Bova v. Commissioner of Correction ( 2022 )

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MARK BOVA v. COMMISSIONER OF CORRECTION
(AC 43993)
Moll, Clark and Bear, Js.
Syllabus
The petitioner, who had previously been convicted of murder and conspiracy
to commit murder, filed an amended petition for habeas corpus, claim-
ing, inter alia, that the state failed to disclose exculpatory evidence or
to correct certain false and misleading testimony, in violation of his due
process rights. At the petitioner’s criminal trial, D, a coconspirator,
testified as to how she and the petitioner were involved in the death of
the victim, and her testimony was corroborated by forensic evidence.
The habeas court rendered judgment dismissing in part and denying in
part the petitioner’s claims, from which the petitioner, on the granting
of certification, appealed to this court. Held that the petitioner could
not prevail on his claim that the habeas court erred in failing to find
the existence of a cooperation agreement or understanding between D
and the state with respect to D’s testimony: the petitioner’s reliance on
Gomez v. Commissioner of Correction (336 Conn. 168) was misplaced
because, even assuming the veracity of the petitioner’s allegations that
D was provided benefits in exchange for her cooperation, Gomez applies
only when a petitioner establishes the existence of an agreement
between the state and a witness and that the witness received some
benefit as a result of the agreement, and this court’s review of the record
confirmed the habeas court’s finding that the petitioner failed to prove
that the state had entered into an agreement or understanding with D;
moreover, with respect to the petitioner’s due process claim, the habeas
court’s finding that the petitioner had not proved that an agreement
or understanding existed between the state and D was supported by
substantial evidence.
Submitted on briefs January 26—officially released March 15, 2022
Procedural History
Amended petition for a writ of habeas corpus, brought
to the Superior Court in the judicial district of Tolland,
where the court, Newson, J., dismissed in part the peti-
tion; thereafter, the case was tried to the court, Seeley,
J.; judgment dismissing in part and denying in part the
petition, from which the petitioner, on the granting of
certification, appealed to this court. Affirmed.
J. Patten Brown III, assigned counsel, for the appellant
(petitioner).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Margaret E. Kelley, state’s
attorney, and Angela R. Macchiarulo and Michael Joseph
Proto, senior assistant state’s attorneys, for the appellee
(respondent).
Opinion
PER CURIAM. Following the granting by the habeas
court of his petition for certification to appeal, the peti-
tioner, Mark Bova, appeals from the judgment of the
habeas court denying his third petition for a writ of
habeas corpus. On appeal, the petitioner claims that the
habeas court erred in failing to find the existence of a
cooperation agreement or understanding between Diana
Donofrio, a coconspirator, and the state with respect to
Donofrio’s testimony at the petitioner’s criminal trial.
We disagree with the petitioner’s claim of error and,
accordingly, affirm the judgment of the habeas court.
The following facts and procedural history are relevant
to our resolution of the petitioner’s appeal. After a jury
trial, the petitioner was found guilty of the murder of his
wife in violation of General Statutes § 53a-54a (a) and of
conspiracy to commit murder in violation of General
Statutes §§ 53a-48 (a) and 53a-54a (a). State v. Bova, 240
Conn. 210, 213, 690 A.2d 1370 (1997). At the petitioner’s
criminal trial, Donofrio testified as to how she and the
petitioner were involved in the death of the petitioner’s
wife. Id., 216–17.1 Donofrio’s testimony was corroborated
by forensic evidence presented at the trial. Id., 217–18.
The petitioner appealed from the judgment of the trial
court, which sentenced him to concurrent terms of sixty
years of incarceration on the murder conviction and
twenty years of incarceration on the conspiracy convic-
tion. Id., 212–13. Our Supreme Court affirmed the judg-
ment of the trial court. Id., 246.
On April 24, 2017, the petitioner filed his third petition
for a writ of habeas corpus.2 The petitioner subsequently
amended his petition on August 16, 2018, and September
13, 2018. In the operative petition, the petitioner asserted
claims of (1) judicial misconduct, (2) prosecutorial
impropriety, (3) insufficient probable cause, and (4) the
state’s failure to disclose exculpatory evidence or to cor-
rect false and misleading testimony with respect to an
informal agreement or understanding with Donofrio that,
in return for her testimony against the petitioner, the
state would provide her with various benefits, including
pretrial release on a $100,000 nonsurety bond, a reduction
in the severity of the charges against her, and no recom-
mendation by the state concerning her sentence. On Feb-
ruary 6, 2019, the habeas court dismissed the petitioner’s
claim of prosecutorial impropriety. On January 15, 2020,
after a trial, the habeas court dismissed the petitioner’s
claims of judicial misconduct and insufficient probable
cause. The habeas court also rendered judgment denying
the habeas petition because the petitioner had failed to
prove his claim that there was any agreement or under-
standing between the state and Donofrio for her testi-
mony, and thus, the petitioner could not prove that the
state had not disclosed exculpatory evidence to him, or
failed to correct any false and misleading testimony by
Donofrio about any agreement or understanding with the
state with respect to her testimony.
On January 28, 2020, the petitioner filed a petition for
certification to appeal, which was granted by the habeas
court. On appeal, the petitioner claims that the court
erred in finding that no agreement or understanding
existed between Donofrio and the state concerning her
testimony.3 Specifically, the petitioner claims that his due
process rights were violated because Donofrio testified
falsely that she had not entered into an agreement with
the state, and the state failed to correct this false testi-
mony. We disagree.
We begin by setting forth the applicable standard of
review. ‘‘The existence of an undisclosed plea agreement
is an issue of fact for the determination of the trial court.
. . . Furthermore, the burden is on the [petitioner] to
prove the existence of undisclosed exculpatory evidence.
. . . A finding of fact will not be disturbed unless it is
clearly erroneous in view of the evidence and pleadings
on the whole record . . . . [W]hen a question of fact is
essential to the outcome of a particular legal determina-
tion that implicates a defendant’s constitutional rights,
and the credibility of witnesses is not the primary issue,
our customary deference to the trial court’s factual find-
ings is tempered by a scrupulous examination of the
record to ascertain that the trial court’s factual findings
are supported by substantial evidence.’’ (Citation omit-
ted; internal quotation marks omitted.) Greene v. Com-
missioner of Correction, 330 Conn. 1, 29, 190 A.3d 851(2018), cert. denied sub nom. Greene v. Semple, U.S.
, 139 S. Ct. 1219, 203 L. Ed. 2d 238 (2019).
In the present case, the petitioner relies on the decision
of our Supreme Court in Gomez v. Commissioner of
Correction, 336 Conn. 168, 243 A.3d 1163 (2020). This
reliance, however, is misplaced. In the consolidated crim-
inal case in Gomez, the petitioner and his two codefen-
dants were each charged, inter alia, with one count of
murder and one count of conspiracy to commit murder.
Id., 171. During their criminal trial, two other alleged
coconspirators testified against the petitioner and his
codefendants. Id., 171–72. In his habeas appeal, the peti-
tioner in Gomez claimed that both of the alleged cocon-
spirators ‘‘falsely testified at trial that (1) the state had
not promised them anything in return for their coopera-
tion, and (2) they did not receive any benefit at their
respective bond hearings in exchange for cooperating.’’
Id., 176. Our Supreme Court resolved this claim in favor
of the petitioner after determining that ‘‘the prosecutor
. . . had promised both [of the alleged coconspirators]
that he would bring their cooperation to the attention of
the sentencing court,’’ and that they did, in fact, receive
benefits in exchange for their cooperation that were not
disclosed to the jury. Id.In the present case, the petitioner argues that Gomez
applies because ‘‘Donofrio was given three benefits in
exchange for her cooperation: (1) she was released on
a nonsurety bond;4 (2) the state filed substitute charges
(which did not include a charge of perjury); and (3) the
state did not recommend a sentence.’’ (Footnote added.)
Even if we assume that these allegations are true, the
petitioner’s reliance on Gomez is still misplaced. Gomez
applies only when a petitioner establishes (1) the exis-
tence of an agreement between the state and a witness
and (2) that the witness did, in fact, receive some benefit
as a result of the agreement. See Gomez v. Commis-
sioner of Correction, supra, 336 Conn. 176. Our review
of the record in the present case confirms the finding of
the habeas court that ‘‘the petitioner has failed to prove
that the [state] had entered into a[n] . . . agreement or
understanding, either formal or informal, with Donofrio.’’5
With respect to the petitioner’s due process claim, we
conclude that the habeas court’s finding that the peti-
tioner had not proved that an agreement or understanding
existed between the state and Donofrio is supported by
substantial evidence. Greene v. Commissioner of Correc-
tion, supra, 330 Conn. 29. Accordingly, we conclude that
the finding of the habeas court that no agreement or
understanding existed between the state and Donofrio
with respect to her testimony precludes the application
of the law set forth in Gomez to the petitioner’s claim.
The judgment is affirmed.
1
Specifically, our Supreme Court summarized Donofrio’s testimony as fol-
lows: ‘‘In May, 1993, the [petitioner] terminated his relationship with Donofrio
and moved in with another woman. Two months later, Donofrio contacted
the West Haven police to report that the [petitioner] had killed the victim.
Thereafter, Donofrio explained that she and the [petitioner] had discussed his
plans to murder the victim at least one week prior to the murder. Specifically,
the [petitioner] told Donofrio that he loved her and could not afford a divorce,
that he intended to kill the victim by strangulation, and that he would commit
the murder on a Tuesday because he did not work on Wednesday.
‘‘Donofrio testified that the [petitioner] telephoned her between 6 and 6:30
p.m. on Tuesday, January 28, 1992, to tell her that he was in the process of
killing the victim and that he needed her assistance. When Donofrio arrived
at the [petitioner’s] home a few minutes later, she found the [petitioner] and
the victim in the couple’s bedroom. The victim was lying on the bed, face
down and unconscious. The [petitioner], who was on top of the victim, was
strangling her with an extension cord. Because the victim continued to exhibit
a pulse, the [petitioner] began to strangle her manually, holding his thumbs
on the back of her head and his fingers at the front of her neck. Donofrio
then helped the [petitioner] move the victim from the bed onto the floor,
where they took turns smothering her with a pillow until she had no pulse.’’
State v. Bova, supra, 240 Conn. 216.
2
The petitioner’s prior petitions for a writ of habeas of corpus were unsuc-
cessful. See Bova v. Commissioner of Correction, 162 Conn. App. 348, 131 A.3d
268, cert. denied, 320 Conn. 920, 132 A.3d 1094 (2016); Bova v. Commissioner
of Correction, 95 Conn. App. 129, 894 A.2d 1067, cert. denied, 278 Conn. 920,
901 A.2d 43 (2006).
3
The petitioner has not appealed from the judgment of the habeas court
dismissing in part and denying in part his claims of prosecutorial impropriety,
judicial misconduct, and insufficient probable cause.
4
During the habeas trial, the petitioner did not offer the transcript of Dono-
frio’s arraignment as an exhibit, and, therefore, there is no evidence to support
the petitioner’s argument that the prosecutor suggested that this ‘‘benefit’’
was provided to her.
5
The habeas court set forth the following facts in support of its finding that
no agreement or understanding existed between the state and Donofrio: ‘‘On
February 23, 1995, Donofrio pleaded guilty to conspiracy to commit murder
and making a false statement to the police before the same trial judge, Gormley,
J., who had presided over the petitioner’s [criminal] trial. Prior to the entry
of Donofrio’s guilty pleas, the prosecutor . . . indicated that she was filing
a substituted information as a result of a judicial pretrial that had occurred
subsequent to the jury’s verdict in the petitioner’s case. [The prosecutor] stated
that ‘prior to the time of this pretrial which occurred after the guilty verdict
was entered on [the petitioner], there had been no representation to defense
counsel or to the court as to what the state would do.’ Donofrio’s counsel
. . . confirmed that ‘there were never any agreements that were entered into
by us and the state regarding any disposition of the case.’ Judge Gormley also
stated that ‘there were no discussions with reference to a disposition of
[Donofrio’s] case prior to the verdict being entered in the case of [the peti-
tioner].’ The court indicated disposition for Donofrio’s guilty pleas was a
maximum sentence of twelve years, execution suspended after the service of
six years, followed by probation, with Donofrio’s counsel having the opportu-
nity to argue for a lesser sentence.
‘‘Donofrio was sentenced on April 6, 1995, to a total effective sentence of
ten years of incarceration, execution suspended after the service of four years,
followed by a period of probation of three years. During the sentencing hearing,
the trial court stated: ‘One further thing the court wants to say and to say
very clearly and categorically, and that is that there have been no deals at all
in this case. I read in the paper this morning that the Bova family still believes,
and will believe until their dying days, that there has been a deal. I can’t
change how they feel and they can feel there’s been a deal for as long as
they want. I can only tell them that there has been no deal, none that I’ve
participated in.’ ’’