Lapointe v. Commissioner of Correction ( 2015 )

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RICHARD LAPOINTE v. COMMISSIONER
OF CORRECTION
(SC 19079)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Espinosa, Js.
Argued September 17, 2013—officially released March 31, 2015*
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Kevin T. Kane, chief state’s
attorney, Jo Anne Sulik, supervisory assistant state’s
attorney, and Michael E. O’Hare, former senior assis-
tant state’s attorney, for the appellant (respondent).
Paul Casteleiro, pro hac vice, with whom was W.
James Cousins, for the appellee (petitioner).
Opinion
PALMER, J. This certified appeal by the respondent,
the Commissioner of Correction, requires us to decide
whether the Appellate Court correctly concluded, con-
trary to the determination of the habeas court, that the
petitioner, Richard Lapointe, is entitled to a new trial
on the charges underlying his 1992 conviction of capital
felony and other offenses because prior habeas counsel
(first habeas counsel) rendered ineffective assistance
in failing to demonstrate that the state withheld certain
exculpatory evidence prior to trial in violation of Brady
v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d
215 (1963), and its progeny, the disclosure of which
would have supported an alibi defense. We agree with
the petitioner both that he was deprived of a fair trial
because his rights under Brady were violated and that
his first habeas counsel’s representation was constitu-
tionally deficient in that counsel failed to establish that
violation. We therefore affirm the judgment of the
Appellate Court.
The respondent’s appeal arises out of events that
have their origin in the early evening hours of Sunday,
March 8, 1987, when the victim, eighty-eight year old
Bernice Martin, was raped, bound and murdered in her
Manchester apartment, which her killer thereafter set
ablaze in an apparent effort to destroy all evidence of
the crime. The case remained unsolved until early 1989,
when police focused their suspicions on the petitioner,
the then forty-two year old mentally impaired husband
of the victim’s granddaughter, Karen Martin (Martin),
with whom the petitioner resided along with their eight
year old son. Until then, the petitioner was not a suspect:
he had no criminal record or history of violence of any
kind, and he seemed physically, mentally and tempera-
mentally incapable of the brutal crime. Nevertheless, on
July 4, 1989, over the course of a nine hour stationhouse
interrogation by the Manchester police that lasted until
the early morning hours of July 5, the petitioner gave
three written statements in which he purported to take
responsibility for the victim’s murder. The petitioner
repeatedly told the police, however, that he had no
recollection of killing the victim and that he was con-
fessing only because they wanted him to do so.
On the basis of these statements, the police obtained
a warrant for the petitioner’s arrest, and he ultimately
was charged with capital felony and arson murder,
among other offenses. Following a jury trial, he was
convicted as charged1 and sentenced to life imprison-
ment without the possibility of release.2 After this court
affirmed his conviction; State v. Lapointe, 237 Conn.
694, 739, 678 A.2d 942, cert. denied, 519 U.S. 994, 117
S. Ct. 484, 136 L. Ed. 2d 378 (1996); the petitioner sought
a writ of habeas corpus, claiming, inter alia, that his
due process rights were violated because the state had
failed to disclose a note, authored by Detective Michael
Ludlow of the Manchester Police Department (Ludlow
note), containing details concerning the length of time
that the fire burned inside the victim’s apartment prior
to being discovered. The petitioner claimed that the
note was both exculpatory and material under Brady3
because it purported to identify the time frame within
which the fire was set, and Martin would testify that
the petitioner was home, with her and their son, during
that entire period, thereby providing the petitioner with
a complete alibi. First habeas counsel, however, failed
to pursue the claim, and, consequently, the first habeas
court, Freed, J., rejected that claim as abandoned, as
well as the petitioner’s other claims on the merits. On
appeal, the Appellate Court affirmed the judgment of
the first habeas court. Lapointe v. Commissioner of
Correction, 67 Conn. App. 674, 681, 789 A.2d 491, cert.
denied, 259 Conn. 932, 793 A.2d 1084 (2002).
The petitioner subsequently filed the habeas petition
that is the subject of this appeal, alleging, inter alia,
that the state’s failure to disclose the Ludlow note
deprived him of due process of law and that his first
habeas counsel had rendered ineffective assistance
under Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984),4 by failing to pursue
and prove that claim. The second habeas court, Fuger,
J., dismissed the claim, concluding, inter alia, that the
petitioner had not established a prima facie basis for
the exculpatory nature of the Ludlow note because,
despite its existence, he could not account for his
whereabouts for the entire window of time within which
the victim was murdered. The petitioner appealed to
the Appellate Court, which reversed in part the second
habeas court’s judgment and remanded the case for
further proceedings. Lapointe v. Commissioner of Cor-
rection, 113 Conn. App. 378, 404, 966 A.2d 780 (2009).
The Appellate Court’s decision was predicated on its
determination that the Ludlow note, when viewed in
the light most favorable to the petitioner and considered
together with certain statements from Martin as to when
the petitioner was home with her, was exculpatory
because it tended to support a finding that he could
not have committed the crime in the requisite time
frame. See id., 392.
At the proceeding following the Appellate Court’s
remand of the case to the habeas court, the sole issue
with respect to the Ludlow note was whether it was
material. In support of his claim that the note was mate-
rial, the petitioner presented expert testimony concern-
ing the length of time the fire burned in the victim’s
apartment. Based on the burn time estimates of the
petitioner’s two experts, which were consistent with
the notation that had been made in the Ludlow note,
the fire was set in a relatively narrow window of time.
The petitioner also presented evidence establishing
that, if the state had disclosed the Ludlow note as
required, his trial counsel would have called Martin as
a witness, and Martin would have testified that the
petitioner was home with her during the time frame
within which, according to the petitioner’s burn time
experts, the fire was set. The respondent also presented
expert testimony concerning the likely burn time of the
fire. Under the far longer burn time estimate proffered
by the respondent’s expert, the petitioner could not
establish, even with Martin’s testimony, that he was
home during that entire period. At the conclusion of
the trial, the third habeas court, Nazzaro, J., rejected
the petitioner’s claim that his first habeas counsel was
ineffective for failing to pursue a Brady claim on the
basis of the state’s nondisclosure of the Ludlow note.
In particular, the third habeas court found that the testi-
mony of the respondent’s expert was far more persua-
sive than the testimony of the petitioner’s experts and
that it was not reasonably probable that, if the jury at
the petitioner’s criminal trial had heard the testimony
of the petitioner’s experts, it would have credited that
testimony and reached a different result.
On appeal to the Appellate Court from the judgment
of the third habeas court, the petitioner argued, inter
alia, that, contrary to the finding of the third habeas
court, he is entitled to a new criminal trial at which the
jury would decide how much weight to assign to the
testimony of the petitioner’s experts. The Appellate
Court agreed, concluding that the determination of
which expert or experts were most persuasive was an
issue to be decided by the jury at a new trial. See
Lapointe v. Commissioner of Correction, 138 Conn.
App. 454, 476–77 and n.17, 53 A.3d 257 (2012). Accord-
ingly, the Appellate Court reversed in part5 the judgment
of the third habeas court and remanded the case with
direction to grant the petition for a writ of habeas cor-
pus and for a new trial. Id., 480.
We then granted the respondent’s petition for certifi-
cation to appeal, limited to the following issue: ‘‘Did
the Appellate Court properly determine that the [peti-
tioner’s] first habeas counsel was ineffective for failing
to pursue a claim that the state had suppressed evidence
in violation of Brady v. Maryland, [supra, 373 U.S. 83]?’’
Lapointe v. Commissioner of Correction, 307 Conn.
940, 941, 56 A.3d 948 (2012). We answer the certified
question in the affirmative because the testimony of
the petitioner’s experts was more than sufficient to call
into question the reliability of the petitioner’s convic-
tion. Indeed, even if that expert testimony only tended
to support the petitioner’s claim that he could not have
murdered the victim, in view of the tenuous nature of
the state’s case against the petitioner—based as it was
on his suspect admissions—the state’s Brady violation
would warrant a new trial because, as the United States
Supreme Court has recognized, exculpatory evidence
of even ‘‘minor importance’’ may well be ‘‘sufficient to
create a reasonable doubt’’ when, as in the present case,
‘‘the [guilty] verdict is already of questionable validity
. . . .’’ United States v. Agurs, 427 U.S. 97, 113, 96 S.
Ct. 2392, 49 L. Ed. 2d 342 (1976). Accordingly, we affirm
the judgment of the Appellate Court reversing in part
the judgment of the third habeas court and ordering a
new trial.
I
FACTS AND PROCEDURAL HISTORY
Our resolution of the issue presented by this appeal
requires an extended discussion of the long and vexing
history of the petitioner’s case.6 At all times relevant
to this appeal, the petitioner, his wife, Martin, and their
son resided in the town of Manchester, within walking
distance of the apartment of the victim, whom they
visited every Sunday. On Sunday, March 8, 1987, the
family followed their usual routine, attending church
in the morning and then stopping for breakfast at My
Brother’s Place, a nearby restaurant where the peti-
tioner was employed. When the restaurant closed at
2 p.m., they walked across the street to the victim’s
apartment, where they stayed for approximately two
hours, watching television with the victim. At about 4
p.m., the petitioner and Martin, neither of whom had a
driver’s license, and their son took the ten minute walk
home. After they arrived home, Martin, who has cere-
bral palsy and is slightly paralyzed, prepared dinner,
and the petitioner, who has certain physical and mental
impairments as the result of Dandy-Walker syndrome,7
took the family dog out for a walk. The petitioner was
gone for around twenty minutes. Upon his return, at
approximately 5 or 5:15 p.m., the family sat down for
dinner.
At or about 5:45 p.m., the victim’s daughter, Nathalie
Howard, and her husband drove past the victim’s apart-
ment and saw the victim outside emptying her trash.
At the time, the victim appeared fine, and the couple
continued on their way. At approximately 7:55 p.m.,
Howard called the victim to check on her, as she did
every evening, but the victim did not answer her tele-
phone. Howard tried calling again at 8:05 p.m. When
the victim still did not answer, Howard called her niece,
Martin, to inquire whether Martin’s father, who resided
in New York, had come to visit the victim and had taken
her out to dinner. When Martin told Howard that her
father was not in town that day, Howard asked if the
petitioner would walk over to the victim’s apartment
to make sure that nothing was wrong. Howard also
requested that the petitioner call her as soon as he
got to the victim’s apartment to let Howard know that
everything was alright.
According to Howard, the petitioner called her right
back from the home of Jeannette King, the victim’s
neighbor. He told Howard that the doors to the victim’s
apartment were locked and that the victim must be
sleeping because there were no lights on inside the
apartment. Howard told the petitioner that the victim
never went to bed at that hour and that she was heading
right over to the victim’s apartment. The petitioner also
called Martin, who told him to go back to the victim’s
apartment immediately and to try to get inside because
the victim might have fallen and injured herself. A few
minutes later, the petitioner returned, out of breath, to
King’s apartment and told her that there was smoke
coming from the victim’s apartment. The petitioner
dialed 911 from King’s apartment at 8:27 p.m.
The first firefighter on the scene, Michael Tomkunas,
who was off duty and arrived within moments of the
911 call, saw the petitioner standing in front of the
building, motioning him in the direction of the victim’s
apartment. Tomkunas could see smoke coming from
the apartment, and the front door was hot to the touch.
Tomkunas immediately kicked in the front door and
tried to enter the apartment, but the smoke and heat
were too intense, and he was forced out. By then, other
firefighters were arriving on the scene. One of them,
Douglas Boland, ran to the back of the building and
opened a set of sliding glass doors. The cross-ventilation
dissipated enough of the smoke and heat to allow the
firefighters to enter. When they did, they discovered
the victim lying on the living room floor, six to eight
feet from the burning couch. She was naked except for
two pieces of fabric, one of which was tied so tightly
around her neck that Tomkunas had trouble removing
it; the other piece bound her hands and midsection.
The firefighters carried the victim to the front lawn and
performed cardiopulmonary resuscitation until para-
medics arrived. Howard arrived just as rescue person-
nel were carrying her mother from the building. The
drive from her home had taken approximately ten
minutes. The victim subsequently was transported to
Manchester Memorial Hospital, where she was pro-
nounced dead.
The associate medical examiner, Arkady Katsnelson,
performed an autopsy on the victim and determined
that her cause of death was a combination of asphyxia
by strangulation and smoke inhalation. He concluded
that the victim was not manually strangled but was
asphyxiated by pressure to the right side of her neck
from a blunt object. The victim also suffered a three
inch stab wound to her abdomen, ten less severe stab
wounds to her back, extensive hemorrhaging and contu-
sions and lacerations to the vaginal area, as well as first
and second degree burns to various parts of her body.
Katsnelson opined that the contusions and lacerations
to the vaginal area were caused by a blunt object rather
than by sexual intercourse.
The police recovered several items of potential evi-
dentiary value from the victim’s apartment, including
a pair of men’s gloves containing strands of the victim’s
hair and a semen stain from the bedspread belonging
to a person with type A blood who also was a secretor.8
The petitioner is a secretor with type A blood, as is
approximately one third of the male population.9 The
police also recovered a pubic hair from the victim’s
clothing, but DNA tests were not then available.10 But-
tons from the victim’s blouse were found strewn about
the bedroom floor, indicating that the perpetrator had
forcibly removed the victim’s clothing. The police also
found a pool of the victim’s blood on top of the bed,
indicating that she was stabbed in that location.
The police investigation into the victim’s homicide
remained open for more than two years. In March, 1989,
the case was reassigned to Detective Paul Lombardo
of the Manchester Police Department.11 At that time,
Lombardo decided to reinterview individuals who pre-
viously had been questioned by the police. On June 8,
1989, Lombardo interviewed the petitioner and took a
saliva sample from him.
On July 4, 1989, Lombardo asked the petitioner to
come to the police station for questioning. By that time,
Lombardo had become convinced of the petitioner’s
guilt because of his blood type, his peculiar nature and
mannerisms, and his repeated questions to the police
about whether he was a suspect in the victim’s murder.
According to Joseph J. Brooks, Lombardo’s command-
ing officer, the purpose of the interview was to elicit
a confession from the petitioner. When the petitioner
arrived at the police station, Lombardo informed him
that there was incontrovertible evidence of his guilt.
Although the petitioner initially denied any involvement
in the victim’s murder, after Lombardo told him that a
person could commit a crime and not remember doing
so, the petitioner signed two statements in which he
acknowledged his involvement in the murder. In the
first, one sentence statement, the petitioner purported
to accept responsibility for the victim’s death, but stated
only that ‘‘it was an accident, my mind went blank.’’ In
the second statement, the petitioner stated that he had
no memory of killing the victim but that, if the evidence
showed that he was there and that he killed her, then
he must be guilty. Because the first two statements
were devoid of any detail corroborating the petitioner’s
equivocal admission that he had killed the victim, Lom-
bardo asked another Manchester police officer involved
in the investigation, Detective Michael Morrissey, to
take over the interrogation and to try to obtain more
specific information from the petitioner. Several hours
later, under questioning by Morrissey, the petitioner
signed a third statement that was largely inconsistent
with the crime scene evidence12 but that also contained
three details about the crime that, presumably, would
have been known only to the police and the killer.13
After signing the third statement, the petitioner was
told to go home. Before leaving the station at 1:30 a.m.
on July 5, however, the petitioner spoke to Brooks
and again expressed uncertainty about his role in the
victim’s murder. Brooks asked him why he had he
signed the three statements confessing to the murder.
The petitioner responded that he simply had repeated
what the officers had told him to say.
At the petitioner’s criminal trial, the petitioner’s coun-
sel presented evidence to demonstrate that the peti-
tioner was physically, mentally and emotionally inca-
pable of committing, much less concealing, such a bru-
tal and cold-blooded murder, as evidenced by the testi-
mony of numerous psychologists and other witnesses
who had known the petitioner at various stages in his
life, including childhood friends, employers, fellow
parishioners, and other members of the community.
According to these witnesses, the petitioner’s cognitive
and motor skills are impaired, apparently the result of
Dandy-Walker syndrome, and, as a consequence, he is
slow-witted, easily confused, child-like and gullible—
his mother-in-law described him as having the mentality
of an eight year old—as well as physically awkward
and uncoordinated. In addition, the petitioner was
extremely close to the victim and her family, and he
had no conceivable reason or motive to harm her, let
alone to sexually assault and kill her. With respect to
the petitioner’s admissions, counsel argued that they
were the product of a highly manipulative interrogation
of an extremely vulnerable and impaired man, who had
spent his entire life accommodating and agreeing with
others in an effort to gain favor and to avoid conflict.
Focusing principally on the petitioner’s third incrimi-
nating statement, the state argued that the statement
was freely given, and that it was powerful evidence of
guilt because it contained information about the murder
that only the killer would know. The state also argued
that the petitioner was not nearly as compromised intel-
lectually as defense witnesses had made him out to be
because he had an intelligence quotient (IQ) of 92,
which, the state asserted, was ‘‘nowhere close to being
[even] slightly retarded.’’ The state also emphasized that
the petitioner’s blood type and secretor status were
consistent with the seminal stain on the victim’s bed-
spread. Finally, the state referred to certain conduct
by the petitioner in the days and weeks following the
murder that, in the state’s view, suggested that the peti-
tioner was the murderer: on several occasions, the peti-
tioner had asked the police whether he was a suspect
in the crime; he had told a neighbor that the victim was
sexually assaulted before that information was known
publically; and, on the night of the murder, he had gone
to King’s front door to ask to use her telephone, even
though the back door was closer to the victim’s apart-
ment.14 On June 30, 1992, a jury found the petitioner
guilty of all charges, and, after a penalty phase hearing,
the trial court sentenced him to a term of life imprison-
ment without the possibility of release.
On direct appeal to this court, the petitioner claimed,
inter alia, that the trial court improperly had denied his
motion to suppress the oral and written statements that
he had given to the police on July 4 and 5, 1989,15 and
improperly concluded that the state constitution did
not require the police to record his confession electroni-
cally. See State v. Lapointe, surpa, 237 Conn. 696. We
rejected those claims and affirmed the petitioner’s con-
viction.16 Id., 703, 735, 739. Thereafter, on May 30, 1997,
the petitioner filed his first writ of habeas corpus, alleg-
ing, inter alia, prosecutorial impropriety predicated on
the state’s failure to disclose certain exculpatory evi-
dence, including the Ludlow note. At the first habeas
trial, however, first habeas counsel presented no evi-
dence to support a claim that the state had suppressed
the Ludlow note, and, therefore, the first habeas court
deemed the claim abandoned. The first habeas court
rejected the petitioner’s other claims,17 and the peti-
tioner appealed to the Appellate Court, which affirmed
the judgment of the first habeas court. Lapointe v. Com-
missioner of Correction, supra, 67 Conn. App. 681.
On August 2, 2002, the petitioner filed a second
habeas petition, alleging, inter alia, that his first habeas
counsel rendered ineffective assistance by failing to
pursue a claim that the state improperly had suppressed
the Ludlow note. The following relevant facts relating
to the Ludlow note are set forth in the decision of
the Appellate Court in Lapointe v. Commissioner of
Correction, supra, 138 Conn. App. 454. ‘‘At the time of
the victim’s homicide, Ludlow was . . . assigned as the
evidence officer for the crime scene. He subsequently
assumed the position of case officer, which meant that
he was responsible for the entire criminal investigation.
A few days after the homicide, Ludlow had conversa-
tions with two state fire marshals who were assisting
with the investigation. Ludlow took notes and wrote
‘CSP,’ which stood for Connecticut State Police, and
‘Steve Igoe’ and ‘Joe Roy,’ the names of the state fire
marshals. Underneath those notations [in] the Ludlow
note, the words ‘30–40 mins. Poss.’ were written. The
numbers ‘30’ and ‘40’ were underscored twice. Ludlow
testified that the notation ‘[P]oss.’ meant ‘possible’ and
that the times represented the minimum amount of time
that the fire could have been burning before the first
responding firefighters arrived at the victim’s apart-
ment. At the time of the second habeas trial, Ludlow
stated that he could not remember who gave him the
burn time information. He admitted, however, that he
was not an expert on fires and that he would not have
made that estimate on his own. He testified that he
would have asked one of the experts for the burn time
if he was trying to determine a window of time within
which the fire could have been started. Ludlow also
acknowledged that, at the time of the first habeas pro-
ceeding, he testified that he had obtained the informa-
tion as to a possible burn time from either Igoe or Roy.
‘‘The Ludlow note was first disclosed to [the petition-
er’s] counsel in 1999, after the petition for [a writ of]
habeas corpus had been filed in the first habeas action.
[The petitioner’s trial counsel, Patrick] Culligan and
[Christopher] Cosgrove both testified that they had not
seen the Ludlow note prior to the petitioner’s criminal
trial in 1992. . . . [A]fter receiving the Ludlow note
and other materials, [first habeas counsel] amended the
petition to allege the state’s failure to disclose or to
produce the Ludlow note as Brady material, as required
by the [federal and state] constitutions . . . . He did
not, however, pursue that issue during the first habeas
trial. The first habeas court, in its memorandum of
decision, did not address the claim regarding the Lud-
low note because it deemed that claim to [be] aban-
doned.
‘‘[The petitioner alleged in a second habeas proceed-
ing that his first habeas counsel’s] failure to pursue the
claim that the state suppressed the Ludlow note was
. . . ineffective assistance of counsel . . . . During
the second habeas trial, [the petitioner’s first habeas
counsel] testified that he had not pursued that claim
because he did not believe [that] the notation as to burn
time in the Ludlow note [was] exculpatory. Culligan
and Cosgrove, in their testimony before the second
habeas court, opined that the Ludlow note was exculpa-
tory and that the information could have been used by
[them] at the criminal trial to buttress the petitioner’s
alibi defense. Culligan and Cosgrove further testified
that if the Ludlow note had been disclosed to [them]
prior to the [petitioner’s criminal] trial, their strategy
would have changed.
‘‘[Martin] was not called as a witness in the petition-
er’s criminal trial. Culligan stated that Martin and the
petitioner were divorced by that time and that the work-
ing relationship between her and the defense was no
longer a good one. Although [Culligan] discovered prior
to trial that [Detective] Morrissey had interviewed [Mar-
tin] on July 4, 1989, and that she had expressed her
support for the petitioner at that time, and although
[Culligan] knew that [Martin] had testified at the sup-
pression hearing that the only time the petitioner was
out of her sight on the night of the homicide was when
she bathed their son between 6:15 [or 6:30] p.m. and 7
p.m., Culligan decided not to compel her testimony.
He testified that he was concerned about her attitude
toward the petitioner. Further, he was unaware of the
existence of the Ludlow note and the importance of
the start time of the fire to support the petitioner’s alibi
defense. Culligan testified that, if he had known that
Igoe, the state’s fire expert, gave a burn time of thirty
to forty minutes, he would have called [Martin] as a
witness because her testimony would have established
that the petitioner was home when the fire was set. He
also [testified] that [if] he . . . had . . . known of the
information in the Ludlow note [he would have been
prompted to hire an expert to testify about the fire’s
burn time for the purpose of demonstrating that the
petitioner could not have started the fire because he
was home when it was set].’’18 (Footnotes omitted.)
Id., 468–71.
At the close of the petitioner’s evidence at the second
habeas trial, the respondent moved to dismiss the peti-
tion on the ground that the petitioner had failed to make
out a prima facie case with respect to any of his claims.
On August 2, 2007, the second habeas court granted
the motion, concluding, with respect to the petitioner’s
claim predicated on the nondisclosure of the Ludlow
note, that the note was not exculpatory. The court rea-
soned that, although the note arguably supported a find-
ing that the minimum burn time was thirty to forty
minutes—a period of time for which the petitioner
could account for his whereabouts through Martin’s
testimony—the note said nothing about the maximum
possible burn time, and the petitioner could not estab-
lish his whereabouts for a longer time period.
The petitioner appealed from the judgment of the
second habeas court to the Appellate Court, which
reversed in part the second habeas court’s judgment as
it related to the Ludlow note and remanded the case
for further proceedings. Lapointe v. Commissioner of
Correction, supra, 113 Conn. App. 404. In reversing
that portion of the second habeas court’s judgment
pertaining to the Ludlow note, the Appellate Court
observed that ‘‘the record reveals . . . that the victim
was last seen outside of her apartment by Howard at
about 5:45 p.m. The petitioner’s former wife, [Martin],
testified at a suppression hearing that she prepared
dinner at the petitioner’s home and that they ate dinner
at about 5:15 p.m. or 5:30 p.m. Prior to sitting down for
dinner, the petitioner . . . walked the family dog for
approximately twenty minutes. Therefore, according to
her testimony, the petitioner had returned from his walk
before the time that the victim was last seen outside
of her apartment. . . . Martin . . . further testified
that [the petitioner] did not leave their house again
until she received a telephone call from Howard, who
requested that the petitioner walk over to the victim’s
house to check on [the victim]. According to Howard,
this telephone call was placed a little after 8 p.m.’’ Id.,
391. The Appellate Court further noted that, although
the state had adduced testimony from Martin acknowl-
edging that the petitioner was out of her sight from
approximately 6:15 or 6:30 p.m. until 7 p.m., when she
was upstairs bathing their son, Martin also testified that,
‘‘while she was upstairs, it was possible to hear someone
downstairs’’; id.; and, in addition, that, from 7 p.m. until
the time the petitioner left to check on the victim, she
and the petitioner were watching television with their
son. See id., 391–92.
Viewing this evidence in the light most favorable to
the petitioner,19 the Appellate Court concluded that ‘‘the
thirty to forty minute minimum burn time, if credited
as an accurate estimation, establishes that the fire was
set at or before 7:50 p.m. The petitioner submitted evi-
dence that, if credited, can account for his whereabouts,
albeit tenuously, for the full window of time encom-
passing the last time the victim was seen alive outside
her apartment to the time her body was discovered.
Evidence that tends to prove his temporal inability to
have committed the crime satisfies the definition of
exculpatory and, therefore, is sufficient to establish the
first prima facie element of a Brady claim.’’20 Id., 392.
On remand, the case was assigned to the third habeas
court, Nazzaro, J.,21 and the case proceeded to trial.
At trial, the petitioner sought to demonstrate the materi-
ality of the expert burn time testimony that the petition-
er’s trial counsel, Culligan and Cosgrove, would have
presented, along with the testimony of Martin, to estab-
lish an alibi defense, if the state had timely disclosed
the Ludlow note. In support of this claim, the petitioner
presented the testimony of two fire experts, Gerard
Kelder, Jr., and John DeHaan;22 the respondent pre-
sented expert fire testimony from Robert Corry for the
purpose of rebutting the testimony of DeHaan and
Kelder. All three experts had been provided with the
same materials to review in connection with their inves-
tigations, including photographs of the damage to the
victim’s apartment caused by the fire, blueprints of the
victim’s apartment, the trial testimony of firefighters
who responded to the fire, the state fire marshal’s report
on the fire, a video-recorded narration depicting the
aftermath of the fire, and the other experts’ reports on
the fire. All three experts were highly experienced fire
investigators. A review of their testimony reveals, more-
over, that they all agreed that the fire began on the
living room couch, that it burned intensely for a short
period of time, and that it was quickly extinguished or
reduced to a smoldering fire due to decreasing levels
of oxygen in the victim’s small, relatively airtight apart-
ment. The principal distinction between the testimony
of DeHaan and Kelder, on the one hand, and Corry, on
the other, concerned the fire’s maximum burn time.
Primarily on the basis of the smoke and fire damage
to the apartment, Kelder concluded that the fire burned
for approximately forty-five minutes to one hour. Under
this estimate, the fire was set no earlier than 7:30 p.m.
Because Martin could account for the petitioner’s
whereabouts from at least 7 p.m. until he left his house
to check on the victim, Kelder’s testimony, together
with Martin’s testimony, established that the petitioner
was not at the victim’s home when she was sexually
assaulted and killed.
DeHaan’s testimony also supported the petitioner’s
alibi. In his view, in light of the smoke and heat condi-
tions that Tomkunas had encountered when he arrived
on the scene, the fire could have been set as late as 8
p.m. or 8:05 p.m. He further concluded, however, on
the basis of the damage to the apartment and the dynam-
ics of the fire, that it was set no earlier than 7:30 p.m.
Like Kelder’s estimate, DeHaan’s burn time estimate
was favorable to the petitioner because Martin could
account for the petitioner’s whereabouts from 7:30 p.m.
until 8:05 p.m.
Corry thereafter testified that the fire could have been
set anytime from 5:45 p.m., when the victim was last
seen alive, until she failed to answer her telephone at
around 8 p.m. Under this estimate of the fire’s possible
burn time, Martin did not provide the petitioner with a
complete alibi because she could not positively account
for the petitioner’s whereabouts from 6:15 or 6:30 p.m.
until 7 p.m.—when she was upstairs getting her son
ready for bed—a time period within which, according
to Corry, the fire could have been set.
On direct examination, Corry also was asked whether
he had been present in the courtroom for DeHaan’s
testimony, two months earlier, and, if so, whether he
agreed with DeHaan’s conclusions regarding the fire.
Corry responded that he had been present for DeHaan’s
testimony and that he disagreed with several of
DeHaan’s findings. In particular, Corry characterized
DeHaan as having testified that the fire was a ‘‘high
energy’’ fire. Corry then explained that, if the fire actu-
ally had been a high energy fire, there would have been
more damage to the apartment. Specifically, Corry
stated that a high energy fire ‘‘would have destroyed
the wall behind [the couch], it would have destroyed
the ceiling over it, and it would have probably brought
this room to flash over.’’ When asked what may have
caused DeHaan to overestimate the fire’s energy level,
Corry opined that DeHaan likely did not consider the
probability that there was some kind of object, possibly
a blanket, on the couch, which is where the fire began,
and that the blanket or other object had interfered with
and retarded the spread and intensity of the fire. Corry
also characterized DeHaan as having testified that the
apartment was 400 degrees23 at floor level when Tomku-
nas and the other firefighters entered the apartment.24
Corry disagreed with this testimony, as well, explaining
that, if the temperature had been 400 degrees, as
DeHaan stated, all of the firefighters would have been
burned. According to Corry, the fact that they were not
burned indicated that the entry level temperature was
considerably lower than DeHaan had believed, which,
in turn, indicated that the fire must have been started
earlier than DeHaan had indicated because, by the time
the firefighters entered the apartment, it had cooled to
the point that it was safe for them to do so.
Following the trial, the third habeas court issued a
memorandum of decision in which it rejected the peti-
tioner’s claim that the petitioner’s first habeas counsel
provided ineffective assistance by failing to pursue, as
a claim in the first habeas proceeding, the state’s sup-
pression of the Ludlow note. For purposes of its analy-
sis, the third habeas court treated the Ludlow note as
‘‘potentially exculpatory’’ and assumed that the state
had inadvertently failed to disclose the note.25 The third
habeas court concluded, however, that the note did not
support the petitioner’s alibi defense and, therefore,
that the note was not material. In reaching its determi-
nation, the third habeas court concluded that Corry’s
burn time estimate, which did not support the petition-
er’s alibi defense, was more persuasive than the esti-
mates that DeHaan and Kelder had provided. In support
of this finding, the third habeas court made several
subordinate findings. With respect to DeHaan, the third
habeas court found that Corry had convincingly refuted
DeHaan’s testimony that (1) the fire was a high energy
fire, (2) the fire’s ‘‘peak temperature’’ reached 400
degrees,26 and (3) the temperature inside the apartment
was 400 degrees when firefighters entered.
With respect to the latter finding, the third habeas
court stated: ‘‘The fact that Tomkunas was not burned
contradicts any opinion that the temperature was 400
degrees. At 400 degrees, Corry cogently explained, one
would expect Tomkunas to suffer injury to the back of
his neck and his hands at a minimum. In addition, the
photographs of the fire damage, or lack thereof, [to]
materials in the apartment . . . do not support . . .
DeHaan’s testimony that temperatures reached 400
degrees.’’ The third habeas court further noted that
Corry had ‘‘also criticized the validity of . . . DeHaan’s
opinions regarding temperatures as not taking into
account the material in the room [that] helped to slow
the fire’s burning, such as a blanket and poly foam
cushions on the couch, [which was] thought to be one
of three . . . points of origin [of the fire].’’ Finally, the
third habeas court found that Corry also had convinc-
ingly refuted Kelder’s testimony that (1) the fire was a
high energy fire, and (2) the fire’s peak temperature
reached 1800 degrees at ceiling level.27
In light of these findings, the third habeas court
stated: ‘‘Considerable and extensive testimony by arson
experts/investigators was presented by both the peti-
tioner and the respondent in their efforts to determine
the burn time.’’ This ‘‘testimony amount[ed] to a contest
among experts . . . . [Nevertheless] [t]he court, as the
finder of fact in this proceeding, assigns far more credit
or weight to the testimony of . . . Corry . . . than
[that of] . . . Kelder or . . . DeHaan regarding esti-
mation of the burn time.’’ The third habeas court also
observed that ‘‘[w]hat is clear from all the evidence in
the record, the original trial testimony, crime scene
photographs, reports, and the expert testimony pre-
sented to [the] court on the fire, is that the precise time
the fire was set cannot be determined. At best, a range
is established that includes that time period of [6:15 to
7 p.m.] . . . when . . . Martin cannot account for the
petitioner’s whereabouts, and [this] does not provide
an alibi for him.’’ With respect to this point, the court
further explained that, because Martin was upstairs giv-
ing her son a bath from 6:15 to 7 p.m., she could not have
known whether the petitioner was at home, downstairs,
during that time frame, and, consequently, her testi-
mony, standing alone, did not provide ‘‘the petitioner
with anything that remotely amounts to an alibi’’ for
that forty-five minute period.
The third habeas court concluded that, ‘‘[g]iven all
of the foregoing, the court simply cannot conclude that
the nondisclosure of the Ludlow note, assuming it is
potentially exculpatory and was inadvertently not dis-
closed by the state, supported the petitioner’s ‘alibi’
defense. The inability to precisely determine the start
time of the fire, coupled with . . . Martin’s testimony
that she [could not] account for the petitioner’s where-
abouts from [6:15 to 7] p.m., leads [the] court to con-
clude that the petitioner has failed to [satisfy] both
the third prong of Brady28 and the second Strickland
prong.29 That is, the petitioner has failed to show how
the Ludlow note and the ‘30–40 min [P]oss’ reference,
if disclosed to [the petitioner’s trial] counsel, reasonably
would have led the jury to conclude [that] there was
reasonable doubt in light of all the evidence presented
to the jury.30
‘‘Accordingly . . . the court concludes that the peti-
tioner has failed to show that [his first habeas counsel]
rendered ineffective assistance of counsel . . . . The
court is unable to conclude that [first habeas counsel’s]
failure to have an arson/fire expert testify in the first
habeas [proceeding] would have resulted in anything
different [from the present] habeas [case]: a prototypi-
cal battle of the experts resulting in diverging opinions.
. . . [T]he court finds more persuasive the testimony
presented by the [respondent’s expert, Corry], rather
than either of the petitioner’s two experts, [Kelder] and
. . . DeHaan.’’ (Footnote added.)
The petitioner appealed from the judgment of the
third habeas court to the Appellate Court, claiming,
inter alia, that the third habeas court incorrectly con-
cluded that the petitioner’s evidence regarding the fire’s
burn time was not material and, consequently, that the
petitioner’s first habeas counsel did not render ineffec-
tive assistance in failing to pursue the claim that the
state’s suppression of the Ludlow note deprived the
petitioner of a fair trial. Lapointe v. Commissioner of
Correction, supra, 138 Conn. App. 468. The Appellate
Court agreed with the petitioner. See id., 476–80. After
setting forth the legal principles and standard of review
that govern claims under Strickland and Brady; id.,474–76; see also footnotes 3 and 4 of this opinion; the
Appellate Court stated in relevant part: ‘‘[T]he state’s
suppression of the Ludlow note, and [first habeas coun-
sel’s] failure to pursue that claim, warrants a new trial
for the petitioner. [The court] reach[es] that conclusion
for the following reasons. Culligan and Cosgrove testi-
fied that had the burn time information in the Ludlow
note been disclosed prior to the petitioner’s criminal
trial, their trial strategy would have changed. They
stated that they would have used the thirty to forty
minute estimate to buttress the petitioner’s alibi
defense, particularly because the estimate came from
one of the state’s fire marshals assigned to the investiga-
tion. As Culligan testified, [he and Cosgrove] would
have retained the services of an arson expert. At the
. . . habeas trial, the two experts called by the peti-
tioner testified that the fire could not have been set
any earlier than 7:30 p.m. If that testimony had been
presented at the [petitioner’s] criminal trial, and cred-
ited by the jury, the petitioner’s whereabouts at and
after 7:30 p.m. would have been critical to his defense.
‘‘For that reason, as both trial counsel testified, they
would have called . . . Martin as a witness at the crimi-
nal trial. She consistently had maintained that the peti-
tioner was in their home with her and their son the
entire evening of the victim’s homicide. During her testi-
mony at the suppression hearing, [Martin] stated that
the only time that the petitioner was not in her sight
was between 6:15 p.m. and 7 p.m., when she was bathing
their son. If the jury credited . . . Martin’s testimony,
it could have concluded that the petitioner was at home
watching television with [Martin] and their son when
the fire had been set.
‘‘[In addition], if . . . Martin had testified and the
jury believed her testimony, the jury could have con-
cluded that the petitioner had, at most, a forty-five
minute window of time within which to commit the
crimes. This would mean that between 6:15 p.m. and 7
p.m., on the night of the homicide, the petitioner: (1)
walked the distance between his home and the victim’s
apartment;31 (2) had a cup of coffee with the victim
while they were chatting on the couch; (3) used the
victim’s bathroom, located close to the victim’s bed-
room; (4) emerged from the bathroom, saw the victim
combing her hair and decided to sexually assault her;
(5) undressed himself, then tore the clothes off the
victim; (6) sexually assaulted the victim; (7) retrieved
a knife from the kitchen; (8) stabbed the victim ten
times in the back and once in the abdomen; (9) used
strips of cloth to tie them as a ligature so tightly around
the victim’s neck that the responding firefighters had
difficulty removing the cloth; (10) loosely tied bindings
around the victim’s wrists and stomach area; (11)
removed the victim from the bed and placed her on or
near the couch; (12) washed any blood from his body
and dressed himself; (13) set fires in three separate
locations in the victim’s apartment; and (14) walked
the distance from the victim’s apartment back to his
home. According to . . . Martin’s recorded statements
to Morrissey on July 4, 1989, and her testimony at the
suppression hearing, which the jury did not hear, the
petitioner was sitting in the living room when she came
downstairs from bathing their son, and there were no
signs of exertion or excitement. She noticed nothing out
of the ordinary in his behavior that evening.’’ (Footnotes
altered.) Lapointe v. Commissioner of Correction,
supra, 138 Conn. App. 476–78.
‘‘[T]here is a reasonable probability that the result of
[the petitioner’s] criminal trial would have been differ-
ent had the Ludlow note been disclosed to Culligan and
Cosgrove prior to trial. Nondisclosure prior to trial of
the portion of the Ludlow note describing the possible
burn time affected the overall fairness of the trial and
was so unfair as to undermine [the court’s] confidence
in the jury’s verdict. With the burn time estimate pro-
vided by one of the state’s fire marshals, trial counsel
testified that they would have retained the services of
an arson expert and that . . . Martin would have testi-
fied as to the petitioner’s whereabouts during the criti-
cal times of that evening. That evidence, if believed by
the jury, could have resulted in the jury’s finding that
it was temporally impossible for the petitioner to have
committed the crimes [of] which he was convicted. The
Ludlow note was exculpatory and material in these
circumstances. [First habeas counsel’s] performance
was deficient [in that] he failed to pursue that issue
at the first habeas proceeding, and the petitioner was
prejudiced by his failure to do so. The petitioner has
demonstrated that had there been effective representa-
tion by [first habeas counsel], there is a reasonable
probability that the first habeas court would have found
that the petitioner was entitled to . . . a new trial.’’32
(Footnote omitted.) Id., 478–80. Accordingly, the Appel-
late Court reversed in part the judgment of the third
habeas court and remanded the case with direction to
grant the petition for a writ of habeas as to the petition-
er’s claim alleging ineffective assistance of counsel with
respect to the Brady violation and to order a new crimi-
nal trial.33 Id., 480. Although the Appellate Court did
not expressly say so, it appears, as the parties agree,
that the Appellate Court accorded no deference to the
determination of the third habeas court that there was
no reasonable probability that a jury would credit the
testimony of the petitioner’s experts. Instead, the Appel-
late Court exercised its own judgment with respect to
whether a jury reasonably could credit the testimony
of the petitioner’s experts.
We granted the respondent’s petition for certification
to appeal, limited to the issue of whether the Appellate
Court properly reversed the judgment of the third
habeas court and concluded that the petitioner is enti-
tled to a new trial on the ground that first habeas coun-
sel’s representation of the petitioner during the first
habeas trial was ineffective due to his failure to pursue
a claim that the state had suppressed the Ludlow note.
See Lapointe v. Commissioner of Correction, supra,307 Conn. 941. On appeal, the respondent asserts that
the Appellate Court applied an incorrect standard of
review in evaluating the petitioner’s Brady claim, and,
as a result, it improperly concluded that a new trial is
required. In particular, the respondent contends that
the Appellate Court improperly failed to afford due
deference to the third habeas court’s determination that
the petitioner’s expert burn time testimony would have
had no effect on the outcome of his criminal trial, and
that, if the Appellate Court had accorded such defer-
ence to that determination, it would have concluded,
like the third habeas court, that first habeas counsel’s
failure to pursue a claim predicated on the state’s sup-
pression of the Ludlow note did not constitute ineffec-
tive assistance of counsel under Strickland. The peti-
tioner, on the other hand, maintains that the Appellate
Court correctly determined that the testimony of his
burn time experts reasonably could have been credited
by the original jury, and, if the jury did credit that
testimony, it undoubtedly would have concluded that
the petitioner could not possibly have committed the
crimes with which he was charged. As a result, the
petitioner contends that first habeas counsel’s failure
to raise a Brady claim predicated on the state’s suppres-
sion of the Ludlow note rendered counsel’s representa-
tion of the petitioner constitutionally deficient.
We agree with the petitioner that, notwithstanding
the findings of the third habeas court, there is, at the
very least, a reasonable likelihood that a jury, upon
hearing the testimony of the petitioner’s burn time
experts and Martin in light of the other trial evidence,
would harbor a reasonable doubt as to whether the
petitioner sexually assaulted and murdered the victim,
and then set her apartment on fire. As we explain more
fully hereinafter, because the materiality issue ulti-
mately presents a question of law for this court, and
because we are not bound by the third habeas court’s
appraisal of the scientific underpinnings of the parties’
expert testimony, we exercise plenary review over
those issues. On the basis of that review, it is clear that
the question presented by this appeal must be resolved
in favor of the petitioner: because the state deprived
the petitioner of the opportunity to avail himself of
highly relevant alibi evidence—evidence that, as the
petitioner contends, the original jury readily could have
credited—fundamental fairness requires that the peti-
tioner be afforded the opportunity to have a second jury
consider that exonerating testimony. Our conclusion
takes due account of the fact that the state’s case against
the petitioner was relatively weak, founded as it was
on highly questionable admissions. Accordingly, the
Appellate Court properly concluded that the judgment
of the third habeas court must be reversed in part and
that the petitioner was entitled to a new trial.
II
GOVERNING LEGAL PRINCIPLES
A
Brady and Strickland
‘‘In Brady, the United States Supreme Court held
that the suppression by the prosecution of evidence
favorable to an accused upon request violates due pro-
cess [when] the evidence is material either [as] to guilt
or to punishment, irrespective of the good faith or bad
faith of the prosecution. . . . In Strickler v. Greene,
527 U.S. 263, [281–82] 119 S. Ct. 1936, 144 L. Ed. 2d 286(1999), the United States Supreme Court identified the
three essential components of a Brady claim, all of
which must be established to warrant a new trial: The
evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is
impeaching;34 that evidence must have been suppressed
by the [s]tate, either [wilfully] or inadvertently; and
prejudice must have ensued. . . . Under the last Brady
prong, the prejudice that the defendant suffered as a
result of the impropriety must have been material to
the case . . . .’’ (Footnote added; internal quotation
marks omitted.) State v. Ortiz, 280 Conn. 686, 717, 911
A.2d 1055 (2006). ‘‘[T]he evidence will be deemed mate-
rial only if there would be a reasonable probability of
a different result if the evidence had been disclosed.’’
(Internal quotation marks omitted.) State v. Jordan, 314
Conn. 354, 370, 102 A.3d 1 (2014). This standard is met
if ‘‘the favorable evidence could reasonably be taken
to put the whole case in such a different light as to
undermine confidence in the verdict.’’ (Internal quota-
tion marks omitted.) State v. Ortiz, supra, 717.
Furthermore, with ‘‘respect to Brady’s third prong,
a showing of materiality does not require demonstration
by a preponderance [of the evidence] that disclosure
of the suppressed evidence would have resulted ulti-
mately in the defendant’s acquittal. . . . The question
is not whether the defendant would more likely than
not have received a different verdict with the evidence,
but whether in its absence he received a fair trial, under-
stood as a trial resulting in a verdict worthy of confi-
dence. . . . The United States Supreme Court [has]
emphasized that the [relevant test under United States
v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed.
2d 481 (1985)] is not a sufficiency of the evidence test.
. . . A defendant need not demonstrate that after dis-
counting the inculpatory evidence in light of the undis-
closed evidence, there would not have been enough left
to convict. . . . One does not show a Brady violation
by demonstrating that some of the inculpatory evidence
should have been excluded, but by showing that the
favorable evidence could reasonably be taken to put
the whole case in such a different light as to undermine
confidence in the verdict. . . . Accordingly, the focus
is not whether, based [on] a threshold standard, the
result of the trial would have been different if the evi-
dence had been admitted. We instead concentrate on
the overall fairness of the trial and whether nondisclo-
sure of the evidence was so unfair as to undermine our
confidence in the jury’s verdict.’’ (Internal quotation
marks omitted.) State v. Ortiz, supra, 280 Conn. 717–18.
Put differently, materiality is established if the withheld
evidence is of sufficient import or significance in rela-
tion to the original trial evidence that it reasonably
might give rise to a reasonable doubt about the petition-
er’s guilt. See United States v. Agurs, supra, 427 U.S.
112. Additionally, ‘‘a trial court’s determination as to
materiality under Brady presents a mixed question of
law and fact subject to plenary review, with the underly-
ing historical facts subject to review for clear error.’’35
(Internal quotation marks omitted.) State v. Ortiz,
supra, 720. Finally, in the present case, we conduct the
required ‘‘independent review’’ of the record; id., 721;
mindful of the fact that this court’s ‘‘duty to search for
constitutional error with painstaking care is never more
exacting than it is in a capital case . . . .’’36 (Internal
quotation marks omitted.) Kyles v. Whitley, 514 U.S.
419, 422, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995).
Under Strickland, ‘‘[a] claim of ineffective assistance
of counsel consists of two components: a performance
prong and a prejudice prong. To satisfy the performance
prong . . . the petitioner must demonstrate that his
attorney’s representation was not reasonably compe-
tent or within the range of competence displayed by
lawyers with ordinary training and skill in the criminal
law. . . . To satisfy the prejudice prong, [the peti-
tioner] must demonstrate that there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.’’
(Internal quotation marks omitted.) Janulawicz v.
Commissioner of Correction, 310 Conn. 265, 268 n.1,
77 A.3d 113 (2013). ‘‘A reasonable probability is a proba-
bility sufficient to undermine confidence in the out-
come.’’ Strickland v. Washington, supra, 466 U.S. 694.
As in the case of an alleged Brady violation, ‘‘[i]n order
to demonstrate such a fundamental unfairness or mis-
carriage of justice, the petitioner should be required to
show that he is burdened by an unreliable conviction.’’
(Internal quotation marks omitted.) Michael T. v. Com-
missioner of Correction, 307 Conn. 84, 102, 52 A.3d
655 (2012). Finally, the respective roles of the habeas
court and the reviewing court are also the same under
Strickland as they are under Brady. As a general matter,
‘‘the underlying historical facts found by the habeas
court may not be disturbed unless they were clearly
erroneous . . . . [W]hether those facts constituted a
violation of the petitioner’s rights under the sixth
amendment [however] is a mixed determination of law
and fact that requires the application of legal principles
to the historical facts of [the] case. . . . As such, that
question requires plenary review by this court unfet-
tered by the clearly erroneous standard.’’ (Internal quo-
tation marks omitted.) Gonzalez v. Commissioner of
Correction, 308 Conn. 463, 469–70, 68 A.3d 624, cert.
denied sub nom. Dzurenda v. Gonzalez, U.S. ,
134 S. Ct. 639, 187 L. Ed. 2d 445 (2013).
In the present case, the petitioner’s claim of a consti-
tutional violation under Strickland and Brady impli-
cates yet another constitutional protection, namely, the
right to present a defense. ‘‘[T]he federal constitution
require[s] that criminal defendants be afforded a mean-
ingful opportunity to present a complete defense.’’
(Internal quotation marks omitted.) State v. Santana,
313 Conn. 461, 470, 97 A.3d 963 (2014). This right affords
a defendant the opportunity to present his or her version
of the facts, along with that of the prosecution, ‘‘so that
[the jury] may decide where the truth lies’’; (internal
quotation marks omitted) id.; and includes the right to
present an alibi defense. E.g., State v. Bryant, 202 Conn.
676, 704, 523 A.2d 451 (1987). Finally, it bears emphasis
that, if the petitioner had been able to raise an alibi
defense at his criminal trial based on the testimony of
DeHaan, Kelder and Martin, the state would have been
required to disprove that defense beyond a reasonable
doubt. See, e.g., State v. Milardo, 224 Conn. 397, 407,
618 A.2d 1347 (1993).
B
The Principles of Brady and Strickland in Relation
to the Facts of the Present Case
For purposes of the present habeas petition, the peti-
tioner was required to establish, under Strickland, that
first habeas counsel’s failure to pursue the Brady claim
concerning the state’s suppression of the Ludlow note
fell below the performance standard expected of com-
petent habeas counsel and that the petitioner was preju-
diced thereby. To make the necessary showing of pre-
judice, the burden was on the petitioner to demonstrate
that the Ludlow note had been withheld by the state
and was both exculpatory and material. In view of the
fact that the third habeas court treated the note as
exculpatory and assumed that it had been suppressed
by the state,37 the petitioner was required to establish
only that the note was material, a standard that is met
upon a showing that, if the note had been disclosed
before the petitioner’s criminal trial, there is a probabil-
ity of a different outcome sufficient to undermine confi-
dence in the outcome of that trial. Because the test for
materiality under Brady and the test for prejudice under
Strickland are the same—with respect to both, the peti-
tioner must demonstrate that the alleged constitutional
impropriety gives rise to a loss of confidence in the
original outcome—the petitioner is entitled to a new
trial if he can demonstrate that first habeas counsel’s
failure to pursue a Brady claim predicated on the state’s
suppression of the Ludlow note was sufficiently harmful
to satisfy that standard. Because it has been determined
that the state’s failure to disclose the Ludlow note
deprived the petitioner of information that would have
led him to obtain expert burn time testimony demon-
strating that the fire was set at a time when, according
to Martin, the petitioner was home with her, the success
of the petitioner’s Brady claim depends on whether
the original jury reasonably could have credited that
expert testimony.38
As we previously noted, the third habeas court found
that the testimony of both parties’ burn time experts
was thorough and extensive. Indeed, the third habeas
court characterized that testimony as ‘‘a prototypical
battle of . . . experts’’ who are highly qualified in their
field. Nevertheless, the third habeas court concluded
that the testimony of the petitioner’s experts, when
viewed in the light of Corry’s testimony, was not suffi-
ciently credible to give rise to a reasonable probability
of a different result at the original trial, that is, it was
not persuasive enough such that the jury reasonably
might have credited it.39 The Appellate Court disagreed,
however, concluding that the petitioner’s expert testi-
mony was of sufficient import and credibility that the
petitioner is entitled to a new trial at which the jury
will evaluate that testimony.
We therefore must decide whether the Appellate
Court properly determined that the third habeas court
was incorrect in concluding that the jury reasonably
could not have credited the testimony of the petitioner’s
burn time experts. As a reviewing court, we ordinarily
accord deference to credibility determinations that are
‘‘made on the basis of [the] firsthand observation of [a
witness’] conduct, demeanor and attitude.’’40 (Internal
quotation marks omitted.) State v. Kendrick, 314 Conn.
212, 223, 100 A.3d 821 (2014). In the present case, how-
ever, the third habeas court’s assessment of the testi-
mony of DeHaan and Kelder was not predicated on
their demeanor or conduct on the witness stand, nor
was it related to anything else that would reflect
adversely on their credibility, such as untruthfulness,
bias, poor memory or substandard powers of observa-
tion. That assessment also was not dependent on any
underlying factual findings requiring the trial court’s
firsthand observation and determination of the credibil-
ity or reliability of other witnesses. Rather, the third
habeas court rejected the opinions of DeHaan and
Kelder solely because, in its view, those opinions lacked
an adequate foundation, first, because they were prem-
ised on facts that were contrary to the record in the
case, as reported by Corry, and, second, because the
court did not credit the scientific underpinnings of those
opinions. In such circumstances, when the habeas
court’s assessment of the expert testimony has nothing
to do with the personal credibility of the expert witness
but instead is based entirely on the court’s evaluation of
the foundational soundness of the witness’ professional
opinion, this court is as well situated as the habeas
court to assess that testimony for Brady purposes.
The Indiana Court of Appeals recently addressed this
precise issue in a case that is factually and procedurally
indistinguishable in any material respect from this one.
In Bunch v. State, 964 N.E.2d 274 (Ind. App.), trans.
denied, 971 N.E.2d 1215 (Ind. 2012), the defendant, Kris-
tine Bunch, who had been convicted of murder in the
arson-related death of her son, sought a new trial based
on newly discovered evidence concerning the place of
origin of the fire that she was found to have set. Id.,279–80. As in the present case, one of the issues in
Bunch was the materiality of expert testimony concern-
ing the fire; see id., 290; and the Court of Appeals was
called on to review the trial court’s finding that the
testimony of Bunch’s expert was not sufficiently worthy
of credit to warrant a new trial. See id., 283–85, 293. In
reversing the judgment of the trial court on that issue;
id., 297, 304; the Court of Appeals reviewed that expert
testimony without affording any deference to the trial
court’s finding that the testimony lacked persuasive
force and, therefore, did not support Bunch’s new trial
claim. See id., 292–93. Because we agree fully with the
well reasoned analysis of the Court of Appeals, we
repeat it in relevant part here: ‘‘In general, [w]hether a
[witness’] testimony at a [postconviction] hearing is
worthy of credit is a factual determination to be made
by the trial judge who has the opportunity to see and
hear the witness testify. . . . It is not within the prov-
ince of [an] appellate court to replace a trial judge’s
assessment of witness credibility with its own. . . .
Thus, if the [trial] court expressly finds that the testi-
mony of a fact witness is or is not worthy of credit, we
must accept that determination. . . .
‘‘However . . . the [trial] court did not find [that the]
testimony [of Bunch’s fire expert] was not worthy of
credit because it doubted her credibility or veracity
based [on] a firsthand evaluation of her demeanor; the
[trial] court found her testimony not worthy of credit
because it was in conflict with trial evidence . . . . In
other words, the [trial] court did not find [the expert]
unworthy of credit on the basis of her demeanor; it
found her expert opinion unworthy of credit on the
basis of its foundation. Under these circumstances, we
do not think it [is] necessary or appropriate to impute
a personal credibility determination to which we must
defer to the [trial] court. To do so would virtually evis-
cerate appellate review of [postconviction] denials
because we would have to speculate in every instance
that the [trial] court could have concluded [that] the
witness was not credible based on his or her demeanor.
‘‘Thus, although we would defer to the [trial] court’s
assessment of fact witnesses—for instance, a trial wit-
ness now recanting trial testimony or a new witness
offering never-before-heard exculpatory testimony—
we will not defer in this case to the [trial] court’s assess-
ment of an expert’s scientific evidence. We have the
ability to assess [the expert’s] testimony ourselves
because her credentials and the basis for her opinion
are part of the record. The [trial] court found [that the
expert’s] testimony was not reliable because she did
not establish the scientific principles for her conclusion
and because [her] conclusions contradicted [the] undis-
puted evidence and eyewitness testimony from the trial.
In making such a determination, the [trial] court did
not rely on her demeanor . . . but rather on the stated
bases for her opinion and review of the trial record.
We have the same information before us, and therefore
are able to independently assess whether [the expert’s]
testimony is worthy of credit without invading the prov-
ince of the [trial] court.’’ (Citations omitted; emphasis
altered; internal quotation marks omitted.) Id.; see also
State v. Behn, 375 N.J. Super. 409, 431–33, 868 A.2d
329 (App. Div.), cert. denied, 183 N.J. 591, 874 A.2d
1108 (2005).41
This case presents the same exceptional factual and
procedural scenario as Bunch presents. Therefore, we,
like the Appellate Court, see no reason to defer to the
third habeas court’s predictive or probabilistic judg-
ment as to whether the original jury reasonably might
have credited the testimony of the petitioner’s experts.42
This is particularly true because, as we explain in part
III A of this opinion, the record does not support any
of the reasons that the third habeas court provided in
substantiation of its conclusion that the jury reasonably
could not have credited the testimony of the petitioner’s
experts. In fact, our review of the record reveals nothing
to support the third habeas court’s conclusion. On the
contrary, there is strong reason to believe that the jury
might well have found the testimony of the petitioner’s
experts persuasive, especially in light of their unques-
tioned qualifications and experience.43
In light of this determination, we finally must decide
whether the testimony of the petitioner’s experts never-
theless is insufficient, when considered together with
the original trial evidence, to call into question the out-
come of the petitioner’s criminal trial. We conclude that
there is a very high probability that that testimony, if
credited, along with Martin’s testimony, would give rise
to a reasonable doubt as to whether the petitioner com-
mitted the crimes of which he was convicted. Having
demonstrated, therefore, that there is a real and sub-
stantial probability that the testimony of DeHaan,
Kelder and Martin will result in the petitioner’s acquit-
tal, the petitioner is entitled to a new criminal trial at
which he will have the benefit of that highly exculpa-
tory evidence.
III
THE ISSUES
A
Whether a Jury Reasonably Could Credit
the Testimony of DeHaan and Kelder
We first address the respondent’s claim that the
Appellate Court improperly rejected the third habeas
court’s conclusion that DeHaan’s and Kelder’s testi-
mony is not sufficiently credible to give rise to a reason-
able doubt about the petitioner’s guilt. We disagree with
the respondent’s contention because the record belies
the third habeas court’s determination that, in all proba-
bility, the original jury would have reached the same
result even if it had heard that testimony.44
We begin with the credentials of the petitioner’s
experts. As the third habeas court observed, both
DeHaan and Kelder are highly experienced fire investi-
gators, and they have worked in that field for a com-
bined total of more than sixty years. DeHaan’s resume
is particularly impressive. In addition to his years of
service as a fire investigator for the Federal Bureau
of Alcohol, Tobacco and Firearms, and the California
Department of Justice, he has authored or coauthored
close to seventy-five scholarly articles or professional
papers and a college level treatise entitled, ‘‘Kirk’s Fire
Investigation,’’ which is presently in its seventh edition.
DeHaan’s treatise is utilized not only by students but
also by investigators in the field. In fact, the record
reflects that Corry himself relied on that treatise in
preparing his report on the fire at issue, as counsel
for the respondent did in connection with his cross-
examination of Kelder. The record also reveals that
DeHaan has taught fire investigation for approximately
thirty years, and, at the time of the third habeas trial,
in the graduate forensic sciences program at the Univer-
sity of California, Davis. Because these factors alone
support the conclusion that a jury reasonably could
credit DeHaan’s and Kelder’s testimony, we turn to the
third habeas court’s reasons for reaching the oppo-
site conclusion.
As we noted previously, the third habeas court, in
concluding that Corry was so much more persuasive
than DeHaan and Kelder that no jury reasonably could
credit DeHaan’s and Kelder’s testimony, relied on three
threshold or subordinate findings: (1) DeHaan and
Kelder mischaracterized the fire’s energy level; (2)
DeHaan and Kelder overestimated the fire’s ‘‘peak’’ tem-
perature; and (3) DeHaan overestimated the tempera-
ture of the fire when Tomkunas entered the victim’s
apartment. With respect to the first two findings, the
third habeas court stated: ‘‘In contrast to . . . DeHaan
and Kelder, Corry opined credibly that ‘this was not a
high energy fire.’ He disputed DeHaan’s and Kelder’s
estimate[s] of peak temperature. . . . Corry testified
credibly that . . . DeHaan overstated the amount of
heat generated by [the] fire. . . . In addition, the photo-
graphs of the fire damage, or lack thereof, [to] materials
in the apartment . . . do not support . . . DeHaan’s
testimony that temperatures reached 400 degrees. . . .
When compared with Corry’s reasonable and measured
analysis, Kelder’s estimate of temperature at 1800
degrees appears wildly exaggerated.’’ With respect to
the third finding, the third habeas court stated: ‘‘Corry
noted that Tomkunas first responded to the call and
found [that] the door to the apartment was ‘hot,’ but
he did not burn himself. He sustained no injury to his
hands, his exposed ears or any other body part. These
facts, Corry pointed out, contradict . . . DeHaan’s esti-
mate that the temperature upon entry was 400 degrees.
. . . Corry noted that Tomkunas had dropped to his
knees upon entering the apartment. Corry opined [that]
the temperature at that time was more likely 150 to
190 degrees. The fact that Tomkunas was not burned
contradicts any opinion that the temperature was 400
degrees. At 400 degrees, Corry cogently explained, one
would expect Tomkunas to [have] suffer[ed] injur[ies]
to the back of his neck and his hands at a minimum.’’
A review of the record reveals that the third habeas
court’s critique of the testimony of DeHaan and Kelder
is comprised of factually unfounded assertions. First,
contrary to the court’s finding, DeHaan and Kelder
never testified that the fire was a high energy fire. To the
contrary, DeHaan emphasized throughout his testimony
that the limited damage to the apartment was evidence
that the fire was not a high energy fire. He described
it as a ‘‘very limited scale fire,’’ no different from ‘‘an
average fireplace fire.’’45 When Kelder was asked
whether he would characterize the fire as high or low
energy, he similarly responded, ‘‘low energy,’’ which
he also believed was evidenced by the fact that the
apartment was not seriously damaged. Thus, although
the third habeas court found that Corry had persua-
sively rebutted DeHaan’s and Kelder’s testimony that
the fire was a high energy fire, the record is clear that
DeHaan and Kelder never provided the testimony that
Corry attributed to them. Indeed, when questioned
about the fire’s energy level, DeHaan and Kelder both
expressly characterized it as a low energy fire.
With respect to the third habeas court’s statement
that Corry had convincingly ‘‘disputed DeHaan’s and
Kelder’s estimate[s] of peak temperature,’’ the peti-
tioner correctly observes that, as between Corry and
DeHaan, it was Corry who provided the higher estimate
of the fire’s peak temperature. On cross-examination,
the petitioner’s counsel asked Corry to comment on
several photographs that were taken inside the victim’s
apartment after the fire, one of which depicts a stack
of charred newspapers. Corry testified that all of the
papers in the photograph reveal ‘‘evidence of edge burn-
ing’’ and ‘‘a heating to the . . . preignition point.’’ When
asked whether the temperature must have been 600
degrees for the papers to begin to char, as depicted in
the photographs, Corry agreed and stated ‘‘[o]r more.’’
In contrast, DeHaan opined that temperatures inside
the apartment never exceeded 400 to 450 degrees. Thus,
the court’s reliance on Corry’s testimony to reject
DeHaan’s opinion that temperatures reached a peak of
450 degrees is misplaced because Corry himself testi-
fied that temperatures reached at least 600 degrees.
Indeed, on cross-examination, Corry agreed that the
temperature inside the victim’s apartment could have
been as high as 400 degrees even when firefighters
entered the building. His only point, he explained, was
that it could not have been 400 degrees at floor level
because none of the firefighters, all of whom entered
on their hands and knees within seconds of one another,
was burned.
Similarly unfounded is the third habeas court’s asser-
tion that, ‘‘[w]hen compared with Corry’s reasonable
and measured analysis, Kelder’s estimate of tempera-
ture at 1800 degrees appears wildly exaggerated.’’ On
cross-examination, counsel for the respondent asked
Kelder his opinion as to ‘‘the maximum heat . . . that
was reached in the apartment . . . .’’ Kelder
responded: ‘‘The maximum, I would say, would be . . .
about 1800 degrees at ceiling level.’’ (Emphasis added.)
When asked what he had based this estimate on, Kelder
responded, ‘‘scientific proof. . . . [A]ny of the . . .
fire books that I’ve read and the schools that I [have]
attended [say] it’s 1800 to 2000 degrees at ceiling level
[for] any fire. . . . That’s the normal ceiling [tempera-
ture].’’ Kelder then explained that temperatures are
always much hotter at ceiling level. Corry never dis-
puted this testimony. To the contrary, although he was
never questioned about ceiling level temperatures,
Corry stated that they necessarily would have been
‘‘hotter because the temperature rises as you go up, for
sure.’’ He also stated that ‘‘heat stratifies. The highest
temperatures are always found at the ceiling or close
to the ceiling, and, as you go down, they get less, which
is why little children are taught in schools to crawl
in fires, because you’re generally underneath a smoke
layer, and there’s more oxygen there and you can sur-
vive and actually escape a fire in many cases by crawl-
ing, [whereas] if you stood up, you might be killed or
seriously burned.’’ Finally, as we previously indicated,
Corry testified that temperatures would have to have
reached at least 600 degrees to bring the newspapers
to their preignition point, as depicted in some of the
crime scene photographs. In view of this testimony,
there simply is no factual basis for the third habeas
court’s finding that Kelder’s estimate of ceiling tempera-
tures was ‘‘wildly exaggerated’’ and, therefore, that his
burn time estimate was unreliable.
In light of the foregoing, it is readily apparent that
the third habeas court’s first two assertions—that Corry
disputed DeHaan’s and Kelder’s testimony regarding
peak temperature, and that, ‘‘[i]n contrast to . . .
DeHaan and Kelder, Corry opined credibly that ‘this
was not a high energy fire’ ’’—are not supported by the
record. In fact, we can discern no disagreement among
the experts with respect to the fire’s peak temperature
or energy level. It is not surprising, therefore, that the
respondent makes no attempt to defend the third
habeas court’s assertion that there was a material differ-
ence in the testimony of the parties’ experts with
respect to the energy level of the fire and its peak tem-
perature.
The third reason why the third habeas court found
Corry’s burn time estimate to be more persuasive than
DeHaan’s estimate was DeHaan’s purported testimony
that the floor level temperature inside the victim’s apart-
ment was 400 degrees when Tomkunas entered the
apartment. Relying on Corry’s testimony, the third
habeas court reasoned that the temperature could not
have been 400 degrees because, if the temperature had
been that high, Tomkunas would have been injured,
and he was not. Relying on Corry’s characterization of
DeHaan’s testimony about the temperature at the time
of entry, the respondent contends that, because
DeHaan’s burn time estimate rested in large measure on
his assessment of entry level temperatures, ‘‘Tomkunas’
lack of injury . . . knocked [the] principal underpin-
nings of DeHaan’s opinion out from under it.’’ As the
petitioner notes, however, DeHaan never stated that
the floor level temperature inside the apartment was
400 degrees when Tomkunas entered. He testified,
rather, that the temperature inside the hot gas layer
was likely between 300 or 400 degrees when Tomkunas
entered the apartment. DeHaan explained that this esti-
mate was based, in part, on Tomkunas’ testimony at
the petitioner’s criminal trial that, when he arrived at
the victim’s apartment, the outside of the front door
was hot to the touch, and ‘‘the temperatures and . . .
hot gases he encountered at near floor level were unten-
able, and he couldn’t go in, even though he suspected
there was a victim inside.’’ (Emphasis added.) When
asked whether he was able to determine what the tem-
perature was at that time, DeHaan responded: ‘‘Only
very approximately, [on the basis of Tomkunas’ testi-
mony] that, when he opened the door, there was smoke
down very low, and he got on his hands and knees and
he had no protective equipment on, and . . . when he
tried to crawl in, it was unpleasantly hot to his skin
. . . as well as smoky, and, at that point, he backed
out knowing he couldn’t go any further . . . . [S]hort
exposure like that, that’s probably going to be tempera-
tures in the range of say [300] or 400 degrees . . . .
[T]hat’s enough to make most people not . . . go in
any further [with] . . . bare skin. . . . [That level of
temperature would cause second degree burns upon]
prolonged contact . . . .’’
Later, during cross-examination, DeHaan clarified
that his estimate of entry level temperatures referred
to the temperature inside ‘‘the hot gas layer’’ of the
fire. DeHaan explained that, in his experience, if the
temperature had been much lower than 300 to 400
degrees, Tomkunas would not have been deterred from
entering the victim’s apartment, and, if the temperature
had been much higher, there would have been more
damage to the apartment. DeHaan also testified that
studies have shown that the average person will not
attempt to enter a room if the temperature is 250
degrees or higher, unless he has no option but to do so.
Finally, DeHaan opined that, although an experienced
firefighter might be willing to brave slightly higher tem-
peratures, the fact that Tomkunas was hindered in his
efforts to enter the victim’s apartment suggests that the
temperature in the hot gas layer of the fire was in the
range of 300 to 400 degrees.
Notably, at the petitioner’s criminal trial, Tomkunas
testified that, when he first arrived on the scene, he
tried to enter the victim’s apartment on his own but
was forced back by the substantial heat and ‘‘[h]eavy
smoke condition.’’ Specifically, Tomkunas stated that,
after he kicked in the front door, there ‘‘was a lot of
heat, so [he] dropped to [his] knees . . . to stay below
[the] smoke and heat.’’ Tomkunas testified that he
crawled several feet into the room but immediately
had to retreat because ‘‘[i]t was too hot and smoky.’’
According to Tomkunas, after his initial, unsuccessful
attempt to enter the apartment, he told the firefighters
who arrived after him that they had to ‘‘vent’’ the build-
ing ‘‘to remove the heat and smoke and hot gases.’’ One
of those firefighters, Boland, ran to the back of the
building and opened a set of sliding glass doors.
According to Boland, ‘‘once [he] opened the [sliding
glass] door[s] . . . [the apartment] cross vented,
because the front door was open and the [sliding glass]
door[s] [were] open, so it started to clear.’’ Both Tomku-
nas and Boland testified that, after the apartment was
vented, they were able to enter and locate the victim.
Consistent with Tomkunas’ and Boland’s trial testi-
mony, DeHaan also testified at the petitioner’s habeas
trial that, once ‘‘conditions [inside the apartment] were
changed by the responding firefighters . . . Tomku-
nas’ opening the front door and [Boland’s] . . . open-
ing the slid[ing] [glass doors] at the rear, that allowed
. . . some of the accumulated smoke to leave and
allowed entry for the firefighters.’’46 (Emphasis added.)
Although it is perfectly clear that both DeHaan and
Kelder were aware that firefighters vented the victim’s
apartment prior to entry, and that Tomkunas had tried
unsuccessfully to gain entry into the apartment by him-
self prior to the arrival of the other firefighters, Corry
either was unaware of these facts or refused to accept
them. Corry maintained, throughout his testimony, that
there was only one entry into the apartment by firefight-
ers, which was not preceded by a venting. On direct
examination, Corry was asked on several occasions
whether he agreed with DeHaan’s estimate of entry
level temperatures. The first time he was asked this
question, he responded: ‘‘[T]he fact that, [on] the night
of the fire, all . . . of the firefighters: [Tomkunas], Wil-
liam Boland . . . William Parker and Douglas Boland,
who were [all] in [the apartment] at basically the same
time from different angles—none of them described
high temperature on entry. They described heavy
smoke. None of them talked about temperature. And,
more importantly, none of them [was] injured in any
way. And they would have been if the temperature had
been anywhere close [to] 400 degrees, as . . . DeHaan
said. . . . They would have been burned.’’ Counsel for
the respondent then asked Corry whether he had
‘‘reach[ed] a conclusion regarding the temperatures that
Tomkunas and the other firefighters encountered when
they entered the apartment . . . .’’ Corry responded:
‘‘Safe to say, it was elevated 120, 130 [degrees], some-
thing like that.’’ Thereafter, the following exchange
between counsel for the respondent and Corry ensued:
‘‘Q. Do you recall reading . . . DeHaan’s report?
‘‘A. Yes.
‘‘Q. And you heard his testimony?
‘‘A. I did.
‘‘Q. Do you recall what temperature he opined . . .
Tomkunas encountered when he entered the apart-
ment?
‘‘A. 400 degrees.
‘‘Q. Based on your research, is that possible?
‘‘A. It is not possible.
‘‘Q. Would an individual who was not wearing protec-
tive clothing and entered [an apartment] with tempera-
tures of 400 degrees be injured?
‘‘A. Yes. Couldn’t help it.
‘‘Q. And would they be able to tolerate remaining in
that environment?
‘‘A. No. Well . . . it all depends [on] how much they
wanted to be burned, but they would be burned, and
they’d be in substantial pain. And these were men who
were, number one, on their hands and knees, which
would expose the nape of their neck [and] the back of
their ears, which are the most sensitive parts of our
bodies, to temperature, and none of them described
any burns or even mentioned heat in their original state-
ments taken [on] the night of the fire.’’
Thus, it is evident that Corry attributed to DeHaan
testimony that he never gave, namely, that the floor
level temperature inside the victim’s apartment when
the firefighters entered was 400 degrees. It also is evi-
dent that the third habeas court accepted Corry’s char-
acterization of DeHaan’s testimony without verifying
whether DeHaan actually had opined in the manner
attributed to him by Corry. In fact, DeHaan never was
questioned about the temperature inside the apartment
after it was vented and all of the firefighters were able
to enter. Nor did he express an opinion with respect
to the floor level temperature when Tomkunas first
entered the apartment on his own and was turned back.
DeHaan simply stated that the temperature inside the
hot gas layer was likely in the range of 300 to 400
degrees when Tomkunas made his first attempt to enter,
before the arrival of the other firefighters.47 DeHaan
also opined that the hot gas layer did not radiate much
heat downward toward the floor because there was
no damage to the apartment’s synthetic carpet, which
would have melted even at much lower temperatures.48
Corry’s testimony regarding the effects of heat on
human skin, in particular, his statements that the ‘‘ther-
mal tolerance data for unprotected skin of humans at
rest would suggest a limit of about 248 degrees’’ and
that the ‘‘upper level limit of survivability in terms of
breathing [is] 300 degrees,’’ supports rather than contra-
dicts DeHaan’s testimony that the temperature inside
the apartment was approximately 300 to 400 degrees
when Tomkunas arrived. If the temperature had been
much lower, an experienced firefighter like Tomkunas
would not have been deterred from entering. As we
have indicated, DeHaan testified that Tomkunas would
have sustained second degree burns upon prolonged
exposure to such temperatures. As DeHaan also testi-
fied, however, this explained why Tomkunas was
unable to proceed farther into the apartment when he
first arrived, even though he knew that there might be
someone inside. As DeHaan stated, ‘‘it was hot enough
to dissuade [Tomkunas from] entering . . . the room.’’
Moreover, it is difficult to fathom Corry’s response
when, on cross-examination, the petitioner’s counsel
pointed out to him that Tomkunas had testified at the
petitioner’s criminal trial that the heat and smoke pre-
vented him from entering the apartment when, unac-
companied by other firefighters, he first attempted to
do so: Corry’s response was simply to refuse to accept
Tomkunas’ testimony. Specifically, when the petition-
er’s counsel asked Corry why Tomkunas’ testimony that
the smoke and heat forced him out of the building was
inconsistent with DeHaan’s testimony that the tempera-
ture was likely 300 to 400 degrees in the hot gas layer
at that stage of the fire, Corry responded: ‘‘That’s what
[Tomkunas] said at the trial, not what he said in his
initial statement.’’ In support of this response, Corry
explained that all of the firefighters gave statements to
the police on the night of the fire, and, although those
statements are contained in a police report that never
was entered into evidence, Corry read them in preparing
to testify. According to Corry, the report does not men-
tion that any of the firefighters either were injured or
forced out of the apartment by the heat. Corry stated
that, as far as he was concerned, the police report was
a more reliable gauge of the conditions that Tomkunas
had encountered on the night in question, more so than
‘‘what [Tomkunas] said under oath in [a] capital [felony]
trial,’’ because, ‘‘in general, witnesses closer to the time
of the incident will give a better recollection.’’
Without the benefit of the report to which Corry was
referring, we can only surmise its contents. It is unlikely,
however, that the investigating officer who prepared
the report questioned Tomkunas and his fellow fire-
fighters in minute detail about their entry into the apart-
ment. But even if we assume that the officer had thought
to ask the firefighters about entry level temperatures,
no doubt none of them reported extremely high temper-
atures inside the apartment because, as both Tomkunas
and Douglas Boland testified, they vented the apartment
before entering together as a group to extinguish the
fire and to search for the victim. The fact that Corry
felt free to disregard Tomkunas’ sworn testimony on
this issue, on the basis of what he himself conceded
was nothing more than ‘‘a report written by a police
officer [on the night of the fire] as to what somebody
told him’’—or did not tell him, as the case may be—is
perplexing, to say the least. In any event, insofar as the
third habeas court’s determination that a jury reason-
ably could not credit the expert opinions of DeHaan
and Kelder was predicated on Corry’s mischaracteriza-
tion of their testimony regarding the energy level and
peak temperature of the fire, and entry level tempera-
tures, that determination lacks support in the record.
It bears noting that the third habeas court also found
that DeHaan’s and Kelder’s burn time estimates were
‘‘totally contradicted by the historical and physical evi-
dence marshaled by Corry.’’ Because the respondent
elected not to place Corry’s written report in evidence,
the only basis for this finding was Corry’s trial testi-
mony.49 When asked to explain why DeHaan’s burn time
estimate was unreliable, however, Corry could point
only to DeHaan’s testimony concerning the 400 degree
temperature that the firefighters confronted upon
entry—testimony that, as we have explained, DeHaan
never gave. Corry explained that, if DeHaan was wrong
that the floor level temperature was 400 degrees, ‘‘then
he’s wrong . . . his assumptions are . . . incorrect on
the longevity of the fire . . . .’’ Corry also stated that
it was ‘‘clear that the fire occurred at an earlier time
than what [DeHaan was] saying [because the fire]
dropp[ed] in temperature enough . . . so that Tomku-
nas and the other firefighters were not injured.’’
Because Corry’s assessment of DeHaan’s opinion con-
cerning the burn time of the fire was predicated on a
misconception of DeHaan’s testimony about the entry
level temperature, Corry’s criticism of DeHaan’s burn
time estimate is similarly baseless.
Significantly, Corry’s description of the fire and the
variables that affected it was otherwise identical to
DeHaan’s and Kelder’s analysis of the fire. Indeed, on
cross-examination, Corry even conceded, consistent
with DeHaan’s testimony, that the temperature ‘‘might
very well have been 400 degrees somewhere in that
room’’ when Tomkunas entered the apartment. His
point, he explained, was simply that it could not have
been 400 degrees at floor level because none of the
firefighters was burned when the firefighters entered
and made their way into the interior of the apartment.
Like DeHaan and Kelder, Corry testified that the fire
burned out quickly due to the apartment’s heavy insula-
tion and lack of ventilation. Corry likened the apartment
to a ‘‘thermos’’ and stated that the fire was ‘‘substantial’’
but burned only ‘‘for a brief period of time’’ due to
‘‘decreasing levels of oxygen . . . .’’ On the basis of
the photographs, Corry also opined that there might
have been a blanket or some other object on the couch
that prevented the fire from exhausting its main fuel
source, which, according to Corry, was the couch cush-
ions, and that that the blanket or object prevented the
fire from becoming much larger. Apart from expressing
the view that the firefighters were not injured when
they entered the apartment, however, Corry offered no
scientific reason for his conclusion that the fire could
have been set considerably earlier than DeHaan and
Kelder hypothesized.50 Rather, when asked whether he
had reached a conclusion regarding the earliest time
that the fire could have been set, Corry merely cited
witness accounts of the victim’s whereabouts on the
day of the murder.51
Above and beyond our determination that the third
habeas court’s stated reasons for discrediting the burn
time estimates of DeHaan and Kelder are baseless, our
examination of the entire record reveals no other appar-
ent reason why a jury would be apt to discredit their
testimony. As we have indicated, their credentials cer-
tainly provide no such reason. Furthermore, although
there is nothing in the record that would lead to the
conclusion that a jury necessarily would credit Corry’s
burn time estimate over those of DeHaan and Kelder,
there are several reasons why a jury might well be
inclined to discredit that estimate. First, as we pre-
viously discussed, Corry’s opinion is based on a police
report that purportedly contains certain statements that
firefighters gave to the police on the night of the fire but
that never was introduced into evidence. In particular,
Corry based his conclusions on inferences drawn from
what Tomkunas did not say in those statements and
elected to ignore Tomkunas’ sworn trial testimony that
directly contradicted the strained inferences Corry
gleaned from the report not in evidence. Second,
although counsel for the respondent opted not to intro-
duce Corry’s written report into evidence, the petition-
er’s counsel read extensively from it during his cross-
examination of Corry. At the time, the petitioner’s coun-
sel accused Corry of having altered his conclusions
about the fire after listening to DeHaan’s testimony in
an effort to create an opportunity for the respondent’s
counsel to argue that the fire could have been started
earlier than DeHaan had determined. Although Corry
denied the accusation, insisting that his testimony was
wholly consistent with the findings in his report, he
admitted that, after listening to DeHaan’s testimony, he
felt the need to reexamine the available evidence for
the purpose of discrediting DeHaan’s findings. He also
acknowledged that of the more than ninety-five criminal
cases he had worked on, he never had testified on behalf
of a criminal defendant and would be ‘‘hesitant’’ ever
to do so. Although there is nothing inherently untrust-
worthy about Corry’s preference for working for the
prosecution, certain portions of his testimony reason-
ably might be viewed as tending to support the petition-
er’s counsel’s portrayal of him as someone more con-
cerned with assisting the respondent than with seeking
to establish the truth.
For example, on direct examination, Corry was asked
a series of questions designed to elicit criticism of
DeHaan’s and Kelder’s findings. With respect to Kelder,
the questions focused on the information that he had
relied on in formulating his burn time estimate, in partic-
ular, the fact that he had assumed, for purposes of his
analysis, that the cushions on the victim’s couch were
made of latex foam. DeHaan had concluded that the
cushions were made of polyurethane foam, a different
material, and Corry had agreed with that conclusion at
trial. In an effort to discredit Kelder’s burn time esti-
mate, counsel for the respondent asked Corry: ‘‘Would
you be able to properly analyze this fire if you didn’t
know the difference between latex foam rubber and
polyurethane foam?’’ Corry responded, ‘‘[n]o.’’ The next
day, however, on cross-examination, it was revealed
that Corry also had assumed that the cushions were
made of latex foam for purposes of his analysis. Follow-
ing that revelation, Corry provided a very different
answer to the question, posed by the petitioner’s coun-
sel, of whether one could properly analyze the fire if
he did not know that the couch cushions were made
of polyurethane foam:
‘‘Q. But, in your report, you have that . . . the mate-
rial was latex rubber . . . . Correct?
‘‘A. Right.
‘‘Q. Which is not what you’re saying now?
‘‘A. Well, there’s a reason for that. This couch closely
resembles couches that I’ve seen manufactured in the
1970s . . . that did contain foam rubber. That was the
principal foam material up [until] the time that polyure-
thane began to replace foam rubber, but it’s really a
matter of six of one, half dozen of another, since both
of them perform in a similar manner in fires. . . .
[Foam] rubber and foam plastics have similar heat
release rates, fire propagation rates, ignition tempera-
tures, and so forth.’’ These contradictory answers by
Corry hardly instill confidence in his testimony.
Corry’s testimony is replete with similar inconsisten-
cies. Sometimes, he contradicted himself for no appar-
ent reason, such as when he denied ever calling the
fire a low energy fire. As we previously noted, at trial,
the respondent’s counsel focused on the fire’s energy
level and how it may have affected the fire’s develop-
ment, so much so that the third habeas court, in its
memorandum of decision, included a finding that,’’[i]n
contrast to . . . DeHaan and Kelder, Corry opined
credibly that ‘this was not a high energy fire.’ ’’ As we
explained, however, this finding lacks support in the
record because both DeHaan and Kelder opined that
the fire was a low energy fire. Nevertheless, on direct
examination, Corry repeatedly characterized the fire as
a ‘‘low energy’’ fire, on one occasion describing it as
‘‘a very low energy fire’’ and asserting, at another point,
that there was ‘‘abundant evidence that clearly shows
. . . that this fire was low energy . . . .’’ (Emphasis
added.)
On cross-examination, however, Corry denied ever
characterizing the fire in terms of low energy. During
one heated exchange with the petitioner’s counsel,
Corry was asked: ‘‘Now, as I understand your testimony
. . . [you said] that there’s a low energy fire set in this
couch, and this low energy fire kind of really becomes
a smoldering fire, right?’’ Corry responded: ‘‘I didn’t say
it was a low energy fire. It’s lower than it could have
been.’’ The petitioner’s counsel then asked Corry: ‘‘Well,
I thought that’s exactly what you said . . . in your testi-
mony on direct examination. That’s exactly what you
said; it was a low energy fire.’’ Corry responded, in part:
‘‘I don’t believe I said anything like that.’’
Needless to say, it is not the role of this court to make
credibility determinations, and we therefore express no
opinion as to whether Corry is a more persuasive or
convincing witness than DeHaan or Kelder. Our sole
purpose in drawing attention to the inconsistences in
Corry’s testimony is merely to underscore why, con-
trary to the conclusion of the third habeas court, the
original jury might well have credited the burn time
opinions of DeHaan and Kelder, and why it might well
have rejected Corry’s estimate. Of course, on retrial, it
is possible that the jury will not find the testimony of
DeHaan and Kelder persuasive; like all witnesses, they
will be subject to impeachment, and, at that new trial,
the state may be able to present an expert or experts
who, in contrast to Corry, provide testimony explaining
why the burn time opinions of the petitioner’s experts
lack persuasive force. Or the jury might conclude, like
the third habeas court did, that it simply is not possible
to determine the burn time of a fire, even within rela-
tively broad parameters, with any degree of confidence
or exactitude. But, for purposes of the present case,
which involves the suppression of exculpatory evidence
by the state, our task is not to determine whether the
jury more likely than not would have credited their
testimony, such that the petitioner would have pre-
vailed at a new trial. Cf. Shabazz v. State, 259 Conn.
811, 827–28, 792 A.2d 797 (2002) (in resolving merits
of petition for new trial based on newly discovered
evidence, trial court must determine whether petitioner
has established that new trial will produce different
result). The question, rather, is whether the jury reason-
ably could have credited the testimony of the petition-
er’s witnesses. On the record before us, there simply
is no legitimate basis for concluding that the jury rea-
sonably could not have credited the testimony of
DeHaan and Kelder, both of whom are well credentialed
and highly experienced experts in their field, and whose
testimony, when coupled with that of Martin’s, supports
the petitioner’s contention that he could not possibly
have sexually assaulted and killed the victim.
This observation, however, does not end our inquiry.
We still must determine whether, if the original jury
had considered the original trial evidence together with
DeHaan’s and Kelder’s testimony that the fire was set
no earlier than 7:30 p.m., as well as Martin’s unwavering
testimony that the petitioner was home with her and
their son watching television at that time, there is a
probability of a different result sufficient to undermine
confidence in the jury’s verdict. For the reasons set
forth in part III C of this opinion, this standard has
been met. Indeed, the state’s less than compelling case
against the petitioner was such that any new evidence
tending to cast doubt on the petitioner’s responsibility
for the charged crimes could well have lead to an acquit-
tal, and the petitioner’s expert testimony concerning the
burn time of the fire, coupled with Martin’s testimony,
certainly raises doubts about the reliability of the peti-
tioner’s conviction.
Before turning to a discussion of the original trial
evidence, however, we first address the three conten-
tions raised by Justice Zarella in his dissenting opinion:
(1) we have treated the respondent unfairly by deciding
a claim that the parties have not raised; (2) we incor-
rectly have concluded that the Appellate Court properly
exercised de novo review of the third habeas court’s
determination as to whether a jury reasonably could
credit the testimony of the petitioner’s experts; and
(3) the record establishes, as the third habeas court
determined, that the petitioner’s expert testimony is
not worthy of credit. We reject each of these claims.
B
Justice Zarella’s Arguments
1
Justice Zarella contends that, in concluding that the
third habeas court’s materiality determination is not
entitled to deference, we have ‘‘summon[ed] down [our]
deus ex machina’’ and decided an issue that the parties
never raised, thereby ‘‘silencing’’ the respondent, inflict-
ing ‘‘acute’’ harm on the state and ‘‘undermin[ing] the
fairness of our judicial process.’’ Justice Zarella’s rheto-
ric may make for entertaining reading, but the facts
categorically refute his accusations.
Some brief background is necessary in order to fully
understand why Justice Zarella’s argument is both
unfaithful to the record and baseless. It is undisputed
that the Appellate Court accorded no deference to the
third habeas court’s findings with respect to the credi-
bility of the parties’ burn time experts. See Lapointe v.
Commissioner of Correction, supra, 138 Conn. 476–79.
According to Justice Zarella, however, the Appellate
Court did not evaluate the testimony of the petitioner’s
experts, as Brady requires, to ascertain the materiality
of the Ludlow note in light of the record as a whole
but, rather, concluded that neither the Appellate Court
nor the third habeas court had any role whatsoever in
assessing the expert testimony. In other words, as Jus-
tice Zarella indicates, the Appellate Court never under-
took an analysis of the testimony and, instead, merely
‘‘hypothesiz[ed]’’ what a jury could find if it credited
the testimony and, on the basis of that ‘‘speculation,’’
concluded that ‘‘a new jury, and not the habeas court,’’
should evaluate it. (Emphasis in original.) In Justice
Zarella’s view, because this approach obviously is
improper, and because, according to Justice Zarella,
the petitioner’s only claim is that we should approve
the Appellate Court’s use of such a methodology, our
analysis begins and ends there: the respondent prevails
on appeal, the judgment of the Appellate Court is
reversed, and the judgment of the third habeas court
denying the habeas petition is reinstated. Proceeding
any farther, Justice Zarella asserts, would take us
beyond the scope of the claims raised in this appeal.52
Justice Zarella’s assertion to the contrary notwith-
standing, there is absolutely no basis for presuming that
the Appellate Court concluded that neither it nor the
third habeas court had a role in evaluating the credibility
of the parties’ expert testimony and that those courts’
sole responsibility, instead, was to speculate as to what
the original jury might have concluded if it had credited
the petitioner’s expert testimony. Under this approach,
any defendant who makes a claim under Brady—no
matter how preposterous or outlandish the testimony
that provides the basis for that claim—automatically
would be entitled to a new trial if, assuming that a jury
believed it, that jury might find the defendant not guilty.
No one, let alone a court of law, ever would advocate
for such a ludicrous standard, as it is perfectly obvious
that a defendant cannot be entitled to a new trial under
Brady when an objective assessment of the testimony
on which the defendant’s claim is based reveals that it
is incredible or unworthy of belief. Because there is no
support in the law of this or any other jurisdiction for
the bizarre proposition that our courts play no part
in evaluating the credibility of evidence presented to
establish a Brady claim—and because common sense
dictates that that approach cannot possibly be correct—
it verges on insulting to presume that the Appellate
Court employed such a patently improper and utterly
unworkable approach.
Moreover, a review of the Appellate Court’s decision
positively belies any such presumption. First, the Appel-
late Court discussed the facts of the case at length;
Lapointe v. Commissioner of Correction, supra, 138
Conn. App. 456–58, 462–63, 468–73; and summarized
the parties’ expert burn time testimony in the context
of the relevant facts. Id., 472–73. The Appellate Court
also explained the decision and factual findings of the
third habeas court; id., 472–74; and observed that the
third habeas court had found that the petitioner’s
experts provided thorough and extensive testimony
concerning the fire’s burn time. Id., 473. The Appellate
Court then properly set forth the standard of review
and governing legal principles under Brady and Strick-
land; id., 474–76; and, in so doing, quoted from this
court’s decision in State v. Ortiz, supra, 280 Conn. 720,
in which we explained that, on appeal, the issue of
materiality presents a mixed question of law and fact,
with the trial court serving as the fact finder. Lapointe
v. Commissioner of Correction, supra, 138 Conn. App.
475. Ultimately, on the basis of the testimony of the
parties’ experts, the Appellate Court concluded that the
petitioner is entitled to a new trial, and, as Justice Zare-
lla acknowledges, it did so without affording any defer-
ence to the third habeas court’s contrary findings. See
id., 476–79. Because, under our law—and so far as we
know, the law of every other jurisdiction—the only
alternative to deferential appellate review is de novo
appellate review, it is apparent that the Appellate Court
engaged in that latter form of review. As we have
explained, that is the correct standard of review in the
present case.
Finally, in defending his interpretation of the Appel-
late Court’s decision, Justice Zarella asserts that there
is no indication in that decision that the Appellate Court
evaluated the petitioner’s expert testimony to deter-
mine whether a jury reasonably could credit it. Justice
Zarella argues, rather, that the Appellate Court simply
concluded ‘‘that assessing the credibility of the expert
witnesses was a task best left to a jury,’’ without any
assessment of their testimony either by the trial court
or by the Appellate Court. In support of his assertion
that the Appellate Court concluded that no judicial
review of the parties’ expert testimony was the proper
approach, Justice Zarella quotes the following language
from a footnote in the Appellate Court’s decision: ‘‘If
the Ludlow note had been disclosed to trial counsel,
however, it would have been the responsibility of the
jury and not the court to weigh the credibility of the
arson experts. Whether the burn time evidence, which
was so critical in buttressing [the petitioner’s] alibi
defense, raised a reasonable doubt as to the petitioner’s
guilt would best be a determination left to the jury and
not [to] a habeas court.’’ (Emphasis omitted; internal
quotation marks omitted.) Part II of Justice Zarella’s
dissenting opinion, quoting Lapointe v. Commissioner
of Correction, supra, 138 Conn. App. 476–77 n.17. The
portion of the Appellate Court’s decision that Justice
Zarella fails to mention—the portion that places the
language on which Justice Zarella relies in its proper
context—leaves no doubt that the Appellate Court
reached its conclusion that the petitioner is entitled
to a new trial under Brady only after undertaking an
independent review of the parties’ expert testimony.
More specifically, after stating that the testimony of
the petitioner’s two experts would have been critical
to establishing an alibi, the Appellate Court ‘‘con-
clude[d] that there is a reasonable probability that the
result of [the petitioner’s] criminal trial would have
been different had the Ludlow note been disclosed to
[the petitioner’s trial counsel] prior to [his criminal]
trial. Nondisclosure prior to trial of the portion of the
Ludlow note describing the possible burn time affected
the overall fairness of the trial and was so unfair as
to undermine our confidence in the jury’s verdict. With
the burn time estimate provided by one of the state’s
fire marshals, trial counsel testified that they would
have retained the services of an arson expert and that
. . . Martin would have testified as to the petitioner’s
whereabouts during the critical times of that evening.
That evidence, if believed by the jury, could have
resulted in the jury’s finding that it was temporally
impossible for the petitioner to have committed the
crimes [of] which he was convicted. The Ludlow note
was exculpatory and material in these circumstances.
[First habeas counsel’s] performance was deficient
when he failed to pursue that issue at the first habeas
proceeding, and the petitioner was prejudiced by his
failure to do so. The petitioner has demonstrated that
had there been effective representation by [first habeas
counsel], there is a reasonable probability that the first
habeas court would have found that the petitioner was
entitled to [the] reversal of [his] conviction and a new
trial.’’ (Emphasis added; footnote omitted.) Id., 478–80.
It is simply impossible to read this passage and con-
clude that the Appellate Court did not undertake a sub-
stantive and independent review of the petitioner’s
expert testimony. Only by evaluating the substance of
the testimony and concluding that it was sufficiently
credible could the Appellate Court have concluded, as
it did, that the petitioner’s inability to use it at trial
adversely ‘‘affected the overall fairness of [the petition-
er’s criminal] trial and was so unfair as to undermine
[the Appellate Court’s] confidence in the jury’s verdict.’’
Id., 478–79. In other words, unless the Appellate Court
actually examined and assessed the evidence, there is
no way that the Appellate Court could have determined
that, if the expert testimony had been available to the
petitioner at his criminal trial, there is a reasonable
probability of a different verdict, as Brady requires.53
Not surprisingly, the respondent does not claim that
the Appellate Court concluded that neither it nor the
third habeas court was obligated to review the expert
testimony but, rather, was to merely assume that such
testimony was credible.54 In fact, the respondent
expressly recognizes that the Appellate Court did
review the parties’ expert testimony. For example, the
respondent claims that, ‘‘[a]s for the testimony of Mar-
tin, Kelder and DeHaan, the Appellate Court’s conclu-
sion that this evidence would have supported the
[petitioner’s] alibi defense is not sustainable.’’ (Empha-
sis added.) The respondent also claims that the Appel-
late Court ‘‘failed to consider the [state’s] compelling
evidence of guilt’’ in conducting its review of the testi-
mony of DeHaan, Kelder and Martin. At no time has
the respondent ever suggested that the Appellate Court
viewed itself and the third habeas court as having no
role in evaluating the credibility of the parties’ expert
testimony. Nor has the respondent ever claimed that
the Appellate Court did not conduct a substantive, de
novo review of that testimony. He argues, rather, that
the Appellate Court improperly failed to defer to the
determination of the third habeas court in concluding
that a jury reasonably might credit the petitioner’s
experts.55 Consistent with this contention, the respon-
dent’s brief contains a thoroughgoing discussion of why
the Appellate Court’s review of the expert testimony
should have been tempered by deference to the findings
of the third habeas court. Because the respondent him-
self claims that the Appellate Court should have
deferred to the conclusion of the third habeas court,
rather than conducting a de novo review, it defies credu-
lity to assert that the respondent was not on notice that
we would decide the claim, as Justice Zarella asserts.56
Ironically, then, it is Justice Zarella who would decide
this appeal on the basis of a claim that has not been
raised or briefed by the parties, that is, the propriety
of the Appellate Court’s purported determination that
a Brady violation automatically entitles a defendant
to a new trial, without any judicial evaluation of the
credibility of the testimony that supports a finding of
that violation.57
Having asserted, wrongly, that the respondent lacked
notice that we would decide whether the third habeas
court’s determination was subject to deferential or de
novo review, Justice Zarella compounds his error by
alleging that the respondent also could not have known
that we might decide that issue against him and, if we
did, that we then would proceed to the issue of whether
the Appellate Court properly concluded that the third
habeas court had resolved the issue incorrectly. This
argument fails, of course, because it is based on a false
premise. Because the respondent asked us to decide
the proper standard of review, it hardly could be clearer
that he was on notice that, if we disagreed with his
contention that the Appellate Court improperly
employed a de novo standard of review, we also would
decide whether the Appellate Court, having applied that
standard, reached the correct conclusion in reversing
the judgment of the third habeas court. Otherwise, we
would be unable to determine whether the judgment
of the Appellate Court should be affirmed or reversed.
See State v. Fausel, 295 Conn. 785, 793, 993 A.2d 455(2010) (‘‘in a certified appeal, the focus of [this court’s]
review is . . . [on] the actions of the Appellate Court’’
[internal quotation marks omitted]). We therefore reject
Justice Zarella’s manufactured allegation that we have
‘‘silenc[ed]’’ the respondent by ‘‘denying [him] notice
and a chance to brief the issue . . . .’’58
In light of the foregoing, it is apparent that we have
not decided an issue that the parties have not raised.
On the contrary, the respondent himself raised the issue
about which Justice Zarella complains and then fully
briefed it. Clearly, Justice Zarella’s assertion that it is
somehow unfair of us to decide the respondent’s claim
against him fails because it is against all logic and com-
mon sense. As we have explained, in arguing that the
judgment of the Appellate Court should be reversed
because that court merely assumed the credibility of the
petitioner’s expert testimony without evaluating that
testimony, it is Justice Zarella who would resolve this
appeal on the basis of a claim that has not been raised.
That would be unfair.
2
Justice Zarella also challenges our determination that
the Appellate Court properly exercised de novo review
over the third habeas court’s predictive judgment as
to whether a jury reasonably could have credited the
petitioner’s experts. He contends that our conclusion
is foreclosed by our case law, that we have improperly
usurped the function of the third habeas court in
reviewing its findings de novo because that court neces-
sarily was in a better position to assess credibility than
we are, and that employing that standard of review in
the present case violates the state constitutional prohi-
bition against fact-finding by an appellate tribunal.
We disagree.59
With respect to Justice Zarella’s first claim, we have
explained, in part II of this opinion, why, like the courts
in Bunch v. State, supra, 964 N.E.2d 292–93, and State
v. Behn, supra, 375 N.J. Super. 431–33, we are convinced
that the Appellate Court properly exercised de novo
review over the third habeas court’s conclusion con-
cerning the likelihood that a jury would credit the peti-
tioner’s experts, and we need not belabor our reasoning
here. Suffice it to say that this case presents a highly
unusual scenario: the third habeas court’s probabilistic
assessment was predicated solely on the scientific opin-
ions of highly qualified experts whose character, relia-
bility and veracity never have been questioned, and the
third habeas court’s ability to evaluate their credibility
firsthand, on the basis of their performance on the wit-
ness stand, had no bearing on that court’s judgment.
The court’s decision, rather, was based solely on its
view that the foundation of the opinion expressed by
the respondent’s expert was sounder than the opinions
of the petitioner’s experts.60 In such circumstances, we
are in as good a position as the third habeas court
to gauge whether a jury reasonably could credit the
opinions of the petitioner’s experts. Although we agree
fully with Justice Zarella that the general rule is one of
deference, even in cases involving claims under Brady,
this case represents a limited exception to that rule
because, as we previously discussed; see footnotes 42
and 43 of this opinion and accompanying text; there is
no justification for deferring to the third habeas court’s
findings and compelling reason not to do so. Justice
Zarella’s observation that we cannot cite an appellate
case from this state in which we have applied such an
exception proves only one thing: we previously have
not had a case on all fours with this one.61 The fact that
such a case is so uncommon, moreover, is a complete
answer to Justice Zarella’s ‘‘the sky is falling’’ con-
tention that we have opened the floodgates to future
litigants, for only in the rare case that a litigant can
establish that his case is materially similar to this one
will he be entitled to de novo review of the lower court’s
materiality determination.
Justice Zarella accuses us of improperly usurping the
fact-finding role of the third habeas court because, in
his view, ‘‘[e]valuating the credibility of a witness’ oral
testimony is a complex process that always entails
consideration of subjective factors like the attitude,
candor and demeanor of the witness, and this assess-
ment cannot be based solely on objective factors
reflected in the printed record.’’ (Emphasis in original.)
We disagree that the assessment of testimony, in partic-
ular, the evaluation of expert testimony by the court,
necessarily and invariably involves consideration of the
subjective factors that Justice Zarella identifies. This is
a case in point. As we have explained, there is nothing
in the record to suggest that the decision of the third
habeas court was predicated on the court’s subjective
view of the credibility of the parties’ experts, and the
court’s explanation of its decision demonstrates con-
vincingly that subjective considerations did not cause
the court to credit the respondent’s expert, Corry, over
the petitioner’s experts, DeHaan and Kelder. Rather, as
the third habeas court expressly stated, it was per-
suaded by the soundness of Corry’s scientific opinion
and by Corry’s critique of the testimony of DeHaan and
Kelder. In view of the objective reasons that the third
habeas court gave for its conclusion, and in the absence
of any indication, expressed or otherwise, that the court
relied on purely subjective factors in discrediting the
petitioner’s experts, we will not presume that it did so.
This conclusion is reinforced by the fact that, at oral
argument before this court, the respondent’s appellate
counsel acknowledged that the third habeas court had
‘‘to fully articulate its reasons for making a credibility
determination’’ and, further, that ‘‘we have a habeas
court here making a credibility determination and
assigning very specific reasons for why [it] did that.’’
(Emphasis added.)
With respect to Bunch v. State, supra, 964 N.E.2d 274,
Justice Zarella makes three arguments in an attempt to
discredit our reliance on the reasoning of that case.
None of those arguments undermines the validity of
that reasoning to even the slightest degree. First, he
suggests that Bunch is distinguishable because it
involves a petition for a new trial based on newly discov-
ered evidence, whereas the present case involves a
claim founded on Brady and Strickland. Justice Zarella
further asserts that Indiana applies a different standard
for determining the merits of new trial petitions than
we do in this state. These are classic distinctions with-
out any difference. The fact that the court in Bunch
addressed a claim based on newly discovered evidence
is wholly irrelevant because that claim requires exactly
the same analysis as claims under Brady and Strick-
land, as they entail the same considerations.62 With
respect to the argument that the elements of a new trial
claim based on newly discovered evidence differ in
Indiana and Connecticut, this, too, is irrelevant because
the precise nature of those elements has absolutely
nothing to do with the separate and distinct issue of
whether the findings of either state’s trial courts are
entitled to deference in those cases.
Justice Zarella next argues that Bunch is inconsistent
with this state’s jurisprudence because our cases reveal
that we have erected an absolute bar to de novo review
of findings by a trial court, no matter what the circum-
stances. This is simply not true. When there is sound
reason not to defer to the trial court—that is, when we
are in as good a position as the trial court to decide
the issue—we need not, and will not, do so.63 Like
Bunch,64 this is such a case, and Justice Zarella has
failed to identify any flaw in the reasoning of Bunch
that would warrant a contrary conclusion.
Justice Zarella’s third and final contention is that
engaging in de novo review of the third habeas court’s
materiality determination runs afoul of the state consti-
tutional ban on fact-finding by an appellate tribunal.
See, e.g., Styles v. Tyler, 64 Conn. 432, 461, 30 A. 165(1894). The respondent has not raised a constitutional
objection to the Appellate Court’s allegedly improper
failure to defer to the findings of the third habeas court,
and it therefore is not proper for Justice Zarella to do
so. Because Justice Zarella addresses it, however, we
also will do so. Review of the claim makes clear why
the state did not raise it: it is devoid of merit.
In Styles, this court discussed the division of author-
ity between trial courts and appellate courts as contem-
plated by the state constitution, and explained that
‘‘pure issues of fact’’ fall outside the authority of the
latter. Id. In other words, appellate courts do not try
cases or retry cases on appeal. As the court in Styles
made clear, however, the fact-finding that is constitu-
tionally prohibited does not include appellate review of
facts found by the trial court. See id., 459. Furthermore,
‘‘[a]mong the questions of law belonging to the jurisdic-
tion of this court . . . are . . . questions of legal con-
clusion when law and fact are so intermingled that the
main fact is not a pure question of fact but a question
of the legal conclusion to be drawn from subordinate
facts and also questions whether particular subordinate
facts constitute the basis for a conclusion of fact or a
conclusion of law . . . .’’ Id. As we have explained,
materiality under Brady and Strickland is a mixed ques-
tion of law and fact.
In the present case, de novo appellate review of the
third habeas court’s materiality decision does not
impermissibly intrude on that court’s fact-finding func-
tion because it does not require appellate fact-finding
at all. Our review of the testimony of the parties’ experts
does not require us to disturb the third habeas court’s
relative credibility judgment, that is, its determination
that the respondent’s expert was more credible than
the petitioner’s experts. Nor does it deprive the third
habeas court of its responsibility to evaluate that expert
testimony on the basis of its firsthand assessment of
the parties’ experts, because the court’s ultimate con-
clusion with respect to the credibility or persuasiveness
of the experts’ opinions was not based on its superior
position to evaluate them. This is so because the third
habeas court made no factual findings that derived from
its ability to assess the credibility of the experts in light
of their conduct and demeanor on the witness stand.
Indeed, the third habeas court’s assessment did not
require any findings at all with respect to disputed
issues of historical fact. Rather, the third habeas court’s
probabilistic judgment was predicated on its belief,
based solely on the foundational underpinnings of the
various expert opinions, that the opinion of the respon-
dent’s expert was sounder, and therefore more deserv-
ing of credit, than those of the petitioner’s experts.
Because we are in as good a position as the third habeas
court to evaluate the substance of those opinions, we
are also as well positioned to decide whether a jury
reasonably might credit them. For that reason, our de
novo review of the third habeas court’s predictive judg-
ment does not usurp the role of that court in any way,
and, consequently, there is no reason for us to defer to
it. In such circumstances, the issue gives rise to a ques-
tion of law, and there is no constitutional violation.
Although the foregoing discussion resolves Justice
Zarella’s constitutional claim, it bears noting that Jus-
tice Zarella has a very broad view of the scope of the
constitutional ban on appellate fact-finding. This view,
however, ignores the fact that our appellate authority
extends to actions that implicate the fact-finding func-
tion to a far greater degree than the de novo review
that we exercise in the present case. For example, under
the second prong of the clearly erroneous standard, we
may substitute our view for that of the fact finder when,
although there is sufficient evidence in the record to
support a particular finding, the reviewing court never-
theless ‘‘is left with the definite and firm conviction
that a mistake has been committed.’’ (Internal quotation
marks omitted.) State v. Maurice M., 303 Conn. 18,
27, 31 A.3d 1063 (2011); see also id., 37, 44 (reversing
conviction of defendant, despite evidentiary support for
jury’s finding of guilt, because this court had definite
and firm conviction that mistake had been made).
Another such example is State v. Kitchens, 299 Conn.
447, 10 A.3d 942 (2011), in which we concluded that
defense counsel’s failure to raise a constitutional chal-
lenge to the trial court’s jury instructions may,
depending on the circumstances, constitute a waiver
of the defendant’s right to raise such a claim on appeal.
See id., 482–83. As we explained in Kitchens, because
such a waiver is implied rather than express, it ‘‘arises
from an inference that the defendant knowingly and
voluntarily relinquished the right in question.’’ (Empha-
sis omitted.) Id., 483. As this court also has observed,
the decision whether to draw an inference in any given
set of circumstances is a quintessential ‘‘question of
fact, to be answered by a fact finder.’’ State v. Diaz,
226 Conn. 514, 526 n.8, 628 A.2d 567 (1993); see also
id. (‘‘The process of making a legal determination of
whether a particular inference drawn by a fact finder
is reasonable, as opposed to the process of determining
whether to draw such an inference, is particularly famil-
iar to a reviewing court. That is the essence of the
difference between a question of law, to be answered
by a reviewing court, and a question of fact, to be
answered by a fact finder.’’). Despite the fact intensive
nature of this inquiry—as we explained in Kitchens,
whether to draw an inference of waiver ‘‘must be based
on a close examination of the record and the particular
facts and circumstances of each case’’; State v. Kitch-
ens, supra, 483—this court, and not the trial court in
which the alleged waiver occurred, is responsible for
deciding, as a matter of fact, whether counsel waived
the claim. See id. Nevertheless, this decision is consid-
ered a question of law over which we exercise plenary
review. E.g., State v. Davis, 311 Conn. 468, 477, 88 A.3d
445 (2014). It simply cannot be that the constitution
permits the kind of fact bound determinations that are
required under the second prong of the clearly errone-
ous test and under our Kitchens waiver methodology
but bars plenary review in the present case, as Justice
Zarella maintains.65
3
Justice Zarella argues that, notwithstanding the myr-
iad factual errors contained in the third habeas court’s
memorandum of decision, the record nevertheless sup-
ports the conclusion that no jury reasonably could
credit the petitioner’s experts. To this end, Justice Zare-
lla makes three primary arguments in an effort to dem-
onstrate why the testimony of the petitioner’s experts
‘‘simply is not reliable . . . .’’ They are: (1) the fact that
Tomkunas was not burned upon entering the victim’s
apartment renders DeHaan’s burn time estimate unreli-
able; (2) DeHaan mistakenly believed that the tempera-
ture inside the victim’s apartment prevented Tomkunas
from entering the apartment when he first arrived; and
(3) DeHaan’s testimony was internally inconsistent and
therefore unreliable. None of these arguments, how-
ever, is supported by the record.
First, Justice Zarella argues that, because Tomkunas
crawled several feet into the victim’s apartment when
he first arrived, and remained inside for as long as
fifteen to twenty seconds before being forced to retreat,
the fact that Tomkunas was not burned ‘‘completely
contradicts DeHaan’s claim that the [victim’s] apart-
ment was close to 400 degrees when Tomkunas first
kicked in the door.’’ Justice Zarella’s argument is predi-
cated on the same fundamental misunderstanding of
DeHaan’s testimony that led the third habeas court so
far astray, namely, that DeHaan testified that floor level
temperatures were 400 degrees when Tomkunas
entered the building. As we have explained, DeHaan
never was asked about floor level temperatures. More
importantly, he made it clear that, when he spoke of
entry level temperatures in the 300 to 400 degree range,
he was referring to temperatures in the hot gas layer
of the fire, not floor level temperatures. See footnote 47
of this opinion and accompanying text. Indeed, DeHaan
was of the view that not even the hot gas layer tempera-
ture reached higher than 450 degrees at the fire’s peak,
and that it radiated very little heat downward toward
the floor because the victim’s synthetic rug was not
damaged in any way. See footnote 48 of this opinion.
DeHaan explained that, ‘‘even under fairly low radiant
heat intensities, synthetic fabrics like carpets tend to
start to melt, and, when they do, they get kind of crispy
to the touch,’’ which did not happen to the victim’s
carpet.
Despite the clarity of DeHaan’s testimony with
respect to the meaning of ‘‘entry level temperatures,’’
Justice Zarella insists that ‘‘DeHaan estimated that Tom-
kunas would have experienced temperatures near 400
degrees ‘to the bare skin,’ ’’ and, therefore, the third
habeas court properly discredited his burn time esti-
mate. Only by taking a handful of DeHaan’s words out
of context and ignoring the remainder of his testimony
is it possible for Justice Zarella to attribute to DeHaan
the view that floor level temperatures were 400 degrees
when Tomkunas entered the building, or at any other
time. The testimony that Justice Zarella relies on to
support this argument is the last four words of DeHaan’s
response to the questions of whether, in the course of
his investigation, he was able to determine entry level
temperatures, and what bearing those temperatures had
on his estimate of the fire’s burn time. With respect to
whether he was able to determine entry level tempera-
tures, DeHaan responded: ‘‘Only very approximately,
[on the basis of Tomkunas’ testimony] that when he
opened the door, there was smoke down very low, and
he got on his hands and knees and he had no protective
equipment on, and . . . when he tried to crawl in, it
was unpleasantly hot to his skin . . . as well as smoky,
and, at that point, he backed out knowing he couldn’t
go any further . . . . [S]hort exposure like that, that’s
probably going to be temperatures in the range of say
[300] or 400 degrees . . . . [T]hat’s enough to make
most people not . . . go in any further [with] . . .
bare skin.’’ We do not understand DeHaan to be saying
that Tomkunas’ bare skin was exposed to 400 degree
temperatures. To the extent that there may be ambiguity
in this portion of DeHaan’s testimony, however, it is
entirely dispelled by the remainder of his testimony. As
we previously indicated; see footnote 47 of this opinion;
on cross-examination, the respondent’s counsel asked
DeHaan exactly what he meant when he ‘‘estimated
that the temperature in the apartment when . . . Tom-
kunas entered was 300 [to 400] degrees . . . .’’ DeHaan
responded, ‘‘I’m talking about the hot gas layer tempera-
ture . . . .’’ DeHaan then explained that, in his view,
the hot gas layer never was much hotter than 400
degrees because there was so little damage to the rug,
which would have melted at much lower temperatures.
Moreover, it does not take an expert in fire forensics
to realize that a person would be severely burned from
any kind of prolonged exposure to 400 degree tempera-
tures. To suggest that a person of DeHaan’s professional
standing and expertise was unaware of this fact is pat-
ently unreasonable.66
Accordingly, contrary to Justice Zarella’s assertions,
it is not in the least surprising that Tomkunas was not
burned when he first crawled into the apartment, partic-
ularly in light of his testimony that he was on his hands
and knees the entire time, intentionally staying below
the hot gas layer. As Corry himself stated, temperatures
are always much hotter the higher up you go in a room,
which is why children are told to crawl on their hands
and knees in a fire. In this way, Corry explained, they
may avoid injury, even in situations where, if they were
to stand up, they could be severely burned or killed.
Indeed, the entire issue of whether it was 400 degrees
at floor level when Tomkunas entered the victim’s apart-
ment seems little more than a construct, inserted into
the proceedings by Corry two months after DeHaan
had testified. As we previously indicated, Corry stated
that, after listening to DeHaan’s testimony, he went
back to the drawing board in an effort to refute it. What
he came up with, it appears, was the notion that DeHaan
had stated that it was 400 degrees at floor level when
the firefighters entered the apartment, and that the tem-
perature obviously could not have been that high
because none of the firefighters was burned. Specifi-
cally, Corry stated that ‘‘DeHaan said [it was] 400
degrees. That’s what we were investigating.’’ Corry fur-
ther stated that, ‘‘if it was 400 degrees at the floor, [the
fire] would have burned [the firefighters], and it didn’t.’’
Notably, on cross-examination, Corry admitted that it
could very well have been 400 degrees in the hot gas
layer when Tomkunas entered the apartment. Corry
explained that his only point was that it could not have
been 400 degrees at floor level because none of the
firefighters was burned. Indeed, it bears emphasis that
Corry’s acknowledgment that the temperature in the hot
gas layer could have been 400 degrees when Tomkunas
arrived fully supports DeHaan’s estimate of the fire’s
burn time, which, as we previously discussed, was pred-
icated on hot gas layer temperatures being in the range
of 300 to 400 degrees.
In a similar vein, Justice Zarella asserts that DeHaan’s
burn time estimate is unworthy of credit because it is
predicated on DeHaan’s mistaken belief that the heat
prevented Tomkunas from crossing the threshold of the
victim’s apartment when he first arrived. Specifically,
Justice Zarella argues that DeHaan appears not to have
been aware that Tomkunas was able to crawl several
feet into the apartment before being forced out by the
heat, which likely affected DeHaan’s calculation of the
entry level temperature. We disagree with Justice Zarel-
la’s view of the record, which clearly reflects the fact
that DeHaan read all of Tomkunas’ trial testimony and
was fully aware that Tomkunas entered the victim’s
apartment briefly, on his hands and knees, before being
forced out by the heat. In fact, not only did DeHaan
testify that Tomkunas entered the apartment on his
hands and knees before being forced out, his written
report on the fire, which was entered into evidence as
a full exhibit, provides in relevant part: ‘‘[Tomkunas]
kicked the door open to find heavy smoke and consider-
able heat within. Without protective equipment, he
crawled on hands and knees into the front entry far
enough to see flaming fire on the couch against the left
wall but was forced out by the conditions.’’ (Emphasis
added.) In light of this evidence, Justice Zarella’s asser-
tion that DeHaan was unaware that Tomkunas actually
proceeded a short distance into the apartment when
he first arrived is simply wrong.
We are also perplexed by Justice Zarella’s insistence
that, ‘‘[a]t no time during his [trial] testimony did [Tom-
kunas] say that he was prevented from even entering
the apartment as a result of the heat.’’ Justice Zarella
contends that, after his initial entry, Tomkunas left the
apartment only because ‘‘the heat and smoke conditions
convinced him that rescue efforts would be ‘a lot easier’
if the apartment was vented,’’ not because it was too
hot to remain inside. As with Justice Zarella’s other
factual arguments, this contention is contradicted by
the record. When initially asked whether he was able
to remain in the apartment after kicking in the front
door, Tomkunas responded: ‘‘No, I was not. . . . It was
too hot and smoky. I had to go . . . out.’’ He also stated
that the heat and the smoke, which he described as
‘‘very, very dangerous,’’ ‘‘forced [him] to retreat . . . .’’
Tomkunas further stated that, before attempting a sec-
ond entry, it was necessary to ‘‘smash a window . . .
to remove the heat and smoke and hot gasses from the
building.’’ In arguing that the heat was not so great as
to prevent Tomkunas from remaining in the building,
Justice Zarella relies on a single statement by Tomku-
nas: ‘‘If I could get somebody to vent, it was a lot easier.’’
The broader context of that statement, however, as
reflected in the following colloquy between the state
and Tomkunas, which Justice Zarella has omitted from
his dissenting opinion, leaves no doubt that Tomkunas,
upon his arrival at the scene, was forced from the apart-
ment due to the high heat and dangerous smoke condi-
tions inside the apartment:
‘‘Q. Now, with respect to the volume of smoke, how
would you characterize that when you first entered—
what [was] the volume of smoke . . . in the apart-
ment?
‘‘A. If I could use a technical term, ‘well charged.’
‘‘Q. And is that a term of significance as far as fire-
fighting is concerned?
‘‘A. Yes it is.
‘‘Q. And how would you explain it to us?
‘‘A. A building that’s well charged with smoke is so
full, there’s no—there’s actually little to no oxygen left
in the building, and it’s a very, very dangerous situation.
‘‘Q. Dangerous to whom . . . ?
‘‘A. It would be dangerous to anybody in there and
anybody who attempted to get in without proper pre-
cautions.
‘‘Q. And you’ve indicated that the heat and the smoke
forced you to retreat after some fifteen to twenty sec-
onds. Is that correct?
‘‘A. That’s correct.
***
‘‘Q. Can you tell us why you retreated?
‘‘A. It was just too hot and too smoky. If I could get
somebody to vent, it was a lot easier.’’
Justice Zarella also argues that DeHaan’s testimony
‘‘that entry level temperatures were too high for Tomku-
nas even to enter the apartment conflicts with DeHaan’s
own testimony about the fire’s energy level’’ because
‘‘DeHaan testified that the fire would have produced a
relatively small amount of heat and would have been
approachable, even at its maximum intensity. DeHaan
explained that the fire’s intensity ‘would probably be
about the same as an average fireplace fire. It would
be pumping a lot of heat into this room, but not so
much that you couldn’t—you couldn’t approach it, for
instance, to try to extinguish it . . . .’ ’’ (Emphasis
omitted.) For reasons that we previously discussed, we
reject Justice Zarella’s assertion that DeHaan testified
that entry level temperatures prevented Tomkunas from
entering the apartment at all when he first arrived. We
also do not perceive any conflict between DeHaan’s
testimony regarding the fire’s energy level and his esti-
mate of entry level temperature. When DeHaan likened
the fire’s energy level to that of an average fireplace
fire, it was solely in an attempt to explain why there
was so little damage to the victim’s apartment. DeHaan
attributed the lack of damage in the apartment to the
heat release rate of the fire, which he estimated never
exceeded 250 to 350 kilowatts. DeHaan explained that
a 350 kilowatt fire will produce temperatures in the
range of 400 degrees. DeHaan further explained that,
if there had been more ventilation inside the apartment,
‘‘a love seat like [the one in the victim’s apartment] is
capable of generating [a] maximum heat release rate
. . . in the order of 2000 kilowatts. In other words, it
would have been six times [as] big [of a] fire; the fire
would have basically reached the ceiling, actually
spread across the ceiling, and it might have actually
brought this whole room to involvement.’’ If this had
occurred, DeHaan testified, it would not have been pos-
sible for a firefighter simply to walk up to the fire and
extinguish it. In contrast, a firefighter easily could have
approached the fire on the victim’s couch, assuming,
of course, that he or she was wearing appropriate attire,
because the fire’s heat release rate never exceeded 350
kilowatts, and the fire never spread beyond the couch
to other materials in the room. Indeed, it was undis-
puted that, with proper clothing and breathing equip-
ment, which Tomkunas did not have with him when he
arrived, he would have had no difficulty approaching
and extinguishing the fire upon his initial entry.67
In addition to his primary arguments, Justice Zarella
also asserts that the testimony of Igoe, Roy and Christo-
pher Marvin, three fire investigators who were at the
crime scene on the night of the murder, supports the
third habeas court’s determination that it was not possi-
ble to ascertain the fire’s approximate burn time. We
disagree with Justice Zarella’s interpretation of the testi-
mony of these witnesses, all of whom stated unequivo-
cally that they did not perform the type of investigation
that would have enabled them to estimate when the
fire started. For example, one of the witnesses, Roy,
testified that he had no recollection of the events of
that evening and that his role at the time was limited
to moving furniture, sweeping the floor, and the like.
Although we also dispute the remainder of Justice Zarel-
la’s factual contentions, we need not belabor the matter
further because, even if we were to assume that a jury
reasonably could find Corry’s testimony more persua-
sive than that of DeHaan and Kelder, that would not
alter our conclusion that the third habeas court’s materi-
ality determination was incorrect as a matter of law.
This is so because, as we have indicated, there is abso-
lutely nothing in DeHaan’s or Kelder’s testimony, or
anywhere else in the record, that would permit the
conclusion that a jury reasonably could not credit
their testimony.68
Having addressed Justice Zarella’s claims, we now
turn our attention to the second component of the test
for materiality under Brady and Strickland, that is,
consideration of the petitioner’s expert testimony in
light of the original trial evidence, for the purpose of
determining whether our confidence in the verdict is
undermined by that expert testimony.69 As we explain,
the answer to that question is most certainly ‘‘yes.’’
C
Original Trial Evidence
It is beyond dispute that the state’s case against the
petitioner rested almost entirely on his incriminating
statements, without which the state would have been
unable to obtain a warrant based on probable cause,
let alone a conviction of capital felony.70 There was
no physical evidence connecting the petitioner to the
crime, except for the fact that, along with approximately
one third of the male population, including another
suspect in the present case,71 the petitioner is a secretor
with type A blood, the same blood type as the person
who left a semen stain on the victim’s bedspread.72 The
state also sought to link the petitioner to the victim’s
murder because he previously had undergone a vasec-
tomy, and no sperm were found in the semen stain. At
trial, however, Beryl Novitch, the lead criminalist at the
state forensic laboratory who examined the stain at
issue, testified that it was not at all unusual to obtain
a semen sample containing no sperm even though the
donor’s semen contains sperm.73
With respect to the petitioner’s statements, the peti-
tioner alleged in his first habeas petition that his confes-
sion was false, and, in furtherance of this claim, he
maintained that he was unable to knowingly, intelli-
gently and voluntarily participate in the police interro-
gation because of his mental impairment. The first
habeas court dismissed this claim upon concluding,
inter alia, that, because ‘‘[t]he petitioner’s real argument
. . . is that his statements were involuntary [and there-
fore inadmissible] under the federal constitution’’;
Lapointe v. Warden, Superior Court, judicial district
of Hartford, Docket No. CV-97-0571161 (September 6,
2000) (Freed, J.); the claim was barred by this court’s
determination, in connection with the petitioner’s direct
appeal from the judgment of conviction, that the trial
court reasonably had concluded that the petitioner’s
admissions were voluntary. State v. Lapointe, supra,
237 Conn. 703; see footnote 16 of this opinion. For
purposes of evaluating the strength of the state’s case
against the petitioner, however, the issue is not the
voluntariness of the petitioner’s admissions—a thresh-
old issue that concerns the admissibility of his state-
ments—but, rather, whether a jury would find those
statements trustworthy or reliable because they consti-
tute a true and accurate reflection of the petitioner’s
involvement in the victim’s murder.
Relatively little was known about false confessions
at the time of the petitioner’s criminal trial. See, e.g.,
State v. Perea, 322 P.3d 624, 641 (Utah 2013) (observing
that, ‘‘[i]n the 1990s, little research had been conducted
on the phenomenon of false confessions’’). Signifi-
cantly, since then, an abundance of social science
research about the phenomenon has been conducted,74
and, due largely to advances in DNA testing, scores of
false confessions have been identified. These develop-
ments prompted the United States Supreme Court
recently to observe: ‘‘By its very nature, custodial police
interrogation entails inherently compelling pressures.75
. . . Indeed, the pressure of custodial interrogation is
so immense that it can induce a frighteningly high per-
centage of people to confess to crimes they never com-
mitted.76 Corley v. United States, 556 U.S. 303, 321, 129
S. Ct. 1558, 173 L. Ed. 2d 443 (2009) . . . .’’ (Citations
omitted; footnotes added; internal quotation marks
omitted.) J. D. B. v. North Carolina, U.S. , 131
S. Ct. 2394, 2401, 180 L. Ed. 2d 310 (2011). Moreover,
it is now ‘‘well established that people with mental
illness and mental deficiencies are more prone than
others to confess falsely, either because of an inordinate
desire to accommodate and agree with authority figures
or because they are unable to cope with the psychologi-
cal intensity of the police interrogation, which fre-
quently includes the use of sophisticated ploys and
techniques designed to weaken the suspect’s resolve.’’
State v. Edwards, 299 Conn. 419, 446, 11 A.3d 116 (2011)
(Palmer, J., concurring); see also, e.g., B. Garrett, Con-
victing the Innocent: Where Criminal Prosecutions Go
Wrong (2011) p. 38 (noting that of forty DNA exonera-
tions discussed, 76 percent of exonerees who falsely
confessed were either juveniles—33 percent—or men-
tally disabled—43 percent).
One cannot evaluate the strength of the state’s evi-
dence against the petitioner in the present case incogni-
zant of the fact that our awareness of the phenomenon
of false confessions has increased vastly in the nearly
twenty-five years since the petitioner’s conviction. One
also cannot read the petitioner’s statements to the
police, particularly in light of the testimony of the offi-
cers who elicited them, and not be left with serious
concerns about their reliability.
First, as we previously indicated, the record reveals
that the petitioner suffers from a mental impairment.
Although the state argued at his criminal trial that he
was not ‘‘retarded’’ in a technical sense, it did not dis-
pute that Dandy-Walker syndrome, a congenital malfor-
mation of the skull, had left the petitioner with such
serious cognitive deficits that many people who knew
him simply assumed that he was ‘‘retarded . . . .’’77
According to his school records, the petitioner was
eighteen years of age when he finally completed the
eighth grade, which was as far as he progressed in
school.78 Among other deficits, Dandy-Walker syndrome
probably caused the petitioner to be slow and unsteady
on his feet, and he also was severely visually impaired
from a young age, and later became hearing impaired.
In an effort to demonstrate the severity of the peti-
tioner’s mental impairment, his trial counsel called
numerous witnesses to testify at the petitioner’s crimi-
nal trial and at a hearing on his motion to suppress.
Without exception, they described the petitioner as a
quirky, gullible and childlike man whose funny appear-
ance and simplemindedness made him the constant butt
of jokes.79
Following his arrest, the petitioner also was exam-
ined by a number of psychiatrists and psychologists,80
all of whom testified at the petitioner’s trial and
described him in remarkably similar terms: slow-witted;
childlike; compliant; genial; guileless; talkative; and
very concrete and inflexible in his reasoning. None of
them observed any signs of psychosis or mood disorder.
All of them seemed to agree, however, that, because
of the nature of his cognitive impairment, the petitioner
was quite capable of confessing to a murder that he did
not commit. Donald R. Grayson, a psychiatrist, wrote
in one report that the petitioner ‘‘reportedly signed a
confession . . . in an attempt to extricate himself from
a stressful situation and to be able to go to the bathroom
and get water. Hearing this explanation from the aver-
age person would not have seemed believable to [me].
However, after spending a few hours with [the peti-
tioner], [I] could not help but find his explanation quite
believable, in view of his concrete approach to life and
his apparent[ly] limited intellectual capacity.’’81
According to Anne M. Phillips, a clinical psychologist
in private practice, the petitioner presents ‘‘consider-
ably younger than his chronological age’’ and has a
‘‘[f]ull [s]cale IQ [of] 92,’’ which puts him in the ‘‘lower
end of the average range of intelligence . . . .’’ Phillips
concluded that neurological damage from Dandy-
Walker syndrome, however, prevented the petitioner
from fully accessing his intelligence. According to Phil-
lips, the petitioner’s ‘‘expressive vocabulary is . . .
fairly weak, which may reflect an aphasic difficulty
related to his historical neurological problems. His lim-
ited vocabulary may also contribute to the interpersonal
impression of much lower overall intellectual ability
which [he] creates. He is not good at expressing his
thoughts or feelings and is apt to be awkward and rather
childlike in his expression. [The petitioner] also appears
limited in receptive language, partially due to acuity
problems, and partially to comprehension limitations.
As a result, he is inclined to sometimes respond arbi-
trarily to conversation or questions [that] he does not
fully understand. [The petitioner also] tends to be quite
concrete and inflexible in his reasoning, understanding
situations in a narrow and set way, and having consider-
able difficulty adopting alternative interpretations of
events, or even making sense of unfamiliar events.’’ At
trial, Phillips testified that ‘‘interpersonally, [the peti-
tioner] comes across as a funny little guy, kind of odd,
and, when he responds to questions in a very literal
fashion—[such as] when you ask him who his mother
is, [and] he says, ‘Mrs. Lapointe,’ or when you ask him
about his childhood, and he says, ‘I was a boy’—there
is a sense of ‘H[uh]?’ ’’82
With respect to the statements to the police, although
the nine hour interrogation was not recorded, the testi-
mony of the three officers who conducted it provides
significant insight into the tactics that were used and
the petitioner’s state of mind during questioning. Upon
his arrival at the Manchester police station, the peti-
tioner initially was questioned by Lombardo. According
to Lombardo, as soon as the petitioner entered the
interrogation room, Lombardo told the petitioner that
there was no question in his mind that the petitioner was
responsible for the victim’s murder. Lombardo testified
that the petitioner did not react to the accusation as
Lombardo had expected, that is, with a strong or loud
objection; instead, the petitioner just sat there pas-
sively, shaking his head and quietly saying, ‘‘[n]o
. . . .’’83 Lombardo stated that the petitioner immedi-
ately asked him ‘‘if it would be possible for someone
to commit a crime and then not remember it . . . .’’
According to Lombardo, approximately one hour into
the interrogation, the petitioner slumped in his seat,
breathed heavily, and said, ‘‘I killed her.’’ The petitioner
then asked Lombardo whether it was possible ‘‘that he
committed the crime, and then . . . blacked out and
just [did not] remember it.’’ Although Lombardo told
the petitioner that it was possible, he thought the peti-
tioner’s question was ‘‘just another ploy’’ to avoid telling
the truth. According to Lombardo, after he told the
petitioner that a person could commit a crime and not
remember it, the petitioner gave the first of three sworn
statements confessing to the victim’s murder. In it, he
stated: ‘‘On March 8, 1987, I was responsible for [the
victim’s] death and it was an accident. My mind went
blank.’’
After the first statement was signed and notarized,
Lombardo allowed the petitioner to go to the bathroom.
At this point, Lombardo was aware that he did not
have enough evidence to charge the petitioner with any
crime. When the petitioner returned to the interrogation
room, Lombardo told him that he needed to provide
more details about the crime. According to Lombardo,
the petitioner stated, ‘‘[s]he wouldn’t cooperate with
me so I killed her,’’ but then immediately ‘‘denied that
he had committed the crime and told [Lombardo] that
the only reason . . . he had given [the earlier] state-
ment was because he [thought Lombardo] wouldn’t let
him go to the bathroom unless he [did] . . . .’’ Lom-
bardo then began to put more pressure on the peti-
tioner. For example, he told the petitioner that a witness
had seen him walking his dog near the victim’s apart-
ment one hour before the fire was reported84 and that
the police had found his fingerprints on the murder
weapon, neither of which was true. According to Lom-
bardo, the petitioner ‘‘became quiet and kind of slumped
down in his chair when confronted . . . with that infor-
mation.’’ Immediately thereafter, the petitioner gave a
second sworn statement, in which he admitted to the
following: ‘‘On March 8, 1987, I went to visit [the victim]
with my wife and son. We left the apartment in the late
afternoon and went home. I left my house sometime
after that to take the dog for a walk. I was at [the
victim’s] apartment with the dog. We were both there
together and the time was right. I probably made a pass
at her and she said no. So I hit her and I strangled her.
If the evidence shows that I was there, and that I killed
her, then I killed her, but I don’t remember being there.
I made a pass at [the victim] because she was a nice
person and I though[t] that I could get somewhere with
her. She was like a grandmother to me, that I never had.’’
Following this second statement, the petitioner
became visibly despondent. According to Lombardo,
when he pressed him for more details about the crime,
the petitioner stated, ‘‘[i]f I tell you everything, then the
whole town’s going to find out and know that I am a
sex fiend.’’ He also told Lombardo that Martin and their
son were the only family that he had and that, if Martin
found out that he had killed her grandmother, she would
leave him. According to Lombardo, the petitioner stated
that ‘‘he couldn’t bear the thought of losing his family
and that, if his family did leave him, he might as well
be dead.’’ Thereafter, Lombardo left the room to speak
to Morrissey, who had just returned from interviewing
Martin. At this time, Lombardo decided that it would
be best for Morrissey to continue the interrogation,
which he did.
According to Morrissey, his job was ‘‘to get more
information’’ from the petitioner about the murder.
Toward that end, he began the interview by informing
the petitioner that he had just come from speaking to
Martin, that she had been informed of his role in the
victim’s death, and that Martin wanted him to cooperate
with the police. The petitioner again denied any involve-
ment in the murder, stating repeatedly that he must
have ‘‘black[ed] out’’ because he simply had no memory
of the crime. In an effort to ‘‘refresh his memory of
what happened,’’ Morrissey repeatedly led the peti-
tioner through the entire ‘‘sequence of events,’’ a pro-
cess that, according to Morrissey, took several hours
and considerable coaxing. When they were finished,
Morrissey prepared a written statement for the peti-
tioner to sign. In that statement, the third and final
statement, the petitioner provided a more detailed
account of his involvement in the murder: ‘‘[O]n Sunday
March something I was at [the victim’s] apartment with
my son . . . and my wife [Martin]. We visited from
about [2 until 4] p.m. and then walked home. After being
home [a while] I left to walk the dog. I then walked
back up to [the victim’s] apartment and she invited me
in. We each had a cup of coffee (I think [the victim]
had tea) and I sat on the couch. I recall having my
matches and my smoking pipe in my jacket pocket.
‘‘After my coffee I went into the bathroom (which is
located off the bedroom). When I came out [the victim]
was in the bedroom combing her hair. She was wearing
a pink house coat type of outer wear with no bra. (I
could see her breasts when she bent over). I grabbed
her with my hand around her waist area. When I did
that she pushed me. I threw her on the bed and took
off her underwear because I wanted to have intercourse
with her. I got my penis inside her for a few strokes
and then pulled out and masturbated. I did [ejaculate]
on the bed spread when I was finished. I had already
thrown her underwear on the right side of the bed.
After the sex she said she was going to tell my wife
. . . . I then went to the kitchen and got a steak knife
with a hard plastic brown handle and stabbed [the vic-
tim] in the stomach while she was [lying] on the couch.
The rest of the incident I do not recall although I admit
to having strangled her.’’ According to Morrissey, the
petitioner indicated that he strangled the victim by plac-
ing both of his hands around her neck.
The petitioner signed his third statement at approxi-
mately 12:30 a.m. on July 5, 1989. At that time, Morrissey
and Lombardo asked Brooks, their commanding officer,
to speak to the petitioner because the petitioner contin-
ued ‘‘to vacillate, and they wanted to see whether . . .
[Brooks] could get him to [stop] doing that.’’ According
to Brooks, the petitioner ‘‘would give a statement to
[his officers], sign it, and then claim that he was only
. . . giving back information that was given to him,
only saying what he thought [the officers] wanted to
hear . . . .’’ Brooks testified that the petitioner’s
‘‘recanting behavior had continued right to [the] end of
[the interrogation],’’ and that Lombardo and Morrissey
enlisted Brooks to speak to the petitioner because
Brooks and the petitioner had a prior relationship, and
the officers thought that Brooks could get the petitioner
‘‘to perhaps take a stand one way or the other.’’ When
Brooks went into the interrogation room and spoke
with the petitioner, the petitioner continued to vacillate
and appeared extremely agitated. At approximately 1:20
a.m., the petitioner was instructed to go home, and he
did so. The petitioner would later testify that he does
not know why he confessed except that he had to go
to the bathroom, and because he wanted to go home.
The petitioner also testified that Morrissey had told him
that, if he did not cooperate with the police, Martin,
his wife, could be charged with a crime, and their son
would become a ward of the state, accusations that
Morrissey has denied.85
It is difficult to read the officers’ account of the peti-
tioner’s statements in light of the other trial evidence
without experiencing the sinking discomfort that comes
with the realization that an injustice may have occurred.
Indeed, no fair-minded person who is familiar with the
evidence in the present case can read the petitioner’s
statements and feel confident that they represent a true
and accurate account of the victim’s murder by the
person responsible for her death. The first statement—
‘‘I was responsible for [the victim’s] death and it was
an accident’’ and ‘‘[m]y mind went blank’’—is totally
devoid of incriminating detail. The second statement—
‘‘I probably made a pass at her and she said no,’’ and,
‘‘[i]f the evidence shows that I was there, and that I
killed her, then I killed her, but I don’t remember being
there’’—sounds more like the statement of a man who,
having just been told by someone he trusts that there
is incontrovertible proof that he sexually assaulted and
murdered his wife’s grandmother, is trying to under-
stand how he could have no memory of such a horrific
event. Although the third statement is more specific,
most of the details bear little resemblance to the actual
crime scene evidence; see footnote 12 of this opinion;
and those that do, in particular, the facts that presum-
ably only the killer would know, have the ring of some-
one confirming information (‘‘I did [ejaculate] on the
bed spread when I was finished’’ and ‘‘I had already
thrown her underwear on the right side of the bed’’)
rather than conveying it.86
The respondent raises several arguments why there
would be no reasonable probability of a different result
at a new trial notwithstanding the testimony of Martin
and the petitioner’s burn time experts. We do not find
the respondent’s arguments persuasive. For example,
the respondent argues that a jury would be unlikely to
credit Martin’s testimony because she did not inform
the police, until she was questioned by Morrissey two
years after the murder, that the petitioner had walked
their dog on the day of the murder. The record reveals,
however, that the petitioner did not become a suspect
in the victim’s murder until two years after the murder,
at which time Martin was interviewed for the first time
about the petitioner’s whereabouts on the day in ques-
tion. Indeed, the audio recording of Martin’s interview
reveals, contrary to the respondent’s contentions, that
a jury readily could conclude that, until that moment,
it had never crossed Martin’s mind that her husband
had any role in the victim’s murder.87
The respondent also refers to certain facts that the
state relied on at the petitioner’s criminal trial, most of
which are set forth in this court’s decision in State v.
Lapointe, supra, 237 Conn. 696–702, in which we
rejected the petitioner’s claims on direct appeal, to sup-
port the contention that there is no reasonable probabil-
ity of a different result even if a jury were to consider the
testimony of DeHaan, Kelder and Martin.88 For example,
the respondent argues that, ‘‘before any information
regarding a possible sexual assault became known to
the police or the public, the [petitioner] stated in a
conversation with . . . a friend of the Lapointe family
. . . that ‘it was a shame they killed an old lady, but
they didn’t have to rape her, too.’ ’’ Id., 699. At trial, the
petitioner testified that, on the night of the murder, he
overheard someone at the hospital discussing the fact
that the victim had been sexually assaulted. This is a
perfectly plausible explanation as to how he knew about
the sexual assault because Marvin, a Manchester volun-
teer fire marshal, testified that he also had heard hospi-
tal personnel speaking openly about the sexual assault.
In addition, Elizabeth Martin, the victim’s daughter-in-
law, testified that, on the morning after the murder,
she called the Manchester Police Department and was
informed by Brooks that the victim had been sexually
assaulted. Elizabeth Martin stated that she immediately
conveyed this information to Karen Martin and to her
brother with instructions not to tell their father, the
victim’s son, because she was afraid the news would
make him emotionally distraught. Finally, within days
of the victim’s murder, there was speculation in the
newspaper that the victim had been sexually assaulted
and that Frederick Merrill, a recently released convict
who had committed a similar home invasion and sexual
assault of a fifty-five year old woman just three days
after the victim’s murder and three miles from the vic-
tim’s apartment, also had sexually assaulted and killed
the victim.89
The respondent further argues that DeHaan’s and
Kelder’s testimony would not have made a difference
at the petitioner’s criminal trial because it is duplicative
of the testimony of Marvin, who, according to the
respondent, ‘‘assisted [the state fire marshal] in the
investigation, and offered his own burn time estimate
for the defense . . . .’’ Marvin’s estimate, the respon-
dent maintains, ‘‘differed in no meaningful way’’ from
the estimates provided by DeHaan and Kelder. In reli-
ance on these assertions, the respondent contends that
Marvin’s testimony, coupled with the petitioner’s testi-
mony at trial that he was at home with his family
between the hours of 7 and 8 p.m., compels the conclu-
sion that the jury considered and rejected an alibi
defense based on the probable burn time of the fire.
This claim is wholly without merit. Marvin was not a
professional firefighter much less a forensic fire expert;
he was a volunteer firefighter who was called by the
petitioner to testify that, on the night of the murder,
he overheard hospital personnel discussing the fact that
the victim had been sexually assaulted. It is true that,
when asked on direct examination how long it might
have taken for the fire to reach its maximum tempera-
ture, Marvin estimated that the fire started about fifteen
to twenty minutes prior to reaching its peak tempera-
ture at around 8:10 p.m. Marvin qualified his answer,
however, by stating that it was ‘‘extremely rough’’ and
‘‘real hypothetical,’’ undoubtedly because he was not a
professional fire investigator. Indeed, on cross-exami-
nation, Marvin admitted that he really had ‘‘no idea
when the fire was set’’ and that his estimate of the fire’s
maximum temperature was just ‘‘a guess . . . .’’ More
important, however, the petitioner did not rely on Mar-
vin’s estimate to support an alibi defense based on the
fire’s burn time, or for any other purpose. In fact, to
the extent that the petitioner sought to establish that
he could not have murdered the victim because he was
at home when the murder occurred, the petitioner never
contended that his claim was supported by any burn
time evidence. In light of the foregoing, it strains credu-
lity to believe that the jury—entirely on its own, without
any argument by the petitioner’s trial counsel or guid-
ance from the trial court—would have considered an
alibi defense based on Marvin’s rough and inexpert
testimony concerning the time that it took for the fire
to reach its maximum temperature.
The respondent also relies on the testimony of Jean
Strimike, the petitioner’s former neighbor, who testified
that, after the petitioner became president of their four
member condominium association, he memorized all
of the association’s complex rules and bylaws, and was
a stickler about enforcing the rules. Strimike stated that
she and the petitioner got into a heated dispute over
nonconforming flowers that she had planted in front
of their building, and, after she refused to remove them,
the petitioner stomped them into the ground. The most
we can say about this evidence, which very much typif-
ies the kind and quality of evidence that the state pre-
sented at the petitioner’s criminal trial,90 is that it reveals
that the petitioner is someone who could behave poorly
on occasion. It clearly does not give rise to a reasonable
inference that the petitioner was capable of cold
blooded murder.91 Of course, the state will be free to
seek to introduce this evidence at a new trial and, to
the extent it is admissible, to rely on whatever probative
value it may have.
IV
CONCLUSION
The petitioner was forty-two years old when he alleg-
edly committed one of the most brutal crimes in our
state’s history—the rape, torture and murder of a
defenseless eighty-eight year old woman, a person who,
by all accounts, was like a grandmother to him.
Although there is abundant evidence in the record con-
cerning the petitioner’s simplemindedness, his peculiar-
ities and his very rigid way of thinking, one searches the
record in vain for evidence that he ever was physically
violent, that he suffered from a mood disorder, psycho-
sis, drug addiction or anything else that could explain
why, after visiting the victim every Sunday for years,
he suddenly went back to her apartment on the Sunday
in question and brutally murdered her, without his wife
noticing either that he had left their house or any change
in his demeanor or appearance upon his return. Further-
more, at the petitioner’s criminal trial, the state was
not required to commit to any particular time frame for
the murder, arguing only that it occurred sometime
between 5:45 p.m., when the victim was last seen alive
by Howard, her daughter, and 8:05 p.m., when she failed
to answer Howard’s telephone calls. If, however, the
original jury were to have heard and credited DeHaan’s
and Kelder’s testimony that the fire was set between
7:30 and 8:05 p.m., and if that jury also were to have
heard and credited Martin’s testimony that the peti-
tioner was at home with her watching television at that
time, there is not just a reasonable probability of a
different result, there is a near certainty of one. And,
as we have explained, there simply is no reason why the
jury reasonably could not have credited that testimony.
The petitioner therefore has established, under Strick-
land, that his first habeas counsel’s representation of
him was constitutionally deficient due to counsel’s fail-
ure to pursue a Brady claim founded on the state’s
suppression of the Ludlow note because that nondisclo-
sure deprived the petitioner of evidence establishing
a complete and potentially compelling alibi, thereby
gravely undermining the reliability of the verdict against
him. Because the record demonstrates convincingly
that the petitioner is burdened by an unreliable convic-
tion, he is entitled to a new criminal trial.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and EVELEIGH and
McDONALD, Js., concurred.
* March 31, 2015, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The petitioner was convicted of capital felony, arson murder, felony
murder, murder, arson in the first degree, assault in the first degree, sexual
assault in the first degree, sexual assault in the third degree, and kidnapping
in the first degree. See State v. Lapointe, 237 Conn. 694, 695, 678 A.2d 942,
cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996). His
convictions of arson murder, felony murder, murder, sexual assault in the
first degree, and sexual assault in the third degree were combined with
his capital felony conviction for sentencing purposes ‘‘to comport with
constitutional double jeopardy protections.’’ Id., 695 n.1.
2
Because the state sought the death penalty in connection with the capital
felony charge, a penalty phase hearing was conducted in accordance with
General Statutes (Rev. to 1987) § 53a-46a. The jury found the existence of
a mitigating factor, and, pursuant to § 53a-46a (f), the petitioner received a
sentence of life imprisonment without the possibility of release.
3
To establish that a new trial is required because of a Brady violation,
a defendant must establish, first, that the state failed to disclose evidence,
second, that that evidence is exculpatory, that is, it is favorable to the
defendant, and, third, that the evidence is material. See, e.g., Adams v.
Commissioner of Correction, 309 Conn. 359, 369, 71 A.3d 512 (2013). To
establish materiality, the defendant must demonstrate that there is a reason-
able probability that, if the jury had considered the evidence, the result of
the trial would have been different. See id., 370. In this context, a reasonable
probability is a probability sufficient to undermine confidence in the out-
come of the original trial. Id., 370–71. Ultimately, materiality is a mixed
question of law and fact that is subject to this court’s plenary review. E.g.,
State v. Ortiz, 280 Conn. 686, 720, 911 A.2d 1055 (2006). We discuss these
requirements more fully in part II of this opinion.
4
As we discuss more fully hereinafter, under Strickland, a defendant can
prevail on a claim of ineffective assistance of counsel only if he can establish
both that counsel’s performance fell below an objective standard of reason-
ableness and that the deficient performance prejudiced the defendant
because there is a reasonable probability that, but for counsel’s substandard
performance, the result of the proceeding would have been different. See,
e.g., Johnson v. Commissioner of Correction, 288 Conn. 53, 63, 951 A.2d
520 (2008). A reasonable probability is a probability sufficient to undermine
confidence in the outcome. See, e.g., Adams v. Commissioner of Correction,
309 Conn. 359, 370–71, 71 A.3d 512 (2013).
5
The Appellate Court affirmed the judgment of the third habeas court in
part, upholding that court’s denial of the petitioner’s claim of actual inno-
cence. See Lapointe v. Commissioner of Correction, supra, 138 Conn. App.
468, 480. The Appellate Court also dismissed in part the petitioner’s appeal.
See id., 480.
6
The procedural background and the vast majority of the historical facts
that follow are not disputed. To the extent that additional facts are relevant
to our disposition of the parties’ claims, we identify them in part III of
this opinion.
7
Dandy-Walker syndrome is a congenital brain malformation known to
cause poor motor skills and, in most cases, cognitive impairment. See gener-
ally Lapointe v. Warden, Superior Court, judicial district of Hartford, Docket
No. CV-97-0571161 (September 6, 2000) (Freed, J.).
8
A secretor is a person who secretes blood type antigens into his bodily
fluids. See Stedman’s Medical Dictionary (28th Ed. 2006) p. 1739.
9
Evidence adduced at the petitioner’s criminal trial established that 41
percent of the population have type A blood and that 80 percent of the
population are secretors.
10
Postconviction DNA testing revealed, however, that the pubic hair con-
tained mitochondrial DNA that did not match that of the victim or the
petitioner and that the gloves also contained DNA that did not match that
of the victim or the petitioner.
11
Originally, Ludlow was the lead investigator in the case.
12
For example, the petitioner stated that he had stabbed the victim once
in the stomach while she was lying on the couch; in fact, the killer stabbed
the victim eleven times while she lay on her bed, and all but one of the stab
wounds were to the victim’s back. Although the petitioner told Morrissey
that he had strangled the victim manually, the evidence indicated that she
had been asphyxiated by pressure to the right side of her neck from a
blunt object. The petitioner also stated that the victim was wearing a pink
nightgown that exposed her breasts, but no such article of clothing was
recovered from the crime scene. Rather, the evidence indicated that, at the
time of the attack, the victim was wearing pants, a blouse and a blue sweater,
which the perpetrator forcibly removed. In addition, in the affidavit in sup-
port of the warrant for the petitioner’s arrest, Lombardo noted that the
petitioner also ‘‘was inconsistent when talking about the ligatures that were
tied around [the victim’s] neck and arms.’’ According to Lombardo, the
petitioner ‘‘first said that he had bound [the victim] with rope that he had
brought . . . from home. The evidence showed that [the victim] had been
bound with articles of clothing from her closet. [The] [p]etitioner did, how-
ever, recant his statement about the rope later in the interview.’’
13
These details were: (1) a semen stain was recovered from the victim’s
bedspread; (2) the victim’s underwear had been thrown to the right side of
the bed; and (3) the victim was stabbed with a steak knife with a hard
plastic handle.
14
The state argued at trial that the petitioner conducted himself in that
manner because he was stalling for time before summoning help.
15
In support of his motion to suppress the incriminating statements, the
petitioner claimed, first, that he never was advised of his rights under
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966),
even though he was in police custody when he made the statements and,
second, that the statements were involuntary because they were the product
of police coercion. See Lapointe v. Commissioner of Correction, supra, 237
Conn. 702–703. The trial court found that the petitioner was not in custody
when he was questioned, and, consequently, Miranda warnings were not
required. Id., 703. The trial court further found that, in fact, the petitioner
had been advised of his rights in accordance with Miranda and that he
knowingly and intentionally waived those rights. Id. The trial court also
found that the petitioner’s statements were made voluntarily and were not
the product of police pressure. Id.16
This court agreed with the state that the trial court properly had deter-
mined that the petitioner was not in custody when he made the statements
and that the statements were made voluntarily. Lapointe v. Commissioner
of Correction, supra, 237 Conn. 703.
17
The petitioner also had alleged: ‘‘(1) actual innocence premised on [his]
inability . . . physically and intellectually to carry out and to conceal the
crimes [of] which he had been convicted; (2) prosecutorial impropriety
[stemming from the suppression of] a notebook that contained Lombardo’s
notes from the homicide investigation; (3) discrimination by the state on the
basis of the petitioner’s physical and mental disabilities; [and] (4) ineffective
assistance of trial counsel . . . for their failure, inter alia, to procure the
Lombardo notebook, to retain appropriate experts for the defense at trial
and to argue that men’s gloves and certain hairs of unknown origin that
had been found at the crime scene demonstrated that the petitioner was
innocent of the charged crimes . . . .’’ Lapointe v. Commissioner of Correc-
tion, supra, 138 Conn. App. 459. The petitioner further alleged ineffective
assistance of trial counsel on the basis of their failure to present a third-
party culpability defense predicated on the testimony of witnesses who, on
the night of the murder, saw a man, bearing no resemblance to the petitioner,
flee from the crime scene area in a disheveled condition at approximately
8 p.m., shortly before the fire was reported.
18
In accordance with this testimony, the petitioner claimed in his second
habeas petition that the Ludlow note was exculpatory both for the substance
of the information that it contained about the minimum possible burn time
and because that information would have prompted the petitioner’s trial
counsel to consult a burn time expert and to employ a different trial strategy.
According to the petitioner, this strategy would have prompted trial counsel
to call Martin as a witness and to focus on an alibi defense predicated on
her testimony and the testimony of a burn time expert as to how long the
fire burned.
19
The Appellate Court viewed the evidence in the light most favorable to
the petitioner because the second habeas court had dismissed the habeas
petition inasmuch as the petitioner ‘‘failed to establish the prima facie ele-
ments of his claims.’’ Lapointe v. Commissioner of Correction, supra, 113
Conn. App. 388.
20
It would appear that, under the Appellate Court’s assessment of the
evidence, Martin’s testimony alone was exculpatory because, considering
that testimony most favorably to the petitioner, she placed him at home
during the entire period within which the victim’s murder could have been
committed. It also appears, however, that, in the view of the Appellate Court,
the minimum burn time reflected in the Ludlow note buttressed that alibi
evidence. See Lapointe v. Commissioner of Correction, supra, 113 Conn.
App. 392.
We note, in addition, that the Appellate Court also agreed with the peti-
tioner that the second habeas court improperly concluded, albeit without
explanation, that the petitioner had not made a prima facie showing that
first habeas counsel’s representation of the petitioner was constitutionally
deficient on the basis of his failure to allege ineffective assistance of the
petitioner’s trial counsel as a result of their failure to utilize certain evidence
to prove the unreliability of the petitioner’s confessions. See id., 402. In
particular, the petitioner had maintained in his second habeas petition that
first habeas counsel’s representation of the petitioner was ineffective in that
he failed to allege that, in closing argument, trial counsel improperly failed
(1) to argue that the petitioner’s statement describing the clothes that the
victim was wearing at the time of the attack did not match the crime scene
evidence, (2) to argue that a pubic hair recovered from the victim’s sweater,
which presumably was left by the actual killer, could not be linked to the
petitioner, (3) to argue that a pair of men’s gloves recovered from the crime
scene, which had no connection to the petitioner or the victim, was likely
left by the actual killer, (4) to emphasize that the petitioner’s statement that
he manually strangled the victim was inconsistent with the actual method
of strangulation, namely, asphyxiation by pressure to the right side of the
victim’s neck with a blunt object, and (5) to emphasize that the petitioner’s
statement that he had stabbed the victim on the couch did not correlate to
the physical evidence indicating that the victim had been stabbed on the bed.
Id., 399–401. The Appellate Court concluded, contrary to the determination of
the second habeas court, that these claims, taken together, were sufficient
to establish a prima facie case of ineffective assistance of trial counsel, and,
therefore, the court remanded the case to the habeas court for further
proceedings on that claim, as well. See id., 402, 404.
21
The third habeas court permitted the petitioner to amend his second
habeas petition to include a claim of actual innocence based on newly
discovered DNA evidence. ‘‘The [resulting] operative three count complaint
set forth the following three claims: (1) [First habeas counsel] provided
ineffective assistance . . . by failing to raise as an issue the state’s suppres-
sion of its arson expert’s opinion that the burn time of the fire set in
the victim’s apartment was between ‘30–40 mins. Poss.’; (2) [First habeas
counsel] provided ineffective assistance . . . by failing to prove that Culli-
gan and Cosgrove, the petitioner’s trial counsel, provided ineffective assis-
tance . . . by failing to utilize available evidence to demonstrate the factual
unreliability of the petitioner’s inculpatory statements to the police; and (3)
the petitioner was actually innocent of the crimes [of] which he was con-
victed as evidenced by DNA testing on gloves and a pubic hair collected at
the crime scene.’’ Lapointe v. Commissioner of Correction, supra, 138 Conn.
App. 462.
22
The petitioner also called Martin as a witness at the third habeas trial.
Although she had considerable difficulty recalling with any degree of accu-
racy events that had occurred on the day of the victim’s murder some
twenty-three years earlier, she stated in no uncertain terms that all of the
statements that she had made about the matter during that time period,
including her 1987 statement immediately following the murder, her 1989
tape-recorded statement to Morrissey, and her 1992 suppression hearing
testimony, were completely truthful. Those statements make clear that, on
the night of the murder, the petitioner was at home with Martin and their son
from 7 p.m. until approximately 8 p.m., when Howard asked the petitioner to
go to the victim’s home to check on the victim.
23
All references to temperature in this opinion are to the Fahrenheit scale.
24
As we explain more fully in part III A of this opinion, the record reveals
that, contrary to Corry’s assertions, DeHaan did not testify either that the
fire was a high energy fire or that the floor temperature inside the victim’s
apartment was 400 degrees when firefighters entered.
25
The third habeas court described the Ludlow note as ‘‘potentially’’ excul-
patory in light of the Appellate Court’s conclusion that, contrary to the
determination of the second habeas court, the petitioner had indeed made
out a prima facie case that the note was exculpatory for purposes of Brady.
See Lapointe v. Commissioner of Correction, supra, 113 Conn. App. 392.
Nevertheless, in light of the Appellate Court’s conclusion, it appears that
the respondent was entitled, on remand to the third habeas court, to present
evidence demonstrating why, in his view, the note was not exculpatory,
even though the petitioner established a prima facie basis for his claim.
See, e.g., Adams v. Commissioner of Correction, 309 Conn. 359, 369–70, 71
A.3d 512 (2013) (to prove Brady violation, defendant must establish that
state’s withholding of information was both exculpatory and material). The
third habeas court observed, however, that the Appellate Court ‘‘concluded
that the petitioner has established the exculpatory nature of the Ludlow
note and [therefore] satisfied the first prong of the Brady analysis.’’ Consider-
ing itself bound by this determination, the third habeas court treated the
Ludlow note as exculpatory.
With respect to the issue of whether the state improperly had failed to
disclose the Ludlow note, the third habeas court observed that there was
‘‘no indication or evidence that the . . . note was wilfully suppressed’’ by
the state. The third habeas court did not decide whether the note neverthe-
less had been suppressed inadvertently by the state; instead, for purposes
of its analysis, the third habeas court assumed, without deciding, that the
state unwittingly had failed to disclose it to the petitioner prior to his criminal
trial. The respondent has not raised either ground in its appeal from the
Appellate Court’s judgment.
26
As we explain more fully in part III A of this opinion, contrary to the
third habeas court’s finding, Corry did not dispute DeHaan’s estimate of the
peak temperature.
27
As we explain more fully in part III A of this opinion, Corry did not
dispute Kelder’s testimony either with respect to the fire’s energy level or
with respect to the fire’s peak temperature.
28
See footnote 3 of this opinion.
29
See footnote 4 of this opinion.
30
The third habeas court also rejected the petitioner’s claim of actual
innocence based on DNA testing of the gloves and the pubic hair recovered
from the crime scene, as well as the claim that first habeas counsel’s repre-
sentation of the petitioner was constitutionally deficient on the basis of his
failure to demonstrate ineffective assistance of trial counsel as a result of
their failure to utilize available evidence to demonstrate the unreliability of
his confessions. As to the first claim, ‘‘[a]lthough the [third habeas] court
found that the petitioner had presented newly discovered evidence with
respect to DNA analysis, it concluded that the results were unreliable,
particularly as to the pair of gloves, because of contaminated or potentially
contaminated DNA samples. With respect to the pubic hair, the [third habeas]
court stated that it could not be determined with any degree of certainty
how the hair came to rest on the [victim’s] blue sweater. Although the DNA
analysis excluded the petitioner as a donor, the [third habeas] court reasoned
that the hair could have come from the perpetrator or it could have been
transferred to the crime scene in a manner unassociated with the attack on
the victim.’’ Lapointe v. Commissioner of Correction, supra, 138 Conn. App.
463. With respect to the second claim, the third habeas court concluded
that, although trial counsel could have done more to highlight the various
ways in which the petitioner’s statements were inconsistent with the evi-
dence, those discrepancies were otherwise readily discernible to the jury,
and, consequently, the petitioner was not prejudiced by trial counsel’s failure
to emphasize the inconsistencies.
31
‘‘The record contains testimony that it took the petitioner approximately
ten to fifteen minutes to walk from his home to the victim’s apartment.
There also is testimony that because the petitioner has Dandy-Walker [s]yn-
drome, he is slow and unsteady on his feet.’’ Lapointe v. Commissioner of
Correction, supra, 138 Conn. App. 477 n.19. Thus, it would have taken the
petitioner at least twenty minutes to walk to and from the victim’s apartment,
and it likely would have taken him longer if he had his small dog with him,
as he asserted in his statements to the police.
32
In support of its conclusion, the Appellate Court also stated: ‘‘The peti-
tioner exercised his sixth amendment right to a trial by an impartial jury.
If the Ludlow note had been disclosed to trial counsel, however, it would
have been the responsibility of the jury and not the court to weigh the
credibility of the arson experts. Whether the burn time evidence, which was
so critical in buttressing [the petitioner’s] alibi defense, raised a reasonable
doubt as to the petitioner’s guilt would best be a determination left to the
jury and not a habeas court.’’ Lapointe v. Commissioner of Correction,
supra, 138 Conn. App. 476–77 n.17.
33
We note that, on appeal to the Appellate Court, the petitioner also
claimed that the third habeas court improperly had rejected his actual
innocence claim and his claim that first habeas counsel’s representation
was constitutionally deficient on the basis of his failure to establish that
trial counsel had rendered ineffective assistance by not utilizing the available
evidence—in particular, the many inaccuracies in the petitioner’s statements
about the how the crime was committed—to demonstrate that his admis-
sions were unreliable. See Lapointe v. Commissioner of Correction, supra,
138 Conn. App. 464, 468. The Appellate Court rejected the first claim; id.,
468; and declined to reach the second claim in light of its determination
that the petitioner was entitled to a new trial due to the state’s suppression
of the Ludlow note in violation of Brady and first habeas counsel’s deficient
performance under Strickland owing to his failure to pursue that claim
competently. See id., 479–80 n.22.
In addition, the respondent claimed in the Appellate Court that the state
had not suppressed the Ludlow note. Id., 472 n.16. With respect to this issue,
the Appellate Court acknowledged that the third habeas court had assumed
without deciding that the note was inadvertently suppressed by the state;
id., 472; and then stated: ‘‘On appeal, the respondent argues that the Ludlow
note was not suppressed because it was preliminary and speculative, and
the petitioner’s trial counsel knew of its essential facts. The [third] habeas
court did not address those claims. In its memorandum of decision, the
[third habeas] court stated: ‘There is no indication or evidence that the
Ludlow note was [wilfully] suppressed, so this court will assume, without
deciding, solely for purposes of addressing the petitioner’s claim, that the
Ludlow note was inadvertently suppressed.’ . . . Without any further analy-
sis by the [third habeas] court, the record is inadequate . . . to address
this argument of the respondent.’’ Id., 472 n.16. Because, however, the
respondent had prevailed in the third habeas court, he had no reason to
seek a determination with respect to his claim that the Ludlow note had
not been suppressed. Consequently, the record was inadequate for review
of the issue through no fault of the respondent, and the Appellate Court
therefore should have remanded the case to the habeas court for a resolution
of the issue. On appeal to this court, however, the respondent has not
challenged the decision of the Appellate Court with respect to this issue,
and, therefore, the respondent has waived any such claim. We do note,
however, that, even if the respondent had preserved the issue, and sought
a remand to resolve it, there is a substantial likelihood that he would not
prevail, albeit for an entirely different reason than that given by the Appellate
Court. Specifically, if, contrary to the assumption of the third habeas court,
the Ludlow note had not been suppressed by the state, the petitioner likely
would be able to establish in his habeas proceeding, first, that first habeas
counsel should have recognized the exculpatory nature of the note and,
second, that his failure to pursue a claim predicated on the note constituted
ineffective assistance of counsel, thereby entitling the petitioner to a new
trial, which the Appellate Court ordered in any event.
Finally, the respondent raised no claim in the Appellate Court with respect
to issue of whether the Ludlow note was exculpatory. Consequently, the
respondent has abandoned any such claim.
34
The state’s ‘‘obligations under Brady to disclose such information [do]
not depend on whether the information to be disclosed is admissible as
evidence in its present form. The objectives of fairness to the defendant,
as well as the legal system’s objective of convicting the guilty rather than the
innocent, require that the prosecution make the defense aware of material
information potentially leading to admissible evidence favorable to the
defense.’’ United States v. Rodriguez, 496 F.3d 221, 226 (2d Cir. 2007).
35
Such error occurs ‘‘when there is no evidence in the record to support
[the court’s finding of fact],’’ or when, although there is evidence to support
the factual finding, the reviewing court, upon consideration of the entire
record, ‘‘is left with a definite and firm conviction that a mistake has been
committed.’’ (Internal quotation marks omitted.) State v. Benjamin, 299
Conn. 223, 236, 9 A.3d 338 (2010).
36
With respect to the materiality of withheld evidence, we have stated
that we will give weight to the determination of the trial judge deciding that
issue, even though our review is plenary, if that same judge also presided
over the defendant’s criminal trial. See State v. Ortiz, supra, 280 Conn.
721–22. We do so because, in that circumstance, the judge had the opportu-
nity to observe the trial proceedings firsthand and, as a consequence, is
well positioned to assess the strength of the original trial evidence in relation
to the evidence withheld by the state. See id., 721. In the present case,
however, no such respect is due because the third habeas court, Nazzaro,
J., did not preside over the petitioner’s criminal trial.
37
As we have explained; see footnote 33 of this opinion; the respondent
has abandoned any claim that he may have had with respect to whether,
first, the Ludlow note was, in fact, exculpatory and, second, the state did,
in fact, suppress the note.
38
Thus, we do not ask whether the jury conceivably could have credited
the expert testimony. The standard, rather, is whether there is a reasonable
probability of the jury having credited the expert testimony, thereby giving
rise to a probability of a different verdict sufficient to undermine confidence
in the outcome.
39
We note that, on several occasions, the third habeas court cast its
materiality analysis in terms of whether the outcome of the petitioner’s
criminal trial reasonably would have been different if he had had the benefit
of the expert burn time testimony for purposes of that trial. See Lapointe
v. Commissioner of Correction, Superior Court, judicial district of Tolland,
Docket No. CV-02-0818542-S (April 15, 2011) (concluding that petitioner had
failed to show ‘‘how [the expert burn time testimony] reasonably would
have led the jury to conclude [that] there was reasonable doubt in light of
all the evidence presented to the jury’’ [emphasis added]); see also id. (‘‘[t]he
court is unable to conclude that [first habeas counsel’s] failure to have an
arson/fire expert testify in the first habeas [proceeding] would have resulted
in anything different [from the present] habeas [case]: a prototypical battle
of the experts resulting in diverging opinions’’ [emphasis added]). The third
habeas court did correctly state, however, that, under Brady, the petitioner
must establish that the withheld evidence ‘‘could reasonably be taken to
put the whole case in such a different light as to undermine confidence in
the verdict,’’ and that, ‘‘if the [withheld] evidence creates a reasonable doubt
[regarding the petitioner’s guilt] that does not otherwise exist, constitutional
error has been committed.’’ (Internal quotation marks omitted.) For pur-
poses of this appeal, we may presume that the third habeas court applied
the proper legal standard because, as we explain more fully hereinafter,
due to the nature of the testimony that is the subject of the petitioner’s
Brady claim, we review that testimony de novo.
40
When the issue of materiality gives rise to a disputed factual issue the
resolution of which requires credibility findings by the trial court, we will
give appropriate deference to those findings if they are supported by the
record. We emphasize, however, that, because the predictive judgment of
whether a jury reasonably might credit the Brady material, such that the
jury reasonably might find the defendant not guilty, gives rise to a question
of law, our deference to the trial court’s fact-finding is always tempered by
an independent and searching examination of the record.
41
In Behn, which also involved a petition for a new trial based on newly
discovered scientific evidence; see State v. Behn, supra, 375 N.J. Super.
413–14; the Appellate Division of the New Jersey Superior Court similarly
declined to defer to the trial court’s finding that the expert scientific evidence
did not warrant a new trial. See id., 431–33. In that case, the trial court
denied the new trial petition without a hearing in light of its determination
that the newly discovered evidence, which was presented to that court in
the form of comprehensive affidavits from the expert witnesses for the
defense, was not ‘‘of the sort that would probably change the jury’s verdict
if a new trial were granted.’’ (Internal quotation marks omitted.) Id., 432.
The Appellate Division reversed the judgment of the trial court and ordered
that the defendant, Chael S. Behn, be granted a new trial; id., 434; explaining
that it was not necessary to remand the case for an evidentiary hearing, at
which the trial court could hear live testimony from the expert witnesses,
because the affidavits provided a sufficient basis for relief. See id. The
Appellate Division observed that the trial court, ‘‘not having presided over
[Behn’s criminal] trial, was in no better position to [perform the requisite]
analysis than [the Appellate Division]. . . . [T]he [materiality question] pre-
sents a mixed question of law and fact, requiring that [the Appellate Division]
give deference to supported factual findings of the trial court . . . but
review de novo the [trial] court’s application of any legal rules to such
factual findings. . . . In this instance, the [trial] judge’s conclusion on the
[materiality] prong [does] not involve any underlying factual findings but
only a legal conclusion, [namely] whether the newly discovered evidence
probably would have affected the jury’s verdict. As such, [the Appellate
Division] exercise[s] de novo review.’’ (Citations omitted; internal quotation
marks omitted.) Id., 432–33. In granting a new trial without remanding the
case for an evidentiary hearing on the reliability of the expert testimony,
the Appellate Division necessarily concluded that the persuasive force of
the proffered expert testimony was sufficient to warrant a new trial without
any finding by the trial court as to the personal credibility of the experts.
42
Our conclusion in this regard is limited to the kind of fact-finding that
is implicated in the Brady context. In cases involving claims under Brady,
the function of the habeas court is to determine whether the evidence
withheld by the state is sufficiently credible that a jury reasonably could
credit it and, if so, whether the evidence also is sufficiently pertinent to an
issue in the case that it reasonably could lead to a different result. This
predictive evaluation of the evidence is different from the ordinary case, in
which the fact finder is responsible for the ultimate assessment of credibility.
Thus, as the Pennsylvania Supreme Court recently explained, ‘‘[a]ssessing
credibility for purposes of [Brady] prejudice is not necessarily the same
thing as assessing credibility at a trial.’’ Commonwealth v. Johnson, 600 Pa.
329, 359, 966 A.2d 523 (2009). After observing that its research had revealed
no case that ‘‘specifically sets forth a standard for credibility determinations’’
in that context, the court in Johnson explained that ‘‘[l]ogically, however,
credibility assessments [for purposes of Brady] are not absolutes, but must
be made with an eye to the governing standard of a ‘reasonable probability’
that the outcome of the trial would have been different.’’ Id. Because, in
addressing a claim under Brady, a habeas court’s credibility determination
is not an ‘‘absolute’’ finding, as the factual findings of the ultimate finder
of fact are, but merely is a threshold evidentiary assessment required for
the purpose of determining whether the ultimate finder of fact reasonably
could credit the evidence, the principle that reviewing courts typically defer
to credibility findings in the Brady context has its sole basis in the fact that
the habeas court is ordinarily in a better position to judge credibility, and
is not based on the general prohibition against appellate fact-finding. Conse-
quently, when this court is in as good a position as the habeas court to assess
credibility for the purpose of reviewing a claim under Brady, reviewing the
habeas court’s credibility assessment de novo does not place this court in
the improper role of finding ultimate facts but merely allows this court to
carry out its proper role of determining the legal question of materiality
under Brady. Indeed, because we ultimately must decide whether the state
violated the petitioner’s due process rights by withholding exculpatory evi-
dence, and because the superior position of the third habeas court to view
firsthand the testimony of the parties’ experts had nothing to do with its
credibility findings on that issue, we would be abdicating our responsibility
with respect to the issue of materiality if we did not review those findings
de novo.
43
In addition, as this court recently explained in clarifying the standard
of review for Brady claims, the issue of materiality is subject to plenary
appellate review, but deference is to be afforded the trial court’s findings
with respect to the ‘‘underlying historical facts . . . .’’ State v. Ortiz, supra,280 Conn. 720. The present case, however, does not require any such findings,
and the third habeas court made none. Moreover, the third habeas court’s
probabilistic assessment as to whether a jury reasonably might credit the
exculpatory testimony of the petitioner’s experts was based solely on the
court’s perception of the strength of those opinions and not on anything
having to do with the experts’ experience, qualifications, character, veracity
or demeanor during their testimony.
44
In support of this contention, the respondent claims that the Appellate
Court improperly (1) failed to defer to the credibility findings of the third
habeas court, (2) failed to consider the petitioner’s expert testimony ‘‘in the
context of the entirety of the evidence of record,’’ in particular, the evidence
adduced at the petitioner’s criminal trial, and (3) applied an incorrect test
with respect to the materiality of the petitioner’s expert testimony. We reject
the respondent’s first claim because, as we have explained; see part II B of
this opinion; see also part III B 2 of this opinion; under the circumstances
presented, the Appellate Court properly conducted a de novo review of the
third habeas court’s credibility findings. We reject the respondent’s second
claim for the reasons set forth in part III C of this opinion.
We also reject the respondent’s third claim, which is predicated on the
assertion that the Appellate Court, in determining that the petitioner’s expert
testimony satisfied the Brady materiality test, ‘‘improperly based [its deci-
sion on] that which it independently deemed to be conceivable, not [on]
that which was reasonably probable in light of the [third] habeas court’s
finding regarding credibility and the entirety of the evidence of record.’’ In
support of this argument, the respondent relies on the statement of the
Appellate Court that the testimony of the petitioner’s experts, ‘‘if believed
by the jury, could have resulted in the jury’s finding that it was temporally
impossible for the petitioner to have committed the crimes [of] which he
was convicted.’’ Lapointe v. Commissioner of Correction, supra, 138 Conn.
App. 479. According to the respondent, this language indicates ‘‘that the
Appellate Court only paid lip service to Brady’s ‘reasonable probability’
standard, while, in actuality . . . it reached its own materiality determina-
tion speculating on the basis of what ‘could have’ happened ‘if’ certain
evidence had been believed.’’ We do not agree that the Appellate Court
resorted to speculation and conjecture in deciding the issue of materiality.
The Appellate Court expressly stated that a Brady violation may be estab-
lished only ‘‘by showing that the favorable evidence could reasonably be
taken to put the whole case in such a different light as to undermine confi-
dence in the verdict. . . . [E]vidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’’ (Citation
omitted; emphasis added; internal quotation marks omitted.) Lapointe v.
Commissioner of Correction, supra, 138 Conn. App. 476. We have no doubt
that the Appellate Court, having recited the correct standard for materiality—
one that requires a reasonable likelihood that the result of the original trial
would have been different—also applied that standard. Indeed, we cannot
conceive how the Appellate Court possibly could have concluded, as it did,
that the unavailability of the expert burn time testimony ‘‘affected the overall
fairness of the trial and was so unfair as to undermine [its] confidence in
the jury’s verdict’’; id., 478–79; if it had determined only that that testimony
provided a remote or speculative possibility of a different result. As the
respondent himself acknowledges, ‘‘[i]t is well established that [m]ere con-
jecture and speculation are not enough to support a showing of prejudice’’
in this context. (Internal quotation marks omitted.) Sinchak v. Commis-
sioner of Correction, 126 Conn. App. 670, 678, 14 A.3d 348, cert. denied,
301 Conn. 901, 17 A.3d 1045 (2011). Therefore, we review the Appellate
Court’s use of the term ‘‘if’’ as properly reflecting its engagement in a
probabilistic assessment of the effect of the Brady material on the jury’s
assessment of the evidence. Accordingly, there is no merit to the respon-
dent’s contention that the Appellate Court relied on an improper test to
determine materiality.
45
Specifically, DeHaan testified that ‘‘the fire never got much more than—
well, it was in the order of 250 to 350 kilowatts at its maximum. . . . In
plain language . . . [that] would probably be about the same as an average
fireplace fire.’’ He further explained that, in the event that there had been
more ventilation—for example, if a door or window had been open during
the fire—‘‘a love seat like [the one in the victim’s apartment] is capable of
generating [a] maximum heat release rate . . . in the order of 2000 kilo-
watts. In other words, it would have been six times [as] big [of a] fire; the
fire would have basically reached the ceiling, actually spread across the
ceiling, and it might have actually brought this whole room to involvement.’’
46
The respondent argues that Kelder also opined that the ground level
temperature in the apartment at the time the firefighters entered was 400
degrees or more, a temperature at which the firefighters concededly would
have been burned. On the contrary, Kelder testified that, once Boland opened
the sliding door, ‘‘the heat became lesser right away. It . . . vent[ed] itself
right out the door,’’ which allowed the firefighters to enter. Indeed, according
to Kelder, ‘‘there was not a lot of heat in that room at the time they entered.’’
We note that, on cross-examination, Kelder was asked whether, on the
basis of the firefighters’ trial testimony, he could estimate the temperature
inside the apartment when the firefighters entered. Kelder responded that
it was probably 600 to 800 degrees at floor level when Tomkunas touched
the outside of the front door, at which point, as far as Kelder could recall,
another firefighter opened the sliding glass doors, ‘‘dissipating the smoke
and heat . . . right out the door.’’ Kelder further stated, however, that he
would have to review the transcript of the trial testimony of the firefighters
a second time to formulate a more precise estimate of what the temperature
was when they arrived and that, in any event, his analysis of the fire was
dependent on factors other than entry level temperatures.
47
DeHaan testified as follows on cross-examination:
‘‘Q. Now, in your testimony, you indicated that you estimated that the
temperature in the apartment when . . . Tomkunas entered was 300
degrees?
‘‘A. No, I think I said 400 degrees.
‘‘Q. Did you say 400 degrees?
‘‘A. I believe I did, yes. I talked about a lot of temperatures. . . .
‘‘Q. Well . . . what exactly do you mean by that?
‘‘A. I’m talking about the hot gas layer temperature, because it wouldn’t
have been much hotter than that and still left so much . . . relatively undam-
aged in the structure. If it had been much over 400 degrees . . . then there
would have been more thermal damage to materials in the structure, in the
smoke layer. If [it had] been much lower than that, then . . . Tomkunas
would not have necessarily been dissuaded from entering.’’
48
When asked whether it was ‘‘significant that the rug in the apartment
hadn’t burned in any way,’’ DeHaan stated: ‘‘Yes, that shows that the tempera-
ture of the hot smoke layer never got above a certain threshold because
the hotter that smoke layer is, the more intense the radiant heat is, and the
lack of damage to the . . . synthetic fiber rug indicates that the radiating
heat was very limited [be]cause what happens is that, even under fairly low
radiant heat intensities, synthetic fabrics, like carpets, tend to start to melt,
and, when they do, they get kind of crispy to the touch; once they cool off
again, they’re kind of—you can actually rub your hand across [them] and
detect that thermal effect . . . but there was no reported melting or ignition,
even close to ignition [of the victim’s carpet], and that . . . set a limit for
just how hot that hot smoke layer was [at its peak].’’
49
In contrast, both DeHaan’s report and Kelder’s report were introduced
as full exhibits.
50
Accordingly, the third habeas court’s conclusory—and factually unsup-
ported—assertion that DeHaan’s burn time estimate was inconsistent with
the ‘‘historical and physical evidence marshaled by Corry’’ is puzzling. As
we have indicated, all three experts were provided with the same information
and materials about the fire. Although Kelder and Corry visited the victim’s
apartment complex as part of their review of the evidence, DeHaan was
provided with a set of architectural drawings, and his testimony indicates
that he assumed for purposes of his analysis the same conditions that Kelder
and Corry observed firsthand, namely, an airtight compartment with a high
insulation factor. DeHaan testified that visiting the apartment twenty-three
years after the fire would have served no useful purpose because the fire
was a contents fire, and the contents were no longer available for inspection.
Indeed, there was no material difference in the underlying testimony of the
three experts; their testimony differed only with regard to their ultimate
opinion as to the estimated burn time.
51
Specifically, Corry testified as follows:
‘‘A. Based on the evidence from witnesses and so forth, I would say 5:45
[p.m.], based on the fact that . . . Howard, the [victim’s] daughter, drove
by and said she saw [the victim] outside emptying trash between 5:30 and
5:45 [p.m.], and probably 7:55 [p.m.], which is when . . . Howard claimed
she called [the victim] and there was no answer on the [tele]phone.
‘‘Q. And what is the basis of your conclusion based on those facts?
‘‘A. Well, [the victim] was in the apartment and she didn’t answer the
[tele]phone, so she had already been assaulted and was probably incapaci-
tated at that point.
‘‘Q. So . . . with regard to the earlier time, when she was viewed outside
the apartment, that was clearly before the fire was set?
‘‘A. Right.
‘‘Q. So . . . in your opinion, the fire could have been set at any time
within that time frame?
‘‘A. I think so, yes. I believe that’s when it was set.’’
Along the same lines, Corry predicated certain other conclusions about
the fire’s burn time on facts or assumptions unrelated to the dynamics of
the fire itself. For example, Corry opined that the ignition point of the fire
was ‘‘on the bottom of the back of the couch.’’ When asked why, he stated:
‘‘Only because it would [require] . . . a match, and that’s what [the peti-
tioner] said in his [third statement to the police, namely] . . . that he had
a match.’’
52
Justice Zarella’s view of this case, then, is very simple. He asserts that
the Appellate Court ‘‘removed any requirement that the petitioner make a
credibility showing’’ under Brady, and, ‘‘[a]s a result, the Appellate Court
analyzed the petitioner’s claim by hypothesizing what a jury could find, if
it credited the new evidence. . . . The Appellate Court granted the peti-
tioner a new trial on the basis of the results of this speculation. . . . The
issue presented to this court is whether the Appellate Court properly con-
cluded as it did.’’ (Citations omitted; emphasis in original.) Of course, the
only possible answer to this question is ‘‘no,’’ and Justice Zarella supplies
it. As we explain hereinafter, however, in characterizing the issue as he
does, Justice Zarella sets up, and then demolishes, the flimsiest of straw men.
53
Thus, there simply is no justification for Justice Zarella to attribute to
the Appellate Court an absurd standard of review. But, even if there were
some question as to whether the Appellate Court had engaged in plenary
review of the credibility of the parties’ expert testimony or, as Justice Zarella
argues, no review at all, we would not accept Justice Zarella’s contention
because it is well established that we would read any such ambiguity to
support rather than to undermine the Appellate Court’s judgment. See, e.g.,
Water Street Associates Ltd. Partnership v. Innopak Plastics Corp., 230
Conn. 764, 773, 646 A.2d 790 (1994).
54
What would be surprising is if the respondent had argued that the
Appellate Court simply assumed the credibility of that testimony and, further,
that the habeas court likewise has no role in assessing the testimony. Indeed,
the absurdity of attributing such a position to the Appellate Court is reflected
in Justice Zarella’s characterization of the issue of law that, he claims, is
presented by this appeal, namely, whether the petitioner has the ‘‘burden
to establish the credibility of new evidence in order to prove Strickland/
Brady prejudice and the [third] habeas court’s role in determining whether
the petitioner has met that burden.’’ Because it is axiomatic that the peti-
tioner bears such a burden—in other words, because the credibility of
evidence presented to establish a Brady claim most certainly cannot be
assumed—to ask the question that Justice Zarella poses is to answer it.
55
As we have explained, the respondent also claims that the Appellate
Court misapplied the reasonable probability standard for ascertaining mate-
riality under Brady by improperly speculating as to what a jury might find
on the basis of that testimony rather than determining whether the testimony
gave rise to a reasonable prospect of a different outcome. See footnote 44
of this opinion. Of course, that claim is entirely different from the claim
that Justice Zarella raises sua sponte.
56
We therefore reject Justice Zarella’s contention that our decision in the
present case is somehow inconsistent with Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 84 A.3d 840(2014) (Blumberg), in which we limited the discretion of this court and the
Appellate Court to identify and address claims not raised by the parties in
recognition of the fact that ‘‘our system is an adversarial one in which the
burden ordinarily is on the parties to frame the issues, and the presumption
is that issues not raised by the parties are deemed waived.’’ Id., 164. Because
we are addressing and resolving the claim that the respondent has raised,
the principles underlying Blumberg simply are not implicated.
57
For his part, the petitioner argues that the Appellate Court correctly
concluded that his experts were worthy of belief and that he was entitled
to have a jury make the ultimate determination of whether to credit their
testimony or that of the respondent’s expert. Indeed, the petitioner argues
that the judgment of the Appellate Court should be affirmed because ‘‘[t]he
point is all the experts, as made clear by the [third] habeas court, offered
credible evidence as to the fire’s burn time, all of which established that
the suppression of the burn time was an important and significant issue
going to the heart of the prosecution. It was not for the [third] habeas court,
in what it concedes was a ‘contest among experts,’ to determine materiality
based on which expert it found the most credible.’’ To the extent that Justice
Zarella recites various arguments that the petitioner has not made, those
arguments are beside the point. Because the respondent is the appellant in
this appeal, we focus on whether the respondent’s arguments are sufficiently
persuasive to warrant reversal of the Appellate Court’s judgment.
58
Justice Zarella also contends that, ‘‘[b]ecause neither party has claimed,
either in this court or the Appellate Court, that an appellate tribunal can
properly make its own credibility assessments . . . we have no briefing
from the parties on [this issue] . . . .’’ Once again, the record flatly contra-
dicts Justice Zarella’s contention. The respondent’s brief contains an exten-
sive discussion of why, in the respondent’s view, the third habeas court
properly resolved the materiality question as it did. Indeed, as we discuss
subsequently in this opinion; see part III C of this opinion; Justice Zarella’s
arguments concerning the evidentiary underpinnings of the third habeas
court’s conclusions regarding the burn time evidence mirror the respondent’s
arguments in all respects—arguments that, according to Justice Zarella, the
respondent was deprived of the opportunity to make, thus forcing Justice
Zarella to make them on his own.
59
We also note that, according to Justice Zarella, the third habeas court
concluded that the petitioner’s burn time testimony ‘‘likely would not be
admissible’’ because it ‘‘would not be helpful to a jury . . . .’’ Footnote 23
of Justice Zarella’s dissenting opinion. In support of this assertion, Justice
Zarella relies on the following italicized language in the third habeas court’s
memorandum of decision: ‘‘The expert testimony on the fire and its estimated
total burn time would not be in the ordinary knowledge and experience of
the typical juror. While it may be relatively easy to conclude that expert
testimony such as what was presented to [the third habeas] court could
have been presented to the jury, the use of such experts would not have
assisted the jury in knowing precisely when the fire was set.’’ (Emphasis
added.) Contrary to Justice Zarella’s assertion, it is perfectly clear that, in
using this language, the third habeas court in no way was suggesting that
the testimony of DeHaan and Kelder—two highly experienced and qualified
experts in the science of fire reconstruction who, in the words of the third
habeas court, were embroiled with Corry in ‘‘a prototypical battle of the
experts’’—would have been inadmissible at the petitioner’s criminal trial.
Rather, the court was merely explaining why, in its view, a jury would not
be persuaded by that testimony, that is, because it was not sufficiently
definite or precise as to when the fire was set. The third habeas court
expressly stated that its rejection of the petitioner’s claim was predicated
on its determination that Corry’s testimony was entitled to ‘‘more credit or
weight’’ than the testimony of DeHaan and Kelder, and not, as Justice Zarella
claims, that the testimony of DeHaan and Kelder was inadmissible. In fact,
the third habeas court would have been incorrect as a matter of law if it
had reached the conclusion that Justice Zarella attributes to it because it
is undisputed that the testimony of the petitioner’s experts, if credited along
with Martin’s testimony, would provide the petitioner with a complete alibi.
60
As we previously noted, the third habeas court’s credibility determina-
tion was not predicated on any underlying findings that required a firsthand
assessment of witness credibility. Justice Zarella, however, asserts that the
third habeas court ‘‘necessarily depended on’’ the testimony of Igoe, a wit-
ness at both the petitioner’s criminal trial and the third habeas trial, in
crediting the opinion of Corry over the opinion of DeHaan. In support of
this assertion, Justice Zarella observes that Igoe, whom the petitioner called
as a witness, tested a small portion of the foam from inside the couch many
hours after the fire was extinguished and indicated that it burned slowly,
whereas DeHaan testified that, in his view, the couch itself had burned
rapidly. Justice Zarella’s assertion that the third habeas court relied on this
testimony in crediting Corry’s opinion is incorrect. Igoe further testified
that he never sought to determine the burn time of the fire and never rendered
an opinion about how long the fire burned. In fact, as the respondent states
in his brief to this court, ‘‘Igoe . . . made [it] abundantly clear when he
testified at the [third habeas] trial that he could opine only that it may have
taken anywhere from ‘several minutes to several hours’ for the fire to ‘get
rolling,’ ’’ depending on the conditions in the house. In other words, Igoe
did not know whether the fire consumed the couch in moments or hours.
This testimony explains why the third habeas court did not include Igoe’s
testimony as one of the several reasons why he credited Corry over DeHaan:
whatever Igoe may have meant when he stated that the portion of the couch
that he tested had burned slowly, there is nothing in that testimony that
would cast doubt on DeHaan’s opinion regarding the burn time of the fire.
Moreover, Igoe’s testimony about the couch foam did not support Corry’s
analysis over DeHaan’s or Kelder’s because, as we previously have explained,
all three experts were in complete agreement about the dynamics of the
fire and burn properties of the materials comprising the couch. Specifically,
they all agreed that the materials, including the foam inside the couch
cushions, were highly flammable and could support a powerful (high energy)
fire if there had been more oxygen in the victim’s apartment. They also
agreed that the fire, which was set on the back of the couch, not the couch
cushions, burned out before it could involve the couch cushions. Photo-
graphs of the crime scene reveal that the couch cushions were relatively
intact in comparison to the back of the couch, which was completely
destroyed, and Corry himself believed that something must have been lying
across the couch to prevent the fire from spreading to the cushions. Conse-
quently, Igoe’s testimony at the third habeas trial could have had no bearing
on the third habeas court’s evaluation of the parties’ expert testimony.
61
In none of the cases on which Justice Zarella relies to support his
contention; see, e.g., Sanchez v. Commissioner of Correction, 314 Conn.
585, 611–12, 103 A.3d 954 (2014); Anderson v. Commissioner of Correction,
313 Conn. 360, 375, 98 A.3d 23 (2014), cert. denied sub nom. Anderson v.
Semple, U.S. (83 U.S.L.W. 3678, February 23, 2015); did we have
occasion to address the exceptional situation, presented here, in which this
court is in as good a position as the trial court to judge credibility for
purposes of the Brady materiality determination. Consequently, there is
nothing in any of those cases that forecloses our de novo review of the
credibility findings of the third habeas court in the present case.
62
Of course, a defendant seeking a new trial on the basis of newly discov-
ered evidence bears a significantly higher burden of establishing the material-
ity of the evidence at issue than a defendant raising a claim under Brady
or Strickland. This is so, of course, because Brady and Strickland seek to
vindicate the defendant’s fair trial rights, whereas a new trial petition based
on newly discovered evidence does not.
63
In fact, the second step of the materiality analysis in this very case
provides such an example. Under Brady and Strickland, it must be deter-
mined whether the evidence at issue, when considered in the context of
the original trial, is of sufficient import relative to that original trial evidence
to undermine confidence in the verdict. As in all such cases, our review of
that determination is de novo because we are as well situated as the habeas
court to make that decision.
64
Justice Zarella also asserts that ‘‘[s]ubsequent cases from the Indiana
Court of Appeals appear to have limited, if not overruled, the holding in
Bunch.’’ Footnote 21 of Justice Zarella’s dissenting opinion. Our review of
the cases that Justice Zarella cites reveals otherwise. On the contrary, those
cases uniformly underscore the court’s continued support of Bunch. See,
e.g., White v. State, 978 N.E.2d 475, 481 (Ind. App. 2012) (agreeing with
court in Bunch that reviewing court should not defer to threshold admissibil-
ity finding of postconviction court when that finding did not involve credibil-
ity determination because, in such circumstances, reviewing court is ‘‘in the
same position as the trial court and therefore [is] able to independently
assess the evidence . . . without invading the province of the trial court’’
[internal quotation marks omitted]), trans. denied, 982 N.E.2d 1016 (Ind.
2013); see also Cardinal Ritter High School, Inc. v. Bullock, 17 N.E.3d 281,
291 (Ind. App. 2014) (citing Bunch approvingly for proposition that it is not
necessary for reviewing court to defer to postconviction court’s assessment
of expert’s scientific evidence when ‘‘the assessment was not based on
demeanor but on evidence that was also in front of the [reviewing] court’’).
65
Justice Zarella accuses us of posing these two examples in an attempt
to ‘‘distract’’ the reader from our ‘‘constitutional transgression’’ in the present
case. Footnote 17 of Justice Zarella’s dissenting opinion. On the contrary, we
pose them to highlight the flaws in Justice Zarella’s constitutional analysis.
Justice Zarella further explains that these ‘‘two undisputed propositions’’
merely present ‘‘mixed questions of law and fact’’ that this court previously
has acknowledged are subject to de novo review. Id. To the extent that we
understand Justice Zarella’s argument, it proves our point, first, because
neither the clearly erroneous standard nor our Kitchens waiver inquiry
represents a mixed question of law and fact, whereas the Brady materiality
standard is properly characterized in that manner. E.g., State v. Ortiz, supra,280 Conn. 720. Furthermore, although we have labeled the second prong
of the clearly erroneous standard and the Kitchens waiver test as posing
questions of law—because they are to be decided by the reviewing court,
without regard to any findings by the trial court—they undeniably involve
fact-finding of the most basic kind, and Justice Zarella makes no attempt
to demonstrate otherwise. Of course, we are not now questioning our author-
ity to make the kind of findings required in those two examples; we note
them, rather, because they are manifestly inconsistent with Justice Zarella’s
insistence that our exercise of de novo review in the present case is some-
how unconstitutional.
66
Such a claim is also belied by the record because DeHaan actually
testified that exposure to 300 or 400 degree temperatures for any period of
time ‘‘would . . . give you second, third degree burns . . . .’’
67
Justice Zarella asserts that ‘‘[t]he majority attempts to reconcile
DeHaan’s testimony on this point by claiming that DeHaan, in stating that
one could have approached the fire and extinguished it, meant that one could
have approached the fire if one were wearing proper protective equipment.
Curiously, however, no such qualification appears in DeHaan’s testimony
on this point—the majority has simply made this up out of whole cloth.’’
Footnote 27 of Justice Zarella’s dissenting opinion. Although it certainly is
true that no such qualification appears in DeHaan’s testimony, this is only
because none was sought by the parties, presumably because they did not
perceive the need for one. We also do not believe that an explanation is
required because, unlike Justice Zarella, we do not read DeHaan’s testimony
concerning the fire’s energy level in isolation so as to render it nonsensical
or absurd. Rather, we read it in the context of DeHaan’s entire testimony,
including his testimony that Tomkunas was unable to enter the victim’s
apartment because he lacked the proper attire and breathing equipment,
and not because the fire was of such magnitude as to preclude entry by a
properly equipped firefighter. Indeed, it was undisputed among the experts
that the fire never spread beyond the couch and was reduced to a smoldering
fire quickly due to decreasing levels of oxygen.
68
We note that Justice Zarella also argues that the third habeas court
‘‘was fully justified in concluding that Kelder’s opinion would be excluded
from a criminal trial altogether’’ because ‘‘[t]he petitioner did not provide
any evidence to show that Kelder used scientifically valid methods to investi-
gate the fire, rendering his testimony not credible and inadmissible.’’ For
the reasons that we previously discussed; see footnote 59 of this opinion;
we reject Justice Zarella’s contention that the third habeas court concluded
that Kelder’s testimony was inadmissible. Nor is there any support in the
record for Justice Zarella’s contention concerning the admissibility of Keld-
er’s testimony. Even if Justice Zarella is correct, a jury only would have to
credit one of the petitioner’s experts to conclude that it was temporally
impossible for the petitioner to have committed the crimes with which he
was charged.
69
Justice Espinosa also has issued a dissenting opinion. To the extent
that her opinion purports to raise any relevant points of law, they are
identical to those raised by Justice Zarella, whose dissenting opinion we
already have addressed. Thus, no substantive response to Justice Espinosa
is called for. We are constrained, however, to make the following brief
observation. It often has been repeated and long understood that the princi-
pal purpose of the ‘‘great writ’’ of habeas corpus, which traces its origins
to the Magna Carta, is ‘‘to serve as a bulwark against convictions that violate
fundamental fairness.’’ (Internal quotation marks omitted.) Luurtsema v.
Commissioner of Correction, 299 Conn. 740, 757, 758, 12 A.3d 817 (2011).
‘‘Because the writ is intended to safeguard individual freedom against arbi-
trary and lawless state action, it must be administered with the initiative
and flexibility essential to [e]nsure that miscarriages of justice within its
reach are surfaced and corrected.’’ (Internal quotation marks omitted.) Id.,757–58. Today, a majority of this court, applying those venerable legal princi-
ples following a scrupulous and objective review of the trial record, upholds
the decision of a unanimous panel of the Appellate Court in concluding
simply that the state’s Brady violation, and the failure of the petitioner’s
habeas counsel to recognize that violation, entitles the petitioner to a
new trial.
Justice Espinosa reaches a different conclusion, which, of course, is her
right. Rather than support her opinion with legal analysis and authority,
however, she chooses, for reasons we cannot fathom, to dress her argument
in language so derisive that it is unbefitting an opinion of this state’s highest
court. Perhaps worse, her interest lies only in launching groundless ad
hominem attacks and in claiming to be able to divine the (allegedly improper)
personal motivations of the majority. We will not respond in kind to Justice
Espinosa’s offensive accusations; we are content, instead, to rely on the
merits of our analysis of the issues presented by this appeal. Unfortunately,
in taking a different path, Justice Espinosa dishonors this court.
70
This court has long recognized that ‘‘confessions represent the most
damaging evidence of guilt . . . . State v. Ruth, 181 Conn. 187, 199, 435
A.2d 3 (1980); see also State v. Patterson, 276 Conn. 452, 473, 886 A.2d 777(2005) (evidence regarding an accused’s admission of guilt generally is
extremely important to the state and damaging to the accused); Common-
wealth v. DiGiambattista, 442 Mass. 423, 446, 813 N.E.2d 516 (2004) ([t]here
is no dispute that the evidence of a defendant’s alleged statement or confes-
sion is one of the most significant pieces of evidence in any criminal trial).’’
(Citation omitted; internal quotation marks omitted.) State v. Lockhart, 298
Conn. 537, 596, 4 A.3d 1176 (2010); see also Colorado v. Connelly, 479 U.S.
157, 182, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986) (‘‘[t]riers of fact accord
confessions such heavy weight in their determinations that the introduction
of a confession makes the other aspects of a trial in court superfluous, and
the real trial, for all practical purposes, occurs when the confession is
obtained’’ [internal quotation marks omitted]); Ex parte Soffar, Texas Court
of Criminal Appeals, Docket Nos. WR-29 980-03, WR-29 980-04 (Tex. Crim.
App. October 3, 2012) (‘‘Juries routinely accept the notion that an innocent
person would never confess to a crime he didn’t commit; therefore, if a
person has confessed, he must be guilty. . . . Unfortunately, that common-
sense position is not necessarily accurate. Legal literature is littered with
cases in which innocent people confess to crimes that they have not commit-
ted. . . . [O]nce a confession is introduced into evidence against a suspect
at trial, it almost inevitably leads to a suspect’s conviction. [Indeed] . . .
[s]tudies show that individuals who falsely confessed and chose to take
their cases to trial were [found guilty] by juries [73 to 81 percent] of the
time before having their innocence proven.’’ [Footnotes omitted; internal
quotation marks omitted.]); M. Berger, ‘‘False Confessions—Three Tales
from New York,’’ 37 Sw. U. L. Rev. 1065, 1067 (2008) (‘‘No one doubts that
confessions have an enormous impact. Once jurors hear the defendant
confessed, the result is likely to be a guilty verdict regardless of [the]
defendant’s attempted explanation. The notion that an innocent suspect will
admit to committing a crime is deeply counter to most persons’ assumptions
about how they would respond if falsely accused. . . . [F]ew, if any phenom-
ena of human behavior . . . are less intuitive than that of false confessions.’’
[Footnote omitted; internal quotation marks omitted.]).
71
Shortly after Lombardo took over the investigation of the murder and
sexual assault of the victim, he obtained a saliva sample from Brad Thomas,
a suspect in another sexual assault case. Test results revealed that Thomas,
like the petitioner, also was a secretor with type A blood. According to
Lombardo, Thomas was eliminated as a suspect because there were sperm
in the semen sample from the sex crime kit in the other sexual assault case
in which he had been charged. This fact might not eliminate Thomas as a
source of the semen at the crime scene. See footnote 73 of this opinion.
72
Although there is no evidence in the record concerning the age of the
stain, it always has been assumed that it was left by the killer and, therefore,
that the killer is a secretor with type A blood.
73
Novitch testified that ‘‘[a]n ejaculation is not a homogeneous mixture,’’
and because ‘‘the sperm cells [that contain DNA] are heavy,’’ they frequently
do not combine with the other components of the semen. As a result, Novitch
further explained: ‘‘[V]ery often, when I find a seminal stain, there isn’t any
sperm in that . . . stain,’’ even though the donor’s semen does, in fact,
contain sperm.
In addition, John Coleman, a forensic scientist employed by Life Codes
Corporation, also examined the semen stain from the victim’s bedspread.
Testifying on behalf of the state, he explained that heat will degrade the
DNA in semen such that, ‘‘at 100 degrees, [it] would certainly affect the
DNA molecule.’’ As we previously indicated, the parties’ fire experts testified
at the third habeas trial that temperatures inside the victim’s apartment
likely reached 400 to 600 degrees during the fire.
74
See, e.g., State v. Perea, supra, 322 P.3d 642–44 and nn.10–18 (discussing
some of extensive literature on false confessions and factors likely to pro-
duce them); B. Garrett, ‘‘The Substance of False Confessions,’’ 62 Stan. L.
Rev. 1051, 1060 (2010) (‘‘Over the past two decades, scholars, social scien-
tists, and writers have identified at least 250 cases in which they determined
that people likely falsely confessed to crimes. New cases are regularly
identified.’’); D. Harkins, ‘‘Revisiting Colorado v. Connelly: The Problem of
False Confessions in the Twenty-First Century,’’ 37 S. Ill. U. L.J. 319, 320
(2013) (‘‘[T]he advent of DNA testing has provided a powerful new way to
conclusively demonstrate that false confessions occur much more frequently
than was previously understood. . . . In fact, recent studies have illustrated
that roughly one-fourth of all DNA exonerations involved a false admission
of guilt—a staggering figure that is indicative of the power of confession
evidence.’’).
75
Although the trial court found that the petitioner was not actually in
police custody when he made his statements, the interrogation, which took
place at the station house at the request of the police, lasted nine hours,
and the petitioner did not leave until he was told to do so in the early
morning hours of the following day. These circumstances, coupled with the
petitioner’s mental impairment, gave rise to a scenario that, in many respects,
was akin to custodial interrogation. See, e.g., State v. Mangual, 311 Conn.
182, 193, 85 A.3d 627 (2014) (‘‘[a]s used in . . . Miranda [and its progeny],
‘custody’ is a term of art that specifies circumstances that are thought
generally to present a serious danger of coercion’’ [internal quotation marks
omitted]); see also In re Kevin K., 299 Conn. 107, 127, 7 A.3d 898 (2010)
(explaining that ‘‘[a] person is in custody . . . if, in view of all the sur-
rounding circumstances, a reasonable person would have believed [that] he
was not free to leave’’ [internal quotation marks omitted]).
76
Significantly, in 2011, our legislature sought to address the growing
concern over false and coerced confessions by enacting Public Acts 2011,
No. 11-174, § 1 (P.A. 11-174), codified at General Statutes § 54-1o, which
mandates that all custodial interrogations of persons suspected of commit-
ting certain enumerated felonies be electronically recorded. Public Act 11-
174, § 1, became effective January 1, 2014.
77
Brooks, Lombardo’s commanding officer, testified that, prior to their
interrogation of the petitioner, he and his officers had heard ‘‘from a number
of people’’ that the petitioner ‘‘was slightly retarded . . . .’’ According to
Brooks, the petitioner was always ‘‘friendly’’ and ‘‘talkative’’ but did not
‘‘impress [him] . . . as being an intellectually bright individual . . . .’’ He
was, according to Brooks, ‘‘different . . . .’’ When asked to explain in what
way the petitioner was different, Brooks responded: ‘‘One primary factor
is that [he] did not drive a car. [There is] [n]o law against that, but [it is]
highly unusual in our society today.’’ Brooks also noted that the petitioner
‘‘moved from job to job, and they were primarily low paying, low skilled
type of jobs.’’
78
The petitioner was fifteen years old when he developed a condition,
related to Dandy-Walker syndrome, that required him to undergo five surger-
ies to relieve intercranial pressure.
79
For example, Thomas Moriarty, an attorney from Manchester, testified
that the petitioner and Martin, his wife, were regular customers at the
supermarket Moriarty managed during law school. According to Moriarty,
the petitioner was ‘‘very simple,’’ ‘‘more like a child inside a man’s body.’’
Moriarty testified that the petitioner was ‘‘really a jolly little . . . guy, you
know. He was kind, and he was courteous. But . . . he was very simple.
And his wife, frankly, came across the same way.’’ Moriarty testified that
the petitioner was so gullible that, when he told him that the bananas sold
in the store were grown on trees located behind the store, the petitioner
asked repeatedly if Moriarty would show him the trees.
According to Robert Russo, a priest at Saint Bridget Church in Manchester,
it was ‘‘readily apparent’’ to anyone who knew the petitioner that his ‘‘mental
capacity was not up to par.’’ Russo stated that, although people teased the
petitioner quite a bit about it, he ‘‘took [it] in a very [kind] way. He would
laugh about it [and] joke about it. . . . [People] obviously knew he was
slow, and they would try to engage him in conversation that was far above
his mental abilities. And [the petitioner] would always try to respond. But,
of course, he couldn’t do it. And so they would laugh at that, make jokes
about it.’’
Michael Andreo, the owner of a supermarket at which the petitioner
worked for several years, testified that the petitioner was ‘‘[m]entally . . .
incapable’’ of running a cash register or even stocking shelves. ‘‘He tried to
stock shelves,’’ but he would ‘‘get mixed up’’ and put things in the wrong
place.
Elizabeth Martin, the petitioner’s mother-in-law, testified that both the
petitioner and his wife had the mentality of ‘‘eight year old[s] . . . .’’ When
asked how they were able to function at home if this were the case, Elizabeth
Martin responded: ‘‘Well, I hate to hurt [the petitioner’s] feelings, but not
great. . . . [The petitioner’s wife] couldn’t really do housework [because
of her physical disability]. So, it was . . . left to [the petitioner]. And most
things . . . my husband [had] to [do for them]. A lot of the things [in the
house] . . . were broken . . . . [The petitioner] was awkward. He wasn’t
well coordinated.’’
80
The petitioner was evaluated by the following mental health profession-
als and physicians: Kenneth M. Selig, a forensic psychiatrist in private prac-
tice; Anne M. Phillips, a clinical psychologist in private practice; Walter M.
Phillips, chief of psychology at Waterbury Hospital and a member of the
faculty at Yale University; Geraldine R. Cassens, a neuropsychologist at the
Institute of Living in the city of Hartford; Gus Anderson, a neurologist in
private practice; and Donald R. Grayson, a psychiatrist in private practice.
Reports were obtained from all of these experts and introduced at various
stages of the proceedings.
81
At trial, Grayson testified that the petitioner’s higher than expected IQ
score on a test administered by Anne M. Phillips was the result of the
petitioner’s ability to ‘‘[memorize] a great deal of ‘ice cream knowledge,’ ’’
such as state capitals, information that makes him appear more intelligent
than he really is but does little to help him navigate or function in the day-
to-day world.
82
As this court explained in its decision in the petitioner’s direct appeal
from the judgment of conviction, ‘‘[i]n order to counter the [petitioner’s]
experts’ opinions concerning the [petitioner’s] possible inability to assert
himself and their testimony that the [petitioner] might be meek and highly
suggestible, the state presented several witnesses, both at the suppression
hearing and during rebuttal at trial, who testified that, in view of their
personal experiences with the [petitioner], they found him to be extremely
independent, assertive, argumentative and even hot tempered.’’ State v.
Lapointe, supra, 237 Conn. 723. Upon review of the aformentioned testi-
mony, however, it is clear that only one of the witnesses, the petitioner’s
former neighbor, described the petitioner as argumentative and hot tem-
pered. On appeal, the respondent relies on the testimony of this witness—
who claims that the petitioner once stomped her flowers into the ground
in a fit of pique because the flowers were planted in violation of their
condominium association’s rules—in support of the argument that, even if
the original jury had considered the original trial evidence together with
the new alibi evidence, there is no reasonable probability that the result
would have been different. As we explain more fully hereinafter, the testi-
mony of the petitioner’s neighbor, like the testimony of the state’s other
rebuttal witnesses, most of whom were members of the victim’s family,
does not instill confidence in the verdict. To the contrary, most of it strongly
reinforced the testimony of defense witnesses that the petitioner is a socially
odd and childlike man, with a very rigid approach to life.
83
Lombardo testified at length regarding the petitioner’s body language
during the interrogation. Lombardo told the jury that, in his experience, the
petitioner’s passivity and failure to object loudly, as well as the way he sat
in ‘‘a runner’s position’’ and wrung his hands, was indicative of ‘‘someone
who [was] being deceptive or trying to hide something.’’ It bears mention,
however, that, at the petitioner’s first habeas trial, Richard Leo, a leading
authority on police interrogation methods and false confessions, testified
that the commonly held belief among police officers that deception can
be determined merely by observing someone’s body language is ‘‘totally
pseudoscientific . . . . [I]f somebody is slumped over, if somebody is pas-
sive, if somebody utters quiet denials, if somebody is in a runner’s position,
somebody is sweating, evasive or nervous, that is not necessarily indicative
of guilt . . . .’’ Leo’s observation that the police officers make poor lie
detectors has been confirmed in a number of recent studies. See, e.g., G.
Gudjonsson, ‘‘False Confessions and Correcting Injustices,’’ 46 New Eng. L.
Rev. 689, 696 (2012) (‘‘[c]oncerns have been raised that the [Reid behavioral
analysis interview] indicators represent little more than common-sense
beliefs about deception that are contradicted by scientific studies and place
innocent . . . suspects at risk of being misclassified and giving a false
confession’’); R. Leo, ‘‘False Confessions: Causes, Consequences, and Impli-
cations,’’ 37 J. Am. Acad. Psychiatry L. 332, 334 (2009) (‘‘[S]ocial scientific
studies have repeatedly demonstrated across a variety of contexts that
people are poor human lie detectors and thus are highly prone to error in
their judgment about whether an individual is lying or telling the truth. Most
people get it right at rates that are no better than chance [that is, 50 percent]
or the flip of a coin. Moreover, specific studies of police interrogators have
found that they cannot reliably distinguish between truthful and false denials
of guilt at levels greater than chance; indeed, they routinely make erroneous
judgments. The method of behavior analysis taught by [one well established]
police training firm . . . has been found empirically to lower judgment
accuracy, leading [two researchers] to conclude that the [foregoing method
of behavior analysis] may not be effective—and, indeed, may be counterpro-
ductive—as a method of distinguishing truth and deception . . . .’’ [Citation
omitted; footnotes omitted; internal quotation marks omitted.]); J. Masip et
al., ‘‘Is the Behaviour Analysis Interview Just Common Sense?,’’ 25 Applied
Cognitive Psychol. 593, 595 (2011) (‘‘[T]he behavioural indicators of decep-
tion [established by earlier research] do not coincide with the scientific
evidence accumulated over several decades of [more recent] empirical
research. . . . [More recent research reveals] that observers’ accuracy in
judging the veracity of truthful and deceptive [video-recorded] statements
was lower if the observers had previously been trained to detect deception
using . . . cues [established by that earlier research] than if they had not
been trained.’’ [Emphasis in original.]). We acknowledge Leo’s testimony
and the foregoing related scholarly articles merely to point out that any
testimony by Lombardo at a new trial concerning the petitioner’s purportedly
incriminating body language may well be subject to substantial impeach-
ment, thereby minimizing or even eliminating whatever adverse effect that
testimony might have had on the petitioner at his criminal trial.
84
As we discuss more fully in footnote 91 of this opinion, the witness to
whom Lombardo was referring, King, the victim’s next door neighbor, testi-
fied at the petitioner’s criminal trial that she never told Lombardo or anyone
else that she had seen the petitioner walking his dog near the victim’s
apartment on the evening of the victim’s murder.
85
As the petitioner contends, a secretly recorded interview of Martin by
Morrissey, which came to light after Morrissey had testified at the hearing
on the petitioner’s motion to suppress, provides strong support for the
petitioner’s account of his own interrogation. Specifically, the audio
recording demonstrates that Morrissey threatened Martin with arrest and
repeatedly told her that she could lose custody of her son if she did not
provide Morrissey with incriminating information about the petitioner.
Because the recording came to light while the suppression hearing was
ongoing, the trial court, Barry, J., permitted the petitioner’s trial counsel to
recall Morrissey to be questioned about the recording and the discrepancies
between it and Morrissey’s earlier testimony regarding his interview of
Martin. At that time, Morrissey acknowledged that, when he first appeared
as a witness, and in the affidavit that was filed in support of the application
for the petitioner’s arrest warrant, Morrissey provided inaccurate and mis-
leading testimony concerning his interview of Martin and the statements
she gave during that interview. Indeed, we have reviewed the suppression
hearing testimony that Morrissey provided both before and after the disclo-
sure of the recording, as well as the recording itself, and we are compelled
to observe that the numerous discrepancies between Morrissey’s original
account of his interview with Martin and what actually transpired during
that interview as reflected in the recording are very troubling and call into
serious question the credibility of one of the state’s key witnesses. In his
amended habeas petition, the petitioner alleged that his trial counsel pro-
vided ineffective assistance by failing to present the recording to the jury
to impeach Morrissey’s testimony and to establish that the petitioner’s con-
fession was coerced and false. The third habeas court rejected this claim,
concluding, inter alia, that, although the recording was ‘‘laden with implicit
threats’’ to Martin, trial counsel’s failure to use it at trial was a ‘‘tactical
decision’’ that did not rise to the level of ineffective assistance of counsel,
a determination that the petitioner challenged on appeal to the Appellate
Court. The Appellate Court did not reach this issue, however, in light of its
determination that the petitioner was entitled to a new trial on the basis of
the state’s suppression of the Ludlow note. See Lapointe v. Commissioner
of Correction, supra, 138 Conn. App. 479–80 n.22. On appeal to this court
following our granting of certification, the petitioner raises as an issue his
trial counsel’s failure to present the recording of Morrissey’s interview of
Martin as an alternative ground for affirmance. Like the Appellate Court,
we need not reach this issue in light of our determination that the petitioner
is entitled to a new trial due to the state’s suppression of the Ludlow note.
We agree with the Appellate Court, however, that it is difficult to discern
why trial counsel would not have presented this evidence to the jury ‘‘when
the stated trial strategy was to demonstrate the falsity of the petitioner’s
statements’’; id., 480 n.22; and when the evidence bore so directly on the
credibility of Morrissey, the officer who had elicited the most incriminating
statement from the petitioner and whose truthfulness and reliability regard-
ing the circumstances under which that statement was elicited were critical
to the state’s case.
Furthermore, notwithstanding the third habeas court’s ruling, we have
little doubt that the petitioner’s counsel will make effective use of the
recording at a new trial, if the state elects to retry the petitioner, both to
impeach Morrissey’s credibility and to bolster the petitioner’s claim that the
burn time estimates provided by DeHaan and Kelder prove that it was
temporally impossible for the petitioner to have committed the crimes of
which he was convicted because the testimony of DeHaan, Kelder and
Martin provides him with a complete and compelling alibi.
86
For present purposes, our focus, of course, is the import of the burn
time evidence relative to the strength of the case that the state presented
against the petitioner; see, e.g., Rocha v. Thaler, 619 F.3d 387, 396 (5th Cir.
2010) (‘‘[t]he materiality of Brady material depends almost entirely on the
value of the evidence relative to the other evidence mustered by the state’’
[internal quotation marks omitted]), cert. denied, U.S. , 132 S. Ct.
397, 181 L. Ed. 2d 255 (2011); a case that, as we have explained, was
predicated largely on his statements to the police. As we also have explained,
a real concern arises over the reliability of the petitioner’s admissions in
light of his physical and mental impairments, the nature and substance of
his admissions, and the manner in which they were obtained. Indeed, this
commonsense concern has been substantiated by numerous articles and
studies on false confessions that have been published in the more than
two decades that have passed since the petitioner’s criminal trial. We also
acknowledge the testimony of Richard Leo, a much published and frequently
cited expert on false confessions—his research on false confessions has
been cited by numerous courts, including the United States Supreme Court—
who testified at the petitioner’s first habeas trial in support of the petitioner’s
claim of actual innocence. Following a hearing at which the first habeas
court determined that Leo’s proffered testimony was both reliable and rele-
vant, Leo testified that false confessions have certain telltale signs. For
example, he noted that a classic interrogation tactic is ‘‘to suggest to the
suspect that it was merely an accident, because it lowers the level of culpabil-
ity. . . . It gives the suspect a way to believe that they’re either not going
to get punished or they [will] get a lesser level of punishment. [The] police
are trained in this technique. It’s one of the most common techniques.’’ Leo
explained that, whenever a suspect confesses to a crime by claiming that
it was an accident, as the petitioner did in the present case, it is safe to
assume that the interrogator put the idea into the suspect’s head. Leo further
testified that the petitioner’s repeated reference to having no memory of
the crime and statements to the effect that his mind must have gone blank
are other strong indicators of a false confession. In most false confession
cases, Leo explained, a suspect gets to a point at which he ‘‘stop[s] challeng-
ing the evidence and . . . come[s] to doubt the reliability of [his] memory,
and [he] come[s] to make statements like, ‘well, maybe I was blacking out’
. . . . [He tries] to understand [how] it’s possible that [he] could have done
this with [no] recollection or memory of having done it, and [he will] say
things like [the petitioner said in the present case]: ‘Maybe my mind went
blank; maybe that’s what happened . . . .’ ’’ Leo also was troubled by the
highly equivocal nature of the petitioner’s statements: ‘‘[The petitioner states
in the second statement], ‘I probably made a pass at her and she said no.’
People who come to doubt their memory because of the [false] evidence
ploy, because they’re gullible, because they’re naive and believe [that the]
police wouldn’t lie to them [about the evidence] . . . talk in conditional
and ambivalent language: I probably did this; I could have done that; I must
have done this; I would have done that. They express uncertainty in how
they describe or admit to something, and that uncertainty essentially demon-
strates their absence of actual knowledge. They’re speculating about some-
thing.’’ Leo also observed: ‘‘The next line is, ‘if the evidence shows I was
there and that I killed her, then I killed her, but I don’t remember being
there.’ Again, this is the kind of reasoning someone goes through when [he]
come[s] to doubt [his] memory. I don’t remember doing it, but, if the evidence
is there, I must have done it.’’ According to Leo, ‘‘this is how innocent
false confessors who lack the actual knowledge of how the crime occurred
[confess]. They talk in conditional language . . . .’’
Leo further noted that all three of the petitioner’s statements ‘‘contained
factual errors that shouldn’t be there if it’s a confession of a truthful person.
. . . [The petitioner] says that he strangled her manually, but, apparently,
she was not strangled manually. He [says] that he physically raped her, but
. . . there was no penile rape. These are errors. He says he tied her up with
rope initially, but she was not tied up with rope. These are the kinds of
errors that guilty people don’t make. . . . Conversely, when one looks at
false confession cases, these are exactly the kind of errors that innocent
false confessors make because they demonstrate a lack of actual knowledge.
They communicate ignorance. In the typical false confession case, [in which]
something like this occurs, the false confessor is guessing. They’re trying
to infer what occurred, they’re trying to feed back the information that they
have ascertained, or they’re just making it up, and they get it wrong.’’ In
this regard, we deem it noteworthy that, when Lombardo was asked how
the petitioner responded when Lombardo confronted him with the fact
that a witness purportedly had seen him walking his dog near the victim’s
apartment at 7 p.m., Lombardo stated that the petitioner had simply ‘‘agreed’’
that the information that the witness provided was accurate, even though, as
we explained in footnotes 84 and 91 of this opinion, no such witness existed.
Of course, Leo did not testify at the petitioner’s criminal trial. Thus, we
do not rely on his habeas testimony in evaluating the strength of the state’s
case at the petitioner’s criminal trial. We recite that testimony, rather, only
to underscore our conclusion, which is predicated on the nature of the
petitioner’s admissions and the circumstances under which they were
obtained, that his admissions are unreliable, a claim that the petitioner’s
trial counsel raised at his criminal trial.
87
The respondent also argues that a jury likely would discount the petition-
er’s alibi in light of Martin’s suppression hearing testimony that she could
not account for the petitioner’s whereabouts between 6:15 and 7 p.m. Specifi-
cally, the respondent argues that ‘‘Martin’s account changed every time she
officially spoke about [the] petitioner’s whereabouts,’’ which will ‘‘[reflect]
poorly [on] her credibility.’’ We reject this argument because it ignores the
context in which Martin’s testimony was elicited. At the hearing, Martin
was asked by the state, ‘‘from the time you began to get your son ready for
bed, until the time you came down with your son to watch [television], did
you see your husband at all?’’ Martin responded, ‘‘No. I did not.’’ The state
then asked Martin whether she knew ‘‘where he was’’ during that time. Martin
responded: ‘‘He was downstairs.’’ The following colloquy then took place.
‘‘Q. Do you know he was inside the house during the whole time or not?
‘‘A. I don’t know, I guess.
‘‘Q. . . . So, if he’d been outside of the house during that time, you
wouldn’t have known it, is that fair to say?
‘‘A. Yes.
‘‘Q. . . . And you have no way of knowing whether he stayed in the house
during that time or whether he left? Is that fair to say?
‘‘A. I guess. . . . That’s fair, so yes.
***
‘‘Q. . . . And I take it that’s not something that occurred to you when
you talked to [Detective Morrissey], that [the petitioner] might have left
[while you were upstairs] . . . ?
‘‘A. No. . . . I didn’t even think of that.
‘‘Q. . . . So, you just assumed he was home because you didn’t . . .
know any different?
‘‘A. [Yes].
‘‘Q. . . . But you didn’t see him at all during that bedtime procedure with
your son . . . ?
‘‘A. No. I did not. . . . I assumed he was home.
‘‘Q. . . . And you wouldn’t know, one way or the other?
‘‘A. No.’’
Contrary to the respondent’s contention, we believe that a jury readily
could conclude that it had never had occurred to Martin, until the state
presented the idea to her at the suppression hearing, that the petitioner had
slipped out of the house and, while Martin was upstairs getting their son
ready for bed, walked to the victim’s apartment, sexually assaulted and
murdered her, and set her apartment on fire, and then returned home before
Martin came downstairs, looking and acting no differently than when she
had seen him thirty to forty-five minutes earlier.
88
We note that, in support of his contention that the state’s case against
the petitioner was founded on ‘‘compelling evidence of guilt,’’ the respondent
quotes extensively from our statement of the facts in State v. Lapointe,
supra, 237 Conn. 696–702, in which we recited the facts that the jury reason-
ably could have found. It is apparent from even a cursory review of that
factual recitation that we set forth those facts in the light most favorable
to the state, even though the petitioner had made no claim of evidentiary
insufficiency. The petitioner’s direct appeal afforded us no opportunity to
assess the strength of the state’s case; because our current task is to deter-
mine the importance of the suppressed evidence in relation to the strength
of the state’s evidence at the petitioner’s criminal trial, we examine that
evidence objectively rather than in the light most favorable to the state.
See, e.g., Kyles v. Whitley, supra, 514 U.S. 441–54 (affording no deference
to government’s theory of guilt when reviewing original trial evidence to
determine materiality of Brady material); Tice v. Johnson, 647 F.3d 87, 110
(4th Cir. 2011) (‘‘[the court is] not bound . . . to view the facts in the light
most favorable to the prosecution’’).
89
At the petitioner’s criminal trial, the court allowed the petitioner to
introduce into evidence numerous articles from The Hartford Courant and
The Journal Inquirer, a Manchester newspaper, for the limited purpose of
establishing that, contrary to the state’s contentions, it was widely known
that, within days of the victim’s murder, the victim had been sexually
assaulted. Some of the articles contain information concerning a sexual
assault in the town of South Windsor and the similarities between that crime
and the victim’s murder. Merrill, a career criminal who was released from
prison one month before the victim’s murder, was immediately arrested for
the South Windsor sexual assault. In one of the articles, Merrill was described
by Edward Daily, a lieutenant and spokesperson for the Connecticut State
Police, as ‘‘ ‘one of the most evil men’ ’’ that Daily ever had encountered.
S. Jensen, ‘‘Police: ‘Peanut Butter Bandit’ No Joke,’’ Journal Inquirer, March
13, 1987, p. 18. According to the same article, Merrill was questioned in
connection with the victim’s murder because of the similarities between
the two crimes and their close proximity to one another. See id.We note, in addition, that, in his first habeas petition; see footnote 17 of
this opinion; the petitioner alleged ineffective assistance of trial counsel on
the basis of their failure to utilize available evidence to raise a third-party
culpability defense. In support of this claim, the petitioner presented the
testimony of Paulette DeRocco, a Manchester resident, who stated that, on
March 9, 1987, the day after the murder, she contacted the police to inform
them that, at approximately 8 p.m. the night before, she and her two teenaged
children were driving past the victim’s apartment complex on their way
home when they saw a man running from the complex ‘‘like he was being
chased by a pack of dogs.’’ DeRocco had to slam on her brakes to avoid
hitting him. According to DeRocco, the man was wearing ‘‘dark . . . mainte-
nance worker’s type clothes’’ and appeared ‘‘disheveled with [his] shirttail
partially out.’’ DeRocco told the police that she and her children watched
the man running down the street until he disappeared behind a building.
DeRocco contacted the police as soon as she heard about the victim’s
murder because she thought that there might be a connection between the
crime and the man she had seen fleeing the immediate vicinity of the crime
scene. According to DeRocco, when she and her children arrived home on
the night of the victim’s murder, ‘‘the sirens were going off’’ in town, and
she remembered thinking that it was strange that they would go off right
after she had observed someone so suspicious. The description that DeRocco
gave of the man she saw running from the victim’s apartment complex bore
no resemblance to the petitioner. DeRocco testified that the police took
her statement and asked her to review photographs of possible suspects,
but she was unable to identify anyone. The first habeas court rejected the
petitioner’s claim concerning his trial counsel’s failure to raise a third-party
culpability defense on the ground that DeRocco’s testimony was insufficient
to link the unidentified person to the victim’s murder. See Lapointe v.
Warden, supra, Superior Court, Docket No. CV-97-0571161. The petitioner
did not challenge this determination or any of the first habeas court’s other
determinations concerning the claims alleged in the first habeas petition on
appeal. We express no view with respect to the admissibility of this third-
party culpability evidence at a new trial.
90
The respondent identifies a litany of other purportedly unusual and
suspicious conduct by the petitioner that the state argued at trial was evi-
dence of his guilt, including the following: (1) the petitioner used King’s
front door rather than her back door when he went to use her telephone,
even though King’s back door was closer to the victim’s apartment; (2)
when the petitioner first used King’s telephone, he called Martin and Howard
rather than the fire department, even though, following the victim’s murder,
he told a police officer that he thought he smelled smoke while on his way
over to the victim’s apartment and that the door was warm to the touch;
(3) the petitioner told Howard that the back door was locked when he
arrived at the victim’s apartment, even though firefighters found it unlocked;
(4) the petitioner did not inform the first firefighter on the scene that the
apartment was ‘‘occupied by an elderly and sickly relation’’ but, instead,
yelled, ‘‘ ‘[t]his is it; this is the place’ ’’; (5) over the years, the petitioner
peppered the police with questions about the status of the investigation and
whether he was a suspect in the case; and (6) the petitioner testified that
he may have walked his dog a second time on the day of the murder and
allegedly told a family friend that he visited the victim several times on the
day of the murder. Suffice it to say that we do not believe that a jury would
necessarily find any of this conduct particularly odd or suspicious, even for
the average person, and would likely find it much less so for the petitioner,
a person who, by all accounts, is easily confused and does not perceive or
respond to things in the ordinary way.
91
The weakness of the state’s case is further demonstrated by the respon-
dent’s reliance on the testimony of King, the victim’s neighbor, who, the
respondent argues, ‘‘testified that she had seen the petitioner walking his
dog near the victim’s apartment shortly after 7 p.m. on the day [of the
victim’s murder].’’ A review of the record reveals, however, that King did
not testify that she saw the petitioner walking his dog near the victim’s
apartment at 7 p.m. Rather, Lombardo testified that King told him, two
years after the murder, that she had seen the petitioner walking his dog at
7 p.m. King, however, at both the hearing on the petitioner’s motion to
suppress and at the petitioner’s criminal trial, strenuously denied ever telling
Lombardo any such thing. King stated that the only time she saw the peti-
tioner on the day of the murder was when he came to her apartment to use
the telephone, first to call Martin and Howard, and then, a few minutes
later, to call the fire department.
The respondent’s reliance on such purported facts does not end with
King’s testimony. For example, the respondent contends that ‘‘the jury had
evidence, in the form of the results of psychological testing, that the peti-
tioner may have been a person who: was overly sensitive to criticism; reacted
to even minor problems with anger and hostility; tended to externalize
blame; bore grudges and worked to get even with those he perceived to
have wronged him; and exhibited sexual deviation.’’ In support of this con-
tention, the respondent cites the testimony of Anne M. Phillips, one of the
psychologists who examined the petitioner following his arrest. See footnote
80 of this opinion. A review of Phillips’ testimony, however, reveals that it
provides no support for the respondent’s assertions. According to Phillips,
the test results at issue were the petitioner’s raw scores on the Minnesota
Multiphasic Personality Inventory (MMPI) test, an examination consisting
of 567 true or false questions that she administered to the petitioner following
his arrest. Phillips explained that the computer program that scores the test
is designed to flag any potential areas of concern, regardless of whether
they are applicable to the test taker, and that it is the clinician who ultimately
determines their applicability. Phillips explained that the test does not take
into account the individual circumstances of the test taker, which bear
heavily on how the test results are interpreted by the test administrator.
For example, Phillips explained that a patient may score high on the depres-
sion scale, but, if the clinician knows that the test taker’s mother recently
died, the score is interpreted in light of the test taker’s grief related to that
loss. With respect to the petitioner, Phillips explained that it would be highly
unusual for a person, incarcerated for a crime that he says he did not commit
and facing a possible death sentence, not to score high on the anger or
paranoia scales. As for sexual deviancy, Phillips further explained that there
is only one question on the MMPI test that relates to sexuality, and the answer
is recorded under a category labeled ‘‘Sexual Concern and Deviation.’’ The
question is: ‘‘I wish I [was] not bothered by thoughts of sex.’’ Because the
petitioner answered ‘‘true’’ to this question, sexual concern or deviation
was flagged as a potential area of concern. Phillips stated that, on the basis
her follow-up discussions with the petitioner, she ruled out any problems
relating to sexual deviancy. Indeed, according to Phillips, the Megargee
typology section of the MMPI test, ‘‘a system developed for classifying
incarcerated inmates according to their degree of psychological disturbance,
their adjustment to incarceration, their propensity for impulsive and danger-
ous behavior, and the most appropriate form of incarceration and treatment,’’
classified the petitioner ‘‘as . . . Type I . . . . which is . . . considered
to be the most stable and most benign of the ten Megargee profiles.’’ Phillips
explained that ‘‘it’s a profile that is an essentially normal one . . . . [I]ndi-
viduals matching [this] . . . profile tend . . . not to be convicted [of]
crimes of an impulsively hedonistic nature, and their problems do not appear
to stem from difficulties in interpersonal adjustment or from psychopathol-
ogy. Offenders matching this type tend to have a more ‘benign’ record
than other convicted felons. . . . There appears to be no pressing need for
psychological treatment and restrictive administrative management . . . .
Research supports the view that Type I inmates tend to adjust well to
prison and present few disciplinary problems.’’ According to Phillips, prison
officials rely on a prisoner’s Megargee typology in determining his or her
status as an inmate.