Williams v. Commissioner of Correction ( 2023 )

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CHARLES WILLIAMS v. COMMISSIONER
OF CORRECTION
(AC 45442)
Bright, C. J., and Elgo and Vertefeuille, Js.
Syllabus
The petitioner, who had been convicted of the crime of unlawful restraint
in the first degree, sought a writ of habeas corpus, claiming, inter alia,
that he had been deprived of his right to due process in violation of
Brady v. Maryland (373 U.S. 83) when the state failed to disclose to
him at his criminal trial a written, sworn statement the victim had given
to the police in which she did not mention the incident that led to the
petitioner’s conviction. The petitioner allegedly had sexually assaulted
the victim and, two weeks later, allegedly punched her in the face.
Approximately two months after those incidents, the victim reported
to the police the incident in which the petitioner allegedly punched her.
At that time, she also gave the police the five page statement in which
she identified the petitioner as her assailant and detailed the history of
their relationship but did not mention the alleged sexual assault, which
she did not report to the police until five months later. The petitioner
was charged in connection with the first incident with two counts of
sexual assault in the first degree and one count of unlawful restraint.
A jury found him not guilty of the sexual assault charges. In his habeas
petition, the petitioner claimed that the victim’s undisclosed statement
was material to his defense because the state’s case against him rested
entirely on the victim’s testimony and credibility, the statement repre-
sented a comprehensive history of their relationship, and the not guilty
verdicts on the sexual assault charges indicated that the jury had rejected
portions of the victim’s testimony. The habeas court rejected the petition-
er’s claim that the state violated Brady by failing to disclose the victim’s
statement. The court determined, and the respondent, the Commissioner
of Correction, did not challenge on appeal, that the prosecution had
suppressed the statement and that it was favorable to the petitioner.
The court further determined, however, that the petitioner failed to
establish that the statement was material to his defense, reasoning that
the statement would have been cumulative of information that was
available to the petitioner at his criminal trial and would not have
resulted in a different outcome. The court therefore denied the habeas
petition and denied the petitioner’s petition for certification to appeal,
and the petitioner appealed to this court. Held:
1. The habeas court abused its discretion in denying the petitioner certifica-
tion to appeal; the petitioner’s Brady claim involved issues that were
debatable among jurists of reason and that could have been resolved
in a different manner.
2. The habeas court improperly determined that the petitioner failed to
demonstrate that the victim’s statement to the police was material under
Brady: the state’s case against the petitioner hinged entirely on the
victim’s testimony, which the statement could have significantly under-
mined had it been disclosed to the defense, as the statement was qualita-
tively different from and thus not cumulative of other impeachment
material that was available to the defense in that it described incidents
of abuse the petitioner had perpetrated on the victim during a six year
period both prior to and after the alleged sexual assault, the defense
had no similar statement during the criminal trial that set forth a compre-
hensive history of the victim’s relationship with the petitioner, and,
although the defense had other exhibits that detailed other specific
incidents of abuse the victim had reported to the police, the utility of
those exhibits to attack the victim’s failure to report the sexual assault
incident was less than the utility of the undisclosed statement; moreover,
the petitioner’s ability to attack the victim’s credibility on other grounds
did not undermine the importance of her omission of the sexual assault
incident from her undisclosed statement, as, contrary to the respondent’s
assertion that the victim’s statement was not material because the peti-
tioner’s counsel had argued to the jury that the victim’s accusations
were not credible, counsel’s argument would have been materially
enhanced had the jury known of the undisclosed statement; furthermore,
despite the respondent’s claim that the undisclosed statement was as
inculpatory as it was exculpatory, the petitioner’s criminal trial counsel
testified that he would have cross-examined the victim only about her
omission of the sexual assault incident had the victim’s statement been
disclosed to the defense; additionally, the jury’s actions supported the
conclusion that a reasonable probability existed that disclosure of the
statement could have led to a different outcome for the petitioner, as
the not guilty verdicts on the sexual assault charges indicated the jury’s
doubt about the victim’s credibility, and the jury’s note to the court
during its deliberations asking whether unlawful restraint had to be
related to the sexual assault charges indicated that the jury analyzed
the victim’s testimony closely as to each charge.
Argued April 26—officially released August 22, 2023
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, Chaplin, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court; subsequently, the court,
Chaplin, J., issued an articulation of its decision.
Reversed; judgment directed.
Deren Manasevit, assigned counsel, for the appellant
(petitioner).
Laurie N. Feldman, assistant state’s attorney, with
whom, on the brief, were Sharmese L. Walcott, state’s
attorney, Jo Anne Sulik, senior assistant state’s attor-
ney, and Juliana Waltersdorf, assistant state’s attorney,
for the appellee (respondent).
Opinion
BRIGHT, C. J. The petitioner, Charles Williams,
appeals following the denial of his petition for certifica-
tion to appeal from the habeas court’s judgment denying
his petition for a writ of habeas corpus. On appeal, the
petitioner claims that the habeas court (1) abused its
discretion in denying his petition for certification to
appeal, (2) improperly concluded that certain undis-
closed impeachment evidence was not material under
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10
L. Ed. 2d 215 (1963), and (3) improperly concluded
that the petitioner failed to prove that his trial counsel
provided ineffective assistance. We agree with the peti-
tioner’s first two claims, and, accordingly, we reverse
the judgment of the habeas court.1
On the basis of the evidence presented at the petition-
er’s criminal trial, the jury reasonably could have found
the following facts, as set forth by this court in the
petitioner’s direct appeal. ‘‘The victim2 and the [peti-
tioner] met in 2001 and began dating in 2007. Over
time, the [petitioner] became physically, verbally, and
emotionally abusive. On some occasions, the victim
reported the [petitioner’s] abuse to the police, friends,
or family, but, on other occasions, she did not report
the abuse because she learned that she ‘had to kind of
pick [her] battles’ with the [petitioner]. In April, 2012,
the victim decided to end her relationship with the
[petitioner]. The [petitioner] was upset and began stalk-
ing the victim. During this period, the victim and the
[petitioner] filed police reports against each other, and,
as a result of one of the [petitioner’s] complaints, the
victim was criminally charged.3
‘‘The victim thereafter moved from Bloomfield to
Hartford and changed her phone number on several
occasions. Nevertheless, the [petitioner] continued to
come to the victim’s house and call her even though
the victim told him that she did not want to be in a
relationship with him and that she wanted him to stop
contacting her. When confronting the victim, the [peti-
tioner] would often threaten to call the police and make
false reports so that she would be taken away from her
family. During this period, the victim acquiesced on
several occasions to having sexual intercourse with the
[petitioner] because she knew that he would leave her
house afterward.
‘‘On February 14, 2013, the victim was at home with
her infant grandson (February 14 incident). The victim
put her grandson down for his nap in her bedroom at
10 a.m. Sometime thereafter, while the victim’s grand-
son was still napping, the [petitioner] arrived at her
house and began yelling at her because he believed that
she was sleeping with other men. The victim asked the
[petitioner] to leave her house, but he continued to yell
at her. The victim told the [petitioner] that she was not
sleeping with anyone else and asked him to speak more
quietly because her grandson was taking his nap. The
[petitioner] demanded sexual intercourse and threat-
ened to file a false police report against the victim if
she did not have sexual intercourse with him.
‘‘As the [petitioner] advanced on her, the victim
backed away from the [petitioner] and into her bed-
room. Following her into the bedroom, the [petitioner]
pulled a knife out of his pocket and told the victim to
‘stop acting up.’ The victim again asked the [petitioner]
to leave, but the [petitioner] told the victim to perform
oral sex on him because it was Valentine’s Day. When
the victim continued to refuse, the [petitioner] grabbed
the victim by her hair and threw her down on the bed,
and the victim fell onto the floor.
‘‘The victim began performing oral sex on the [peti-
tioner]. When the victim began crying, the [petitioner]
became angry and ordered her to stop crying because
she was ‘making [him] soft.’ When the victim continued
to cry, the [petitioner] threw her on the bed, pulled
down her pants, and vaginally penetrated her from
behind while holding her down on the bed by her arms.
When the victim heard her grandson crying, she asked
the [petitioner] to stop, but he continued to penetrate
her until he ejaculated. The [petitioner] complained that
the victim ‘ruined his sex’ and then left her house.
‘‘On February 28, 2013, the [petitioner] returned to
the victim’s house while she was there with her daugh-
ters and grandsons (February 28 incident). The [peti-
tioner] demanded to know her new phone number and
with whom she was having sexual intercourse. The
situation escalated and the [petitioner] punched the
victim in the face, breaking her nose. Thereafter, the
[petitioner] left her house. The victim did not want to
report the incident to the police, but one of her daugh-
ters called the police that same day. Although the victim
spoke to the investigating officer and identified her
assailant as a former boyfriend, she refused to provide
the [petitioner’s] name at that time because she was
afraid of him.
‘‘Following the February 28 incident, the victim began
living in domestic violence shelters and stopped going
to her house and telling people where she was living
in an attempt to get away from the [petitioner]. During
this period, the victim received medical and psychologi-
cal treatment. Assisted by the psychological treatment
she was receiving, in April, 2013, the victim decided to
identify the [petitioner] as her assailant in the February
28 incident. In September, 2013, the victim further
reported the February 14 incident to the police.
‘‘The [petitioner] was arrested in connection with the
February 14 incident and charged with two counts of
sexual assault in the first degree and one count of
unlawful restraint in the first degree. While the [peti-
tioner] was incarcerated and awaiting trial, he fre-
quently spoke about his case with Elon Henry, a fellow
inmate with whom he was previously acquainted. On
December 5, 2014, three days before the [petitioner’s]
trial was scheduled to commence, the [petitioner] told
Henry that ‘this girl [i.e., the victim] got me going
through it right now. I’m a kill this girl . . . with my
bare hands, and if I don’t kill her I’m a get close and
I’m a make her give me head for like an hour this time.’
The threatening manner in which the [petitioner] spoke
concerned Henry, and he reported the [petitioner’s]
statement to a correctional officer that evening.
‘‘Trial commenced on December 8, 2014. The [peti-
tioner] presented an alibi defense, supported by his
own testimony and the testimony of his mother, his
sister, his nephew, and his girlfriend’s cousin. The jury
found the [petitioner] guilty of unlawful restraint in the
first degree but not guilty of the two counts of sexual
assault in the first degree. Following the jury verdict, the
[petitioner] pleaded guilty to being a persistent serious
felony offender. The [petitioner] was sentenced to ten
years [of] imprisonment.’’ (Footnotes omitted; footnote
added; footnote in original.) State v. Williams, 172
Conn. App. 820, 823–26, 162 A.3d 84, cert. denied, 326
Conn. 913, 173 A.3d 389 (2017). Attorneys Walter Ban-
sley and Jennifer Smith represented the petitioner in
the criminal proceedings.
Following his conviction, the petitioner filed the oper-
ative amended petition for a writ of habeas corpus in
this matter on August 16, 2019. The petitioner claimed
that the state had violated Brady v. Maryland, supra,373 U.S. 87, by failing to disclose material impeachment
evidence, which included a statement that the victim
made to the police on April 24, 2013, detailing the history
of her relationship with the petitioner (exhibit 2j), and
a police report concerning an alleged burglary of the
victim’s home by the petitioner on February 22, 2013
(exhibit 2k). Additionally, the petitioner claimed that
Bansley4 had rendered ineffective assistance during the
criminal trial by failing to cross-examine the victim
about the information in a police report pertaining to
the February 28 incident (exhibit 2p).5 The respondent,
the Commissioner of Correction, filed a return on
August 23, 2019, asserting a lack of sufficient informa-
tion to admit or deny the petitioner’s claims.6
The habeas court, Chaplin, J., held a two day trial
on the petition on March 10, 2020, and December 3,
2021, at which the petitioner presented the testimony
of the victim, Bansley, and Detectives Phillip Fuschino
and Cheryl Gogins of the Hartford Police Department.
The petitioner submitted twenty-two exhibits, and the
respondent submitted one exhibit, all of which the court
admitted into evidence and considered in its decision.
At the habeas trial, Bansley testified that his primary
strategy of defense in the petitioner’s case was to estab-
lish that the victim ‘‘was a liar’’ and ‘‘to impeach her
with everything [he] could.’’
On March 4, 2022, the court issued a memorandum
of decision in which it denied the petitioner’s Brady
claim, finding that, although the subject police report
was suppressed and the information therein was favor-
able to the petitioner, it was not material because it
was ‘‘cumulative of the information available to the
petitioner at trial . . . .’’7 In addition, the court rejected
the petitioner’s ineffective assistance of counsel claim.
On March 9, 2022, the petitioner filed a petition for
certification to appeal from the habeas court’s judg-
ment, which the habeas court denied. This appeal fol-
lowed. Additional facts will be set forth as necessary.
I
The petitioner first claims that the habeas court
abused its discretion by denying his petition for certifi-
cation to appeal. We agree.
We begin by setting forth the applicable standard of
review. ‘‘Faced with a habeas court’s denial of a petition
for certification to appeal, a petitioner can obtain appel-
late review of the dismissal of his petition for habeas
corpus only by satisfying the two-pronged test enunci-
ated by our Supreme Court in Simms v. Warden, 229
Conn. 178, 640 A.2d 601 (1994), and adopted in Simms
v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).
First, [the petitioner] must demonstrate that the denial
of his petition for certification constituted an abuse of
discretion. . . . Second, if the petitioner can show an
abuse of discretion, he must then prove that the deci-
sion of the habeas court should be reversed on the
merits. . . . To prove that the denial of his petition for
certification to appeal constituted an abuse of discre-
tion, the petitioner must demonstrate that the [resolu-
tion of the underlying claim involves issues that] are
debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to
proceed further. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by [our Supreme
Court] for determining the propriety of the habeas
court’s denial of the petition for certification.’’ (Internal
quotation marks omitted.) Johnson v. Commissioner
of Correction, 181 Conn. App. 572, 577–78, 187 A.3d
543, cert. denied, 329 Conn. 909, 186 A.3d 13 (2018).
As discussed in part II of this opinion, because the
petitioner’s Brady claim involves issues that are debat-
able among jurists of reason and that could have been
resolved by a court in a different manner, we conclude
that the habeas court abused its discretion in denying
the petition for certification to appeal. See, e.g., Doan
v. Commissioner of Correction, 193 Conn. App. 263,
272–73, 219 A.3d 462, cert. denied, 333 Conn. 944, 219
A.3d 374 (2019). Accordingly, we turn to the merits of
the petitioner’s Brady claim.
II
On appeal, the petitioner claims that the habeas court
improperly concluded that a sworn statement that the
victim gave to the police on April 24, 2013, as memorial-
ized in habeas exhibit 2j, was not material under Brady
v. Maryland, 373 U.S. 87. We agree.
We begin with the standard of review and legal princi-
ples that apply to Brady claims. ‘‘Whether the petitioner
was deprived of his due process rights due to a Brady
violation is a question of law, to which we grant plenary
review. . . . Additionally, a trial court’s determination
as to materiality under Brady presents a mixed question
of law and fact subject to plenary review . . . . We
will not disturb a habeas court’s findings with respect
to the underlying historical facts or whether the evi-
dence was suppressed unless the findings are clearly
erroneous.’’ (Citations omitted; internal quotation
marks omitted.) Peeler v. Commissioner of Correction,
170 Conn. App. 654, 689, 155 A.3d 772, cert. denied, 325
Conn. 901, 157 A.3d 1146 (2017).
In Brady v. Maryland, supra, 373 U.S. 87, the United
States Supreme Court held that ‘‘the suppression by the
prosecution of evidence favorable to an accused upon
request violates due process where the evidence is
material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.’’ The
prosecution’s duty to disclose under Brady applies not
only to exculpatory evidence but also to impeachment
evidence, which is evidence ‘‘having the potential to
alter the jury’s assessment of the credibility of a signifi-
cant prosecution witness.’’ (Internal quotation marks
omitted.) Adams v. Commissioner of Correction, 309
Conn. 359, 370, 71 A.3d 512 (2013). To prove a Brady
violation, ‘‘the petitioner must establish: (1) that the
state suppressed evidence (2) that was favorable to the
defense and (3) material either to guilt or to punish-
ment. . . . If the petitioner fails to meet his burden as
to one of the three prongs of the Brady test, then we
must conclude that a Brady violation has not occurred.’’
(Citation omitted; internal quotation marks omitted.)
Peeler v. Commissioner of Correction, supra, 170 Conn.
App. 687–88.
In the present case, because the habeas court found,
and the respondent does not challenge on appeal, that
exhibit 2j was suppressed and was favorable to the
defense, the dispositive issue is whether that evidence
was material. ‘‘The test for materiality is whether the
suppressed evidence in the context of the entire record
creates a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceed-
ing would have been different. . . . [T]he mere possi-
bility that an item of undisclosed evidence might have
helped the defense or might have affected the outcome
of the trial, however, does not establish materiality in
the constitutional sense. . . . The question [of materi-
ality] is not whether the defendant would more likely
than not have received a different verdict with the evi-
dence, but whether in its absence he received a fair
trial, understood as a trial resulting in a verdict worthy
of confidence. A reasonable probability of a different
result is accordingly shown when the government’s evi-
dentiary suppression undermines confidence in the out-
come of the trial.’’ (Citations omitted; emphasis in origi-
nal; internal quotation marks omitted.) Id., 688.
‘‘[W]here there is no reasonable probability that disclo-
sure of the exculpatory evidence would have affected
the outcome, there is no constitutional violation under
Brady.’’ State v. McIntyre, 242 Conn. 318, 324, 699 A.2d
911 (1997).
In its memorandum of decision, the habeas court
concluded that the petitioner had failed to establish
that the evidence was material to his defense. In particu-
lar, the court reasoned ‘‘that, at the time of the underly-
ing [criminal] trial, the defense was aware of [the vic-
tim’s] delayed disclosure, the fact that she had
numerous contacts with police between February 14,
2013, and September 20, 2013, and that she did not
report the February 14 [incident] prior to September
20, 2013. The court also [found] that Attorney Bansley
was aware of [the victim’s] failure to provide corrobo-
rating evidence, including surveillance footage, for at
least one alleged incident. . . . Attorney Bansley testi-
fied credibly that he strategically exercise[d] caution
in formulating questions as a result of his targeted
approach to questions to avoid using information that
he [deemed] too prejudicial or information that would
[have opened] a door to uncharged misconduct of the
petitioner being introduced at trial. Specifically, Attor-
ney Bansley testified credibly that he would have
avoided highlighting the fact that [the victim] did not
call the police [after other incidents of misconduct].
The information in [exhibit 2j] would have added fodder
for his execution of the trial strategy, but there was no
evidence presented at [the habeas] trial demonstrating
that he would have employed it directly by way of
specific questions to [the victim], nor was there evi-
dence to demonstrate any direct benefit such questions
would have had for the defense to the unlawful restraint
charge and, thereby, the verdict.’’ Thus, the court deter-
mined that the suppressed evidence ‘‘would have been
cumulative of the information available to the petitioner
at trial, including the information [that] Attorney Ban-
sley utilized to impeach [the victim’s] credibility . . . .’’
Accordingly, the court was not persuaded ‘‘that the
appropriate and timely disclosure of the subject report
would have resulted in a different outcome for the peti-
tioner at trial.’’
On appeal, the petitioner argues that the impeach-
ment value of exhibit 2j ‘‘cannot be considered immate-
rial’’ because the state’s case rested entirely on the
victim’s testimony and, hence, her credibility. He fur-
ther argues that exhibit 2j was ‘‘qualitatively’’ different
from the other impeachment evidence available to the
petitioner during his criminal trial because it repre-
sented a comprehensive history of the victim’s relation-
ship with the petitioner, whereas the other police
reports available to him during his criminal trial related
to specific, discrete allegations of criminal conduct.
According to the petitioner, although it might have been
reasonable for the victim not to have mentioned the
February 14 incident when reporting other discrete alle-
gations, one would have expected her to include it in
a comprehensive chronology of her relationship with
the petitioner. Finally, the petitioner argues that exhibit
2j was material because the jury’s not guilty verdicts
on the sexual assault charges indicated that ‘‘the jury
had already rejected vast portions of [the victim’s] testi-
mony. Moreover, the jury’s requests for further instruc-
tion on the charge of unlawful restraint were indicative
of a degree of uncertainty on that charge as well.’’
In response, the respondent argues that exhibit 2j
was not material because it was cumulative of other
evidence of the victim’s delayed reporting of the Febru-
ary 14 incident. According to the respondent, Bansley’s
cross-examination of the victim ‘‘gave the jury an array
of reasons to distrust the report once she eventually
made it, eclipsing any potential impact of additional
evidence that she did not promptly report it,’’ and
exhibit 2j contained details of the petitioner’s previous
offenses against the victim such that ‘‘the prejudice
from it might well have counterbalanced any benefit.’’
The following additional facts and procedural history
are relevant to our resolution of this claim. The state’s
evidence against the petitioner at his criminal trial con-
sisted principally of the victim’s testimony. There were
no other witnesses to the February 14 incident and no
corroborating physical evidence. Furthermore, although
the victim testified that the incident was recorded on
a home surveillance system, she never provided the
police with a copy of the video recording from that
day. The only other evidence the state presented of
the petitioner’s guilt was the brief testimony of two
witnesses, Janice Keeman and Henry.8 Keeman, a social
worker at Middlesex Hospital in Middletown, testified
as a constancy of accusation witness that the victim
reported to her on March 20, 2013, that her former
boyfriend had sexually assaulted her on February 14,
2013. Henry, a prison inmate serving a sentence for
conspiracy to commit robbery, testified to a conversa-
tion he had with the petitioner when they were housed
near each other in the Cheshire Correctional Institution
on December 5, 2014, just days prior to the petitioner’s
criminal trial. Henry testified that the petitioner dis-
cussed his pending sexual assault case with him and
told Henry that he was going to kill the victim with his
bare hands or make her perform oral sex on him ‘‘for
like an hour this time.’’
The petitioner presented an alibi defense through five
witnesses, including himself, his mother, his sister, his
nephew, and his girlfriend’s cousin. The petitioner testi-
fied that he was with his son all day, took his nephew
to a shopping mall, and took his mother to and from a
hospital on February 14, 2013. Each of his witnesses
testified to seeing the petitioner at various times that
day, which times conflicted with the victim’s testimony
as to when the petitioner was at her home, sexually
assaulting her.
During its initial closing argument, the state relied
exclusively on the victim’s testimony and the constancy
of accusation testimony from Keeman, contrasting the
credibility of their testimony with that of the defense
witnesses. In its rebuttal closing argument, the state
again relied heavily on the victim’s testimony and briefly
discussed what it described as the ‘‘key statement’’ in
Henry’s testimony that the petitioner told Henry that
he was going to make the victim perform oral sex on
him ‘‘for an hour this time, this time.’’
During its deliberations, the jury delivered two notes
to the court. First, on December 15, 2014, at 4:32 p.m.
the jury foreperson wrote: ‘‘We are at a deadlock at
this point. We need more explanation on reasonable
doubt.’’ The next morning, the court read again the
instruction it gave on reasonable doubt as part of its
charge to the jury, and the jury resumed deliberations.
Later that morning, the jury delivered a second note to
the court, asking two questions. It read: ‘‘One, could we
have clarification on count three and whether ‘restraint’
applies to what allegedly happened in count one and
count two? The second request is, two, could we hear
[the victim’s] testimony of the February 28th assault?’’
As to the first part of the note, the court first told the
jury that it must consider the elements of each charge
separately in reaching a verdict. The court then
explained: ‘‘the restraint, quote/unquote, doesn’t neces-
sarily have to apply to count one and count two. It may.
Those particular counts may have a component of that,
but it doesn’t necessarily . . . have to apply to count
one and count two. Again, each count needs to be evalu-
ated separately based on whatever evidence you’ve
heard, and you may use some evidence for one, some,
or all of the counts.’’ The court then played back for
the jury the victim’s testimony regarding the February
28, 2013 incident. The jury thereafter resumed its delib-
erations and returned its verdict at approximately 12:05
p.m. As previously noted, the jury found the petitioner
not guilty of the two sexual assault charges in counts
one and two and guilty of unlawful restraint in the first
degree as charged in count three.
It is against this backdrop that we must consider the
materiality of habeas exhibit 2j. Exhibit 2j is a five
page sworn statement that the victim gave to Detective
Phillip Fuschino of the Hartford Police Department on
April 24, 2013, detailing various incidents of abusive
behavior perpetrated on her by the petitioner during and
after their dating relationship. The statement describes
several incidents between 2007, when their dating rela-
tionship began, and 2013, several months after their
relationship ended, in which the petitioner allegedly
assaulted and/or threatened the victim, including an
alleged violent encounter on February 22, 2013. Exhibit
2j makes no mention of the February 14 incident.
Accordingly, because the state failed to disclose exhibit
2j, the defense did not know that the victim had pro-
vided a sworn statement to the police on April 24, 2013,
in which she detailed several incidents involving the
petitioner, both before and after February 14, 2013, but
failed to mention the February 14 incident.
On direct examination at the underlying criminal trial,
the victim testified as follows regarding her reporting
of the February 14 incident:
‘‘[The Prosecutor]: And did you report [the February
14] incident between you and [the petitioner] to the
police right away?
‘‘[The Victim]: No.
‘‘[The Prosecutor]: And why not?
‘‘[The Victim]: Because I was afraid of him.
‘‘[The Prosecutor]: You were afraid of him? Any other
reason you chose why not to report—
‘‘[The Victim]: Because I was afraid that he was going
to do what he said and put a false statement—make a
false case against me.
‘‘[The Prosecutor]: Did you tell anybody about [the
February 14 incident] right away?
‘‘[The Victim]: No.
‘‘[The Prosecutor]: And why not?
‘‘[The Victim]: I was . . . so ashamed of what had
happened. I just—I didn’t—I felt like it was just, you
know, my secret. Like, I didn’t want nobody to know
what he did to me.
***
‘‘[The Prosecutor]: Now, you had said up to this point
that you weren’t going to call the police anymore on
him and that you were scared. Why did you change
your mind and go to the police in April of 2013 and tell
the police about the [February 28 incident]?
‘‘[The Victim]: Basically, because I was getting treat-
ment and I was seeing a therapist and they were helping
me to, like, cope with the stuff that [the petitioner] had
[done] to me. And they were like, you need to tell the
police what he did. They were encouraging me that I
need to tell the things that he had [done] to me.
‘‘[The Prosecutor]: Was the fact that you weren’t liv-
ing in Hartford—did that have anything to do with it
anymore?
‘‘[The Victim]: Yeah. It’s like I felt safer, you know,
where I was at.
‘‘[The Prosecutor]: Now, after you told the police
about the [February 28] assault where he punched you
in the face and broke your nose, did you continue to
get treatment?
‘‘[The Victim]: Yes.
‘‘[The Prosecutor]: And to this day, are you still get-
ting treatment?
‘‘[The Victim]: Yes. . . .
‘‘[The Prosecutor]: . . . Why did it take you another
seven months from the date of the sexual assault to
go to the police and tell them about [the February 14
incident]?
‘‘[The Victim]: Because at the time when I was in
Hartford, I was in the middle of it, but when I was out
of it and I was getting treatment and I was put on
medication and I was being encouraged by my therapist
and the people around me to tell what he did to me
and it just—I don’t know. It just took time.
‘‘[The Prosecutor]: What medication were you on?
‘‘[The Victim]: Lexapro.
‘‘[The Prosecutor]: And what’s that for?
‘‘[The Victim]: PTSD.
‘‘[The Prosecutor]: Does it treat—what sort of symp-
toms do you have?
‘‘[The Victim]: Anxiety.
‘‘[The Prosecutor]: Anxiety. So, it treats your anxiety?
‘‘[The Victim]: Yeah.
‘‘[The Prosecutor]: So, explain the difference as to
why you were able to tell the police within two months
of an assault where someone punches you in the face,
breaks your nose—you were able to tell them about
that within two months.
‘‘[The Victim]: Right.
‘‘[The Prosecutor]: Okay. But then it takes you
another five months to tell [the police] about what had
happened a week and a half earlier, which is the sexual
assault that you just described.
‘‘[The Victim]: Right. And that was because, you
know, in retrospect I look at it. I needed therapy. I
needed to feel safe. I needed to feel that if I did tell,
that, you know, I would be safe. So, through the medica-
tion and the therapy, you know, it just—it just—it took
time. It took time. It wasn’t something that I just
wanted—I didn’t want to talk about it.
‘‘[The Prosecutor]: And in those months after, those
seven months after the assault that you described, you
said that you were getting therapy and taking medica-
tion. Did [the petitioner] bother you in that—those—
that seven months?
‘‘[The Victim]: No.
‘‘[The Prosecutor]: Were you still out of Hartford in
a safe place?
‘‘[The Victim]: Yes.
‘‘[The Prosecutor]: And you weren’t letting people
know where you lived?
‘‘[The Victim]: Right. Nobody knows where I live.
‘‘[The Prosecutor]: So, [the petitioner] wasn’t both-
ering you. You were taking medication and getting ther-
apy.
‘‘[The Victim]: Yes.’’
Bansley’s cross-examination of the victim as to her
delayed reporting of the February 14 incident was lim-
ited to suggesting that her report of that incident on
September 20, 2013, was tied to her efforts to secure
a favorable disposition of the charges then pending
against her. Bansley did not question the victim about
other contacts she had with the police about the peti-
tioner between February 14 and September 20, 2013.
Nevertheless, Bansley did have in his possession during
the criminal trial a police report authored by Gogins,
habeas exhibit 2p, which detailed four communications
from the victim in May and June, 2013, alleging that
the petitioner had made threatening comments directed
toward the victim or her daughter.
At the outset, we note that our analysis of the petition-
er’s claim is significantly influenced by the fact that the
victim’s testimony was crucial to the state’s case. We
agree with the petitioner, and the respondent does not
argue otherwise in his appellate brief, that the state’s
case against the petitioner, especially as to the charge
of unlawful restraint, relied entirely on the testimony
of the victim. The only other evidence the state pre-
sented of the petitioner’s commission of the charged
crimes was the testimony of Keeman and Henry. Kee-
man testified only as a constancy of accusation witness
as to the sexual assault charges. Similarly, the state
relied on Henry’s testimony only to the extent that the
petitioner’s statement about making the victim perform
oral sex on him for one hour the next time he encoun-
tered her constituted an implied admission that he was
guilty of having forced her to do so on February 14, 2013.
The state relied on neither witness for the unlawful
restraint conviction.
The importance of the victim’s testimony is further
demonstrated by both parties’ closing arguments at the
petitioner’s criminal trial. As Bansley explained to the
jury, ‘‘the only evidence you have with respect to Febru-
ary 14, 2013, is [the victim]. She is the only one that
could get up here and testify about that, aside from the
obvious rebuttal from [the petitioner] saying that this
never happened. But it is not corroborated by anything.
There is no physical evidence, forensic evidence,
nobody else was there to come in and say I saw it,
it happened. It’s just her word.’’ Similarly, the state
exclusively relied on the victim’s testimony to establish
each element of the crime of unlawful restraint in the
first degree, explaining to the jury, for example, that it
was ‘‘obvious by [the victim’s] testimony’’ that she had
not consented to the petitioner’s conduct.
That the petitioner’s conviction was based entirely
on the victim’s testimony was confirmed by this court
in the petitioner’s direct appeal from his conviction.
In State v. Williams, supra, 172 Conn. App. 826, the
petitioner claimed, inter alia, that there was insufficient
evidence to convict him of unlawful restraint in the first
degree. In rejecting the petitioner’s claim, this court
stated: ‘‘The dispositive question before this court is
whether the victim’s testimony provided the jury with
a reasonable basis on which it could conclude that the
state proved beyond a reasonable doubt each of the
elements of [General Statutes] § 53a-95 (a) and, thus,
provided the jury with a sufficient basis on which it
could find the defendant guilty of that charge.’’ (Empha-
sis added.) Id., 829.9
Our Supreme Court ‘‘has stated many times that when
the prosecution’s case hinges entirely on the testimony
of certain witnesses, information affecting their credi-
bility is material.’’ State v. White, 229 Conn. 125, 136–37,
640 A.2d 572 (1994); see also Demers v. State, 209 Conn.
143, 161–62, 547 A.2d 28 (1988) (‘‘where, as here, a
conviction depends entirely [on] the testimony of cer-
tain witnesses . . . information affecting their credi-
bility is material in the constitutional sense . . . since
if they are not believed a reasonable doubt of guilt
would be created’’ (citation omitted; internal quotation
marks omitted)); Elsey v. Commissioner of Correction,
126 Conn. App. 144, 158, 10 A.3d 578 (‘‘[i]t is well estab-
lished that impeachment evidence may be crucial to a
defense, especially when the state’s case hinges entirely
upon the credibility of certain key witnesses’’ (internal
quotation marks omitted)), cert. denied, 300 Conn. 922,
14 A.3d 1007 (2011). ‘‘The purpose of requiring the state
to disclose impeachment evidence to a criminal defen-
dant is to ensure that the jury knows the facts that
might motivate a witness in giving testimony . . . . In
determining whether impeachment evidence is mate-
rial, the question is not whether the verdict might have
been different without any of [the witness’] testimony,
but whether the verdict might have been different if
[the witness’] testimony [was] further impeached by
disclosure of the [impeachment material]. . . . The
fact that the witness’ testimony is corroborated by addi-
tional evidence supporting a guilty verdict also may
be considered in determining whether the suppressed
impeachment evidence was material.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Floyd,
253 Conn. 700, 744, 756 A.2d 799 (2000).
Furthermore, withheld impeachment evidence may
not be material when the witness’ ‘‘credibility and
motives for testifying already had been impeached via
defense counsel’s comprehensive and skillful cross-
examination . . . [and the witness’] testimony, while
significant, was not dispositive . . . .’’ State v. Ortiz,
280 Conn. 686, 722, 911 A.2d 1055 (2006). ‘‘[T]he seminal
test remains whether there exists a reasonable [proba-
bility] that the outcome of the proceeding would have
been different had the evidence been disclosed to the
defense. . . . If the evidence in question would not
have provided the [petitioner] with any significant
impeachment material that was not already available
and used by him . . . it is immaterial under Brady.
This is true even if the [evidence’s] cumulative effect
may have lent some additional support to the [petition-
er’s] attack on [a witness].’’ (Citations omitted; internal
quotation marks omitted.) Peeler v. Commissioner,
supra, 170 Conn. App. 691.
Thus, the question before us is whether any use of
exhibit 2j by the petitioner at his criminal trial would
have been cumulative of his other attacks on the vic-
tim’s credibility. Put another way, would the use of
exhibit 2j have placed the evidence before the jury in
such a different light that the state’s failure to disclose
exhibit 2j undermines our confidence in the outcome
of the trial? We conclude, for the reasons argued by
the petitioner, that the answer is yes.
First, as noted previously, the state’s case against the
petitioner relied entirely on the testimony of the victim.
In almost every case in which either our Supreme Court
or this court has found undisclosed impeachment evi-
dence to be cumulative, and therefore not material,
there was other evidence of the defendant’s guilt. See,
e.g., Marquez v. Commissioner of Correction, 330
Conn. 575, 596, 198 A.3d 562 (2019) (‘‘[t]here was ample
evidence presented at trial to show not only that the
petitioner actively participated in the robbery, but that
he also fired the shots that killed [the victim]’’); State
v. Ortiz, supra, 280 Conn. 722–23 (impeached witness’
testimony ‘‘while significant, was not dispositive; the
defendant’s own statement to the police, admitted into
evidence . . . as well as the gloves and matching wal-
kie-talkie found in his car at the scene of the crime,
further inculpate him in the planning of, and participa-
tion in, the attack on the victim, thus bolstering our
confidence in the jury’s verdict’’ (citation omitted));
State v. Wilcox, 254 Conn. 441, 459, 758 A.2d 824 (2000)
(‘‘the testimony of a number of witnesses corroborated
the victim’s testimony that the defendant had kidnapped
and physically and sexually assaulted her’’), overruled
in part on other grounds by Hinds v. Commissioner
of Correction, 321 Conn. 56, 136 A.3d 596 (2016); State
v. Floyd, supra, 253 Conn. 746 (‘‘Because the jury was
apprised of [the witness’] motivation for testifying
falsely for the state, the impeachment value of the sup-
pressed evidence merely would have been incremental.
Furthermore, [the witness’] testimony was corrobo-
rated by the other two eyewitnesses, lending additional
credibility to his testimony.’’); State v. Esposito, 235
Conn. 802, 819, 670 A.2d 301 (1996) (there was ‘‘signifi-
cant’’ other evidence that defendant was at scene of
murder); State v. Gant, 231 Conn. 43, 53, 646 A.2d 835(1994) (‘‘abundant’’ other evidence supported court’s
probable cause finding), cert. denied, 514 U.S. 1038, 115
S. Ct. 1404, 131 L. Ed. 2d 291 (1995); State v. Bryan,
193 Conn. App. 285, 318, 219 A.3d 477 (‘‘[e]ven if the
defendant could have used the records to impeach [the
witness’] credibility, there was overwhelming evidence
adduced at trial supporting the defendant’s convic-
tion’’), cert. denied, 334 Conn. 906, 220 A.3d 37 (2019);
Peeler v. Commissioner of Correction, supra, 170 Conn.
App. 692 (‘‘[A]lthough [the impeached witness’] testi-
mony was significant, it was not dispositive. The other
evidence inculpating the petitioner in the . . . murders
further bolsters our confidence in the jury’s verdict.’’);
State v. Falcon, 90 Conn. App. 111, 123, 876 A.2d 547(‘‘in determining whether the late disclosure [of the
impeachment evidence] deprived the defendant of a
fair trial, we are mindful of the undisputed evidence
of the victim’s identification of the defendant’’), cert.
denied, 275 Conn. 926, 883 A.2d 1248 (2005).10 Given the
lack of other corroborating evidence of the petitioner’s
guilt in the present case, whether the undisclosed evi-
dence truly was cumulative of other information avail-
able to the petitioner becomes much more important.
Second, we agree with the petitioner that exhibit
2j was qualitatively different from other impeachment
material available to the defense and, therefore, was
not cumulative. It is true, as the respondent argues,
that Bansley attacked the victim’s credibility on several
grounds during cross-examination. He pointed out the
victim’s motives to fabricate the accusation, inconsis-
tencies between her September 20, 2013 statement to
the police and her testimony at trial—particularly as to
the time at which the crimes occurred—and the fact that
she never produced a video recording of the incident,
despite claiming one existed and despite producing
such a video of an event which occurred days earlier
involving her daughter and her daughter’s former boy-
friend. Furthermore, the jury was aware from the vic-
tim’s direct examination that she had not reported the
February 14 incident to the police until September 20,
2013, even though she reported the February 28 incident
in April, 2013, and regularly called the police about
incidents between her and the petitioner as early as
2008. Bansley used this fact during his closing argument
to argue that it was not credible that the victim would
regularly, over a course of years, call the police to report
relatively minor offenses but not timely report a violent
sexual assault. We also acknowledge that the defense
had other evidence in its possession, such as habeas
court exhibits 2p and 2r, demonstrating that the victim
continued to contact the police and to report various
instances of misconduct by the petitioner between April
and August, 2013, without mentioning the February 14
incident. Those exhibits show that the victim had met
with Detective Gogins on April 16, 2013, to discuss the
February 28 incident—reported in May, 2013—that the
petitioner allegedly ‘‘put another fake charge against
[her] daughter’’ and threatened to ‘‘get [her] on a home
invasion,’’; and reported in June, 2013, that the peti-
tioner allegedly had sent a threatening letter to her
daughter and slashed her cousin’s tires.
If exhibit 2j was a discrete report of another crime
committed against the victim by the petitioner on Febru-
ary 22, 2013, we would agree that it would be cumulative
of the other evidence available to the defense. In partic-
ular, it would have been similar to the victim’s report
of the February 28 incident, which, like the statement
in exhibit 2j, was given to the police in April, 2013.
Exhibit 2j, though, is much more than that. It is a five
page sworn statement comprised of seventeen para-
graphs describing various incidents of abuse perpe-
trated on the victim by the petitioner between 2007 and
February 22, 2013. Only the final two paragraphs of the
statement refer to the February 22, 2013 incident, which
was a burglary that involved the petitioner having
threatened the victim with a knife. The remaining para-
graphs of the statement describe in varying detail inci-
dents in which the petitioner assaulted the victim, ver-
bally abused her, threatened her, damaged her property,
harassed her, and stalked her over the course of six
years. Yet, the victim made no mention of the February
14 incident. During the petitioner’s criminal trial, the
defense had no similar statement from the victim setting
forth a comprehensive chronology of the petitioner’s
abuse of her. In particular, in exhibits 2p and 2r, which
the defense did have during the criminal trial, the victim
reported only specific events. Consequently, it would
have been much easier for the jury to understand why
the victim failed to mention the February 14 incident
when reporting those discrete incidents. Therefore, the
utility of those exhibits to attack the victim’s failure to
report the February 14 incident was far less than that
of exhibit 2j.
Furthermore, the fact that Bansley was able to attack
the victim’s credibility on other grounds, including
inconsistencies in her accounts of the incident and her
motivations for making the accusation, does not under-
mine the importance of the victim’s omission of the
February 14 incident from her sworn statement
reflected in exhibit 2j. ‘‘[A] prior critical omission can
serve to impeach a witness, but only when the informa-
tion was omitted under circumstances in which one
would expect it to be provided.’’ State v. Esposito,
supra, 235 Conn. 818. The recounting of the entire his-
tory of the petitioner’s assaultive and controlling behav-
ior against her in a sworn statement given in April, 2013,
is precisely a circumstance in which one would expect
the victim to report the February 14 incident. This is
especially true because the victim, in exhibit 2j,
reported acts the petitioner had committed both before
and after February 14, 2013.
We also disagree with the respondent’s argument that
exhibit 2j was immaterial because Bansley had stated
in his closing argument that the victim’s accusations
regarding the February 14 incident were not credible
in light of the fact that she regularly called the police
about other incidents and did not timely report this one.
This argument ignores the probative force of exhibit 2j
as a sworn statement given to the police within two
months of the incident that purports to recount a history
of criminal conduct by the petitioner. We conclude that,
had the jury known of exhibit 2j, Bansley’s closing argu-
ment regarding the credibility of the victim’s accusa-
tions would have been materially enhanced.
We also are unpersuaded by the respondent’s argu-
ment that exhibit 2j was not material because it was
as inculpatory as it was exculpatory because it included
descriptions of numerous incidents of uncharged mis-
conduct by the petitioner. For this same reason, the
habeas court and the respondent suggest that there was
a possibility that Bansley may not have used exhibit
2j because, in addition to impeachment evidence, it
contains information prejudicial to the petitioner. In
particular, the habeas court and the respondent rely on
Bansley’s testimony at the habeas trial that he ‘‘would
not want to highlight’’ that the victim repeatedly did
not call the police or that he would avoid lines of ques-
tioning that might disclose the client’s uncharged mis-
conduct to the jury. Nonetheless, Bansley also testified
that he could and would have cross-examined the victim
only about the fact that she had omitted the February
14 incident from her statement in exhibit 2j.11 In
assessing how the defense would have used exhibit 2j
at trial generally, ‘‘we are cognizant of what adverse
effect the nondisclosure may have had on the [petition-
er’s] preparation or presentation of [his] case and that
we should act with an awareness of the difficulty of
reconstructing in a post-trial proceeding the course that
the defense and the [trial] . . . would have [otherwise]
taken . . . .’’ (Internal quotation marks omitted.) State
v. White, supra, 229 Conn. 137. To be sure, exhibit 2j
documents several instances of uncharged misconduct
by the petitioner and showcases the victim’s tendency
to avoid calling the police to report the petitioner’s
abuse. Although we cannot predict with certainty how
the defense would have used exhibit 2j, we also cannot
discount the very real possibility that an experienced
trial lawyer like Bansley would have used it in a manner
that did not create an additional risk of prejudice to
the petitioner. Indeed, by simply referring to the time
line of events but not discussing the nature of the inci-
dents documented in exhibit 2j, Bansley could have
used the undisclosed information effectively to impeach
the victim while keeping the details of the allegations
contained in exhibit 2j from the jury. Moreover, even
if the details of the uncharged misconduct were dis-
closed to the jury, the prejudice to the petitioner would
have been minimal given the victim’s direct testimony.
As noted previously in this opinion, the victim testified
about other abuse inflicted on her by the petitioner,
both before and after the February 14 incident, includ-
ing the February 28 incident, during which the peti-
tioner had broken the victim’s nose.12 Consequently,
it is unlikely that the other instances of misconduct
mentioned in exhibit 2j would create additional preju-
dice sufficient to outweigh the impeachment value of
that information.
Finally, we agree with the petitioner that the actions
of the jury support a conclusion that there is a reason-
able probability that the disclosure of exhibit 2j could
have led to a different outcome. The not guilty verdicts
delivered by the jury on counts one and two suggest
that the jury had doubts about the victim’s credibility, as
she testified in detail about how she was twice violently
sexually assaulted by the petitioner. Furthermore, her
testimony regarding the sexual assaults was corrobo-
rated to some extent by Keeman and Henry. Neverthe-
less, the jury was not persuaded, beyond a reasonable
doubt, by the victim’s testimony that the petitioner had
sexually assaulted her. At the same time, given that
the petitioner’s defense was that he was elsewhere on
February 14, 2013, the jury, by finding him guilty of
unlawful restraint based solely on the victim’s testi-
mony, necessarily believed some of her testimony. Fur-
thermore, the jury, during its deliberations, asked the
court if the unlawful restraint had to be related to the
alleged sexual assaults. This question and the resulting
split verdict indicate that the jury was analyzing the
victim’s testimony closely with respect to each charge.
We cannot discount the real probability that, had the
defense had exhibit 2j and been able to use it to further
undermine the victim’s credibility, the jury would have
concluded that the victim’s testimony regarding the
unlawful restraint also was not credible.
For the foregoing reasons, we disagree with the
habeas court’s conclusion that the petitioner did not
meet his burden of demonstrating that exhibit 2j was
material under Brady. We conclude that, because the
petitioner’s unlawful restraint conviction hinged entirely
on the victim’s testimony, and because exhibit 2j could
have significantly undermined the victim’s testimony
on a critical issue in the case, there is a reasonable
probability that, had the state disclosed exhibit 2j, the
outcome of the petitioner’s criminal trial would have
been different. We therefore conclude that the habeas
court improperly determined that exhibit 2j was not
material under Brady.13
The judgment is reversed and the case is remanded
with direction to grant the petition for a writ of habeas
corpus, to vacate the petitioner’s underlying convic-
tions of unlawful restraint in the first degree and being
a persistent dangerous felony offender, and to order a
new trial.
In this opinion the other judges concurred.
1
In light of our conclusion in part II of this opinion that the petitioner is
entitled to a new criminal trial because habeas exhibit 2j was not disclosed
by the state prior to his criminal trial, is favorable to the petitioner, and is
material under Brady, we do not consider the petitioner’s ineffective assis-
tance of counsel claim.
2
In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018), as
amended by the Violence Against Women Act Reauthorization Act of 2022,
Pub. L. No. 117-103, § 106, 136 Stat. 49, 851; we decline to identify any person
protected or sought to be protected under a protection order, protective
order, or a restraining order that was issued or applied for, or others through
whom that person’s identity may be ascertained.
3
‘‘In November, 2013, the state entered a nolle prosequi in the victim’s
case after a witness admitted to filing a false incident report and pleaded
guilty to making a false statement.’’ State v. Williams, 172 Conn. App. 820,
823 n.2, 162 A.3d 84, cert. denied, 326 Conn. 913, 173 A.3d 389 (2017).
4
In the operative petition, the petitioner alleged that both of his trial
attorneys, Bansley and Smith, had rendered ineffective assistance, but on
appeal he pursues this claim only as to Bansley.
5
The petitioner also alleged that his conviction and incarceration consti-
tuted due process violations, but he has abandoned these claims on appeal.
6
The respondent also alleged, as to the petitioner’s due process claims,
that the petitioner had failed to state a claim upon which relief may be
granted and that the claims were procedurally defaulted. The petitioner
filed a reply on August 27, 2019, denying the respondent’s allegations.
7
On September 14, 2022, the petitioner filed a motion for articulation
asking the habeas court ‘‘to articulate whether it considered the petitioner’s
exhibit 2k’’ in its Brady analysis and, if so, to articulate the effect of exhibit
2k on its conclusion that the withheld evidence was not material. The
petitioner stated that, although the habeas court discussed exhibit 2j in its
memorandum of decision, the court ‘‘did not mention’’ exhibit 2k.] The
habeas court granted the petitioner’s motion for articulation as to both
requests, stating that it had considered exhibit 2k in making its decision
and explained that it ‘‘directly address[ed]’’ exhibit 2k when it referred to
the petitioner’s seeking ‘‘to introduce evidence that ‘[the victim] failed to
provide surveillance footage for a second incident to further discredit her
testimony.’ ’’ (Emphasis in original.)
8
The state called four other witnesses, all of whom testified briefly in
response to Bansley’s cross-examination of the victim in which he challenged
her credibility and inquired about her motivation to lie.
9
The state, in its appellate brief in State v. Williams, supra, 172 Conn.
App. 820, relied solely on the victim’s testimony as the evidentiary basis for
the petitioner’s unlawful restraint conviction. See State v. Williams, Conn.
Appellate Court Briefs & Appendices, February Term, 2017, Appellee’s Brief
pp. 1–7.
10
We are aware of only one case in which undisclosed impeachment
evidence was found to be cumulative, and therefore not material, in the
absence of additional evidence of a defendant’s guilt. See Morant v. Commis-
sioner of Correction, 117 Conn. App. 279, 300, 979 A.2d 507, cert. denied,
294 Conn. 906, 982 A.2d 1080 (2009). In that case, however, ‘‘any effect the
[impeachment] evidence would have had . . . would have been neutralized
by the testimony’’ of another witness who did not testify at trial but did
testify at an earlier suppression hearing. Id., 297. This court found that it
was ‘‘clear that the state would have been able to rehabilitate the evidence
that the petitioner claim[ed]’’ was material under Brady by calling that
witness at the petitioner’s criminal trial. Id.
11
In its memorandum of decision, the habeas court stated that ‘‘there was
no evidence presented at trial demonstrating that [Bansley] would have
employed [the information in exhibit 2j] directly by way of specific questions
to [the victim], nor was there evidence to demonstrate any direct benefit
such questions would have had for the defense to the unlawful restraint
charge and, thereby, the verdict.’’ The following exchange at the habeas
trial between Bansley and Attorney Nicole P. Britt, the petitioner’s habeas
counsel, belies that conclusion:
‘‘[Attorney Britt]: Would you ask about statements that [the victim] made
before she reported the sexual assault that didn’t include the sexual assault?
‘‘[Attorney Bansley]: Not necessarily. That, you know, that could easily
open a door to a whole line of things that kind of a, a battered wife syndrome
type thing, so it just depends, unfortunately.
‘‘[Attorney Britt]: Was part of your defense—you said earlier that part of
your strategy was credibility?
‘‘[Attorney Bansley]: Absolutely.
‘‘[Attorney Britt]: Would cross-examining [the victim] about statements
that she made before she reported the sexual assault where she never
mentions the sexual assault go to credibility?
‘‘[Attorney Bansley]: Not necessarily. If I asked her that the statement
you showed me said, in 2008, in 2009, in 2010, but I didn’t call the cops, I
didn’t call the cops, I didn’t call the cops, I would not want to highlight that.
‘‘[Attorney Britt]: Would—could you still cross-examine her just about
the fact that she never brought up the sexual assault on—in her April 24,
2013 statement?
‘‘[Attorney Bansley]: Absolutely.
‘‘[Attorney Britt]: Would you have done that?
‘‘[Attorney Bansley]: I would have.’’
Similarly, Smith testified that exhibit 2j would have been important to
the petitioner’s defense and ‘‘[a]bsolutely’’ useful in the cross-examination
of the victim.
12
At the petitioner’s criminal trial, the victim generally testified that the
petitioner subjected her to verbal, physical, and emotional abuse..
13
In light of our conclusion regarding exhibit 2j, we need not address the
petitioner’s claim that the state’s failure to disclose habeas exhibit 2k also
was material.