Stevenson v. Commissioner of Correction , 165 Conn. App. 355 ( 2016 )

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TERRANCE STEVENSON v. COMMISSIONER
OF CORRECTION
(AC 37559)
DiPentima, C. J., and Lavine and Keller, Js.
Argued January 12—officially released May 10, 2016
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Stephen A. Lebedevitch, for the appellant (petitioner).
Leon F. Dalbec, Jr., senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Adrienne Maciulewski, assistant
state’s attorney, for the appellee (respondent).
Opinion
DiPENTIMA, C. J. The petitioner, Terrance Steven-
son, appeals from the judgment of the habeas court
denying his amended petition for a writ of habeas cor-
pus. On appeal, the petitioner claims that the court erred
when it concluded that (1) the state did not commit
a Brady1 violation and (2) there was no reasonable
likelihood that the false testimony of a state’s witness
affected the judgment of the jury. We affirm the judg-
ment of the habeas court.
The facts underlying the petitioner’s conviction were
recounted in this court’s decision disposing of his direct
appeal: ‘‘On March 21, 1994, Jeffrey Dolphin became
involved in a dispute with James Baker and the [peti-
tioner] over a lost quantity of cocaine. At some point
during this dispute, Baker, Dolphin and the [petitioner]
were joined by Jermaine Harris, also known as ‘Chico,’
and Trent Butler. While Dolphin maintained that a third
party lost the cocaine, the [petitioner] blamed Dolphin
for the missing cocaine and pulled a gun on him.
‘‘Thereafter, Baker asked, ‘Why don’t we make this
motherfucker do it?’ The [petitioner] pointed the gun
at Dolphin again and forced him into the back of an
old white station wagon driven by Baker. Butler, Harris,
and the [petitioner] were also in the car. Butler then
told Dolphin that they wanted him to shoot somebody to
make up for the money that he had lost, which Dolphin
refused to do.
‘‘Upon Dolphin’s refusal, Harris stated that he would
shoot the victim, Amenophis Morris. At that point,
Baker parked the vehicle on Exchange Street in New
Haven, about one-half block from the victim’s home.
Harris got out of the car, put on a mask and walked to
the victim’s home accompanied by the [petitioner],
while the others remained behind. Both of the men
were armed. Dolphin then heard nine or ten gunshots
from the direction of the victim’s home, although he
could not see who was shooting. When Harris and the
[petitioner] returned to the vehicle, Harris shouted, ‘I
got him!’ The victim had been shot to death as he sat
on his front porch eating dinner.
‘‘When the men let Dolphin out on another street,
they threatened him and told him not to say anything
about what had happened. Approximately one month
after the homicide, the New Haven police department
arrested Dolphin on unrelated narcotics charges. While
in custody, Dolphin provided the police with informa-
tion implicating Baker, Butler and Harris in the homi-
cide. Dolphin did not give the police the [petitioner’s]
name or his street name, ‘Joe the Flea.’ The following
day, Dolphin made a photographic identification of
Harris.
‘‘In February, 1995, in a tape-recorded statement, Dol-
information he had told the police was false. Thereafter,
in early March, 1995, in another conversation with the
New Haven police, Dolphin made photographic identifi-
cations of Butler and Baker. At that time, Dolphin stated
to the police that he did not recognize anyone else in
the array of photographs, including the [petitioner]. In
September, 1995, Dolphin informed the state’s attor-
ney’s office that the statement that he made to Ahern
was false. It was not until October 31, 1995, that Dolphin
informed the police that the fourth individual involved
in the homicide was ‘Joe the Flea,’ and that his real
name was Terrance Stevenson, the [petitioner].’’ State
v. Stevenson, 53 Conn. App. 551, 553–55, 733 A.2d 253,
cert. denied, 250 Conn. 917, 734 A.2d 990 (1999).
The habeas court found the following additional facts
and provided the procedural history underlying this
appeal. ‘‘Dolphin was the key state’s witness against
the petitioner, placing him at the scene of the crime
and confirming his participation in the shooting and its
planning. Thus, Dolphin’s credibility was a key issue at
the criminal trial.
‘‘At the criminal trial, on direct examination, the jury
was informed about Dolphin’s inconsistent statements
to police and . . . [to] Ahern regarding his identifica-
tion of the petitioner, including that he lied to police
and to Ahern. The petitioner’s trial counsel also high-
lighted on cross-examination other important inconsis-
tent statements made by Dolphin.
‘‘Dolphin testified at the criminal trial that the reason
he did not initially identify the petitioner was because
he had been threatened by the petitioner’s codefendants
and others on a number of different occasions before
and while he was incarcerated. In particular, Dolphin
testified that immediately after the shooting, he did
not report events to the police because he had been
threatened by the petitioner and the codefendants, and
as a result he was concerned for his mother and sister.
He also testified that while he was incarcerated at the
[New Haven Correctional Center], on several different
occasions, he was threatened by the petitioner’s code-
fendants and others not to testify against them.
‘‘Dolphin testified as to one of these events in particu-
lar that he believed occurred on March 8, 1995, when
he was transferred to the New Haven courthouse. On
that date, he was threatened twice, once by Butler at
the [New Haven Correctional Center] bull pen prior to
being transferred to court and then later in the court-
house lockup by other inmates who roughed him up.
When he returned to [the New Haven Correctional Cen-
ter], Butler approached the petitioner and asked him
‘if he got the message.’
‘‘The petitioner claims that [Department of Correc-
tion (department)] documents, not disclosed to him
by the state, show that Dolphin and Butler were not
transferred together to the New Haven courthouse on
March 8. The petitioner claims that the state had a duty
to produce these documents to him at the time of the
trial to impeach Dolphin as to his claim that he was
threatened on March 8. The petitioner also claims that
the state failed to correct Dolphin’s testimony as to
which date he was threatened.
‘‘At the habeas trial, the petitioner introduced internal
administrative [department] information profile
screens, known as ‘RT-42s.’ The purpose of this docu-
ment is to identify inmates who should be separated
from each other. A prosecutor may request that [the
department] keep inmates separated at [department]
facilities. The RT-42s are not contained in an inmate’s
master file, and not everyone at [the department] has
clearance to review such documents. A person would
have to know of the existence of such documents and
expressly request them in order to obtain a copy.
‘‘The petitioner introduced an RT-42 for Dolphin, indi-
cating that he should be kept separated from Butler
and Baker because Dolphin was expected to testify
against them. . . . [Michael] Pepper, [an assistant
state’s attorney] who prosecuted the petitioner’s crimi-
nal case, did not request that [the department] keep
Dolphin separate from Baker and Butler, and was not
aware of the existence of the RT-42 in this case. . . .
Pepper did not have this document or any other [depart-
ment] administrative documents in his file.
‘‘Other [department] documents, including the con-
tinuance mittimuses, showed that while Dolphin had a
court date on March 8, Butler did not. . . . Pepper was
aware of this fact and at the criminal trial presented the
testimony of a [department] employee, James Barone,
during his rebuttal case to clarify that Butler and Dol-
phin were not transported together on March 8. How-
ever, Barone confirmed that the two were housed
together at [the New Haven Correctional Center]
around the time of the threats.
‘‘Other [department] internal administrative docu-
ments, known as RT-60s, which show inmate move-
ments, established that on February 22, 1995, Dolphin
and Butler were together at the [New Haven Correc-
tional Center]. A [department] transfer list from Febru-
ary 23, 1995, shows that Butler and Dolphin were
transferred from [the New Haven Correctional Center]
on that day.’’
‘‘The petitioner was convicted after a jury trial of
murder as an accessory in violation of General Statutes
§§ 53a-54a (a) and 53a-8 and conspiracy to commit mur-
der in violation of General Statutes §§ 53a-54a and 53a-
48 (a). He was sentenced to sixty years in prison.
‘‘The petitioner appealed his convictions . . . [and
the Appellate Court] rejected [his] claims and affirmed
the convictions. [State v. Stevenson, supra, 53 Conn.
App. 553]. [Our] Supreme Court denied [his] petition
for certification. State v. Stevenson, 250 Conn. 917, 734
A.2d 990 (1999).
‘‘The petitioner has brought two prior petitions for
habeas relief, asserting claims that his trial counsel,
habeas counsel and appellate counsel were all ineffec-
tive. . . . Both prior petitions were denied, and the
decisions were affirmed on appeal. See Stevenson v.
Commissioner of Correction, 112 Conn. App. 675, 963
A.2d 1077, cert. denied, 291 Conn. 904, 967 A.2d 1221
(2009); Stevenson v. Commissioner of Correction, 67
Conn. App. 908, 792 A.2d 909, cert. denied, 260 Conn.
905, 795 A.2d 547 (2002).
‘‘In this, the petitioner’s third habeas petition, he
claim[ed] that his constitutional right to due process
was violated (1) as a result of the state’s failure to
disclose [department] documents that were material
and exculpatory; and (2) by the prosecutor’s failure to
correct [Dolphin’s] purported false testimony . . . .’’
The court found that the petitioner had not proven
either of his claims because the department was not
an investigative arm of the state and there was no rea-
sonable likelihood that Dolphin’s false testimony could
have affected the judgment of the jury. The petition
for certification was granted by the court. This appeal
followed. Additional facts will be set forth as necessary.
On appeal, the petitioner presents two issues. First,
he claims that the court erred when it concluded not
only that the state had not suppressed department
administrative records in violation of Brady v. Mary-
land, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),
but also that the department administrative records
were not material evidence. Second, the petitioner con-
tends that the court incorrectly found, in contravention
of Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763,
31 L. Ed. 2d 104 (1972), and Napue v. Illinois, 360 U.S.
264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959), that Dolphin’s
false testimony did not affect the judgment of the jury.
We are not persuaded.
At the outset, we set the standards by which we
review the petitioner’s claims. ‘‘Whether the petitioner
was deprived of his due process rights due to a Brady
violation is a question of law, to which we grant plenary
review. . . . The conclusions reached by the [habeas]
court in its decision to [deny] the habeas petition are
matters of law, subject to plenary review. . . . Thus,
[w]here the legal conclusions of the court are chal-
lenged, we must determine whether they are legally and
logically correct . . . and whether they find support
in the facts that appear in the record.’’ (Citation omitted;
internal quotation marks omitted.) Walker v. Commis-
sioner of Correction, 103 Conn. App. 485, 491, 930 A.2d
65, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007).
Also, ‘‘[t]he habeas court is afforded broad discretion
in making its factual findings, and those findings will
not be disturbed unless they are clearly erroneous.’’
(Internal quotation marks omitted.) Taylor v. Commis-
sioner of Correction, 284 Conn. 433, 448, 936 A.2d
611 (2007).
I
The petitioner first claims that the court erroneously
concluded that the state had not committed a Brady
violation by suppressing department administrative
records. Specifically, he argues that the RT-42 and the
transport list, if turned over to his defense counsel,
could have been used to impeach further Dolphin’s
testimony at his criminal trial. The petitioner reasons
that because Barone was asked by the state to review
departmental files and testify at the petitioner’s criminal
trial for the purpose of ‘‘correct[ing] the testimony given
by . . . Dolphin,’’ the department morphed into an
investigative arm of the prosecution. Therefore, the
petitioner contends, because the department ‘‘should
have been deemed part of the prosecution team,’’ the
state had a duty to disclose the department’s administra-
tive records. Failure to do so, he asserts, constituted a
Brady violation. We disagree.
The record reveals the following additional facts per-
tinent to this claim. On February 15, 2007, in a hearing
on a motion to reopen the testimony of a witness in
connection with the petitioner’s second habeas petition,
a records specialist for the department testified that
the RT-42 entry was created because an attorney from
the public defender’s office had told the department
that Dolphin would be testifying against Baker and But-
ler. She further testified that the RT-42 was confidential,
not part of an inmate’s master file, and inmates were
not allowed to review it.
Our analysis of the petitioner’s claim that the state
suppressed exculpatory evidence is governed by Brady
v. Maryland, supra, 373 U.S. 83. To establish a Brady
violation, the petitioner bears the heavy burden of prov-
ing that ‘‘(1) the government suppressed evidence, (2)
the suppressed evidence was favorable to the [peti-
tioner], and (3) it was material [either to guilt or to
punishment].’’ (Internal quotation marks omitted.) Wil-
liam B. v. Commissioner of Correction, 128 Conn. App.
478, 484, 17 A.3d 522, cert. denied, 302 Conn. 912, 27
A.3d 371 (2011). If the petitioner fails ‘‘to meet his bur-
den as to one of the three prongs of the Brady test,
then we must conclude that a Brady violation has not
occurred.’’ Morant v. Commissioner of Correction, 117
Conn. App. 279, 296, 979 A.2d 507, cert. denied, 294
Conn. 906, 982 A.2d 1080 (2009). Moreover, ‘‘[i]mpeach-
ment evidence as well as exculpatory evidence falls
within Brady’s definition of evidence favorable to an
accused.’’ (Internal quotation marks omitted.) Davis v.
Commissioner of Correction, 140 Conn. App. 597, 606,
59 A.3d 403, cert. denied, 308 Conn. 920, 62 A.3d
1133 (2013).
We also are guided by the following legal principles.
‘‘The prosecution’s duty to disclose applies to all mate-
rial and exculpatory evidence that is within its posses-
sion or available to it . . . and that the prosecution
knew or should have known was exculpatory. . . .
[S]ee . . . General Statutes § 54-86c (a).2 It is irrelevant
whether the [s]tate [i.e., the prosecutor,] acted in good
faith or bad faith in failing to disclose the evidence;
negligent suppression may be sufficient. . . . Where
evidence highly probative of [a defendant’s] innocence
is in [the prosecutor’s] file, he should be presumed
to recognize its significance even if he has actually
overlooked it . . . and he is put on notice to disclose
the evidence even in the absence of a request to do so.’’
(Citations omitted; emphasis omitted; footnote added;
internal quotation marks omitted.) Demers v. State, 209
Conn. 143, 150–51, 547 A.2d 28 (1988). Importantly,
‘‘[t]he [s]tate’s duty of disclosure is imposed not only
upon its prosecutor, but also on the [s]tate as a whole,
including its investigative agencies.’’ (Emphasis
added; internal quotation marks omitted.) Id., 153.
‘‘Nonetheless, knowledge on the part of persons
employed by a different office of the government does
not in all instances warrant the imputation of knowl-
edge to the prosecutor, for the imposition of an unlim-
ited duty on a prosecutor to inquire of other offices not
working with the prosecutor’s office on the case in
question would inappropriately require us to adopt a
monolithic view of government that would condemn
the prosecution of criminal cases to a state of paralysis.’’
(Internal quotation marks omitted.) United States v.
Avellino, 136 F.3d 249, 255 (2d Cir. 1998).
To resolve the petitioner’s claim, we must determine
whether the habeas court correctly determined that the
department was not an investigative arm of the state
for the purposes of a Brady violation. The parties did
not cite, nor did we find, any apposite Connecticut
appellate precedent. Thus, we turn to the United States
Court of Appeals for the Second Circuit to assist us in
resolving this matter. See, e.g., State v. Faria, 254 Conn.
613, 625 n.12, 758 A.2d 348 (2000) (‘‘we recognize that
the decisions of the federal circuit in which a state
court is located are entitled to great weight in the inter-
pretation of [the federal constitution]’’ [internal quota-
tion marks omitted]).
In United States v. Stewart, 433 F.3d 273, 298 (2d
Cir. 2006), the court explained: ‘‘Drawing on Supreme
Court authority holding that Brady obligations extend
to all persons ‘acting on the government’s behalf,’ [the]
[d]efendants urge that the scope of the ‘prosecution
team’ should be similarly construed to impute govern-
ment agents’ false testimony to the prosecutors them-
selves. Kyles v. Whitley, 514 U.S. 419, 437, 115 S. Ct.
1555, 131 L. Ed. 2d 490 (1995); see also Wedra v.
Thomas, 671 F.2d 713, 717 n.1 (2d Cir. 1982) (noting that
‘the knowledge of a police officer may be attributable to
the prosecutor if the officer acted as an arm of the
prosecution’). According to [the] [d]efendants, because
[a civilian employee of the United States Secret Service
and its Laboratory Director and Chief Forensic Scien-
tist] was a ‘government official’ working in conjunction
with the prosecution, it is fair to attribute his knowledge
of the perjured testimony, or that of other [Secret Ser-
vice Forensic Services Division] employees, to the Gov-
ernment. But our determination of whether to deem an
individual to be an ‘arm of the prosecution’ for Brady
purposes does not follow the broad, categorical
approach urged by [the] [d]efendants. Instead, the pro-
priety of imputing knowledge to the prosecution is
determined by examining the specific circumstances of
the person alleged to be an ‘arm of the prosecutor.’
United States v. Morell, 524 F.2d 550, 555 (2d Cir. 1975).
It does not turn on the status of the person with actual
knowledge, such as a law enforcement officer, prosecu-
tor or other government official. In other words, the
relevant inquiry is what the person did, not who the
person is. See id. (imputing law enforcement agent’s
knowledge of confidential file to prosecutors where
agent supervised the witness, participated actively in
the investigation and frequently sat at counsel table
throughout the trial); see also United States v. Sanchez,
813 F. Supp. 241, 247–48 (S.D.N.Y. 1993) (imputing to
prosecutor knowledge of perjury of local police officers
who were deputized as federal agents and worked as
part of investigative task force), aff’d on other grounds,
35 F.3d 673 (2d Cir. 1994); Pina v. Henderson, 752 F.2d
47, 49 (2d Cir. 1985) (refusing to apply the ‘descriptive
term’ of ‘arm of the prosecutor’ to parole officer who
did not work ‘in conjunction’ with the police or the
prosecutor).’’ (Emphasis in original.)
The petitioner contends that the department became
part of the prosecution team because Barone was asked
by the state to review department files and to testify
that Dolphin and Butler were not transported to the
New Haven courthouse on March 8, 1995. A significant
point absent from the petitioner’s recitation of the facts
and his argument is that an attorney from the public
defender’s office requested that Dolphin be kept sepa-
rated from Baker and Butler because he was testifying
against them. In response to that request, the depart-
ment created the RT-42; thus, it was not done in con-
junction with the state’s investigation of the petitioner’s
pending criminal case. Moreover, here, the court found
that Pepper credibly testified that the state did not
request that the department keep Dolphin separated
from Baker and Butler, was unaware of the existence
of the RT-42, and never had the RT-42 in its file. These
findings support the conclusion that the RT-42 was cre-
ated for purely administrative purposes. Thus, the
department did not conduct an investigation to assist
the state.
We conclude that the court correctly determined that
the department was not an investigative arm of the
state. In light of ‘‘the relevant inquiry [of] what the
[department] did, not who the [department] is’’;
(emphasis in original) United States v. Stewart, supra,
433 F.3d 298; the record does not show that the depart-
ment assisted in the investigation of the petitioner’s
criminal case. Because the court in determining that
the documents at issue were ‘‘produced for internal
[department] security and transfer purposes and not
for purposes of assisting the state in prosecuting the
petitioner’’ was not clearly erroneous, we will not dis-
turb its findings. The petitioner has failed to demon-
strate that the department was an investigative arm of
the state; accordingly, the petitioner’s claim fails under
the first prong of Brady.3
II
The petitioner also claims that the court erroneously
found that there was no reasonable likelihood that Dol-
phin’s false testimony could have affected the judgment
of the jury. We disagree.
At the petitioner’s criminal trial, his defense counsel
filed a motion to suppress an identification made by
Dolphin. At the suppression hearing, Dolphin testified
that on March 8, 1995, Butler threatened him at the
New Haven Correctional Center, which was the same
day that he did not identify the petitioner in a photo
array shown to him by a police detective. The motion
was denied, and immediately afterwards, in the pres-
ence of the jury, Dolphin testified as a state’s witness.
During direct examination, Dolphin was asked why
he had failed to identify the petitioner in the photo
array. Dolphin replied that he was being threatened
and he initially wondered whether the last threat had
occurred on March 28. The state showed Dolphin a
document to refresh his recollection, and Dolphin iden-
tified the date as March 6, the day Butler threatened
him at the New Haven Correctional Center. Nonethe-
less, three questions later, when asked to clarify the
date on which he spoke to the police detective about
the photo array, which would have been the day Dolphin
claimed to have been threatened by Butler at the New
Haven Correctional Center while awaiting transporta-
tion to the courthouse, Dolphin stated, ‘‘March 8.’’4
The state realized that Dolphin’s testimony concern-
ing the date was incorrect. Therefore, it called Barone
to establish that Dolphin and Butler were not in the
‘‘bull pen’’ in the New Haven Correctional Center on
March 8, effectively impeaching its own witness. At
closing argument, defense counsel highlighted Dol-
phin’s impeached testimony as follows: ‘‘The threat as
[Dolphin] described it could not have happened in the
manner he described it. . . . [Dolphin] lied to you . . .
right here in the courthouse.’’ In response, the state
asked the jury to consider Dolphin’s ordeals at the time
prior to March 8, i.e., incarcerated for several months
with men who were threatening him. The state, then,
explained to the jury, ‘‘[The state] would submit . . .
that . . . Dolphin was mistaken, that he made a mis-
take, he had been in jail with these guys for months
and months and months, that he got a date wrong, and
the state brought that out.’’ Finally, as found by the
habeas court, department administrative documents
established that Butler and Dolphin were transported
from the New Haven Correctional Center to the court
house on February 23, a fact that was not before the
jury.
On appeal, the petitioner contends that his ‘‘convic-
tion is fundamentally unfair because of the false and
misleading testimony presented at both his suppression
hearing and criminal trial.’’ We note that this claim
presents a claim of a constitutional nature, namely, that
the state’s failure to correct Dolphin’s false testimony
deprived the petitioner of a fair trial. We are not per-
suaded.
Our analysis is guided by the following longstanding
legal principles. ‘‘The constitutional principle applica-
ble to this case is that a conviction based on the use
of false evidence known to be such by representatives
of the state cannot stand. . . . This principle applies
when the state, although not soliciting false evidence,
allows it to stand uncorrected when it appears; Napue
v. Illinois, [supra, 360 U.S. 269]; and even though such
evidence merely goes to the credibility of the witness.
Id. The good faith of the prosecution in these circum-
stances is immaterial. Giglio v. United States, [supra,
405 U.S. 153]. A new trial is required if the false testi-
mony could in any reasonable likelihood have influ-
enced the jury.’’ (Citation omitted.) Merrill v. Warden,
177 Conn. 427, 431, 418 A.2d 74 (1979); see also State
v. Jordan, 314 Conn. 354, 397, 102 A.3d 1 (2014)
(Espinosa, J., concurring) (‘‘[a] subset of the Brady rule
was established in Napue, which places an obligation on
the prosecutor to correct false or misleading witness
testimony’’).
‘‘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 reasonable
likelihood that the false testimony could have affected
the judgment of the jury. . . . This strict standard of
materiality is appropriate in such cases not just because
they involve prosecutorial misconduct, 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. . . .
‘‘In accordance with these principles, our determina-
tion of whether [the witnesses’] false testimony was
material 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 principles to the facts of this case, we
conclude that Dolphin’s false testimony did not deprive
the petitioner of a fair trial. First, in the petitioner’s
direct appeal, this court considered the strength of the
state’s case against him. See State v. Stevenson, supra,
53 Conn. App. 568 (‘‘the state had a strong case against
the [petitioner]: Dolphin’s testimony, even though he
was impeached by his prior inconsistent statement,
detailed the events that transpired that evening, and his
testimony was corroborated by Sharon Reed, Baker’s
girlfriend at the time of the homicide, the handwritten
letter [penned by the petitioner and showing conscious-
ness of guilt], and scientific evidence regarding the tra-
jectory of the bullets’’). Second, the state impeached
Dolphin’s testimony by establishing, through Barone,
that Dolphin and Butler were not in the ‘‘bull pen’’ at
the New Haven Correctional Center on March 8, the day
that Butler allegedly threatened Dolphin. This provided
defense counsel with favorable material for closing
argument. In its rebuttal closing argument, the state
responded by explicitly acknowledging that Dolphin’s
testimony concerning the date was a mistake. The state
presented a possible explanation as to Dolphin’s error.
It was well within the province of the jury to accept or
reject this explanation. See, e.g., State v. Moye, 112
Conn. App. 605, 610, 963 A.2d 690 (‘‘it is the jury’s role
as the sole trier of the facts to weigh the conflicting
evidence and to determine the credibility of witnesses’’
[internal quotation marks omitted]), cert. denied, 291
Conn. 906, 967 A.2d 1221 (2009). Moreover, in arguing
his first claim on appeal, the petitioner makes the fol-
lowing observation: ‘‘Barone was asked to review files
for the state’s attorney’s office and testify as to the
[department’s] transport of both Butler and Dolphin, to
correct the testimony given by . . . Dolphin.’’
(Emphasis added.)
After a review of the record, we conclude that the
court correctly found that there was no reasonable like-
lihood that the potentially misleading testimony of Dol-
phin could have affected the judgment of the jury.
Accordingly, the petitioner’s claim must fail.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963), the United States Supreme Court held that ‘‘the suppression by the
prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.’’
2
General Statutes § 54-86c (a) provides: ‘‘Not later than thirty days after
any defendant enters a plea of not guilty in a criminal case, the state’s
attorney, assistant state’s attorney or deputy assistant state’s attorney in
charge of the case shall disclose any exculpatory information or material
which he may have with respect to the defendant whether or not a request
has been made therefor. If prior to or during the trial of the case, the
prosecutorial official discovers additional information or material which
is exculpatory, he shall promptly disclose the information or material to
the defendant.’’
3
Because the petitioner has not met his burden of satisfying the first
prong of Brady, we need not reach the second prong. See William B. v.
Commissioner of Correction, supra, 128 Conn. App. 485 (‘‘[i]n order to
obtain relief under Brady, a defendant bears the heavy burden of satisfying
all three prongs of the aforementioned test’’ [emphasis in original; internal
quotation marks omitted]).
4
From the petitioner’s criminal trial, the relevant examination occurred:
‘‘[The Prosecutor]: Had you recognized anybody on that photo array?
‘‘[Dolphin]: Yes, I did.
‘‘[The Prosecutor]: Who did you recognize?
‘‘[Dolphin]: The [petitioner], Terrance Stevenson.
‘‘[The Prosecutor]: But you didn’t tell the truth to [the police detective],
is that correct?
‘‘[Dolphin]: Yes, that’s correct.
‘‘[The Prosecutor]: And why didn’t you tell [the police detective] the truth
about that?
‘‘[Dolphin]: Because I was being threatened.
‘‘[The Prosecutor]: Tell us about that.
‘‘[Dolphin]: I was locked up in [the New Haven Correctional Center] and
at the same time I was locked up with three of the individuals, [Baker,
Butler, and Harris].
‘‘[The Prosecutor]: Okay. What happened?
‘‘[Dolphin]: I seen [Baker, Butler, and Harris] on different occasions and
each different time I was being threatened by them, and the last time came
when the day I was brought down was March, was it the 28th?
‘‘[The Prosecutor]: Let me show you this and see if this refreshes your
recollection. . . .
‘‘[Dolphin]: (Indicating yes.) March 6, I was going to court to be sentenced
and at the time I was in the bull pen getting ready to go to court and at the
same time . . . Butler was in the same bull pen and he grabbed me and
pushed me and then two other individuals came along and words were
being said like, you know, forget about this, you know, they tell you—they
ask you anymore questions, don’t tell them the truth because of that.
‘‘[The Prosecutor]: You had months before given him . . . Baker’s name
and . . . Butler’s name, is that correct?
‘‘[Dolphin]: Yes.
‘‘[The Prosecutor]: But you had not given the name other than Joe the
Flea, is that correct?
‘‘[Dolphin]: Yes.
‘‘[The Prosecutor]: And just to clarify what date that was that you talked
to [the police detective], I know those are hard to read. Let me see if this
would refresh your recollection as to what date that was.
‘‘[Dolphin]: March 8.
‘‘[The Prosecutor]: Can you say that loud enough?
‘‘[Dolphin]: March 8, [19]95.’’