Gomez v. Commissioner of Correction , 178 Conn. App. 519 ( 2017 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
JAMIE R. GOMEZ v. COMMISSIONER OF
CORRECTION
(AC 39328)
Lavine, Kahn and Bishop, Js.*
Syllabus
The petitioner, who had been convicted of the crimes of murder, felony
murder, and conspiracy to commit murder, sought a writ of habeas
corpus, claiming, inter alia, that his due process rights were violated
by the state’s suppression of material exculpatory evidence in violation
of Brady v. Maryland (373 U.S. 83). Specifically, he claimed that the
state failed to disclose certain consideration that allegedly had been
offered in exchange for the testimony of two witnesses, V and S, both
of whom had been charged with various crimes in connection with
the underlying murder. The petitioner claimed that express agreements
existed between the state and V and S to bring their cooperation to the
attention of the sentencing court, and that the state had failed to disclose
such agreements. The habeas court rendered judgment denying the
habeas petition, from which the petitioner, on the granting of certifica-
tion, appealed to this court. Held:
1. The habeas court properly concluded that the state had not committed
a Brady violation with respect to the agreements that existed between
the state and V and S; that court’s finding that agreements existed
between the state and V and S, and that the agreements were limited
to bringing their cooperation to the attention of the judicial authority
posttrial was not clearly erroneous and was supported by the record,
and because the evidence also supported the habeas court’s finding that
the state had disclosed the agreements, no Brady violation occurred.
2. The petitioner could not prevail on his claim that the state improperly
failed to disclose impeachment evidence relating to how it had assisted
in reducing bonds for V and S, which was based on his claim that
transcripts of bond hearings involving V and S revealed the consideration
offered to them with respect to a reduction of their bonds; the habeas
court properly concluded that the petitioner failed to prove a Brady
violation with respect to evidence of an informal understanding between
the state and V and S, as the petitioner had equal access to the transcripts
of the bond hearings and did not present any evidence at the habeas
trial indicating an inability to obtain them.
3. The petitioner could not prevail on his claim that the state violated his
rights to due process and a fair trial when, during his criminal trial, it
knowingly presented, and failed to correct, the false testimony of V and
S that they had not received any consideration from the state in exchange
for their testimony, even though the state had promised to bring their
cooperation to the attention of the sentencing court and had provided
assistance in lowering their bonds; where, as here, the habeas court
reasonably concluded that the state’s express agreements to bring the
cooperation of V and S to the attention of the judicial authority posttrial
had been disclosed, the statements made during the bond modification
hearings, which formed the substantive basis of the petitioner’s claims
with respect to undisclosed evidence of an informal understanding, took
place in open court, and the petitioner had equal access to the transcripts
for those proceedings, the petitioner failed to prove the existence of an
undisclosed agreement or understanding, and, therefore, the state was
not required to correct the allegedly false testimony of V and S.
4. The habeas court properly concluded that the petitioner was not denied
the effective assistance of counsel as a result of the alleged failure of
his trial counsel to adequately cross-examine V and S regarding their
alleged agreements or understandings with the state; even if trial counsel
was deficient in failing to specifically impeach V and S with certain
transcripts, the petitioner failed to prove that he was prejudiced thereby,
as the jury knew of the substantive terms of the witnesses’ agreements
with the state, could have reasonably inferred a connection between
their cooperation and their reduced bonds, and was fully informed that
the witnesses might have potential biases against the petitioner, and,
therefore, there was not a reasonable probability that the outcome of
the petitioner’s criminal trial would have been different had trial counsel
impeached the witnesses with the various transcripts.
Argued September 11—officially released December 12, 2017
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, Oliver, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Andrew P. O’Shea, assigned counsel, for the appel-
lant (petitioner).
Stephen Carney, senior assistant state’s attorney,
with whom, on the brief, were Michael L. Regan, state’s
attorney, and Theresa Anne Ferryman, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
LAVINE, J. The petitioner, Jamie Gomez, appeals
from the judgment of the habeas court denying his
second petition for a writ of habeas corpus. Following
that denial, the court granted his petition for certifica-
tion to appeal. On appeal, the petitioner claims that the
habeas court erred when it concluded that (1) his state
and federal constitutional due process rights were not
violated by the state’s suppression of material exculpa-
tory evidence concerning agreements or understand-
ings that it allegedly had with two of its witnesses, (2)
the state did not violate his state and federal constitu-
tional rights to due process by knowingly presenting,
and failing to correct, the false testimony from those
witnesses, and (3) he was not denied his state and
federal constitutional rights to the effective assistance
of counsel when his trial counsel failed to properly
cross-examine those witnesses regarding their alleged
agreements or understandings with the state. Because
we conclude that the petitioner failed to prove that the
agreements or understandings were not disclosed, we
are unpersuaded by the petitioner’s first and second
claims. We are also unpersuaded by the petitioner’s
third claim because, even if it is assumed that his trial
counsel provided constitutionally deficient representa-
tion, the petitioner failed to prove that he was preju-
diced. Accordingly, we affirm the judgment of the
habeas court.1
The following facts and procedural history are rele-
vant. In connection with the murder of Darrell Wattley,
the state charged the petitioner and his codefendants,
Anthony Booth and Daniel Brown, each with one count
of murder in violation of General Statutes § 53a-54a, one
count of felony murder in violation of General Statutes
§ 53a-54c, and one count of conspiracy to commit mur-
der in violation of General Statutes §§ 53a-48 (a) and
53a-54a.2 The factual backdrop underlying the charges
is set forth in our Supreme Court’s decision and need
not be repeated in full for this appeal. See State v. Booth,
250 Conn. 611, 614–17, 737 A.2d 404 (1999) (consoli-
dated trial with three codefendants and Supreme Court
consolidated appeals), cert. denied sub nom. Brown v.
Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed.
2d 471 (2000).
The following facts from that decision, however, pro-
vide context for the petitioner’s second habeas petition.
On July 4, 1995, James ‘‘Tiny’’ Smith and Wattley fought
one another at a party. Id., 614. During the fight, Wattley
sliced Smith’s throat with a box cutter, wounding him.
Id. On July 13, 1995, when Smith, Brown, and the peti-
tioner were at Booth’s apartment in New London,
‘‘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.’’ Id.
‘‘When Valentin called to say that Wattley was on his
way, the four men left the building and went outside.
[The petitioner] and Brown 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
Brown or [the petitioner]. After approximately fifteen
minutes, a car arrived and Wattley got out. Wattley
walked toward the north end of the building, where
Brown and [the petitioner] 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.’’ Id., 614–15. Shortly after the
incident, the petitioner drove his codefendants and
Smith across town, where they all agreed to come up
with alibis. Id., 615.
Following a consolidated jury trial, the petitioner and
his codefendants were found guilty of murder and con-
spiracy to commit murder. Id., 613. During the consoli-
dated trial, John F. Cocheo, now deceased, represented
the petitioner, Jeremiah Donovan represented Brown,
and Bruce Sturman represented Booth. On January 7,
1997, the court, Parker, J., sentenced the petitioner to
a term of imprisonment of fifty years on the murder
conviction and a concurrent sentence of fifteen years
on the conspiracy to commit murder conviction, for
a total effective sentence of fifty years to serve. Our
Supreme Court affirmed the petitioner’s conviction. See
id., 617, 663.
On September 18, 2000, the petitioner filed his first
self-represented petition for a writ of habeas corpus
(first petition). In a two count revised petition, he
alleged ineffective assistance of counsel against Cocheo
and actual innocence. The habeas court denied his first
petition, and this court affirmed the denial. See Gomez
v. Commissioner of Correction, 80 Conn. App. 906, 836
A.2d 1279 (2003), cert. denied, 267 Conn. 917, 841 A.2d
219 (2004).
On May 16, 2013, the petitioner filed a second self-
represented petition for a writ of habeas corpus. In his
amended petition (present petition), he first alleged that
the state violated his right to due process by failing to
disclose material exculpatory evidence. Specifically, he
alleged that the state told Smith and Valentin that, in
exchange for their testimony, it would assist in (1)
reducing their bonds and (2) disposing of their charges
in a manner favorable to them, and that it failed to
disclose this information.3 He also alleged that the state
violated his right to due process when the prosecutor
failed to correct the false testimony of Smith and Valen-
tin, who both testified at the consolidated trial that the
state had not offered them ‘‘consideration’’ in exchange
for their testimony. Additionally, he alleged that
Cocheo’s failure to adequately impeach Valentin and
Smith deprived him of his right to the effective assis-
tance of trial counsel.4 The respondent, the Commis-
sioner of Correction, filed his return on January 12,
2016, denying the material allegations of the present
petition.5
On May 23, 2016, the habeas court denied the present
petition in a written decision. It made several relevant
findings of fact, including: ‘‘(a) The petitioner has failed
to demonstrate that underlying trial counsel (Cocheo)
was unaware of the existence of an agreement between
Smith and Valentin and the prosecuting authority to
bring their cooperation to the attention of the judicial
authority posttrial. The evidence demonstrated that at
least one other defense attorney in the consolidated
trial was made aware of the agreement; (b) The peti-
tioner has failed to demonstrate that the underlying
trial testimony of Smith and Valentin was ‘false’ as sug-
gested by the petitioner, as opposed to, for example,
their uncertainty as to the likely posttrial sentencing
scenario. The nature and circumstances of Smith and
Valentin’s ‘agreements’ were thoroughly explored and
dissected on both direct and cross-examination. There
is no reasonable probability that the jury was misled
in this regard; (c) Nothing about the nature of the
agreements or their disclosure was violative of Brady6
or Giglio [v. United States, 405 U.S. 150, 92 S. Ct. 763,
31 L. Ed. 2d 104 (1972)]7; and (d) The petitioner has
failed to demonstrate, as was the case in the first habeas
trial, that Attorney Cocheo was deficient in any regard,
including cross-examining Smith and Valentin.’’ (Foot-
notes added.)
The petitioner filed a motion for articulation, which
the habeas court denied on September 23, 2016. He did
not seek review of that denial. See Practice Book §§ 66-
5 and 66-7. This appeal followed. Additional facts will
be set forth as necessary.
‘‘In evaluating the merits of the underlying claims on
which the petitioner relies in the present appeal, we
observe that [when] the legal conclusions of the court
are challenged, [the reviewing court] must determine
whether they are legally and logically correct . . . and
whether they find support in the facts that appear in
the record. . . . To the extent that factual findings are
challenged, this court cannot disturb the underlying
facts found by the habeas court unless they are clearly
erroneous. . . . [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.) Diaz
v. Commissioner of Correction, 174 Conn. App. 776,
785–86, 166 A.3d 815, cert. denied, 327 Conn. 957,
A.3d (2017). Because the issues presented in this
appeal involve mixed questions of law and fact, our
review is plenary. See, e.g., George M. v. Commissioner
of Correction, 290 Conn. 653, 659, 966 A.2d 179 (2009).
I
We begin with the petitioner’s claim that the state
failed to disclose the ‘‘consideration’’ that it had alleg-
edly offered Valentin and Smith in exchange for their
testimony. We understand his claim to be supported by
two separate arguments. First, he appears to argue that
express agreements existed between the state and the
witnesses to bring their cooperation to the attention of
the sentencing court, and that the state failed to disclose
them.8 Second, he appears to argue that the state failed
to disclose impeachment evidence relating to how the
state assisted in reducing the witnesses’ bonds. The
respondent argues that the record demonstrates that
the state had disclosed the existence and terms of any
agreement between the state and the witnesses. Addi-
tionally, the respondent argues that any statements
made during the bond hearings for Valentin and Smith,
which form the basis of the petitioner’s claim, ‘‘were
public proceedings, open to anyone with interest, and
transcripts were presumably available upon request.’’
We agree with the respondent.
The following additional facts and procedural history
are relevant. On September 13, 1995, Valentin testified
during a probable cause hearing for Booth that impli-
cated 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. Paul E. Murray,
the supervisory assistant state’s attorney (prosecutor),9
informed the court: ‘‘I did indicate to [Steadman], Your
Honor, that I would bring to the court’s attention [Valen-
tin’s] cooperation, and I think I’ve done that.’’ The prose-
cutor 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 indi-
cate 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.’’ (Emphasis
added.)
On March 14, 1996, during a consolidated probable
cause hearing for Brown and the petitioner, Smith pro-
vided testimony that implicated Brown and the peti-
tioner in Wattley’s murder. The petitioner and Cocheo
attended this hearing, and so did Donovan, Brown’s
lawyer. At the beginning of Smith’s testimony, the fol-
lowing 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.’’ (Emphasis added.)
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.
At his habeas trial on the present petition, the peti-
tioner called Donovan, trial defense counsel for Brown,
and Sturman, trial defense counsel for Booth, to testify.
Many of the questions that the petitioner asked on direct
examination related to whether Donovan or Sturman
had seen the bond hearing transcripts for Valentin and
Smith, and whether they would have impeached Valen-
tin and Smith with the information contained in those
transcripts. Specifically, the petitioner asked Donovan
and Sturman whether they would have impeached
Valentin and Smith regarding the state’s promise to
bring their cooperation to the attention of the sentenc-
ing judge and whether they would have impeached
those witnesses with the ‘‘connection’’ between their
cooperation and their reduced bonds. Donovan and
Sturman both testified that they would have used the
testimony from those transcripts to impeach Valentin
and Smith. And neither Donovan nor Sturman recalled
seeing the bond modification hearing transcripts prior
to testifying at the habeas trial on the present petition.
Donovan also testified that, on four or five occasions,
‘‘[the prosecutor] told me . . . that the only promise
that had been [made] to [Valentin and Smith] is [that]
their cooperation would be brought to the attention of
the judge.’’ On the basis of his extensive experience
dealing with the New London County Office of the
State’s Attorney, he also testified that the general proce-
dure was not to offer specific ‘‘deals.’’
Contrary to Donovan’s testimony, Sturman testified
that, although he knew that Valentin had been released
on a reduced bond, he was never informed that the
state had offered any promises to either Valentin or
Smith in exchange for their cooperation. He echoed
Donovan’s testimony, however, that the standard proce-
dure in New London ‘‘was that no specific deals were
made between a cooperating witness and the prose-
cution.’’
The respondent did not call any witnesses or present
any evidence beyond cross-examination of Donovan
and Sturman. During his argument to the habeas court,
the petitioner focused on the contents of the bond hear-
ing transcripts in support of his Brady claim, noting
that Donovan and Sturman ‘‘had never seen these pro-
ceedings. They didn’t know this information [contained
in the witnesses’ bond hearing transcripts].’’
‘‘The defendant has a right to the disclosure of excul-
patory evidence under the due process clauses of both
the United States constitution and the Connecticut con-
stitution. . . . In order to prove a Brady violation, the
defendant must show: (1) that the prosecution sup-
pressed evidence after a request by the defense; (2)
that the evidence was favorable to the defense; and (3)
that the evidence was material. . . . Any . . . under-
standing or agreement between any state’s witness and
the state police or the state’s attorney clearly falls within
the ambit of Brady principles. . . .
‘‘The question of whether there existed an agreement
between [a witness] and the state is a question of fact.’’
(Citations omitted; internal quotation marks omitted.)
Elsey v. Commissioner of Correction, 126 Conn. App.
144, 152–53, 10 A.3d 578, cert. denied, 300 Conn. 922,
14 A.3d 1007 (2011). ‘‘Furthermore, the burden is on
the defendant to prove the existence of undisclosed
exculpatory evidence.’’ State v. Floyd, 253 Conn. 700,
737, 756 A.2d 799 (2000).
As previously noted, the petitioner essentially makes
two separate arguments in support of his Brady claim.
First, he contends that express agreements existed
between the state and Valentin and Smith to bring their
cooperation to the attention of the sentencing court,
and that the state failed to disclose them. Second, the
petitioner argues that the state failed to disclose
impeachment evidence relating to how the state
assisted in reducing the bonds for Valentin and Smith.
We reject each argument and address them in turn.
A
The petitioner first argues that express agreements
existed between the state and the witnesses to bring
their cooperation to the attention of the sentencing
court, and that the state failed to disclose them. We
agree that the state had express agreements with Valen-
tin and Smith to bring their cooperation to the attention
of the sentencing court, but disagree that the state failed
to disclose them.
The habeas court found: ‘‘The petitioner has failed
to demonstrate that underlying trial counsel (Cocheo)
was unaware of the existence of an agreement between
Smith and Valentin and the prosecuting authority to
bring their cooperation to the attention of the judicial
authority posttrial. The evidence demonstrated that at
least one other defense attorney in the consolidated
trial was made aware of the agreement.’’ This finding
is relevant in two material respects. First, it indicates
that the habeas court found that agreements did, in
fact, exist, and that they were limited to ‘‘bring[ing]
[Valentin’s and Smith’s] cooperation to the attention
of the judicial authority posttrial.’’ Second, the court’s
finding indicates that another defense attorney was
aware of these agreements that the state had with Valen-
tin and Smith and that the petitioner failed to prove
that Cocheo was unware of such agreements.
On the basis of our review of the record, we conclude
that the habeas court’s finding that agreements existed
between the state and the cooperating witnesses, and
that the agreements were limited to bringing their coop-
eration to the attention of the judicial authority post-
trial, was not clearly erroneous. The prosecutor’s
statements during Valentin’s bond hearing on October
5, 1995, indicate that an agreement existed with Valen-
tin. The prosecutor’s direct examination of Smith during
the petitioner’s consolidated probable cause hearing
on March 14, 1996, which Cocheo and the petitioner
attended, also indicates that the state had an agreement
with Smith. During Valentin’s bond hearing, Valentin’s
attorney confirmed that the agreement with Valentin
was limited to bringing her cooperation to the attention
of the sentencing authority and that it did not include
a quid pro quo for a specific bond recommendation.
Additionally, Donovan testified that the prosecutor
informed him on multiple occasions that agreements
existed, but that the only promise was to bring the
cooperation of Valentin and Smith to the attention of
the court. Because this evidence supports the habeas
court’s finding that the state had limited agreements
to bring the cooperation of Valentin and Smith to the
attention of the court posttrial, we conclude that the
habeas court’s finding was not clearly erroneous.10
The habeas court’s finding also reflects that the state
disclosed the agreements. During the habeas trial, Don-
ovan admitted to knowing about the agreements
between the state and the witnesses. Cocheo and the
petitioner attended the petitioner’s consolidated proba-
ble cause hearing when the prosecutor asked Smith, in
open court, whether the state had promised him any-
thing other than bringing his cooperation to the atten-
tion of the sentencing court. This evidence supports
the habeas court’s finding that the state disclosed the
agreements.
‘‘Evidence known to the defendant or his counsel, or
that is disclosed, even if during trial, is not considered
suppressed as that term is used in Brady.’’ (Internal
quotation marks omitted.) Hines v. Commissioner of
Correction, 164 Conn. App. 712, 726, 138 A.3d 430
(2016). Because the habeas court found that the
agreements had been disclosed, it properly concluded
that the state had not committed a Brady violation with
respect to the express agreements that existed.
B
The petitioner next argues that the state failed to
disclose impeachment evidence relating to how it
assisted in reducing the bonds for Valentin and Smith.
We disagree.
The petitioner appears to argue that the state offered
to assist in reducing the bonds for Valentin and Smith
in exchange for their testimony based on the following:
(1) they were required to stay in contact with the state
while out on bond; (2) the court considered their coop-
eration in reducing their bonds; and (3) the state did
not object to their motions to modify their respective
bonds. ‘‘Our Supreme Court has acknowledged that
even when certain undisclosed evidence did not support
a finding of an implied agreement between the state and
a witness, such evidence may nonetheless constitute
impeachment evidence under Brady if it reasonably
could be construed to suggest an ‘informal understand-
ing’ between the state and a witness.’’ Elsey v. Commis-
sioner of Correction, supra, 126 Conn. App. 155; see
also State v. Floyd, supra, 253 Conn. 740–46 (addressing
circumstances where state failed to disclose that it had
not opposed witness’ request to reduce bond to promise
to appear).
The petitioner’s argument that the state failed to dis-
close impeachment evidence stems from statements
made during the witnesses’ respective bond hearings.
He argues that the transcripts of these proceedings
reveal the ‘‘consideration’’ offered to Valentin and Smith
with respect to a reduction of their bonds. It is signifi-
cant that the only evidence offered by the petitioner
of an informal understanding between the state and
Valentin and Smith regarding a reduction of their bonds
were these transcripts. ‘‘Brady is designed to assure
that the defendant is not denied access to exculpatory
evidence known or available to the state but unknown
or unavailable to him.’’ (Emphasis added.) State v.
Skakel, 276 Conn. 633, 702, 888 A.2d 985, cert. denied,
549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006).
Under the circumstances of the present case, the
habeas court properly concluded that the petitioner
failed to prove a Brady violation with respect to evi-
dence of an informal understanding between the state
and Valentin and Smith.11 The petitioner had equal
access to the transcripts of the bond modification pro-
ceedings and did not present any evidence at the habeas
trial indicating an inability to obtain them. See, e.g.,
State v. Simms, 201 Conn. 395, 404–408, 518 A.2d 35
(1986) (rejecting defendant’s argument that state failed
to disclose evidence of witness’ mental health records
because relevant information was matter of public
record); State v. Crump, 43 Conn. App. 252, 263, 683
A.2d 402 (defendant failed to prove Brady violation
because, inter alia, he ‘‘failed to demonstrate that . . .
he did not know of [a victim’s] testimony or have the
opportunity to purchase the transcripts [from his cocon-
spirator’s] probable cause hearing and trial’’), cert.
denied, 239 Conn. 941, 684 A.2d 712 (1996). Accordingly,
the petitioner failed to prove that the state committed a
Brady violation with respect to impeachment evidence
relating to a reduction of the bonds for Valentin and
Smith.
II
We next address the petitioner’s claim that his rights
to due process and a fair trial were violated when the
state knowingly presented the false testimony of Valen-
tin and Smith during his consolidated criminal trial.
Specifically, he argues that both witnesses falsely testi-
fied that they had not received any consideration from
the state in exchange for their testimony and that the
state failed to correct their false testimony. He argues
that the state, in fact, promised to bring their coopera-
tion to the attention of the sentencing court and pro-
vided assistance in lowering their bonds.12 The
respondent argues, inter alia, that the petitioner’s claim
fails because the testimony in question did not involve
an undisclosed agreement or understanding. We agree
with the respondent.
The following additional facts and procedural history
are relevant. Smith and Valentin both testified on behalf
of the state during the petitioner’s consolidated trial.
At trial, Valentin implicated the petitioner and his code-
fendants in Wattley’s murder, but denied receiving any
consideration from the state in exchange for her testi-
mony.13 Smith similarly implicated the petitioner and
his codefendants, but denied receiving consideration
from the state in exchange for his testimony.14 At oral
argument before this court, the respondent agreed that
the testimony of these witnesses was ‘‘significant’’ and
‘‘extremely important’’ to convicting the petitioner and
his codefendants.
‘‘Regardless of the lack of intent to lie on the part of
the witness, Giglio and Napue [v. Illinois, 360 U.S. 264,
79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959)] require that the
prosecutor apprise the court when he knows that his
witness is giving testimony that is substantially mis-
leading. . . .
‘‘The prerequisite 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. . . . Normally, this
is a fact based claim to be determined by the trial court,
subject only to review for clear error.’’ (Citations omit-
ted; emphasis added; internal quotation marks omitted.)
State v. Ouellette, 295 Conn. 173, 186–87, 989 A.2d 1048
(2010); see also State v. Jordan, 314 Conn. 354, 369–71,
102 A.3d 1 (2014) (setting forth governing standards for
proving that state failed to correct false or misleading
testimony); Adams v. Commissioner of Correction, 309
Conn. 359, 369–73, 71 A.3d 512 (2013) (same). ‘‘[T]he
burden is on the defendant to prove the existence of
undisclosed exculpatory evidence.’’ State v. Floyd,
supra, 253 Conn. 737.
We conclude that the petitioner’s Napue/Giglio claim
is controlled by our recent decision in Hines v. Com-
missioner of Correction, supra, 164 Conn. App. 712.
There, this court held that, where a case does not
involve an undisclosed agreement or understanding, the
state is not required to correct a witness’ allegedly false
testimony. Id., 728.15 As previously noted, the habeas
court reasonably concluded that the state’s express
agreements to bring the cooperation of Valentin and
Smith to the attention of the judicial authority posttrial
had been disclosed. Additionally, the statements made
during the bond modification hearings, which form the
substantive basis of the petitioner’s Brady, Napue, and
Giglio claims with respect to undisclosed evidence of
an informal understanding, took place in open court.
The petitioner had equal access to the transcripts for
those proceedings. See, e.g., General Statutes § 51-61
(c) (court reporter ‘‘shall, when requested, furnish . . .
to any other person, within a reasonable time, a tran-
script of the proceedings’’ [emphasis added]); State v.
Ross, 208 Conn. 156, 160, 543 A.2d 284 (1988) (noting
1988 amendment to § 51-61 permitting ‘‘any other per-
son’’ to obtain transcript of proceedings). Under these
circumstances, the habeas court properly concluded
that the state did not violate Napue/Giglio, because the
petitioner failed to prove the existence of an undis-
closed agreement or understanding.16
III
The petitioner’s final claim is that he was deprived
of his right to the effective assistance of trial counsel
when Cocheo failed to adequately cross-examine Valen-
tin and Smith. Specifically, he argues that, if Cocheo
knew and had access to evidence that Valentin and
Smith received consideration from the state, objective
standards of reasonable performance required that he
impeach the witnesses with that evidence. He argues
that there is a reasonable probability that the outcome
of the trial would have been different if Cocheo had
used this evidence. We disagree.
The following additional facts and procedural history
are relevant. During his direct examination of Valentin,
the prosecutor questioned her about her pending charge
of accessory to assault in the first degree in connection
with Wattley’s murder. He specifically asked her
whether she had testified at a ‘‘preliminary hearing’’
and whether, subsequent to testifying, her bond was
reduced to a promise to appear. She agreed that her
bond was reduced after she testified at that hearing.
She further testified that she hoped that her testimony
against the petitioner and his codefendants would help
her case. Additionally, Donovan, Sturman, and Cocheo
each cross-examined her about the circumstances sur-
rounding her bond reduction.17
In response to the prosecutor’s questions, Smith
admitted that he faced criminal charges in connection
with Wattley’s murder, namely, murder, conspiracy to
commit murder, and felony murder. He testified that
he hoped that he would not go to jail and that his
testimony would show ‘‘that [he] had nothing to do with
this.’’ Smith further agreed with the prosecutor that his
bond was reduced after testifying at the consolidated
probable cause hearing for Brown and the petitioner,
that he returned to Alabama, and that the state paid
for his flight, hotel, and food while he was in Connecti-
cut for the petitioner’s trial. As with Valentin, Donovan
and Sturman cross-examined Smith about his bond
reduction.18 Part of their cross-examination focused on
the potential connection between his cooperation and
a reduction in his bond.19 Other portions of their cross-
examination sought to expose their defense theory that
Smith fabricated his testimony because he murdered
Wattley.20
Donovan, Sturman, and Cocheo also commented on
the circumstances surrounding the bond reductions for
Valentin and Smith during final arguments to the jury,
suggesting there was a connection between their bond
reductions and testimony. They argued that the jury
should consider this connection in assessing the wit-
nesses’ credibility. The court also instructed the jury
to pay careful attention to ‘‘accomplice testimony’’ and
that such testimony ‘‘may be colored’’ by a witness’
hope for some favorable treatment.21
‘‘To succeed on a claim of ineffective assistance of
counsel, a petitioner must satisfy the two-pronged test
articulated in Strickland v. Washington, [466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. Strickland
requires that a petitioner satisfy both a ‘performance
prong’ and a ‘prejudice prong.’ To satisfy the perfor-
mance prong, a [petitioner] must show that counsel’s
conduct fell below an objective standard of reasonable-
ness for competent attorneys [as measured by prevail-
ing professional norms]. . . . To satisfy the prejudice
prong, a [petitioner] must show a reasonable probability
that the outcome of the proceeding would have been
different but for counsel’s errors. . . . The claim will
succeed only if both [Strickland] prongs are satisfied.
. . . It is well settled that [a] reviewing court can find
against a petitioner on either ground, whichever is eas-
ier.’’ (Citations omitted; emphasis in original; internal
quotation marks omitted.) Arroyo v. Commissioner of
Correction, 172 Conn. App. 442, 458, 160 A.3d 425, cert.
denied, 326 Conn. 921, 169 A.3d 235 (2017). In these
circumstances, ‘‘[a] reasonable probability is a probabil-
ity sufficient to undermine confidence in the outcome.’’
(Internal quotation marks omitted.) Hinton v. Alabama,
U.S. , 134 S. Ct. 1081, 1089, 188 L. Ed. 2d 1 (2014).
Even if we were to assume, which we do not, that
Cocheo’s failure to specifically impeach Valentin and
Smith with the transcripts from the probable cause
hearings and their respective bond hearings constituted
deficient performance, we conclude that the petitioner
failed to prove prejudice.
The agreements that Valentin and Smith had with the
state did not require that the state advance a specific
recommendation in exchange for their testimony;
rather, the substance of the agreements was that both
Valentin and Smith hoped that their cooperative testi-
mony might favorably be taken into account by the
sentencing court. During the consolidated trial, Valentin
and Smith both testified, in substance, that they hoped
that their cooperative testimony would be taken into
account with regard to their pending charges. Valentin
and Smith also agreed with the prosecutor that their
bonds were reduced following their testimony at the
probable cause hearings for Booth, Brown, and the
petitioner. And Cocheo and codefense counsel thor-
oughly explored the circumstances surrounding the
bond reductions for both witnesses. Questioning Valen-
tin and Smith about the contents of the transcripts,
therefore, would have provided the jury with little addi-
tional information.
The court also informed the jurors that those wit-
nesses who admitted to participating in the criminal
conduct charged by the state may be looking for favor-
able treatment and ‘‘may have such an interest in the
outcome of this case that his or her testimony may be
colored by that fact.’’ This instruction reminded the
jurors of Valentin’s and Smith’s potential biases, and
jurors are presumed to follow the court’s instructions.
See, e.g., State v. Fernandez, 169 Conn. App. 855, 870,
875, 153 A.3d 53 (2016).
Our conclusion is further buttressed by the closing
remarks of Cocheo and Sturman. Cocheo argued:
‘‘[Valentin] said, I had no idea at all I was going to be
released. I had no idea, hadn’t thought about it, hadn’t
talked about it at all. I ask you, is that credible? Is that
credible? All she says is that she hopes her testimony
will help her case. We know it helped so far; she’s not
in jail anymore.’’ Sturman argued during his closing,
‘‘don’t you think that [Smith’s] testimony is flavored by
his expectation of what’s going to happen if he contin-
ues to play ball?’’ Such closing remarks urged the jury
to discredit Valentin’s and Smith’s testimony based on
their reduced bonds and their cooperation with the
state.
We are not persuaded that there is a reasonable prob-
ability that, had Cocheo impeached Valentin or Smith
with either the probable cause hearing transcripts or
their respective bond hearing transcripts, the outcome
of the petitioner’s trial would have been different. The
jury knew of the substantive terms of the witnesses’
agreements with the state, could have reasonably
inferred a connection between their cooperation and
their reduced bonds, and was fully informed that the
witnesses might have potential biases against the peti-
tioner. Under the circumstances of the present case,
we are confident that the outcome of the petitioner’s
trial would not have been different if Cocheo specifi-
cally impeached Valentin and Smith with the relevant
transcripts. The habeas court, therefore, properly con-
cluded that the petitioner was not denied the effective
assistance of counsel at his criminal trial.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Although the petitioner claims that his rights under article first, §§ 8 and
9, of the constitution of Connecticut were violated, he has failed to provide
an independent analysis under our state constitution. Accordingly, we deem
his state constitutional claims abandoned. See, e.g., State v. Bennett, 324
Conn. 744, 748 n.1, 155 A.3d 188 (2017).
2
After the close of evidence, the state filed substitute informations against
the petitioner and Booth, which removed their felony murder charges and
charged each of them with one count of murder and one count of conspiracy
to commit murder.
3
The state charged Smith with murder, felony murder, and conspiracy to
commit murder, and also charged Valentin with accessory to assault in the
first degree in violation of General Statutes §§ 53a-8 and 53a-59.
On March 16, 2000, Smith pleaded guilty to manslaughter in the second
degree in violation of General Statutes § 53a-56 (a) (1) and was sentenced
to one year and three months incarceration. On January 13, 1997, Valentin
pleaded guilty to accessory to assault in the third degree in violation of
General Statutes §§ 53a-8 and 53a-61 (a) (1) and received a suspended sen-
tence of one year.
4
In his present petition, the petitioner also raised claims of judicial bias
and ineffective assistance of counsel of his first habeas counsel. He withdrew
his judicial bias claim prior to trial and does not press his ineffective assis-
tance of habeas counsel claim in this appeal.
5
The respondent did not plead procedural default or successive petition
with regard to any of the petitioner’s claims. See Practice Book §§ 23-29
and 23-30 (b); see also Zollo v. Commissioner of Correction, 133 Conn.
App. 266, 277–80, 35 A.3d 337 (discussing and applying successive petition
doctrine), cert. granted, 304 Conn. 910, 39 A.3d 1120 (2012) (appeal dismissed
May 1, 2013); Milner v. Commissioner of Correction, 63 Conn. App. 726,
731–34, 779 A.2d 156 (2001) (discussing procedural default). We, therefore,
decide this appeal on the merits of the petitioner’s claims. See, e.g., Quint
v. Commissioner of Correction, 99 Conn. App. 395, 403, 913 A.2d 1120 (2007)
(petitioner’s claim ‘‘should be heard on its merits’’ when respondent fails
to raise procedural default).
6
See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
7
See also Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d
1217 (1959).
8
The petitioner alleged in his present petition that the prosecuting author-
ity offered to assist Valentin and Smith in ‘‘disposing of their charges in a
manner more favorable to them,’’ but failed to disclose such offers. In
support of this allegation, he only argues that an agreement existed to bring
the witnesses’ cooperation to the attention of the sentencing court. He made
this same, limited argument to the habeas court. He fails to direct our
attention to specific points in the record that otherwise support his claim.
We follow the petitioner’s lead and limit our analysis to his argument that
the state had express agreements with Valentin and Smith to bring their
cooperation to the attention of the sentencing court, but failed to disclose
them. See, e.g., Bharrat v. Commissioner of Correction, 167 Conn. App.
158, 181–82, 143 A.3d 1106 (declining to review argument on appeal that
was never raised in habeas court), cert. denied, 323 Conn. 924, 149 A.3d
982 (2016); see also Solek v. Commissioner of Correction, 107 Conn. App.
473, 480, 946 A.2d 239 (‘‘[i]t is not the responsibility of the trial judge . . .
to search a record, often, in a habeas case, involving hundreds of pages of
transcript, in order to find some basis for relief for a petitioner’’), cert.
denied, 289 Conn. 902, 957 A.2d 873 (2008).
After reviewing the record, however, we note that it does contain state-
ments during Smith’s plea hearing, held on March 16, 2000, after our Supreme
Court affirmed the petitioner’s conviction, from which it can be inferred
that the state had an agreement or understanding with Smith. The following
colloquy took place between the prosecutor, Paul E. Murray, defense counsel
for Smith, Anthony Basilica, and the court in connection with the prosecutor
providing the factual basis for Smith pleading guilty to manslaughter in the
second degree:
‘‘[The Prosecutor]: We recognize and have recognized from the beginning
the value of [Smith’s] cooperation. It has been the state’s position that with
respect to . . . Booth, there was sufficient evidence and all probability to
convict . . . Booth of murder and conspiracy to commit murder without
the assistance of [Smith] because . . . Booth had been injudicious in his
comments and had made statements in the presence of police officers,
among other things, that clearly showed his involvement. With respect,
however, to . . . Gomez and . . . Brown, the state would have had a diffi-
cult, if not impossible, case without the assistance of [Smith]. It was in fact
[Smith’s] cooperation that led to their arrest. He testified at their probable
cause hearing, and he testified extensively at the trial. . . .
‘‘Early in the proceedings, after the trial of . . . Booth, Brown, and
Gomez, as long ago as when Judge Purtill was . . . still the presiding
judge in this judicial district on the criminal side, we had had discussions
about the disposition in this case, and the state has always offered a plea
to a manslaughter charge. And the state has always offered to agree to a
recommendation of the state of a ten year sentence to be served with [Smith]
reserving the right to argue for less. Again, as long ago as when Judge
Purtill was presiding and Judge Purtill had heard the testimony of [Smith]
at the probable cause hearing, Judge Purtill had indicated his inclination
to impose a substantially lesser sentence than the ten years that the state
was recommending. We have been aware of that from the beginning. And
I know that this court has indicated a sentence of, I believe, [fifteen]
months. . . .
‘‘So, that is the basis on which this plea is entered, and factual basis on
which the charges are brought.
‘‘The Court: Thank you. Attorney Basilica, is that what had been discussed
with . . . Smith?
‘‘[Basilica]: Yes, Your Honor.’’ (Emphasis added.)
The prosecutor’s statements during the March 16, 2000 proceeding suggest
that an agreement or understanding existed, at some point in time, between
the state and Smith regarding a favorable disposition to his pending criminal
charges. It is unclear on this record, however, as to precisely when that
agreement or understanding might have existed. The petitioner did not call
the prosecutor or Smith to testify during his habeas trial and, therefore, we
are left to speculate as to when such an agreement or understanding might
have existed.
9
Murray represented the state at the petitioner’s consolidated criminal
trial. He also represented the state in connection with the criminal proceed-
ings against Valentin and Smith.
10
The habeas court concluded that no agreements existed between Valen-
tin and Smith, on the one hand, and the state, on the other, insofar as there
was no specific agreement as to what sentence the state would recommend.
On the basis of our review of the record, that conclusion is amply supported
by the record. But that conclusion is incorrect, however, insofar as it ignores
the fact that the state had agreed to bring the cooperation of Valentin and
Smith to the attention of the sentencing court.
11
We note that the habeas court did not explicitly find that the state
disclosed or otherwise did not suppress the impeachment evidence relating
to how the state allegedly assisted Valentin and Smith in reducing their
bonds. The habeas court’s memorandum of decision simply concludes that
‘‘[n]othing about the nature of the agreements or their disclosure was vio-
lative of Brady or Giglio.’’ On the basis of the evidence before it, including
the transcripts from the respective bond hearings for both witnesses, it is
implicit in the habeas court’s conclusion that the petitioner failed to prove
that the state did not disclose or otherwise suppressed this impeachment
evidence. See, e.g., Charlotte Hungerford Hospital v. Creed, 144 Conn. App.
100, 116, 72 A.3d 1175 (2013) (appellate courts read ambiguous memorandum
of decision to support, rather than undermine decision).
12
As in his Brady claim, the petitioner makes the general assertion that
the witnesses received consideration from the state with respect to their
eventual sentences. As previously noted in footnote 8 of this opinion, we
understand the petitioner’s argument to be limited to the state’s promise to
bring Valentin’s and Smith’s cooperation to the attention of the sentenc-
ing court.
13
During direct examination, the prosecutor questioned Valentin about
her pending criminal charges. The following portion of that examination
is relevant:
‘‘[The Prosecutor]: Do you have any idea what’s going to happen to your
case in the end?
‘‘[Valentin]: No, I don’t.
‘‘[The Prosecutor]: Has anybody promised you anything?
‘‘[Valentin]: No.
***
‘‘[The Prosecutor]: Do you hope that by being here and testifying it will
help your case?
‘‘[Valentin]: Yes, I hope so.
‘‘[The Prosecutor]: But you don’t know for sure what’s going to happen?
‘‘[Valentin]: No.’’ (Emphasis added.)
Valentin subsequently confirmed that the state had not promised her
anything during cross-examination and redirect examination.
14
The prosecutor similarly asked Smith about his pending criminal charges
in connection with Wattley’s murder. The following exchange took place
during direct examination:
‘‘[The Prosecutor]: Do you have any idea what’s going to happen in the
criminal charges against you?
‘‘[Smith]: No, I don’t.
‘‘[The Prosecutor]: Did anybody promise you anything?
’’[Smith]: No.
’’[The Prosecutor]: Do you have some hopes as to what might happen to
them, at least in part as a result of your testimony?
‘‘[Smith]: Yes.
‘‘[The Prosecutor]: What do you hope?
‘‘[Smith]: That they find out the truth, and that I had nothing to do with
this.’’ (Emphasis added.)
Smith subsequently confirmed that the state had not promised him any-
thing in return for his statements to police or testimony at trial, and that
there was no connection between his reduced bond and cooperating with
the state.
15
In his brief to this court, the petitioner argued that Hines should be
overruled and requested en banc consideration of his appeal. On July 26,
2017, this court denied the petitioner’s motion for en banc consideration.
16
Although we conclude that the present case is controlled by Hines’
rationale that the state is not required to correct a witness’ allegedly false
testimony when the case does not involve an undisclosed agreement or
understanding, we recognize that there is language in State v. Jordan, 135
Conn. App. 635, 42 A.3d 457 (2012), rev’d in part on other grounds, 314
Conn. 354, 102 A.3d 1 (2014), suggesting that a prosecutor is obligated to
correct the record under similar circumstances. In Jordan, this court held
that, although the state had informed the court and defense counsel of
agreements to bring two witnesses’ cooperation to the court’s attention, the
prosecutor still had a duty to correct the witnesses’ subsequent misleading
testimony when both witnesses denied the existence of any agreements
with the state. Id., 666. On appeal to our Supreme Court, the state raised
the alternative ground for affirmance in that this court improperly concluded
that the prosecutor had violated the standards set forth by Napue. State v.
Jordan, supra, 314 Conn. 366 n.6. Notably, our Supreme Court stated: ‘‘We
agree with the Appellate Court that the alleged improprieties were harmless
and thus need not reach the alternative grounds for affirmance. Nevertheless,
nothing in this opinion should be construed to suggest that we concur in the
Appellate Court’s determination that improprieties occurred.’’ (Emphasis
added.) Id., 369 n.7.
Nonetheless, this court and our Supreme Court have stated that a prerequi-
site to a claim under Brady, Napue, and Giglio is the existence of an
undisclosed agreement or understanding between the cooperating witness
and the state. State v. Ouellette, supra, 295 Conn. 186–87; Hines v. Commis-
sioner of Correction, supra, 164 Conn. App. 728. Because of that precedent,
we affirm the habeas court’s decision that the state did not commit a Napue/
Giglio violation.
17
For example, the following examination took place during Donovan’s
cross-examination of Valentin:
‘‘[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.)’’
18
Cocheo did not cross-examine Smith about his bond reduction.
19
For example, the following exchange took place during Donovan’s cross-
examination of Smith:
‘‘[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]: But the point is, that there is a connection between your
being able to enjoy all those things and the fact that you’re sitting up on
the stand trying to put the blame on these men, isn’t there?
‘‘[Smith]: I’m just 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.’’
20
As noted by our Supreme Court, Wattley had sliced Smith’s throat with a
box cutter, ‘‘wounding him superficially,’’ roughly one week before Wattley’s
murder. See State v. Booth, supra, 250 Conn. 614. The defense theory for
Booth and Brown was that Smith had the motive to kill Wattley and did so
in retaliation for Wattley’s previous attack.
21
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.’’