Stuart v. Blumenthal ( 2015 )

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MARK STUART v. RICHARD BLUMENTHAL,
ATTORNEY GENERAL, ET AL.
(AC 35870)
Sheldon, Keller and Lavery, Js.
Argued January 8—officially released August 4, 2015
(Appeal from Superior Court, judicial district of
Hartford, Schuman, J.)
Patrick Tomasiewicz, with whom was Mario Cer-
ame, for the appellant (petitioner).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and John Fahey, senior assistant state’s attorney,
for the appellees (respondents).
Opinion
LAVERY, J. The petitioner, Mark Stuart, appeals from
the judgment of the trial court denying his amended
petition for a new trial. On appeal, the petitioner claims
that the trial court abused its discretion in denying his
petition on the ground that he had failed to establish
an ‘‘other reasonable cause’’ to grant his petition pursu-
ant to General Statutes § 52-270 (a). We disagree and,
accordingly, affirm the judgment of the trial court.
In May, 2006, following a jury trial, the petitioner was
convicted of three counts of larceny in the first degree
in violation of General Statutes § 53a-122, three counts
of conspiracy to commit larceny in the first degree
in violation of General Statutes §§ 53a-48 and 53a-122,
three counts of forgery in the second degree in violation
of General Statutes § 53a-139, nine counts of possession
of a motor vehicle with an altered vehicle identification
number in violation of General Statutes § 14-149, nine
counts of conspiracy to possess a motor vehicle with
an altered vehicle identification number in violation of
§§ 53a-48 and 14-149, and one count of improper use
of a motor vehicle registration in violation of General
Statutes § 14-147.
The relevant facts related to the petitioner’s convic-
tion, as could have reasonably been found by the jury,
are set forth in State v. Stuart, 113 Conn. App. 541, 967
A.2d 532, cert. denied, 293 Conn. 922, 980 A.2d 914
(2009). ‘‘On December 9, 2004, an airplane patrolling
for the state police picked up a LoJack signal emanating
from a parking lot in Glastonbury. LoJack is a motor
vehicle transmitting or homing device that can be acti-
vated to emit a unique signal if a car is stolen. It allows
law enforcement personnel to locate a stolen vehicle
by entering the vehicle’s VIN1 into a tracking computer
that is capable of activating and locating its unique
signal. The pilot alerted Glastonbury police and directed
them to the parking lot. The police found the parking
lot and identified an Escalade as the vehicle that was
broadcasting the signal. The police also matched the
make, model, year and color of the vehicle with informa-
tion provided by the LoJack system. The Escalade had
a ‘for sale’ sign in the window with a telephone number
on it. The telephone number was identified as belonging
to the [petitioner]. The license plates on the Escalade
were registered to a different vehicle, a Chevrolet
Lumina owned by Joanne Arena, the [petitioner’s] for-
mer wife.
‘‘When the police questioned the [petitioner] about
the Escalade, he stated that he did not know that it
was stolen and that he had purchased it from Ozvaldo
Seda the night before. The [petitioner] then brought to
the attention of the police a certificate of title to a
Navigator, which he stated he had also purchased from
Seda. The Navigator certificate was later found to be
fraudulent. The Escalade certificate of title was found
to contain irregularities, including nonmatching VINs,
and was also shown to be counterfeit. After obtaining
a search warrant, the police searched the [petitioner’s]
driveway, which contained approximately six addi-
tional vehicles, including a Navigator and a Corvette.
The police found irregularities on several of the Cor-
vette’s VINs and the Navigator’s VINs, and it was later
determined that these VINs had been altered. The Esca-
lade was also found to have altered VINs. The Corvette,
Navigator and Escalade were all seized by the police.
‘‘Inside the [petitioner’s] house, the police found a
New Jersey certificate of title to the Corvette, which
was later confirmed by New Jersey officials to be coun-
terfeit. There were such a large number of other docu-
ments in the house relating to motor vehicles that an
investigating officer testified at trial that it appeared as
though some sort of an automobile business was being
run out of the house. Among those papers was a note,
written by the [petitioner], with the name ‘Ozzie,’ Seda’s
nickname, written on it. The note was dated December
3, 2004, which was approximately three days before the
Escalade was stolen, and stated: ‘$21,500 for Escalade
to Ozzie’ and ‘$11,000 to Ozzie for Navigator.’
‘‘At trial, a witness, Alfred Maldonado, testified that
he had met the [petitioner] through Seda. Seda had a
car dealership and had purchased several vehicles from
Maldonado. Maldonado testified that he had met with
the [petitioner] and Seda in Hartford where the [peti-
tioner] paid $10,000 for the Navigator and $20,000 for
the Escalade. Maldonado testified that during this trans-
action, he indicated to the [petitioner] that the vehicles
were stolen. On December 14, 2004, Maldonado was
arrested for an attempted transfer of another vehicle
to Seda. He pleaded guilty to those charges and was
sentenced to eighteen months incarceration.’’ (Foot-
note added.) Id., 545–47.
On May 18, 2006, the trial court sentenced the peti-
tioner to a total effective sentence of twenty years incar-
ceration, execution suspended after ten years, followed
by five years of probation. On direct appeal, this court
affirmed in part and reversed in part the judgments,
holding that the double jeopardy clause of the federal
constitution required the vacation of twelve counts and
that there was insufficient evidence to convict on four
counts.2 Id., 555–69. Specifically, this court held, inter
alia, that ‘‘there was . . . sufficient evidence to support
the [petitioner’s] conviction of conspiracy to possess
stolen vehicles and conspiracy to possess vehicles with
altered VINs as to the Escalade and the Navigator but
not as to the Corvette.’’ Id., 545. On remand, the peti-
tioner received the same sentence as that imposed pre-
viously. In August, 2011, the petitioner was released on
probation after being incarcerated for approximately
five years.
On April 9, 2013, the petitioner filed an amended
petition for a new trial,3 primarily to support his effort
to obtain the reinstatement of his license to practice
dentistry. The petitioner brought this action against the
respondents, the Attorney General and the Commis-
sioner of Correction (respondents).4 In his amended
petition, the petitioner argued in relevant part that a
new trial is required for two reasons. First, he argued
that a new trial is required based on newly discovered
evidence, specifically, that Maldonado told two of his
fellow inmates that the petitioner did not know that
the vehicles were stolen.5 Second, he contended that a
new trial is required because of prosecutorial impropri-
ety, specifically, the prosecutor’s failure to correct Mal-
donado’s misstatement on cross-examination that he
would not receive a lighter sentence in exchange for
his testimony and, in fact, could be subjected to addi-
tional jail time if he testified against the petitioner at
his criminal trial.6
The following additional facts concerning Maldo-
nado’s criminal trial, as stipulated to by the parties on
April 22, 2013, after the petitioner filed his amended
petition for a new trial, are also relevant to our resolu-
tion of the present appeal. The parties stipulated that
in February, 2006, an in-chambers, pretrial hearing was
held before the court, Norko, J., regarding Maldonado’s
criminal cases, one case involving a Dodge Ram and
the other case involving the Escalade and the Navigator.
The plea offer made to Maldonado through his attorney
‘‘was a cap of [ten] years on the pending charges in the
absence of cooperation or [five] years if [Maldonado]
cooperated with the State in the case against [the peti-
tioner], with the right to argue for less depending on
the level of cooperation.’’ A hearing was then held
before the court, Cofield, J., at which both Maldonado
and his counsel were present in the courtroom. Judge
Cofield, the petitioner’s attorney, Maldonado’s attorney,
and the prosecutor were all aware of and discussed the
plea offer that had been made to Maldonado prior to
his testimony during the petitioner’s criminal trial.
On June 20, 2013, after a trial to the court, Schuman,
J., the court issued a written ruling denying the petition-
er’s amended petition for a new trial. In its decision,
the court stated: ‘‘The relevant facts begin with the
following colloquy with the court [and the petitioner’s
trial counsel, John Franckling] prior to Maldonado’s
testimony [at the petitioner’s criminal trial]:
‘‘The Court: All right. And, Attorney Franckling, you
know that during cross-examination you are free to
question [Maldonado] about whether any promises have
been made to him.
‘‘[Attorney Franckling]: That’s correct. And there was
one issue, my understanding of [Maldonado’s] offer is
that it is—and I’m sure [the prosecutor] will correct
me or [Maldonado’s attorney] will correct me—that is
a cap of ten and a floor of five. What I would—my only
concern is that when I’m questioning him about that, I
think it would be inappropriate—and I don’t know if
she would do this or not—that it came from a judicial
pretrial, I assume to cite.
‘‘The Court: I don’t know that.
‘‘[Attorney Franckling]: But that’s the court’s offer,
isn’t it? That’s not my offer. And I think that would be
inappropriate because that would lend some judicial
sanction to [Maldonado’s] credibility.
‘‘[The Prosecutor]: The state would agree not to bring
up where that offer came from. . . .
‘‘During the state’s direct examination of Maldonado,
the state did not ask about Maldonado’s plea offer,
nor did Maldonado mention it. On cross-examination,
Franckling’s inquiry proceeded as follows:
‘‘Q. Notwithstanding your criminal history, you have
a very beneficial offer from the state of Connecticut to
resolve your matters. Correct?
‘‘A. No.
‘‘Q. It’s not as beneficial as you’d like it to be, is it?
‘‘A. No.
‘‘Q. But it’s much more beneficial than if you had not
testified against [the petitioner]. Correct?
‘‘A. No.
‘‘Q. Are you telling me that there is not an offer—
Withdrawn. You’re telling us that there’s not a cap on
your offer? If you don’t testify, you get the cap, and if
you do testify, you get the four [or five years]?
‘‘A. I don’t understand. What’s a cap?
‘‘Q. The most that you’re going to get.
‘‘A. They just gave me a number. That’s all. That’s so
far that I know of.
‘‘Q. They gave you two numbers. Right?
‘‘A. Yes.
‘‘Q. A high number—
‘‘A. And a low number.
‘‘Q. —And a lower number.
‘‘A. That’s correct.
‘‘Q. You won’t characterize it as a lower number, but
it’s lower than the cap. Right?
‘‘A. Correct.
‘‘Q. But if [you] testify today, you get the lower num-
ber, don’t you?
‘‘A. No.
‘‘Q. What do you get?
‘‘A. Probably more time.
***
‘‘Q. And you had a cap. In other words, a higher
number and a floor of four or five years. Correct?
‘‘A. Um-hmm.
‘‘Q. And the five years was for—was if you testified
against [the petitioner]?
‘‘A. No. . . .
‘‘The state conducted no redirect examination. At no
point during the trial did the state correct Maldonado’s
misstatement that he would not receive a lighter sen-
tence if he testified against the [petitioner]. In its open-
ing summation, the state did not mention Maldonado or
his testimony. However, during the defense summation,
[Franckling] argued as follows: And [Maldonado] said
he wasn’t sure what his offer was. But we know if he
didn’t testify, he’s got one high number, and if he did
testify, he’s got a low number.
‘‘In its rebuttal summation, the state responded as
follows: Go back and listen to the testimony again. It
wasn’t a high number if [Maldonado] didn’t testify, and
a low number if he did testify. He didn’t know. He knew
what the range was, what his offer was, but he didn’t
know what he would get as far as time based on his
testimony. As a matter of fact, he testified, I’ll probably
get more [time] now. So, he testified at his [peril] know-
ing that he would probably get more jail time because
he testified about his relationship with [the petitioner]
in the stolen motor vehicles in question, and the forged
documents in question. [Maldonado] was a conspirator
in this case along with [Seda and the petitioner].’’ (Cita-
tions omitted; internal quotation marks omitted.)
The court concluded that the petitioner’s claim that
the state failed to correct Maldonado’s misstatements
was not appropriate for consideration on this petition
for a new trial because it found that the petitioner could
have raised it both at trial and on direct appeal. With
respect to his ability to raise this claim at his criminal
trial, the court noted that the petitioner ‘‘had both the
facts and the law necessary to raise the [prosecutor’s]
failure to act before the trial court.’’ The court further
noted that although the petitioner did not, in fact, raise
this claim during the criminal trial, he could have sought
appellate review of the unpreserved claim of prosecu-
torial impropriety.7
Further, the court noted that even if the petitioner
did raise this claim properly in his amended petition
for a new trial, his claim would fail on the merits. In
reliance on State v. Ouellette, 295 Conn. 173, 186, 989
A.2d 1048 (2010), the court concluded that, although
‘‘the prosecutor . . . failed to uphold the highest stan-
dards of her profession,’’ her failure to correct the mis-
leading testimony of Maldonado did not ‘‘[affect] the
judgment of the jury.’’ (Internal quotation marks omit-
ted.) The court set forth three reasons in support of its
conclusion: (1) ‘‘the state neither elicited nor exacer-
bated the inaccurate testimony,’’ (2) ‘‘the court provided
a lengthy instruction on accomplice testimony,’’8 and
(3) ‘‘the state had a strong circumstantial case against
the petitioner wholly independent of Maldonado’s testi-
mony.’’ With respect to the strength of the state’s cir-
cumstantial case against the petitioner, the court noted
that ‘‘Maldonado’s testimony contributed only margin-
ally to the state’s case,’’ and ‘‘Franckling impeached
Maldonado thoroughly and yet the jury still convicted
[the petitioner].’’ Having rejected the prosecutorial
impropriety ground, the court also rejected the newly
discovered evidence ground and denied the petition.
On July 22, 2013, the petitioner filed the present appeal.
As a preliminary matter, we set forth our standard
of review. ‘‘Our standard of review of a court’s decision
with respect to a petition for a new trial is the abuse
of discretion standard. . . . In reviewing claims that
the trial court abused its discretion, great weight is
given to the trial court’s decision and every reasonable
presumption is given in favor of its correctness. . . .
We will reverse the trial court’s ruling only if it could not
reasonably conclude as it did. . . . [T]he proceeding is
essentially equitable in nature; the petitioner has the
burden of alleging and proving facts which would, in
conformity with our settled equitable construction of
the statutes, entitle him to a new trial on the grounds
claimed . . . .’’ (Citations omitted; internal quotation
marks omitted.) Fitzpatrick v. Hall-Brooke Founda-
tion, Inc., 72 Conn. App. 692, 697, 807 A.2d 480, cert.
denied, 262 Conn. 914, 811 A.2d 1291 (2002).
We now turn to the relevant principles of substantive
law that guide us in our analysis. As noted, the petitioner
based his amended petition for a new trial in part on
the ‘‘other reasonable cause’’ provision of § 52-270 (a).
Section 52-270 (a) provides in relevant part: ‘‘The Supe-
rior Court may grant a new trial of any action that may
come before it, for mispleading, the discovery of new
evidence or want of actual notice of the action to any
defendant or of a reasonable opportunity to appear and
defend, when a just defense in whole or part existed,
or the want of actual notice to any plaintiff of the entry
of a nonsuit for failure to appear at trial or dismissal
for failure to prosecute with reasonable diligence, or
for other reasonable cause, according to the usual rules
in such cases. . . .’’ (Emphasis added.)
Our appellate courts have limited the circumstances
in which reasonable cause to grant a petition for a new
trial may be found. ‘‘Although . . . § 52–270 permits
the court to grant a new trial upon proof of reasonable
cause, the circumstances in which reasonable cause
may be found are limited. . . . The basic test of reason-
able cause is whether a litigant, despite the exercise of
due diligence, has been deprived of a fair opportunity
to have a case heard on appeal. . . . A new trial may
be granted to prevent injustice in cases where the usual
remedy by appeal does not lie or where, if there is an
adequate remedy by appeal, the party has been pre-
vented from pursuing it by fraud, mistake or acci-
dent. . . .
‘‘Due diligence is a necessary condition to success
in prosecuting a petition for a new trial. . . . Under
§ 52-270 the exercise of due diligence is a condition
precedent to a finding of reasonable cause. . . . Rea-
sonable is a relative term which varies in the context
in which it is used, and its meaning may be affected by
the facts of the particular controversy. . . . It is also
synonymous with [e]quitable, fair, just. . . . [Section
52-270] does not furnish a substitute for, nor an alterna-
tive to, an ordinary appeal, but applies only when no
other remedy is adequate and when in equity and good
conscience relief against a judgment should be
granted.’’ (Citations omitted; emphasis altered; internal
quotation marks omitted.) Jacobs v. Fazzano, 59 Conn.
App. 716, 724, 757 A.2d 1215 (2000). Having set forth
the relevant background facts and procedural history,
the appropriate standard of review, and the relevant
principles of substantive law that guide our analysis,
we now turn to the petitioner’s claim on appeal.
As noted, the petitioner’s sole claim on appeal is that
the court abused its discretion in denying his amended
petition for a new trial on the basis that he had failed
to establish an ‘‘other reasonable cause’’ to grant his
petition pursuant to § 52-270 (a). Specifically, the peti-
tioner argues that ‘‘the trial court correctly found mis-
take by trial and appellate counsel for failing to raise
the issue of prosecutorial impropriety at trial and on
appeal . . . .’’ Further, the petitioner argues that ‘‘[d]ue
to mistakes by trial and appellate counsel, the [peti-
tioner] did not have the opportunity to raise the [claim
of] prosecutorial impropriety at trial or on appeal,’’
depriving him of his due process right to a fair trial
under the fourteenth amendment to the United States
constitution. The petitioner, accordingly, does not
address whether there was an adequate remedy by
appeal, but instead argues that he was prevented from
pursuing such relief due to the mistake of his trial and
appellate counsel.9
Generally, our appellate courts have declined to grant
a new trial if the petitioner’s mistake could have been
prevented by the exercise of due diligence. See, e.g.,
Tilo Co. v. Fishman, 164 Conn. 212, 214–15, 319 A.2d
409 (1972) (plaintiff not entitled to new trial on ground
that it had lost right of appeal from judgment due to
delay in issuance of notice of decision and judgment
as plaintiff had twenty days after issuance of delayed
notice within which to file appeal but failed to do so);
Milestan v. Tisi, 140 Conn. 464, 469, 101 A.2d 504 (1953)
(alleged mistake of defendant was made after rendering
of judgment and was not basis for new trial on ground
of mistake); Murphy v. Zoning Board of Appeals, 86
Conn. App. 147, 156–57, 860 A.2d 764 (2004) (property
owners’ mistake in interpreting rules of practice did
not entitle them to new trial), cert. denied, 273 Conn.
910, 870 A.2d 1080 (2005); Fitzpatrick v. Hall-Brooke
Foundation, Inc., supra, 72 Conn. App. 700 (court not
persuaded that party’s untimely appeal was kind of
‘‘ ‘mistake’ ’’ that warrants new trial); Hryniewicz v.
Wilson, 51 Conn. App. 440, 445–46, 722 A.2d 288 (1999)
(defendants’ failure to refile motion to strike following
amendment of complaint showed lack of due diligence
and, therefore, did not constitute reasonable cause war-
ranting new trial). Here, the court expressly found that
the petitioner’s failure to raise the claim of prosecutorial
impropriety could have been prevented by the exercise
of due diligence. The petitioner has not demonstrated
that this finding was erroneous.
The court reasonably concluded that ‘‘the petitioner
had both the facts and the law necessary to raise the
state’s failure to act before the trial court [and on direct
appeal].’’ It is apparent from the trial transcripts and
the parties’ stipulation of facts that Franckling was fully
aware of the plea offer that Maldonado had received
in exchange for his testimony in advance of the petition-
er’s criminal trial. Franckling was present during an in-
chambers judicial pretrial conference before the court,
Cofield, J., at which time the plea offer made to Maldo-
nado was discussed. At the petitioner’s criminal trial,
Franckling questioned Maldonado on cross-examina-
tion regarding the plea offer that had been made to
him. Additionally, during the defense’s closing argu-
ment, Franckling noted that, ‘‘we know if [Maldonado]
didn’t testify, he’s got one high number, and if he did
testify, he’s got a low number.’’ In light of this factual
record, we agree with the trial court that the petitioner
was able to bring this matter to the attention of the
court and that he was not deprived of an opportunity
to raise this matter on appeal.
The petitioner has not demonstrated that his failure
to raise his claim of prosecutorial impropriety at his
criminal trial or on direct appeal was the result of mis-
take. The respondents note correctly that the court
‘‘held only that counsel failed to raise the claim earlier,
not that this failure constituted a ‘mistake’ or error,’’
as argued by the petitioner. Our case law does not
equate the failure of a petitioner to raise a claim that
the court found he could have brought at trial or on
direct appeal to a ‘‘mistake’’ warranting a new trial
under § 52-270 (a). See, e.g., Fitzpatrick v. Hall-Brooke
Foundation, Inc., supra, 72 Conn. App. 696–97 (holding
that trial court improperly granted new trial under rea-
sonable cause provision of § 52-270 where petitioner
had opportunity to appeal and did appeal from default
judgment, although in untimely manner).
Indulging every reasonable presumption in favor of
the correctness of the court’s decision; see id., 697; we
conclude that the court did not abuse its discretion in
denying the petitioner’s amended petition for a new
trial. We are not persuaded that the failure of the peti-
tioner’s trial and appellate counsel to raise a claim of
prosecutorial impropriety constituted a ‘‘mistake’’ war-
ranting a new trial. Accordingly, we conclude that this
case does not present a situation in which a litigant has
been deprived of a fair opportunity to have his case
heard on appeal so as to constitute an ‘‘other reasonable
cause’’ or any other ground entitling him to a new trial
pursuant to § 52–270.
The judgment is affirmed.
In this opinion the other judges concurred.
1
VIN is an abbreviation for ‘‘vehicle identification number.’’
2
In reaching this conclusion, this court also relied on the due process
guarantees of article first, § 9, of the Connecticut constitution. State v.
Stuart, supra, 113 Conn. App. 557.
3
The petitioner filed his petition for a new trial on July 11, 2007, and the
petition was therefore brought within three years of the judgments. See
General Statutes § 52-582 (‘‘[n]o petition for a new trial in any civil or criminal
proceeding shall be brought but within three years next after the rendition
of the judgment or decree complained of’’).
4
We note that the petitioner named as the respondents former Attorney
General Richard Blumenthal and former Commissioner of Correction The-
resa C. Lantz.
5
On appeal, the petitioner does not claim that his amended petition for
a new trial improperly was denied on the basis of newly discovered evidence.
6
In his amended petition, the petitioner withdrew counts two, three, four,
and five, and he added a sixth count.
7
Given the nature of his claim, the petitioner could have raised it on
direct appeal without satisfying the specific requirements of State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989). Our Supreme Court has noted
that ‘‘the touchstone for appellate review of claims of prosecutorial [impro-
priety] is a determination of whether the defendant was deprived of his
right to a fair trial, and this determination must involve the application of
the factors set out by this court in State v. Williams, 204 Conn. 523, 540,
529 A.2d 653 (1987).’’ State v. Stevenson, 269 Conn. 563, 573, 849 A.2d
626 (2004).
8
The court’s instructions at the criminal trial expressly informed the jurors
that ‘‘[i]n weighing the testimony of an accomplice who has not yet been
sentenced or whose case has not yet been disposed, you should keep in
mind that he may, in his own mind, be looking for some favorable treatment
in the sentence or imposition of his own case.’’ The court also instructed
the jurors to look at accomplice testimony with ‘‘particular care’’ and ‘‘scruti-
nize it very carefully before [accepting] it.’’ Further, the court reminded the
jury that Maldonado had a criminal record, and there was evidence that he
had made prior inconsistent statements to an investigator, Donald Gates.
9
We note that after the parties filed their briefs in this appeal, but prior
to the time of oral argument, our Supreme Court, in State v. Jordan, 314
Conn. 354, 358, 102 A.3d 1 (2014), held that the prosecutor’s failure to correct
the potentially misleading testimony of two witnesses denying that they
were promised benefits by the state in exchange for their testimony against
the defendant in that case did not violate his due process right to a fair
trial. In Jordan, the court reasoned that where 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,
and ‘‘reversal [of the defendant’s conviction] is virtually automatic . . .
unless the state’s case is so overwhelming that there is no reasonable likeli-
hood that the false testimony could have affected the judgment of the
jury.’’ (Emphasis omitted; internal quotation marks omitted.) Id., 370–71.
Ultimately, ‘‘the state’s case [in Jordan] did not depend on the testimony
of [the two witnesses] because the state presented overwhelming evidence
independent of that testimony connecting the defendant to the crime.’’
Id., 372–73.
In the present case, the petitioner’s reliance on Jordan is undermined by
several factors. First, Jordan did not involve a petition for a new trial under
§ 52-270 but, rather, was a direct appeal from a criminal conviction. Second,
the defendant in Jordan raised a claim of prosecutorial impropriety on
direct appeal, whereas the petitioner in the present case did not. See id.,
357–58, 364–65. Third, as the respondents noted correctly at oral argument,
the Jordan rule is implicated by ‘‘the [state’s] knowing use of perjured
testimony’’ to obtain a conviction, and the court here never made a factual
finding that Maldonado perjured himself. Id., 370.