Mourning v. Commissioner of Correction

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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.