Brown v. Commissioner of Correction ( 2018 )

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DANNY BROWN v. COMMISSIONER
OF CORRECTION
(AC 39476)
DiPentima, C. J., and Elgo and Flynn, Js.
Syllabus
The petitioner, who had been convicted of the crimes of murder and conspir-
acy to commit murder, sought a writ of habeas corpus, claiming, inter
alia, that the state had violated his due process rights by suppressing
material exculpatory evidence in violation of Brady v. Maryland (373
U.S. 83). Specifically, the petitioner claimed that the state failed to
disclose evidence of express or implied agreements it allegedly had
made with two witnesses, V and S, both of whom also had been charged
in connection with the underlying murder, in exchange for their testi-
mony at the petitioner’s criminal trial. The habeas court rendered judg-
ment denying the habeas petition and thereafter denied the petition for
certification to appeal, and the petitioner appealed to this court. Held:
1. The habeas court did not abuse its discretion in denying the petition for
certification to appeal as to the petitioner’s Brady violation claim, that
court having properly concluded that the state had not committed a
Brady violation with respect to its agreements with V and S to bring
their cooperation in the petitioner’s criminal trial to the attention of the
court in their criminal proceedings; the habeas court’s finding that the
state had disclosed the agreements to the petitioner prior to his criminal
trial was not clearly erroneous and was supported by the evidence in
the record, and because the petitioner did not present evidence that
compelled a finding by the habeas court that the state also had
agreements with V and S to give them favorable treatment at their bond
hearings, the petitioner’s Brady claim and his related claim that the
state improperly failed to correct the false testimony of V and S at his
criminal trial necessarily failed.
2. The habeas court did not abuse its discretion in denying the petition for
certification to appeal as to the petitioner’s claim that his trial counsel
was ineffective in failing to adequately cross-examine V and S, which
was based on the fact that counsel did not order, review or utilize
transcripts of their bond hearings: the record demonstrated that the
reduction of S’s and V’s bonds, as well as the incentive of S and V to
testify at the petitioner’s trial, repeatedly was brought to the attention of
the jury, which was presumed to have followed the accomplice testimony
instruction that it had been given by the trial court, and, therefore, the
petitioner failed to demonstrate a reasonable probability that, but for
his trial counsel’s failure to obtain the bond hearing transcripts and to
cross-examine S and V therewith, the result of his criminal trial would
have been different.
Argued November 13, 2017—officially released January 23, 2018
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Cobb, J.; thereafter, the
petition was withdrawn in part; judgment denying the
petition; subsequently, the court denied the petition for
certification to appeal, and the petitioner appealed to
this court. Appeal dismissed.
James E. Mortimer, assigned counsel, with whom,
on the brief, was Michael D. Day, assigned counsel, for
the appellant (petitioner).
Theresa Anne Ferryman, senior assistant state’s
attorney, with whom, on the brief, were Michael L.
Regan, state’s attorney, and Stephen M. Carney, senior
assistant state’s attorney, for the appellee (respondent).
Opinion
ELGO, J. The petitioner, Danny Brown, known also
as Daniel Brown,1 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. The petitioner claims that the court
abused its discretion by denying his petition for certifi-
cation to appeal, and by rejecting his claims that (1)
the state violated his rights to due process and a fair
trial by failing to disclose material exculpable evidence
and failing to correct false testimony from certain wit-
nesses at his criminal trial, and (2) his criminal trial
counsel rendered ineffective assistance. We conclude
that the habeas court did not abuse its discretion in
denying the petition for certification to appeal and,
therefore, dismiss the appeal.
This case involves a homicide in New London. As
the Supreme Court recounted in the petitioner’s direct
appeal, ‘‘James ‘Tiny’ Smith and Darrell Wattley fought
at a party on July 4, 1995. Wattley sliced Smith’s throat
with a box cutter, wounding him superficially. On the
afternoon of July 13, 1995, [the petitioner] and [Jamie]
Gomez picked Smith up at the house of Smith’s mother,
and drove him to [Anthony] Booth’s apartment at 93
State Pier Road in New London. When the three men
arrived at Booth’s apartment, Booth told them that he
had asked Angeline Valentin, who lived in the same
building, to call Wattley over to the building so that
Wattley and Smith could fight. Booth, [the petitioner],
Gomez and Smith watched television while they waited
for Wattley to arrive. During their wait, and while [the
petitioner] was rummaging through a grey knapsack,
Booth asked [the petitioner] whether he ‘[had worn]
gloves when he loaded it.’ Booth also had a knife in his
hand. When Smith asked Booth why he needed the
knife, Booth replied: ‘[D]on’t worry about it, we are just
going to fight him.’
‘‘When Valentin called to say that Wattley was on his
way, the four men left the building and went outside.
Gomez and [the petitioner] went to the north side of
the building while Smith and Booth went to the south
side and hid behind a bush. While they were waiting,
Booth was talking on a cellular telephone to either
[the petitioner] or Gomez. After approximately fifteen
minutes, a car arrived and Wattley got out. Wattley
walked toward the north end of the building, where
[the petitioner] and Gomez were waiting. Smith and
Booth then entered the building on the south side and
began to ascend the stairs. When Smith and Booth
reached the third floor, where Valentin’s apartment was
located, they heard gunshots below. Smith and Booth
then ran to exit the building. As they descended the
stairs, they saw Wattley lying face down in the second
floor hallway with blood everywhere. Booth then
stabbed Wattley a couple of times before Smith and
Booth fled the building.
‘‘The four men ran to a red Mitsubishi, which was
parked on State Pier Road, east of the building. This
car was owned by Gomez’ girlfriend, Dawn Waterson.
Gomez sat in the driver’s seat, and [the petitioner],
Smith and Booth sat in the passenger seats. As they
drove away, [the petitioner] said ‘I robbed that nigger
too.’ [The petitioner] had a knife in his lap, which he
threw out of the window while they were driving.
Gomez drove Waterson’s car across town and parked it
behind a mall. The four men walked through a cemetery
before splitting up. In the cemetery, Booth told them
that, if questioned, he and [the petitioner] would say
that they had been together. In addition, Booth told
Smith and Gomez to come up with an alibi. The four
men then separated.
‘‘A few hours after the murder, Booth approached
Valentin in the parking lot of 93 State Pier Road. Booth
told her that they shot ‘him.’ Booth also told Valentin
that he knew that she would not have lured Wattley to
the building if she had known that they intended to
murder him.’’ (Footnote omitted.) State v. Booth, 250
Conn. 611, 614–15, 737 A.2d 404 (1999), cert. denied
sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S.
Ct. 1568, 146 L. Ed. 2d 471 (2000).
The petitioner subsequently was arrested and a con-
solidated trial with Booth and Gomez followed, at the
conclusion of which the jury found all three defendants
guilty of murder in violation of General Statutes § 53a-
54a, and conspiracy to commit murder in violation of
General Statutes §§ 53a-54a and 53a-48 (a).2 Id., 613.
The petitioner directly appealed from that judgment
of conviction, which our Supreme Court affirmed in a
consolidated appeal with Booth and Gomez. Id., 663.
The petitioner commenced this habeas action in 2013.
On March 15, 2016, he filed a second amended petition
for a writ of habeas corpus that contained two counts.
The first alleged ineffective assistance on the part of
his criminal trial counsel, Attorney Jeremiah Donovan,
in failing to adequately cross-examine and impeach the
testimony of Smith and Valentin.3 In the second count,
the petitioner alleged a due process violation stemming
from the state’s handling of allegedly exculpatory evi-
dence regarding the testimony of Smith and Valentin.
More specifically, the petitioner alleged that the state
‘‘failed to disclose material favorable evidence to the
petitioner with respect to an express or implied
agreement’’ with both Smith and Valentin ‘‘for favorable
treatment in [their] then pending criminal case[s] and
failed to correct [their] false or misleading testimony
concerning the same . . . .’’
A habeas trial was held on March 5, 2016, at which
Donovan was the sole witness.4 In its subsequent memo-
randum of decision, the habeas court rejected the peti-
tioner’s claims. With respect to his ineffective
assistance of counsel claim, the court concluded that
the petitioner failed to satisfy the prejudice prong of
Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). As to his claims regarding
the suppression of allegedly exculpatory evidence, the
court found that the petitioner failed to prove the exis-
tence of an agreement between the state and Smith and
Valentin that the state had suppressed. In so doing,
the court acknowledged that Donovan, in his habeas
testimony, confirmed that the state had assured Smith
and Valentin that their ‘‘cooperation [at the petitioner’s
criminal trial] would be taken into consideration upon
sentencing.’’ The court nonetheless found that the peti-
tioner had not met his burden in demonstrating that
the state suppressed evidence of that assurance. The
court further found that ‘‘even if the [state] had sup-
pressed evidence, the petitioner also failed to prove
that this evidence would have been material.’’ The court,
therefore, denied the petition for a writ of habeas cor-
pus. The petitioner then filed a petition for certification
to appeal to this court, which the habeas court denied,
and this appeal followed.
On appeal, the petitioner claims that the court abused
its discretion in denying the petition for certification
to appeal. Our standard of review for such claims is
well established. ‘‘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 consti-
tuted an abuse of discretion. . . . Second, if the peti-
tioner can show an abuse of discretion, he must then
prove that the decision of the habeas court should be
reversed on the merits. . . . A petitioner may establish
an abuse of discretion by demonstrating that the issues
are debatable among jurists of reason . . . [the] court
could resolve the issues [in a different manner] . . .
or . . . the questions are adequate to deserve encour-
agement to proceed further. . . . In determining
whether the habeas court abused its discretion in deny-
ing the petitioner’s request for certification, we neces-
sarily must consider the merits of the petitioner’s
underlying claims to determine whether the habeas
court reasonably determined that the petitioner’s
appeal was frivolous.’’ (Citation omitted; internal quota-
tion marks omitted.) Ramos v. Commissioner of Cor-
rection, 172 Conn. App. 282, 294, 159 A.3d 1174, cert.
denied, 327 Conn. 904, 170 A.3d 1 (2017). With that
standard in mind, we turn to the substantive claims
raised by the petitioner.
I
The petitioner first contends that the court abused
its discretion in denying his petition for certification to
appeal because the state violated his right to due pro-
cess and a fair trial by failing to disclose material excul-
patory evidence in contravention of Brady v. Maryland,
373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
The petitioner claims that the state suppressed evidence
of an agreement between the state and Smith and Valen-
tin in exchange for their testimony at the petitioner’s
criminal trial.
‘‘The law governing the state’s obligation to disclose
exculpatory evidence to defendants in criminal cases
is well established. The defendant has a right to the
disclosure of exculpatory evidence under the due pro-
cess clauses of both the United States constitution and
the Connecticut constitution. . . . In order to prove a
Brady violation, the defendant must show: (1) that the
prosecution suppressed evidence after a request by the
defense; (2) that the evidence was favorable to the
defense; and (3) that the evidence was material. . . .
‘‘It is well established that [i]mpeachment evidence
as well as exculpatory evidence [fall] within Brady’s
definition of evidence favorable to an accused. . . .
[An express or implied] plea agreement between the
state and a key witness is impeachment evidence falling
within the definition of exculpatory evidence contained
in Brady . . . .
‘‘The [United States] Supreme Court established a
framework for the application of Brady to witness plea
agreements in Napue v. Illinois, 360 U.S. 264, 79 S. Ct.
1173, 3 L. Ed. 2d 1217 (1959), and Giglio v. United
States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104
(1972). . . . Drawing from these cases, [the Connecti-
cut Supreme Court] has stated: [D]ue process is . . .
offended if the state, although not soliciting false evi-
dence, allows it to go uncorrected when it appears. . . .
If a government 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. . . . Regardless of the lack
of intent to lie on the part of the witness, Giglio and
Napue require that the prosecutor apprise the court
when he knows that his witness is giving testimony that
is substantially misleading. . . . A new trial is required
if the false testimony could . . . in any reasonable like-
lihood have affected the judgment of the jury.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Ouellette, 295 Conn. 173, 185–86, 989 A.2d 1048 (2010).
As our Supreme Court has explained, ‘‘[t]he prerequi-
site of any claim under the Brady, Napue and Giglio line
of cases is the existence of an undisclosed agreement
or understanding between the cooperating witness and
the state.’’ Id., 186. In its memorandum of decision, the
habeas court found that no specific agreement existed
between the state and either Smith or Valentin, apart
from the state’s assurance that it would bring their
cooperation to the attention of the court in their respec-
tive criminal proceedings.
The petitioner now challenges the propriety of that
determination. His claim is governed by the clearly erro-
neous standard of review. ‘‘The existence of an undis-
closed plea agreement is an issue of fact for the
determination of the trial court. . . . [W]here the fac-
tual basis of the court’s decision is challenged we must
determine whether the facts set out in the memorandum
of decision are supported by the evidence or whether,
in light of the evidence and the pleadings in the whole
record, those facts are clearly erroneous.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Floyd, 253 Conn. 700, 737, 756 A.2d 799 (2000). ‘‘[A]
finding of fact is clearly erroneous when there is no
evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’’
(Internal quotation marks omitted.) Orcutt v. Commis-
sioner of Correction, 284 Conn. 724, 742, 937 A.2d 656
(2007). In reviewing the factual findings of a habeas
court, ‘‘[t]his court does not retry the case or evaluate
the credibility of the witnesses. . . . Rather, we must
defer to the [court’s] assessment of the credibility of
the witnesses based on its firsthand observation of their
conduct, demeanor and attitude. . . . The habeas
judge, as the trier of facts, is the sole arbiter of the
credibility of witnesses and the weight to be given to
their testimony.’’ (Internal quotation marks omitted.)
Elsey v. Commissioner of Correction, 126 Conn. App.
144, 153, 10 A.3d 578, cert. denied, 300 Conn. 922, 14
A.3d 1007 (2011).
In this habeas proceeding, the petitioner bore the
burden ‘‘to prove the existence of undisclosed exculpa-
tory evidence.’’ State v. Floyd, supra, 253 Conn. 737.
We agree with the habeas court that the petitioner did
not satisfy that burden.
A
In its memorandum of decision, the court found that
the state had assured both Smith and Valentin that it
would bring their cooperation in the petitioner’s crimi-
nal trial to the attention of the court in their respective
criminal proceedings. The court further found that the
state disclosed that agreement to the petitioner prior
to his criminal trial.
The evidence in the record substantiates those find-
ings. Donovan testified at the habeas trial that, in multi-
ple conversations with the prosecutor, he was apprised
that the state made ‘‘no promises to [Smith and Valentin]
other than to bring their cooperation to the attention
of the sentencing judge’’ in their respective proceedings.
On the basis of his extensive experience dealing with
the New London County Office of the State’s Attorney,
Donovan explained that the state’s agreement to bring
Smith’s and Valentin’s cooperation to the court’s atten-
tion, but not make any specific promises or representa-
tions, was consistent with its general practice at that
time. Donovan further confirmed that he was aware of
that agreement prior to the petitioner’s criminal trial.
The court, as the sole arbiter of credibility, was free to
credit that testimony. See Sanchez v. Commissioner of
Correction, 314 Conn. 585, 604, 103 A.3d 954 (2014)
(‘‘we must defer to the [trier of fact’s] assessment of
the credibility of the witnesses based on its firsthand
observation of their conduct, demeanor and attitude’’
[internal quotation marks omitted]); Taylor v. Commis-
sioner of Correction, 284 Conn. 433, 448, 936 A.2d 611
(2007) (‘‘[t]he habeas judge, as the trier of facts, is the
sole arbiter of the credibility of witnesses and the
weight to be given to their testimony’’ [internal quota-
tion marks omitted]). Moreover, at the conclusion of
the habeas trial, the petitioner’s counsel conceded that
‘‘[w]ith respect to the evidence that was introduced,
[Donovan] was made aware that [Smith and Valentin’s]
cooperation would be brought to the sentencing
judge’s attention.’’
On the basis of that evidence, the court properly
could find that the state disclosed to the petitioner
its agreement with Smith and Valentin to bring their
cooperation to the attention of the court in their respec-
tive criminal proceedings. That finding, therefore, is not
clearly erroneous.
B
The petitioner nevertheless claims that, beyond the
agreement addressed in part I A of this opinion, a spe-
cific agreement existed between the state and both
Smith and Valentin regarding the lowering of their
respective bonds, which was not disclosed to the peti-
tioner.5 Under Connecticut law, the petitioner bore the
burden of proving the existence of that agreement.
Walker v. Commissioner of Correction, 103 Conn. App.
485, 493, 930 A.2d 65, cert. denied, 284 Conn. 940, 937
A.2d 698 (2007).
The following additional facts, as reflected in the
record and as recited in this court’s recent decision
on the habeas action involving one of the petitioner’s
coconspirators,6 are relevant to this claim. ‘‘On Septem-
ber 13, 1995, Valentin testified during a probable cause
hearing for Booth that implicated Booth in Wattley’s
murder. During Valentin’s bond hearing on October 5,
1995, Bernard Steadman, her attorney, represented: ‘I
have discussed this matter with the state and they
would—my understanding is that there would be no
objection to her moving out of state, should she be
released on a bond, and provided that she maintain
contact with—to or with their office either through
me or directly.’ Steadman asked the court to consider
releasing Valentin on a promise to appear and allowing
her to travel to New Jersey, given her cooperation with
the state, and because Wattley’s murder appeared to be
gang related.7 Paul E. Murray, the supervisory assistant
state’s attorney (prosecutor),8 informed the court: ‘I did
indicate to [Steadman], Your Honor, that I would bring
to the court’s attention [Valentin’s] cooperation, and I
think I’ve done that.’ The prosecutor also informed the
court that he had spoken with Valentin’s mother about
Valentin going to New Jersey and that ‘both [Valentin]
and her mother have agreed . . . to keep the state
apprised as to her location and how she can be reached
. . . .’ In the event that she did not keep the state
apprised of her location, the prosecutor stated that ‘[the
state] will find her and she will have forfeited whatever
benefits she has gained from her cooperation to this
point.’ He also stated: ‘I’m not sure whether a promise
to appear is the appropriate thing, but I think certainly
a substantial reduction in her bond is appropriate.’
Thereafter, the prosecutor stated that he would not
object to a written promise to appear and informed the
court: ‘I think if I were in your position, I would not
be averse to a written promise to appear. I’m trying to
be careful as to—as to the record I’m making.’
‘‘After considering, inter alia, the ‘cooperative aspects
of this matter,’ the court, Purtill, J., reduced Valentin’s
bond from $100,000 to a written promise to appear and
permitted her to reside in New Jersey. Immediately
following that decision, the following colloquy took
place in open court:
‘‘ ‘[The Prosecutor]: . . . For the record, I would
indicate I do not disagree at all with the court’s decision.
I was trying to be careful with the record because of
obvious cross-examination effect. In consideration, I
want the record to be clear that the only representa-
tions made to [Valentin] were that any cooperation
would be brought to the attention of the sentencing
court. There was no quid pro quo for a specific bond
recommendation.
‘‘ ‘[Steadman]: That is true, Your Honor.’ . . .
‘‘On March 14, 1996, during a consolidated probable
cause hearing for [the petitioner and Gomez], Smith
provided testimony that implicated [them] in Wattley’s
murder. [Gomez and his trial counsel] attended this
hearing, and so did Donovan, [the petitioner’s] lawyer.
At the beginning of Smith’s testimony, the following
examination took place in open court:
‘‘ ‘[The Prosecutor]: And you are in fact charged with
murder, felony murder, and conspiracy to commit mur-
der with respect to the case that we are going to talk
about, is that right?
‘‘ ‘[Smith]: Yes.
‘‘ ‘[The Prosecutor]: And is it fair to say that other
than bringing your cooperation to the attention of the
sentencing court, you haven’t been promised anything
in return for your testimony?
‘‘ ‘[Smith]: No.
‘‘ ‘[The Prosecutor]: You say ‘no.’ That is the truth,
isn’t it?
‘‘ ‘[Smith]: That’s the truth.’ . . .
‘‘On May 3, 1996, approximately two months after
Smith testified at the consolidated probable cause hear-
ing, the court, Parker, J., addressed Smith’s motion for
modification of his bond. The state did not object to
the motion. Counsel for Smith represented that the rea-
sons for requesting a bond modification were that
Smith’s life had been threatened and he had cooperated
with the state. Thereafter, the court reduced Smith’s
bond from $500,000 to $100,000 and permitted him to
travel throughout the continental United States.
‘‘On May 10, 1996, the court, Purtill, J., amended the
terms of Smith’s bond, making it a $100,000 nonsurety
bond with a nominal real estate bond. During this hear-
ing, the prosecutor stated that the state had been in
contact with a parole officer in Alabama, who agreed
to arrange weekly reporting with Smith if he were
allowed to reside there. The court asked that the state
‘reduce that condition to writing and give a copy to
. . . Smith.’ Smith was then permitted to be released
on bond.’’ (Emphasis in original; footnotes added and
footnote in original.) Gomez v. Commissioner of Cor-
rection, 178 Conn. App. 519, 529–31, A.3d (2017).
On appeal, the petitioner renews his claim that a
specific agreement existed between the state and Smith
and Valentin regarding the lowering of their respective
bonds. He presented the habeas court with no evidence
of such a specific agreement. The petitioner did not
call Smith, Valentin, or their trial attorneys as witnesses
at the habeas trial, nor did he introduce the testimony
of the prosecutor. The only evidence he submitted to
support his claim was the transcripts of the bond hear-
ings, which merely indicate that the state did not object
to the bond reductions contemplated therein. The tran-
scripts also contain statements regarding the specific
rationales for those bond reductions. In Smith’s case,
it was the undisputed fact that ‘‘his life [had] been
threatened’’ while incarcerated. In Valentin’s case, it
was because she was only sixteen years old, had no
criminal record at the time of the July 13, 1995 homicide,
and her family was planning on moving out of state
due to ‘‘the gang involvement’’ in that homicide. See
footnote 7 of this opinion. In granting the requested
bond reduction, the court, Purtill, J., stated that it was
‘‘considering mainly the youth of this young lady and
the fact that she would have to be—if she was kept in
confinement here, it would have to be in segregation
because of the circumstances; and for a person of her
age it probably is not at all appropriate, as mentioned
by counsel. That’s the main reason the bond is being
reduced.’’
Furthermore, those bond hearing transcripts do not
indicate that any agreement existed between the state
and Smith and Valentin, apart from the assurance that
their cooperation in the petitioner’s criminal proceeding
would be brought to the sentencing judge’s attention.
As the prosecutor expressly stated during Valentin’s
October 5, 1995 bond hearing: ‘‘I want the record to be
clear that the only representations made to [Valentin]
were that any cooperation would be brought to the
attention of the sentencing court. There was no quid pro
quo for a specific bond recommendation.’’ In response,
Valentin’s attorney stated, ‘‘That is true, Your Honor.’’9
That testimony is consistent with that offered by Don-
ovan at the petitioner’s habeas trial. Donovan testified
that, as a matter of practice, the New London County
Office of the State’s Attorney would not make ‘‘any
specific promises’’ apart from the assurance that the
cooperation of such witnesses would be brought to the
attention of the court in their own criminal proceedings.
Our review of the record reveals that the petitioner
did not present evidence at his habeas trial that com-
pelled a finding that the state reached an agreement
with Smith and Valentin to give favorable treatment at
their bond hearings in exchange for their testimony at
the petitioner’s criminal trial. In light of the foregoing,
the court properly concluded that the petitioner had
not met his burden in demonstrating the existence of
a specific agreement between the state and Smith and
Valentin regarding their bond proceedings. Absent such
an agreement, the petitioner’s Brady claim, as well as
his related claim that the state failed to correct false
testimony related thereto, necessarily fails. See State
v. Ouellette, supra, 295 Conn. 186.
II
The petitioner also claims that the court abused its
discretion in denying his petition for certification to
appeal because Donovan rendered ineffective assis-
tance by failing to adequately cross-examine and
impeach the testimony of Smith and Valentin at trial.
That claim is premised on the undisputed fact that Don-
ovan did not order, and thus did not review and utilize,
the transcripts of Smith and Valentin’s bond hearings.
‘‘To succeed on a claim of ineffective assistance of
counsel, a habeas petitioner must satisfy the two-
pronged test articulated in Strickland v. Washington,
[supra, 466 U.S. 668]. Strickland requires that a peti-
tioner satisfy both a performance prong and a prejudice
prong. To satisfy the performance prong, a claimant
must demonstrate that counsel made errors so serious
that counsel was not functioning as the counsel guaran-
teed . . . by the [s]ixth [a]mendment. . . . To satisfy
the prejudice prong, a claimant must demonstrate that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different. . . . Although a petitioner
can succeed only if he satisfies both prongs, a reviewing
court can find against a petitioner on either ground.’’
(Citations omitted; internal quotation marks omitted.)
Breton v. Commissioner of Correction, 325 Conn. 640,
668–69, 159 A.3d 1112 (2017).
Although he did not obtain the transcripts of their
bond hearings, Donovan testified that, at the time of
the petitioner’s trial, he was aware that Smith and Valen-
tin ‘‘had been released on bond.’’ Donovan testified that
he knew why their bonds had been reduced, which he
utilized in his cross-examination of those witnesses at
trial. The transcripts of the petitioner’s trial, which were
admitted into evidence at the habeas trial, demonstrate
that Donovan questioned both Smith10 and Valentin11
extensively on the issue of their bond reductions, and
the motivations therefor, during the petitioner’s crimi-
nal trial. Furthermore, as the habeas court noted in its
memorandum of decision, the transcripts reveal ‘‘that
counsel for the petitioner’s codefendants also ques-
tioned both Valentin and Smith concerning their bond
reductions. During [their] cross-examination of Valen-
tin, they both questioned her regarding the fact that her
$150,000 bond was reduced to a promise to appear after
she testified at a preliminary hearing. Furthermore,
[Booth’s attorney] questioned Smith regarding the fact
that his $500,000 bond was reduced and he was subse-
quently released after he testified at the probable cause
hearing.’’ In addition, both Smith and Valentin in their
testimony at the petitioner’s trial admitted that they
hoped that their cooperation would be taken into
account with regard to their pending charges.
We also note that, in their closing remarks to the
jury, Donovan and counsel for the petitioner’s codefen-
dants all reminded jurors of the circumstances sur-
rounding the bond reductions for Smith and Valentin,
and suggested that those reductions were connected
to their testimony in the consolidated trial. They thus
encouraged the jury to consider that connection in
assessing their credibility as witnesses. Additionally, in
its charge to the jury, the court provided an accomplice
testimony instruction, which cautioned jurors that the
testimony of an accomplice could be ‘‘colored’’ by the
fact that such witnesses may ‘‘be looking for or hoping
for some favorable treatment in the sentence or disposi-
tion of his or her case . . . .’’12 Absent an indication to
the contrary, the jury is presumed to have heeded that
instruction. See State v. Wooten, 227 Conn. 677, 694,
631 A.2d 271 (1993) (‘‘[j]urors are presumed to follow
the instructions given by the judge’’ [internal quotation
marks omitted]).
The record before the habeas court thus demon-
strates that the reduction of Smith’s and Valentin’s
bonds, as well as Smith’s and Valentin’s incentive to
testify at the petitioner’s trial, repeatedly was brought
to the attention of the jury at the petitioner’s trial. The
petitioner has not demonstrated how Donovan’s failure
to obtain the transcripts of the bond proceedings
resulted in prejudice, apart from asserting that a review
of those transcripts would have enabled him to impeach
Smith’s and Valentin’s allegedly false testimony that
there was no specific agreement between them and the
state regarding those bond proceedings. That assertion
fails in light of the habeas court’s determination that
no such agreement had been proven, and thus no Brady
violation transpired, which determinations we have
affirmed in part I of this opinion. On our thorough
review of the record, we conclude that the habeas court
properly determined that the petitioner has not demon-
strated a reasonable probability that, but for Donovan’s
alleged failure to obtain the bond hearing transcripts
and cross-examine Smith and Valentin therewith, the
result of the petitioner’s criminal trial would have been
different. Accordingly, we conclude that the habeas
court did not abuse its discretion in denying the petition
for certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
At the habeas trial, the petitioner repeatedly was referred to as ‘‘Danny
Brown.’’ The appeal form filed with this court indicates that it was filed by
‘‘Danny Brown a/k/a Daniel.’’ In its decision on his direct appeal, the Supreme
Court referred to the petitioner as ‘‘Daniel Brown.’’ State v. Booth, 250 Conn.
611, 613, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut,
529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000).
2
The court sentenced the petitioner to a total effective term of fifty-five
years incarceration. State v. Booth, supra, 250 Conn. 613.
3
The first count of the petition also alleged that Donovan was deficient in
failing ‘‘to adequately advise the petitioner concerning his right [to] sentence
review and failed to adequately pursue the same . . . .’’ The petitioner
withdrew that claim at his habeas trial.
4
The petitioner also introduced into evidence transcripts of various pro-
ceedings and informations involving the petitioner, Smith, and Valentin. In
addition, a copy of the July 24, 1996 request for disclosure filed by Donovan
prior to the petitioner’s criminal trial was admitted into evidence, in which
Donovan requested, inter alia, disclosure of ‘‘any benefit offered to or con-
ferred upon [any] witness by the prosecuting authority.’’
5
At the habeas trial, the court asked the petitioner’s counsel to clarify
the nature of the allegations contained in the second count of the operative
petition for a writ of habeas corpus. Counsel at that time confirmed that
the second count was predicated exclusively on the state’s ‘‘preexisting
agreement with [Smith and Valentin] to not object to the bond hearing’’ that
allegedly existed and was not disclosed to the petitioner.
6
In Gomez v. Commissioner of Correction, 178 Conn. App. 519, 521–22,
A.3d (2017), this court affirmed the judgment of the habeas court
denying Gomez’ second petition for a writ of habeas corpus, which contained
allegations that largely mirror those advanced in the present action. See
id., 524–25.
7
At the consolidated criminal trial, Waterson testified that the petitioner,
Booth, and Gomez ‘‘were members of the 20 Love gang.’’ State v. Booth,
supra, 250 Conn. 637. As our Supreme Court noted in the petitioner’s direct
appeal, ‘‘there was other testimony concerning [the petitioner’s] alleged
gang membership that properly was admitted at trial.’’ Id., 639.
8
‘‘Murray represented the state at the . . . consolidated criminal trial.
He also represented the state in connection with the criminal proceedings
against Valentin and Smith.’’ Gomez v. Commissioner of Correction, 178
Conn. App. 519, 529 n.9, A.3d (2017).
9
Smith engaged in a similar colloquy with the prosecutor during the March
14, 1996 hearing. See Gomez v. Commissioner of Correction, supra, 178
Conn. App. 530–31.
10
During Smith’s testimony, the following colloquy occurred:
‘‘[Donovan]: . . . As you sit here today, you recognize that there’s some
connection between your being a free man today and your testifying against
these defendants?
‘‘[Smith]: Rephrase that again.
‘‘[Donovan]: Do you think that there may be a connection between your
being a free man today—
‘‘[Smith]: I’m not totally free.
‘‘[Donovan]: When you leave this courtroom, you’ll leave without shackles
on, right?
‘‘[Smith]: Yeah.
‘‘[Donovan]: And when you leave this courtroom, you’ll go back home
. . . .
‘‘[Smith]: Yeah. . . .
‘‘[Donovan]: Sleep in your own bed?
‘‘[Smith]: Yeah. . . .
‘‘[Donovan]: There won’t be any bars on the window?
‘‘[Smith]: No. . . .
‘‘[Donovan]: . . . [T]he point is, that there is a connection between your
being able to enjoy all those things and the fact that you’re sitting up there
on the [witness] stand trying to put the blame on these men, isn’t there?
‘‘[Smith]: I’m just telling the truth.
‘‘[Donovan]: Isn’t there a connection between your waking up in the
morning, eating your own breakfast, going to bed in your own bed at night,
doing your own job, being a free man, and your sitting on the stand testifying
on behalf of the state?
‘‘[Smith]: I’m testifying on my own behalf, telling the truth. . . .
‘‘[Donovan]: It just happens that you came in and testified in a probable
cause hearing, and then miraculously after that you were no longer in jail?
‘‘[Smith]: I was bonded out.
‘‘[Donovan]: Bonded out, yeah. What was your bond when you were
arrested?
‘‘[Smith]: Half a million.
‘‘[Donovan]: And what was your bond when you were bonded out?
‘‘[Smith]: I don’t know, my lawyer took care of that.
‘‘[Donovan]: Isn’t there some connection maybe between your bonding
out and your cooperation?
‘‘[Smith]: No connection.’’
11
During Valentin’s testimony, the following colloquy occurred:
‘‘[Donovan]: Life is more pleasant outside of jail than it is in jail, right?
‘‘[Valentin]: Yes.
‘‘[Donovan]: Now, do you remember the last time you testified in court;
you were in jail, weren’t you?
‘‘[Valentin]: Yes, I was.
‘‘[Donovan]: They brought you from jail here to testify?
‘‘[Valentin]: Yes.
‘‘[Donovan]: And they brought you here to testify against [Booth],
didn’t they?
‘‘[Valentin]: Yes.
‘‘[Donovan]: And you did testify against [Booth], didn’t you?
‘‘[Valentin]: Yes, I did.
‘‘[Donovan]: After you testified against [Booth], you were released from
jail, weren’t you?
‘‘[Valentin]: Yes, I was.
‘‘[Donovan]: Do you think there might be, there just might be, some
connection between you testifying against [Booth] and your not being in
jail anymore?
‘‘[Valentin]: No.
‘‘[Donovan]: You don’t see any connection at all?
‘‘[Valentin]: (Witness nods in the negative.)
‘‘[Donovan]: You think that had you not testified against [Booth], you
would be released right now, do you?
‘‘[Valentin]: I don’t know.
‘‘[Donovan]: This is something that your lawyer has handled for you—
‘‘[Valentin]: Yes.
‘‘[Donovan]: —is that right, arranged for you to get out of jail?
‘‘[Valentin]: Yes.
‘‘[Donovan]: And you don’t think that your cooperating with [the state in
Booth’s proceeding] has anything to do with your being in New Jersey
right now?
‘‘[Valentin]: I don’t know.
‘‘[Donovan]: You don’t know. What do you think in your heart?
‘‘[Valentin]: To be honest, I don’t know. I never really much—I didn’t pay
mind to that. I never really sat down and thought about it.’’
12
The court instructed the jury in relevant part: ‘‘Now, in this case, we
have what we call ‘accomplice testimony.’ Certain of the witnesses, by their
own testimony, participated in one way or another in the criminal conduct
charged by the state in this case. In weighing the testimony of [an] accomplice
who is a self-confessed criminal, you must consider that fact. . . .
‘‘Also, in weighing the testimony of [an] accomplice who has not yet been
sentenced or whose case has not yet been disposed of, you should keep in
mind that he or she may, in his or her own mind, be looking for or hoping
for some favorable treatment in the sentence or disposition of his or her
case, and that therefore, he or she may have such an interest in the outcome
of this case that his or her testimony may be colored by that fact.
‘‘Therefore, the jury must look with particular care at the testimony of
accomplices and scrutinize it very carefully before you accept it.’’