Mourning v. Commissioner of Correction , 169 Conn. App. 444 ( 2016 )

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MARLIK MOURNING v. COMMISSIONER
OF CORRECTION
(AC 37601)
Lavine, Mullins and Mihalakos, Js.
Argued September 7—officially released November 29, 2016
(Appeal from Superior Court, judicial district of
Tolland, Fuger, J.)
Peter G. Billings, assigned counsel, with whom, on
the brief, was Sean P. Barrett, assigned counsel, for
the appellant (petitioner).
Jennifer F. Miller, deputy assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Marc G. Ramia, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
MULLINS, J. Following the habeas court’s denial of
his amended petition for a writ of habeas corpus, the
petitioner, Marlik Mourning, appeals from the habeas
court’s denial of his petition for certification to appeal.
On appeal, the petitioner claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal because the record established that his
criminal trial counsel rendered ineffective assistance
by failing to move to exclude the testimony of the state’s
ballistics expert. We conclude that the court did not
abuse its discretion in denying the petition for certifica-
tion to appeal. Accordingly, we dismiss the appeal.
As previously set forth by this court on direct appeal,
the jury reasonably could have found the following
facts. ‘‘In the late evening of July 8, 2003, Lamar Daniels,
Deshon Thomas and the [petitioner] gathered in front
of an establishment named Cobra’s Place in what is
known as the Sugar Bowl area of Waterbury, where the
[petitioner] and Daniels often sold drugs. There they
engaged in an argument with Desmond Williams and
the victim, Trevor Salley, who recently had completed
a sale in the area. After the argument ended, the individ-
uals dispersed, and Daniels called his cousin, Sherita
Norman, requesting that she pick him up. Several
minutes later, Norman and her sister, Sharon Norman,
arrived and drove Daniels and the [petitioner] away
from the Sugar Bowl and back to Sherita Norman’s
apartment. Daniels entered the apartment and retrieved
a silver .38 caliber revolver and an AK-47 assault rifle
from a bedroom closet. At some point, Daniels handed
the .38 caliber revolver to the [petitioner]. Sherita Nor-
man then drove the [petitioner] and Daniels back to
the Sugar Bowl and parked in a lot, enclosed by a fence,
located behind Cobra’s Place. As the [petitioner] and
Daniels approached the fence, they saw the victim and
Williams. Daniels called out to them and displayed the
rifle, at which point the victim and Williams ran in
the opposite direction. Daniels discharged the AK-47
assault rifle several times. The [petitioner] then fired
the .38 caliber silver revolver. The gunshot that killed
the victim came from the .38 caliber silver revolver fired
at the scene.
‘‘The [petitioner] subsequently was charged by infor-
mation with murder, conspiracy to commit murder and
criminal possession of a pistol or revolver. After a jury
trial, the [petitioner] was found guilty of manslaughter
in the first degree with a firearm, conspiracy to commit
murder and criminal possession of a pistol or revolver.’’
State v. Mourning, 104 Conn. App. 262, 265–66, 934
A.2d 263, cert. denied, 285 Conn. 903, 938 A.2d 594(2007). The petitioner was sentenced to a total effective
sentence of forty years incarceration, five years of
which were mandatory. This court affirmed the petition-
er’s convictions on appeal. Id., 288.
On September 19, 2012, the petitioner filed a petition
for a writ of habeas corpus, which he amended on
October 2, 2014. In his amended petition, the petitioner
alleged that his trial counsel, David Channing, had ren-
dered ineffective assistance in numerous ways. The
only claim relevant to this appeal, however, is the peti-
tioner’s claim that his trial counsel had rendered ineffec-
tive assistance by failing to move to exclude the
testimony of the state’s ballistics expert.1 On December
17, 2014, the habeas court held an evidentiary hearing
on the amended petition. In a memorandum of decision
filed on January 2, 2015, the court denied the petitioner’s
amended petition. The petitioner then filed a petition
for certification to appeal, which the habeas court
denied. This appeal followed. Additional facts will be
set forth as necessary.
On appeal, the petitioner claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal because the record established that his
trial counsel rendered ineffective assistance by failing
to move to exclude the testimony of the state’s ballistics
expert. We are not persuaded.
We first set forth our standard of review. ‘‘Faced with
the habeas court’s denial of certification to appeal, a
petitioner’s first burden is to demonstrate that the
habeas court’s ruling constituted an abuse of discretion.
. . . A petitioner may establish an abuse of discretion
by demonstrating that the issues are debatable among
jurists of reason . . . [the] court could resolve the
issues [in a different manner] . . . or . . . the ques-
tions are adequate to deserve encouragement to pro-
ceed further. . . . The required determination may be
made on the basis of the record before the habeas court
and the applicable legal principles. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by this court for
determining the propriety of the habeas court’s denial
of the petition for certification. Absent such a showing
by the petitioner, the judgment of the habeas court must
be affirmed. . . .
‘‘[As it relates to the petitioner’s substantive claims]
[o]ur standard of review of a habeas court’s judgment
on ineffective assistance of counsel claims is well set-
tled. In a habeas appeal, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous, but our review of whether the
facts as found by the habeas court constituted a viola-
tion of the petitioner’s constitutional right to effective
assistance of counsel is plenary.’’ (Citation omitted;
emphasis omitted; internal quotation marks omitted.)
Roger B. v. Commissioner of Correction, 157 Conn.
App. 265, 269–70, 116 A.3d 343 (2015).
‘‘In Strickland v. Washington, [466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States
Supreme Court established that for a petitioner to pre-
vail on a claim of ineffective assistance of counsel, he
must show that counsel’s assistance was so defective
as to require reversal of [the] conviction . . . . That
requires the petitioner to show (1) that counsel’s perfor-
mance was deficient and (2) that the deficient perfor-
mance prejudiced the defense. . . . Unless a
[petitioner] makes both showings, it cannot be said that
the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
. . . Because both prongs . . . must be established for
a habeas petitioner to prevail, a court may dismiss a
petitioner’s claim if he fails to meet either prong. . . .
Accordingly, a court need not determine the deficiency
of counsel’s performance if consideration of the preju-
dice prong will be dispositive of the ineffectiveness
claim. . . .
‘‘With respect to the prejudice component of the
Strickland test, the petitioner must demonstrate that
counsel’s errors were so serious as to deprive the [peti-
tioner] of a fair trial, a trial whose result is reliable.
. . . It is not enough for the [petitioner] to show that
the errors had some conceivable effect on the outcome
of the proceedings. . . . Rather, [t]he [petitioner] must
show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine con-
fidence in the outcome. . . . When a [petitioner] chal-
lenges a conviction, the question is whether there is
a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respect-
ing guilt.’’ (Internal quotation marks omitted.) Vazquez
v. Commissioner of Correction, 128 Conn. App. 425,
430, 17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d
1277 (2011).
In determining whether the habeas court abused its
discretion in denying the petition for certification to
appeal, we must consider the merits of the petitioner’s
underlying claims. Accordingly, we now turn to the
merits of the petitioner’s claim.
The petitioner’s sole claim on appeal is that trial
counsel rendered ineffective assistance by failing to
move to exclude the testimony of the state’s ballistics
expert. Specifically, the petitioner argues that trial
counsel’s performance was deficient because the con-
clusions of the ballistics expert ‘‘were not grounded in
science at all and his expert testimony would not have
withstood the admissibility requirements of [State v.
Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied,
523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998)]
had they been challenged.’’ Moreover, the petitioner
claims that trial counsel’s failure to exclude that testi-
mony prejudiced him because, if the testimony had
been excluded, there is a reasonable probability that
the outcome of the trial would have been different.
The respondent, the Commissioner of Correction,
asserts that trial counsel did not render ineffective assis-
tance.2 Specifically, the respondent argues that trial
counsel’s performance was not deficient, and, even if
it were, the petitioner has failed to demonstrate that
he suffered prejudice as a result of the alleged deficient
performance. We agree with the respondent that even if
we were to assume, without deciding, that trial counsel
performed deficiently, the petitioner has failed to dem-
onstrate that he was prejudiced by trial counsel’s
alleged deficient performance.3
The following additional facts are relevant to our
review of the petitioner’s claim. At the criminal trial,
the state’s ballistics expert was Marshall Robinson, a
firearms examiner employed by the city of Waterbury.
Robinson first testified as to the principles underlying
the field of ballistics and the techniques he uses in
identifying the firearm from which a particular bullet
was fired. Regarding the petitioner’s case, Robinson
testified that, after examining the bullet that caused the
victim’s death, he concluded that it was fired from the
.38 caliber revolver that the petitioner had used in the
commission of this shooting. He also testified that the
.38 caliber bullet that killed the victim could not have
been fired from the AK-47 that Daniels, the codefendant,
fired at the scene of the crime.
Trial counsel did not object to the court recognizing
Robinson as an expert in firearms identification. Fur-
thermore, trial counsel did not move to suppress or
limit Robinson’s testimony, nor did he request a hearing
pursuant to State v. Porter, supra, 241 Conn. 57.4
At the habeas trial, the petitioner called three wit-
nesses: (1) Robinson, (2) Frank Riccio, a criminal
defense attorney, and (3) Alicia Carriquiry, a statistician
who researches firearm identification techniques. The
respondent did not call any witnesses.
Robinson mainly reiterated the testimony he gave at
the criminal trial, providing an overview of the method-
ologies he employs in conducting ballistics analysis.
Furthermore, he again opined that the .38 caliber bullet
that killed the victim was fired from the revolver that
the petitioner used in the shooting and that the bullet
could not have been fired from the Daniels’ AK-47. The
petitioner’s habeas counsel also inquired into Rob-
inson’s education, training, and professional expe-
rience.
Riccio testified as to the types of pretrial motions
criminal defense counsel might consider filing to con-
trovert ballistics evidence.5
Carriquiry offered lengthy testimony indicating that
she believed, as a result of her research, that ballistics
identification techniques may be unreliable. Specifi-
cally, she claimed that the field of ballistics lacks scien-
tific validity because (1) practitioners do not use a
uniform standard of objective criteria in matching a
bullet to a gun, (2) there is insufficient statistical evi-
dence supporting the fundamental assumptions that
every gun leaves unique markings and that every gun
can reproduce the same markings over time, and (3)
there is insufficient data with respect to how often
practitioners make erroneous matches and how often
coincidental matches occur. On the basis of the forego-
ing, Carriquiry opined that there was no ‘‘scientific
basis’’ for Robinson’s conclusions regarding the ballis-
tics evidence in the petitioner’s case. On cross-examina-
tion, Carriquiry acknowledged that she has never
worked in the field of ballistics, that she has never
examined a bullet, and that she does not have any train-
ing in ballistics.
The habeas court denied the amended petition for a
writ of habeas corpus on the grounds that trial counsel’s
performance was not deficient and that the petitioner
did not suffer any prejudice even if trial counsel per-
formed deficiently. With respect to prejudice, the
habeas court concluded that because ‘‘there was suffi-
cient evidence to justify the jury’s verdict,’’ there was
‘‘almost no likelihood’’ that the verdict would have been
different absent trial counsel’s allegedly deficient per-
formance. In particular, the habeas court found that
Robinson’s testimony ‘‘at the trial level and . . .
habeas case’’ was ‘‘clear, coherent, and believable,’’ but
that Carriquiry’s testimony was not credible.
We agree with the habeas court and conclude that
the petitioner has failed to demonstrate that he was
prejudiced by trial counsel’s allegedly deficient perfor-
mance. Accordingly, the petitioner has not shown that
there is a reasonable probability that, but for counsel’s
failure to move to exclude the testimony of Robinson,
the ballistics expert, the result of the criminal trial
would have been different.
The habeas court rejected the petitioner’s prejudice
claim on the basis of a credibility determination. In
short, it discredited Carriquiry’s testimony at the habeas
trial, and it credited Robinson’s testimony at both the
criminal trial and habeas trial. As a result, the habeas
court concluded that the impact of Carriquiry’s testi-
mony on the ‘‘believability of [Robinson’s] testimony
and conclusion’’ was ‘‘minimal at best,’’ and, therefore,
such testimony did not sufficiently demonstrate that
trial counsel’s challenge to Robinson’s testimony at the
criminal trial would have been successful. Accordingly,
because Carriquiry’s testimony was the only evidence
supporting the petitioner’s claim that the result of his
criminal trial would have been different had trial coun-
sel moved to exclude Robinson’s testimony, this claim
must necessarily fail.
‘‘It is well settled that the credibility of an expert
witness is a matter to be determined by the trier of fact.’’
Hayes v. Manchester Memorial Hospital, 38 Conn. App.
471, 474, 661 A.2d 123, cert. denied, 235 Conn. 922, 666
A.2d 1185 (1995). ‘‘The credibility of expert witnesses
and the weight to be given to their testimony . . . is
determined by the trier of fact.’’ (Internal quotation
marks omitted.) State v. James, 120 Conn. App. 382,
390, 991 A.2d 700, cert. denied, 297 Conn. 911, 995 A.2d
639 (2010). ‘‘[T]his court does not retry the case or
evaluate the credibility of the witnesses. . . . Rather,
we must defer to the [trier of fact’s] assessment of
the credibility of the witnesses based on its firsthand
observation of their conduct, demeanor and attitude.
. . . The habeas judge, as the trier of facts, is the sole
arbiter of the credibility of witnesses and the weight to
be given to their testimony.’’ (Internal quotation marks
omitted.) Fine v. Commissioner of Correction, 163
Conn. App. 77, 82–83, 134 A.3d 682, cert. denied, 320
Conn. 925, 133 A.3d 879 (2016).
As a result, we conclude that the habeas court did
not abuse its discretion in denying the petition for certi-
fication to appeal. The petitioner has not demonstrated
that the issues he raises on appeal are debatable among
jurists of reason, that a court could resolve the issues in
a different manner, or that the questions raised deserve
encouragement to proceed further.
The appeal is dismissed.
In this opinion the other judges concurred.
1
Initially, the petitioner’s amended petition contained ten counts. Prior
to trial, the petitioner withdrew five counts. Additionally, the habeas court
‘‘summarily dismissed’’ two of the petitioner’s remaining five counts because
he abandoned those claims by failing to prosecute them at trial. As a result,
only three counts were before the habeas court at trial. Those counts were
the following: ‘‘Count Three–Ineffective Assistance of Trial Counsel: Failure
to Challenge the State’s Firearms Identification Expert’’; ‘‘Count Four–
Violation of Due Process of Law: Failure to Challenge State’s Firearms
Identification Expert’’; and ‘‘Count Five–Ineffective Assistance of Trial Coun-
sel: Failure to Support Defense.’’ (Internal quotation marks omitted.)
On appeal, the petitioner has not raised any of the seven counts that he
withdrew or abandoned. With respect to the remaining three counts that
were before the habeas court, the petitioner in this appeal has challenged
only the habeas court’s resolution of the count alleging that his trial counsel
rendered ineffective assistance by not ‘‘challeng[ing] the state’s firearms
identification expert.’’ (Internal quotation marks omitted.) Within that count,
the petitioner had alleged in his amended petition that trial counsel’s perfor-
mance was constitutionally deficient in seventeen different ways. In this
appeal, however, the petitioner has raised only one of those seventeen
grounds, namely, that his trial counsel performed deficiently by failing to
‘‘seek to suppress or exclude [the testimony of the state’s ballistics expert]
pursuant to . . . State v. Porter, 241 Conn. 57, 67, 73–74, 77–81, 84–90 [698
A.2d 739] (1997) [cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d
645 (1998)] . . . .’’ Accordingly, we address only this specific claim, and
not the other grounds that the petitioner had raised in his amended petition.
2
The respondent also asserts that the petitioner’s claim is unreviewable
because the habeas court made findings only with respect to the claim that
trial counsel performed deficiently by failing to call an expert to rebut the
testimony of the ballistics expert, and not to the specific claim that the
petitioner has raised on appeal. Indeed, the habeas court framed the issue
before it as whether trial counsel performed deficiently by ‘‘failing to utilize
an expert . . . to undermine the testimony of [the ballistics expert],’’ and
it stated that the petitioner’s claims ‘‘all pertain to the . . . failure to call
an expert witness . . . .’’
In his amended petition, however, the petitioner alleged broadly that trial
counsel performed deficiently by not ‘‘challeng[ing]’’ the ballistics expert.
Within that allegation, the petitioner listed seventeen distinct ways in which
trial counsel should have challenged the testimony of the ballistics expert.
See footnote 1 of this opinion. Both calling a rebuttal witness and moving
to exclude the testimony of the ballistics expert were included in this list. In
concluding that the petitioner was not prejudiced by trial counsel’s allegedly
deficient performance, the habeas court stated that regarding ‘‘the specific
deficiencies alleged in the [petition] . . . there is no merit to any of the
points raised by the petitioner.’’ (Emphasis added.) Moreover, at the habeas
trial, the petitioner presented the testimony of a criminal defense attorney
who opined that trial counsel performed deficiently by not filing a pretrial
motion to limit or exclude the testimony of the ballistics expert. Accordingly,
after reviewing the record, we conclude that the petitioner’s claim was
rejected by the habeas court and properly is before this court.
3
‘‘Because both [Strickland] prongs . . . must be established for a
habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he
fails to meet either prong.’’ (Internal quotation marks omitted.) Hunnicutt
v. Commissioner of Correction, 83 Conn. App. 199, 206, 848 A.2d 1229, cert.
denied, 270 Conn. 914, 853 A.2d 527 (2004). ‘‘[A] reviewing court can find
against a petitioner on either ground, whichever is easier.’’ (Internal quota-
tion marks omitted.) Roger B. v. Commissioner of Correction, supra, 157
Conn. App. 271. ‘‘Accordingly, a court need not determine the deficiency
of counsel’s performance if consideration of the prejudice prong will be
dispositive of the ineffectiveness claim.’’ Griffin v. Commissioner of Correc-
tion, 98 Conn. App. 361, 366, 909 A.2d 60 (2006). In light of the foregoing,
we decline to express any opinion on whether trial counsel’s performance
was deficient in this case.
4
‘‘Beyond [the] general requirements regarding the admissibility of expert
testimony, [t]here is a further hurdle to the admissibility of expert testimony
when that testimony is based on . . . scientific [evidence]. In those situa-
tions, the scientific evidence that forms the basis for the expert’s opinion
must undergo a validity assessment to ensure reliability. . . . In Porter, this
court followed the United States Supreme Court’s decision in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.
2d 469 (1993), and held that scientific evidence should be subjected to a
flexible test, with differing factors that are applied on a case-by-case basis,
to determine the reliability of the scientific evidence. . . . Following . . .
Porter . . . scientific evidence, and expert testimony based thereon, usually
is to be evaluated under a threshold admissibility standard assessing the
reliability of the methodology underlying the evidence and whether the
evidence at issue is, in fact, derived from and based upon that methodology
. . . .’’ (Citations omitted; internal quotation marks omitted.) Prentice v.
Dalco Elec., Inc., 280 Conn. 336, 342–43, 907 A.2d 1204 (2006), cert. denied,
549 U.S. 1266, 127 S. Ct. 1494, 167 L. Ed. 2d 280 (2007).
5
In particular, Riccio opined that trial counsel should have challenged
the ballistics evidence by filing either a motion to suppress or a motion in
limine. He did not, however, specifically suggest that trial counsel should
have requested a Porter hearing.