides affirmative evidence that a petitioner did not commit the crime may constitute sufficient proof to establish actual innocence; see, e.g., Ex parte Elizando, supra,
Second, the petitioners have not claimed on appeal that the fact that their convictions rest on what the habeas court deemed to be perjured testimony is an independent basis for habeas relief. The petitioners’ appellate brief cites cases from the United States Court of Appeals for the Second Circuit for the more general proposition that “[f]ew rules are more central to an accurate determination of innocence or guilt . . . than the requirement . . . that one should not be convicted on false testimony.” (Citations omitted; internal quotation marks omitted.) Sanders v. Sullivan,
Accordingly, the petitions must be reconsidered under the proper standard. We note that Taylor’s habeas counsel recently has informed this court that Taylor is terminally ill. Therefore, we direct the habeas court to conduct a new trial on this matter as expeditiously as possible.
The judgments are reversed and the cases are remanded to the habeas court for a new trial.
In this opinion the other justices concurred.
Notes
As one court succinctly described such a “freestanding” claim: “Metaphorically, an actual innocence claim . . . seeks a second bite at the apple, but unlike an ineffective assistance of counsel claim, for example, it does not contend the first bite was rotten.” In re Lawley,
The respondent appealed from the habeas court’s judgments granting the petitions to the Appellate Court. We thereafter transferred the appeals to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
For purposes of clarity, we refer herein to Gould and Taylor individually by name, and jointly as the petitioners, when necessary.
As this court noted in the petitioners’ direct criminal appeal: “Detective Leroy Dease of the New Haven police department testified that during his investigation in this case, he spoke with Gould several times. Gould told Dease that he had left Tasha Grumes’ apartment with Taylor and Lawrence Kelly around 11:30 p.m. on July 3, 1993. Gould stated that they had been trying to raise money near Grumes’ apartment in order to buy drugs, that they had raised money and bought drugs, and that they had also given $30 to Grumes. Gould further told Dease that he had been at 480 Ferry Street with Taylor and Kelly at 3 a.m. on July 4, 1993, and that they also had been successful at raising money and buying drugs at that location. Gould stated that he and Taylor had then been at Gerrilyn Herring’s house until 6:15 a.m.
“Dease also had spoken with Taylor, who told Dease that he had been with Gould and Kelly that night. Taylor stated, however, that the incident at 480 Ferry Street had occurred at 11:30 p.m. and that the incident near Grumes’ apartment had occurred in the early morning. Taylor further stated that Kelly had not been involved in the incident near Grumes’ apartment. Taylor told Dease that he had gone to Herring’s house at about 3 a.m. and left about 5:30 a.m.” State v. Gould,
In the criminal appeals, this court rejected Taylor’s claim that, even though the state was not permitted to refer to “robberies,” the jury necessarily would construe the evidence of attempts to raise money at night as robberies. Id., 22. This court pointed to evidence that two other witnesses, Pam You-mans and Doreen Stiles, also were out on the street in the early morning hours of July 4, 1993, looking for money to buy drugs. Id.
Both of the petitioners are dark skinned men.
This court agreed with Taylor’s claim that his conviction of attempt to commit robbery in the first degree could not stand because it was a lesser included offense of robbery in the first degree. State v. Gould,
The petitions also included counts alleging that the trial court had impaired their rights to present a defense and to confront witnesses against them. The state argued in its posttrial brief that the petitioners already had litigated these issues in their criminal appeals. The petitioners did not address these issues in their posttrial brief, and the habeas court did not address them in its memorandum of decision.
Although the Appellate Court has determined that a claim of actual innocence must be supported by newly discovered evidence; see Gaston v. Commissioner of Correction,
Stiles was hospitalized with endocarditis, a potentially life threatening heart condition, at the time of the petitioners’ criminal trial.
In a footnote, the habeas court noted: “Of course . . . Stiles is not the only witness to have changed her testimony. . . . Boyd, who in 1993 had a drug habit, is now also drug free and admits to lying to the police to avoid prosecution and prevent [the department of children and families] from taking her children. Her recantation and habeas testimony in 2009 is deemed credible. Less space is devoted to an analysis of her recantation because she is a less central figure than . . . Stiles.”
In the petitioners’ direct criminal appeals, Taylor had claimed that his convictions of felony murder, robbery in the first degree and attempt to commit robbery in the first degree should be reversed because there was no evidence that either a robbery or an attempted robbery had been committed at La Casa Green. State v. Gould, supra,
The state suggests in its brief to this court that the DNA test was of no evidentiary value because it also did not reveal any DNA from Vega. The petitioners point out that the DNA test did reveal female DNA. Their theory at the habeas trial was that Youmans, who had been with Vega when he opened the store, was still there when DeLeon came into the store and shot Vega. Two audiotaped interviews conducted in 2009 between Youmans and the petitioners’ investigator were introduced into evidence. The first interview was consistent with Youmans’ testimony at the criminal trial that she had left the store when Vega was still alive and knew nothing about the shooting. The second interview provided some support for the petitioners’ theory. The habeas court did not mention either taped interview in its memorandum of decision and made no express finding regarding Youmans’ criminal trial testimony.
The habeas court later amended its order to provide that the petitioners were to be released subject to specified conditions, including posting a $100,000 nonsurety bond and being subject to electronic monitoring, until the appeals were concluded.
We note that the recantation evidence in the present case is of an entirely different character than the third party confession at issue in Miller — the former directly discredits the state’s evidence, whereas the latter provides a wholly different account than the state’s evidence. As a result, the present case gives us occasion to examine the Miller test through a slightly different lens. That examination suggests to us that there may not be any case in which the first prong is not dispositive of the petition, either because the failure to satisfy the first prong will be fatal or because satisfaction of the first prong necessarily will satisfy the second prong in light of reexamination of the same evidence and reliance on the same inferences. Indeed, as the discussion in this opinion demonstrates, the first prong of Miller sets forth the heart of an actual innocence claim. Nonetheless, neither party in the present case has asked this court to reconsider the MiUer test. Therefore, should it be necessary, we leave to another day the question of whether some modification to the test should be considered.
There is no time limit for seeking a new trial predicated on DNA evidence. General Statutes § 52-582.
California, Illinois, Missouri, Montana, New Mexico, New York and Texas have recognized freestanding actual innocence claims as a basis for habeas relief. See In re Bell,
Some other jurisdictions have rejected freestanding actual innocence claims as a basis for habeas relief. See, e.g., Tompkins v. State, 994 So. 2d 1072, 1089 (Fla. 2008); State v. El-Tabech,
Some jurisdictions have not been confronted with this question, perhaps because approximately one third of the states have a statute or rule that sets no time limit, or one that can be waived, to petition for a new trial based on newly discovered evidence. See Herrera v. Collins, supra,
In addition to concerns expressed by some courts as to improper influences, such as coercion or duress, that may cause a witness to recant; State v. Hogan,
As this court has recognized, it is settled law that “the knowing presentation of false evidence by the state is incompatible with the rudimentary demands of justice. . . . Furthermore, due process is similarly offended if the state, although not soliciting false evidence, allows it to go uncorrected when it appears.” (Citations omitted; internal quotation marks omitted.) State v. Paradise,
The New Mexico Supreme Court has noted: “The issue of whether a petitioner is entitled to habeas corpus relief when the petitioner raises due process implications from the alleged unknowing use of perjured testimony by the prosecution is unsettled. The United States Supreme Court has not addressed the issue. Evenstad v. Carlson,
“A majority of the federal circuit courts require a knowing use of perjured testimony by the prosecution to find a violation of due process. Sanders [v. Sullivan, supra,
Concurrence Opinion
concurring. I fully agree with and join the majority’s well reasoned opinion in which it concludes that the habeas court failed to apply the proper standard for assessing a claim of actual innocence under Miller Commissioner of Correction,
Inasmuch as habeas relief on the basis of actual innocence is reserved for a truly extraordinary case in which a clear miscarriage of justice is demonstrated; see Summerville v. Warden,
As the majority properly observes, clear and convincing proof of actual innocence does not require a petitioner to establish that his or her guilt is a factual impossibility. See Turner v. Commonwealth,
I am mindful that, when a petitioner seeks to advance a claim of actual innocence, affirmative proof usually comes in the form of newly discovered eyewitnesses, third party alibis or exculpatory physical evidence, such as DNA. See, e.g., Schlup v. Delo,
I also underscore, however, that the availability of such means would not in any way reheve the petitioner of meeting the high standard of proof set forth in Miller. As this court emphasized in that case, the clear and convincing standard is satisfied only “if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” (Internal quotation marks omitted.) Miller v. Commissioner of Correction, supra,
My analysis is predicated on the presumption that, for purposes of retrial, the recantation testimony proffered by the petitioners is deemed to be highly credible.
like the majority, I also would leave open the possibility that the petitioners could amend their habeas petitions to advance a claim that their convictions were predicated on perjured testimony in violation of their right to due process.
In State v. Whelan,