Turner v. Commissioner of Correction , 181 Conn. App. 743 ( 2018 )

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KURTIS TURNER v. COMMISSIONER
OF CORRECTION
(AC 39131)
Sheldon, Keller and Eveleigh, Js.
Syllabus
The petitioner, who had been convicted of murder in connection with a
dispute that led to the shooting death of the victim, sought a writ of
habeas corpus, claiming that the habeas court abused its discretion in
denying his petition for certification to appeal because his due process
right to a fair trial was violated when the prosecutor failed to disclose
material exculpatory evidence that was favorable to the defense in
violation of Brady v. Maryland (373 U.S. 83). The state had purchased
plane fare for P to travel to Connecticut to testify at the petitioner’s
trial. The prosecutor had told P that if he believed she testified truthfully,
he would notify the prosecutor handling certain charges pending against
P of her cooperation. Prior to trial, P had told the police that an individual
other than the petitioner had stated during the dispute that somebody
was going to die within forty-eight hours. P changed her story at trial
and testified that it was the petitioner who had made that statement.
When P denied during her testimony that she was hoping for consider-
ation, aside from the plane fare, in exchange for her testimony, the
prosecutor did not correct her statement. The habeas court concluded
that no Brady violation had occurred because there was no evidence
of a formal plea agreement between P and the state, and rendered
judgment denying the habeas petition. Thereafter, the court denied the
petition for certification to appeal, and the petitioner appealed to this
court. Held that the habeas court abused its discretion in denying the
petition for certification to appeal with regard to the petitioner’s claim
that he was denied his due process right to a fair trial in violation of
Brady, as the issues involved were debatable among jurists of reason
and could have been resolved by a court in a different manner: the
prosecutor’s failure to correct the false testimony of P that she did not
expect to receive any consideration in exchange for her testimony was
material for purposes of Brady and violated the petitioner’s due process
right to a fair trial, and when the probable effect of P’s testimony was
weighed against the petitioner’s ability to impeach her and the weak-
nesses of the state’s case, there was a reasonable likelihood that the
false testimony could have affected the verdict such that the petitioner
was entitled to a new trial, as the strength of the state’s case was not
overwhelming, P was a crucial witness for the state in that her testimony
provided evidence of motive, intent and means on the part of the peti-
tioner, and negated any effect that his self-defense argument may have
had on the jury, the state relied heavily on P’s testimony in its closing
argument, and, therefore, any evidence that could have affected her
credibility would have been vital to the defense; moreover, the habeas
court applied an incorrect legal standard when it determined that the
petitioner had not proven a Brady violation resulting from the state’s
failure to disclose P’s informal agreement with the state to receive
consideration in exchange for her testimony at the petitioner’s criminal
trial, as the habeas court’s conclusion that no exculpatory evidence was
withheld from the petitioner was premised on its factual finding that
there was no evidence of a plea agreement between the state and P,
and it was not necessary for the petitioner to establish the existence
of a formal plea agreement in order to prove a Brady violation, as
evidence that merely suggests an informal understanding between the
state and a witness may constitute impeachment evidence for purposes
of Brady and such evidence is not limited to the existence of a plea
agreement.
Argued December 7, 2017—officially released May 8, 2018
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland, where the petition was withdrawn in part;
thereafter, the matter was tried to the court, Sferrazza,
J.; judgment denying the petition; subsequently, the
court denied the petition for certification to appeal,
and the petitioner appealed to this court. Reversed;
judgment directed.
Vishal K. Garg, assigned counsel, for the appellant
(petitioner).
Stephen M. Carney, senior assistant state’s attorney,
with whom, on the brief, was Michael L. Regan, state’s
attorney, for the appellee (respondent).
Opinion
EVELEIGH, J. The petitioner, Kurtis Turner, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his petition for a writ of habeas corpus. On appeal, the
petitioner claims that the habeas court (1) abused its
discretion in denying his petition for certification to
appeal, and (2) improperly concluded that there were
no violations of Brady v. Maryland, 373 U.S. 83, 83 S.
Ct. 1194, 10 L. Ed. 2d 215 (1963), at his underlying
criminal trial.1 For the reasons set forth herein, we agree
with the petitioner and conclude that the habeas court
abused its discretion in denying the petition for certifi-
cation to appeal and in denying the petition for a writ
of habeas corpus. Accordingly, we reverse the judgment
of the habeas court and remand the matter for a new
trial.
The following facts and procedural history are rele-
vant to our resolution of this appeal. After a jury trial,
the petitioner was convicted of murder in violation of
General Statutes § 53a-54a (a) and sentenced to sixty
years incarceration. Our prior decision on the petition-
er’s direct appeal in State v. Turner, 133 Conn. App.
812, 37 A.3d 183, cert. denied, 304 Conn. 929, 42 A.3d
390 (2012), set forth the following facts: ‘‘In June, 2007,
the [petitioner] was living in an apartment in New Lon-
don with Curtis McGill. McGill had, on several occa-
sions, sold the drug PCP to Lakisha Alexander, the
sister of Vernall Marshall, the victim. At some point
during or near in time to April, 2007, Alexander stole
some PCP from McGill’s apartment. McGill later discov-
ered that she had done so and told her that she owed
him a favor.
‘‘On June 19, 2007, Alexander, the victim, and two of
the victim’s friends encountered McGill, who was alone,
on Bank Street in New London. The victim approached
McGill, and the two of them conversed apart from the
others. During the conversation, the victim told McGill
that he would not let McGill disrespect his sister. After
talking with McGill for two to five minutes, the victim
walked back to Alexander and the others. McGill
appeared to be upset, remarking several times that he
felt threatened.
‘‘Subsequent to this encounter with the victim, McGill
made a telephone call, and, three to five minutes later,
a car came down Bank Street and parked next to McGill.
Three individuals got out of the car, one of whom was
the [petitioner], who was holding a gun. The [petitioner]
waved the gun in the air and pointed it at the victim,
proclaiming, ‘I’ll do anybody out here,’ ‘You want to die?’
and, ‘somebody is going to die.’ After approximately
one minute, McGill told the [petitioner] to stop, and the
[petitioner] lowered the gun and returned to the car
with the other two individuals. The three of them left
in the car, and McGill walked away from the victim,
Alexander and the others. On the way back to the apart-
ment, the [petitioner] repeatedly remarked that
‘[w]ithin forty-eight hours somebody is going to die.’
‘‘On the night of June 20, 2007, the victim was in New
London having drinks with friends. He had gone into
New London with his friend, Shannon Johnson, and
later that evening he met up with Alexander. In the
early morning hours of June 21, 2007, the victim again
met up with Johnson on the sidewalk just outside the
front entrance to Ernie’s Cafe´ on Bank Street. At this
time, the [state claims, the petitioner] approached the
victim and shot him in the head. Emergency personnel
took the victim by ambulance to a nearby hospital,
where, after approximately twelve minutes of medical
care, he was pronounced dead.
‘‘On January 8, 2008, the state filed an information
charging the [petitioner] with murder in violation of
§ 53a-54a (a). On May 28, 2008, attorney Raul [Davila-
Carlos] was appointed as a special public defender to
represent the [petitioner], which he did for approxi-
mately one year without complaint. Beginning on the
first day of jury selection on May 28, 2009, the [peti-
tioner] made several requests that the court remove
[Davila-Carlos] as his counsel and either appoint new
counsel or allow him to represent himself. The court
denied the [petitioner’s] requests to have new counsel
appointed, noting that the requests were made on the
eve of trial. The trial then proceeded with [Davila-Car-
los] representing the [petitioner]. . . .
‘‘On July 16, 2009, at the conclusion of the state’s
case-in-chief, the [petitioner] made an oral motion for
a judgment of acquittal, asserting that the evidence was
insufficient to establish guilt beyond a reasonable
doubt, which the court denied. The jury returned a
verdict of guilty, and the [petitioner] was sentenced
to sixty years incarceration.’’ Id., 814–16. This court
affirmed the petitioner’s conviction on direct appeal.
See id., 814.
On March 1, 2013, the petitioner, in a self-represented
capacity, filed a petition for writ of habeas corpus. On
May 8, 2015, the petitioner, represented by appointed
counsel, filed the amended petition operative in this
appeal. In the amended petition, the petitioner alleged
that (1) his constitutional right to the effective assis-
tance of trial counsel was violated, (2) his right to due
process was violated by the prosecuting authority’s
knowing presentation of false testimony, and (3) his
right to due process was violated by the prosecuting
authority’s failure to disclose material exculpatory evi-
dence.2 The habeas trial was held over three days from
September 28, 2015 to September 30, 2015. The peti-
tioner presented the testimony of, inter alia, Raul Dav-
ila-Carlos, the petitioner’s trial counsel, and John P.
Gravelec-Pannone, the prosecuting attorney in the peti-
tioner’s case. Following the trial, the habeas court, Sfer-
razza, J., denied the petition in a written decision in
which it concluded that the petitioner had not met his
burden to prove ineffective assistance of counsel or a
violation of his due process rights. Thereafter, the
habeas court denied the petition for certification to
appeal, and this appeal followed. Additional facts and
procedural history will be set forth as necessary.
I
The petitioner claims that the habeas court abused
its discretion in denying his petition for certification to
appeal from the denial of his petition for a writ of
habeas corpus with respect to his claim of due process
violations. We agree.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
[the petitioner] must demonstrate that the denial of
his petition for certification constituted an abuse of
discretion. . . . Second, if the petitioner can show an
abuse of discretion, he must then prove that the deci-
sion of the habeas court should be reversed on the
merits. . . . To prove that the denial of his petition for
certification to appeal constituted an abuse of discre-
tion, the petitioner must demonstrate that the [resolu-
tion of the underlying claim involves issues that] are
debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to
proceed further. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by [our Supreme
Court] for determining the propriety of the habeas
court’s denial of the petition for certification.’’ (Cita-
tions omitted; internal quotation marks omitted.) Sand-
ers v. Commissioner of Correction, 169 Conn. App. 813,
821–22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904,
156 A.3d 536 (2017).
As discussed in part II of this opinion, because the
resolution of the petitioner’s underlying claim involves
issues that are debatable among jurists of reason and
could have been resolved by a court in a different man-
ner, we conclude that the habeas court abused its dis-
cretion in denying certification to appeal from the denial
of the petition for a writ of habeas corpus.
II
The petitioner claims that his due process rights were
violated by the prosecuting attorney’s knowing presen-
tation of false or misleading testimony and failure to
disclose material impeachment evidence as required by
Brady v. Maryland, supra, 373 U.S. 83. Specifically, the
petitioner argues that (1) Gravelec-Pannone failed to
correct the false testimony of Alice Philips, a cooperat-
ing witness for the prosecution, that she had not
received consideration in exchange for her testimony;
and (2) the prosecution failed to disclose the material
exculpatory evidence that the state had provided con-
sideration in exchange for the testimony of Philips, who
was a friend of the victim and testified on behalf of the
state about the dispute among the petitioner, McGill
and the victim.
The following additional facts are relevant to this
issue. In her initial statement to the police, Philips told
them that McGill was the individual who said that some-
body was going to be dead within forty-eight hours.
Prior to testifying at the petitioner’s trial, Gravelec-
Pannone told Philips that if he believed she testified
truthfully, he would notify the prosecutor handling her
own pending charges of her cooperation. The State’s
Attorney’s Office also purchased plane fare for Philips,
who traveled from Michigan to Connecticut to testify
at the petitioner’s trial.
At the petitioner’s trial, Philips admitted that she was
flown in by the state to answer to her outstanding war-
rants and had just been arraigned on those charges. Her
defense counsel was present throughout her testimony.
Notably, Philips changed her story when she testified
at trial that the petitioner, rather than McGill, uttered
the statement that somebody was going to die within
forty-eight hours. Furthermore, when asked if she was
hoping for any consideration, aside from the plane fare,
in exchange for her testimony, Philips answered, ‘‘no.’’
Gravelec-Pannone did not correct that statement.
After testifying at the petitioner’s trial, Philips was
transported to the geographical area number ten court-
house in New London to plead guilty on her outstanding
charges. Peter A. McShane, a prosecutor in that court-
house at the time Philips was put to plea, informed
the court, McMahon, J., that she had cooperated and
testified on behalf of the state at the petitioner’s trial.
Thereafter, Philips received a one year sentence, fully
suspended, with a one year conditional discharge where
the sole condition was not to return to Connecticut.
At the petitioner’s habeas trial, McShane testified that
Philips’ case ‘‘just showed up on the docket,’’ and that
he did not remember who advised him of the fact that
Philips had testified in a case in the part A court. Addi-
tionally, McShane testified that it did not appear that
he or anyone else working in his office at the geographi-
cal area number ten courthouse ever made a sentencing
recommendation to Judge McMahon; it appeared that
the judge sua sponte came up with a court-indicated
sentence for Philips.
Gravelec-Pannone testified that after Philips was
done testifying in the petitioner’s case, he instructed
his inspector to let the prosecutor in Philips’ case know
that she had testified to his satisfaction. Gravelec-Pan-
none acknowledged that notifying the prosecutor in
Philips’ case that she had testified helpfully was a form
of consideration in exchange for her testimony, ‘‘but
no specific consideration that you’re going to get this
deal up front if you do that.’’ He indicated, however,
that he did not correct Philips’ statement that she was
not expecting consideration because he did not want
to impeach his own witness. He indicated that his office
would not have told the prosecutors in the geographical
area number ten courthouse what to do with Philips’
cases, but would make them aware that she was going
to be a witness in their case and would keep them
posted as to what happened in the part A court. He
also testified that Philips’ father was a marshal in the
New London part A court, and that he had ‘‘used his
efforts’’ to persuade Philips to come back from Michi-
gan to ‘‘testify and face the music’’ regarding her pend-
ing charges in Connecticut. After Philips’ outstanding
cases were resolved, Gravelec-Pannone ‘‘communi-
cated [to Davila-Carlos] [the] fact that [Philips’] cases
were resolved, and she would be heading back to Michi-
gan shortly thereafter, but [Davila-Carlos] was aware
that [Philips] was still in New London and capable of
being served with a subpoena if [Davila-Carlos] needed
to do that.’’ The State’s Attorney’s Office paid for an
airline ticket for Philips to return to Michigan the day
after she pleaded guilty.
Davila-Carlos testified that he did not have a recollec-
tion of the state informing him of the agreement with
Philips, but that he could have argued the issue of Phil-
ips’ credibility to the jury if he had known of a prior
agreement. He also testified that he had not wanted
to discredit Philips’ testimony too much because he
believed her recollection of the dispute between the
petitioner and the victim aided in his self-defense
argument.
On the basis of this testimony, the habeas court con-
cluded that the petitioner had failed to establish a Brady
violation because ‘‘no exculpatory evidence was with-
held from the petitioner, nor did [Philips] testify falsely
at his criminal trial.’’
We next set forth our standard of review and the
applicable legal principles governing Brady claims. As
set forth by the United States Supreme Court in Brady
v. Maryland, supra, 373 U.S. 87, ‘‘[t]o establish a Brady
violation, the [petitioner] must show that (1) the govern-
ment suppressed evidence, (2) the suppressed evidence
was favorable to the [petitioner], and (3) it was material
[either to guilt or to punishment].’’ (Internal quotation
marks omitted.) Morant v. Commissioner of Correc-
tion, 117 Conn. App. 279, 295, 979 A.2d 507, cert. denied,
294 Conn. 906, 982 A.2d 1080 (2009). ‘‘Whether the peti-
tioner was deprived of his due process rights due to a
Brady violation is a question of law, to which we grant
plenary review.’’ (Internal quotation marks omitted.)
Peeler v. Commissioner of Correction, 170 Conn. App.
654, 689, 155 A.3d 772, cert. denied, 325 Conn. 901, 157
A.3d 1146 (2017).
‘‘[T]he 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. . . . Because a plea
agreement is likely to bear on the motivation of a wit-
ness who has agreed to testify for the state, such
agreements are potential impeachment evidence that
the state must disclose. . . .
‘‘[A] prosecutor’s failure to disclose favorable evi-
dence will constitute a violation of Brady only if the
evidence is found to be material. . . . In a classic
Brady case . . . the evidence will be deemed material
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).
A
We first address the petitioner’s claim that the prose-
cutor’s failure to correct Philips’ false testimony that
she did not expect any consideration for her testimony
deprived him of his due process right to a fair trial
under Brady. In response, the respondent, the Commis-
sioner of Correction, argues that even if the witness
did testify falsely and the prosecutor failed to correct
that testimony, there was no reasonable likelihood that
the misleading testimony could have affected the judg-
ment of the jury. We agree with the petitioner.
We set forth the legal principles applicable to this
issue. The state has a duty to correct the record if it
knows that a witness has testified falsely. See Diaz v.
Commissioner of Correction, 174 Conn. App. 776, 796,
166 A.3d 815 (‘‘[D]ue process is . . . offended if the
state, although not soliciting false evidence, allows it
to go uncorrected when it appears. . . . If a govern-
ment witness falsely denies having struck a bargain with
the state, or substantially mischaracterizes the nature
of the inducement, the state is obliged to correct the
misconception.’’ [Internal quotation marks omitted.]),
cert. denied, 327 Conn. 957, 172 A.3d 204 (2017); see
also Gomez v. Commissioner of Correction, 178 Conn.
App. 519, 539, 176 A.3d 559 (2017) (‘‘[r]egardless of the
lack of intent to lie on the part of the witness, Giglio
[v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed.
2d 104 (1972)] and Napue [v. Illinois, supra, 360 U.S.
264] require that the prosecutor apprise the court when
he knows that his witness is giving testimony that is
substantially misleading’’ [internal quotation marks
omitted]), cert. granted on other grounds, 328 Conn.
916, A.3d (2018).3
‘‘When . . . a prosecutor obtains a conviction with
evidence that he or she knows or should know to be
false, the materiality standard [of Brady] 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 reasonable likelihood that the false testimony could
have affected the judgment of the jury. . . . This stan-
dard . . . 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, notwith-
standing a violation of constitutional magnitude, upon
a showing that the violation was harmless beyond a
reasonable doubt. . . . This strict standard of material-
ity is appropriate in such cases not just because they
involve prosecutorial misconduct, but more import-
antly 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 suffi-
cient 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 testimony
could have affected the judgment of the jury. . . .
‘‘In accordance with these principles, our determina-
tion of whether [the witness’] false testimony was mate-
rial under Brady and its progeny 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].’’ (Emphasis in original;
internal quotation marks omitted.) State v. Jordan,
supra, 314 Conn. 370–71.
Applying the foregoing principles to the petitioner’s
claim, we conclude that the prosecutor’s failure to cor-
rect the false testimony of Philips that she was not
hoping for any consideration in exchange for her testi-
mony violated the petitioner’s due process right to a fair
trial. Weighing the probable effect of Philips’ testimony
against the petitioner’s ability to impeach her and the
weaknesses of the state’s case, we conclude that there
is a reasonable likelihood that the false testimony could
have affected the judgment of the jury. The state’s the-
ory of the case, namely, that the petitioner shot the
victim as part of the dispute between McGill, the peti-
tioner and the victim, was largely dependent on Philips’
testimony. Philips testified that on the day before the
shooting, she witnessed the petitioner pull a gun out
of his hoodie with his right hand, wave the gun around,
and point it at the victim. She testified that the petitioner
said, ‘‘you want to die, you want to die,’’ followed by,
‘‘before [forty-eight] hours they was gonna die.’’ The
petitioner put the gun back into his hoodie when McGill
told him to stop. The petitioner and Philips then left
the scene in the car of a friend, Shauntay. On the ride
back to Shauntay’s house, the petitioner again stated,
‘‘within [forty-eight] hours somebody is going to die.’’
Alexander was the only other witness who testified
about the dispute between the petitioner and the victim
on the night before the shooting, but her testimony was
far less detailed than Philips’ description of the event.
Alexander testified that the petitioner had a gun and
‘‘kind of waved it in the air,’’ and stated, ‘‘I’ll do anybody
out here.’’ Alexander, however, had substantial credibil-
ity issues; she was the sister of the victim, had a signifi-
cant PCP addiction during 2007, and admitted that she
was the individual who stole PCP from McGill in the
months before the shooting. Although Alexander
claimed not to know the substance of the argument
between the victim, the petitioner and McGill, Philips
testified that the three were clearly arguing about Alex-
ander owing McGill money for the PCP she stole. Addi-
tionally, Philips testified that Alexander appeared to be
high on PCP at the time of the dispute.
The state also offered a surveillance video into evi-
dence to support its theory that the petitioner had killed
the victim. On the night of June 20, 2007, Ernie’s Cafe´
had surveillance cameras pointed in the direction of
the entrance to the bar. At approximately 12:19 a.m. on
June 21, 2007, the video recording showed the petitioner
get up from a table where he was sitting with friends
and walk toward the entrance to the bar. The petitioner
was dressed in a dark shirt, light colored jeans, and
a black baseball cap. The petitioner reached into the
waistband of his jeans with his right hand as he walked
to the front door. As the petitioner reached the entrance,
the video recording showed the victim fall to the ground
just outside the front door. The petitioner then ran out
the front door and to his right toward Golden Street.
The state acknowledged, however, that the video
does not clearly show the petitioner as the shooter of
the victim.4 The state was also unable to offer any physi-
cal evidence that identified the petitioner as the shooter
of the victim, such as fingerprints, DNA, or bullet frag-
ments. Because the state relied heavily on Philips’ testi-
mony in its closing argument, labelling her a ‘‘very
important’’ witness in the case who ‘‘straddle[d] or
reflect[ed] both sides in this matter,’’ her credibility was
important to the jury’s verdict. The petitioner’s trial
counsel was unable to cross-examine or impeach Phil-
ips regarding her false testimony about the consider-
ation she anticipated receiving for her favorable
testimony because he was not informed that Philips
received any consideration for such testimony until
after she was done testifying at the petitioner’s trial.
Against this background, we conclude that the prose-
cutor’s failure to correct Philips’ false testimony was
material for the purposes of Brady. Philips was a crucial
witness for the state. Her testimony provided evidence
of motive, intent, and means on the part of the peti-
tioner. Further, her testimony negated any possible
effect that the self-defense argument by the petitioner’s
trial counsel may have had on the jury because it painted
the petitioner as an aggressor. Therefore, any evidence
that would affect her credibility would be vital to the
defense. The petitioner is entitled to a new trial because
the strength of the state’s case was not so overwhelming
that there is no reasonable likelihood that the witness’
false testimony affected the judgment of the jury. Cf.
State v. Jordan, supra, 314 Conn. 372.
B
The petitioner also claims that he suffered a violation
of his due process rights under Brady because the pros-
ecution did not disclose Philips’ informal agreement
with the state to receive consideration in exchange for
her testimony at the petitioner’s trial. In response, the
respondent argues that no material evidence was with-
held from the petitioner because Philips’ pending
charges were disclosed. Because we determine that the
habeas court applied an incorrect legal standard to this
issue, the petitioner is entitled to a new trial.
The habeas court’s conclusion that ‘‘no exculpatory
evidence was withheld from the petitioner’’ was prem-
ised on its factual finding that there was no evidence
of a plea agreement between the state and Philips. Our
case law is clear, however, that the petitioner need not
establish the existence of a formal plea agreement in
order to prove a Brady violation. ‘‘[E]vidence that
merely suggests an informal understanding between the
state and a state’s witness may constitute impeachment
evidence for the purposes of Brady. . . . Such evi-
dence is by no means limited to the existence of plea
agreements.’’ (Citation omitted; emphasis in original.)
Diaz v. Commissioner of Correction, supra, 174 Conn.
App. 798. ‘‘An agreement by a prosecutor with a cooper-
ating witness to bring the witness’ cooperation to the
attention of the judge who later sentences the witness
on his own pending criminal charges is a deal that
must be disclosed to the defendant against whom [she]
testifies, even if the deal does not involve a specific
recommendation by the prosecutor for the imposition
of a particular sentence.’’ Hines v. Commissioner of
Correction, 164 Conn. App. 712, 725, 138 A.3d 430
(2016); see also Walker v. Commissioner of Correction,
103 Conn. App. 485, 493, 930 A.2d 65 (‘‘[a]ny such under-
standing or agreement between any state’s witness and
the state police or the state’s attorney clearly falls within
the ambit of the Brady principles’’), cert. denied, 284
Conn. 940, 937 A.2d 698 (2007).
It is generally undisputed that there was an informal
agreement between Philips and the prosecutor for her
cooperation at the petitioner’s trial, and that she
received consideration for her favorable testimony.
Gravelec-Pannone acknowledged that notifying the
prosecutor in Philips’ case that she had cooperated at
the petitioner’s trial was a form of consideration. The
court, therefore, applied the incorrect legal standard
when it determined that the petitioner had not proven
a Brady violation because there was no evidence of a
formal plea agreement between Philips and the state.
‘‘[W]hether the court applied the correct legal stan-
dard is a question of law subject to plenary review.
. . . When an incorrect legal standard is applied, the
appropriate remedy is to reverse the judgment of the
trial court and to remand the matter for further proceed-
ings.’’ (Internal quotation marks omitted.) Carraway v.
Commissioner of Correction, 144 Conn. App. 461, 471,
72 A.3d 426 (2013), appeal dismissed, 317 Conn. 594,
119 A.3d 1153 (2015). Accordingly, the petitioner is enti-
tled to a new trial on this basis.
In sum, we conclude that the petitioner has estab-
lished that he suffered a Brady violation at his criminal
trial when the prosecutor failed to correct Philips’ false
testimony that she did not expect to receive any consid-
eration, aside from plane fare, in exchange for her testi-
mony. Additionally, we conclude that the habeas court
applied an incorrect legal standard in determining
whether the petitioner suffered a Brady violation in
that Philips’ informal agreement with the state was not
disclosed to the defense. On those bases, we further
conclude that the habeas court abused its discretion in
denying the petition for certification to appeal from the
denial of the petition for a writ of habeas corpus.
The judgment is reversed and the case is remanded
with direction to render judgment granting the petition
for a writ of habeas corpus, to vacate the petitioner’s
conviction under § 53a-54a (a) and to order a new trial
on that offense.
In this opinion the other judges concurred.
1
Additionally, the petitioner claims that the habeas court improperly con-
cluded that he failed to establish the ineffectiveness of his trial counsel. In
light of our decision to grant the petitioner relief from his challenged convic-
tion on the basis of his Brady claim, we do not reach the merits of this
alternate substantive claim.
2
See footnote 1 of this opinion. In the amended petition, the petitioner also
alleged the ineffective assistance of his appellate counsel. The petitioner,
however, withdrew that count on September 28, 2015.
3
We emphasize that all attorneys have a duty of candor to the court. Rule
3.3 (a) of the Rules of Professional Conduct provides in relevant part: ‘‘A
lawyer shall not knowingly . . . (3) [o]ffer evidence that the lawyer knows
to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer,
has offered material evidence and the lawyer comes to know of its falsity,
the lawyer shall take reasonable remedial measures, including, if necessary,
disclosure to the tribunal.’’
Prosecutors also have special responsibilities to the court, proscribed by
rule 3.8 of the Rules of Professional Conduct, which provides in relevant part:
‘‘The prosecutor in a criminal case shall . . . (4) [m]ake timely disclosure
to the defense of all evidence or information known to the prosecutor that
tends to negate the guilt of the accused or mitigates the offense . . . .’’
4
During closing arguments, Gravelec-Pannone argued: ‘‘The state wishes
we could give you a clearer or more enhanced video than we’ve shown you.
. . . [T]he quality of this is not television or the movies. We can’t give you
a clear, pristine picture of the events.’’