Gaskin v. Commissioner of Correction

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CHRISTOPHER GASKIN v. COMMISSIONER
OF CORRECTION
(AC 39462)
Sheldon, Bright and Flynn, Js.
Syllabus
The petitioner, who had been convicted of murder, conspiracy to commit
murder and tampering with a witness in connection with the shooting
death of the victim, sought a writ of habeas corpus, claiming that his
rights to due process were violated when the prosecutor at his criminal
trial elicited testimony from a cooperating witness, E, which the prosecu-
tor knew to be false, failed to correct that testimony before the jury
and then relied on it during closing argument to the jury. E, who also
had been charged with the victim’s murder, was the only witness who
placed the petitioner at the crime scene with the likely murder weapon
in his hand. During colloquy with the court and the petitioner’s trial
counsel prior to the start of trial, the prosecutor denied having promised
anything to E in exchange for his testimony and stated that E had
been told that his cooperation and truthfulness in testifying against the
petitioner would be brought to the attention of the sentencing court in
E’s case. E thereafter testified that he had never been told that if he
testified truthfully, the state would bring his cooperation to the attention
of the court in his own case, and he denied that any promises had been
made to him in exchange for his testimony. The petitioner filed a direct
appeal from his conviction, but the trial court granted his appointed
appellate counsel permission, under Anders v. California (386 U.S. 738),
to withdraw from representation after she reviewed the trial record and
determined that there were no nonfrivolous issues to be raised on appeal.
The petitioner thereafter withdrew his direct appeal. After E testified
at the petitioner’s trial and pleaded guilty in his own case, the prosecutor
in E’s case, who was the same prosecutor as in the petitioner’s criminal
trial, made the sentencing judge in E’s case aware of E’s involvement
in the petitioner’s criminal trial. E’s sentence was thereafter reduced
twice. It was not until the prosecutor testified in the petitioner’s habeas
trial that it became clear to the petitioner that E had testified falsely
about whether the prosecutor had promised him anything in exchange
for his testimony. The habeas court concluded that the petitioner had
procedurally defaulted his due process claim because he failed to raise
it in his direct appeal, and failed to establish cause and prejudice for
his default. The habeas court further determined that although E testified
falsely, there had been no need for the prosecutor to correct E’s testi-
mony because the prosecutor previously had disclosed to the petitioner’s
trial counsel the promise to E. The habeas court rendered judgment
denying the petition for a writ of habeas corpus and, thereafter, denied
the petition for certification to appeal, and the petitioner appealed to
this court. Held:
1. The habeas court abused its discretion in denying the petition for certifica-
tion to appeal from the judgment denying the habeas petition; the issues
of whether the petitioner had procedurally defaulted his due process
claim and whether his due process rights were violated were debatable
among jurists of reason, they could be resolved in a different manner
and they were adequate to deserve encouragement to proceed further,
as the appellate courts of this state have not yet addressed the issues
of whether a petitioner procedurally defaults a claim when his appellate
counsel withdraws from representation, with permission of the court,
after having reviewed only the record and without having investigated
new information outside the record that could develop a due process
claim, or what constitutes cause and prejudice should such a default
exist.
2. The petitioner did not procedurally default his due process claim:
a. The criminal trial record was inadequate for the petitioner to have
raised his due process claim on direct appeal: the prosecutor’s state-
ments regarding any promise to E were ambiguous and contradictory,
the petitioner’s trial counsel cross-examined E, to no avail, regarding
the prosecutor’s promise to him, information regarding E’s sentencing
became available only after the petitioner’s criminal trial, and the peti-
tioner’s appellate counsel, who had been granted permission to withdraw
after she determined that there were no nonfrivolous claims to raise
on appeal, had no duty to investigate or to augment the record; moreover,
the requirements of the cause and prejudice doctrine parallel certain of
the requirements to establish that material evidence has been suppressed
under Brady v. Maryland (373 U.S. 73), and although this court was
not at liberty to overrule precedent from our Supreme Court and this
court applying the procedural default doctrine to due process claims
under Brady and its analogues, prudential considerations underlying the
procedural default doctrine warranted looking past procedural default
to address the merits of the petitioner’s due process claim.
b. Even if the petitioner procedurally defaulted his claim, he established
cause for any procedural default: because the factual basis underlying
the petitioner’s due process claim was not fully available until after his
appellate counsel, who had no duty to investigate it under Anders,
moved to withdraw, such information was not reasonably available and
it would be contrary to Anders to impose on appellate counsel the
additional duty of investigating whether there are possible claims outside
the record, as Anders requires only that appellate counsel look to the
record to decide if there are appealable issues, it would defy reason to
expect incarcerated individuals, such as the petitioner, to be able to
develop new claims from the confines of prison after appellate counsel
has been permitted to withdraw from representation, and the harm to
the petitioner here stemmed from E’s truculence and the petitioner’s
inability to respond effectively in light of the prosecutor’s silence in
that it was not until the prosecutor testified at the habeas trial that
there was a complete factual record to prove the petitioner’s claim;
moreover, it was error for the habeas court to suggest as support for
a lack of cause that the petitioner could have petitioned for a new trial,
as a motion or petition for a new trial is not part of a direct appeal,
augmentation of the record is not necessary for a direct appeal, and
the return of the respondent Commissioner of Correction asserted only
that the petitioner had procedurally defaulted because he did not raise
his due process claim on direct appeal.
c. The petitioner established the requisite prejudice to overcome any
procedural default; E’s testimony was material to the petitioner’s convic-
tion of murder and conspiracy to commit murder, the petitioner’s trial
counsel was unable to get E, who repeatedly stonewalled counsel when
questioned about his motives for testifying, to admit to the jury that E
had some promise from the state regarding his cooperation, the trial
court’s jury instructions regarding witnesses’ cooperation could not
obviate the prejudice emanating from E’s false testimony, the prosecutor
sharpened that prejudice by suggesting in closing argument to the jury
that E had everything to lose and nothing to gain by testifying, and
that E had no interest in the outcome of the petitioner’s case, and the
impeachment of E through knowledge of his prior criminal convictions
would not have mitigated the prejudice that resulted from his false tes-
timony.
3. The petitioner’s due process rights were violated as a result of the prosecu-
tor’s use of E’s false testimony and suggestion to the jury that E had
no interest in the outcome of the petitioner’s trial:
a. E’s false testimony was material to the petitioner’s conviction of
murder and conspiracy to commit murder, as there was a reasonable
likelihood that E’s testimony or the prosecutor’s reliance on it in closing
argument could have affected the verdict of the jury: E was the only
witness to tie the petitioner to the murder scene or place a revolver in
the petitioner’s hands at the time and place of the killing, there was no
physical evidence to tie the petitioner to the crime scene, there could
be no claim that the prosecutor, who was also the prosecutor in E’s guilty
pleas, was unaware of the promises made to E because the prosecutor
promised to bring E’s testimony to the attention of E’s sentencing judge,
the prosecutor’s argument to the jury enhanced E’s credibility by stating
that E had everything to lose and nothing to gain, and although the
prosecutor claimed that he did not know if E expected anything in
exchange for his testimony, the prosecutor had told E that the state
would bring his testimony to the attention of the sentencing judge in
E’s case; furthermore, the state’s case against the petitioner was weak,
as E was not an eyewitness to the shooting, and the testimony of the
only other witness to implicate the petitioner was based on an alleged
admission by the petitioner to that witness, who was unhappy with him
for personal reasons.
b. Although there is a split in this court’s precedent as to whether
disclosure of an agreement between the state and a cooperating witness
needs to be made only to a criminal defendant or whether it also must
be made to the jury, the jury here was entitled to know about the state’s
promise to E; E’s credibility was important, as the state’s case was also
almost entirely dependent on his testimony, evidence of the state’s
promise to him bore on whether E had anything to gain by testifying,
the jury was not made aware of the agreement between E and the
state, and even if the prosecutor satisfied his disclosure requirement
by informing the petitioner’s trial counsel of the state’s promise to E,
the petitioner still was harmed, as the prosecutor’s disclosure was
negated by his harmful bolstering of E’s testimony during closing argu-
ment to the jury.
4. The petitioner’s conviction of tampering with a witness was not improper;
the jury reasonably could have found from evidence of the petitioner’s
letters to his girlfriend that he had attempted to induce her to withhold
testimony, and although the petitioner claimed that his conviction of
the tampering charge was buoyed by his conviction of murder and
conspiracy to commit murder and E’s false testimony concerning those
charges, tampering with a witness can be established even in the absence
of the conviction of other crimes, and E’s false testimony was not
material to the charge of tampering with a witness.
Argued February 1—officially released July 24, 2018
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, Fuger, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Reversed in part; judgment
directed; further proceedings.
Jennifer L. Bourn, assistant public defender, with
whom, on the brief, was Denis J. O’Malley, certified
legal intern, for the appellant (petitioner).
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and Angela R. Macchiarulo, senior
assistant state’s attorney, for the appellee (respondent).
Opinion
FLYNN, J. It has been usual for trial judges, when
instructing jurors on how to weigh the credibility of
witnesses, to tell them to consider whether the witness
has an interest of whatever sort in the outcome of the
trial that might influence or color the witness’ testi-
mony. In the petitioner’s criminal trial, however, the
jury never received important evidence of a cooperating
witness’ interest in the outcome. This appeal requires us
to examine a situation where a necessary cooperating
witness, the only one who put the defendant at the
crime scene with the likely murder weapon in his hand,
falsely denied before the jury any promise from the
state in exchange for his testimony and such falsity was
not disclosed to the jury, but the prosecutor argued in
summation to the jury that the witness had ‘‘everything
to lose, nothing to gain,’’ by giving statements to the
police and testifying. We hold this scenario to be anti-
thetical to due process under the fourteenth amend-
ment to the United States constitution.
The petitioner, Christopher Gaskin, filed this appeal
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his petition for a writ of habeas corpus. On appeal, the
petitioner claims that the court: (1) abused its discretion
in denying his petition for certification to appeal; (2)
erred in finding that the petitioner’s due process claim1
was procedurally defaulted; and (3) in addressing the
merits, erred in finding that the state did not deprive
the petitioner of his due process rights when it did
not correct a witness’ known false testimony at the
underlying criminal trial. We agree with all of the peti-
tioner’s claims as they pertain to his underlying convic-
tions of murder and conspiracy to commit murder under
General Statutes §§ 53a-54 and 53a-48, respectively.
Accordingly, we reverse in part the judgment of the
habeas court and remand the case to the habeas court
with instruction to render judgment granting the peti-
tion for a writ of habeas corpus, vacating the petitioner’s
underlying convictions of murder and conspiracy to
commit murder, and ordering a new trial on those
charges. We affirm the judgment as to the petitioner’s
underlying conviction of tampering with a witness
under General Statutes § 53a-151.
The record reveals the following facts and procedural
history. The underlying criminal proceedings stem from
the shooting death of Kendall Williams-Bey in Hartford
on July 6, 1998. The petitioner eventually was charged
with Williams-Bey’s murder and with tampering with
a witness.2
At trial, only two witnesses implicated the petitioner
in Williams-Bey’s murder: Benjamin Ellis and Evelyn
Douglas.3 Ellis, a cooperating witness, testified that he
drove the petitioner and another man, later identified as
Trevor Bennett,4 past the crime scene and then parked
nearby. While Ellis waited in the car, the petitioner
and Bennett got out of the vehicle carrying guns, the
petitioner carrying a revolver and Bennett carrying an
‘‘automatic.’’ Shortly thereafter, Ellis testified that he
heard gunshots and then the petitioner and Bennett
returned. Ellis then drove his passengers away from
the area and dropped them off at various points in
Hartford. James Stephenson, the state’s firearms identi-
fication and testing expert, testified that the bullet that
killed Williams-Bey was fired from a revolver.
Douglas, the petitioner’s girlfriend with whom he
lived at the time, testified that the petitioner admitted
to her that he shot Williams-Bey. She testified that,
prior to the shooting, the petitioner arrived home with
a busted lip and told Douglas he had gotten into a
fight with London Johnson at a nightclub in Springfield,
Massachusetts. She stated that the petitioner said he
was going to ‘‘get’’ Johnson. She said that when the
petitioner came back to her apartment later, he said,
‘‘I just f----d up. . . . I didn’t mean to shoot Kendall.’’
She testified that he meant to shoot Johnson, who was
near the crime scene when Williams-Bey was shot.
Douglas’ testimony did not tie the petitioner to the
murder scene or possession of a revolver of the kind
that killed the victim. Only Ellis’ testimony estab-
lished that.
Many times prior to Ellis’ trial testimony, the petition-
er’s trial counsel asked for any information on
agreements or promises the state may have made with
any witnesses, particularly Ellis. Because Ellis also was
being charged with Williams-Bey’s murder, the petition-
er’s trial counsel wanted to know if the state had prom-
ised anything to him in exchange for his testimony. The
prosecutor denied that any deal had been made. Just
prior to trial, the following colloquy between the trial
court and the prosecutor took place:
‘‘The Court: . . . Now, was anything offered to
[Ellis]?
‘‘[The Prosecutor]: No, Your Honor. It’s standard rou-
tine, no offers are made. When I have a case, they are
told that I will not make any agreement with them.
They have to testify, and if they expect something that’s
within their—it’s not—not something—I—I do not or
neither does my inspector, anybody involved with me,
make any offers.
‘‘The Court: Right. Well, in the old days what used
to be done was, the phrase, as I recall it, was, make
your truthful cooperation—truthful and full coopera-
tion known to the sentencing judge.
‘‘[The Prosecutor]: Yes.
‘‘The Court: Was that done in this case?
‘‘[The Prosecutor]: Yes. The sentencing judge would
be told that he gave a statement, but the thing he was
told is he has to tell the truth, and it’s not within my
province, it’s within the sentencing judge’s province,
which is the standard procedure . . . .’’
During the trial, the prosecutor asked Ellis whether
he was made any promises in exchange for his testi-
mony, which Ellis denied. The prosecutor asked Ellis
why he gave his statements to the police, to which Ellis
replied that he ‘‘felt bad about the incident.’’ Ellis also
stated that he was happy he was ‘‘doing the right thing.’’
On cross-examination, the petitioner’s trial counsel
engaged in the following questioning of Ellis:
‘‘Q. . . . Have you met with [the prosecutor] at any
time in this case?
‘‘A. With [the prosecutor] and my lawyer.
‘‘Q. Okay. . . . The answer to that, I take it, is yes?
‘‘A. Yes.
‘‘Q. Okay. And was it your understanding as a result
of the meeting that the state wanted you to testify
truthfully?
‘‘A. Yes.
‘‘Q. Okay. And was it your understanding that if you
testified truthfully, the state would take that into consid-
eration in deciding what would happen in the case in
which you’re charged?
‘‘A. No. I wasn’t made any promises.
‘‘Q. I didn’t ask you, sir . . . if you were made any
promises. What I asked you was—was it your under-
standing that if you testified truthfully, the state would
take that into consideration in deciding the outcome
of your case?
‘‘A. I’m not sure.
‘‘Q. You’re not sure?
‘‘A. No.
‘‘Q. Was it discussed?
‘‘A. No.’’
Later, the petitioner’s trial counsel questioned Ellis
as follows:
‘‘Q. Is it your understanding that after you testify,
by truthful testimony, that the state will bring your
cooperation and truthfulness to the attention of the
court?
‘‘A. I was never told that.
‘‘Q. And you don’t have that expectation?
‘‘A. No.
‘‘Q. And you are aware, because of your experience
in the system, that the state can change any of the
charges it wants against you . . . ? Do you want me
to rephrase that?
‘‘A. No. I understand.
‘‘Q. You are aware of that?
‘‘A. I wasn’t sure of that, but now I know.’’
During closing argument, after Ellis had given testi-
mony inculpating the petitioner in the killing, the prose-
cutor stated that Ellis ‘‘wanted to get [his testimony]
off his chest. He knew and knows that his statements
put him in the mix.’’ On rebuttal, the prosecutor then
argued that Ellis ‘‘had everything to lose, nothing to
gain, by giving these statements’’ and that Ellis ‘‘has
been charged with this crime, too. And his position is
he’s only the driver, he had nothing to gain by giving
both statements. He clearly said he wasn’t made any
promises. Does he expect something? That’s in his
mind. I don’t know. But the reality is: he is in the mix.’’
The record reveals that the prosecutor never cor-
rected Ellis’ testimony before the jury in which Ellis
told the jury that he had never been told that, after he
testified truthfully, the state would bring his coopera-
tion and truthfulness to the attention of the sentenc-
ing court.
On July 7, 2003, the jury found the petitioner guilty
of all the charges. He was sentenced to a total effective
sentence of sixty years imprisonment. On December 30,
2003, the petitioner filed a direct appeal. His appointed
counsel later moved to withdraw as appellate counsel,
filing an Anders5 brief on December 29, 2004, in which
she stated that there were no nonfrivolous issues for
appeal, and was permitted to withdraw by a judge of
the Superior Court on September 11, 2006. The peti-
tioner then represented himself pro se until withdraw-
ing his direct appeal seven years later on April 10, 2013.
After testifying at the petitioner’s and Bennett’s crimi-
nal trials, Ellis, on November 4, 2004, pleaded guilty to
violating General Statutes § 53a-59 (a) (3), accessory
to assault in the first degree.6 The prosecutor, the same
as in the petitioner’s case, recommended a sentence of
twenty years, suspended after five years, with five years
probation, to run concurrently with a sentence Ellis
then was serving for the commission of an unrelated
crime. As promised, the prosecutor made the sentenc-
ing judge aware of Ellis’ involvement in the petitioner’s
criminal trial. On September 7, 2005, Ellis’ sentence was
reduced to twenty years, execution suspended after
three years, with five years probation. Ellis’ prior sen-
tence, which he was serving at the time of the petition-
er’s criminal trial, also later was reduced in 2005 by
three years on the prosecutor’s recommendation for
‘‘[s]ubstantial aid and cooperation in several serious
felony cases.’’ That sentence could only be modified by
reduction pursuant to General Statutes § 53a-39 (b),7
which requires the assent of the prosecuting authority
prior to its reduction.
On September 10, 2012, the petitioner filed a pro se
petition for a writ of habeas corpus. Then, after counsel
was appointed, the petitioner filed his operative petition
on December 9, 2014. The petitioner alleged that the
prosecutor violated his constitutional rights in failing
to correct Ellis’ false testimony and in failing to disclose
exculpatory materials. Specifically, the petitioner
alleged that Ellis lied at the petitioner’s criminal trial
when he testified that he did not receive or expect to
receive any consideration for his testimony against the
petitioner. The respondent, the Commissioner of Cor-
rection, filed his amended return on February 11, 2015,
denying the allegations and claiming that the petitioner
procedurally defaulted on his claim because he did not
directly appeal his underlying criminal conviction on
the grounds raised in his petition and that he established
neither cause nor prejudice for his procedural default.
In his reply, filed February 26, 2015, the petitioner
denied procedurally defaulting his claim, but also stated
that, if he did procedurally default his claim, there was
cause and prejudice for doing so. Specifically, the peti-
tioner stated that cause existed because ‘‘at the time his
appeal was pending, there was no additional evidence
available to the petitioner or his appellate attorney
which could have shown that Benjamin Ellis received
consideration for his testimony. It was not until later
that evidence became available to prove this claim.’’
The petitioner stated that he also was ‘‘prejudiced
because the jury hearing his criminal trial did not know
of Benjamin Ellis’ self-serving motivations for testifying
against the petitioner, and the [prosecutor] allowed him
to testify in an untruthful manner without correcting
his testimony.’’
The matter proceeded to a habeas trial, which
included the testimony of Ellis; John L. Stawicki, Ellis’
attorney at the time of his testimony and in his subse-
quent pleas; and Victor Carlucci, Jr., the prosecutor in
the petitioner’s criminal trial and Ellis’ later pleas. Ellis
testified that he was made no promises for a reduction
in his charges or anything else in exchange for his
testimony, although he said that he hoped his testimony
would help him. Stawicki and the prosecutor both testi-
fied that the prosecutor made no specific promises,
other than to convey Ellis’ cooperation to his sentenc-
ing judge.
In its memorandum of decision dated June 23, 2016,
the habeas court denied the petition on the ground
that the petitioner procedurally defaulted his claim and
failed to establish cause and prejudice for his default.
Nonetheless, the court also addressed the merits of the
petitioner’s claim, finding that, although Ellis testified
falsely, the prosecutor had disclosed his promise to
Ellis to the petitioner’s trial counsel, which obviated
any need to correct the false testimony. The petitioner
requested certification to appeal, which was denied by
the habeas court on July 6, 2016. This appeal followed.
On appeal, the petitioner claims that the court abused
its discretion in denying his petition for certification to
appeal; erred in finding that the petitioner’s due process
claim was procedurally defaulted; and in addressing the
merits, erred in finding that the state did not deprive
the petitioner of his due process rights when it did not
correct a witness’ false testimony at the petitioner’s
criminal trial and then subsequently relied on that testi-
mony in closing arguments.
‘‘Before we turn to the petitioner’s claims we set forth
our standard of review for habeas corpus appeals. The
underlying historical facts found by the habeas court
may not be disturbed unless the findings were clearly
erroneous. . . . Historical facts constitute a recital of
external events and the credibility of their narrators.
. . . Questions of law and mixed questions of law and
fact receive plenary review.’’ (Internal quotation marks
omitted.) Crawford v. Commissioner of Correction,
294 Conn. 165, 174, 982 A.2d 620 (2009). The petitioner
generally does not challenge the habeas court’s factual
findings. Thus, each of his claims raises either questions
of law or mixed questions of law and fact, over which
we exercise plenary review.
I
The petitioner first claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal from the denial of his habeas petition.
Specifically, he argues that both the issue of procedural
default and the issue of whether his due process rights
were violated are debatable among jurists of reason,
could be resolved in a different manner and are ade-
quate to deserve encouragement to proceed further.
We agree.
‘‘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
discretion. Simms v. Warden, 230 Conn. 608, 612, 646
A.2d 126 (1994). 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. . . . Id., 616, quoting Lozada v.
Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d
956 (1991). The required determination may be made
on the basis of the record before the habeas court and
the applicable legal principles. See Simms v. Warden,
supra, 617. If the petitioner succeeds in surmounting
that hurdle, the petitioner must then demonstrate that
the judgment of the habeas court should be reversed
on its merits. Id., 612.’’ (Emphasis omitted; footnote
omitted; internal quotation marks omitted.) Johnson v.
Commissioner of Correction, 285 Conn. 556, 564, 941
A.2d 248 (2008).
Turning to the petitioner’s substantive claims, we
have been unable to find any case in which this court or
our Supreme Court has addressed whether a petitioner
procedurally defaults a claim when appellate counsel
withdraws, with permission of the court, after filing an
Anders brief, having reviewed only the record, and does
not investigate new information outside the record that
could develop further a due process claim, or what
constitutes cause and prejudice should such a default
exist. Because these questions have not yet been
addressed by the appellate courts of this state, we con-
clude that the petitioner’s claim regarding procedural
default is adequate to deserve encouragement to pro-
ceed further. See Rodriguez v. Commissioner of Cor-
rection, 131 Conn. App. 336, 347, 27 A.3d 404 (2011)
(concluding that claim deserved encouragement to pro-
ceed further when no appellate case had decided pre-
cise issue), aff’d on other grounds, 312 Conn. 345, 92
A.3d 944 (2014); Small v. Commissioner of Correction,
98 Conn. App. 389, 391–92, 909 A.2d 533 (2006), aff’d,
286 Conn. 707, 946 A.2d 1203, cert. denied sub nom.
Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed.
2d 336 (2008).
Additionally, as discussed more fully in parts II and
III of this opinion, we agree with the petitioner’s claims
that he did not procedurally default his claim, that he
alternatively established cause and prejudice, and that
he was denied his due process rights when the prosecu-
tor did not correct Ellis’ false testimony and then argued
to the jury after testimony favorable to the prosecution
that Ellis had ‘‘everything to lose, nothing to gain
. . . .’’ We, therefore, address the merits of the petition-
er’s claims.
II
The petitioner next claims that he did not procedur-
ally default his due process claim. Specifically, he
argues that the trial record was inadequate to raise the
claim on direct appeal and that he did not fail to follow
a firmly established and regularly followed state proce-
dural requirement because appellate counsel was not
required to investigate or augment the record. Alterna-
tively, if procedural default is found, the petitioner
claims that he established cause and prejudice for
his default.
A
‘‘A party in a habeas appeal procedurally defaults on
a claim when he raises issues on appeal that were not
properly raised at the criminal trial or the appeal there-
after. . . . Habeas, as a collateral form of relief, is gen-
erally available to litigate constitutional issues only if
a more direct route to justice has been foreclosed
through no fault of the petitioner.’’ (Citations omitted;
internal quotation marks omitted.) Salters v. Commis-
sioner of Correction, 141 Conn. App. 81, 87, 60 A.3d
1004, cert. denied, 308 Conn. 932, 64 A.2d 330 (2013).
The reviewability of habeas claims not properly pursued
on appeal is subject to the cause and prejudice standard.
Jackson v. Commissioner of Correction, 227 Conn. 124,
132, 629 A.2d 413 (1993).
The petitioner’s due process claim is axiomatically
constitutional in nature. He argues, however, that
because the record was inadequate to review his claim
based on the trial court record and there is no firmly
established and regularly followed procedural require-
ment for appellate counsel to investigate or augment
the record, he did not procedurally default his claim.
We note that the petitioner’s trial counsel thoroughly
cross-examined Ellis regarding the state’s promise to
him, to no avail, and that information regarding Ellis’
sentencing only became available after the conclusion
of the petitioner’s criminal trial. Given the ambiguous
and contradictory statements of the prosecutor regard-
ing any promise to Ellis, we fail to see how the petitioner
could ‘‘properly raise’’ his claim on appeal from the
record. Our conclusion is bolstered by the fact that the
petitioner’s appellate counsel was granted permission
by the Superior Court to withdraw because she con-
cluded there were no nonfrivolous claims to raise on
appeal. We, therefore, hold that the petitioner did not
procedurally default his claim because his more direct
route to justice via appeal was foreclosed through no
fault of his own.
Additionally, although we observe that our precedent
has established that constitutional claims that could
have been raised on appeal are subject to procedural
default; Jackson v. Commissioner of Correction, supra,
227 Conn. 132; one may question the application of the
procedural default doctrine to due process claims under
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.
Ed. 2d 215 (1963), and its analogues, which also is
well established in our precedent. See, e.g., Salters v.
Commissioner of Correction, supra, 141 Conn. App.
87–91. Procedural default, being a prudential limitation,
is really a form of judicial economy. See Taylor v. Com-
missioner of Correction, 284 Conn. 433, 447 n.18, 936
A.2d 611 (2007); see also Hinds v. Commissioner of
Correction, 321 Conn. 56, 71, 136 A.3d 596 (2016) (‘‘[t]he
prudential considerations underlying the procedural
default doctrine are principally intended to vindicate
two concerns: federalism/comity and finality of
judgments’’).
Our appellate courts have not yet carved out an
exception for such claims as they have done for Strick-
land8 claims. See Johnson v. Commissioner of Correc-
tion, supra, 285 Conn. 570–71. In Johnson, our Supreme
Court held that ‘‘[i]f a petitioner can prove that his
attorney’s performance fell below acceptable stan-
dards, and that, as a result, he was deprived of a fair
trial or appeal, he will necessarily have established a
basis for cause and will invariably have demonstrated
prejudice. . . . The similarity of the second part of the
Strickland test . . . and of the prejudice prong of the
cause and prejudice test of Wainwright [v. Sykes, 433
U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977)] makes
a threshold showing of cause and prejudice unneces-
sary for ineffective assistance of . . . counsel claims.
. . . [W]e conclude that it is simpler and more appro-
priate to move directly to the Strickland test. . . .
There is no need to confuse this process by utilizing the
cause and prejudice test.’’ (Citations omitted; internal
quotation marks omitted.) Johnson v. Commissioner of
Correction, supra, 570–71. This exception makes more
sense when one considers that ineffective assistance
claims generally require the testimony of counsel, for
which a habeas proceeding is better suited.
Our Supreme Court has recognized that the showing
of prejudice under the procedural default doctrine ‘‘is
the same showing of prejudice that is required for
Strickland or Brady errors’’; Hinds v. Commissioner
of Correction, supra, 321 Conn. 85; and the United States
Supreme Court has observed that ‘‘[c]ause and preju-
dice . . . parallel two of the three components of . . .
Brady . . . . Corresponding to the second Brady com-
ponent (evidence suppressed by the [s]tate), a peti-
tioner shows cause when the reason for his failure to
develop facts in state-court proceedings was the
[s]tate’s suppression of the relevant evidence; coinci-
dent with the third Brady component (prejudice), preju-
dice within the compass of the cause and prejudice
requirement exists when the suppressed evidence is
material for Brady purposes. . . . Thus, if [a peti-
tioner] succeeds in demonstrating cause and prejudice,
he will at the same time succeed in establishing the
elements of his . . . Brady . . . due process claim.’’
(Citations omitted; internal quotation marks omitted.)
Banks v. Dretke, 540 U.S. 668, 691, 124 S. Ct. 1256, 157
L. Ed. 2d 1166 (2004).
We fail to see how the converse is not also true,
namely, that the petitioner establishes cause and preju-
dice by establishing the suppression of material excul-
patory evidence under Brady and its analogues. At least
one federal Court of Appeals uses this approach. See
Akrawi v. Booker, 572 F.3d 252, 261–62 (6th Cir. 2009).
In Akrawi, the United States Court of Appeals for the
Sixth Circuit upheld the District Court’s decision to
ignore procedural default and address the merits of the
petitioner’s due process claim ‘‘in the interest of judicial
economy.’’ (Internal quotation marks omitted.) Id., 261.
Noting that ‘‘[t]he cause and prejudice standard tracks
the last two elements of a Brady claim: suppression by
the government and materiality’’; (internal quotation
marks omitted) id.; the Sixth Circuit opted to look ‘‘past
procedural default to address the merits, because . . .
if [the petitioner] succeeds in showing suppression of
favorable evidence material to guilt or innocence, will
have necessarily shown cause and prejudice excusing
his procedural default.’’ (Internal quotation marks omit-
ted.) Id., 261–62. We are not at liberty to overrule this
court’s or our Supreme Court’s precedents applying the
procedural default doctrine to due process claims under
Brady and its analogues, and indeed hold that there
was no procedural default in this case; however, we
believe the prudential considerations underlying the
doctrine would warrant ‘‘looking past procedural
default to address the merits’’; id., 261; of such claims.
B
Alternatively, even if we were to assume that proce-
dural default had occurred, we conclude that the peti-
tioner has established cause and prejudice.
‘‘[A] petitioner must demonstrate good cause for his
failure to raise a claim . . . on direct appeal and actual
prejudice resulting from the impropriety claimed in the
habeas petition. . . . [T]he cause and prejudice test is
designed to prevent full review of issues in habeas cor-
pus proceedings that counsel did not raise at trial or
on appeal for reasons of tactics, inadvertence or igno-
rance . . . .’’ (Internal quotation marks omitted.)
Hinds v. Commissioner of Correction, supra, 321 Conn.
71.’’The cause and prejudice requirement is not jurisdic-
tional in nature, but rather a prudential limitation on
the right to raise constitutional claims in collateral pro-
ceedings.’’ (Internal quotation marks omitted.) Id.‘‘[T]he existence of cause for a procedural default
must ordinarily turn on whether the prisoner can show
that some objective factor external to the defense
impeded counsel’s efforts to comply with the State’s
procedural rule. Without attempting an exhaustive cata-
log of such objective impediments to compliance with
a procedural rule, we note that a showing that the fac-
tual or legal basis for a claim was not reasonably avail-
able to counsel . . . or that some interference by
officials . . . made compliance impracticable, would
constitute cause under this standard.’’ (Internal quota-
tion marks omitted.) Jackson v. Commissioner of Cor-
rection, supra, 227 Conn. 137.
For a petitioner to demonstrate prejudice, he ‘‘must
shoulder the burden of showing, not merely that the
errors at his trial created a possibility of prejudice, but
that they worked to his actual and substantial disadvan-
tage, infecting his entire trial with error of constitutional
dimensions. . . . [T]he petitioner would have to dem-
onstrate that, with the proper instruction, there was a
substantial likelihood that the jury would not have
found the petitioner guilty of the crime of which he
was convicted. . . . Substantial likelihood or reason-
able probability does not require the petitioner to dem-
onstrate that the jury more likely than not would have
acquitted him had it properly been instructed. . . .
This is the same showing of prejudice that is required
for Strickland or Brady errors. . . . A reasonable
probability is a probability sufficient to undermine con-
fidence in the outcome.’’ (Citations omitted; internal
quotation marks omitted.) Hinds v. Commissioner of
Correction, supra, 321 Conn. 84–85.
1
We now proceed to our further analysis of the proce-
dural default issue. The petitioner argues that there was
cause for his procedural default because ‘‘[t]he factual
basis for [his] claim was not reasonably available to
[appellate] counsel, and it was the state’s conduct at
trial that made raising the claim on direct appeal imprac-
ticable.’’ Specifically, the petitioner argues that it was
reasonable for his appellate counsel to rely on the prose-
cutor’s statements during the criminal proceedings
denying that any consideration had been offered, to
rely on the prosecutor to disclose all exculpatory mate-
rials and to rely on the prosecutor not to present false
testimony or then to correct any false testimony. The
petitioner claims that it was only when the prosecutor
and Stawicki testified at the habeas trial that it became
clear that Ellis’ testimony was false because prior to
their testimony, the prosecutor had repeatedly denied
promising Ellis anything, despite the repeated requests
for information by the petitioner’s trial counsel about
any discussions with or incentives offered to Ellis.9
The respondent counters that ‘‘all of the predicate
facts necessary to litigate a Giglio claim10 were available
to the petitioner before appellate counsel withdrew
from [the] case and long before the petitioner withdrew
his appeal.’’ (Footnote added.) In addition, the respon-
dent argues that the state disclosed any exculpatory
materials, and so there can be no cause attributable to
the state’s conduct.
In its memorandum of decision, the habeas court
disagreed with the petitioner’s argument that the evi-
dence necessary to support his claim was not available
at the time his direct appeal was pending. The court
found that ‘‘[t]he evidence presented by the petitioner
at the habeas trial that provides the basis for his claims
. . . was known or knowable from November 23, 2005,
until April 23, 2013. Given how long the appeal was
pending before it was withdrawn, the petitioner could
have filed, pursuant to Practice Book § 42-55, a peti-
tion11 for a new trial based on newly discovered evi-
dence. Section 42-55 expressly authorizes action on the
petition for [a] new trial even though an appeal is pend-
ing. The record from any proceedings conducted by the
criminal court, the correct forum for the petitioner’s
claims, could then augment the record of the direct
appeal.’’ (Footnote added.)
In looking at the habeas court’s reasoning, we must
first conclude that it was error to suggest as support
for a lack of cause that the petitioner could petition for
a new trial. Because the respondent’s return asserted
only that the petitioner procedurally defaulted on the
basis of his not having directly raised on appeal his due
process claim, a fact the habeas court acknowledged
just two paragraphs prior to its cause analysis, the court
could not suggest then that the petitioner should have
moved or petitioned for a new trial. A motion or petition
for a new trial is not part of a direct appeal. See footnote
11 of this opinion. Although the court also cited State
v. Floyd, 253 Conn. 700, 756 A.2d 799 (2000), in a foot-
note, for the proposition that the petitioner could have
moved to augment the record on direct appeal, such a
procedure is not necessary for a direct appeal.
In Salters v. Commissioner of Correction, supra, 141
Conn. App. 87–89, this court held that the petitioner
procedurally defaulted his Brady claim because, at the
time of his criminal trial, he and his trial counsel were
aware of a cooperating witness’ history of arrests that
they claimed for the first time at the habeas trial the
state had failed to disclose. Specifically, the petitioner’s
trial counsel discussed ‘‘at length’’ his theories as to
the existence of the witness’ records, but ‘‘he did not
ask for an evidentiary hearing at that time.’’ Id., 89.
Counsel did not seek further disclosure from the state
at trial, and the petitioner did not claim a Brady viola-
tion in his direct appeal. Id.This case is distinguishable from Salters because the
petitioner’s appellate counsel could not have developed
a due process claim without extrarecord information
of which she was unaware. We note that the petitioner’s
appointed appellate counsel, a highly experienced
appellate attorney, had only the record in front of her
in determining to move to withdraw as counsel. Anders
requires only that appellate counsel look to the entire
record in deciding whether there are appealable issues.
Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 18
L. Ed. 2d 493 (1967). We conclude that it runs contrary
to the spirit of Anders to then impose on appellate
counsel the additional duty of investigating if there are
also any possible claims outside of the record to deter-
mine if additional claims are viable.12 See id.; see also
Banks v. Dretke, supra, 540 U.S. 695–96 (‘‘[o]ur deci-
sions lend no support to the notion that defendants
must scavenge for hints of undisclosed Brady material
when the prosecution represents that all such material
has been disclosed’’ and ‘‘[a] rule . . . declaring ‘prose-
cutor may hide, defendant must seek,’ is not tenable in
a system constitutionally bound to accord defendants
due process’’).
In Strickler v. Greene, 527 U.S. 263, 284–85, 119 S.
Ct. 1936, 144 L. Ed. 2d 286 (1999), the United States
Supreme Court found unpersuasive the respondent war-
den’s argument that the factual basis for the assertion
of a Brady claim was available through an examination
of the cooperating witness’ trial testimony coupled with
a letter published in a local newspaper and that diligent
counsel would have sought a discovery order from the
state court. ‘‘Mere speculation that some exculpatory
material may have been withheld [should not] suffice
to impose a duty on counsel to advance a claim for
which they have no evidentiary support.’’ Id., 286.
We note that the Anders brief13 filed by appellate
counsel was thirty-five pages long and comprehensively
addressed all possible claims emanating from the
record.14 This brief then had to be analyzed indepen-
dently by the trial court before allowing appellate coun-
sel to withdraw. See Anders v. California, supra, 386
U.S. 744. The trial court, in granting the motion to with-
draw, implicitly then concluded that there were no non-
frivolous issues in the record.
Likewise, we cannot expect an incarcerated individ-
ual such as the petitioner, after appellate counsel has
been permitted to withdraw by the Superior Court, to
then be able to develop new claims from the confines
of prison. Such expectations defy reason. Thus, we con-
clude that because the factual basis underlying the peti-
tioner’s due process claim was not fully available until
after his appellate counsel, who had no duty to investi-
gate it under Anders, moved to withdraw, such informa-
tion was not reasonably available.15 See Waley v.
Johnston, 316 U.S. 101, 104–105, 62 S. Ct. 964, 86 L. Ed.
1302 (1942) (‘‘The facts relied on are dehors the record
and their effect on the judgment was not open to consid-
eration and review on appeal. In such circumstances
the use of the writ in the federal courts to test the
constitutional validity of a conviction for crime . . .
extends . . . to those exceptional cases where the con-
viction has been in disregard of the constitutional rights
of the accused, and where the writ is the only effective
means of preserving his rights.’’).
Our conclusion that the petitioner has established
cause for any procedural default is further supported
by precedent from the United States Court of Appeals
for the Second Circuit. For example, in United States
ex rel. Washington v. Vincent, 525 F.2d 262, 268 (2d
Cir. 1975), cert. denied sub nom. Bombard v. Washing-
ton, 424 U.S. 934, 96 S. Ct. 1147, 47 L. Ed. 2d 341 (1976),16
the court reversed the District Court’s denial of the
petitioner’s petition for a writ of habeas corpus where
the prosecutor knowingly used false testimony from a
cooperating witness concerning any promises of
leniency for the witness. The cooperating witness
denied having received any consideration from the pros-
ecutor in exchange for his testimony. Id., 262–64. In
fact, the witness had told the petitioner that he had
been promised leniency on a gun possession charge in
consideration for his testimony. Id., 265. The petitioner
informed his trial counsel, but the conversation was
not brought to the court’s or the prosecutor’s attention
before or during trial, at which the petitioner was con-
victed on the underlying murder charge. Id. After the
trial, the petitioner’s trial counsel inspected the tran-
script of the cooperating witness’ weapons possession
proceedings. Id. At those proceedings, the prosecutor
revealed that he had promised several times to ‘‘see
what [he] could do to help [the witness].’’ (Internal
quotation marks omitted.) Id. The petitioner then insti-
tuted a coram nobis proceeding in state court, at which
the prosecutor ‘‘repeatedly insisted that no specific
offer had been extended.’’ (Emphasis omitted.) Id. After
being confronted with the transcript of the dismissal
of the witness’ weapons charge indictment, however,
he conceded that a promise had been made. Id. The
court, thereafter, granted the writ of coram nobis. Id.,
266. The Appellate Division of the New York Supreme
Court reversed the granting of the writ of coram nobis,
holding that, although the prosecutor had committed
gross impropriety, any error was harmless because ‘‘the
jury was made fully aware of [the witness’] prior crimi-
nal record, of the pending gun charge and of the fact
that he had consumed a large quantity of alcohol on
the day of the murder.’’ (Internal quotation marks omit-
ted.) Id. The New York Court of Appeals affirmed that
decision on the ground that ‘‘the defendant and his
counsel, with knowledge of the facts, stood silently by
and did nothing themselves to remedy the situation
. . . .’’ (Internal quotation marks omitted.) Id. The peti-
tioner then petitioned for a writ of habeas corpus in
the United States District Court. Id., 267. The District
Court denied the petition for a writ of habeas corpus
on the basis of the trial and coram nobis judge’s finding
that the evidence was sufficient to convict the petitioner
even absent the cooperating witness’ testimony. Id. The
Second Circuit, thereafter, reversed the judgment of
the District Court. Id. The Second Circuit determined,
after its own review of the record, that the witness’
testimony was ‘‘the coup de graˆce, unequivocally plac-
ing [the petitioner] at the scene of the crime with the
murder weapon in his pocket, the robbery proceeds in
his hands, and a confession in his mouth.’’ Id., 267–68.
In contrast, the other witnesses’ testimony ‘‘was far
from overwhelming.’’ Id., 267. The court also noted that
the jury was deadlocked prior to finding the petitioner
guilty and that, ‘‘[c]learly, it [was] reasonable to con-
clude that [the cooperating witness’] testimony tipped
the balance . . . .’’ Id., 268. The court also held that
‘‘it would be inappropriate not to permit [the petitioner]
to challenge the egregious and highly damaging prose-
cutorial misconduct solely because he and his lawyer
may have failed to utilize all available means for explor-
ing the prosecutor’s highhandedness at the trial.’’ Id.
The court thought a different result might occur in a
case ‘‘where the possible harm was less pronounced’’;
id.; but noted that ‘‘[t]he harm . . . was caused not so
much by unawareness that [the witness’] testimony may
have been perjured as by inability to respond effectively
in view of [the prosecutor’s] silence.’’ Id., 268 n.9.
Here, in the present case, the respondent similarly
argues that the petitioner had all of the predicate facts
available to him to raise his due process claim on direct
appeal; however, much like in Vincent, the harm
stemmed not from unawareness of the falsity of Ellis’
testimony but from Ellis’ truculence and the petitioner’s
inability to respond effectively in light of the prosecu-
tor’s silence. In addition, and also like Vincent, it was
not until the prosecutor himself testified at the habeas
trial that there was a complete factual record to prove
the petitioner’s claim. We also note that, as in Vincent,
Ellis was the key witness who put the petitioner at the
crime scene with the likely murder weapon, a revolver,
in his hand. Thus, we are persuaded by the reasoning
in Vincent that it would be inappropriate not to permit
the petitioner to challenge the prosecutor’s knowing
use of Ellis’ false testimony.17
Therefore, the petitioner established cause for any
procedural default.
2
The petitioner also argues that he has established the
prejudice necessary to overcome procedural default
because his claimed due process violation by the state
was material to his conviction. The respondent does
not present any argument or citation that would counter
this claim. In fact, in the respondent’s brief, he unequiv-
ocally states that ‘‘[b]ased on [his] review of the trial
record, the [respondent] concedes that if this court
were to overturn the habeas court and find a Giglio
violation, the prosecution’s failure to correct Ellis’ false
testimony was material to the petitioner’s convictions
of murder and conspiracy to commit murder because
the state’s case was not strong without Ellis’ testi-
mony.’’18 This concession of materiality also concedes
the prejudice necessary to overcome procedural
default. See Hinds v. Commissioner of Correction,
supra, 321 Conn. 84–85. Although we are not bound by
the respondent’s legal conclusions, we agree that Ellis’
testimony was material to the petitioner’s convictions
for murder and conspiracy to commit murder. Ellis’
testimony was the only testimony that placed the peti-
tioner at the crime scene with the likely murder weapon,
a revolver, in his hand.19
The habeas court, however, found that the petitioner
did not establish prejudice because Ellis was ‘‘exten-
sively questioned by [the petitioner’s trial counsel]
about his possible motivations for testifying,’’ and the
trial judge’s instructions to the jury also addressed those
potential motivations.20 The habeas court further found
that the state had no obligation to correct Ellis’ false
testimony because the state disclosed to the defense
its promise to make Ellis’ sentencing judge aware of
his cooperation.
We will examine more fully the parameters of Brady
materiality, particularly disclosure, in part III of this
opinion, but we note that, although the petitioner’s trial
counsel indeed did question Ellis about his motivations,
Ellis repeatedly stonewalled him. Trial counsel was
unable to get Ellis to admit to the jury that he had some
promise from the state regarding his cooperation. We
do not know what more the petitioner’s trial counsel
could have done to present the state’s promise to Ellis
to the jury.21 Thus, despite whatever awareness the peti-
tioner might have had of the prosecutor’s promise to
Ellis, this situation is inapposite to that in which defense
counsel is actually aware of false testimony and fails
to bring it to either the jury’s or the court’s attention,
which raises ‘‘the assumption . . . that he did so for
strategic reasons,’’ because when a ‘‘defendant [is] pre-
vented from raising or pursuing the issue at trial by
circumstances essentially beyond his control,’’ that pre-
sumption of strategy is undermined. (Internal quotation
marks omitted.) United States v. Manual-Garcia, 505
F.3d 1, 10–11 (1st Cir. 2007), cert. denied sub nom.
Villanueva-Rivera v. United States, 553 U.S. 1019, 128
S. Ct. 2081, 170 L. Ed. 2d 819 (2008), citing United States
v. Iverson, 648 F.2d 737, 739 (D.C. Cir. 1981). The court’s
jury instructions regarding witnesses’ cooperation
could not obviate the prejudice emanating from Ellis’
false testimony. That is so because the jury did not hear
at all about the state’s promise to Ellis, however limited
it was. Additionally, the prejudice was not obviated
because the prosecutor’s statements in closing argu-
ments suggesting that Ellis had ‘‘everything to lose,
nothing to gain,’’ invited the conclusion that Ellis had
no interest in the outcome of the case and this sharp-
ened the prejudice of the testimony itself. Likewise, we
are not convinced that the impeachment of Ellis through
knowledge of his criminal convictions would suffice to
mitigate any prejudice. In Napue v. Illinois, 360 U.S.
264, 270, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959), the
United States Supreme Court observed that it did ‘‘not
believe that the fact that the jury was apprised of other
grounds for disbelieving that the witness . . . may
have had an interest in testifying against petitioner
turned what was otherwise a tainted trial into a fair
one.’’ Therefore, we conclude that the petitioner has
established the requisite prejudice to overcome any
procedural default. We next address the merits of his
due process claim.
III
Finally, we address the petitioner’s claims that his
due process rights were violated, in contravention of
Napue and Giglio v. United States, 405 U.S. 150, 92 S.
Ct. 763, 31 L. Ed. 2d 104 (1972),22 when the state elicited
false testimony from Ellis at the petitioner’s criminal
trial, failed to correct the false testimony it had elicited,
and then relied specifically on that false testimony dur-
ing its closing argument in order to secure the petition-
er’s convictions. The respondent concedes both that
Ellis’ testimony was false and that it was material to
the petitioner’s convictions, but argues, nonetheless,
that the prosecutor disclosed the full extent of the coop-
eration agreement on the record outside of the jury’s
presence, and, thus, that the prosecutor satisfied his
due process obligations to the petitioner. We agree with
the petitioner that the prosecutor’s use of Ellis’ false
testimony coupled with his statements in summation
suggesting Ellis had no interest in the outcome violated
the petitioner’s due process rights. The jury was entitled
to know any interest Ellis might have in the outcome
that might motivate his testimony.
A
‘‘The rules governing our evaluation of a prosecutor’s
failure to correct false or misleading testimony are
derived from those first set forth by the United States
Supreme Court in Brady v. Maryland, [supra, 373 U.S.
86–87], and we begin our consideration of the [petition-
er’s claim that his due process rights were violated]
with a brief review of those principles. In Brady, the
court held that the suppression by the prosecution of
evidence favorable to an accused upon request violates
due process [when] the evidence is material either to
guilt or to punishment, irrespective of the good faith
or bad faith of the [prosecutor]. . . . The United States
Supreme Court also has recognized [in Napue v. Illi-
nois, supra, 360 U.S. 269] that [t]he jury’s estimate of
the truthfulness and reliability of a . . . witness may
well be determinative of guilt or innocence, and it is
upon such subtle factors as the possible interest of the
witness in testifying falsely that a defendant’s life or
liberty may depend. . . . Accordingly, the Brady rule
applies not just to exculpatory evidence, but also to
impeachment evidence . . . which, broadly defined, is
evidence having the potential to alter the jury’s assess-
ment of the credibility of a significant prosecution wit-
ness. . . . Because a plea agreement is likely to bear
on the motivation of a witness who has agreed to testify
for the state, such agreements are potential impeach-
ment evidence that the state must disclose. . . .
‘‘Not every failure by the state to disclose favorable
evidence rises to the level of a Brady violation. Indeed,
a prosecutor’s failure to disclose favorable evidence
will constitute a violation of Brady only if the evidence
is found to be material. The Brady rule is based on
the requirement of due process. Its purpose is not to
displace the adversary system as the primary means by
which truth is uncovered, but to ensure that a miscar-
riage of justice does not occur. Thus, the prosecutor is
not required to deliver his entire file to defense counsel,
but only to disclose evidence favorable to the accused
that, if suppressed, would deprive the defendant of a
fair trial . . . . United States v. Bagley, [473 U.S. 667,
675, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)]. In a classic
Brady case, involving the state’s inadvertent failure to
disclose favorable evidence, the evidence will be
deemed material only if there would be a reasonable
probability of a different result if the evidence had been
disclosed. Bagley’s touchstone of materiality is a rea-
sonable probability of a different result, and the adjec-
tive [reasonable] is important. The question is not
whether the defendant would more likely than not have
received a different verdict with the evidence, but
whether in its absence he received a fair trial, under-
stood as a trial resulting in a verdict worthy of confi-
dence. A reasonable probability of a different result is
accordingly shown when the government’s evidentiary
suppression undermines confidence in the outcome of
the trial. . . .
‘‘When, however, 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 defendant. [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 judgment of the jury. United States
v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d
342 (1976); accord State v. Ouellette, 295 Conn. 173,
186, 989 A.2d 1048 (2010). This standard . . . applies
whether the state solicited the false testimony or
allowed it to go uncorrected; e.g., Napue v. Illinois,
supra, 360 U.S. 269; and is not substantively different
from the test that permits the state to avoid having
a conviction set aside, notwithstanding a violation of
constitutional magnitude, upon a showing that the viola-
tion was harmless beyond a reasonable doubt. . . .
This strict standard of materiality is appropriate in such
cases not just because they involve prosecutorial mis-
conduct, but more importantly because they involve
a corruption of the truth-seeking function of the trial
process. United States v. Agurs, supra, 104 . . . . In
light of this corrupting effect, and because the state’s
use of false testimony is fundamentally unfair, prejudice
sufficient to satisfy the materiality standard is readily
shown . . . such that reversal is virtually automatic
. . . unless the state’s case is so overwhelming that
there is no reasonable likelihood that the false testi-
mony could have affected the judgment of the jury.’’
(Citations omitted; emphasis added; footnotes omitted;
internal quotation marks omitted.) Adams v. Commis-
sioner of Correction, 309 Conn. 359, 369–73, 71 A.3d
512 (2013).
‘‘In Strickler v. Greene, [supra, 527 U.S. 281–82], the
United States Supreme Court identified the three essen-
tial components of a Brady claim, all of which must
be established to warrant a new trial: The evidence at
issue must be favorable to the accused, either because
it is exculpatory, or because it is impeaching; that evi-
dence must have been suppressed by the [s]tate, either
willfully or inadvertently; and prejudice must have
ensued. . . . Under the last Brady prong, the prejudice
that the defendant suffered as a result of the impropriety
must have been material to the case, such that the
favorable evidence could reasonably be taken to put
the whole case in such a different light as to undermine
confidence in the verdict.’’ (Internal quotation marks
omitted.) State v. Ortiz, 280 Conn. 686, 717, 911 A.2d
1055 (2006).
‘‘[A] trial court’s determination as to materiality under
Brady presents a mixed question of law and fact subject
to plenary review, with the underlying historical facts
subject to review for clear error. . . . Finally, in the
present case, we conduct the required independent
review of the record . . . .’’ (Citation omitted; internal
quotation marks omitted.) Lapointe v. Commissioner
of Correction, 316 Conn. 225, 264, 112 A.3d 1 (2015).
Because neither the petitioner nor the respondent
disputes the finding23 that Ellis’ testimony concerning
a promise to make his cooperation known to his sen-
tencing judge was false,24 which clearly was impeach-
ment evidence, we need only determine if the improper
elicitation of that testimony and reliance upon it materi-
ally prejudiced the petitioner. See Giglio v. United
States, supra, 405 U.S. 153–55; see also Napue v. Illinois,
supra, 360 U.S. 269–71.
As previously noted in part II B 2 of this opinion, the
respondent concedes that ‘‘if this court were to . . .
find a Giglio violation, the prosecution’s failure to cor-
rect Ellis’ false testimony was material to the petition-
er’s convictions of murder and conspiracy to commit
murder because the state’s case was not strong without
Ellis’ testimony.’’ We conclude that such a due process
violation exists.
In Adams v. Commissioner of Correction, supra, 309
Conn. 361–62, our Supreme Court affirmed this court’s
determination that the state’s failure to correct false
and misleading testimony from a cooperating witness
was material, entitling the petitioner, Sean Adams, to
a new trial. At the petitioner’s criminal trial, the cooper-
ating witness had ‘‘testified falsely that he had not been
promised any consideration on his then pending
charges in two unrelated criminal cases in exchange for
his testimony against the petitioner and the petitioner’s
codefendants.’’ Id., 363. The witness in Adams also
vastly inflated the length of his possible maximum sen-
tence in his testimony, claiming he could face thirty-
eight years when the sentencing judge had limited his
sentence to four years. Id. The prosecutor did not cor-
rect the false testimony, apparently, because he was
unaware of the agreement. Id. Prior to Adams’ original
criminal trial, the witness had pleaded guilty in his sepa-
rate cases, and he accepted the plea offer of no more
than four years imprisonment. Id., 364. If he then coop-
erated with the state in Adams’ case, however, the wit-
ness would have had the right to argue for a more lenient
sentence. Id. After the witness testified in Adams’ case,
the prosecutor in the witness’ case recommended to
the sentencing judge that the court vacate the witness’
guilty pleas on two of his charges and impose an uncon-
ditional discharge on a third because the witness had
testified favorably in three cases, one of which involved
Adams. Id., 364–66. The Adams petitioner then filed a
petition for a writ of habeas corpus. Id., 363. In its
memorandum of decision, the habeas court assumed
that the witness’ testimony was false and misleading,
but concluded that the testimony was not material. Id.,
366. On appeal to the Appellate Court, the respondent
conceded that the state had failed to correct the witness’
false testimony at Adams’ criminal trial. Id., 367. The
Appellate Court held that there was a reasonable likeli-
hood that the witness’ testimony could have affected
the jury’s verdict, and it reversed the judgment of the
habeas court. Id. Noting that no weapon was ever recov-
ered and that the only physical evidence connecting
the petitioner to the crime scene was a yellow jacket,
the significance of which depended on the cooperating
witness’ and his brother’s credibility, our Supreme
Court, after granting the respondent’s petition for certi-
fication to appeal from the Appellate Court’s decision,
concluded that the state’s case depended largely on
the credibility of two witnesses, one of whom was the
cooperating witness. Id., 374. After remarking on the
inconsistencies in the testimony of the other witness;
id., 374–80; and the lack of any depth in the testimony
of the cooperating witness’ brother; id., 380–81; our
Supreme Court also concluded that the testimony of
the cooperating witness was significant, as ‘‘was any
evidence that could cast doubt on his credibility.’’ Id.,
381. The court observed that the witness’ testimony
was consistent with his police statements, that ‘‘[c]ross-
examination . . . was extensive and focused [and that]
. . . [h]e also was questioned about the relation
between his eventual decision to testify and his pending
criminal charges’’; id., 381–82; however, he ‘‘effectively
rebuffed efforts by defense counsel to demonstrate that
he was motivated to testify against the petitioner and
his codefendants by any promise or expectation of
leniency.’’ Id., 382. The court was not persuaded that
the calling into question of the witness’ credibility by
other means could substitute for the knowledge that
he had been promised leniency for his testimony against
the petitioner. Id., 386. The court also noted that the
prosecutor repeatedly endorsed the witness’ credibility
during rebuttal closing argument, suggesting that he
‘‘wouldn’t lie in this situation’’ and that the witness was
‘‘not [t]here just to nail the guys we have on trial.’’
(Internal quotation marks omitted.) Id., 387–88. Thus,
because the state’s case was not strong, resting entirely
on the credibility of its witnesses, and the jury deliber-
ated for ten days before reaching its verdict; id., 389;
the court in Adams was ‘‘unable to conclude that [the
witness’] perjurious testimony was so relatively insignif-
icant that the state’s failure to correct it d[id] not war-
rant relief under the strict materiality standard
applicable in [the] case,’’ and it granted the petitioner
a new criminal trial. Id., 390.
The court in Adams did not address the issue of
disclosure because it clearly did not occur in that case,
but, instead, the court only dealt with materiality. Set-
ting aside the disclosure issue, which we address in
part III B of this opinion, we conclude that Ellis’ testi-
mony was material.
Unlike Adams, the prosecutor in the present case
was also the prosecutor in Ellis’ guilty pleas after the
petitioner’s criminal trial. Thus, there could not be a
logical claim that the prosecutor was unaware of the
promises made to Ellis, because he promised to bring
Ellis’ testimony to the attention of the sentencing judge.
Similar to Adams, however, Ellis denied having
received any consideration, despite defense counsel’s
repeated efforts to get him to admit the benefits he
would receive from the prosecutor for his testimony
against the petitioner. The prosecutor in this case then
used his closing argument to enhance Ellis’ credibility
by arguing that Ellis had everything to lose and nothing
to gain and that he was ‘‘in the mix.’’ He also claimed
that he did not know if Ellis expected anything, even
though he had told Ellis that the state would bring Ellis’
testimony to the attention of his sentencing judge. At
that point, Ellis already had testified in a manner favor-
able to the prosecution. He was also the only witness
tying the petitioner to the murder scene at the time of
the killing. He was also the only witness to place a
revolver in the petitioner’s hands at the time and place
of the shooting. There was no physical evidence in this
case that would tie the petitioner to the crime scene.
In Adams, at least there was one piece of physical
evidence, a yellow jacket. Here, the prosecutor knew
that he had promised Ellis that he would bring the fact
of his cooperation to the attention of his sentencing
judge if he testified truthfully at the petitioner’s crimi-
nal trial.
In addition, in the present case, the state’s case argua-
bly was weaker than it was in Adams.25 As opposed to
Adams, where there were at least two eyewitnesses,
Ellis, who was not even an eyewitness to the shooting,
was the only witness who placed the petitioner at the
crime scene. He is also the only witness who put a
revolver, which expert testimony established was the
likely murder weapon, in the petitioner’s hand. The
respondent points out that Douglas also testified in a
manner that implicated the petitioner; however, her
testimony was based on an alleged admission to her by
the petitioner. She was not an eyewitness to the murder.
She was unhappy with the petitioner for personal rea-
sons; her testimony made clear that she was angry at
the petitioner for alleged infidelities. One of her letters
to him stated, ‘‘I will take your f-ing freedom you bitch.’’
For these reasons, we conclude that there is a reason-
able likelihood that Douglas’ testimony alone would
have been insufficient to convict the petitioner of mur-
der and conspiracy to commit murder. When the issues
with Douglas’ testimony are considered with Ellis’
tainted testimony, and the complete lack of physical
evidence that would tie the petitioner to the crime
scene, we conclude that there is a reasonable likelihood
of a different result because Ellis’ false testimony, or the
reliance on it by the prosecutor in his closing argument,
could have affected the verdict of the jury. See Merrill
v. Warden, 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 upon the testimony of certain wit-
nesses . . . information affecting their credibility is
material in the constitutional sense since if they are not
believed a reasonable doubt of guilt would be created’’).
Therefore, under Adams, the petitioner has established
that Ellis’ false testimony was material to his conviction.
B
Our inquiry, however, does not end with the determi-
nation that false material testimony was elicited at the
petitioner’s criminal trial. The respondent contends that
because the extent of the state’s agreement with Ellis
was disclosed to the petitioner’s criminal trial counsel,
the state did not suppress exculpatory evidence and,
thus, did not violate the petitioner’s due process rights.
Although the petitioner disagrees that the full extent
of the state’s agreement was disclosed, he also argues
that such disclosure needed to be made to the jury. This
disagreement as to what level of disclosure is required
stems from a split in this court’s precedent regarding
whether, under Hines v. Commissioner of Correction,
164 Conn. App. 712, 138 A.3d 430 (2016), and State v.
Jordan, 135 Conn. App. 635, 42 A.3d 457 (2012), aff’d
in part, rev’d in part on other grounds, 314 Conn. 354,
102 A.3d 1 (2014), disclosure of an agreement between
the state and a cooperating witness needs to be made
only to the defendant or whether it also must be made
to the jury. We conclude, however, that this is neither
the time nor the case for us to decide between these
precedents because we conclude that, under either the
Hines or Jordan standard, the state violated the peti-
tioner’s due process rights.
1
In Jordan, the state had disclosed to both the trial
judge and defense counsel the nature of its deals with
the cooperating witnesses before they testified at the
defendant’s trial. State v. Jordan, supra, 135 Conn. App.
658–61. Each witness then took the stand and both lied
about whether they had been promised anything by the
state. Id. The prosecutor failed to correct their testi-
mony. Id., 659–61. On cross-examination, defense coun-
sel tried to elicit from one witness whether the state
had made a promise to him, which he denied, but then
did not question the other witness. Id. This court in
Jordan concluded that the prosecutor committed
impropriety by failing to correct the testimony. Id., 666–
67. Although the prosecutor had informed the trial court
and defense counsel, the Appellate Court still found the
disclosure to be inadequate. Id. ‘‘Given the witnesses’
subsequent misleading testimony . . . this advance
notice to the court and counsel outside the presence
of the jury was inadequate, as the jurors could well
have been left with the impression, created by [the
witnesses’] testimony, that neither had any incentive to
testify favorably for the state. Under these circum-
stances, we conclude that the prosecutor had a duty
to correct the record before the jury.’’ Id., 666–67. When
this court went on to analyze the Williams26 factors,
however, it concluded, due to additional testimony and
physical evidence that implicated the defendant, that
the defendant was not harmed by the prosecutor’s fail-
ure to correct the witnesses’ misleading testimony. Id.,667–68. Our Supreme Court granted certification to
appeal and affirmed in part this court’s decision in Jor-
dan. State v. Jordan, 314 Conn. 354, 358, 102 A.3d 1(2014). As to the defendant’s due process claim, how-
ever, the court disposed of that claim solely on the
ground that the defendant was not harmed because
there was ‘‘sufficient independent evidence of the
defendant’s guilt.’’27 Id., 366. The court also stated
clearly that ‘‘nothing in this opinion should be construed
to suggest that we concur in the Appellate Court’s deter-
mination that improprieties occurred.’’ Id., 369 n.7.
Although disclosure of materially exculpatory evi-
dence to defense counsel would suffice under Brady,
and Napue and Giglio are subsets of Brady; see foot-
note 22 of this opinion; our review of our state and
federal precedents imply that disclosure to the jury is
required in the case of known, but uncorrected, false
testimony. Our Supreme Court’s first discussion of Gig-
lio occurred in an opinion reversing a defendant’s con-
viction and ordering a new trial where the defendant’s
sixth and fourteenth amendment rights to confront the
witnesses against him were violated. State v. Annunzi-
ato, 174 Conn. 376, 379–80, 387 A.2d 566 (1978). This
reversal stemmed from the related federal habeas cor-
pus proceedings of the defendant’s father, who was his
codefendant. In United States ex rel. Annunziato v.
Manson, 425 F. Supp. 1272, 1274–81 (D. Conn.), aff’d,
566 F.2d 410 (2d Cir. 1977), the United States District
Court granted a writ of habeas corpus for the petitioner
father after our Supreme Court denied his direct appeal
and denied his petition for certification to appeal from
the dismissal of his habeas petition. The petitioner origi-
nally had been convicted of conspiracy to commit mur-
der on the basis of the testimony from a cooperating
witness, who had denied receiving any consideration
from the state for his testimony. Id., 1274–75, 1278.
Prior to his criminal trial, the petitioner filed discovery
motions seeking exculpatory information or material,
which the court granted, but the state represented that
it had none. Id., 1277. After the petitioner was convicted,
the cooperating witness testified in another trial, where
the petitioner’s trial counsel learned that the witness
‘‘had made a deal with the state and federal govern-
ments that, in return for his giving evidence at [the]
petitioner’s trial and others, [the] pending state felony
charges against him would be dropped, he would
receive leniency on a bank robbery charge and immu-
nity from prosecution for crimes to which he confessed
while supplying information to the government.’’ Id.
The District Court found ‘‘that the state’s misbehavior
in [the] case could have affected the outcome of the
trial’’ because the cooperating witness ‘‘was the state’s
chief witness against [the petitioner]. His testimony was
all that directly tied [the] petitioner to the shooting
. . . .’’ Id., 1279. The court also found that the witness’
credibility had been ‘‘subjected to considerable scru-
tiny,’’ but that ‘‘testimony of the complete deal would
not have been merely cumulative. . . . In the face of
[the witness’] denial as to the existence of any promise
and the suppression by the prosecution of the full terms
of the deal, defense counsel’s argument challenging [the
witness’] motive and interest was reduced to specula-
tion and inference.’’ Id. The court also found that ‘‘if
the full terms of the agreement had been presented
accurately to the jury, that evidence would have created
a reasonable doubt as to the petitioner’s guilt.’’28
(Emphasis added.) Id., 1280–81. The Second Circuit
affirmed the District Court’s decision and recognized
the importance of disclosing any agreements to the jury
as fact finder in Annunziato v. Manson, 566 F.2d 410,
414 (2d Cir. 1977). The court, citing Agurs and Giglio,
held that ‘‘where a prosecution witness falsely denies
the existence of a leniency agreement, there is no need
to prove deliberate design to suborn or conceal perjury
on the part of the prosecution. . . . In evaluating bias
and interest, the jury should be informed that the wit-
ness hopes for leniency on current charges and that
the prosecutor has a present leverage over the fate of
the witness. A conviction on such testimony will stand,
of course, but the jury is entitled to make its own
assessment of the witness with all the cards on the
table.’’ (Emphasis altered.) Id.; compare with State v.
Hackett, 182 Conn. 511, 520, 438 A.2d 726 (1980) (finding
no error in failure to allow question regarding plea
bargaining that occurred prior to plea agreement
because ‘‘[i]n contradistinction to Annunziato v. Man-
son, [supra, 412], the bargain that the witness had struck
with the state was fully disclosed to the jury’’ [empha-
sis added]).
Our Supreme Court discussed these two Annunziato
federal court opinions when deciding the direct appeal
of the Annunziato petitioner’s son in State v. Annunzi-
ato, supra, 174 Conn. 376. The charges against the son
arose out of the same facts as the charges against the
father. Id., 376–78. Although the court disposed of the
appeal on the confrontation clause claim as indepen-
dently relied on by the defendant’s father in his federal
habeas cases; see footnote 28 of this opinion; the court
also discussed the parameters of the father’s due pro-
cess claim, noting that the Second Circuit found ‘‘that
disclosure of the bargain to the jury would have created
a reasonable doubt as to [the petitioner father’s] guilt
[and] concluded that his due process rights had been
violated under the principles of’’ Brady, Giglio and
Agurs. (Emphasis added.) Id., 379–80.
We note that although State v. Annunziato, supra,
174 Conn. 376, has not been cited for the proposition
that disclosure under Giglio means disclosure to the
jury, it is not an outlier in this state’s jurisprudence
declaring as much. See Merrill v. Warden, supra, 177
Conn. 430–31 (petition for writ of habeas corpus
granted where jury not made aware of nature of witness’
deal with prosecutor); see also State v. Paradise, 213
Conn. 388, 400, 567 A.2d 1221 (1990) (‘‘[t]he thrust of
Giglio and its progeny [is] to ensure that the jury knows
the facts that might motivate a witness in giving testi-
mony’’ [internal quotation marks omitted]), abrogated
in part on other grounds by State v. Skakel, 276 Conn.
633, 693, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127
S. Ct. 578, 166 L. Ed. 2d 428 (2006).
Jordan and the Annunziato trio of cases accord well
with Napue itself. In Napue v. Illinois, supra, 360 U.S.
267–72, the United States Supreme Court reversed the
denial of the petitioner’s postconviction habeas petition
where the prosecutor both elicited and failed to correct
the false testimony of a cooperating witness who had
testified against the petitioner. The court in Napue was
unpersuaded that the petitioner’s criminal trial was fair
because the jury learned of other grounds for disbe-
lieving the witness, and noted that ‘‘[h]ad the jury been
apprised of the true facts . . . it might well have con-
cluded that [the witness] had fabricated testimony in
order to curry the favor of the very representative of
the [s]tate who was prosecuting the case in which [the
witness] was testifying, for [the witness] might have
believed that such a representative was in a position
to implement (as he ultimately attempted to do) any
promise of consideration.’’ (Emphasis added.) Id., 270.
The court in Napue also observed that the final testi-
mony of the witness that the jury heard was whether he
had been promised any consideration for his testimony,
which the court concluded meant that the prosecutor
must have thought it was important to establish before
the jury.29 Id., 270–71.
Later, in Giglio v. United States, supra, 405 U.S. 150–
55, the United States Supreme Court extended Napue
to include the situation where the lead prosecutor is
unaware that a second prosecutor has promised the
cooperating witness consideration for his testimony,
and then the witness lies about such consideration at
trial. The court noted that the District Court ‘‘proceeded
on the theory that even if a promise had been made by
[the second prosecutor] it was not authorized and its
disclosure to the jury would not have affected its ver-
dict.’’ (Emphasis added.) Id., 153. The court reversed,
stating that ‘‘neither [the second prosecutor’s] authority
nor his failure to inform his superiors or associates
[was] controlling.’’ Id., 154. In discussing the materiality
of the witness’ testimony, the court reasoned that ‘‘the
[g]overnment’s case depended almost entirely on [the
witness’] testimony; without it there could have been
no indictment and no evidence to carry the case to
the jury. [The witness’] credibility as a witness was
therefore an important issue in the case, and evidence
of any understanding or agreement as to a future prose-
cution would be relevant to his credibility and the jury
was entitled to know of it.’’ (Emphasis added.) Id.,154–55.
As was the case in Giglio, we cannot help but observe
that the state’s case was also almost entirely dependent
on Ellis’ testimony. His credibility, therefore, was
important, and evidence of his promise from the prose-
cutor would be relevant to his credibility. It bore on
whether he had anything to gain by his testimony.
Therefore, the jury was entitled to know of it.30
Under the Jordan standard, it is crystal clear that
the prosecutor failed to disclose his promise to Ellis to
the jury or to correct what the habeas court found and
the respondent conceded was Ellis’ false testimony to
the jury. Jordan and its antecedents would require that
the jury be made aware of the agreement. That did
not happen here. Although the prosecutor disclosed his
promise to Ellis to the defense, ‘‘[t]he [petitioner] gains
nothing, however, by knowing that the [state’s] witness
has a personal interest in testifying unless he is able to
impart that knowledge to the jury.’’ United States v.
Sanfilippo, 564 F.2d 176, 178 (5th Cir. 1977); see also
Alcorta v. Texas, 355 U.S. 28, 31, 78 S. Ct. 103, 2 L. Ed.
2d 9 (1957) (knowing use of false testimony offends
due process because of false impression given to jury);
Sivak v. Hardison, 658 F.3d 898, 909 (9th Cir. 2011)
(‘‘It is irrelevant whether the defense knew about the
false testimony . . . because defendants [cannot]
waive the freestanding ethical and constitutional obliga-
tion of the prosecutor as a representative of the govern-
ment to protect the integrity of the court and the
criminal justice system. . . . Whether defense counsel
is aware of the falsity of the statement is beside the
point.’’ [Citations omitted; internal quotation marks
omitted.]).
2
On the other hand, if the standard for disclosure,
instead, is governed by Hines, the level of disclosure
required is merely that the state makes defense counsel
aware of the agreement.31 See Hines v. Commissioner
of Correction, supra, 164 Conn. App. 726. In Hines, the
petitioner claimed that the state failed to disclose that
it had made promises to a codefendant in exchange for
his cooperation. Id., 720. The state denied any such
promises, but this court held that the state had promised
to remain silent at the codefendant’s sentencing and to
convey to the judge his cooperation. Id., 725. Neverthe-
less, the court concluded that because the prosecutor
told defense counsel, albeit casually, that this was the
extent of the agreement, a disclosure had been made,
and, thus, the state was not required to correct the
codefendant’s testimony. Id., 728.
Here, the petitioner and the respondent disagree
about whether the disclosure to defense counsel was
adequate to satisfy the state’s obligation under Brady.
We must observe that the prosecutor initially denied
that any promise had been made to Ellis. It was not
until the trial court stated that, in the past, prosecutors
would make a witness’ cooperation known to the sen-
tencing judge, and then asked the prosecutor if that
was the case here, that the prosecutor acknowledged
what he had promised to Ellis. Absent the trial court’s
question, there would have been absolutely no disclo-
sure of any kind on the state’s part.32
Assuming that the prosecutor satisfied his disclosure
requirement under Hines, we conclude that the peti-
tioner still was harmed when the state bolstered Ellis’
testimony during closing and rebuttal arguments. As
we have noted, the prosecutor stated that Ellis ‘‘wanted
to get [his testimony] off his chest. He knew and knows
that his statements put him in the mix.’’ He also argued
that Ellis ‘‘had everything to lose, nothing to gain, by
giving these statements,’’ and that Ellis ‘‘has been
charged with this crime, too. And his position is he’s
only the driver, he had nothing to gain by giving these
statements. He, clearly, said he wasn’t made any prom-
ises. Does he expect something? That’s in his mind. I
don’t know. But the reality is: he is in the mix.’’
In Hines, however, there is nothing in the decision
indicating that the prosecutor obscured the witness’
interest in the outcome during summation. Likewise,
two recent habeas appeals arising out of the same crime,
Gomez v. Commissioner of Correction, 178 Conn. App.
519, 176 A.3d 559 (2017), cert. granted, 328 Conn. 916,
180 A.3d 962 (2018), and Brown v. Commissioner of
Correction, 179 Conn. App. 358, 179 A.3d 794, cert.
denied, 328 Conn. 919, 181 A.3d 91 (2018), do not involve
a scenario where the prosecutor bolstered the cooperat-
ing witnesses’ false testimony about no promise when
each witness, in fact, did have an interest in the outcome
of the case.
In Gomez, the petitioner claimed that agreements
between the state and the witnesses to bring their coop-
eration to the attention of their sentencing judge went
undisclosed. Gomez v. Commissioner of Correction,
supra, 178 Conn. App. 534. The habeas court found that
at least one of the defense attorneys was aware of
the agreement. Id. Citing Hines, this court rejected the
claim of nondisclosure on the basis of the habeas court’s
finding that the defense attorney was aware of the
arrangement. Id., 535–36. The petitioner in Gomez also
argued that his due process rights were violated when
the witnesses’ false testimony was presented at his
criminal trial. Id., 538. Although noting the tension
between Jordan and Hines, this court held that because
the agreements were disclosed, the state was not
required to correct the false testimony. Id., 540–41. In
Brown, this court rejected the same claims the peti-
tioner in Gomez made, namely, that the state failed to
disclose its agreements with the witnesses. Brown v.
Commissioner of Correction, supra, 367–68. In both
cases, this court also rejected the petitioners’ argu-
ments that the state failed to disclose impeachment
evidence of the witnesses relating to how the state
assisted in reducing their bonds. Id., 368–73; Gomez v.
Commissioner of Correction, supra, 536–38. In Gomez,
this court held that because the transcripts were avail-
able to the petitioner, there was no failure to disclose.
Id. In Brown, however, this court held that ‘‘the peti-
tioner did not present evidence at his habeas trial that
compelled a finding that the state reached an
agreement’’ with the witnesses respecting their bond
hearings. Brown v. Commissioner of Correction, supra,
373. We, therefore, distinguish Hines, Gomez and
Brown from the present case because none of those
cases involved the knowing use of false testimony by
the prosecutor in closing argument.
Our state courts have not addressed a situation where
an agreement concerning a cooperating witness and
the state was disclosed to the court and defense coun-
sel, but the prosecutor nonetheless argued that the
cooperating witness had everything to lose and nothing
to gain in closing and rebuttal arguments. However,
multiple federal Courts of Appeals have addressed simi-
lar situations. ‘‘Standing alone, a prosecutor’s com-
ments upon summation can ‘so [infect] a trial with
unfairness as to make the resulting conviction a denial
of due process.’ ’’ Jenkins v. Artuz, 294 F.3d 284, 294
(2d Cir. 2002),33 quoting Darden v. Wainwright, 477
U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986).
In Jenkins, the Second Circuit observed that the prose-
cutor in that case bolstered her witness’ credibility in
closing arguments ‘‘by falsely suggesting the absence
of a deal between [a cooperating witness] and the prose-
cution.’’ Jenkins v. Artuz, supra, 294. The prosecutor
claimed that she had never met the witness prior to
trial, and, ‘‘[n]oting that there was no bad blood between
[the witness] and the defendant . . . asked the jury
to conclude that [the witness] had no reason to lie.’’
(Internal quotation marks omitted.) Id. The court held
that the prosecutor’s ‘‘attempt to hide [the witness’]
plea agreement from the jury and to use the false
impression of its absence to bolster his credibility [left
the court] with no doubt that [the prosecutor’s] behav-
ior violated [the petitioner’s] due process rights.’’ Id.The Second Circuit tempered this holding, stating that
it ‘‘need not determine whether [the prosecutor’s] sum-
mation independently abridged [the petitioner’s] due
process rights. It plainly sharpened the prejudice
resulting from the use of [the witness’] initial untruthful
testimony. The advocacy shown in the record . . . has
no place in the administration of justice and should
neither be permitted nor rewarded.’’ (Internal quotation
marks omitted.) Id., 294–95. Notably, the prosecutor in
Jenkins acknowledged to the trial court that the state
and the cooperating witness ‘‘had entered a plea
agreement, as a condition of which he had agreed to
cooperate and testify truthfully and fully, and that she
expect[ed] it [would] come out on direct [examina-
tion].’’34 (Internal quotation marks omitted.) Id., 287.
In a prior case, DuBose v. Lefevre, 619 F.2d 973,
974–79 (2d Cir. 1980), the Second Circuit reversed the
District Court’s denial of a petition for a writ of habeas
corpus where a cooperating witness falsely denied hav-
ing received consideration from the prosecutor and the
prosecutor then argued in summation that the witness
had made no deal with the state, ‘‘but had chosen to
testify to the truth with knowledge that it could only
lead to continuation of her existing jail confinement.’’
In fact, the cooperating witness had made a deal with
the prosecutor, which came out during her plea hearing
four days after the petitioner had been convicted. Id.,975–76. The petitioner then filed a motion to set aside
the verdict on the basis of newly discovered evidence
because of prosecutorial misconduct. Id., 976. The trial
court found that no deal had been struck between the
witness and the prosecutor, which the Appellate Divi-
sion affirmed, and leave to appeal to the New York
Court of Appeals was denied. Id., 977. The petitioner
then applied for a writ of habeas corpus in the federal
District Court, which denied the petition. Id. On appeal,
the Second Circuit reversed, holding that ‘‘[t]he [s]tate’s
attempt to reconcile its evidence at [the petitioner’s]
trial that it had not offered [the witness] any kind of
deal or any kind of promise or anything in exchange
for her testimony with its repeated flat statements at
the [the witness’] plea hearing that it made an agreement
. . . long before the murder trial started [to recom-
mend] acceptance of the misdemeanor plea strains cre-
dulity almost to the breaking point.’’ (Internal quotation
marks omitted.) Id., 978. Holding that an agreement
indeed had been made, which was not made known to
the jury, and that the jury could have rejected the wit-
ness’ testimony on that basis, the court concluded that
‘‘[t]he fact that the promise may not have taken a spe-
cific form did not allow the prosecution to avoid disclos-
ing to the jury the fair import of its understanding with
the witness when the question arose during cross-exam-
ination and redirect.’’ (Emphasis added.) Id., 978–79.
The court then held that the petitioner was harmed
because without the cooperating witness’ testimony,
the state had virtually no case.35 Id., 979. Concluding
that, under Giglio, the jury was entitled to know of
the prosecutor’s deal with the cooperating witness, the
court reversed the judgment of the District Court with
instruction to grant the writ. Id.We are persuaded by the Second Circuit’s reasoning
that any knowledge by the court or defense counsel
through disclosure of a plea agreement can be thwarted
by the prosecutor’s examination of a witness or closing
arguments, which requires reversal. See Jenkins v.
Artuz, supra, 294 F.3d 295–96; United States v. Wallach,
935 F.2d 445, 456 (2d Cir. 1991) (‘‘if it is established
that the government knowingly permitted the introduc-
tion of false testimony reversal is virtually automatic’’
[internal quotation marks omitted]);36 Adams v. Com-
missioner of Correction, supra, 309 Conn. 372(‘‘because the state’s use of false testimony is funda-
mentally unfair, prejudice sufficient to satisfy the mate-
riality standard is ‘readily shown’ . . . such that
‘reversal is virtually automatic’ ’’ [citation omitted]).
We, therefore, conclude that, even to the extent that
the petitioner’s trial counsel was aware of the state’s
agreement with Ellis, which would satisfy the disclo-
sure requirement of Hines, such a disclosure was effec-
tively negated by the prosecutor’s harmful bolstering
of Ellis during closing arguments. We note that Jenkins
and DuBose are not outliers, and the Second Circuit is
not the only federal court of appeals to rule in this
manner.37 See United States v. Stein, 846 F.3d 1135,
1147 (11th Cir.) (‘‘where the government not only fails to
correct materially false testimony but also affirmatively
capitalizes on it, the defendant’s due process rights are
violated despite the government’s timely disclosure of
evidence showing the falsity’’), cert. denied, U.S.
, 138 S. Ct. 556, 199 L. Ed. 2d 436 (2017); Shih Wei Su
v. Filion, 335 F.3d 119, 127–30 (2d Cir. 2003) (sufficient
prejudice found where witness lied about not having
been promised anything in exchange for testimony, lie
went uncorrected, and prosecutor bolstered witness’
credibility in summation, despite different prosecutor
having made deal with witness); DeMarco v. United
States, 928 F.2d 1074, 1077 (11th Cir. 1991) (‘‘the prose-
cutor’s argument to the jury capitalizing on the perjured
testimony reinforced the deception of the use of false
testimony and thereby contributed to the deprivation
of due process’’); Brown v. Wainwright, 785 F.2d 1457,
1464 (11th Cir. 1986) (‘‘[t]he government has a duty not
to exploit false testimony by prosecutorial argument
affirmatively urging to the jury the truth of what it
knows to be false’’); United States v. Sanfilippo, supra,564 F.2d 179 (reversal merited when government ‘‘not
only permitted false testimony of one of its witnesses
to go to the jury, but argued it as a relevant matter for
the jury to consider’’).38 We conclude that these cases
accord well with United States Supreme Court prece-
dent. See United States v. Agurs, supra, 427 U.S. 103(‘‘the [United States Supreme] Court has consistently
held that a conviction obtained by the knowing use of
perjured testimony is fundamentally unfair’’); Miller v.
Pate, 386 U.S. 1, 7, 87 S. Ct. 785, 17 L. Ed. 2d 690 (1967)
(‘‘[T]he [f]ourteenth [a]mendment cannot tolerate a
state criminal conviction obtained by the knowing use
of false evidence. . . . There has been no deviation
from that established principle. . . . There can be no
retreat from that principle here.’’ [Citations omitted.]);
Mooney v. Holohan, 294 U.S. 103, 112, 55 S. Ct. 340, 79
L. Ed. 791 (1935) (Due process ‘‘is a requirement that
cannot be deemed to be satisfied by mere notice and
hearing if a [s]tate has contrived a conviction through
the pretense of a trial which in truth is but used as a
means of depriving a defendant of liberty through a
deliberate deception of court and jury by the presenta-
tion of testimony known to be perjured. Such a contriv-
ance by a [s]tate to procure the conviction and
imprisonment of a defendant is as inconsistent with the
rudimentary demands of justice as is the obtaining of
a like result by intimidation.’’).
Given the circumstances of this case, the promise
between Ellis and the prosecutor as disclosed was not
necessarily something that, at the time, would have
been favorable to the petitioner. Ellis had not testified
at that point. It was possible that he would testify plac-
ing the petitioner at the crime scene, which ultimately
he did, but it also was possible that he would recant
his pretrial statements to police, as witnesses some-
times do. See State v. Whelan, 200 Conn. 743, 746, 513
A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L.
Ed. 2d 598 (1986). Once Ellis had testified, however,
and did not recant his statements, but, indeed, incul-
pated the petitioner, it would have been clear then to
the prosecutor that the state’s agreement with Ellis to
bring his level of cooperation to the sentencing judge
was favorable to Ellis. The prosecutor’s closing and
rebuttal arguments, therefore, could not fairly suggest
to the jury, as did the prosecutor, that Ellis had every-
thing to lose and nothing to gain.39 At that point, Ellis
could have expected to have advanced beyond mere
hope to an expectation of some favorable treatment in
his own case. Such information should have been made
known to the jury so that, in weighing the testimony
of Ellis, it could have weighed any potential effect that
the promise of the prosecutor to bring Ellis’ coopera-
tion, at that point in a favorable manner, to the attention
of the sentencing judge might have had on Ellis’ testi-
mony. For the prosecutor to argue that Ellis had every-
thing to lose and nothing to gain when Ellis had testified
favorably for the prosecution and had been promised
that his testimony would be disclosed to his sentencing
judge cannot be justified.40
C
Finally, we address the respondent’s argument that
should we find a due process violation, we, nonetheless,
should uphold the petitioner’s separate conviction on
the tampering with a witness charge. The respondent
contends that none of the evidence emanating from
Ellis’ testimony had any bearing on the tampering
charge. The petitioner argues that the conviction of
tampering ‘‘is buoyed by the assumption that the peti-
tioner is guilty’’ of the murder and conspiracy to commit
murder charges. We agree with the respondent.
In order to be convicted of tampering with a witness,
the state must prove that a defendant, ‘‘believing that
an official proceeding is pending or about to be insti-
tuted . . . induces or attempts to induce a witness to
testify falsely, withhold testimony, elude legal process
summoning him to testify or absent himself from any
official proceeding.’’ General Statutes § 53a-151 (a).
In the petitioner’s criminal trial, evidence was intro-
duced of letters the petitioner had sent to Douglas. In
one letter to Douglas, the petitioner wrote: ‘‘If anybody
come trying to talk to you to death like you know me,
and, shit, of course you know me and what not, but
you don’t tell nobody that you don’t know shit and
don’t want to . . . .’’41 (Emphasis added.) In another
letter, the petitioner wrote that ‘‘I’m schooling you on
keeping your head right . . . .’’
Given the elements required to prove tampering with
a witness, we conclude that the jury reasonably could
have found that the petitioner attempted to induce
Douglas to withhold testimony. Despite the petitioner’s
argument that the conviction is ‘‘buoyed’’ by his other
convictions and Ellis’ false testimony regarding them,
tampering with a witness can be established even
absent other convictions. See State v. Gethers, 197
Conn. 369, 370, 497 A.2d 408 (1985). We, therefore,
conclude that Ellis’ false testimony was not material to
the tampering with a witness charge or conviction.42
The judgment is reversed in part and the case is
remanded with direction to render judgment granting
the petition for a writ of habeas corpus, vacating the
petitioner’s underlying convictions under §§ 53a-54 and
53a-48 and ordering a new trial on those offenses; the
judgment is affirmed as to the petitioner’s underlying
conviction under § 53a-151.
In this opinion the other judges concurred.
1
See Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104(1972); Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215(1963); Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959).
The petitioner’s claim has been styled by the parties and the habeas court
as a ‘‘Brady’’ claim, a ‘‘Giglio’’ claim, a ‘‘Napue’’ claim and a ‘‘due process’’
claim. Noting that there are some subtle differences among these cases, they
are nonetheless often conflated. See footnote 22 of this opinion. Recognizing
these subtleties, we use the term ‘‘due process’’ claim wherever possible in
this opinion, although our discussion of the parties’ briefs, the habeas court’s
memorandum of decision and the various precedents often dictates the use
of one of the other terms.
2
Specifically, the petitioner was charged with murder in violation of § 53a-
54, conspiracy to commit murder in violation of §§ 53a-48 and 53a-54, and
tampering with a witness in violation of § 53a-151.
3
Dennis Paris, who was shot at the same time as Williams-Bey, testified
that while he and the petitioner were being held in nearby parts of the
courthouse, he told the petitioner that ‘‘[y]ou all supposed to know who
you all shooting,’’ to which the petitioner replied, ‘‘I didn’t even know you
was there . . . .’’ We do not believe that this cryptic and ambiguous state-
ment places the petitioner at the crime scene, as did the testimony of Ellis
and Douglas, especially because, according to Paris, the petitioner also told
Paris that he did not shoot him.
4
Bennett, who was tried separately, apparently was acquitted of all
charges.
5
See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d
493 (1967).
6
Although Ellis originally was charged with conspiracy to commit murder,
assault in the first degree, conspiracy to commit assault in the first degree
and tampering with a witness, all of the charges, except assault in the first
degree, were dropped.
7
General Statutes § 53a-39 (b) provides: ‘‘At any time during the period
of a definite sentence of more than three years, upon agreement of the
defendant and the state’s attorney to seek review of the sentence, the sen-
tencing court or judge may, after hearing and for good cause shown, reduce
the sentence, order the defendant discharged, or order the defendant dis-
charged on probation or conditional discharge for a period not to exceed
that to which the defendant could have been originally sentenced.’’
8
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984).
9
It was only after the trial court itself asked the prosecutor specifically
if he informed Ellis that he would make his level of cooperation known to
the sentencing judge that the prosecutor confirmed any level of discussion
with Ellis.
10
See Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104(1972). A Giglio or Napue claim is one in which a defendant claims a
violation of his due process right to a fair trial when a necessary cooperating
witness’ false testimony concerning any promise of consideration from the
government for his testimony goes uncorrected before the jury. See id.,153–55; Napue v. Illinois 360 U.S. 264, 269–72, 79 S. Ct. 1173, 3 L. Ed. 2d
1217 (1959). Both are considered subsets of Brady. See footnote 22 of
this opinion.
11
Although the habeas court referred to Practice Book § 42-55 as providing
for a ‘‘petition’’ for a new trial, that section concerns a ‘‘motion’’ for a new
trial. A ‘‘petition’’ for a new trial, which is commenced by a separate civil
action, is governed by General Statutes § 52-270 and may be granted for,
inter alia, ‘‘the discovery of new evidence . . . .’’ Because it is the Superior
Court that grants a petition for a new trial, such a petition is clearly not
part of an appeal. In addition, the statute governing the appeal rights of
defendants, General Statutes § 54-95, makes clear that a defendant ‘‘may be
relieved by appeal, petition for a new trial or writ of error . . . .’’ The
disjunctive ‘‘or’’ in the statute further crystalizes our conclusion that a
petition for a new trial is not part of an appeal.
Additionally, the rules of practice concerning motions for a new trial,
Practice Book §§ 42-53 to 42-55, are contained in the chapter pertaining to
trial procedure in criminal matters before the Superior Court, not in the
chapter containing our rules of appellate procedure. Therefore, we conclude
that a motion for a new trial, likewise, is not part of an appeal.
12
The respondent cites to, but then does not explain, a line in Crawford
v. Commissioner of Correction, supra, 294 Conn. 194, where our Supreme
Court stated that ‘‘attorney error short of ineffective assistance of counsel
does not adequately excuse compliance with our rules of . . . procedure.’’
(Internal quotation marks omitted.) Given the requirements of Anders, we
would be hard-pressed to find ineffective assistance were it claimed, and,
thus, we conclude that this quote is not relevant to the present case.
13
The Anders brief was not in the habeas trial record, but was included
in the petitioner’s trial court file. We have read the brief and take judicial
notice of its contents. See Grant v. Commissioner of Correction, 87 Conn.
App. 814, 817, 867 A.2d 145, cert. denied, 274 Conn. 918, 879 A.2d 895 (2005).
14
The petitioner’s criminal trial record shows that the prosecutor denied
having made any deal with Ellis, though he eventually admitted that he had
told Ellis that his sentencing judge would be told that Ellis gave a statement.
Whatever then occurred between the prosecutor and Ellis after the trial
does not appear in the record.
15
We reject any notion that counsel ‘‘should have known of such claims
through the exercise of reasonable diligence.’’ See, e.g., Stockton v. Murray,
41 F.3d 920, 925 (4th Cir. 1994), cert. denied sub nom. Stockton v. Angelone,
515 U.S. 1187, 116 S. Ct. 37, 132 L. Ed. 2d 918 (1995). Anders requires that
appellate counsel look to the record, nothing more. See Anders v. California,
supra, 386 U.S. 744. We conclude that it would be unreasonable to expect
appellate counsel who had nothing to do with the trial to look beyond the
record for colorable claims on appeal. See Amiel v. United States, 209 F.3d
195, 198 (2d Cir. 2000) (appellant’s claim preserved from procedural default
where appellant was represented by new counsel on direct appeal and claim
was based on events outside trial record).
16
Although Washington predates Wainwright v. Sykes, supra, 433 U.S.
72, its holding allowing the petitioner to make his due process claim despite
possible procedural shortcomings is directly applicable and not in conflict
with Wainwright.
17
The Second Circuit did think that the petitioner’s trial counsel in Vincent
had other alternatives, namely, that he could ‘‘have requested a side-bar
conference or an in camera proceeding at which he could put the matter
of [the prosecutor’s] promises directly to the prosecutor.’’ United States ex
rel. Washington v. Vincent, supra, 525 F.2d 268 n.8. There are two reasons
why we are not swayed by this dictum. First, the respondent’s return in
this case claimed only procedural default through the petitioner’s failure to
directly appeal his due process claim, so anything that the petitioner’s trial
counsel could have done at trial simply is irrelevant. Second, in Vincent,
the petitioner learned of the witness’ deal from the witness himself, unlike
in this case where the prosecutor responded affirmatively to the trial court’s
question regarding whether he would make Ellis’ sentencing judge aware
of his statement. Because we also conclude that the petitioner’s trial counsel
exhausted his available means of exposing the prosecutor’s promise to Ellis;
see footnote 21 of this opinion; we fail to see another way that the jury
would have learned of Ellis’ uncorrected false testimony. And, unlike in
Vincent, the prosecutor in this case bolstered Ellis’ credibility by suggesting
to the jury that Ellis had nothing to gain, sharpening the already substan-
tial prejudice.
18
It bears mentioning that the court found Ellis’ testimony to be false,
and the respondent also conceded its falsity during oral argument before
this court.
19
Bennett, the other man charged with and tried for Williams-Bey’s murder,
did not testify at the petitioner’s criminal trial.
20
In a comprehensive charge, the trial court instructed the jury concerning
Ellis’ testimony as follows: ‘‘[I]n weighing the testimony of Benjamin Ellis,
who is, as I mentioned, a self-confessed criminal, you should consider that
fact. It may be that you would not believe a person who’s committed a
crime as readily as you would believe a person of good character. In weighing
the testimony of an accomplice who has not yet been sentenced, or whose
case, actually, to say correct[ly], has not yet been disposed of, it’s still
pending; you should keep in mind that he may be looking for some favorable
treatment in the sentence or disposition of his own case. Therefore his
testimony may have been colored by that fact. You must look, with particular
care, at the testimony of an accomplice and scrutinize it very carefully
before you accept it. There are many offenses that are of such character
that the only persons capable, however, of giving useful testimony are those
who themselves were implicated in the crime. It’s for you to decide . . .
what credibility you will give to Mr. Ellis, who has admitted his involvement
in criminal wrongdoing, whether you will believe or disbelieve the testimony
of Mr. Ellis, who, by his own admission, contributed to the crime charged
by the state here. Like all other questions of credibility, this is a question
you must decide based on all the evidence presented to you. You had an
extensive opportunity to observe his demeanor on the stand. He was cross-
examined extensively. His testimony, I must caution you, must be scrutinized
carefully and if you find that he . . . intentionally assisted in the commis-
sion or aided in the commission of the offense or offenses, [with] which
[the petitioner] is charged, you must be particularly careful in regard to his
testimony. In weighing Mr. Ellis’ testimony you should bear in mind that
his charges arising from this incident are still pending. The ultimate charges
he will face have not yet been determined. They may be the same. They
may be changed. You should keep in mind that he may be looking for
favorable treatment in the disposition of his own case. You may consider
whether his testimony was colored by that fact and look, with particular
care, upon his testimony and scrutinize it very carefully before you accept
it. In addition, in considering his credibility, you may consider any motive
he had for testifying falsely to implicate the accused. While Mr. Ellis has
been charged with murder and conspiracy to commit murder of Kendall
Williams-Bey, he’s not yet been tried on those charges. In viewing this, you
may consider the fact that the state’s attorney may, without approval of
the court, [change the] charges or possibly even drop [them] if the state’s
attorney states a reason for that . . . on the record. I have no indication,
nor is there any evidence, that that will be done. But Mr. Ellis was cross-
examined on those issues in general and in particular and you got the
opportunity to evaluate his credibility. You may consider all of this in decid-
ing whether Mr. Ellis has any interest in the outcome of this case or any
bias . . . or prejudice concerning any party or any matter involved in the
case.’’ (Emphasis added.)
We note that the trial court stated that there was no evidence that the
prosecutor would change or drop any charges in Ellis’ pending case. At the
later trial of this habeas petition, it became evident that the prosecutor
dropped or reduced Ellis’ charges, a fact that obviously is not in the petition-
er’s criminal trial record.
21
In his brief, the respondent highlights the attempt of the petitioner’s
trial counsel to impeach Ellis with his false testimony. At oral argument,
the respondent’s counsel was asked what else the petitioner’s trial counsel
could have done when Ellis persisted with false testimony in light of the
prosecutor’s silence. Counsel argued that the petitioner’s trial counsel could
have asked for a stipulation or an instruction, or could have presented
Ellis with the transcript of the proceeding in which the prosecutor put the
agreement on the record.
Given the prosecutor’s persistent denial of any promise, it is unlikely that
he would have stipulated to the fact that Ellis’ testimony on the issue was
false, particularly in light of his later capitalization on Ellis’ lie in closing
argument. We similarly are unconvinced that any requested instruction
would have been probable because it would have required the trial court
to take judicial notice of the truth of a statement that it could not validate,
as the court was not a witness to the promise made to Ellis.
22
In his operative petition, the petitioner framed his claim as follows:
‘‘Pursuant to the fifth, sixth and fourteenth amendments [to] the United
States constitution, article first, §§ 8 and 9, of the Connecticut constitution,
[Brady] and [Adams], the petitioner’s constitutional rights were violated
because the prosecuting authority failed to correct [the] false testimony of
Benjamin Ellis and/or failed to disclose exculpatory materials.’’
At the habeas trial and in his appellate briefs, the petitioner referred to
his claim as a violation of Brady, Napue and Giglio. We observe that,
although Napue predated Brady, Napue and Giglio are often conflated with
Brady. See United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87
L. Ed. 2d 481 (1985) (Napue and Giglio fall within Brady rule). We, thus,
take the petitioner’s claim of a Brady violation to include references to
Napue and Giglio, especially in light of his claim in his operative petition
that Ellis testified falsely. See Adams v. Commissioner of Correction, 309
Conn. 359, 363 n.6, 71 A.3d 512 (2013). Regardless, Adams incorporated
Brady, Napue and Giglio into its framework, so a claim of an Adams
violation would necessarily include the full breadth of the three cases,
among others.
23
The habeas court’s finding of the falsity of Ellis’ statement is a factual
determination subject to clear error review. See State v. Satchwell, 244
Conn. 547, 561–62, 710 A.2d 1348 (1998). We find no clear error in this
finding. In addition, the respondent concedes that the finding as to the falsity
of Ellis’ testimony was not clearly erroneous.
24
The petitioner and the respondent disagree on when the petitioner and
his various counsel learned about the falsity of Ellis’ testimony, but for
reasons that will become clearer in our discussion, such a distinction is
irrelevant.
25
The respondent concedes that the state’s case against the petitioner
was not strong without Ellis’ testimony.
26
State v. Williams, 204 Conn. 523, 529 A.2d 653 (1987).
27
Our Supreme Court concurred with this court’s determination that there
was ‘‘no reasonable likelihood that the potentially misleading testimony
could have affected the judgment of the jury’’ because ‘‘there was overwhelm-
ing evidence of the defendant’s guilt even without the testimony of [the
witnesses].’’ State v. Jordan, supra, 314 Conn. 371–72. Here, Ellis’ testimony
placing the petitioner at the scene of the killing with the likely murder
weapon in his hand was vital to the petitioner’s conviction, so we cannot
similarly say that the jury was unaffected by his testimony and the prosecu-
tor’s subsequent reliance on it during closing argument.
28
The petitioner also claimed that his sixth and fourteenth amendment
rights to confront the witnesses were violated when the trial court refused
to allow his trial counsel to cross-examine the witnesses on charges pending
against them to show bias, interest or motive. United States ex rel. Annunzi-
ato v. Manson, supra, 425 F. Supp. 1275. The District Court agreed; id., 1277;
and the Second Circuit affirmed. Annunziato v. Manson, 566 F.2d 410, 414
(2d Cir. 1977).
29
In this case, we also observe that the prosecutor must have thought it
was important to deny that Ellis had been promised any consideration for
his testimony because he stated in both his closing and rebuttal arguments
that Ellis had everything to lose and nothing to gain in giving his statements to
the police and that any expectations he might have were ‘‘in his mind . . . .’’
30
In reading Giglio and Napue against Brady, it becomes clearer how
disclosure in Brady can mean disclosure to the defendant while disclosure
in Napue and Giglio can mean disclosure to the jury. In Brady v. Maryland,
supra, 373 U.S. 84, the suppressed evidence was a statement made to the
police by a codefendant. Under the rules of evidence, such a statement
would be admissible as evidence for substantive purposes. See also State
v. Whelan, 200 Conn. 743, 753–54, 513 A.2d 86, cert. denied, 479 U.S. 994,
107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). When a witness gives false testimony,
however, the prosecutor and the witness himself are the keepers of the
truth. Without evidence of the falsity of the statement through admission
by the witness, disclosure to the defendant or his counsel of any consider-
ation the state offers to a cooperating witness is useless unless the jury
gets to hear it.
31
The ambiguity in what level of disclosure is required seems to have
started with State v. Paradise, supra, 213 Conn. 388. Besides pointing out
that Giglio is meant to ensure that the jury knows the facts, the court in
Paradise also cited to a case from the United States Court of Appeals for
the Third Circuit, which stated: ‘‘Regardless of the lack of intent to lie on
the part of the witness, Giglio and Napue require that the prosecutor apprise
the court when he knows that his witness is giving testimony that is substan-
tially misleading.’’ (Internal quotation marks omitted.) Id., 400, quoting
United States v. Harris, 498 F.2d 1164, 1169 (3d Cir.1974), cert. denied sub
nom. Young v. United States, 419 U.S. 1069, 95 S. Ct. 655, 42 L. Ed. 2d 665(1974). This language from Harris that was cited in Paradise was later
quoted in State v. Ouellette, supra, 295 Conn. 186, which was then cited in
Hines without attribution to Harris. Hines v. Commissioner of Correction,
supra, 164 Conn. App. 727–28. In Ouellette, however, the plea agreement
with the cooperating witness was revealed to the defendant, judge and the
jury. State v. Ouellette, supra, 187.
Additionally, Harris did not turn on what level of disclosure was required
because ‘‘defense counsel waived their objections to the impropriety by
consciously failing to take any steps to minimize the resulting prejudice.’’
United States v. Harris, supra, 498 F.3d 1166. Indeed, in discussing the
waiver issue, the court pointed out defense counsel’s lack of effort to disclose
the government’s agreement with the cooperating witness to the jury or to
proffer the prosecutor’s stipulation regarding the same to the jury. Id., 1170.
Likewise, in Paradise, our Supreme Court found it unnecessary to deter-
mine if the defendant’s claims regarding false testimony concerning an
agreement with the state were true because the cooperating witness stated
in his testimony that he hoped to receive a lower sentence by testifying.
State v. Paradise, supra, 213 Conn. 400–401. Because the jury actually
learned of the witness’ motivation for testifying, there was no Giglio viola-
tion. Id., 401. Thus, any citation to Ouellette, Harris or Paradise for the
notion that Giglio is satisfied by disclosure to the court or defense without
notifying the jury does not arise out of the facts of any of those cases.
Previously in this opinion, we also observed that Brady, Napue and Giglio
often are conflated. See footnote 22 of this opinion; United States v. Bagley,
supra, 473 U.S. 676. We have no doubt that this conflation plays a role in
the confusion over what level of disclosure is required because disclosure
to defense counsel is all that is required in a typical Brady case. See State
v. Dolphin, 195 Conn. 444, 455–56, 488 A.2d 812 (‘‘[e]vidence known to the
defendant or his counsel, or that is disclosed, even if during trial, is not
considered suppressed as that term is used in Brady’’), cert. denied, 474
U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985).
32
Much like our Supreme Court said in Ouellette and elsewhere, we ‘‘are
cognizant of the exhortation of the United States Supreme Court that ‘it is
upon such subtle factors as the possible interest of the witness in testifying
falsely that a defendant’s life or liberty may depend.’ Napue v. Illinois,
supra, 360 U.S. 269. Only through complete and candid disclosure of a
witness’ interest can the jury accurately gauge the credibility of the testi-
mony proffered.’’ (Emphasis added.) State v. Ouellette, supra, 295 Conn. 190.
33
Jenkins was cited approvingly in State v. Ouellette, supra, 295 Conn.
186, for its discussion of the application of Napue and Brady to undisclosed
plea agreements.
34
The prosecutor even objected when defense counsel attempted to elicit
the truth of any deal on cross-examination. Jenkins v. Artuz, supra, 294
F.3d 288.
35
The only evidence placing the petitioner in DuBose at the crime scene
other than the witness’ testimony stemmed from ‘‘an incoherent and frenzied
statement by [the petitioner] when he went to the police station looking
for one of the investigating officers, and, while dashing his head on a railing,
said something described by various witnesses as ‘I killed him’ or ‘I kill ‘im’
or ‘I’ll kill him’ and later, while rolling on the floor, accused the investigator
of tricking him. The prosecution contended this was a confession.’’ DuBose
v. Lefevre, supra, 619 F.2d 974.
36
Wallach also distinguishes between situations where the prosecutor
knows or should have known of perjured testimony and those where he
does not. In the case ‘‘[w]here the prosecution knew or should have known
of the perjury, the conviction must be set aside if there is any reasonable
likelihood that the false testimony could have affected the judgment of the
jury.’’ (Internal quotation marks omitted.) United States v. Wallach, supra,935 F.2d 456. But, ‘‘[w]here the government was unaware of a witness’
perjury . . . a new trial is warranted only if the testimony was material
and the court [is left] with a firm belief that but for the perjured testimony,
the defendant would most likely not have been convicted.’’ (Internal quota-
tion marks omitted.) Id. This is not a case where the prosecutor was unaware
of what he promised to the witness, so we need only conclude that Ellis’
false testimony could have affected the jury’s judgment, which we do.
37
Although, as noted, other federal Courts of Appeals have held that the
prosecutor’s knowing use of such false testimony in summation violates
due process despite any disclosure to the defendant, we are particularly
attuned to the Second Circuit opinions because, after the petitioner in this
case exhausts his remedies in our state courts, it augurs how his case would
turn out in federal court. That other circuits have ruled in the same manner
only bolsters our conclusion.
38
One federal Court of Appeals has gone so far as to hold that due process
was violated where the prosecutor elicited false testimony from a govern-
ment witness and argued during closing argument that the witness was
credible, then conceded in rebuttal argument that the witness had lied, but
argued that the lie was unimportant because the defense could no longer
explain why the lie was important. United States v. LaPage, 231 F.3d 488,
492 (2000), amended, 271 F.3d 909 (9th Cir. 2001) (adding dissent). Another
held that due process was violated despite the prosecutor disclosing some
of the terms of the agreement to the jury in his opening statement because
the whole agreement was not disclosed and ‘‘an opening statement is not
evidence.’’ United States v. Bigeleisen, 625 F.2d 203, 208 (8th Cir. 1980).
39
The respondent argues that the prosecutor’s comment that Ellis had
‘‘nothing to gain’’ referred to his statements to police. At worst, the respon-
dent claims, the remarks were ambiguous. The respondent’s argument
ignores both the context of the statement and the bevy of other remarks
the prosecutor made in summation that falsely implied that Ellis had been
made no promises and that any expectations were in his mind.
40
What occurred with Ellis’ later pleas and sentence reductions is relevant
in confirming that a promise, in fact, had been made, but only to prove that
the petitioner’s due process rights were violated at his criminal trial. Outside
of this confirmation, neither our Jordan nor Hines analyses depends on
what occurred after trial because the due process violation either occurred
when the prosecutor failed to disclose to the jury his promise to Ellis
(Jordan) or when the prosecutor relied on Ellis’ false testimony in closing
and rebuttal arguments (Hines/Jenkins).
41
Although the petitioner used a double negative, it is clear from context
that he did not want Douglas to testify about any involvement the petitioner
may have had.
42
The petitioner was sentenced to an effective sentence of sixty years of
incarceration, which included a sixty year term for the murder charge, a
twenty year term for the conspiracy to commit murder charge, which was
ordered to run concurrent with the murder sentence, and a five year term
for the tampering charge, which was ordered to run consecutive to the
conspiracy sentence, but concurrent with the murder sentence. We note
that the petitioner has been incarcerated since before his conviction on the
charges and that he likely has served his sentence on the tampering convic-
tion by this point in time.