VERNON HORN v. COMMISSIONER OF CORRECTION, SC 19364

Judicial District of New Haven

 

††† †Habeas; Whether Counsel Ineffective in Failing to Discover and Present Evidence that Would Have Contradicted Testimony Linking Petitioner to Robbery.† On January 24, 1999, three masked men carried out an armed robbery of a New Haven delicatessen, fatally shooting a customer. †The robbers stole cash and a cell phone.† During an interview with the police, Steven Brown admitted his participation in the robbery and identified the petitioner as one of the other two robbers.† The petitioner was charged with several crimes, including felony murder and robbery.† At trial, evidence showed that five calls were made from the stolen cell phone.† The fourth call was made at 11:07 a.m. on January 25, 1999, to the residence of Crystal Sykes.† As to that call, Brown testified that he vaguely recalled giving the stolen cell phone to the petitioner in Bridgeport shortly after using it at 10:40 a.m. on January 25, 1999.† Marcus Pearson testified that he obtained the phone from the petitioner in New Haven and placed a call at 11:07 a.m. to Sykes.† The petitioner was convicted, and he brought this habeas corpus action, claiming that his trial attorney was ineffective in failing to call witnesses at trial who would have contested Pearsonís testimony that he obtained the stolen cell phone from the petitioner.† At the habeas trial, Sykes testified that she had no clear recollection of receiving the 11:07 a.m. call from Pearson.† William Newkirk, Sykesí boyfriend at the time of the robbery, testified that Willie Sadler obtained the stolen cell phone from Brown and that Sadler used it to call him at Sykesí residence.† The habeas court found that Pearson testified falsely at the criminal trial and that there was no credible evidence tying the petitioner to the stolen cell phone after the robbery was committed.† The court determined that the petitionerís trial attorneyís performance was deficient in two ways.† First, it found that counsel should have obtained information from the cell phone service provider as to where the calls originated, which information, the court opined, would almost certainly have shown that the fourth call originated from Bridgeport rather than New Haven. †Second, it found that counsel should have interviewed and called Sykes, Newkirk, and Sadler as witnesses to contradict Pearsonís testimony. †It also concluded that the petitioner was prejudiced by his attorneyís deficient performance in that those witnesses and the call origination information would have cast serious doubt on the veracity of Pearsonís testimony, which connected the petitioner to both the stolen cell phone and to Brown.† The habeas court granted the petition and the state appeals, claiming that the courtís determination that counsel was ineffective in failing to discover the call origination information was based on unsupported findings that the information still existed when counsel took over the case and that it would have shown that the fourth call originated in Bridgeport.† The state also claims that the petitioner was not prejudiced by counselís failure to call Sykes, Newkirk, and Sadler because their relatively weak testimony would not have undermined to a meaningful degree (1) Pearsonís unequivocal testimony that he obtained the stolen cell phone from the petitioner, or (2) Brownís testimony identifying the petitioner as one of the robbers.