Birch v. Commissioner of Correction

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RALPH BIRCH v. COMMISSIONER OF CORRECTION
(SC 20136)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
The petitioner, who had been convicted of felony murder in connection
with the stabbing death of the victim inside the victim’s home during
what appeared to be a botched burglary, sought a writ of habeas corpus,
claiming, inter alia, that the state deprived him of his due process right
to a fair trial insofar as it failed to correct the trial testimony of L, a former
director of the state police forensic laboratory, that a red substance on
a towel found in the victim’s home after the murder tested positive for
blood when no such test had been conducted and when subsequent
testing conducted in connection with the present habeas action revealed
that the red substance was not in fact blood. The habeas court rendered
judgment denying the habeas petition. With respect to the petitioner’s
due process claim, the court concluded that, because L mistakenly but
honestly believed that the towel tested positive for blood and, thus,
did not give perjured testimony, the burden was on the petitioner to
demonstrate that there was a reasonable probability of a different verdict
if the correct evidence had been disclosed. Applying this standard, the
habeas court determined that L’s testimony was immaterial because,
among other things, the state’s criminal case against the petitioner did
not rely on forensic evidence but, rather, on the testimony of numerous
lay witnesses. On the granting of certification, the petitioner appealed,
claiming that the habeas court applied the incorrect standard for
determining whether the petitioner was entitled to a new trial and that,
upon application of the correct standard, which required the respondent,
the Commissioner of Correction, to establish beyond a reasonable doubt
that L’s incorrect testimony was immaterial, he was entitled to a new
trial. Held that, on the basis of this court’s analysis in the companion
case of State v. Henning (334 Conn. 1), this court concluded that the
state’s failure to correct L’s incorrect testimony that there was blood
on the bathroom towel deprived the petitioner of a fair trial, and the
habeas court’s judgment was reversed, as it was predicated on a determi-
nation that the petitioner was not entitled to a new trial because L’s
incorrect testimony was immaterial: the habeas court incorrectly con-
cluded that the respondent was not required to establish beyond a
reasonable doubt that the state’s failure to correct L’s incorrect testi-
mony was immaterial, as controlling case law made it clear that such
a standard applies whenever the state fails to correct testimony that it
knew or, as in the present case, should have known to be false; moreover,
L, as the representative of the state police forensic laboratory, should
have known that the towel had not been tested for blood, as he had an
affirmative obligation to review any relevant test reports before testifying
so as to reasonably ensure that his testimony would accurately reflect
the findings of those tests, and L’s incorrect testimony must be imputed
to the prosecutor who, irrespective of whether he elicited that testimony
in good faith, is deemed to be aware of any and all material evidence
in the possession of any investigating agency, including the state police
forensic laboratory; furthermore, the respondent did not meet his burden
of establishing beyond a reasonable doubt that L’s incorrect testimony
was immaterial, as the state apparently offered L’s testimony concerning
the towel to demonstrate the petitioner’s efforts to conceal evidence of
the murder before he left the victim’s home, the jury reasonably could
have relied on the state’s theory regarding the petitioner’s use of the
towel to conceal evidence, the state’s case against the petitioner was
not so strong as to take it out of the purview of cases in which, as a
result of the state’s use of testimony that it knew or should have known
was false, reversal is virtually automatic, and the state’s failure to correct
L’s testimony was material because it deprived the petitioner of the
opportunity to impeach certain other testimony by L regarding how it
was possible that the petitioner and his alleged accomplice, H, stabbed
the victim twenty-seven times in a narrow space and tracked blood all
over the victim’s home but somehow managed not to leave any trace
of blood in their getaway vehicle, which showed no signs of having
been cleaned when the police recovered it a few days after the murder.
Argued October 11, 2018—officially released June 14, 2019*
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland and
tried to the court, Sferrazza, J.; judgment denying the
petition, from which the petitioner, on the granting of
certification, appealed. Reversed; judgment directed.
Andrew P. O’Shea, for the appellant (petitioner).
Michael J. Proto, assistant state’s attorney, with
whom were Jo Ann Sulik, supervisory assistant state’s
attorney, and, on the brief, David S. Shepack, state’s
attorney, for the appellee (respondent).
Opinion
PALMER, J. In the early morning hours of December
2, 1985, sixty-five year old Everett Carr was brutally
murdered in his New Milford residence. Subsequently,
the petitioner, Ralph Birch, and a second man, Shawn
Henning, were arrested and charged with Carr’s mur-
der, which the police theorized was committed during
the course of a burglary of Carr’s home by the two men.
After a jury trial, the petitioner was convicted of felony
murder, and, following his appeal, this court upheld the
petitioner’s conviction.1 See State v. Birch, 219 Conn.
743, 751, 594 A.2d 972 (1991). Thereafter, the petitioner
filed two habeas petitions, the first of which was denied
by the habeas court, Zarella, J. Birch v. Warden, Docket
No. TSR-CV-92-1567-S, 1998 WL 376345, *11 (Conn.
Super. June 25, 1998). The second petition, which is
the subject of this appeal, alleged, among other things,
that the state deprived the petitioner of a fair trial in
violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.
Ct. 1194, 10 L. Ed. 2d 215 (1963), and its progeny, which
require the state to correct any testimony that it knows
or should know is materially false or misleading. More
specifically, the petitioner claims that his right to due
process was violated because the assistant state’s attor-
ney (prosecutor) failed to correct certain testimony of
the then director of the state police forensic laboratory,
Henry C. Lee, concerning a red substance on a towel
found in the victim’s home that, according to Lee, had
tested positive for blood. In fact, no such test had been
conducted, and, moreover, a test of the substance that
was performed for purposes of the present case proved
negative for blood. The habeas court, Sferrazza, J.,2
rejected all of the petitioner’s claims, including his claim
with respect to Lee’s testimony about the towel, and this
appeal followed.3 Because we agree with the petitioner
that, contrary to the conclusion of the habeas court, he
is entitled to a new trial due to the state’s failure to
alert the trial court and the petitioner that Lee’s testi-
mony was incorrect,4 we reverse the judgment of the
habeas court.5
The following facts and procedural history are set
forth in the companion case of Henning v. Commis-
sioner of Correction, 334 Conn. 1, A.3d (2019).
‘‘On November 29, 1985, the then [eighteen] year old
petitioner, together with his [seventeen] year old friend,
[Henning], and [Henning’s] eighteen year old girlfriend,
Tina Yablonski, stole a 1973 brown Buick Regal from
an automobile repair shop in the town of Brookfield.
Later that evening, the three teenagers drove the vehicle
to New Hampshire to visit [the petitioner’s] mother.
While there, the vehicle’s muffler was damaged and
subsequently removed, causing the vehicle to make a
loud noise when it was operated. When the trio returned
to Connecticut on December 1, 1985, they went directly
to the Danbury residence of Douglas Stanley, a local
drug dealer, where they freebased cocaine. In addition
to selling the teenagers drugs, Stanley also acted as a
‘fence’6 for property they periodically stole from local
businesses and homes. After leaving the Stanley resi-
dence, the petitioner and [Henning] dropped Yablonski
off at her parents’ home in the town of New Milford,
arriving there at approximately 11:55 p.m.
‘‘At that time, the victim was living at the home of
his daughter, Diana Columbo, in New Milford, approxi-
mately two miles from the Yablonski residence. Some-
time between 9 and 9:30 p.m. on December 1, 1985,
Columbo left the house to visit a friend. When she
returned home the next morning, reportedly between
4 and 4:30 a.m., she found the victim’s lifeless body in
a narrow hallway adjacent to the kitchen, which led to
the victim’s first floor bedroom. The victim, clad only
in an undershirt and underwear, was lying in a pool of
blood. Blood spatter and smears covered the walls
around him, almost to the ceiling. An autopsy later
revealed that the victim had sustained approximately
twenty-seven stab wounds, a severed jugular vein, and
blunt force trauma to the head. Investigators theorized
that the victim had confronted his assailants in the
hallway and fought for his life. The associate medical
examiner could not determine the exact time of death,
only that the victim died within twenty-four hours of
his body being examined by the medical examiner and
two and one-half to three hours of his last meal.
‘‘The assailants left two distinct sets of bloody foot-
prints near the victim’s body and in other locations
throughout the house. Beneath the victim’s body, the
police found what they believed to be a piece of the
murder weapon—a small metal collar that separates a
knife blade from the handle. The police also discovered
blood on a dresser drawer in the victim’s bedroom.
Inside the drawer were a pair of bloody socks and a
blood stained cigar box, indicating that the assailants
had rummaged through the house after the murder. A
videocassette recorder, jewelry, several rolls of quar-
ters, and some clothing were reported missing.’’ (Foot-
note in original.) Id., 5–6.
On the night of the murder, three of the victim’s neigh-
bors heard what they believed to be a vehicle with a
defective muffler in the vicinity of the victim’s resi-
dence. One of the neighbors, Gary Smith, heard it some-
time between 10 p.m. and midnight, although he thought
it was ‘‘[p]robably closer to midnight.’’ Smith, who
reported that the noise was unusual enough that he
stopped what he was doing to look out the window,
observed the vehicle just as it was passing his house
and noticed that its taillights ‘‘were fairly wide set’’ and
‘‘round in appearance.’’ Smith was shown a photograph
of the stolen Buick at the petitioner’s criminal trial
and testified that he was positive that its taillights were
not the taillights he observed on the night of the mur-
der. Smith further testified that he informed the police
in the days following the murder that he had seen the
taillights of the vehicle but that the officers never
returned to show him a photograph of the stolen Buick’s
taillights for comparison. Upon cross-examination by
the prosecutor, Smith acknowledged that the vehicle
he saw was ‘‘not the noisiest’’ he had ever heard and
that it was ‘‘probably fair to say it was not terribly
noisy . . . .’’
The evidence also established that, sometime
between 12:10 and 12:30 a.m., two other neighbors,
Alice Kennel and Brian Church, also heard a loud vehi-
cle near the victim’s residence. Kennel heard the vehi-
cle, which she described as ‘‘very noisy,’’ stop at the
lot beside her house for approximately twenty minutes
and then drive away. Church similarly reported hearing
the vehicle stop for twenty to thirty minutes and then
drive away. Neither Kennel nor Church actually
observed the vehicle or heard its doors open or shut.
Nor could either witness place the vehicle or its occu-
pants at the victim’s residence.
Because the police suspected that the victim had
interrupted a burglary, they began their investigation
by identifying known burglars in the area. One of the
individuals they interviewed, Peter Barrett, gave them
the names of the petitioner, Henning, Yablonski, and
Stanley. On December 5, 1985, the petitioner went vol-
untarily to the police station to be interviewed about
the murder. By then, the petitioner had heard about the
murder from Stanley, among others, whom the police
had already interviewed. According to Yablonski, who
testified for the state at the petitioner’s criminal trial,
she, the petitioner, and Henning discussed the murder
with several other people at Stanley’s house on the
afternoon of December 2, 1985. Yablonski further testi-
fied that, before speaking to the police, she, the peti-
tioner, and Henning agreed to ‘‘get [their] stories
straight’’ to prevent the police from learning about the
stolen Buick and a number of recent burglaries that the
teens had committed in the area. In furtherance of that
plan, the three agreed to tell the police that they had
hitchhiked to and from New Hampshire on the evening
of November 29, 1985, and that they had hitchhiked
home from the city of Danbury on the night of the
murder, leaving there at approximately 2 a.m. and arriv-
ing in New Milford several hours later. In fact, however,
they actually left Danbury at around 11:20 p.m.7
When the petitioner arrived at the police station on
December 5, 1985, the officers did not question him
about the victim’s murder but, instead, asked him if he
knew anything about a stolen Buick Regal. After ini-
tially denying that he did, the petitioner confessed to
having stolen the Buick, explaining that he did so
because he needed somewhere to live. That afternoon,
he and Henning took the officers to a wooded area near
a reservoir in New Milford where the vehicle had been
hidden. The petitioner and Henning also confessed to
having used the vehicle in the commission of several
burglaries, for which the two men were placed under
arrest.
As we explained in Henning v. Commissioner of
Correction, supra, 334 Conn. 1, ‘‘[w]hen the police
recovered the Buick, it was evident that it had not
been cleaned. According to several police reports and
photographic exhibits, the vehicle was covered in dirt
and filled with sand, sneakers, toiletries, food, blankets,
pillows, various items of clothing, and what the police
believed to be stolen electronics. Despite a thorough
examination of the vehicle and the surrounding area,
which involved draining two reservoirs and the use of
specially trained dogs, the police found no evidence
linking the petitioner or [Henning] to the murder. A
search of the victim’s neighborhood, including the sur-
rounding roadways and fields adjacent to those road-
ways, also produced no incriminating evidence.’’ Id., 9.
On December 9, 1985, Sergeant John Mucherino and
Detective Scott O’Mara, both of the Connecticut state
police, interviewed the petitioner at the Litchfield Cor-
rectional Center. During that interview, the petitioner
again denied any involvement in the victim’s murder.
At the petitioner’s criminal trial, Mucherino testified
that, when he showed the petitioner a photograph of
the victim’s deceased body in a pool of blood, the peti-
tioner’s ‘‘whole body spasmed, and he literally almost
fell out of [his] chair.’’ Afterward, according to both
Mucherino and O’Mara, the petitioner stared at the pho-
tograph for a short time and then, pointing to an area
not shown in the photograph, but in the direction where
the bathroom would have been, said either, ‘‘is that the
bathroom there,’’ or ‘‘[t]hat is the bathroom there,’’8
even though the location of the bathroom, though cor-
rectly identified by the petitioner, was not apparent
from the photograph. According to Mucherino, when
the officers attempted to question the petitioner regard-
ing his apparent knowledge about the interior of the
victim’s home, the petitioner threatened to punch Much-
erino, and the interview was terminated. Mucherino
also testified that, at the time of the interview, he consid-
ered the petitioner’s statement about the bathroom not
only ‘‘highly incriminating’’ but ‘‘devastating’’ evidence
of the petitioner’s guilt.
Immediately following the interview, O’Mara wrote,
reviewed, and signed a police report about the inter-
view, relying in part on contemporaneous notes that
he had taken at the time. Mucherino also reviewed and
signed the report. The report does not state that the
petitioner said either, ‘‘is that the bathroom there’’ or
‘‘[t]hat is the bathroom there,’’ or otherwise indicate
any familiarity with the victim’s home. Nor does it state
that the petitioner pointed at the photograph in the
direction of the bathroom. Instead, the original report
reflects that the petitioner asked the officers if the vic-
tim was lying in a bathroom.
On September 10, 1986, Detective Andrew Ocif, who
by then had replaced Mucherino as the Connecticut
state police officer assigned to the investigation,
arrested the petitioner on an unrelated larceny charge
and transported him to state police barracks for pro-
cessing. While at the barracks, Ocif spoke with Muche-
rino about his December 9, 1985 interview of the peti-
tioner. At the petitioner’s criminal trial, Ocif testified
that, while speaking to Mucherino at the barracks,
Mucherino informed Ocif that, during that December
9, 1985 interview, the petitioner had pointed to the crime
scene photograph of the victim and said, ‘‘there was a
bathroom there.’’ After advising Mucherino that
O’Mara’s written report did not contain this informa-
tion, Ocif requested that Mucherino ask O’Mara to file
a new report that did include that statement by the
petitioner. According to O’Mara, Ocif ‘‘badgered [him]
for a better part of a year to get the [new] report in.’’
On May 5, 1987, O’Mara finally provided the requested
addendum to the original report.
In the fall of 1987, the petitioner was incarcerated at
the John R. Manson Youth Institution (Manson Youth
Institution) in the town of Cheshire. There, while work-
ing in the laundry room, he met an eighteen year old
fellow inmate, Robert Perugini. On December 7, 1987,
Ocif visited Perugini and informed him that he was
investigating a murder that he knew the petitioner had
committed. Perugini, who was then serving a seventeen
year sentence for conspiracy to commit murder, kidnap-
ping in the first degree and robbery in the first degree,
agreed to provide incriminating information about the
petitioner, but only if ‘‘there was something in it for
[him] . . . .’’ Thereafter, the state entered into an
agreement with Perugini pursuant to which it agreed
to notify the Board of Pardons about Perugini’s coop-
eration. Perugini then told Ocif that, in the summer of
1987, the petitioner had told him that he was worried
that his release from the Manson Youth Institution
would get ‘‘held up because of a murder investigation.’’
According to Perugini, the petitioner also told him that
he and Henning had killed an old man with a knife
while robbing a house in New Milford.9
While incarcerated at the Manson Youth Institution,
the petitioner also befriended fellow inmate Todd Coc-
chia. After their release from custody in 1988, the peti-
tioner and Cocchia lived together in Danbury for
approximately two months before moving together to
Norfolk, Virginia. On June 22, 1988, Cocchia was
arrested and subsequently detained in a Norfolk jail.
On July 12, 1988, Ocif visited Cocchia in Virginia where
Cocchia was being held, and Cocchia agreed to provide
incriminating information about the petitioner. In
exchange, the state of Connecticut entered into an
agreement with Cocchia pursuant to which it agreed,
first, not to seek any prison time for Cocchia’s probation
violation and, second, to notify the Office of the State’s
Attorney for the judicial district of Danbury, where Coc-
chia had a pending criminal matter, of his cooperation
in the petitioner’s case. Additionally, because of his
cooperation with Connecticut authorities, prosecutors
in Virginia agreed that Cocchia would receive a sen-
tence of time served on the charges that were pending
against him there.
In 1989, the petitioner was arrested for the victim’s
murder, and a jury trial subsequently ensued. At that
trial, Cocchia testified that the petitioner had told him
while they were en route to Virginia that he needed to
leave Connecticut because he had killed a man during
a burglary.10 On cross-examination, however, Cocchia
acknowledged that, when he was first interviewed by
Ocif, Cocchia answered incorrectly, or could not
answer at all, as to whether the petitioner had commit-
ted the murder alone or with an accomplice, whether
the crime occurred at night or in the daytime, and as
to the name of the town where the crime was commit-
ted. In accordance with his agreement with the state,
Perugini also testified that the petitioner had confessed
to him.
Because there was no forensic evidence connecting
the petitioner to the crime, the state’s case against him
was based almost entirely on Cocchia’s and Perugini’s
testimony, the testimony of Kennel and Church, both
of whom heard a noisy vehicle on the night of the mur-
der, the fact that the petitioner was driving such a vehi-
cle that evening, and Yablonski’s testimony, which the
state relied on to demonstrate consciousness of guilt
predicated on the theory that the petitioner had lied to
the police about the time he returned to New Milford
in an effort to conceal his involvement in the murder.
The state also adduced testimony from Lee, then the
director of the state forensic laboratory, to explain how
it was possible that the petitioner and Henning could
have stabbed the victim so many times without getting
any blood on their clothing and without transferring
any blood to the Buick. Lee explained that, although
the victim fought with his assailants, all of the blood
spatter in the hallway was uninterrupted, meaning that
no individual or object was between the victim and the
walls or floor to interrupt the blood spatter. According
to Lee, this could explain why the assailants were not
covered in the victim’s blood.
During his testimony, Lee relied on certain photo-
graphs of the crime scene. One such photograph was
of two towels hanging next to the sink in an upstairs
bathroom. Although the towels had not been tested
for the presence of blood—a fact that the state now
concedes—Lee testified that they had, in fact, been so
tested, stating that a ‘‘[s]mear of blood was found on
[one of] the towel[s]’’ and that this smear was ‘‘[a]na-
lyzed and shows’’ blood. When Lee stated that he could
not ‘‘recall if it was human blood or animal [blood],’’
the petitioner’s trial counsel, Alfred B. Mencuccini,
objected to the admission of the photograph, arguing
that the state had not established that the substance
on the towel was, in fact, blood. In response, the prose-
cutor argued that ‘‘[Lee could] testify as to what he did
with respect to that towel, what he observed, and what
he had done.’’ Thereafter, outside the presence of the
jury, the following exchange occurred between the
court and the prosecutor:
‘‘The Court: There is no evidence of this towel before
this time.
‘‘[The Prosecutor]: Somebody has to find it. I mean,
[Lee] is the person that noted it.
‘‘The Court: Are you prepared to admit it?
‘‘[The Prosecutor]: I am prepared to—I do not intend
to use the towel, but just have [Lee] testify that he found
the towel and what he observed on it and its location.’’
Following this exchange, the court overruled the
objection of the petitioner’s counsel. Thereafter, in ref-
erence to the same photograph, Lee reiterated that it
‘‘depicts the portion of the [upstairs] bathroom—bath-
room, two towels. This towel had a reddish smear, very
light smear. Subsequently, that smear was identified to
be blood.’’ At no time did the prosecutor correct Lee’s
testimony in this regard.
At the close of the state’s case, the petitioner moved
for a judgment of acquittal, which the trial court denied.
The petitioner then presented the testimony of Smith,
the victim’s neighbor who, in contrast to Church and
Kennel, saw the loud vehicle that he heard on the night
of the murder. When Smith was shown a photograph
of the rear taillights of the stolen Buick, he testified
unequivocally that they were not the taillights he had
observed on the night of the murder. Donna Dacey, a
New Milford emergency services dispatcher who was
on duty on December 2, 1985, also testified for the
petitioner. Dacey explained that she had received a call
at 4:49 or 4:50 a.m. from the victim’s daughter, Columbo,
who stated in a ‘‘[h]ighly excited’’ voice, ‘‘[o]h my God,
he has a knife.’’ Dacey testified that she had no idea
who Columbo was referring to at the time of the call.
In his closing argument, the prosecutor, relying on
Lee’s reconstruction of the crime, stated that the evi-
dence demonstrated that ‘‘there were two perpetrators,
separate and distinct footwear, a struggle ensued, the
struggle started in the [downstairs] bathroom area, pro-
gressed down the hall, [the victim’s] head on at least
three occasions was struck against the molding, the
various doorjambs, blood was spilled, the man was
stabbed.’’ The prosecutor further asserted that the
bloody footwear impressions, blood stained bathroom
towel, and blood in the victim’s bedroom indicated
that ‘‘the burglary continued after the bloodletting.’’
He maintained, moreover, that there was no forensic
evidence connecting the petitioner to the crime only
because, as Lee had explained, all of the blood spatter
was uninterrupted, indicating that the assailants would
not have been covered in it. Another reason why there
was no forensic evidence connecting the petitioner to
the crime, he argued, was because the petitioner had
cleaned up before leaving the scene. ‘‘There was testi-
mony that there was blood by the bathroom sink
upstairs. There was testimony that . . . the [petitioner]
had access to clothing and footwear in that [dresser]
drawer.’’ The prosecutor further maintained that the
petitioner and Henning, ‘‘one, weren’t covered with
blood and, two, had the opportunity between [12] and
[2:30 a.m.] to change their clothes or dispose of their
clothes.’’
Finally, the prosecutor reminded the jury about the
petitioner’s admissions to Cocchia and Perugini, his
apparent familiarity with the interior of the victim’s
home, the loud vehicle that the victim’s neighbors heard
on the night of the murder, the fact that the petitioner
and Henning were driving such a vehicle that evening,
and Yablonski’s testimony that the petitioner and Hen-
ning had lied to the police about what time they left
Danbury that evening so as to place their arrival in New
Milford sometime after the murder was committed.
With respect to Smith, the neighbor who testified that
the loud vehicle he saw was not the stolen Buick Regal,
the prosecutor argued that the vehicle Smith saw could
not have been the one that Kennel and Church heard
because, whereas Kennel and Church described the
vehicle as being extremely noisy, Smith described it as
‘‘not being particularly loud’’ and making a sound like
‘‘thump, thump, as opposed to the sound [a car makes]
. . . with no muffler.’’
In his closing argument to the jury, the petitioner’s
trial counsel argued that the petitioner was the victim
not only of shoddy police work but of police officers
who had predetermined his guilt. Specifically, counsel
asserted that, ‘‘once the police focused on [the peti-
tioner], they developed [a] case of tunnel vision’’ so
extreme that they failed to take the most obvious invest-
igative steps and ‘‘ignored every piece of evidence that
cast doubt [on the petitioner’s guilt] . . . .’’ That evi-
dence, counsel argued, included the information pro-
vided by Smith, the only neighbor who had actually seen
the vehicle that the other neighbors had only heard.
It also included the bizarre behavior of Columbo, the
victim’s daughter, who had told the dispatcher when
she called to report her father’s murder that there was
a man in her home holding a knife. ‘‘That knife had to
be held by the person who [murdered the victim],’’
the petitioner’s counsel argued, ‘‘[b]ut the police did
nothing to clear up that question. Nothing at all.’’
The petitioner’s counsel also maintained that,
because there was no evidence linking the petitioner
to the crime, and because the evidence that did exist
pointed elsewhere, the police were compelled to create
evidence. They did this, he argued, first, by having
O’Mara amend the report of his December 9, 1985
interview with the petitioner to falsely reflect that the
petitioner was familiar with the interior of the victim’s
home and, second, by offering leniency to two jailhouse
informants wholly lacking in credibility. Counsel argued
that O’Mara’s explanation for why he had not included
the petitioner’s allegedly suspicious statement about
the bathroom in the original report—namely, because
he was ‘‘busy’’ and ‘‘had a number of distractions’’ on
the day of the interview—was ‘‘completely unworthy
of belief.’’ Counsel maintained that, if the petitioner
really had incriminated himself in the presence of two
such experienced investigators, ‘‘you know darn well
it would have been in that [original] report.’’ Finally,
counsel reminded the jury of the complete lack of foren-
sic evidence connecting the petitioner to the crime,
arguing that it was inconceivable that the petitioner and
Henning could have committed such a crime without
getting any blood on their clothing or transferring any
trace evidence to the Buick.
The jury deliberated for three days before reaching
a verdict. During those deliberations, the jury asked to
have the testimony of several witnesses read back11 and
to be reinstructed on the meaning of reasonable doubt.
The jury ultimately found the petitioner guilty of felony
murder, and the trial court rendered judgment in accor-
dance with the verdict, sentencing the petitioner to
a term of imprisonment of fifty-five years. This court
subsequently affirmed the petitioner’s conviction on
appeal in State v. Birch, supra, 219 Conn. 751.
In 1997, the petitioner filed an amended petition for
a writ of habeas corpus, alleging that his trial counsel
had rendered ineffective assistance in numerous
respects. The habeas court rejected the petitioner’s
claims, and he appealed to the Appellate Court, which
affirmed the habeas court’s judgment. Birch v. Com-
missioner of Correction, 57 Conn. App. 383, 385, 749
A.2d 648, cert. denied, 253 Conn. 920, 755 A.2d 213(2000).
In 2000 and 2001, respectively, the petitioner filed
two additional habeas petitions in which he alleged that
his first habeas counsel, Avery Chapman, had rendered
ineffective assistance by failing to adequately investi-
gate and present his claims against his trial counsel,
including his claim that trial counsel had rendered inef-
fective assistance by failing (1) to consult and present
the testimony of a forensic footwear impression expert,
(2) to consult and present the testimony of a crime
scene reconstructionist, (3) to consult and present the
testimony of a forensic pathologist, (4) to investigate
and present a third-party culpability defense against
Columbo, 12 and (5) to investigate, cross-examine,
impeach or otherwise challenge the testimony of Coc-
chia, Perugini, and Ocif. As we observed in the compan-
ion case of Henning v. Commissioner of Correction,
supra, 334 Conn. 1, ‘‘[t]he petitioner also claimed actual
innocence on the basis of, among other things, numer-
ous DNA tests conducted over the last decade by the
Connecticut Forensic Science Laboratory, which had
excluded the petitioner, [Henning], and Yablonski as
the source of DNA recovered from the crime scene,
and had revealed the DNA of an unknown female on
four key pieces of evidence with which the assailants
were known or thought to have come in contact. 13
Finally, the petitioner alleged that the state had violated
his right to a fair trial by adducing Lee’s false testimony
that there was blood on the bathroom towel, testimony
that had permitted the prosecutor to argue that the
reason investigators failed to find forensic evidence on
the petitioner’s clothing or in the Buick was because
the petitioner had cleaned himself up before leaving
the victim’s home.
‘‘A consolidated trial on the petitioner’s . . . habeas
petition[s], his petition for a new trial, and the closely
related habeas and new trial petitions of [Henning];
see footnote [5] of this opinion; was conducted over a
period of several weeks in November and December,
2015, during which the petitioner and [Henning] called
a number of expert and lay witnesses whose testimony
cast serious doubt on the state’s theory of the case.14
In support of the petitioner’s claim that the prosecutor’s
failure to correct Lee’s incorrect testimony entitled the
petitioner to a new trial, he argued that, under a line
of cases following the United States Supreme Court’s
seminal opinion in Brady v. Maryland, supra, 373 U.S.
83, including United States v. Bagley, 473 U.S. 667,
679 and n.9, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)
(opinion announcing judgment) (conviction obtained
with state’s knowing use of perjured testimony must
be set aside unless state can establish testimony was
harmless beyond reasonable doubt), State v. Ouellette,
295 Conn. 173, 186, 989 A.2d 1048 (2010) (prosecutor
who knows that testimony of witness is false or substan-
tially misleading must correct that testimony regardless
of lack of intent to lie on part of witness), and State v.
Cohane, 193 Conn. 474, 498, 479 A.2d 763 (prosecutor
has responsibility to correct false testimony when pros-
ecutor knew or should have known that testimony was
false), cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L.
Ed. 2d 331 (1984), the respondent, the Commissioner
of Correction, was required to establish that Lee’s con-
cededly incorrect testimony was immaterial beyond a
reasonable doubt, a standard that, the petitioner further
claimed, the respondent could not meet.
‘‘Following the trial, the habeas court issued a memo-
randum of decision in which it denied or dismissed all of
the petitioner’s claims. With respect to the petitioner’s
claim that the state had deprived him of a fair trial by
failing to correct Lee’s concededly incorrect testi-
mony,15 the court concluded, contrary to the contention
of the petitioner, that the respondent was not required
to demonstrate the immateriality, that is, the harm-
lessness, of that testimony beyond a reasonable doubt.
The habeas court concluded, rather, that that heavy
burden applies only when the state fails to correct per-
jured testimony, and it appeared clear to the habeas
court that, in the absence of any contrary evidence,
‘Lee mistakenly, but honestly, believed he tested [the
bathroom towel] rather than contrived a false story
about having done so.’ In other words, as the habeas
court explained, although Lee had testified incorrectly,
he was ‘not lying under oath.’ The habeas court then
concluded that the applicable standard was ‘the classic
test’ for determining whether the petitioner was entitled
to a new trial as a consequence of the state’s Brady
violation, a standard that, as the habeas court further
explained, is satisfied ‘only if [the petitioner can demon-
strate that] there would be a reasonable probability of
a different result if the [correct] evidence had been
disclosed. . . . A reasonable probability . . . is one
[that] undermines confidence in the outcome of the
trial . . . .’ ’’ (Footnote added; footnotes in original;
footnote omitted.) Henning v. Commissioner of Cor-
rection, supra, 334 Conn. 18–22.
‘‘Applying this standard, which is considerably less
favorable to the petitioner than the standard that the
petitioner himself had advanced, the habeas court con-
cluded that Lee’s incorrect testimony was immaterial
because the state’s case against the petitioner did not
in any way rely on forensic evidence. Specifically, the
court explained: ‘Because no forensic nexus was pro-
duced, the state’s case against [the petitioner] hinged
on the credibility of . . . [numerous] lay witnesses
rather than on . . . Lee’s [testimony]. The impact of
the victim’s neighbors’ testimony about being disturbed
by a very loud vehicle and the false time line fabricated
by [the petitioner] and [Henning] was far more incrimi-
nating and [was] in no way diminished by . . . Lee’s
error as to whether a reddish smear on a towel . . .
was or was not tested for blood.’ The court further
reasoned that Lee’s incorrect testimony also was imma-
terial because the prosecutor could have explained the
absence of any forensic evidence simply by arguing
that the petitioner and [Henning] had disposed of their
bloody clothing and shoes sometime after leaving the
victim’s home and prior to their arrest.
‘‘On appeal, the petitioner claims that the legal stan-
dard for materiality that the habeas court applied, that
is, that the petitioner was required to demonstrate that
the false testimony at issue undermines confidence in
the verdict, was incorrect, and that the proper standard
required the respondent to establish beyond a reason-
able doubt that the testimony was immaterial. The peti-
tioner further contends that, upon application of the
proper standard, it is apparent that Lee’s incorrect testi-
mony was material and, therefore, that the prosecutor’s
failure to correct that testimony dictated that the peti-
tioner be awarded a new trial because the state’s case
was weak and Lee’s testimony offered jurors an expla-
nation as to why no incriminating blood evidence was
found despite the victim’s massive blood loss and the
fact that the victim was killed at such close range. The
respondent, for his part, maintains that (1) the habeas
court properly applied the less stringent materiality
standard of Brady, (2) Lee’s incorrect testimony was
not adduced for the purpose of providing an explanation
for why no blood evidence was found linking the peti-
tioner to the victim’s murder, and the prosecutor did
not rely on that testimony to that end, (3) the state’s
case was so strong that there is no reasonable probabil-
ity that the jury verdict would have been any different
without it, and (4) even if we were to apply the
demanding materiality standard pursuant to which the
respondent must establish beyond a reasonable doubt
that Lee’s incorrect testimony had no bearing on the
verdict, the state’s evidence was so strong that that
more exacting standard has been met.’’ Id., 22–23.
In Henning, we rejected the respondent’s contention
that the habeas court properly applied Brady’s less
stringent materiality standard in determining whether
Henning was prejudiced by the state’s failure to correct
Lee’s testimony. See id., 23. Our analysis in Henning
is fully applicable to the present case: ‘‘When . . . a
prosecutor obtains a conviction with evidence that he
or she knows or should know to be false, the materiality
standard is significantly more favorable to the defen-
dant. [A] conviction obtained by the knowing use of
perjured testimony is fundamentally unfair . . . and
must be set aside if there is any reasonable likelihood
that the false testimony could have affected the judg-
ment of the jury. United States v. Agurs, 427 U.S. 97,
103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976) . . . . This
standard . . . applies whether the state solicited the
false testimony or allowed it to go uncorrected . . .
and is not substantively different from the test that
permits the state to avoid having a conviction set aside,
notwithstanding a violation of constitutional magni-
tude, upon a showing that the violation was harmless
beyond a reasonable doubt.’’ (Internal quotation marks
omitted.) Henning v. Commissioner of Correction,
supra, 334 Conn. 24–25.
Accordingly, ‘‘it is readily apparent that the habeas
court incorrectly concluded that the respondent was
not required to establish beyond a reasonable doubt
that the prosecutor’s failure to correct Lee’s incorrect
testimony was immaterial. Contrary to the respondent’s
assertion, controlling case law makes it abundantly
clear that that strict materiality standard applies when-
ever the state fails to correct testimony that it knew
or, as in the present case, should have known to be
false. As we explained in State v. Cohane, supra, 193
Conn. 474, a case directly on point, [t]he references in
Agurs to perjured testimony must be taken to include
testimony [that the prosecutor knew or should have
known] to be false or misleading even if the witness
may not have such an awareness. . . . [T]he [prosecu-
tor’s] actions in failing to disclose [false or misleading
testimony] corrupt[s] the trial process and denie[s] the
defendant his constitutional right to a fair trial just as
surely as if the state’s case included perjured testi-
mony.’’ 16 (Emphasis in original; internal quotation
marks omitted.) Henning v. Commissioner of Correc-
tion, supra, 334 Conn. 26–27; see also Mesarosh v.
United States, 352 U.S. 1, 9, 77 S. Ct. 1, 1 L. Ed. 2d 1(1956) (‘‘The question of whether [the witness’]
untruthfulness . . . constituted perjury or was caused
by a psychiatric condition can make no material differ-
ence . . . . Whichever explanation might be found to
be correct in this regard, [the witness’] credibility has
been wholly discredited . . . . The dignity of the . . .
[g]overnment will not permit the conviction of any per-
son on tainted testimony.’’).
‘‘Furthermore, it is inarguable that Lee, as the repre-
sentative of the state police forensic laboratory, should
have known that the bathroom towel had not been
tested for blood. He, like any such witness, had an
affirmative obligation to review any relevant test
reports before testifying so as to reasonably ensure that
his testimony would accurately reflect the findings of
those tests. To conclude otherwise would permit the
state to gain a conviction on the basis of false or mis-
leading testimony even though the error readily could
have been avoided if the witness merely had exercised
due diligence; such a result is clearly incompatible with
the principles enunciated in Brady and its progeny.
Lee’s incorrect testimony also must be imputed to the
prosecutor who, irrespective of whether he elicited that
testimony in good faith, is deemed to be aware of any
and all material evidence in the possession of any
investigating agency, including, of course, the state
police forensic laboratory. See, e.g., Kyles v. Whitley,
[514 U.S. 419, 437–38, 115 S. Ct. 1555, 131 L. Ed. 2d 490(1995)] ([T]he . . . prosecutor has a duty to learn of
any favorable evidence known to the others acting on
the government’s behalf in the case, including the
police. But whether the prosecutor succeeds or fails in
meeting this obligation [whether, that is, a failure to
disclose is in good faith or bad faith] . . . the prosecu-
tion’s responsibility for failing to disclose known, favor-
able evidence rising to a material level of importance
is inescapable. . . .). Notably, the respondent does not
claim otherwise. Thus, the only question remaining is
whether the respondent has met his burden of establish-
ing that the prosecutor’s failure to correct Lee’s testi-
mony concerning the bathroom towel was harmless
beyond a reasonable doubt.’’ (Internal quotation marks
omitted.) Henning v. Commissioner of Correction,
supra, 334 Conn. 27–28.
As we previously indicated, the respondent argues
that the state’s failure to correct Lee’s incorrect testi-
mony was immaterial, or harmless, because the prose-
cutor did not offer that testimony to persuade the jury
‘‘that the towel was bloodied by the petitioner’s efforts
to wash off his crime,’’ only ‘‘to establish the duration
of the predicate burglary and the fact that it continued
after the bloodletting.’’ (Internal quotation marks omit-
ted.) We disagree that Lee’s testimony about the towel
was offered solely for the purpose of establishing the
existence and timeline of the burglary. In closing argu-
ment, the prosecutor expressly stated, ‘‘I suspect . . .
that the [petitioner] will argue that there [are] no foren-
sics putting [the petitioner] in the [victim’s] house.’’
To rebut this anticipated argument by the defense, the
prosecutor reminded the jury of Lee’s testimony that
‘‘the spatter patterns were uninterrupted’’ and ‘‘that
there was blood by the bathroom sink upstairs.’’
(Emphasis added.) He also argued that ‘‘[t]here was
testimony that . . . the [petitioner] had access to
clothing and footwear in [the victim’s dresser] drawer.’’
Contrary to the respondent’s assertions, the only possi-
ble inference that the prosecutor could have intended
the jury to draw by virtue of his reference to the ‘‘blood
by the bathroom sink upstairs’’ was that the petitioner
used the second floor bathroom to clean up before
leaving the victim’s home. As we previously indicated,
Lee testified that he had found blood on a towel hanging
beside the second floor bathroom sink. Because that
blood was the only blood Lee claimed to have found
in the second floor bathroom, the prosecutor’s refer-
ence to ‘‘blood by the bathroom sink upstairs’’—a refer-
ence made by the prosecutor in the context of
explaining the absence of forensic evidence ‘‘putting
[the petitioner] in the [victim’s] house’’—was quite
clearly a reference to Lee’s testimony about the blood
on the towel. There simply is no other evidentiary basis
for this portion of the prosecutor’s argument to the jury.
Nor are we persuaded by the respondent’s contention
that the state’s case against the petitioner was suffi-
ciently powerful as to take this case out of the purview
of cases in which, in light of the state’s use of testimony
that it knew or should have known was false, reversal
is ‘‘virtually automatic . . . .’’ Adams v. Commissioner
of Correction, supra, 309 Conn. 359, 372, 71 A.3d 512(2013). In Henning, we concluded that, although the
evidence was sufficient to sustain a conviction, it was
far from strong. See Henning v. Commissioner of Cor-
rection, supra, 334 Conn. 29. In many ways, the state’s
case against the petitioner was weaker than it was in
Henning, largely because the state’s case against the
petitioner turned primarily on the credibility of two
jailhouse informants, both of whom were awarded valu-
able consideration in exchange for their testimony. Not
surprisingly, the dubious trustworthiness of such jail-
house informant testimony has widely been acknowl-
edged. See, e.g., Kansas v. Ventris, 556 U.S. 586, 597
n.2, 129 S. Ct. 1841, 173 L. Ed. 2d 801 (2009) (‘‘[t]he
likelihood that evidence gathered by self-interested jail-
house informants may be false cannot be ignored’’);
State v. Arroyo, 292 Conn. 558, 567, 973 A.2d 1254 (2009)
(‘‘[i]n recent years, there have been a number of high
profile cases involving wrongful convictions based on
the false testimony of jailhouse informants’’), cert.
denied, 559 U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086(2010); see also State v. Patterson, 276 Conn. 452, 469,
886 A.2d 777 (2005) (‘‘an informant who has been prom-
ised a benefit by the state in return for his or her testi-
mony has a powerful incentive, fueled by self-interest,
to implicate falsely the accused’’).
Indeed, this court previously has recognized that,
for purposes of applying Brady’s materiality prong, a
murder case predicated on a defendant’s alleged or
actual admissions, in which there are no eyewitnesses
and no forensic or other physical evidence connecting
the defendant to the crime, is not a particularly strong
one, even when the admissions were made to persons
whose credibility is not so inherently suspect as that
of a jailhouse informant. See Skakel v. Commissioner
of Correction, 329 Conn. 1, 85–86, 188 A.3d 1 (2018),
cert. denied, U.S. , 139 S. Ct. 788, 202 L. Ed. 2d
569 (2019); Lapointe v. Commissioner of Correction,
316 Conn. 225, 323–25, 112 A.3d 1 (2015). It is precisely
because of the intrinsic unreliability of jailhouse infor-
mant testimony that we have required our trial courts
‘‘[to] give a special credibility instruction to the jury
whenever such testimony is given, regardless of
whether the informant has received an express promise
of a benefit. As we indicated in [State v.] Patterson,
[supra, 276 Conn. 465, 470], the trial court should
instruct the jury that the informant’s must be reviewed
with particular scrutiny and weighed . . . with greater
care than the testimony of an ordinary witness.’’ (Inter-
nal quotation marks omitted.) State v. Arroyo, supra,292 Conn. 569–70.
Apart from the petitioner’s alleged admissions to Coc-
chia and Perugini, the only other evidence connecting
him to the victim’s murder was the testimony of O’Mara
and Mucherino that the petitioner, when shown a crime
scene photograph of the victim’s body, pointed in the
direction of the bathroom and said either, ‘‘is that the
bathroom there’’ or ‘‘[t]hat is the bathroom there,’’ even
though no bathroom was visible in the photograph. The
state also relied on the testimony of Church and Kennel
regarding the noisy vehicle that they heard on the night
of the murder and Yablonski’s testimony that the peti-
tioner and Henning had lied about what time they
returned to New Milford that evening. As we indicated,
however, the state’s theory regarding the noisy vehicle
was substantially undercut by the testimony of Smith,
who stated unequivocally that the noisy vehicle he saw
on the night of the murder was not the stolen Buick.
As for O’Mara’s and Mucherino’s testimony, even if the
jury were inclined to believe their testimony, it was not
particularly incriminating as to the petitioner. The fact
is, however, that the jury had good reason to question
the reliability of their testimony because it strains cre-
dulity to think that two highly experienced detectives,
when memorializing an interview they had just con-
ducted with the prime suspect in a murder investigation,
would fail to include in that report that the suspect had
disclosed what one of the detectives considered to be
‘‘devastating’’ evidence of his involvement in the
murder.
The respondent next argues that the prosecutor’s
failure to correct Lee’s incorrect testimony was harm-
less beyond a reasonable doubt because there is little
or no chance that the jury credited the state’s theory
that the assailants used the bathroom to wash up before
leaving. Specifically, the respondent argues that, ‘‘[i]f
the jury [had been] in search of an explanation as to
how such a bloody crime scene could have been wiped
clean from the men and their belongings before they
could transfer any of it to the Buick, it is difficult to
imagine that the jury would have been satisfied by the
suggestion that the bloody scene distilled to a single
towel smear . . . . The more obvious conclusion is
that the jury found . . . that the perpetrators were not
doused in blood because, as . . . Lee testified, the
blood spatter patterns were not interrupted, and, there-
fore, [the blood] did not spatter . . . on those standing
nearby . . . .’’ (Emphasis in original.) As we stated in
Henning v. Commissioner of Correction, supra, 334
Conn. 1, in rejecting this very argument, ‘‘[t]hat conclu-
sion is far from obvious and by no means compelled
from the facts. Indeed, we cannot say with any confi-
dence that the jury found either theory more plausible
than the other as a basis for explaining the total absence
of forensic evidence. The more probable scenario,
rather, is that the jury, like the state, relied on both
theories. That is, the jury very reasonably could have
found, on the basis of the blood spatter testimony, that
the killers may have had less blood on them than the
evidence otherwise would seem to indicate, and, on the
basis of the towel testimony, whatever blood they did
have on them, they simply washed off.’’ (Emphasis in
original.) Id., 31.
‘‘Finally, because Lee’s testimony provided the sole
evidentiary basis for both of the state’s theories regard-
ing the dearth of forensic evidence, the prosecutor’s
failure to correct Lee’s testimony about the bathroom
towel was material for the additional reason that it
deprived the petitioner of the opportunity to impeach
Lee’s blood spatter testimony. See, e.g., Merrill v. War-
den, 177 Conn. 427, 431, 418 A.2d 74 (1979) (The fact
that [the witness] was a key witness made his credibility
crucial to the state’s case. In assessing his credibility
the jury [was] entitled to know that he was testifying
under false colors. Such knowledge could have affected
the result.); State v. Grasso, 172 Conn. 298, 302, 374
A.2d 239 (1977) ([w]hen a conviction depends entirely
[on] the testimony of certain witnesses . . . informa-
tion affecting their credibility is material in the constitu-
tional sense since if they are not believed a reasonable
doubt of guilt would be created). To be sure, the prose-
cutor’s greatest challenge at trial was to explain how
it was possible for two teenagers to have stabbed the
victim twenty-seven times in the confines of a narrow
hallway, severed his jugular vein, struck him over the
head several times, tracked blood all over the house,
and yet somehow managed not to leave any trace evi-
dence in their getaway vehicle—which, as we pre-
viously discussed, did not show any signs of having
been cleaned when the police recovered it a few days
later—or elsewhere. To answer this question, the state
proffered two theories, one of which the respondent
now concedes was predicated on Lee’s incorrect tes-
timony. If the jury had known that Lee’s testimony
about finding blood on the bathroom towel was incor-
rect, that knowledge might well have caused it to ques-
tion the reliability of his other testimony. If that had
occurred, the state’s entire case against the petitioner
could very well have collapsed.’’ (Internal quotation
marks omitted.) Henning v. Commissioner of Correc-
tion, supra, 334 Conn. 32.
In light of the foregoing, we conclude that the state’s
failure to correct Lee’s testimony that there was blood
on the bathroom towel deprived the petitioner of a fair
trial. Because the habeas court incorrectly reached a
contrary conclusion, that court’s judgment must be
reversed, and the petitioner must be afforded a new
trial.
The judgment is reversed and the case is remanded
with direction to render judgment granting the habeas
petition and ordering a new trial.
In this opinion the other justices concurred.
* June 14, 2019, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Henning was tried separately and convicted of felony murder, as well.
This court also rejected Henning’s appeal. See State v. Henning, 220 Conn.
417, 431, 599 A.2d 1065 (1991).
2
Unless otherwise noted, all references hereinafter to the habeas court
are to Sferrazza, J., and all references to the habeas petition are to the
petition in the present case.
3
As we explain hereinafter in greater detail, Henning also sought posttrial
relief that, in many respects, mirrors the relief that the petitioner sought.
4
As we discuss more fully hereinafter, the respondent, the Commissioner
of Correction, concedes that the testimony of Lee at issue in this case was
false or misleading—terms commonly used in cases, like the present one,
that involve due process claims predicated on the state’s improper use of
testimony in a criminal trial—in the sense that it was factually wrong or
incorrect. In its memorandum of decision, however, the habeas court found
that Lee’s testimony was mistaken and not intentionally false—a conclusion
that the petitioner has not challenged—and we have no reason to second-
guess that determination. Nevertheless, for the reasons set forth hereinafter,
we conclude that, in the circumstances presented, the petitioner is entitled
to a new trial because, under Brady and its progeny, it makes no difference
whether Lee’s testimony was intentionally false or merely mistaken. In either
case, if, as we conclude, the state knew or should have known that Lee’s
testimony was incorrect, the petitioner is entitled to a new trial unless the
respondent can demonstrate that the incorrect testimony was harmless
beyond a reasonable doubt, a burden that the respondent cannot meet.
Finally, although Lee’s testimony was false or misleading insofar as it was
contrary to the facts, we characterize it as incorrect rather than false or
misleading because the latter terms might be understood as connoting a
dishonest or untruthful intent, an implication that would be incompatible
with the habeas court’s determination.
5
The petitioner also filed a petition for a new trial pursuant to General
Statutes § 52-270 (a) on the basis of newly discovered evidence. Prior to
trial, the habeas court consolidated that petition with the present habeas
petition and with the closely related habeas and new trial petitions of Hen-
ning. The habeas court rejected all of the claims in the four petitions, and
the petitioner and Henning separately appealed to the Appellate Court from
the judgments denying their habeas and new trial petitions. We thereafter
transferred all four appeals to this court pursuant to General Statutes § 51-
199 (c) and Practice Book § 65-2. In a separate opinion also issued today,
we have dismissed as moot the petitioner’s appeal from the habeas court’s
denial of his petition for a new trial in view of our determination that the
petitioner must be afforded a new trial on the basis of the state’s failure to
correct Lee’s incorrect testimony. See Birch v. State, 334 Conn. 69, 72,
A.3d (2019). We also have reversed the judgment of the habeas court
in Henning’s habeas case, as well; see Henning v. Commissioner of Correc-
tion, 334 Conn. 1, 33, A.3d (2019); see also Henning v. State, 334
Conn. 33, 36, A.3d (2019) (dismissing as moot Henning’s appeal
from denial of petition for new trial), a decision that, like our decision in
the present case, is predicated on the state’s use of Lee’s incorrect testimony.
We note, moreover, that, at various points throughout this opinion, we
briefly discuss a number of the other claims raised by the petitioner in his
habeas petition and in his petition for a new trial. We do not decide the
merits of any of those claims, however, because of our conclusion that the
petitioner is entitled to a new trial due to Lee’s incorrect testimony. Insofar
as we do discuss them, we do so only to place the present claim in the
broader context of the several significant issues that the petitioner also
raises as a basis for his entitlement to a new trial. Finally, many of the facts
and much of the substantive analysis in this case is taken directly from our
decision in Henning v. Commissioner of Correction, supra, 334 Conn. 1,
because that opinion addresses the identical claim concerning the state’s
failure to correct Lee’s incorrect testimony. To the extent that the evidence
adduced at the petitioner’s underlying criminal trial or in connection with
the present habeas case differs in any relevant respect from that presented
at Henning’s criminal or habeas trial, all such differences are duly noted.
6
‘‘A ‘fence’ is a person who receives and sells stolen goods.’’ Henning v.
Commissioner of Correction, supra, 334 Conn. 5 n.5.
7
We note that, at Henning’s criminal trial, Yablonski testified that she,
Henning and the petitioner agreed to tell the police that they had left Danbury
at 12:30 or 1 a.m., not at 2 a.m., as she testified at the petitioner’s trial.
Henning v. Commissioner of Correction, supra, 334 Conn. 8.
8
O’Mara and Mucherino provided somewhat conflicting testimony about
what the petitioner said when he was shown the crime scene photograph
of the victim’s body. O’Mara testified that, pointing in the direction of where
the bathroom would be, the petitioner asked, ‘‘is that the bathroom there?’’
Mucherino testified that the petitioner stated, ‘‘[t]hat is the bathroom there.’’
9
We note that, in his habeas petition, the petitioner alleged that trial
counsel in his criminal case, Alfred B. Mencuccini, had rendered ineffective
assistance by failing to adequately impeach Perugini at trial. In support of
this contention, the petitioner claimed that competent counsel would have
interviewed Perugini’s known associates, including Stephen Alan McDonald
and Daniel Edwards, and learned that Perugini had provided false testimony
against the petitioner in exchange for the state’s promise that he not be
transferred to a prison for adult offenders. In support of this contention,
McDonald testified at the petitioner’s habeas trial that, when he was incarcer-
ated with Perugini at the Manson Youth Institution, he asked Perugini why
he had lied to the police about the petitioner’s having confessed to him.
Perugini, who was about to be transferred from that institution because he
was turning nineteen, responded, ‘‘he did what he had to do because he
didn’t want to go to [the] Somers [prison].’’ Similarly, Edwards, who was
Perugini’s best friend at the time, testified that, in early 1989, he received
a letter from Perugini in which Perugini stated that he had arranged a deal
with the state whereby he would testify against the petitioner, albeit falsely,
in exchange for a reduced sentence. According to Edwards, Perugini ‘‘feared
Somers’’ because of its reputation for sexual violence against inmates.
10
Cocchia recanted his testimony at the petitioner’s habeas trial, stating
that, in fact, the petitioner had never told him that he was in any way
involved in the victim’s murder. Cocchia further testified that, when Ocif
came to visit him in Virginia in 1988, he left ‘‘the [police] file right there in
front [of him], opened,’’ and that everything he subsequently told the police
about the murder he learned from ‘‘[r]eading [the open police file] . . .
[and] listening to what they [the police] were saying [about it].’’
11
The jury asked to have the testimony of O’Mara, Mucherino, Yablonski,
Cocchia and Perugini read back.
12
As we explained in Henning v. Commissioner of Correction, supra,
334 Conn. 1, in which we have addressed an identical claim involving the
same relevant facts, ‘‘at the habeas trial, the petitioner sought to demonstrate
that the crime scene had been staged to resemble a burglary and that his
trial counsel had rendered ineffective assistance in failing to raise a third-
party culpability defense against Columbo and Richard Burkhart, Columbo’s
lover and employer at the time of the murder, and for whom the victim also
had worked and who allegedly owed the victim money. In support of this
contention, the petitioner adduced evidence that, when Columbo was ini-
tially interviewed by the police on the night of the murder, she claimed to
have been home all evening and to have heard the victim coughing, although
she did not check on him. She then told the police that she actually had
gone out that evening and returned home between 2:30 and 3 a.m. Later,
she told the police that she had lied in her earlier statements to prevent
Burkhart from finding out that she had been with another man that evening.
Columbo also told the police that she had left the house at around 9:30 p.m.
and returned sometime between 4 and 4:30 a.m. Police records indicate,
however, that Columbo did not call for help until 4:50 a.m. and that, when
she did, according to the emergency dispatcher, she screamed, ‘[o]h God,
he’s got a knife in his hand.’ There was also evidence that Columbo exhibited
highly unusual behavior immediately after the murder. For example, one of
the first responders, Anita Bagot, testified that Columbo barricaded herself
in the dining room shortly after the police arrived and, later, asked Bagot,
‘[w]hy would he do it . . . [w]hy would he do it,’ clearly suggesting that
she knew the identity of the assailant. The petitioner also presented evidence
at the habeas trial that there was animus between Burkhart and the victim,
despite Burkhart’s statement to the police that he and the victim ‘had an
excellent relationship’ and that he ‘loved’ the victim. One witness who had
worked for Burkhart, Cynthia M. Russo-Donaghy, testified that Burkhart
had a scratch on his face on the morning after the murder and that the
victim had told her that Burkhart was a ‘son of a bitch’ and that he ‘hate[d]’
him. The petitioner also established that the state police received an anony-
mous call on May 22, 1986, from an unknown male who said that Burkhart
had murdered the victim.
‘‘We note, finally, that the petitioner, in support of his petition for a new
trial, presented the deposition testimony of John Andrews, who stated that,
after the murder, he and Columbo became romantically involved and, for
a time, lived together. Andrews stated that, during an argument one night,
Columbo charged at him with a knife and told him that ‘she would kill [him]
like she killed her father.’ According to Andrews, late at night sometime
thereafter, while he was in the kitchen and Columbo was upstairs, he was
attacked and severely injured by an unknown assailant who beat him over
the head and repeatedly stabbed him. Andrews further explained that, during
the assault, he heard a male voice telling him to ‘leave and don’t come back.’
Following this incident, Andrews decided to move out and, while packing
his belongings, found a six to seven inch knife blade without a handle
protruding from a basement wall. Andrews never told anyone about Col-
umbo’s threat or his discovery of the knife blade until years later, when he
was contacted by the Connecticut Innocence Project. In its memorandum
of decision, the habeas court observed that ‘Andrews [had] no obvious
reason to fabricate [his] recollections.’ ’’ Id., 16–17 n.11.
13
‘‘In this regard, Christine Mary Roy, a forensic science examiner with
the state’s Division of Scientific Services, testified at the petitioner’s habeas
trial that, in addition to the victim’s DNA, the DNA profile of an unknown
female was found on the bloody cigar box, the inside of the front waistband
of the victim’s underwear, the metal ring that was found under the victim
that was thought to be part of the murder weapon, and a floor board that
the police had removed, which contained two sets of bloody footprints.
Lucinda Lopes-Phelan, another forensic science examiner with the Division
of Scientific Services, testified that she had tested the victim’s underwear
on the theory that one of the assailants may have grabbed him there during
the struggle that led to the victim’s murder.’’ Henning v. Commissioner of
Correction, supra, 334 Conn. 18 n.13.
14
‘‘For example, in support of his claim that trial counsel was ineffective
insofar as counsel failed to consult a forensic footwear impression expert,
the petitioner presented the testimony of William Bodziak, a former agent
with the Federal Bureau of Investigation (FBI) and a prominent footwear
impression expert. Bodziak testified that, using techniques available at the
time of the petitioner’s criminal trial, he was able to determine that one of
the two sets of bloody footprints from the crime scene could not possibly
have been left by either the petitioner or [Henning] because it was made
by a size 9 or smaller shoe, perhaps even as small as a size 7 and 1/2, and
the petitioner and [Henning] wore shoes sized . . . 10 and 1/2 to 11 [and
11 and 1/2], respectively. According to Bodziak, the size difference between
the bloody footprints and the petitioner’s and [Henning’s] shoes at the time
of the murder was ‘enormous . . . .’ With respect to Bodziak’s expertise,
the habeas court made the following findings: ‘Obviously, expert footwear
analysts were available at the time of the petitioner’s [criminal] trial in 1989.
From 1973 to 1997 . . . Bodziak was a special agent for the FBI who special-
ized [in], among other [things] . . . footwear imprint analysis. He testified
at the [petitioner’s] habeas trial, and he is a well trained, extensively experi-
enced, and highly qualified expert in this field of criminology. He has testified
in nearly every state and federal trial court in the United States, including
at the trials of [Orenthal James] Simpson and [Timothy McVeigh] the Okla-
homa City bomber.’ ’’ Henning v. Commissioner of Correction, supra, 334
Conn. 19 n.14.
We note that, despite Bodziak’s highly exculpatory testimony that neither
the petitioner nor Henning was the source of one of the two footwear
impressions that the state argued was left by one of the assailants, the habeas
court rejected the petitioner’s claim that his trial counsel was constitutionally
ineffective for failing to consult a footwear expert. In doing so, the habeas
court credited the state’s contention that the petitioner’s trial counsel reason-
ably ‘‘feared that, if he hired [a footwear impression expert], he had little
to gain and everything to lose if that independent examination revealed that
the bloody imprints came from a boot [that] fell within the size range that
encompassed the petitioner’s size’’ because, the habeas court explained, the
relevant rule of practice at that time, Practice Book (1978–97) § 769 (2),
‘‘allowed the prosecutor to require a criminal defendant to disclose the
existence of and permit inspection of any document within the control of
the defense [that] is a report or statement as to a physical . . . [examination]
or scientific test or experiment made in connection with the particular case
prepared by, and relating to the anticipated testimony of, a person whom the
defendant intends to call as a witness.’’ (Internal quotation marks omitted.)
Clearly, however, any concern that the petitioner’s trial counsel might have
had about consulting an expert was unfounded because § 769 (2), by its
plain and unambiguous terms, required a defendant to turn over any such
report or statement only if that defendant intended to call the expert as a
witness. Thus, if counsel had retained an expert whose opinion would not
have been helpful to the petitioner, counsel would have had no reason to
call that expert as a witness or even to have had the expert produce a
statement or report documenting his or her opinion. The habeas court
was incorrect, therefore, in concluding that the petitioner’s trial counsel
reasonably decided not to consult a footwear impression expert because
of the then applicable reciprocal discovery provisions of the rules of practice.
15
‘‘In regard to that testimony, the habeas court found in relevant part:
‘As to . . . Lee’s testimony, he erroneously testified that he tested a reddish
substance on a towel seized from an upstairs bathroom, which test indicated
a positive result for blood. That stain was never tested by . . . Lee or
anyone at the crime laboratory before the petitioner’s criminal trial. In
conjunction with the present habeas action, the towel was tested, and the
reddish smear proved negative for blood.’ The respondent, the Commissioner
of Correction, has never contested the results of that test.’’ Henning v.
Commissioner of Correction, supra, 334 Conn. 21 n.16.
16
‘‘For reasons unknown to us, the respondent, in his brief, does not even
cite to Cohane, let alone seek to distinguish that case or to have this court
overrule it. The habeas court similarly failed to cite to Cohane.’’ Henning
v. Commissioner of Correction, supra, 334 Conn. 27 n.17.