Moon v. Commissioner of Correction ( 2024 )

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2 ,0 0 Conn. App. 1Moon v. Commissioner of Correction
RASHAD MOON v. COMMISSIONER OF CORRECTION
(AC 46198)
Elgo, Suarez and Keller, Js.
Syllabus
The petitioner sought a writ of habeas corpus, claiming that he was actually
innocent of the crimes of which he had been convicted. The petitioner
had planned to steal property from the victim with two other individuals,
M and T, although T ultimately did not participate in the robbery. During
the commission of the robbery by the petitioner and M, M shot and
killed the victim. After a jury trial, the petitioner was convicted of felony
murder, robbery in the first degree, and conspiracy to commit robbery
in the first degree. In a subsequent trial, M was found not guilty by
reason of mental disease or defect of the crimes with which he was
charged stemming from the robbery. In his habeas petition, the petitioner
claimed that, as a matter of law, he could not have conspired with M
or formed an agreement with him to participate in a robbery of the
victim because M lacked the mental capacity to engage in the charged
crimes. The habeas court denied the petition for a writ of habeas corpus
and subsequently denied the petition for certification to appeal. On the
petitioner’s appeal to this court, held:
1. The habeas court abused its discretion in denying the petition for certifica-
tion to appeal; the petitioner’s actual innocence claim involved issues
that were debatable among jurists of reason, that could have been
resolved by a court in a different manner, and that raised a question
that was adequate to deserve encouragement to proceed further.
2. Even assuming, as this court did, that the fact of M’s incapacity was
newly discovered evidence, which was essential for the petitioner’s
claim regarding actual innocence, the petitioner could not prevail on
his claim that the habeas court improperly concluded that he failed to
prove that he was actually innocent of the crimes of which he was
convicted:
a. The petitioner failed to meet his burden of proving his actual innocence
with regard to his conviction of conspiracy to commit robbery in the
first degree: although there was no question that M was unable to form
any intent to conspire with the petitioner to rob the victim and that,
therefore, no crime of conspiracy could have been committed with M,
the aggregate evidence at the petitioner’s criminal trial and his habeas
trial, all of which was required to be considered by the habeas court,
would not prevent a reasonable jury from finding, beyond a reasonable
doubt, that the petitioner was guilty of conspiring with T to commit
the robbery, and, as such, even if evidence of M’s incapacity had been
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Moon v. Commissioner of Correction
presented at the petitioner’s criminal trial, there was still sufficient evi-
dence from which the jury could have found the petitioner guilty of
conspiracy to commit robbery.
b. The petitioner could not prevail on his claim that he was actually
innocent of robbery in the first degree and felony murder because M’s
mental state prevented him from forming any intent to participate in the
robbery, which was the predicate felony for the felony murder charge:
because the plain language of the statute governing first degree robbery
(§ 53a-134 (a) (2)) provides that an individual may be guilty of first degree
robbery if he or another participant in the crime uses or threatens the
use of a deadly weapon, there was sufficient evidence for the jury to
find that, during the commission of the robbery, the petitioner acted in
concert with M; moreover, because the petitioner never disputed that
M shot and killed the victim, the petitioner’s criminal liability as an
accessory for acts perpetrated by M was inherent in § 53a-134 (a) (2),
and the fact that M lacked the ability to form any criminal intent due
to his mental disease or defect did not excuse the petitioner from liability;
furthermore, the felony murder statute (§ 53a-54c) does not require proof
of intent and, because the petitioner was criminally liable as a participant
in the robbery and the homicide was committed by the other participant,
M, in the execution of that robbery, he was also guilty of felony murder
pursuant to § 53a-54c.
Argued February 7—officially released September 10, 2024
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, Newson, J.; judgment
denying the petition; thereafter, the court, Newson, J.,
denied the petition for certification to appeal, and the
petitioner appealed to this court. Affirmed.
Naomi T. Fetterman, assigned counsel, for the appel-
lant (petitioner).
Linda F. Rubertone, senior assistant state’s attorney,
with whom, on the brief, were Sharmese L. Walcott,
state’s attorney, and Angela R. Macchiarulo, supervi-
sory assistant state’s attorney, for the appellee (respon-
dent).
Opinion
KELLER, J. The petitioner, Rashad Moon, appeals,
following the denial of his petition for certification to
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appeal, from the judgment of the habeas court denying
his second amended petition for a writ of habeas cor-
pus. On appeal, the petitioner claims that the habeas
court improperly (1) denied his petition for certification
to appeal, and (2) rejected his actual innocence claim.
We conclude that the habeas court abused its discretion
in denying the petition for certification to appeal, but
we agree with its determination that the petitioner failed
to meet his burden of proving actual innocence. Accord-
ingly, we affirm the judgment of the habeas court deny-
ing the petitioner’s habeas petition.
The following facts, as set forth by this court in the
petitioner’s direct appeal from his conviction, and fur-
ther supplemented by the record and procedural history
in the habeas proceeding, are relevant to the resolution
of this appeal. ‘‘In May, 2013, the victim, Felix DeJesus,
and his fiancée posted two T-Mobile Springboard tab-
lets for sale on Craigslist. The Craigslist posting stated
that the tablets were being sold for $300 each or $500
for both of them and included the victim’s phone num-
ber. On May 8, 2013, at approximately 7 p.m., a prospec-
tive buyer of the tablets called the victim. The prospec-
tive buyer said that he did not have a car and asked
the victim to meet him in Hartford so that he could
purchase the tablets. The victim agreed to travel to
Hartford and, shortly after 7 p.m., the victim left his
home in Cromwell with the tablets.
‘‘At approximately 7:45 p.m., a resident of the neigh-
borhood where the crime occurred, Gloria Therrien,
observed the victim park his car in front of 16 Allendale
Road. From inside her home, Therrien saw two men
approach the car and stand at its driver’s side window.
One of the men spoke to the victim through the front
driver’s side window while the other man stood next
to him. Therrien heard a gunshot and saw the two men
run away from the car, using a cut through that con-
nected Allendale Road to Catherine Street. Therrien
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Moon v. Commissioner of Correction
then went outside and walked toward the victim’s car.
She observed that the car windows were open and that
the victim was in the driver’s seat of the car ‘jerking
. . . and gurgling.’ Therrien asked some children who
were nearby to call 911 and report that someone had
been shot.
‘‘The police arrived at the scene at approximately 8
p.m. When Jeffrey Moody, an officer with the Hartford
Police Department (department), arrived, he saw the
victim’s car and noticed that its engine was running
and that the victim was inside. Moody approached the
car and found the victim unresponsive. Thereafter,
emergency services took the victim to Hartford Hospi-
tal, where he died of a single gunshot wound to the
head at approximately 3:46 a.m.
‘‘Chris Reeder, a detective with the department,
arrived at the scene at approximately 8:30 p.m., after
the victim had been taken to Hartford Hospital. Reeder
searched the interior of the victim’s car and found a T-
Mobile Springboard Tablet and a white Samsung cell
phone. The police took possession of both items.
‘‘On May 9, 2013, the police extracted data from the
cell phone, which they determined had belonged to the
victim. The data extracted from the cell phone included
a series of text messages and phone calls between the
victim and a cell phone number that belonged to Marvin
Mathis, an individual who resided near the scene of the
crime. Around the time of the murder, there were text
messages between Mathis and the victim . . . which
. . . instructed the victim to meet him at 16 Allen-
dale Road.
‘‘That same day, Reeder went to speak with Mathis
at his home on Allendale Road. Mathis denied having
any knowledge of the shooting and stated that he was
asleep at home when the crime occurred. Mathis also
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stated that he was with the [petitioner] from approxi-
mately 6 to 7:30 p.m. on the night of the shooting and
that while they were together, the [petitioner] borrowed
his phone.
‘‘Mathis allowed Reeder to view his cell phone and
the text messages on the device. The text messages on
Mathis’ cell phone matched the text messages that the
police had extracted from the victim’s cell phone.
Mathis, however, denied sending the messages and
stated that the [petitioner] must have sent them. Reeder
also observed that the call log on Mathis’ cell phone
revealed that, at approximately the time of the shooting,
there were calls between Mathis and the [petitioner].
On May 8, 2013, there were calls between the [peti-
tioner] and Mathis at 6:02, 7:51, 7:52 and 9:53 p.m.
‘‘On May 12, 2013, Reeder spoke with the [petitioner]
and the [petitioner’s] girlfriend, Brittany Hegwood. Heg-
wood informed the police that on the night of the shoot-
ing, she witnessed Mathis and the [petitioner] walk
‘down Catherine Street toward Hillside [Avenue]’
together and that when the [petitioner] returned
approximately five minutes later he stated ‘[Mathis] just
shot somebody.’
‘‘The [petitioner] also provided the police with a state-
ment in which he admitted that he was with Mathis on
the night of the shooting and that he went with Mathis
to meet the victim. The [petitioner] stated that Mathis
told the [petitioner] that he was going to buy ‘some
stuff’ from the victim. The [petitioner] further stated
that he stood approximately thirty feet away from the
victim’s car while Mathis spoke with the victim through
the driver’s side window. The [petitioner] stated that
he looked away from Mathis and heard a gunshot, at
which point he and Mathis ran away from the car to
the [petitioner’s] house on Catherine Street.
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Moon v. Commissioner of Correction
‘‘As part of their investigation, the police obtained a
search warrant for the [petitioner’s] cell phone records.
The [petitioner’s] cell phone records revealed calls
between the [petitioner] and a phone number belonging
to an individual by the name of Jahvon Thompson on
May 10 and 14, 2013.1
‘‘On May 23, 2014, approximately one year after the
shooting, Thompson, who was under arrest at the time,
spoke with Reeder. Thompson informed Reeder that
he and the [petitioner] initially had planned to rob the
victim because they ‘were broke.’ Thompson further
stated that ‘a day or two’ before the crime he, the [peti-
tioner], and Mathis were together and that the [peti-
tioner] was texting the victim on Mathis’ phone. Thomp-
son stated that ultimately he did not participate in the
robbery because ‘something came up.’
‘‘Additionally, in May of 2014, an individual by the
name of Tyrell Hightower left three messages on a
police tip line, in which he indicated that he had infor-
mation about a homicide that had occurred on Allendale
Road one year earlier. On June 2, 2014, Reeder met
with Hightower at Hartford Correctional Center, where
Hightower was incarcerated. During the meeting, High-
tower informed Reeder that the [petitioner] had con-
fessed to him that he and Mathis were involved in the
murder of the victim. Hightower further stated that the
[petitioner] had informed him that it was a ‘robbery
that went bad’ and that Mathis had shot the victim.
1
The petitioner submitted the transcripts from his four day criminal trial
as exhibits at the habeas trial. Our review of Reeder’s testimony in the
criminal trial reveals that on Friday, May 3, 2013, Mathis’ cell phone was
used to call Thompson’s cell phone. As this court noted in deciding the
petitioner’s direct appeal, and as we discuss further in part II C of this
opinion, Thompson gave a statement to the police in which he indicated
that he, the petitioner and Mathis were together, planning the robbery, ‘‘ ‘a
day or two’ ’’ before the victim was killed. State v. Moon, 192 Conn. App. 68,
73–74, 217 A.3d 668 (2019), cert. denied, 334 Conn. 918, 222 A.3d 513 (2020).
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‘‘In late June of 2014, the police arrested the [peti-
tioner]. After a jury trial, the [petitioner] was convicted
of felony murder,2 robbery in the first degree,3 and con-
spiracy to commit robbery in the first degree.4 The court
sentenced the defendant to a total effective sentence of
forty-nine years of incarceration.’’ (Footnotes added.)
State v. Moon, 192 Conn. App. 68, 71–74, 217 A.3d 668(2019), cert. denied, 334 Conn. 918, 222 A.3d 513 (2020).
The petitioner then appealed from his judgment of
conviction to our Supreme Court, which transferred the
appeal to this court. In his direct appeal, the petitioner
claimed that the trial court improperly (1) instructed
the jury on accomplice liability, (2) failed to poll the
jurors on his affirmative defense, (3) admitted into evi-
dence two spent shell casings that were unconnected
to the crime, and (4) instructed the jury on conspiracy to
commit robbery in the first degree without instructing
it on the intent required for robbery in the first degree.
Id., 70–71. We affirmed the judgment of the trial court;
id., 101; concluding that, in a supplemental instruction,
the trial court did not introduce a new theory of liability
when it added the phrase ‘‘another participant’’ to the
instructions on the use of physical force element of
General Statutes § 53a-54c provides in relevant part: ‘‘A person is guilty
2
of [felony] murder when, acting either alone or with one or more persons,
such person commits or attempts to commit robbery . . . and, in the course
of and in furtherance of such crime or of flight therefrom, such person, or
another participant, if any, causes the death of a person other than one of
the participants . . . .’’
3
General Statutes § 53a-134 provides in relevant part: ‘‘(a) A person is
guilty of robbery in the first degree when, in the course of the commission
of the crime of robbery as defined in section 53a-133 or of immediate flight
therefrom, he or another participant in the crime . . . (2) is armed with a
deadly weapon . . . .’’ See also State v. Moon, 192 Conn. App. 68, 77 and
n.3, 217 A.3d 668 (2019), cert. denied, 334 Conn. 918, 222 A.3d 513 (2020).
4
General Statutes § 53a-48 provides in relevant part: ‘‘(a) A person is
guilty of conspiracy when, with intent that conduct constituting a crime be
performed, he agrees with one or more persons to engage in or cause the
performance of such conduct, and any one of them commits an overt act
in pursuance of such conspiracy. . . .’’
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Moon v. Commissioner of Correction
robbery in the first degree. Id., 79–80. We further held
that the court did not improperly (1) fail to poll the
jury on the petitioner’s affirmative defense to felony
murder; id., 84; (2) admit into evidence two spent shell
casings that were unconnected to the shooting because
the casings were relevant to prove that the defendant
had the means to commit the crime; id., 94; and (3) omit
from its instruction on conspiracy to commit robbery
in the first degree an instruction on the element of
intent. Id., 101. The petitioner unsuccessfully petitioned
our Supreme Court for certification to appeal. See State
v. Moon, 334 Conn. 918, 222 A.3d 513 (2020).
The petitioner, as a self-represented party, filed a
petition for a writ of habeas corpus on or about March
29, 2018. He subsequently was appointed counsel and,
on or about October 31, 2022, filed a second amended
petition, the operative petition, wherein he alleged, in
two counts, that his criminal trial counsel was ineffec-
tive and that he was actually innocent of all three crimes
on the basis of newly discovered evidence. The habeas
court, Newson, J., held a trial on November 7, 2022. On
November 25, 2022, the habeas court issued its decision
denying both counts of the petition.
During the habeas trial, the petitioner attempted to
prove that he was actually innocent of conspiracy to
commit robbery in the first degree and robbery in the
first degree because Mathis could not form the intent
to conspire to commit robbery or agree to participate in
one with the petitioner. Building on that, the petitioner
argued that, because Mathis was not capable of agreeing
with him to participate in a robbery, the petitioner also
was actually innocent of felony murder because the
underlying facts and the predicate felony necessary to
support the felony murder charge were negated.
The petitioner presented the testimony of his criminal
trial counsel, Attorney Kevin Smith. Smith acknowl-
edged that he was aware at the time of the petitioner’s
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criminal trial that Mathis, who also had been arrested
in relation to these crimes and was awaiting his own
trial, intended to raise a defense of ‘‘diminished capac-
ity.’’5 Smith testified, however, that he did not know
that Mathis’ case would end, as it did, with a verdict
of not guilty by reason of mental disease or defect. See
General Statutes § 53a-13.6 The petitioner also submit-
ted as exhibits at the habeas trial the transcripts from
the Mathis trial and his own criminal trial.7
In denying the petitioner’s claim of actual innocence,
the habeas court rejected the petitioner’s argument that,
as a matter of law, he could not have conspired with
Mathis or formed an agreement with him to participate
in a robbery of the victim because Mathis had been
diagnosed with schizophrenia prior to the homicide
and, therefore, lacked the mental capacity to engage in
the charged crimes. The habeas court determined that,
because the petitioner and Mathis had been tried sepa-
rately, ‘‘the factual findings from Mathis’ case cannot
simply be inserted into the petitioner’s trial.’’ After quot-
ing from our Supreme Court’s decision in State v. Colon,
257 Conn. 587, 602–603, 778 A.2d 875 (2001), which held
that there is no requirement for consistency of verdicts
5
The petitioner presented undisputed evidence that Mathis had been
charged with robbery in the first degree in violation of § 53a-134, conspiracy
to commit robbery in the first degree in violation of § 53a-48, and manslaugh-
ter in the first degree in violation of General Statutes § 53a-55. He was tried
separately in a two day bench trial on May 24 and 25, 2017, and was found
not guilty by reason of mental disease or defect.
6
General Statutes § 53a-13 provides in relevant part: ‘‘(a) In any prosecu-
tion for an offense, it shall be an affirmative defense that the defendant, at the
time the defendant committed the proscribed act or acts, lacked substantial
capacity, as a result of mental disease or defect, either to appreciate the
wrongfulness of his conduct or to control his conduct within the require-
ments of the law. . . .’’
7
We note the absence in the record of the habeas trial of any copies of
the actual exhibits introduced during the criminal trials of the petitioner and
Mathis. The habeas court was provided only with the petitioner’s judgment
mittimus, the information and disposition from the Mathis criminal trial and
the transcripts of the two trials.
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Moon v. Commissioner of Correction
where alleged conspirators are tried separately, the
habeas court concluded that ‘‘the verdict in Mathis’
case does not meet the burden that the petitioner must
establish ‘by clear and convincing evidence’ that he
‘could not have committed the crime, that a third party
committed the crime, or that no crime actually
occurred.’ ’’ (Emphasis in original.) It explained that
‘‘Mathis’ verdict only establishes that if evidence related
to Mathis’ mental state [was] presented during the peti-
tioner’s criminal trial, the jury could have come to a
different result, if it accepted that evidence.’’ (Emphasis
in original.) Moreover, the court stated that ‘‘Mathis’
verdict does not remove the [petitioner] from the scene
of the crime, it does not negate the incriminating state-
ments provided against him by several people, and it
does not negate the incriminating text messages con-
necting him to the victim.’’
Following the denial of the petition for a writ of
habeas corpus, the petitioner filed a petition for certifi-
cation to appeal, which the habeas court denied on or
about December 6, 2022. This appeal followed. Addi-
tional facts and procedural history will be set forth as
necessary.
On appeal, the petitioner claims that the habeas court
(1) abused its discretion in denying his petition for
certification to appeal and (2) improperly rejected his
actual innocence claim.8 As to his actual innocence
claim, the petitioner maintains that because his code-
fendant, Mathis, was found not guilty by reason of men-
tal disease or defect in his subsequent trial, he necessar-
ily lacked the requisite mens rea to enter into a
8
The petitioner’s claim on appeal is limited to the habeas court’s resolution
of count two of the habeas petition in which he alleged actual innocence. The
petitioner does not challenge the habeas court’s rejection of his ineffective
assistance of counsel claim and, thus, it is unnecessary for us to discuss
or analyze the court’s analysis with respect to that count of the second
amended petition.
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conspiracy with the petitioner, and that his inability to
form an intent to commit any crime at the time dis-
proves each of the three crimes of which the petitioner
was convicted: felony murder, conspiracy to commit
robbery in the first degree and robbery in the first
degree. He argues that the habeas court improperly
relied on the rule in Colon to reject this claim.
The respondent, the Commissioner of Correction,
argues that the habeas court did not abuse its discretion
in denying certification to appeal and further argues
that the petitioner’s contention that the state could not
satisfy the element of intent as to the three crimes
of which the petitioner was convicted due to Mathis’
subsequent acquittal ignores the substantial body of
evidence adduced at the criminal and habeas trials.
The respondent maintains that the petitioner’s actual
innocence claim is unavailing because he failed (1) to
establish that no reasonable fact finder would have
found him guilty based on the evidence presented at his
criminal and habeas trials and the reasonable inferences
drawn therefrom, and (2) to produce affirmative proof
that he did not commit the crimes of which he stands
convicted. Although we agree with the petitioner that
the habeas court abused its discretion in denying certifi-
cation to appeal, we agree with the respondent that the
habeas court properly found that the petitioner failed
to meet his burden of proving actual innocence.
I
DENIAL OF CERTIFICATION TO APPEAL
We first address the petitioner’s claim that the habeas
court improperly denied the petition for certification
to appeal. We agree with the petitioner.
‘‘Faced with the habeas court’s denial of certification
to appeal, a petitioner’s first burden is to demonstrate
that the habeas court’s ruling constituted an abuse of
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Moon v. Commissioner of Correction
discretion. . . . A petitioner may establish an abuse of
discretion by demonstrating that the issues are debat-
able among jurists of reason . . . [the] court could
resolve the issues [in a different manner] . . . or . . .
the questions are adequate to deserve encouragement
to proceed further. . . . The required determination
may be made on the basis of the record before the
habeas court and the applicable legal principles.’’ (Cita-
tions omitted; emphasis omitted; footnote omitted;
internal quotation marks omitted.) Johnson v. Commis-
sioner of Correction, 285 Conn. 556, 564, 941 A.2d 248(2008), quoting Simms v. Warden, 230 Conn. 608, 612,
646 A.2d 126 (1994).
‘‘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 this court for
determining the propriety of the habeas court’s denial
of the petition for certification. Absent such a showing
by the petitioner, the judgment of the habeas court must
be affirmed.’’ Taylor v. Commissioner of Correction,
284 Conn. 433, 449, 936 A.2d 611 (2007). As our discus-
sion in part II of this opinion reflects, the petitioner’s
actual innocence claim involves issues that are debat-
able among jurists of reason, that could have been
resolved by a court in a different manner, and the ques-
tion raised was adequate to deserve encouragement to
proceed further. As such, we conclude that the habeas
court abused its discretion in denying the petition for
certification to appeal. See Williams v. Commissioner
of Correction, 221 Conn. App. 294, 303, 301 A.3d 1136(2023); Doan v. Commissioner of Correction, 193 Conn.
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App. 263, 272–73, 219 A.3d 462, cert. denied, 333 Conn.
944, 219 A.3d 374 (2019).
II
ACTUAL INNOCENCE
Next, we address the petitioner’s claim that the
habeas court improperly concluded that he failed to
prove that he is actually innocent of conspiracy to com-
mit robbery in the first degree, robbery in the first
degree and felony murder. We do not agree.
In support of his claim of actual innocence, the peti-
tioner presented evidence to support his theory that
the determination in a subsequent criminal proceeding
that his codefendant, Mathis, was not legally capable
of forming the criminal intent necessary to be held
responsible for his crimes constituted newly discovered
evidence of the petitioner’s innocence. In its memoran-
dum of decision, the habeas court aptly described the
petitioner’s claim as follows: ‘‘The petitioner did offer
the theory that [he] could not, as a matter of law, have
formed a criminal agreement with codefendant Mathis
because Mathis did not have the mental capacity to
form a criminal conspiracy. It is undisputed that Mathis,
who was charged similarly to the petitioner, was found
not guilty on May [25], 2017, after successfully present-
ing the affirmative defense commonly referred to as
not guilty by reason of insanity . . . . Mathis was tried
separately after the petitioner.
***
‘‘More specifically, the petitioner argues that the
codefendant’s lack of mental capacity would have
negated the element of robbery in the first degree requir-
ing the state to prove that another participant in the
crime was armed with a deadly weapon, the theory
being that Mathis could not have formed the criminal
intent to be a participant in the robbery. On that same
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Moon v. Commissioner of Correction
basis, the petitioner argues that Mathis did not have
the legal capacity to enter into a criminal conspiracy,
negating an essential element of the conspiracy to com-
mit robbery in the first degree charge. Finally, follows
the petitioner, a determination that Mathis was not
capable of appreciating the criminal nature of the crimi-
nal conduct he engaged in with the petitioner would
effectively negate, as charged, the underlying facts and
the supporting felony necessary to support the felony
murder charge.’’ (Citations omitted; emphasis omitted;
footnote omitted; internal quotation marks omitted.)
At the outset, we set forth the legal principles relevant
to our resolution of this claim and our standard of
review. To secure habeas corpus relief in the form of
a new trial based on a claim of actual innocence, the
petitioner must satisfy the two criteria set forth in Miller
v. Commissioner of Correction, 242 Conn. 745, 747,
700 A.2d 1108 (1997). Specifically, ‘‘the petitioner [first]
must establish by clear and convincing evidence that,
taking into account all of the evidence—both the evi-
dence adduced at the original criminal trial and the
evidence adduced at the habeas corpus trial—he is
actually innocent of the crime of which he stands con-
victed. Second, the petitioner must also establish that,
after considering all of that evidence and the inferences
drawn therefrom . . . no reasonable fact finder would
find the petitioner guilty of the crime.’’ (Emphasis
added.) Id. With respect to the first criterion, ‘‘[t]he
appropriate scope of [our] review is whether, after an
independent and scrupulous examination of the entire
record, we are convinced that the finding of the habeas
court that the petitioner is [or is not] actually innocent
is supported by substantial evidence.’’ Id., 803. With
respect to the second criterion, our scope of review is
plenary. Id., 805.
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We also note that our Supreme Court has not yet
opined on whether prevailing on a claim of actual inno-
cence requires a petitioner to prove that the new evi-
dence presented to the habeas court was unknown to
the petitioner at the time of the underlying criminal
trial. See Gould v. Commissioner of Correction, 301
Conn. 544, 551 n.8, 22 A.3d 1196 (2011); see also Bowens
v. Commissioner of Correction, 333 Conn. 502, 507, 217
A.3d 609 (2019) (court assumed without deciding issue
of whether petitioner’s claim of actual innocence was
required to be predicated on newly discovered evi-
dence). This court, however, has consistently and
repeatedly held that habeas judges are bound by the
requirement that the evidence of actual innocence be
newly discovered. See Lopez v. Commissioner of Cor-
rection, 208 Conn. App. 515, 556–57, 264 A.3d 1097(2021) (collecting cases), cert. denied, 340 Conn. 922,
268 A.3d 77, cert. denied sub nom. Lopez v. Quiros,
U.S. , 142 S. Ct. 2730, 212 L. Ed. 2d 790 (2022). Under
Connecticut law, as expressed by this court, evidence
is new if the petitioner can prove ‘‘by a preponderance
of the evidence . . . that the proffered evidence could
not have been discovered prior to the petitioner’s crimi-
nal trial by the exercise of due diligence.’’ (Internal
quotation marks omitted.) Ampero v. Commissioner of
Correction, 171 Conn. App. 670, 687, 157 A.3d 1192,
cert. denied, 327 Conn. 953, 171 A.3d 453 (2017).
With these principles in mind, we first consider
whether the habeas court determined that the evidence
presented by the petitioner in support of his actual
innocence claim was newly discovered.
A
Newly Discovered Evidence
To begin our discussion, we note that the habeas
court did not make an explicit finding that the fact of
Mathis’ incapacity was newly discovered evidence.
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Such a finding is essential for the petitioner’s claims
regarding actual innocence. See Lopez v. Commis-
sioner of Correction, supra, 208 Conn. App. 556–57.
The petitioner maintains that the habeas court ‘‘does
not contest’’ that the evidence of Mathis’ acquittal due
to mental disease or defect is newly discovered. The
respondent counters that the habeas court did not find
that the evidence was newly discovered. The respon-
dent argues that the habeas court merely sustained the
respondent’s objection regarding habeas counsel’s line
of questioning as to whether the petitioner’s trial attor-
ney knew that Mathis’ case would end in an acquittal
on the basis of mental disease or defect. After a careful
review of the habeas court’s memorandum of decision
and the record, and despite the absence of an explicit
determination that such evidence was newly discov-
ered, we presume for the purposes of resolving this
appeal that the court did make this requisite finding.
See Wheelabrator Bridgeport, L.P. v. Bridgeport, 320
Conn. 332, 355, 133 A.3d 402 (2016) (‘‘Effect must be
given to that which is clearly implied as well as to that
which is expressed. . . . The construction of a judg-
ment is a question of law for the court.’’ (Internal quota-
tion marks omitted.)); Tracey v. Miami Beach Assn.,
216 Conn. App. 379, 395, 288 A.3d 629 (2022) (‘‘a judicial
opinion must be read as a whole, without particular
portions read in isolation, to discern the parameters of
its holding’’ (internal quotation marks omitted)), cert.
denied, 346 Conn. 919, 291 A.3d 1040 (2023).
The petitioner’s trial counsel, Smith, testified at the
habeas trial that, at the time of the petitioner’s trial, he
did not know that Mathis’ trial would end in a verdict
of not guilty by reason of mental disease of defect,
although he was aware that Mathis’ attorney would
make some claim of diminished capacity. He stated
that he was not able to speak with Mathis, and Mathis’
attorney was not sharing information with him. Smith
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also indicated that he believed he would not have had
the ability to present evidence of Mathis’ lack of intent
at the petitioner’s trial because it would have required
the development of psychiatric evidence that was
unavailable when the petitioner’s criminal trial com-
menced, and the ability to develop that evidence was
not within his control.
The parties briefly discuss the newly discovered evi-
dence requirement in footnotes in their appellate briefs.
The respondent did not argue before the habeas court,
nor has he claimed on appeal as an alternative ground
for affirmance, that the court did not find that the evi-
dence proffered at the habeas trial was newly discov-
ered. Even so, the record is not without some support
for the position that the evidence of Mathis’ incapacity
could have been ascertained for use in the petitioner’s
trial. Smith knew Mathis’ attorney was going to raise
Mathis’ competency as a defense at his trial. The peti-
tioner told Thompson that he was aware of Mathis’
diagnosis of schizophrenia, and Hightower declared, in
his statement, that Mathis was ‘‘slow’’ and ‘‘[y]ou can
tell he is not right in the head as soon as you meet him’’
and he was ‘‘not a guy I would commit a crime with.’’
Noticeably absent from the evidence at the habeas
trial, however, is any indication that the petitioner’s
trial counsel would have been successful had he sought
a psychiatric evaluation of Mathis prior to the petition-
er’s trial. Smith testified that he assumed this was not
possible and the respondent presented no evidence or
argument at the habeas trial to dispute that assumption.
Moreover, in closing argument, the respondent’s coun-
sel did not argue that the petitioner’s evidence was not
newly discovered.
In United States v. Brodwin, 292 F. Supp. 2d 484(S.D.N.Y. 2003), the United States District Court for the
Southern District of New York addressed the issue of
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Moon v. Commissioner of Correction
newly discovered evidence in a case involving two
defendants, licensed pharmacists, who moved for a new
trial after they were convicted of conspiring with a
codefendant physician, Ronald A. Jones, to illegally dis-
tribute the drug Dilaudid. Id., 485–86. Their claim was
based on newly discovered evidence that Jones was
insane at the time of the alleged conspiracy. Id., 486.
The government argued that the court should deny the
defendants’ motion for a new trial because the evidence
of Jones’ insanity could have been discovered with rea-
sonable diligence by defense counsel and was, there-
fore, not new. Id., 492. The government noted that in
the months leading up to the defendants’ trial, the par-
ties were on notice that Jones might be suffering from
some mental defect, yet defense counsel never made
any application to the court requesting that Jones be
evaluated for his sanity. Id.
In rejecting the government’s argument, the court
noted that ‘‘the evidence that is newly discovered in
this case is not Jones’s bizarre behavior, which the
parties were aware of before trial, but rather the conclu-
sions reached by experts for Jones and for the [g]overn-
ment that Jones was not sane at the time of the offenses
charged. Therefore, although the evidence supporting
the experts’ conclusions was available before trial, it
was not apparent that an expert would conclude that
Jones was insane at the time of the offenses charged,
and, more importantly, the specific evidence, namely
the expert opinions, simply did not exist until after
the defendants were convicted. . . . The [g]overnment
nonetheless argues that the defendants should have
requested that Jones be evaluated for his sanity at the
time of the offenses, and that by neglecting to do so,
the defendants failed to exercise due diligence in dis-
covering Jones’s insanity before trial. The defendants
cannot be faulted, however, for not pursuing a finding
of Jones’s legal insanity before trial, because that course
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of action would have faced formidable obstacles that
would have made the outcome of any such request
both highly uncertain and the cause of much delay. The
[g]overnment has cited no authority that would have
supported the defendants’ efforts to secure a psycholog-
ical evaluation of a co-defendant, and alleged co-con-
spirator . . . . Any such request or application by the
defendants would have been subject to either the con-
sent of Jones or an order of this [c]ourt, neither of
which the defendants should reasonably have expected
to be forthcoming, given the fact that Jones himself had
rights to a fair trial that deserved protection . . . . The
uncertainty resulting from the formidable obstacles the
defendants would have faced in making an application
for a psychiatric evaluation of Jones, along with the
substantial delays that would have resulted from simply
making the application, place the request outside the
ordinary diligence that could be expected of the defen-
dants in putting on their defense.’’ (Citation omitted.)
Id., 493–94.
In the present case, the habeas court could reason-
ably have reached the same conclusion based on the
record before us, particularly because Mathis’ attorney
was not sharing information with the petitioner’s trial
counsel and the ability to develop evidence regarding
Mathis’ lack of capacity was not within his control.
Thus, although the habeas court’s decision does not
unambiguously reflect whether it considered Mathis’
lack of capacity as newly discovered evidence, the
record suggests that the habeas court reasonably could
have believed that this was evidence unavailable at the
time of the petitioner’s trial. Indeed, the habeas court
stated during trial that it was ‘‘absolutely obvious [trial
counsel] could not have known something that didn’t
happen until months in the future.’’ See Wheelabrator
Bridgeport, L.P. v. Bridgeport, supra, 320 Conn. 355.
We will not presume error on the part of the habeas
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Moon v. Commissioner of Correction
court. Instead, we presume that the court properly con-
sidered the merits of the petitioner’s claim for appro-
priate reasons as reflected in the record. See, e.g., Ste-
venson v. Commissioner of Correction, 112 Conn. App.
675, 686, 963 A.2d 1077 (court’s ruling was entitled to
presumption of correctness because appellate courts
do not presume error on part of trial court), cert. denied,
291 Conn. 904, 967 A.2d 1221 (2009). It therefore was
the respondent’s burden to demonstrate that, in failing
to explicitly find that the evidence of Mathis’ insanity
was newly discovered, the habeas court committed
reversible error. The respondent did not formally raise
any such claim during the habeas trial or in this appeal.
See State v. James K., 209 Conn. App. 441, 465, 267 A.3d
858 (2021), aff’d, 347 Conn. 648, 299 A.3d 243 (2023).
Accordingly, for the purposes of our analysis, we
will presume that the habeas court did consider the
evidence of Mathis’ acquittal as newly discovered and
unavailable even with the exercise of due diligence by
the petitioner and his counsel, particularly because the
habeas court addressed, in full, the merits of the peti-
tioner’s actual innocence claim. Had the habeas court
concluded that the evidence was not newly discovered,
it would have ended its discussion there. See generally
Wheelabrator Bridgeport, L.P. v. Bridgeport, supra, 320
Conn. 355.
B
Standard for Proving Actual Innocence
We next consider whether the habeas court applied
the proper standard in its evaluation of the petitioner’s
actual innocence claim. ‘‘The question of whether the
habeas court applied the correct standard is a question
of law subject to plenary review.’’ Gould v. Commis-
sioner of Correction, supra, 301 Conn. 557.
In its memorandum of decision, the habeas court
recited the proper ‘‘standard for a claim for habeas
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relief based on actual innocence’’ as set forth by our
Supreme Court in Miller and ultimately concluded that
‘‘the petitioner has failed to meet his burden of proving
actual innocence.’’ To reach that conclusion, however,
the court departed from the standard it recited and
relied, instead, on legal authority that we find inapplica-
ble to the analysis. Specifically, the court based its
conclusion on the law pertaining to direct appeals by
defendants who have sought to overturn their conspir-
acy convictions because a codefendant has been acquit-
ted of conspiracy in a separate trial. The principal case
on which the habeas court relied is State v. Colon, supra,257 Conn. 587, in which our Supreme Court upheld the
conviction of a defendant as a conspirator despite the
acquittal of his sole alleged coconspirator in a separate
trial because there was sufficient evidence introduced
during the defendant’s trial to prove, beyond a reason-
able doubt, that the defendant was guilty of conspiracy.
Colon and the other cases cited therein are not habeas
corpus cases, however, and the reviewing courts con-
sidered and contrasted the separate, independent evi-
dence of an agreement to commit the crime in question
as presented to different juries in two separate criminal
proceedings, relying on an analysis that permits the
acceptance of inconsistent verdicts. Id., 599.
‘‘In separate trials, [t]he evidence presented to the
juries and the manner in which that evidence is pre-
sented may be significantly different and certainly will
never be identical. . . . As a result, [d]ifferent juries
may rationally come to different conclusions, especially
when differing evidence is presented.’’ (Citation omit-
ted; internal quotation marks omitted.) Id., 602. Colon
overruled State v. Robinson, 213 Conn. 243, 567 A.2d
1173 (1989), in which our Supreme Court previously
had concluded that an acquittal, at a separate trial, of
the defendant’s alleged coconspirator foreclosed prose-
cution of the defendant for conspiracy because the cul-
pability of the coconspirator was ‘‘an essential element
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Moon v. Commissioner of Correction
of the defendant’s offense.’’ (Internal quotation marks
omitted.) State v. Colon, supra, 257 Conn. 598; see also
id., 603. In deciding Robinson, the Supreme Court relied
on its prior decision in State v. Grullon, 212 Conn. 195,
562 A.2d 481 (1989), in which it reversed the judgment
of conviction of the defendant for an alleged conspiracy
with a police informant because it deemed the police
informant incapable of possessing the requisite criminal
intent to form a conspiracy with the defendant. See
State v. Robinson, supra, 250–53. The court in Grullon
relied on a line of cases that described conspiracy in
bilateral terms and held that where two coconspirators
were tried together, the acquittal of one and the convic-
tion of the other on the charge of conspiracy is not
possible. See State v. Grullon, supra, 202. It stated that
‘‘[u]nder our [conspiracy] statute . . . a defendant can-
not be guilty of conspiracy if the only other member
of the alleged conspiracy lacks any criminal intent.’’
Id., 199.
In Colon, the court specified that the ruling in Grullon
makes obvious sense in the context of a single trial but
that that ruling does not apply where the acquittal of
one coconspirator occurs in a separate trial. See State
v. Colon, supra, 257 Conn. 599. It explained that ‘‘[i]t
has long been recognized that criminal juries in the
United States are free to render not guilty verdicts
resulting from compromise, confusion, mistake,
leniency or other legally and logically irrelevant factors’’
and concluded that ‘‘[t]he acquittal of the defendant’s
coconspirator did not nullify the defendant’s conviction
of the same charge, where the two defendants were
tried separately, and their respective juries were pre-
sented with separate, independent evidence of their
agreement to commit the crime in question.’’ (Internal
quotation marks omitted.) Id., 603–604.
In reviewing a claim of actual innocence in a habeas
petition, however, the habeas court is required to
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engage in a combined, rather than a separate and inde-
pendent, review of all the evidence produced both dur-
ing the petitioner’s criminal trial and his habeas trial.
This combination of evidence is the potential totality
of the evidence that would be presented to a jury if a
new trial were to be conducted. The relevant questions
that must both be answered in the affirmative for the
petitioner to prevail are whether the combined evidence
clearly and convincingly establishes the petitioner’s
actual innocence and whether no reasonable fact finder
could find the petitioner guilty beyond a reasonable
doubt when confronted with the evidence available at
the original criminal trial, together with the newly dis-
covered evidence presented during the habeas trial. See
Miller v. Commissioner of Correction, supra, 242 Conn.
791–92; see also Charlton v. Commissioner of Correc-
tion, 51 Conn. App. 87, 89–91, 719 A.2d 1205 (1998),
cert. denied, 247 Conn. 961, 723 A.2d 815 (1999). We
therefore agree with the petitioner that the habeas
court’s reliance on the fact that the two separate ver-
dicts on the conspiracy charge are inconsistent should
not have formed the basis for the habeas court’s resolu-
tion of this case in favor of the respondent. Although
this would be true were the petitioner raising his claim
in a direct appeal, the rule in Colon is not applicable
to the claim of error raised in this habeas appeal.
The habeas court should have considered the evi-
dence presented in both the petitioner’s criminal trial
and in the habeas trial as if it were a single body of
evidence that would be presented at a new trial. Stated
differently, it should have determined whether the peti-
tioner had satisfied his burden of proving his actual
innocence based on all of the aggregate evidence before
it. The court did not do so here. Instead, the habeas
court determined that ‘‘the factual findings from Mathis’
case cannot simply be inserted into the petitioner’s
trial’’ and, thus, expressly excluded a significant portion
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Moon v. Commissioner of Correction
of the aggregate evidence from its analysis. This was
improper. By failing to consider the transcripts from
Mathis’ trial, which had been submitted as exhibits at
the habeas trial, the habeas court eschewed the stan-
dard it was required to apply. Even so, as we discuss
in the following section, we conclude, on the basis of
our ‘‘independent and scrupulous examination of the
entire record’’ and our plenary review, that the ultimate
conclusion reached by the habeas court, that the peti-
tioner failed to meet his burden of proving his actual
innocence, is correct. See Miller v. Commissioner of
Correction, supra, 242 Conn. 803.
C
Evidence of a Conspiracy to Commit
Robbery in the First Degree
As noted previously, the petitioner claims that
because his codefendant, Mathis, subsequently was
found not guilty by reason of mental disease or defect,
Mathis lacked the requisite mens rea to enter into a
conspiracy with the petitioner or to commit robbery.
Moreover, the petitioner argues that Mathis’ inability to
form an intent to agree to commit any crime at the time
also disproves that he committed every one of the three
crimes of which the petitioner was convicted—felony
murder, conspiracy to commit robbery in the first degree
and robbery in the first degree. The respondent main-
tains that the petitioner’s actual innocence claim is
unavailing because he failed (1) to establish that no
reasonable fact finder would have found him guilty on
the basis of the evidence presented at his criminal and
habeas trials and the reasonable inferences drawn
therefrom, and (2) to produce affirmative proof that he
did not commit the crimes of which he stands convicted.
In other words, the respondent argues that the peti-
tioner failed to meet his burden of proving his actual
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innocence. We agree with the respondent, although we
arrive at this conclusion by way of a different path.
General Statutes § 53a-48 provides in relevant part:
‘‘(a) A person is guilty of conspiracy when, with intent
that conduct constituting a crime be performed, he
agrees with one or more persons to engage in or cause
the performance of such conduct, and any one of them
commits an overt act in pursuance of such conspiracy.
. . .’’ It is well settled that ‘‘conspiracy requires a show-
ing that two or more coconspirators intended to engage
in or cause conduct that constitutes a crime. Under
our statute, therefore, a defendant cannot be guilty of
conspiracy if the only other member of the alleged
conspiracy lacks any criminal intent.’’ State v. Grullon,
supra, 212 Conn. 199.
As we have noted, to satisfy the Miller standard for
habeas relief based on actual innocence, the petitioner
was first required to establish by clear and convincing
evidence that he was actually innocent of the crimes
of which he was convicted. ‘‘[T]he clear and convincing
evidence standard should operate as a weighty caution
upon the minds of all judges, and it forbids relief when-
ever the evidence is loose, equivocal or contradictory.
. . . [T]he clear and convincing burden [is] an extraor-
dinarily high and truly persuasive [demonstration] of
actual innocence . . . one in which the petitioner must
unquestionably establish [his] innocence. . . . [T]ruly
persuasive demonstrations of actual innocence after
conviction in a fair trial have been, and are likely to
remain, extremely rare. . . . Actual innocence, also
referred to as factual innocence . . . is different than
legal innocence. Actual innocence is not demonstrated
merely by showing that there was insufficient evidence
to prove guilt beyond a reasonable doubt.’’ (Citations
omitted; internal quotations marks omitted.) Gould v.
Commissioner of Correction, supra, 301 Conn. 560–61.
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Moon v. Commissioner of Correction
‘‘Rather, actual innocence is demonstrated by affirma-
tive proof that the petitioner did not commit the crime.’’
Id., 561. ‘‘Affirmative proof of actual innocence is that
which might tend to establish that the petitioner could
not have committed the crime even though it is
unknown who committed the crime, that a third party
committed the crime or that no crime actually
occurred.’’9 (Emphasis in original.) Id., 563. ‘‘Clear and
convincing proof of actual innocence does not, how-
ever, require the petitioner to establish that his or her
guilt is a factual impossibility.’’ Id., 564.
The petitioner argues that the newly discovered evi-
dence of Mathis’ acquittal is sufficient to satisfy his
burden of proving actual innocence of all three of the
crimes of which he was convicted because the lack of
a willing agreement between him and Mathis establishes
that no crimes were actually committed. The respon-
dent argues that the petitioner’s contention that the
state could not satisfy the element of intent as to the
crimes of which the petitioner was convicted based on
Mathis’ subsequent acquittal overlooks the substantial
body of evidence adduced at the petitioner’s criminal
and habeas trials. This argument, however, derives from
the respondent’s reliance on State v. Colon, supra, 257
Conn. 587, which, as we have explained, is not applica-
ble to a claim of actual innocence raised in a habeas
petition. As such, like the habeas court, the respondent
relies on an improper standard in his review of the
evidence adduced at the criminal trial and the habeas
trial, viewing the evidence from each as separate and
independent, rather than as an aggregate body of evi-
dence, as required by Miller.
9
We note that the habeas court predicated its conclusion on its finding
that the petitioner had not satisfied this prong of the Miller standard. Specifi-
cally, it found that ‘‘the verdict in Mathis’ case does not meet the burden
that the petitioner must establish ‘by clear and convincing evidence’ that
he ‘could not have committed the crime, that a third party committed the
crime, or that no crime actually occurred.’ ’’ (Emphasis in original.)
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Our review of the transcripts from Mathis’ criminal
trial, which were admitted as evidence in the habeas
trial, displays a virtually uncontested proceeding
wherein the prosecutor did not dispute the fact that
Mathis, a seriously ill schizophrenic at the time of the
incident, was incapable of forming any intent to commit
the crimes of which he was charged, including conspir-
acy, and was, therefore, not guilty of those crimes by
reason of mental disease or defect pursuant to § 53a-
13. On May 24 and 25, 2017, the case against Mathis
was tried to the court in two phases. Mathis was charged
with three crimes: reckless manslaughter in the first
degree with a firearm, robbery in the first degree and
conspiracy to commit robbery in the first degree. He
had raised the § 53a-13 affirmative defense and claimed
that, on the day of the homicide, he lacked the capacity
to form an intent to commit the crimes with which
he was charged due to mental disease or defect. The
prosecutor presented evidence of Mathis’ involvement
in these crimes and the resulting death of the victim
through a single witness, Reeder, the lead investigator
in the homicide case, whom the defense did not cross-
examine. Also introduced without objection were state-
ments from Thompson, Hightower and Therrien, which
had been admitted in the petitioner’s criminal trial.10
The statement of Thompson, which Reeder read to
the jury during the petitioner’s criminal trial, indicated
that he and the petitioner were supposed to rob the
victim together and that the petitioner actively involved
Mathis on the day the robbery occurred because
Thompson was not available. Both Mathis and Thomp-
son had been present on one occasion before the homi-
cide when the petitioner phoned the victim about pur-
chasing the tablets advertised on Craigslist. On May 25,
10
During the petitioner’s criminal trial, Thompson’s and Hightower’s state-
ments were admitted for substantive purposes as prior inconsistent state-
ments under State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied,
479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). See also State v. Moon,
supra, 192 Conn. App. 91 n.10.
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Moon v. Commissioner of Correction
2017, after hearing the state’s evidence, the court found
that the state had proven all of the elements of the
three crimes with which Mathis was charged.
Thereafter, during the second phase of the trial, the
defense called Peter Morgan, Chair of Psychiatry at
Lawrence + Memorial Hospital, to testify. Morgan had
prepared a report subsequent to his evaluation of
Mathis, which began in May, 2015, and ended in January,
2017, the month after the petitioner’s criminal trial con-
cluded.11 He testified that, in his opinion, to a reasonable
degree of medical certainty, Mathis suffered from
schizophrenia, paranoid type, and that around the time
of the homicide he was suffering from severe symptoms
of that illness, having been released from an inpatient
hospitalization at the Institute of Living just six days
before the date of the homicide. Morgan opined that
Mathis lacked the capacity to understand the wrong-
fulness of his actions and could not conform his behav-
ior to the law at the time of the incident. The state did
not offer opposing expert testimony and indicated to
the court that it did not contest that Mathis had estab-
lished his § 53a-13 affirmative defense by way of the
evidence presented through Morgan. Indeed, the state
even established during its cross-examination of Mor-
gan that the reliability of his evaluation was strength-
ened by the fact that there were medical records that
confirmed Mathis’ active symptoms at or around the
time of the homicide. The court found that Mathis had
proven his affirmative defense and referred him to the
Department of Mental Health and Addiction Services for
an evaluation to be followed by a hearing in accordance
with General Statutes §17a-582.12
11
Morgan’s report and the date of its preparation are not part of the
record, but it most likely was prepared after the petitioner’s criminal trial
concluded in December, 2016.
12
General Statutes § 17a-582 provides in relevant part: ‘‘(a) When any
person charged with an offense is found not guilty by reason of mental
disease or defect pursuant to section 53a-13, the court shall order such
acquittee committed to the custody of the Commissioner of Mental Health
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On July 24, 2017, after reviewing the written evalua-
tion and testimony of Rina Kapoor, Chief of Forensic
Services at Whiting Forensic Division, Connecticut Val-
ley Hospital, the court committed Mathis to the Whiting
Forensic Division of Connecticut Valley Hospital, under
the jurisdiction of the Psychiatric Security Review
Board, for a maximum period of eighty years.
There is no question, given the cooperative manner
in which the trial of Mathis was conducted, including
the presentation of his affirmative defense, that Mathis’
acquittal establishes, by clear and convincing evidence,
that he was unable to form any intent to conspire with
the petitioner to rob the victim. In light of the holding
in Grullon, if this newly discovered evidence regarding
Mathis’ trial and his not guilty verdict were to be intro-
duced in a new trial of the petitioner regarding his
criminal charges, a properly instructed jury could rea-
sonably reach one conclusion, namely, that the peti-
tioner was actually innocent of conspiring with Mathis
and Addiction Services who shall cause such acquittee to be confined,
pending an order of the court pursuant to subsection (e) of this section, in
any of the state hospitals for psychiatric disabilities or to the custody of
the Commissioner of Developmental Services, for an examination to deter-
mine his mental condition.
‘‘(b) Not later than sixty days after the order of commitment pursuant to
subsection (a) of this section, the superintendent of such hospital or the
Commissioner of Developmental Services shall cause the acquittee to be
examined and file a report of the examination with the court, and shall send
a copy thereof to the state’s attorney and counsel for the acquittee, setting
forth the superintendent’s or said commissioner’s findings and conclusions
as to whether the acquittee is a person who should be discharged. . . .
‘‘(e) At the hearing, the court shall make a finding as to the mental
condition of the acquittee and, considering that its primary concerns are
the protection of society and the safety and well-being of the acquittee,
make one of the following orders:
(1) If the court finds that the acquittee is a person who should be confined
or conditionally released, the court shall order the acquittee committed to
the jurisdiction of the board and either confined in a hospital for psychiatric
disabilities or placed with the Commissioner of Developmental Services,
for custody, care and treatment pending a hearing before the board pursuant
to section 17a-583; provided (A) the court shall fix a maximum term of
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Moon v. Commissioner of Correction
to commit robbery in the first degree. See State v. Grul-
lon, supra, 212 Conn. 199. Stated simply, no crime of
conspiracy could have been committed because Mathis
was incapable of agreeing with the petitioner to commit
robbery. See State v. Montgomery, 22 Conn. App. 340,
344, 578 A.2d 130 (‘‘[t]he concept of a conspiracy of
one can be likened to the sound of one hand clapping—
it is an impossibility’’), cert. denied, 216 Conn. 813, 580
A.2d 64 (1990). Without proof of another coconspirator
besides Mathis, the defendant’s conviction of conspir-
acy to commit robbery in the first degree could not
stand.
Relying on Ankerman v. Commissioner of Correc-
tion, 122 Conn. App. 246, 999 A.2d 789, cert. denied,
298 Conn. 922, 4 A.3d 1225 (2010), in which this court
held that the petitioner’s claim that the state failed to
prove the specific intent element ‘‘[was] essentially one
of sufficiency of the evidence and not one of actual
innocence’’; id., 252; the respondent argues that the
petitioner’s reliance on evidence regarding Mathis’
inability to engage with the petitioner in a conspiracy to
commit robbery ‘‘fails because . . . it hinges on legal
innocence, i.e., whether the state presented sufficient
evidence to prove the essential elements of the crimes
beyond a reasonable doubt, as opposed to actual inno-
cence, i.e., whether the petitioner actually engaged in
the criminal conduct at issue—the planning and execu-
tion of the robbery.’’ (Emphasis in original.) We dis-
agree. If two persons do not both intend to conspire,
no conspiracy is committed. See State v. Grullon, supra,212 Conn. 199; see also State v. Green, 261 Conn. 653,
670–73, 804 A.2d 810 (2002) (reaffirming that conviction
for conspiracy cannot be sustained in case in which
same jury convicts one alleged conspirator of conspir-
acy to commit offense and acquits other). In other
commitment, not to exceed the maximum sentence that could have been
imposed if the acquittee had been convicted of the offense . . . . ’’
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words, no crime actually occurs, which, by definition,
is affirmative proof of actual innocence. See Gould v.
Commissioner of Correction, supra, 301 Conn. 560–61;
see also C. Leonetti, ‘‘The Innocence Checklist,’’ 58 Am.
Crim. L. Rev. 97, 106 (2021) (explaining that actual
innocence means that ‘‘the defendant did not commit
the crime’’). ‘‘Legal innocence,’’ however, as the respon-
dent recognizes, means that ‘‘there [is] insufficient evi-
dence to prove guilt beyond a reasonable doubt.’’13 Id.;
see also N. Berg, ‘‘Turning a Blind Eye to Innocence:
The Legacy of Herrera v. Collins,’’ 42 Am. Crim. L.
Rev. 121, 122 (2005) (‘‘In the criminal context, legal
innocence means that not enough proof of guilt was
introduced at trial to establish that a defendant is guilty
beyond a reasonable doubt. In contrast, actual inno-
cence means simply that the defendant did not commit
the offense in question.’’).
In this case, Mathis’ inability to conspire with the
petitioner is newly discovered evidence that is more
than sufficient to prove that the petitioner could not
have committed with Mathis alone the crime of conspir-
acy to commit robbery. We therefore conclude that
the evidence from the Mathis trial, if introduced in the
context of a single trial of the petitioner, would give rise
to a finding of actual innocence, not legal innocence,
as defined in Miller. The undisputed fact that Mathis
13
The respondent predicates his argument on this definition of ‘‘legal
innocence.’’ We do note, however, that ‘‘legal innocence’’ can result for
reasons that do not substantively address a defendant’s guilt, such as where
a victim refuses to testify or where evidence of guilt is suppressed for
procedural or constitutional reasons. See Shaw v. Dept. of Administration,
861 P.2d 566, 570 n.3 (Alaska 1993); L. Litman, ‘‘Legal Innocence and Federal
Habeas,’’ 104 Va. L. Rev. 417, 437 (2018); 3 R. Mallen, Legal Malpractice
(2024 Ed.) § 27:42. Indeed, ‘‘one can be legally innocent but not actually
innocent due to a statute that is held to be unconstitutional, or due to
ineffective assistance of counsel.’’ (Footnote omitted.) R. Wilson, ‘‘From
Advocate to Party—Defenses for Lawyers Who Find Themselves in Litiga-
tion,’’ 61 S. Tex. L. Rev. 43, 73 (2020). None of these scenarios, including
the one upon which the respondent relies, are implicated here.
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Moon v. Commissioner of Correction
suffered from a mental illness that rendered him unable
to form the intent to conspire means that no crime
of conspiracy involving solely Mathis as coconspirator
actually could have occurred. See Miller v. Commis-
sioner of Correction, supra, 242 Conn. 747. As such,
the aggregate evidence that would be presented in the
context of a single trial establishes that no conspiracy
could exist between the petitioner and Mathis. See State
v. Montgomery, supra, 22 Conn. App. 344.
There is, however, in the same evidentiary aggregate,
proof of the petitioner’s conspiring to commit the same
robbery with a person other than Mathis: namely,
Thompson.14 During the petitioner’s criminal trial, when
Thompson was called to the stand, he initially refused
to testify and attempted to exercise his fifth amendment
14
Following oral argument in this appeal, this court ordered the parties
to file simultaneous supplemental memoranda ‘‘addressing whether the peti-
tioner’s claim of actual innocence is negated if the record discloses that he
also conspired with [Thompson] to rob the victim.’’ The parties complied
with our supplemental memoranda order, and we have considered their
arguments in our resolution of the appeal. The respondent argues that
because ‘‘[t]he record affirmatively shows . . . that the petitioner . . .
conspired with [Thompson] to rob the victim’’ the petitioner’s actual inno-
cence claim must fail. The petitioner disagrees with the respondent and
argues that our ‘‘inquiry is flawed from its inception’’ because it is ‘‘beyond
[our] purview to determine whether [the petitioner] was guilty of conspiring
with Thompson . . . .’’ Even so, he acknowledges that the ‘‘state presented
evidence to support its assertion that [Thompson] and [the petitioner] con-
spired to perpetuate a robbery,’’ and he recites ‘‘[t]he proper standard for
evaluating a freestanding claim of actual innocence’’ in a habeas proceeding.
(Internal quotation marks omitted.) The petitioner does not, however, recon-
cile his argument against our considering the evidence of his conspiring
with Thompson with that proper standard and our obligation (1) to conduct
an ‘‘independent and scrupulous review of the entire record’’ to determine
whether the evidence from both the original criminal trial and the habeas
corpus trial clearly and convincingly establishes that he is actually innocent
of the crime of conspiracy to commit robbery and (2) to determine whether,
on the basis of the totality of all of the evidence from both proceedings,
and inferences drawn therefrom, no reasonable fact finder would find him
guilty of that crime. He focuses, instead, on standards that have no bearing
on our analysis of his claim of actual innocence.
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right against self-incrimination.15 He claimed that the
statement he had given to the police had been coerced,
stating ‘‘the shooting task force told me if I didn’t sign
that statement they was going to charge me with con-
spiracy to that homicide because I had knowledge of
it, that’s the only reason why I signed it.’’ After being
allowed to consult with a court-appointed public
defender regarding his fifth amendment claim, however,
he did testify, and his testimony was inconsistent with
the written statement he previously had given to the
police. In other words, Thompson’s testimony chal-
lenged the accuracy of his prior written statement. As
such, the state moved to admit as a full exhibit Thomp-
son’s written statement. After the court found the state-
ment reliable and allowed its admission, the state
recalled Reeder, who read the statement to the jury.
See footnote 10 of this opinion.
Thompson’s statement reveals that the petitioner
conspired with him to rob the victim.16 It provides in
relevant part:
‘‘I, Jahvon Thompson, and having Detective Reeder
type this statement for me, I have not been threatened
or promised anything for giving this statement. I am
not under the influence of drugs or alcohol. I’ve been
15
The record reflects that Thompson acknowledged having committed
felony larceny for which he received probation and that he had been arrested
in 2014 for violation of that probation, firearms charges and domestic assault.
Moreover, at the time of trial, there was a pending robbery charge
against him.
16
We note that, in responding to the petitioner’s actual innocence claim
in both the habeas proceedings and in this appeal, the respondent focuses
solely on Mathis as the petitioner’s coconspirator and argues that Mathis’
acquittal has no bearing on the petitioner’s conviction of the crime of conspir-
acy to commit robbery. As stated herein, that argument fails because it is
predicated on the rule in Colon, which is inapplicable. Even so, the scope
of our review of the habeas court’s conclusion as to the petitioner’s actual
innocence claim requires us to conduct an independent and scrupulous
examination of all of the evidence produced during the petitioner’s criminal
and habeas trials, and this includes Thompson’s statement.
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Moon v. Commissioner of Correction
advised of my Miranda rights, and I have agreed to
speak with the police. I understand that I am under
arrest for the guns, weed, and domestic incident at my
house this morning.
‘‘I have information about a homicide that happened
on Allendale in Hartford about a year ago. It was in
May of 2013.
‘‘I am friends with [the petitioner]. His nickname is
Mook. He lives on Catherine Street, right by the cut
from Allendale where the [victim] was killed. He lives
on the second floor. I have known [the petitioner] for
about four to five years. [The petitioner] is about
twenty-two years old. . . .
‘‘The [victim] was trying to sell two tablets on [Craigs-
list]. [The petitioner] and I had planned to rob this guy.
A day or two before the [victim] got killed on Allendale,
[the petitioner], Fetti17 and I were together. [The peti-
tioner] had Fetti’s cell phone and was texting the guy
selling the tablets. . . . He was selling two of them.
[The petitioner] used Fetti’s phone to talk with the guy
selling the tablets. You should be able to find the text
on Fetti’s phone.
‘‘Something came up and I had to go so we did not
rob [the victim] that day. [The petitioner] and I were
broke so that is why we wanted to rob [the victim].
. . . I think the day after [the victim] got killed, [the
petitioner] called me and told me to come over. [The
petitioner] was whispering on [the] phone and I thought
he was in trouble and that he was running from some-
one.
‘‘I went over to . . . [the petitioner’s] house on Cath-
erine Street. . . . I picked up [the petitioner] at his
17
Evidence at the petitioner’s criminal trial established that Mathis’ nick-
name was Fetti.
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36 ,0 0 Conn. App. 1Moon v. Commissioner of Correction
house. It was just [the petitioner] and me in the car.
We were driving around.
‘‘[The petitioner] looked and sounded really scared.
[The petitioner] was saying, the dumb [Mathis] killed
him. He was saying this over and over again. [The peti-
tioner] told me that Fetti had shot and killed the guy me
and [the petitioner] had planned to rob. [The petitioner]
said he had used Fetti’s phone to get in [touch] with
the guy on [Craigslist]. [The petitioner] told me he had
told [the victim] to meet on Allendale by the cut so he
could run back to his house after they rob him.
‘‘[The petitioner] told me he gave Fetti his gun. I had
seen [the petitioner] with this gun before. It is a revolver,
a little .22 or maybe a .25. [The petitioner] told me he
had grabbed one of the tablets and that Fetti went to
the driver’s door with the gun. [The petitioner] told me
that he went to the passenger’s side of the car and
grabbed one tablet from [the victim]. There was sup-
posed to be two tablets. [The petitioner] said Fetti was
standing next to the driver door with the gun and just
shot the [victim].’’ (Footnote added.)
After reading Thompson’s statement into the record,
Reeder confirmed that Thompson had provided him
with information that he actually was going to partici-
pate in the robbery with the petitioner and testified that
he never threatened Thompson with being arrested as
a conspirator for the incident. Moreover, Reeder had
previously testified that Mathis’ phone was used to call
the victim the morning of Friday, May 3, 2013. This
corroborated Thompson’s statement that he, the peti-
tioner and Mathis were all present when the petitioner
first contacted the victim about his Craigslist advertise-
ment regarding the two tablets. Later that same day,
Mathis’ phone was used to call Thompson’s phone.
The evidence that Thompson also planned the rob-
bery with the petitioner was not completely discounted
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Moon v. Commissioner of Correction
during the criminal trial. The information in the petition-
er’s criminal trial charged that the petitioner had con-
spired with ‘‘another person’’ to commit robbery in the
first degree. The prosecutor argued to the jury that
Thompson’s statement alone established all of the ele-
ments of all of the charges against the petitioner and
that Thompson was the first one enlisted by the peti-
tioner to commit the robbery.
The court instructed the jury that it could find the
petitioner guilty of conspiracy to commit robbery in
the first degree if it found beyond a reasonable doubt
that, ‘‘one . . . the [petitioner] had the intent [that]
conduct constituting the crime of robbery in the first
degree be performed, and two, that, acting with that
intent he agreed with one or more persons to engage
in that conduct or cause that conduct to be performed,
robbery in the first degree, and three, that either he or
any one of the other parties to the agreement committed
an overt act [to further the purpose of] the conspiracy.’’
No exception to this instruction, which charged the jury
to consider a conspiracy involving the petitioner and
one or more persons, was taken by either the state or
the petitioner.
We conclude that this aggregate evidence, if pre-
sented in a new trial, would not prevent a reasonable
jury from finding, beyond a reasonable doubt, that the
petitioner was guilty of a conspiracy, despite the evi-
dence of Mathis’ lack of mental capacity at the time of
the homicide. There is substantial evidence within this
aggregate that the petitioner conspired with Thompson
to commit the robbery.18 See General Statutes § 53a-48.
18
In fact, the evidence in the record indicates that the petitioner contacted
Thompson after the homicide to enlist his assistance in driving him to Mathis’
home so the petitioner could ensure that Mathis would not say anything
inculpatory to the police. From that evidence, the trier of fact reasonably
could infer that the petitioner did so because Thompson was already involved
in the crime, and not a person with no prior involvement and nothing to
lose if damaging information were to be disclosed to the police.
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As such, even if evidence of Mathis’ incapacity had been
presented at the petitioner’s criminal trial, there was
still sufficient evidence from which the jury could find
the petitioner guilty of conspiracy to commit robbery.
On the basis of Thompson’s Whelan statement and
Reeder’s testimony, the jury reasonably could have
found that Thompson was a willing coconspirator.
Indeed, the petitioner first planned to rob the victim
with Thompson, and Thompson testified, and the jury
could have believed, that the police, in an effort to
obtain his cooperation, told him that he might be
charged as a conspirator. The fact that Thompson was
never charged as a coconspirator is of no significance
to our analysis. ‘‘Conspirators need not all be charged
in order to sustain a conviction of one of them for
conspiracy.’’ State v. Shaw, 24 Conn. App. 493, 494 n.1,
589 A.2d 880 (1991); see also State v. Asberry, 81 Conn.
App. 44, 56 n.7, 837 A.2d 885, cert. denied, 268 Conn. 904,
845 A.2d 408 (2004) (same); Crump v. Commissioner
of Correction, 68 Conn. App. 334, 338, 791 A.2d 628(2002) (same).
On the basis of our independent and scrupulous
review of the entire record of this case, we conclude
that the habeas court correctly found that the petitioner
failed to meet his burden of establishing, by clear and
convincing evidence, that he could not have committed
the crime of conspiracy to commit robbery, that a third
party committed the crime of conspiracy to commit
robbery or that no crime of conspiracy to commit rob-
bery actually occurred.19 The aggregate evidence simply
does not unquestionably establish the petitioner’s inno-
cence of that crime. See Miller v. Commissioner of
19
We acknowledge that our rationale underlying this conclusion differs
from that of the trial court. ‘‘[I]t is axiomatic that [an appellate court] may
affirm a proper result of the trial court for a different reason.’’ (Internal
quotation marks omitted.) Tracey v. Miami Beach Assn., supra, 216 Conn.
App. 396 n.18.
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Moon v. Commissioner of Correction
Correction, supra, 242 Conn. 795 (‘‘the clear and con-
vincing evidence standard . . . forbids relief whenever
the evidence is loose, equivocal or contradictory’’ (inter-
nal quotation marks omitted)). Furthermore, we con-
clude upon plenary review that a reasonable fact finder,
if presented with the aggregate evidence, could find the
petitioner guilty of conspiracy to commit robbery in
the first degree. See id., 807.
D
Evidence of Robbery in the First
Degree and Felony Murder
We next address the petitioner’s claim that he is actu-
ally innocent of robbery in the first degree and felony
murder because Mathis’ mental state prevented him
from forming any intent to participate in the robbery,
which is the predicate felony for the felony murder
charge. We disagree.
Our analysis of this claim is informed by this court’s
opinion in State v. Moon, supra, 192 Conn. App. 74–83.
In his direct appeal, the first issue the petitioner raised
was that the court improperly instructed the jurors for
the first time, during deliberations in response to a
question they posed, that the petitioner ‘‘could be con-
victed of robbery even if another person was the one
to use force . . . .’’ Id., 74.
In addressing this issue, this court stated: ‘‘Count
two of the information charging the [petitioner] [with
robbery in the first degree pursuant to § 53a-134 (a)
(2)] alleged: ‘[O]n or about May 8, 2013 at 8:00 p.m. on
Allendale Road in Hartford . . . while in the course of
the commission of a robbery and in immediate flight
therefrom, [the petitioner] or another participant in the
crime was armed with a deadly weapon.’
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40 ,0 0 Conn. App. 1Moon v. Commissioner of Correction
‘‘During closing argument, the state argued that the
[petitioner] was one of the two participants in the rob-
bery and that it was legally irrelevant whether he or
Mathis shot the victim. . . .
‘‘Under the heading ‘conclusion,’ the court [initially]
provided: ‘In summary, the state must prove beyond a
reasonable doubt the following elements of robbery in
the first degree: (1) the [petitioner] was committing a
larceny; and (2) that he used physical force or threat-
ened the use of physical force for the purpose of pre-
venting or overcoming resistance to the taking of prop-
erty or to the retention of property immediately after
the taking or compelling the owner of the property or
another person to deliver up the property or to engage
in other conduct that aids in the commission of larceny;
and (3) that in the course of the commission of the
robbery or immediate flight from the crime, the [peti-
tioner] or another participant in the crime was armed
with a deadly weapon.’ . . .
‘‘The court provided the jurors with a paper copy of
the jury instructions for their use during deliberations.
During deliberations, the jury sent the court the follow-
ing note: ‘Does ‘‘the use or threat of use of physical
force’’ element of robbery in the first degree require a
finding that the [petitioner] personally used or threat-
ened the use of force or is it sufficient as to the ‘‘use
or threat of use of physical force’’ element if, in the
course of the larceny, force was threatened by any party
to the larceny? . . .
‘‘Upon receiving the note from the jury, the court
discussed the matter with counsel. Although the court
stated that it believed that the instruction on robbery
in the first degree was proper, it nonetheless proposed
responding to the jury’s note by adding the phrase
‘another participant’ to the use of force instruction
. . . . The court explained that it was its belief that
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Moon v. Commissioner of Correction
the addition of this language would clarify that the jury
could find the [petitioner] guilty of robbery in the first
degree if he or another participant in the crime used
or threatened the use of physical force.
‘‘Defense counsel objected, stating that the proposed
clarification would serve as an ‘unfair invasion of the
province of the jury’ and improperly introduce the con-
cept of accomplice liability. . . . Over the [petitioner’s]
objection, the court decided to provide the jury with its
proposed clarification.’’ (Emphasis added.) Id., 75–78.
In concluding that the trial court properly instructed
the jury regarding robbery in the first degree, this court
held that ‘‘[t]he plain language of [§ 53a-134 (a)] states
that an individual may be guilty of robbery in the first
degree if he or another participant in the crime uses
or threatens the use of a dangerous instrument. In State
v. Davis, [255 Conn. 782, 791 n.8, 772 A.2d 559 (2001)],
our Supreme Court concluded that § 53a-134 applies to
both principals and accessories, stating: [O]ur robbery
statute, § 53a-134, includes explicit accessory language
within the text of the statute. . . . Because the robbery
statute applies to principals and accessories on its face,
the court did not need to explain the concept of accesso-
rial liability to the jury as it relates to the robbery charge.
. . . Our Supreme Court also noted that our law makes
no practical distinction between the terms accessory
and principal for the purposes of determining criminal
liability.’’ (Emphasis in original; internal quotation
marks omitted.) State v. Moon, supra, 192 Conn. App. 81.
Accordingly, although the petitioner was not charged
as an accomplice, the evidence was sufficient to convict
the petitioner of robbery despite the lack of any instruc-
tion on accomplice liability because there was sufficient
evidence for the jury to find that during the commission
of the robbery, the petitioner acted in concert with
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Mathis. See State v. Latorre, 51 Conn. App. 541, 552,
723 A.2d 1166 (1999).
Moreover, Mathis’ legal incapacity as a participant in
the commission of the robbery would not afford the
petitioner any defense at trial and thus does not support
his actual innocence claim on this charge. The peti-
tioner has never disputed that Mathis shot and killed
the victim. He contended that, although he was present
at the scene of the robbery, he was a distance away
and had no intent to commit the robbery. The state,
however, alleged that the petitioner worked in concert
with Mathis and that both of them committed the rob-
bery, and the jury found the petitioner guilty of that
crime.
During the Mathis trial, the state took the position
that Mathis shot and killed the victim and charged him
with manslaughter in the first degree with a firearm
under the reckless subsection of the statute. From the
aggregate evidence presented during the habeas trial,
the petitioner is clearly portrayed as an alleged accom-
plice to the principal, Mathis, who used physical force
during the robbery that resulted in the victim’s death.
General Statutes § 53a-9 provides in relevant part: ‘‘In
any prosecution for an offense in which the criminal
liability of the defendant is based upon the conduct of
another person under section 53a-820 it shall not be a
defense that: (1) Such other person is not guilty of the
offense in question because of lack of criminal responsi-
bility or legal capacity or awareness of the criminal
nature of the conduct in question . . . or because of
20
General Statutes § 53a-8 provides in relevant part: ‘‘(a) A person, acting
with the mental state required for commission of an offense, who solicits,
requests, commands, importunes or intentionally aids another person to
engage in conduct which constitutes an offense shall be criminally liable
for such conduct and may be prosecuted and punished as if he were the
principal offender. . . .’’ This statute establishes the guilt of an accused as
an accessory.
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Moon v. Commissioner of Correction
other factors precluding the mental state required for
the commission of the offense in question; or (2) such
other person has not been prosecuted for or convicted
of any offense based upon the conduct in question, or
has been acquitted thereof . . . .’’ (Footnote added.)
In State v. McCarthy, 179 Conn. 1, 425 A.2d 924 (1979),
the defendant was found guilty of murder and attempt
to commit murder. Id., 2. In the indictment, information
and bill of particulars, he was charged under § 53a-8.
Id., 13–14. ‘‘[T]he state alleged that the defendant ‘did
intentionally aid one Jean Siretz, while the latter, with
intent to cause the death[s] of [Donald and] one Victoria
Stuart, did shoot and cause the death of said Victoria
Stuart.’ Considerable testimony was adduced at the trial
that Siretz was so affected by drugs that she was incapa-
ble of forming any intent. . . . In its charge, the court
instructed the jury that [§ 53a-9] governed the situation
and that ‘the mental state or intent of [Siretz] is irrele-
vant.’ He went on to note that: ‘You may disregard that
word ‘‘intent’’ as far as she is concerned. Her intent is
not a necessary element. . . . It is surplusage in the
indictment.’ ’’ (Footnote omitted.) Id., 14.
Our Supreme Court held that ‘‘[t]he purpose behind
§ 53a-9 is to prevent the specific type of evil presented
by this precise fact situation: A Mansonesque21 figure
using a mentally incompetent individual to commit a
crime and going free because the actual perpetrator
is incapable of the requisite intent. A crime may be
performed though the actual perpetrator lacked the
requisite mental capacity. . . . It is but to quote the
hornbook to say that in every crime there must exist
21
The court was referring to the notorious criminal defendant, Charles
Manson, in People v. Manson, 71 Cal. App. 3d 1, 139 Cal. Rptr. 275 (1977),
cert. denied, 435 U.S. 953, 98 S. Ct. 1582, 55 L. Ed. 2d 803 (1978), and People
v. Manson, 61 Cal. App. 3d 102, 132 Cal. Rptr. 265 (1976), cert. denied, 430
U.S. 986, 97 S. Ct. 1686, 52 L. Ed. 2d 382 (1977). See State v. McCarthy,
supra, 179 Conn. 16.
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44 ,0 0 Conn. App. 1Moon v. Commissioner of Correction
a union or joint operation of act, or failure to act, and
intent. However, this is far from suggesting that the
essential element of criminal intent must always reside
in the person who does the forbidden act. Indeed, the
latter may act without any criminal intent whatever,
while the mens rea—willfulness—may reside in a per-
son wholly incapable of committing the forbidden act.
The trial court’s interpretation and application of § 53a-
9 was correct. There was no error in instructing the jury
that Siretz’ intent was irrelevant.’’ (Citations omitted;
footnote altered; internal quotation marks omitted.)
Id., 16.
In light of the holding in State v. Davis, supra, 255
Conn. 782, the prosecutor did not need to specifically
charge the petitioner as an accessory in the robbery
perpetrated upon the victim, as his criminal liability as
an accessory for acts perpetrated by Mathis is inherent
in the relevant statute, § 53a-134 (a) (2). It is of no
significance that Mathis, the other participant in the
robbery who used physical force by firing the gun,
lacked the ability to form any criminal intent due to
his mental disease or defect. This does not excuse the
petitioner from liability.
With respect to the conviction of the petitioner on
the charge of felony murder in violation of § 53a-54c, as
with the first degree robbery conviction, the petitioner
cannot avail himself of the defense that his partner in
the robbery, Mathis, could not have formed an intent
to kill the victim due to his mental disease or defect.
A person is guilty of felony murder when, acting with
one or more persons, he commits an underlying felony,
such as robbery in the first degree, and in the course
of and in furtherance of said underlying felony or in
the course of and in furtherance of the defendant’s
flight therefrom, he or another participant causes the
death of a person other than one of the participants.
See General Statutes § 53a-54c.
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Moon v. Commissioner of Correction
‘‘[T]he phrase in furtherance of was intended to
impose the requirement of a relationship between the
underlying felony and the homicide beyond that of mere
causation in fact, similar to the concept of proximate
cause in the law of torts. Primarily its purpose was to
limit the liability of a person whose accomplice in one
of the specified felonies has performed the homicidal
act to those circumstances which were within the con-
templation of the confederates to the undertaking, just
as the liability of a principal for the acts of his servant
is similarly confined to the scope of the agency. All
who join in a common design to commit an unlawful
act, the natural and probable consequence of the execu-
tion of which involves the contingency of taking human
life, are responsible for a homicide committed by one
of them while acting in pursuance of, or in furtherance
of, the common design.’’ (Emphasis omitted; internal
quotation marks omitted.) State v. Young, 191 Conn.
636, 642, 469 A.2d 1189 (1983); see also In re Michael
B., 36 Conn. App. 364, 375, 650 A.2d 1251 (1994) (‘‘[t]he
phrase [in furtherance of] serves to exclude those mur-
ders that are committed during the course of an underly-
ing felony but that are wholly unrelated . . . but does
not serve to exclude killings that were not intended’’).
‘‘Nowhere in the [felony murder] statute . . . is
there a further requirement of a general intent to com-
mit the homicidal act.’’ State v. Kyles, 221 Conn. 643,
668, 607 A.2d 355 (1992). The purpose underlying the
felony murder statute is ‘‘to punish those whose con-
duct brought about an unintended death in the commis-
sion or attempted commission of a felony. . . . The
felony murder rule includes accidental, unintended
deaths. Indeed, we have noted that crimes against the
person like robbery, rape and common-law arson and
burglary are, in common experience, likely to involve
danger to life in the event of resistance by the victim
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46 ,0 0 Conn. App. 1Moon v. Commissioner of Correction
. . . .’’ (Citation omitted; emphasis in original; internal
quotation marks omitted.) Id., 667.
It is not necessary for the state to prove beyond a
reasonable doubt that the petitioner, or Mathis for that
matter, intended that the victim’s life be taken. The
felony murder statute only requires proof of all of the
elements of the underlying felony, in this case, robbery
in the first degree, and then proof that one of the partici-
pants in the proven robbery, in the course of and in
the furtherance of that felony, or in flight from the
commission of the felony, caused the death of a nonpar-
ticipant victim. Mathis’ inability to form an intent to
kill the victim is irrelevant. Because the petitioner is
criminally liable as a participant in the robbery, and
the homicide was committed by the other participant,
Mathis, in the execution of that robbery, he is also
guilty of felony murder under § 53a-54c. The aggregate
evidence presented during the habeas trial is sufficient
to prove that the victim was killed in the course of
being robbed by the petitioner and Mathis and in fur-
therance of that crime.
In sum, we conclude that the habeas court’s finding
that the petitioner failed to meet his burden of proving
actual innocence must stand. We have independently
and scrupulously examined the entire record of this
case and conclude that substantial evidence supports
the conclusion that the petitioner is not actually inno-
cent of the crimes for which he stands convicted. More-
over, on our plenary review, we conclude that a reason-
able fact finder could find the petitioner guilty beyond
a reasonable doubt of the crimes of which he stands
convicted when confronted with the evidence available
at the original criminal trial, together with the newly
discovered evidence presented during the habeas trial.
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Moon v. Commissioner of Correction
The habeas court properly denied the petitioner’s actual
innocence claim.
The judgment is affirmed.
In this opinion the other judges concurred.