Henning v. Commissioner of Correction ( 2019 )

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SHAWN HENNING v. COMMISSIONER
OF CORRECTION
(SC 20137)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
The petitioner, who had been convicted of felony murder in connection
with the stabbing death of the victim inside the victim’s home during
what appeared to be a botched burglary, sought a writ of habeas corpus,
claiming, inter alia, that the state deprived him of his due process right
to a fair trial insofar as it failed to correct the trial testimony of L, a former
director of the state police forensic laboratory, that a red substance on
a towel found in the victim’s home after the murder tested positive for
blood when no such test had been conducted and when subsequent
testing conducted in connection with the present habeas action revealed
that the red substance was not in fact blood. The habeas court rendered
judgment denying the habeas petition. With respect to the petitioner’s
due process claim, the court concluded that, because L mistakenly but
honestly believed that the towel tested positive for blood and, thus,
did not give perjured testimony, the burden was on the petitioner to
demonstrate that there was a reasonable probability of a different verdict
if the correct evidence had been disclosed. Applying this standard, the
habeas court determined that L’s testimony was immaterial because,
among other things, the state’s criminal case against the petitioner did
not rely on forensic evidence. Rather, the state proved its case primarily
on the basis of testimony from witnesses who testified as to certain
incriminating statements that the petitioner had made to them, testimony
from neighbors of the victim that they heard a loud vehicle in the vicinity
around the time of the murder, when the petitioner and his alleged
accomplice, B, had stolen and were driving a vehicle without a muffler,
and the testimony of the petitioner’s girlfriend, who contradicted the
petitioner’s statements to the police regarding his whereabouts on the
night of the murder. On the granting of certification, the petitioner
appealed, claiming that the habeas court applied the incorrect standard
for determining whether the petitioner was entitled to a new trial and
that, upon application of the correct standard, which required the respon-
dent, the Commissioner of Correction, to establish beyond a reasonable
doubt that L’s incorrect testimony was immaterial, he was entitled to
a new trial. Held that the state’s failure to correct L’s incorrect testimony
that there was blood on the bathroom towel deprived the petitioner of
a fair trial, and the habeas court’s judgment was reversed, as it was
predicated on a determination that the petitioner was not entitled to a
new trial because L’s incorrect testimony was immaterial: the habeas
court incorrectly concluded that the respondent was not required to
establish beyond a reasonable doubt that the state’s failure to correct
L’s incorrect testimony was immaterial, as controlling case law made
it clear that such a standard applies whenever the state fails to correct
testimony that it knew or, as in the present case, should have known
to be false; moreover, L, as the representative of the state police forensic
laboratory, should have known that the towel had not been tested for
blood, as he had an affirmative obligation to review any relevant test
reports before testifying so as to reasonably ensure that his testimony
would accurately reflect the findings of those tests, and L’s incorrect
testimony must be imputed to the prosecutor who, irrespective of
whether he elicited that testimony in good faith, is deemed to be aware
of any and all material evidence in the possession of any investigating
agency, including the state police forensic laboratory; furthermore, the
respondent did not meet his burden of establishing beyond a reasonable
doubt that L’s incorrect testimony was immaterial, as L’s testimony
concerning the towel was elicited for the purpose of explaining why no
evidence of blood connecting the petitioner to the murder was found,
the state’s case against the petitioner was not so strong as to take it
out of the purview of cases in which, as a result of the state’s use of
testimony that it knew or should have known was false, reversal is
virtually automatic, and the state’s failure to correct L’s testimony was
material because it deprived the petitioner of the opportunity to impeach
certain other testimony by L regarding how it was possible that the
petitioner and B stabbed the victim twenty-seven times in a narrow space
and tracked blood all over the victim’s home but somehow managed
not to leave any trace of blood in their getaway vehicle, which showed
no signs of having been cleaned when the police recovered it a few
days after the murder.
Argued October 11, 2018—officially released June 14, 2019*
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland and
tried to the court, Sferrazza, J.; judgment denying the
petition, from which the petitioner, on the granting of
certification, appealed. Reversed; judgment directed.
W. James Cousins, with whom was Craig A. Raabe,
for the appellant (petitioner).
Michael J. Proto, assistant state’s attorney, with
whom were Jo Ann Sulik, supervisory assistant state’s
attorney, and, on the brief, David S. Shepack, state’s
attorney, for the appellee (respondent).
Opinion
PALMER, J. The petitioner, Shawn Henning, and
Ralph Birch were convicted of felony murder in connec-
tion with the vicious 1985 slaying of sixty-five year old
Everett Carr in Carr’s New Milford residence during
what the police believed at the time to be a burglary
gone wrong.1 After this court upheld his conviction; see
State v. Henning, 220 Conn. 417, 431, 599 A.2d 1065(1991); the petitioner filed two habeas petitions, the
first of which was dismissed with prejudice by the
habeas court, White, J., on the basis of the petitioner’s
purported refusal to appear at his habeas trial. The
second habeas petition, which is the subject of this
appeal, alleges, among other things, that the state
deprived the petitioner of his due process right to a fair
trial in violation of Brady v. Maryland, 373 U.S. 83, 87,
83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and its progeny,
which require the state to correct any testimony by a
state’s witness when the state knew or should have
known that that testimony was materially false or mis-
leading. More specifically, the petitioner claims that his
right to due process was violated by virtue of the state’s
failure to correct the trial testimony of the then director
of the state police forensic laboratory, Henry C. Lee,
that a red substance on a towel found in the victim’s
home had tested positive for blood when, in fact, no
such test had been conducted, and, further, a test of
the substance conducted in connection with the present
case proved negative for blood. The habeas court, Sfer-
razza, J.,2 rejected all of the petitioner’s claims, includ-
ing his claim concerning Lee’s testimony about the
towel, and this certified appeal followed. We agree with
the petitioner that, contrary to the determination of the
habeas court, he is entitled to a new trial due to the
state’s failure to alert the trial court and the petitioner
that Lee’s testimony was incorrect,3 and, therefore, we
reverse the judgment of the habeas court.4
The record reveals the following relevant facts and
procedural history. On November 29, 1985, the then
seventeen year old petitioner, together with his eighteen
year old friend, Birch, and eighteen year old girlfriend,
Tina Yablonski, stole a 1973 brown Buick Regal from
an automobile repair shop in the town of Brookfield.
Later that evening, the three teenagers drove the vehicle
to New Hampshire to visit Birch’s mother. While there,
the vehicle’s muffler was damaged and subsequently
removed, causing the vehicle to make a loud noise when
it was operated. When the trio returned to Connecticut
on December 1, 1985, they went directly to the Danbury
residence of Douglas Stanley, a local drug dealer, where
they freebased cocaine. In addition to selling the teenag-
ers drugs, Stanley also acted as a ‘‘fence’’5 for prop-
erty they periodically stole from local businesses and
homes. After leaving the Stanley residence, the peti-
tioner and Birch dropped Yablonski off at her parents’
home in the town of New Milford, arriving there at
approximately 11:55 p.m.
At that time, the victim was living at the home of
his daughter, Diana Columbo, in New Milford, approxi-
mately two miles from the Yablonski residence. Some-
time between 9 and 9:30 p.m. on December 1, 1985,
Columbo left the house to visit a friend. When she
returned home the next morning, reportedly between
4 and 4:30 a.m., she found the victim’s lifeless body in
a narrow hallway adjacent to the kitchen, which led
to the victim’s first floor bedroom. The victim, clad only
in an undershirt and underwear, was lying in a pool
of blood. Blood spatter and smears covered the walls
around him, almost to the ceiling. An autopsy later
revealed that the victim had sustained approximately
twenty-seven stab wounds, a severed jugular vein, and
blunt force trauma to the head. Investigators theorized
that the victim had confronted his assailants in the
hallway and fought for his life. The associate medical
examiner could not determine the exact time of death,
only that the victim died within twenty-four hours of
his body being examined by the medical examiner and
two and one-half to three hours of his last meal.
The assailants left two distinct sets of bloody foot-
prints near the victim’s body and in other locations
throughout the house. Beneath the victim’s body, the
police found what they believed to be a piece of the
murder weapon—a small metal collar that separates a
knife blade from the handle. The police also discovered
blood on a dresser drawer in the victim’s bedroom.
Inside the drawer were a pair of bloody socks and a
blood stained cigar box, indicating that the assailants
had rummaged through the house after the murder. A
videocassette recorder, jewelry, several rolls of quar-
ters, and some clothing were reported missing.
The evidence established that, sometime between
12:10 and 12:30 a.m. on the night of the murder, two
of the victim’s neighbors heard a loud vehicle being
operated near the victim’s residence. One of the neigh-
bors, Alice Kennel, heard the vehicle stop at the lot
beside her house for approximately twenty minutes and
then drive away. The other neighbor, Brian Church,
reported hearing a vehicle with ‘‘a very loud muffler
sound’’ at around the same time. According to Church,
the vehicle stopped for about thirty minutes and then
drove away. Neither Kennel nor Church saw the vehicle
or heard its doors open or shut. Nor could either witness
place the vehicle or its occupants at the victim’s house.6
Because the police suspected that the victim had
interrupted a burglary, they began their investigation
by compiling a list of known burglars in the area. Almost
immediately, they became aware of the names of the
petitioner, Birch, and Yablonski, as well as Stanley,
whom they were told purchased stolen goods from the
teenagers. The police interviewed the petitioner on
December 4, 1985. By then, he, Birch, and Yablonski had
heard about the victim’s murder from Stanley, whom
the police had already interviewed.
According to Yablonski, who testified for the state,
she, the petitioner, and Birch discussed the murder with
a group of people at Stanley’s residence on December
2, 1985. From this discussion, they learned that a man
had been killed after surprising a burglar and that the
man’s dog also had been killed.7 Yablonski testified that,
prior to speaking to the police, she, the petitioner, and
Birch decided they should ‘‘get [their] stories straight’’
to prevent the police from finding out about the stolen
Buick and the burglaries that the teens had committed
close in time to the murder. To that end, the trio agreed
to tell the police that they had hitchhiked to and from
New Hampshire, and then hitchhiked home from Stan-
ley’s residence on the night of the murder, leaving the
city of Danbury at approximately 12:30 or 1 a.m. and
arriving in New Milford several hours later. According
to Yablonski, however, they did not leave Danbury at
12:30 a.m. but, rather, at around 11:20 p.m. Yablonski
further testified that, while discussing the victim’s mur-
der, the petitioner had said to her and Birch, ‘‘[w]hat
if we get caught? What if they suspect us?’’ At the time,
Yablonski had assumed that the petitioner was referring
to the burglaries and the stolen Buick.
When interviewed by the police on December 4, 1985,
the petitioner informed the officers that he was aware
that a man had been stabbed during a burglary. Accord-
ing to the testimony of one of the officers, when the
petitioner was shown a photograph of the victim, he
indicated that he previously may have seen the man
around town and asked whether he was the man with
all the tattoos, even though no tattoos were visible in
the photograph.8 The following day, Birch confessed to
the theft of the Buick, and the petitioner took the police
to where he had hidden it in a wooded area near
a reservoir in New Milford. The petitioner and Birch
also confessed to using the car in connection with the
commission of several burglaries, for which they were
placed under arrest.
When the police recovered the Buick, it was evident
that it had not been cleaned. According to several police
reports and photographic exhibits, the vehicle was
covered in dirt and filled with sand, sneakers, toilet-
ries, food, blankets, pillows, various items of clothing,
and what the police believed to be stolen electronics.
Despite a thorough examination of the vehicle and the
surrounding area, which involved draining two reser-
voirs and the use of specially trained dogs, the police
found no evidence linking the petitioner or Birch to the
murder. A search of the victim’s neighborhood, includ-
ing the surrounding roadways and fields adjacent to
those roadways, also produced no incriminating evi-
dence.
On December 6, 1985, the police conducted a second
interview of the petitioner. During this interview, which
was recorded, the officers falsely claimed that Birch
had implicated the petitioner in the murder. Specifi-
cally, they told the petitioner that Birch had placed
the entire blame for the murder on him and that Birch
would ‘‘walk out of this thing’’ a free man while the
petitioner would be ‘‘left . . . holding the bag.’’ They
advised the petitioner that, if he would just ‘‘tell . . .
the truth about what happened, the whole truth, like
. . . Birch did, then it’s gonna weigh heavily in [his]
favor.’’ The officers also informed the petitioner that
the police had recovered a wealth of forensic evidence
from the crime scene, that that evidence was being
tested, and that it was just a matter of time before it
would confirm his presence in the victim’s home.
Finally, the officers informed the petitioner that, on the
night of the murder, the victim’s neighbors had heard
a loud vehicle that sounded just like the vehicle the
petitioner and Birch were driving that evening. The
petitioner vehemently denied any involvement in the
crime and implored the officers to test the crime scene
evidence, his clothing, and everything else that they
had seized from him because he was certain it would
prove his innocence. When the petitioner was told
that the tests would take two weeks, the petitioner
expressed impatience that he would have to wait so
long to clear his name.
According to the transcript of the December 6, 1985
interview, the officers asked the petitioner what he
knew about the murder. The petitioner responded that
he knew only what people had told him and what every-
one else knew. Specifically, the petitioner stated that,
when he first heard about the murder, he was told ‘‘that
some old man from New Milford had gotten knocked
out in the middle of a burglary; then I heard from some-
one else right after that . . . [that the victim] came
in, saw who it was, and that was the reason for the,
the knife or whatever they used on him. . . . [P]eople
[told] me he got internal wounds in the gut, and then
the story switched around and someone said he got his
jugular vein ripped out of his neck or something . . . .’’
When asked who he had gotten this information from,
the petitioner responded, ‘‘that’s what the Danbury
police told [Stanley] when they brought him down for
questioning.’’ When the petitioner finished speaking,
the officers tried unsuccessfully to elicit a confession
from him by informing him that he had revealed details
about the murder that only the killer would know. Spe-
cifically, one of the officers stated, ‘‘you got this infor-
mation about the old guy being knocked out that ties
into some evidence that we’ve got, that’s never been in
the paper. . . . [O]nly people who [know] something
about [the murder would] say something like that.’’ The
petitioner was later asked, ‘‘how [do] you know all these
things that we don’t know? . . . You do too; you know
more about that crime scene than [we] know.’’ The
petitioner explained, ‘‘[t]hat’s just what . . . I heard,
man, there was fucking six other people there when
. . . [Stanley] told me that. Every other [person] . . .
heard the same . . . thing. If it wasn’t for this stupid
fucking piece of junk [car] that we . . . [stole] to get
a ride home that night, none of this shit would [be] hap-
pening.’’
On December 9, 1985, the police conducted a third
interview of the petitioner at the Litchfield Correctional
Center. According to the testimony of one of the officers
who was present there, when the petitioner was told
that the police knew from the victim’s neighbors where
the petitioner and Birch had parked on the night of the
murder, and where they had turned their car around,
the petitioner’s ‘‘right leg began to shake violently,’’ and
he stated that, although he, Birch, and Yablonski may
have turned around in the victim’s driveway, he was
never in the victim’s house and did not kill the victim.
During the course of the investigation, the police dis-
covered that the petitioner had called his grandmother,
Mildred Henning (Mildred) and his close childhood
friend, Timothy Saathoff, from jail shortly after his
arrest in 1985. In 1987 or 1988, Andrew Ocif, a detective
with the Connecticut state police, interviewed Mildred
and Saathoff about their recollection of those telephone
calls. After speaking with Ocif, both Mildred and Saa-
thoff agreed to provide statements indicating that the
petitioner had told them that he was involved in various
burglaries, that there was a burglary during which a
man was killed, and that he did not kill him. Despite
Mildred’s and Saathoff’s statements, the petitioner and
Birch were not charged with the victim’s murder until
November, 1988. At the petitioner’s criminal trial, Mil-
dred testified that the petitioner had told her shortly
after his arrest, during an emotional telephone call from
jail, that he had been involved in a burglary during
which a man and a dog were killed but that he was not
the killer. Saathoff also testified that the petitioner had
told him that he and another individual were involved
in a burglary and that a man had been killed but that
he did not commit the murder.9
Because there was no forensic evidence connecting
the petitioner to the crime, the state’s case against him
relied primarily on the testimony of Mildred and Saa-
thoff, the testimony of the victim’s neighbors, who had
heard a loud vehicle on the night of the murder, the
fact that the petitioner was driving such a vehicle that
evening, and the testimony of Yablonski, whom the
state relied on to establish consciousness of guilt predi-
cated on the theory that the petitioner had lied to the
police about the time of his return to New Milford to
conceal his involvement in the murder. The state also
called Lee, the criminalist and forensic scientist, to
explain how it was possible for the petitioner and Birch
to have stabbed the victim so many times without get-
ting any blood on their clothing and without transferring
any blood to the Buick. Lee testified that, although there
clearly had been a violent struggle between the victim
and his assailants, all of the blood spatter in the hall-
way was ‘‘uninterrupted,’’ meaning that no individual
or object was between the victim and the walls or floor
to interrupt the blood spatter. According to Lee, this
would explain why the assailants might not have been
covered in the victim’s blood. When asked, however,
whether, ‘‘based [on his] examination of the [crime]
scene and the spatter patterns that appear on the floor
and walls, [he] ha[d] an opinion as to whether . . . the
perpetrators would have had blood on their persons,’’
Lee answered, ‘‘[m]y opinion is maybe.’’
During his testimony, Lee relied on certain crime
scene photographs. One of the photographs showed
two towels hanging beside a sink in the upstairs bath-
room. Although the state now concedes that the towels
had not been tested for the presence of blood, Lee
testified at trial that they had been so tested. Lee testi-
fied specifically that ‘‘there are some reddish color
stain[s] [on one of the towels]. Those stains tested [posi-
tive] for the presence of blood . . . .’’ Later, in refer-
ence to the same photograph, Lee reiterated that one
of the two towels had a ‘‘reddish color smear. That
smear, I did a few tests, [which] show that it [tested]
positive consistent with blood.’’ At no time did the assis-
tant state’s attorney (prosecutor) correct Lee’s incor-
rect testimony, apparently because he was unaware
that it was untrue. Nor did the petitioner’s trial counsel,
Carl D. Eisenmann, attempt to correct it, presumably
because he, too, did not know that it was incorrect.
At the close of the state’s case, the petitioner moved
for a judgment of acquittal, which the trial court denied.
Thereafter, the petitioner’s trial counsel presented a
defense comprised of just two witnesses, Columbo, the
victim’s daughter, and the petitioner. In an effort to
establish time of death, the petitioner’s counsel asked
Columbo whether she knew when her father had last
eaten prior to being murdered. Columbo testified that
she did not know. He also asked her whether she had
ever told anyone that the victim was holding an object
in his hand when she discovered his body. Columbo
denied having said any such thing, and counsel asked
no further questions.10
In his trial testimony, the petitioner denied killing
the victim or ever being in the victim’s home. The peti-
tioner stated that, after he, Birch, and Yablonski left the
Stanley residence on December 1, 1985, they ‘‘smoked’’
cocaine before dropping Yablonski off at her parents’
home in New Milford, and then he and Birch drove
around siphoning gas for the Buick, after which they
went to his father’s house. According to the petitioner’s
father, the petitioner and Birch arrived at his house
sometime between 2:15 and 4:20 a.m. The petitioner
further testified that, although he had called Mildred
and Saathoff after his arrest in 1985, at no time did he
tell them that he was at the victim’s home on the night
of the murder; according to the petitioner, he told them
only that the police were accusing him of being there
and that he feared they were trying to frame him. The
petitioner testified that he told both Mildred and Saa-
thoff ‘‘that the police . . . believed . . . [that he had]
been at the [victim’s] residence because of things that
[he] had said to the police when [he] was asked about
[the] case, about the murder. When I was asked about
the murder, I had known things that other people had
not known, that the newspapers had not known yet,
and . . . [that is what] I . . . told [them], that [the]
man had been beaten to death, stabbed to death, and
his dog was killed. . . . That’s what I [had] heard.’’
In his closing argument, the prosecutor, relying on
Lee’s reconstruction of the crime, argued ‘‘that the evi-
dence shows that . . . there may have been two indi-
viduals involved in that fight, with [the victim] holding
one while the other stabbed him about the back and
arms.’’ The prosecutor also argued to the jury that the
bloody footwear impressions, blood stained bathroom
towel, and ‘‘bloodied items . . . found in the dresser
. . . in the northwest bedroom’’ indicated that ‘‘the bur-
glary continued after the bloodletting.’’
The prosecutor also explained to the jury that,
although there was no forensic evidence connecting
the petitioner and Birch to the crime, that was only
because, as Lee had explained, all of the blood spatter
was uninterrupted, meaning that the assailants would
not have been covered in it. Another reason why there
was no forensic evidence, the prosecutor asserted, was
because the perpetrators had cleaned up before leav-
ing the scene. ‘‘Remember also the bloody towel in the
upstairs bathroom,’’ the prosecutor stated. ‘‘It gave them
an opportunity to wash or have some access to that
sink.’’ Finally, the prosecutor reminded the jury about
the petitioner’s admissions to his grandmother and
Saathoff, the noisy vehicle that was heard near the
victim’s home on the night of the murder, the fact that
the petitioner and Birch were driving a noisy vehicle
that evening, and the petitioner’s consciousness of guilt
as evidenced by the fact that he lied to the police about
the time he left Danbury on the night of the murder.
The prosecutor also reminded the jury that, according
to the officers who first interviewed him, the petitioner
had asked whether the victim was the man with many
tattoos even though there were no tattoos visible in the
photograph. Finally, the prosecutor maintained that the
explanation that the petitioner purportedly gave to the
officers as to why he knew about the tattoos—namely,
because he previously had seen the victim around
town— should not be believed.
During closing argument, the petitioner’s trial coun-
sel emphasized the lack of forensic evidence, arguing
that it simply made no sense that the petitioner and
Birch could have committed such a violent and bloody
crime without getting a drop of blood on their shoes
or clothing, or without transferring any trace evidence
to the Buick. With respect to the testimony of Mildred
and Saathoff, the petitioner’s counsel maintained that
those witnesses were simply mistaken about what the
petitioner had told them so many years ago. The peti-
tioner’s counsel argued that, if the petitioner actually
had been present when the victim was murdered, he
would not have told his grandmother that a dog was
killed during the commission of the crime because he
would have known that no such thing had occurred.
The fact that he did, counsel stated, supported the peti-
tioner’s contention that he had told his grandmother
and Saathoff that he had been arrested on burglary
charges and that, as a result, the police suspected him
of committing another burglary during which a man
had been killed, but that he had nothing to do with
that crime.
The jury thereafter found the petitioner guilty of fel-
ony murder, and the trial court rendered judgment sen-
tencing the petitioner to a term of imprisonment of
fifty years. This court later affirmed the trial court’s
judgment in State v. Henning, supra, 220 Conn. 431. In
2001, while serving his Connecticut sentence in a Vir-
ginia prison, the petitioner filed a petition for a writ of
habeas corpus, alleging ineffective assistance of trial
counsel. As we previously indicated, the habeas court
dismissed that petition with prejudice on the basis of
the petitioner’s purported refusal to appear at the
habeas trial. In 2012, the petitioner filed a second habeas
petition in which he alleged, inter alia, that his trial
counsel had rendered ineffective assistance in myr-
iad ways, including but not limited to his failure to
consult and present the testimony of a forensic foot-
wear impression expert, failure to consult and present
the testimony of a crime scene reconstructionist, failure
to consult and present the testimony of a forensic
pathologist, failure to investigate and present a third-
party culpability defense implicating the victim’s daugh-
ter,11 and failure to investigate, cross-examine, impeach,
or otherwise challenge the testimony of the state’s wit-
nesses, including Mildred, Saathoff and Ocif.12 The peti-
tioner further claimed that his first habeas counsel,
Michael Merati, rendered ineffective assistance of coun-
sel by failing to adequately investigate and present his
ineffective assistance of trial counsel claims and by
allowing the petitioner’s first habeas petition to be dis-
missed with prejudice on the basis of his purported
failure to appear at the first habeas trial. The petitioner
also claimed actual innocence on the basis of, among
other things, numerous DNA tests conducted over the
last decade by the Connecticut Forensic Science Labo-
ratory, which had excluded the petitioner, Birch, and
Yablonski as the source of DNA recovered from the
crime scene, and had revealed the DNA of an unknown
female on four key pieces of evidence with which the
assailants were known or thought to have come into
contact.13 Finally, the petitioner alleged that the state
had violated his right to a fair trial by adducing Lee’s
incorrect testimony that there was blood on the bath-
room towel, testimony that had permitted the prosecu-
tor to argue that the reason investigators failed to find
forensic evidence on the petitioner’s clothing or in the
Buick was because the petitioner had cleaned himself
up before leaving the victim’s home.
A consolidated trial on the petitioner’s second habeas
petition, his petition for a new trial, and the closely
related habeas and new trial petitions of Birch; see foot-
note 4 of this opinion; was conducted over a period of
several weeks in November and December, 2015, during
which the petitioner and Birch called a number of
expert and lay witnesses whose testimony cast serious
doubt on the state’s theory of the case.14 In support of
the petitioner’s claim that the prosecutor’s failure to
correct Lee’s incorrect testimony entitled the petitioner
to a new trial, he argued that, under a line of cases
following the United States Supreme Court’s seminal
opinion in Brady v. Maryland, supra, 373 U.S. 83,
including United States v. Bagley, 473 U.S. 667, 679 and
n.9, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) (opinion
announcing judgment) (conviction obtained with state’s
knowing use of perjured testimony must be set aside
unless state can establish testimony was harmless
beyond reasonable doubt), State v. Ouellette, 295 Conn.
173, 186, 989 A.2d 1048 (2010) (prosecutor who knows
that testimony of witness is false or substantially mis-
leading must correct that testimony regardless of lack
of intent to lie on part of witness), and State v. Cohane,
193 Conn. 474, 498, 479 A.2d 763 (prosecutor has respon-
sibility to correct false testimony when prosecutor
knew or should have known that testimony was false),
cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d
331 (1984), the state was required to establish that Lee’s
concededly incorrect testimony was immaterial beyond
a reasonable doubt, a standard that, the petitioner fur-
ther claimed, the respondent could not meet.
Following the trial, the habeas court issued a memo-
randum of decision in which it denied or dismissed all of
the petitioner’s claims.15 With respect to the petitioner’s
claim that the state had deprived him of a fair trial
by failing to correct Lee’s concededly incorrect testi-
mony,16 the court concluded, contrary to the contention
of the petitioner, that the respondent, the Commissioner
of Correction, was not required to demonstrate the
immateriality, that is, the harmlessness, of that testi-
mony beyond a reasonable doubt. The habeas court
concluded, rather, that that heavy burden applies only
when the state fails to correct perjured testimony, and
it appeared clear to the habeas court that, in the absence
of any contrary evidence, ‘‘Lee mistakenly, but honestly,
believed he tested [the bathroom towel] rather than
contrived a false story about having done so.’’ In other
words, as the habeas court explained, although Lee had
testified incorrectly, he was ‘‘not lying under oath.’’
The habeas court then concluded that the applicable
standard was ‘‘the classic test’’ for determining whether
the petitioner was entitled to a new trial as a conse-
quence of the state’s Brady violation, a standard that,
as the habeas court further explained, is satisfied ‘‘only
if [the petitioner can demonstrate that] there would
be a reasonable probability of a different result if the
[correct] evidence had been disclosed. . . . A rea-
sonable probability . . . is one [that] undermines con-
fidence in the outcome of the trial . . . .’’ (Citations
omitted; internal quotation marks omitted.)
Applying this standard, which is considerably less
favorable to the petitioner than the standard that the
petitioner himself had advanced, the habeas court con-
cluded that Lee’s incorrect testimony was immaterial
because the state’s case against the petitioner did not
in any way rely on forensic evidence. Specifically, the
court explained: ‘‘Because no forensic nexus was pro-
duced, the state’s case against [the petitioner] hinged
on the credibility of . . . [numerous] lay witnesses
rather than on . . . Lee’s [testimony]. The impact of
the victim’s neighbors’ testimony about being disturbed
by a very loud vehicle and the false time line fabricated
by Birch and [the petitioner] was far more incriminating
and [was] in no way diminished by . . . Lee’s error as
to whether a reddish smear on a towel . . . was or
was not tested for blood.’’ The court further reasoned
that Lee’s incorrect testimony also was immaterial
because the prosecutor could have explained the
absence of any forensic evidence simply by arguing that
the petitioner and Birch had disposed of their bloody
clothing and shoes sometime after leaving the victim’s
home and prior to their arrest.
On appeal, the petitioner claims that the legal stan-
dard for materiality that the habeas court applied, that
is, that the petitioner was required to demonstrate that
the incorrect testimony at issue undermines confidence
in the verdict, was incorrect, and that the proper stan-
dard required the respondent to establish beyond a
reasonable doubt that the testimony was immaterial.
The petitioner further contends that, upon application
of the proper standard, it is apparent that Lee’s incorrect
testimony was material and, therefore, that the prosecu-
tor’s failure to correct that testimony dictated that the
petitioner be awarded a new trial because the state’s
case was weak and Lee’s testimony offered jurors an
explanation as to why no incriminating blood evidence
was found despite the victim’s massive blood loss and
the fact that the victim was killed at such close range.
The respondent, for his part, maintains that (1) the
habeas court properly applied the less stringent materi-
ality standard of Brady, (2) Lee’s incorrect testimony
was not adduced for the purpose of providing an expla-
nation for why no blood evidence was found linking
the petitioner to the victim’s murder, and the prosecutor
did not rely on that testimony to that end, (3) the state’s
case was so strong that there is no reasonable probabil-
ity that the jury verdict would have been any differ-
ent without it, and (4) even if we were to apply the
demanding materiality standard pursuant to which the
respondent must establish beyond a reasonable doubt
that Lee’s incorrect testimony had no bearing on the
verdict, the state’s evidence was so strong that that
more exacting standard has been met. We disagree with
each of the respondent’s contentions.
We commence our consideration of the petitioner’s
claim with a brief review of the principles that guide
our analysis. ‘‘The rules governing our evaluation of
a prosecutor’s failure to correct false or misleading
testimony are derived from those first set forth by the
United States Supreme Court in Brady v. Maryland,
[supra, 373 U.S. 86–87] . . . [in which] the 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 to guilt or
to punishment, irrespective of the good faith or bad
faith of the [prosecutor]. . . . The United States
Supreme Court also has recognized that [t]he jury’s
estimate of the truthfulness and reliability of a . . .
witness may well be determinative of guilt or innocence,
and it is upon such subtle factors as the possible interest
of the witness in testifying falsely that a defendant’s
life or liberty may depend. Napue v. Illinois, 360 U.S.
264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959). Accord-
ingly, the Brady rule applies not just to exculpatory
evidence, but also to impeachment evidence . . .
which, broadly defined, is evidence having the potential
to alter the jury’s assessment of the credibility of a
significant prosecution witness. . . . United States v.
Rivas, 377 F.3d 195, 199 (2d Cir. 2004). . . .
‘‘Not every failure by the state to disclose favorable
evidence rises to the level of a Brady violation. Indeed,
a prosecutor’s failure to disclose favorable evidence
will constitute a violation of Brady only if the evidence
is found to be material. . . . In a classic Brady case,
involving the state’s inadvertent failure to disclose
favorable evidence, the evidence will be deemed mate-
rial only if there would be a reasonable probability of
a different result if the evidence had been disclosed.
. . . A reasonable probability of a different result is
. . . shown when the government’s evidentiary sup-
pression undermines confidence in the outcome of the
trial. Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555,
131 L. Ed. 2d 490 (1995).
‘‘When, however, a prosecutor obtains a conviction
with evidence that he or she knows or should know to
be false, the materiality standard is significantly more
favorable to the defendant. [A] conviction obtained by
the knowing use of perjured testimony is fundamentally
unfair . . . and must be set aside if there is any reason-
able likelihood that the false testimony could have
affected the judgment of the jury. United States v.
Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d 342(1976) . . . . This standard . . . applies whether the
state solicited the false testimony or allowed it to go
uncorrected . . . and is not substantively different
from the test that permits the state to avoid having a
conviction set aside, notwithstanding a violation of con-
stitutional magnitude, upon a showing that the violation
was harmless beyond a reasonable doubt.’’ (Citations
omitted; footnotes omitted; internal quotation marks
omitted.) Adams v. Commissioner of Correction, 309
Conn. 359, 369–72, 71 A.3d 512 (2013).
Furthermore, it is well established that this stringent
materiality test applies when a prosecutor elicits testi-
mony that he or she knows or should know to be false,
‘‘[r]egardless of the lack of intent to lie on the part of
the witness . . . .’’ (Emphasis added; internal quota-
tion marks omitted.) Greene v. Commissioner of Cor-
rection, 330 Conn. 1, 15, 190 A.3d 851 (2018), cert.
denied sub nom. Greene v. Semple, U.S. , 139
S. Ct. 1219, 203 L. Ed. 2d 238 (2019); accord State v.
Satchwell, 244 Conn. 547, 561, 710 A.2d 1348 (1998);
see also State v. Cohane, supra, 193 Conn. 498 (‘‘[t]he
responsibility of the state’s attorney to conduct the
prosecution in accordance with constitutional fair trial
standards . . . cannot be defined or limited by the pre-
cise contours of the perjury statute’’). ‘‘This strict stan-
dard of materiality is appropriate in such cases not just
because they involve prosecutorial [impropriety], but
more importantly because they involve a corruption of
the [truth seeking] function of the trial process. . . .
In light of this corrupting effect, and because the state’s
use of false testimony is fundamentally unfair, prejudice
sufficient to satisfy the materiality standard is readily
shown . . . such that reversal is virtually automatic
. . . unless the state’s case is so overwhelming that
there is no reasonable likelihood that the false testi-
mony could have affected the judgment of the jury.’’
(Citations omitted; emphasis added; internal quotation
marks omitted.) Adams v. Commissioner of Correc-
tion, supra, 309 Conn. 372–73. ‘‘In accordance with
these principles, our determination of whether . . .
false testimony was material under Brady and its prog-
eny requires a careful review of that testimony and its
probable effect on the jury, weighed against the strength
of the state’s case and the extent to which the petitioner
. . . [was] otherwise able to impeach [the witness].’’
Id., 373. Finally, ‘‘because our role in examining the
state’s case against the petitioner is to evaluate the
strength of that evidence and not its sufficiency, we do
not consider the evidence in the light most favorable to
the state. See Lapointe v. Commissioner of Correction,
316 Conn. 225, 342 n.88, 112 A.3d 1 (2015) . . . .
Rather, we are required to undertake an objective
review of the nature and strength of the state’s case.’’
(Citation omitted.) Skakel v. Commissioner of Correc-
tion, 329 Conn. 1, 39, 188 A.3d 1 (2018), cert. denied,
U.S. , 139 S. Ct. 788, 202 L. Ed. 2d 569 (2019).
In light of the foregoing principles, it is readily appar-
ent that the habeas court incorrectly concluded that
the respondent was not required to establish beyond a
reasonable doubt that the prosecutor’s failure to correct
Lee’s incorrect testimony was immaterial. Contrary to
the respondent’s assertion, controlling case law makes
it abundantly clear that that strict materiality standard
applies whenever the state fails to correct testimony
that it knew or, as in the present case, should have
known to be false. As we explained in State v. Cohane,
supra, 193 Conn. 474, a case directly on point, ‘‘[t]he
references in Agurs to perjured testimony must be
taken to include testimony [that the prosecutor knew
or should have known] to be false or misleading even
if the witness may not have such an awareness. . . .
[T]he [prosecutor’s] actions in failing to disclose [false
or misleading testimony] corrupt[s] the trial process
and denie[s] the defendant his constitutional right to
a fair trial just as surely as if the state’s case included
perjured testimony.’’ 17 (Emphasis added; footnotes
omitted.) Id., 498–99; see also Mesarosh v. United
States, 352 U.S. 1, 9, 77 S. Ct. 1, 1 L. Ed. 2d 1 (1956)
(‘‘The question of whether [the witness’] untruthfulness
. . . constituted perjury or was caused by a psychiatric
condition can make no material difference . . . .
Whichever explanation might be found to be correct in
this regard, [the witness’] credibility has been wholly
discredited . . . . The dignity of the . . . [g]overn-
ment will not permit the conviction of any person on
tainted testimony.’’).
Furthermore, it is inarguable that Lee, as the repre-
sentative of the state police forensic laboratory, should
have known that the bathroom towel had not been
tested for blood. He, like any such witness, had an
affirmative obligation to review any relevant test
reports before testifying so as to reasonably ensure that
his testimony would accurately reflect the findings of
those tests. To conclude otherwise would permit the
state to gain a conviction on the basis of false or mis-
leading testimony even though the error readily could
have been avoided if the witness merely had exercised
due diligence; such a result is clearly incompatible with
the principles enunciated in Brady and its progeny.
Lee’s incorrect testimony also must be imputed to the
prosecutor who, irrespective of whether he elicited that
testimony in good faith, is deemed to be aware of any
and all material evidence in the possession of any
investigating agency, including, of course, the state
police forensic laboratory. See, e.g., Kyles v. Whitley,
supra, 514 U.S. 437–38 (‘‘[T]he . . . prosecutor has a
duty to learn of any favorable evidence known to the
others acting on the government’s behalf in the case,
including the police. But whether the prosecutor suc-
ceeds or fails in meeting this obligation [whether, that
is, a failure to disclose is in good faith or bad faith] . . .
the prosecution’s responsibility for failing to disclose
known, favorable evidence rising to a material level of
importance is inescapable.’’ [Citation omitted.]). Nota-
bly, the respondent does not claim otherwise. Thus, the
only question remaining is whether the respondent has
met his burden of establishing that the prosecutor’s
failure to correct Lee’s testimony concerning the bath-
room towel was harmless beyond a reasonable doubt.
We agree with the petitioner that he has not.
As we previously indicated, the respondent maintains
that Lee’s incorrect testimony was immaterial because
the prosecutor did not offer that testimony to persuade
the jury ‘‘that the towel smear explained the absence
of physical evidence,’’ only to establish ‘‘that a burglary
occurred, and that it occurred . . . ‘after the bloodlet-
ting.’ ’’ The respondent also argues that the state’s case
against the petitioner was so overwhelming that the
petitioner would have been convicted regardless of
Lee’s incorrect testimony.
First, we disagree that that incorrect testimony was
offered solely for the purpose of establishing the exis-
tence and timeline of the burglary. As we explained,
during his closing argument, the prosecutor expressly
urged the jury to ‘‘[r]emember . . . the bloody towel
in the upstairs bathroom. It gave them an opportunity
to wash . . . .’’ (Emphasis added.) This argument by
the prosecutor leaves no doubt that the testimony con-
cerning the bathroom towel was elicited for the purpose
of explaining why no evidence of blood connecting the
petitioner to the murder was found. Although the pros-
ecutor also argued to the jury that it reasonably could
find, in accordance with other testimony from Lee,
that the petitioner never came in contact with any of
the victim’s blood despite the extremely bloody crime
scene, the prosecutor further stated to the jury that the
blood on the bathroom towel supported the conclusion
that the petitioner had washed off any of the victim’s
blood with which he had come in contact. The impor-
tance of this latter argument cannot fairly be mini-
mized in light of how profusely the victim bled as a
result of the twenty-seven stabs wounds he suffered at
the hands of his assailants. That argument, moreover,
was intended to address Lee’s testimony, offered in
response to the question of whether ‘‘the perpetrators
would have had blood on their persons’’ as a result of
their attack on the victim, acknowledging that ‘‘maybe’’
they did. In fact, it is apparent that the perpetrators did
get at least some of the victim’s blood on them because
they left several sets of bloody footprints in the house,
and blood was discovered on a dresser drawer in the
victim’s bedroom and on socks and a cigar box that
were found in that drawer, all of which indicate that
the perpetrators, with blood on their shoes and hands,
made their way through the victim’s house following
the deadly assault on the victim.
Nor do we agree with the respondent that the state’s
case against the petitioner was so strong as to take this
case out of the purview of cases in which, as a result
of the state’s use of testimony that it knew or should
have known was false, reversal is ‘‘virtually automatic
. . . .’’ (Internal quotation marks omitted.) Adams v.
Commissioner of Correction, supra, 309 Conn. 372.
Although sufficient to sustain a conviction, the state’s
evidence was hardly overwhelming. The strongest evi-
dence by far was the testimony of Mildred, the petition-
er’s grandmother, and Saathoff, both of whom provided
nearly identical statements to the police two or three
years after the victim’s murder. As we discussed pre-
viously, both Mildred and Saathoff testified that the
petitioner had called them from jail after his arrest in
1985 and told them that he had been involved in a
burglary during which a man had been killed but that
he was not the killer. The strength of this evidence was
considerably diluted, however, by virtue of Mildred’s
repeated statement that the petitioner also told her
that a dog had been killed during the commission of
the victim’s murder. Surely, jurors must have wondered
why, if the petitioner actually was present when the
victim was murdered, he informed his grandmother,
Mildred, that a man and a dog were killed. We note,
moreover, that, beyond the petitioner’s purported bare-
bones admission that the murder occurred and that
he was present when it occurred, neither Mildred nor
Saathoff claimed to have learned from the petitioner
any more specific information about the crime or the
petitioner’s role in it.
In addition to the testimony of Mildred and Saathoff,
the only other evidence that the state presented was
the testimony of the victim’s two neighbors who had
heard a car with a loud engine shortly after midnight
on the night of the murder, Yablonski’s testimony that
the petitioner and Birch had lied to the police that they
were in Danbury at that time, and the fact that the
petitioner had asked whether the victim was the man
with all the tattoos when the police showed him a
photograph of the victim. This additional evidence may
have cast suspicion on the petitioner and was sufficient
to support the jury’s guilty verdict when considered
together with the testimony of Mildred and Saathoff,
but the state’s case against the petitioner was certainly
not so overwhelming that we can be satisfied beyond
a reasonable doubt that Lee’s incorrect testimony was
harmless. As this court previously has recognized in
the Brady context, a murder prosecution predicated
primarily on a defendant’s alleged or actual admissions,
and in which there are no eyewitnesses and no forensic
or other physical evidence connecting the defendant to
the crime, is not a strong case; see Skakel v. Commis-
sioner of Correction, supra, 329 Conn. 85–86; Lapointe
v. Commissioner of Correction, supra, 316 Conn.
323–25; and is therefore one in which ‘‘prejudice suffi-
cient to satisfy the materiality standard is readily shown
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Adams v. Commissioner of Correction,
supra, 309 Conn. 372.
The respondent asserts, nonetheless, that there is no
reasonable possibility that the petitioner was preju-
diced by Lee’s incorrect testimony because there is lit-
tle chance that the jury credited the state’s theory that
the assailants washed up before leaving. Specifically,
the respondent argues that, ‘‘if the prosecution [had]
sought to portray the towel smear as a portal through
which blood drenched killers passed only to emerge
on the other side completely clean, it would have failed
miserably. In the absence of any other evidence that
the killers cleaned up at the scene . . . it is simply not
reasonable to believe that all of that blood reduced to
a single towel smear. The more obvious conclusion is
that the jury found that, consistent with . . . Lee’s
spatter testimony, the perpetrators were not drenched
in blood . . . .’’ That conclusion is far from obvious
and by no means compelled from the facts. Indeed, we
cannot say with any confidence that the jury found
either theory more plausible than the other as a basis
for explaining the total absence of forensic evidence.
The more probable scenario, rather, is that the jury,
like the state, relied on both theories. That is, the jury
very reasonably could have found, on the basis of the
blood spatter testimony, that the killers may have had
less blood on them than the evidence otherwise would
seem to indicate, and, on the basis of the towel testi-
mony, whatever blood they did have on them, they
simply washed off.
Finally, because Lee’s testimony provided the sole
evidentiary basis for both of the state’s theories regard-
ing the dearth of forensic evidence, the prosecutor’s
failure to correct Lee’s testimony about the bathroom
towel was material for the additional reason that it
deprived the petitioner of the opportunity to impeach
Lee’s blood spatter testimony. See, e.g., Merrill v. War-
den, 177 Conn. 427, 431, 418 A.2d 74 (1979) (‘‘The fact
that [the witness] was a key witness made his credibility
crucial to the state’s case. In assessing his credibility
the jury [was] entitled to know that he was testifying
under false colors. Such knowledge could have affected
the result.’’); State v. Grasso, 172 Conn. 298, 302, 374
A.2d 239 (1977) (‘‘[w]hen a conviction depends entirely
[on] the testimony of certain witnesses . . . informa-
tion affecting their credibility is material in the constitu-
tional sense since if they are not believed a reasonable
doubt of guilt would be created’’). To be sure, the prose-
cutor’s greatest challenge at trial was to explain how
it was possible for two teenagers to have stabbed the
victim twenty-seven times in the confines of a narrow
hallway, severed his jugular vein, struck him over the
head several times, tracked blood all over the house,
and yet somehow managed not to leave any trace evi-
dence in their getaway vehicle—which, as we pre-
viously discussed, did not show any signs of having
been cleaned when the police recovered it a few days
later—or elsewhere. To answer this question, the state
proffered two theories, one of which the respondent
now concedes was predicated on Lee’s incorrect testi-
mony. If the jury had known that Lee’s testimony about
finding blood on the bathroom towel was incorrect,
that knowledge might well have caused it to question
the reliability of his other testimony. If that had
occurred, the state’s entire case against the petitioner
could very well have collapsed.18
In light of the foregoing, we conclude that the state’s
failure to correct Lee’s testimony that there was blood
on the bathroom towel deprived the petitioner of a fair
trial. Accordingly, the judgment of the habeas court
must be reversed insofar as it was predicated on that
court’s determination that the petitioner is not entitled
to a new trial because Lee’s incorrect testimony was
immaterial.
The judgment is reversed and the case is remanded
with direction to render judgment granting the habeas
petition and ordering a new trial.
In this opinion the other justices concurred.
* June 14, 2019, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The petitioner and Birch were tried and convicted separately.
2
Unless otherwise noted, all references hereinafter to the habeas court
are to Sferrazza, J., and all references to the habeas petition are to the
petition in the present case.
3
As we discuss more fully hereinafter, the respondent, the Commissioner
of Correction, concedes that the testimony of Lee at issue in this case was
false or misleading—terms commonly used in cases, like the present one,
involving due process claims stemming from the state’s improper use of
testimony in a criminal trial—in the sense that it was factually wrong or
incorrect. In its memorandum of decision, however, the habeas court found
that Lee’s testimony was mistaken rather than intentionally false or
untruthful—a conclusion that the petitioner has not challenged—and we
have no reason to question that determination. Nevertheless, for the reasons
set forth hereinafter, we conclude that, in the circumstances presented, the
petitioner is entitled to a new trial because, under Brady and its progeny,
it makes no difference whether Lee’s testimony was intentionally false or
merely mistaken. In either situation, if, as we conclude, the state knew or
should have known that the testimony was incorrect, the petitioner is entitled
to a new trial unless the respondent can demonstrate that the incorrect
testimony was harmless beyond a reasonable doubt, a burden the respondent
cannot meet. Finally, although Lee’s testimony was false or misleading
insofar as it was contrary to the facts, we characterize his testimony as
incorrect rather than false or misleading because the latter terms might be
understood as connoting a dishonest or untruthful intent, an implication
that would be incompatible with the habeas court’s determination.
4
The petitioner also filed a petition for a new trial; see General Statutes
§ 52-270 (a); on the basis of newly discovered evidence. Prior to trial, the
habeas court consolidated that petition with the present habeas petition
and with the closely related habeas and new trial petitions of Birch. The
and Birch separately appealed to the Appellate Court from the judgments
denying their habeas and new trial petitions. We thereafter transferred all
four appeals to this court pursuant to General Statutes § 51-199 (c) and
Practice Book § 65-2. In a separate opinion also issued today, we have
dismissed as moot the petitioner’s appeal from the habeas court’s denial of
his petition for a new trial because of our determination that the petitioner
must be afforded a new trial due to the state’s failure to correct Lee’s
incorrect testimony. See Henning v. State, 334 Conn. 33, 36, A.3d
(2019). We also have reversed the judgment of the habeas court denying
Birch’s habeas petition; see Birch v. Commissioner of Correction, 334 Conn.
37, 69, A.3d (2019); see also Birch v. State, 334 Conn. 69, 72,
A.3d (2019) (dismissing as moot Birch’s appeal from denial of petition
for new trial); a decision that, like our decision in the present case, is
predicated on the state’s use of Lee’s incorrect testimony.
We note, finally, that, at various points throughout this opinion, we briefly
discuss a number of the other claims raised by the petitioner in his habeas
petition and in his petition for a new trial. We do not decide the merits of
any of those claims, however, in light of our conclusion that the petitioner
is entitled to a new trial as a result of Lee’s incorrect testimony. To the
extent that we discuss them, we do so only to place the present claim in
the broader context of the several significant issues that the petitioner also
raises as a basis for his entitlement to a new trial.
5
A ‘‘fence’’ is a person who receives and sells stolen goods.
6
A third neighbor, Gary Smith, also reported hearing a vehicle with a
loud muffler on the night of the murder. Unlike Kennel and Church, Smith
observed the vehicle as it drove past his house. Although Smith did not
testify at the petitioner’s criminal trial, he did so at Birch’s criminal trial,
at which he described the vehicle’s taillights as being ‘‘fairly wide set’’ and
‘‘round in appearance.’’ When Smith was shown a photograph of the stolen
Buick, he testified that its taillights were not those of the vehicle he had
observed on the night of the murder. In his habeas petition, the petitioner
alleged that his trial counsel, Carl D. Eisenmann, rendered ineffective assis-
tance by failing to call Smith as a witness to rebut the state’s theory that
the loud vehicle that was heard in the vicinity of the victim’s home was the
stolen Buick.
7
It is undisputed that no dog was killed or otherwise harmed in the
commission of the victim’s murder.
8
The victim did have tattoos. At his criminal trial, however, the petitioner
denied indicating to the police that he had ever seen the victim prior to
being shown his photograph.
9
Saathoff recanted his testimony several years later, stating that the peti-
tioner had never confessed to any involvement in the burglary and the
victim’s murder. Saathoff stated that the only reason he testified that the
petitioner did so confess was because Ocif had told him that it would help
the petitioner. At the petitioner’s habeas trial, Ocif did not deny telling
both Mildred and Saathoff that the police had strong evidence placing the
petitioner at the crime scene and that it would actually help the petitioner
if they would say that he had told them that he was there but that he did
not kill the victim.
10
As we explain more fully hereinafter; see footnote 11 of this opinion;
the petitioner alleged in his habeas petition that his trial counsel was ineffec-
tive by failing to raise a third-party culpability defense against Columbo on
the basis of numerous lies that she had told the police in the early hours
of the investigation, and in light of other suspicious behavior that she exhib-
ited at that time, including, on the night of the murder, screaming to the
emergency services dispatcher, ‘‘[o]h God, he’s got a knife in his hand.’’
11
More specifically, at the habeas trial, the petitioner sought to demon-
strate that the crime scene had been staged to resemble a burglary and that
his trial counsel had rendered ineffective assistance in failing to raise a third-
party culpability defense against Columbo and Richard Burkhart, Columbo’s
lover and employer at the time of the murder, and for whom the victim also
had worked and who allegedly owed the victim money. In support of this
contention, the petitioner adduced evidence that, when Columbo was ini-
tially interviewed by the police on the night of the murder, she claimed to
have been home all evening and to have heard the victim coughing, although
she did not check on him. She then told the police that she actually had
gone out that evening and returned home between 2:30 and 3 a.m. Later,
she told the police that she had lied in her earlier statements to prevent
Burkhart from finding out that she had been with another man that evening.
Columbo also told the police that she had left the house at around 9:30 p.m.
and returned sometime between 4 and 4:30 a.m. Police records indicate,
however, that Columbo did not call for help until 4:50 a.m. and that, when
she did, according to the emergency dispatcher, she screamed, ‘‘[o]h God,
he’s got a knife in his hand.’’ There was also evidence that Columbo exhibited
highly unusual behavior immediately after the murder. For example, one of
the first responders, Anita Bagot, testified that Columbo barricaded herself
in the dining room shortly after the police arrived and, later, asked Bagot,
‘‘[w]hy would he do it . . . [w]hy would he do it,’’ clearly suggesting that
she knew the identity of the assailant. The petitioner also presented evidence
at the habeas trial that there was animus between Burkhart and the victim,
despite Burkhart’s statement to the police that he and the victim ‘‘had an
excellent relationship’’ and that he ‘‘loved’’ the victim. One witness who had
worked for Burkhart, Cynthia M. Russo-Donaghy, testified that Burkhart
had a scratch on his face on the morning after the murder and that the
victim had told her that Burkhart was a ‘‘son of a bitch’’ and that he ‘‘hate[d]’’
him. The petitioner also established that the state police received an anony-
mous telephone call on May 22, 1986, from an unknown male who said that
Burkhart had murdered the victim.
We note, finally, that the petitioner, in support of his petition for a new
trial, presented the deposition testimony of John Andrews, who stated that,
after the murder, he and Columbo became romantically involved and, for
a time, lived together. Andrews stated that, during an argument one night,
Columbo charged at him with a knife and told him that ‘‘she would kill [him]
like she killed her father.’’ According to Andrews, late at night sometime
thereafter, while he was in the kitchen and Columbo was upstairs, he was
attacked and severely injured by an unknown assailant who beat him over
the head and repeatedly stabbed him. Andrews further explained that, during
the assault, he heard a male voice telling him to ‘‘leave and don’t come
back.’’ Following this incident, Andrews decided to move out and, while
packing his belongings, found a six to seven inch knife blade without a
handle protruding from a basement wall. Andrews never told anyone about
Columbo’s threat or his discovery of the knife blade until years later, when
he was contacted by the Connecticut Innocence Project. In its memorandum
of decision, the habeas court observed that ‘‘Andrews [had] no obvious
reason to fabricate [his] recollections.’’
12
In particular, the petitioner alleged that his trial counsel had rendered
ineffective assistance by failing to interview Mildred, Saathoff and Ocif prior
to trial, and by failing to impeach their testimony at trial. The petitioner
argued that, if trial counsel had interviewed Mildred and Saathoff, he would
have learned that Ocif had goaded them into providing false testimony in
the misguided belief that they were helping the petitioner. The petitioner
further claimed that, if trial counsel had interviewed Ocif, he would have
discovered that Ocif had failed to adequately investigate any other suspects
or their possible motives for the crime or even to familiarize himself with
the investigative file because Ocif was convinced of the petitioner’s guilt
founded on the theory that the victim was killed during the course of a
burglary. In support of this contention, the petitioner elicited testimony
from Ocif that he did not assist in the crime scene investigation and had
seen only a single photograph of the crime scene. Ocif also did not know
at the time of his investigation that Columbo had lied to the police about
her whereabouts on the night of the murder, that she had barricaded herself
in the dining room after the police arrived, and that, when she called for
emergency assistance, indicated to the dispatcher that there was a man in
her home holding a knife. Ocif also was unaware of the animus between
the victim and Burkhart, and the fact that the police had received an anony-
mous call identifying Burkhart as the killer.
13
In this regard, Christine Mary Roy, a forensic science examiner with
the state’s Division of Scientific Services, testified at the petitioner’s habeas
trial that, in addition to the victim’s DNA, the DNA profile of an unknown
female was found on the bloody cigar box, the inside of the front waistband
of the victim’s underwear, the metal ring that was found under the victim
that was thought to be part of the murder weapon, and a floor board that
the police had removed, which contained two sets of bloody footprints.
Lucinda Lopes-Phelan, another forensic science examiner with the Division
of Scientific Services, testified that she had tested the victim’s underwear
on the theory that one of the assailants may have grabbed him there during
the struggle that led to the victim’s murder.
14
For example, in support of his claim that trial counsel was ineffective
insofar as counsel failed to consult a forensic footwear impression expert,
the petitioner presented the testimony of William Bodziak, a former agent
with the Federal Bureau of Investigation (FBI) and a prominent footwear
impression expert. Bodziak testified that, using techniques available at the
time of the petitioner’s criminal trial, he was able to determine that one of
the two sets of bloody footprints from the crime scene could not possibly
have been left by either the petitioner or Birch because it was made by a
size 9 or smaller shoe, perhaps even as small as a size 7 and 1/2, and the
petitioner and Birch wore shoes sized 11 and 1/2 and 10 and 1/2 to 11,
respectively. According to Bodziak, the size difference between the bloody
footprints and the petitioner’s and Birch’s shoes at the time of the murder
was ‘‘enormous . . . .’’ With respect to Bodziak’s expertise, the habeas
court made the following findings: ‘‘Obviously, expert footwear analysts
were available at the time of the petitioner’s [criminal] trial in 1989. From
1973 to 1997 . . . Bodziak was a special agent for the FBI who specialized
[in], among other [things] . . . footwear imprint analysis. He testified at
the [petitioner’s] habeas trial, and he is a well trained, extensively experi-
enced, and highly qualified expert in this field of criminology. He has testified
in nearly every state and federal trial court in the United States, including
at the trials of [Orenthal James] Simpson and [Timothy McVeigh] the Okla-
homa City bomber.’’
15
We note that one of the claims that the habeas court rejected was the
claim that the petitioner’s first habeas counsel had rendered ineffective
assistance by allowing the petitioner’s first habeas petition to be dismissed
with prejudice. In light of that conclusion, the habeas court declined to
consider the merits of several of the petitioner’s claims because they had
been raised in the first petition, and, by virtue of the dismissal of that petition
with prejudice, they could not be litigated in any subsequent habeas petition.
In rejecting this claim of ineffective assistance by first habeas counsel, the
habeas court discredited the petitioner’s testimony that his first habeas
counsel had told him that he need not appear for the scheduled habeas trial
because he was withdrawing the petition without prejudice, which would
have allowed the petitioner to refile it at a later date if and when additional
evidence became available. In doing so, the habeas court observed that
when the first habeas court asked first habeas counsel whether ‘‘it is true
that your client refused to come here,’’ he replied, ‘‘[y]es.’’ The court then
stated that it could discern ‘‘no possible motivation for [first habeas counsel]
to mischaracterize the petitioner’s position about refusing to appear and
participate in his own case with respect to [his] allegation of ineffective
assistance [against his trial counsel]. . . . The petitioner neither appealed
[from] the dismissal nor asserted any misrepresentation or misunderstanding
as to the dismissal with prejudice for the eight years between the dismissal
and the filing of the present habeas action.’’ It is undisputed, however, that
the petitioner, acting pro se, filed a timely petition for certification to appeal
from the judgment dismissing his first habeas petition and a motion for the
appointment of new habeas counsel, which the first habeas court denied.
After the dismissal of his first habeas petition, the petitioner also sent the
court a letter he had received from first habeas counsel advising him that
he need not appear. On appeal to this court, the petitioner contends that
the habeas court incorrectly determined that first habeas counsel did not
render ineffective assistance by allowing his first habeas petition to be
dismissed with prejudice or by representing to the first habeas court that
his claims against trial counsel lacked merit. As we explained, because we
conclude that the petitioner is entitled to a new trial due to the prosecutor’s
failure to correct Lee’s incorrect testimony that there was blood on the
bathroom towel, we do not reach the merits of this or any of the petitioner’s
other claims. We take this opportunity to reiterate, however, that a habeas
petition may not be dismissed with prejudice in the absence of a knowing,
voluntary, and intelligent waiver by the petitioner of the claims contained
therein. See, e.g., Nelson v. Commissioner of Correction, 326 Conn. 772,
785–86, 167 A.3d 952 (2017) (‘‘a habeas court may accept the withdrawal
of a habeas petition ‘with prejudice,’ allowing the petitioner to waive any
future habeas rights, as long as the withdrawal is knowing, voluntary, and
intelligent’’); Fine v. Commissioner of Correction, 147 Conn. App. 136, 145,
81 A.3d 1209 (2013) (‘‘in light of the magnitude of the right at issue . . .
we will not merely presume a waiver of [the petitioner’s habeas petition
with prejudice] on the basis of a silent record . . . but will give effect to
a waiver only after ensuring that it has been clearly expressed on the record,
and that it is knowing, intelligent, and voluntary’’).
16
In regard to that testimony, the habeas court found in relevant part:
‘‘As to . . . Lee’s testimony, he erroneously testified that he tested a reddish
substance on a towel seized from an upstairs bathroom, which test indicated
a positive result for blood. That stain was never tested by . . . Lee or
anyone at the crime laboratory before the petitioner’s criminal trial. In
conjunction with the present habeas action, the towel was tested, and the
reddish smear proved negative for blood.’’ The respondent, the Commis-
sioner of Correction, has never contested the results of that test.
17
For reasons unknown to us, the respondent, in his brief, does not even
cite to Cohane, let alone seek to distinguish that case or to have this court
overrule it. The habeas court similarly failed to cite to Cohane.
18
We note that the habeas court, in reaching a different conclusion, rea-
soned that the incorrect testimony was immaterial because the prosecutor
could have explained the absence of forensic evidence by arguing that the
petitioner had disposed of the evidence before his December 6, 1985 arrest
on burglary charges. As the petitioner observes, however, the prosecutor
did not make this argument at trial, and the respondent does not make it
on appeal. This is undoubtedly so because the trace evidence likely to have
been left by the perpetrators in the present case is not the kind of evidence
that could be readily identified, collected and disposed of by the perpetrators.
Moreover, testimony adduced by the state indicated that the petitioner made
no attempt to clean the Buick allegedly used in connection with the crime,
and no evidence was found in or near that vehicle, which was subjected to
a thorough examination by the investigating authorities.