Gould v. Commissioner of Correction

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GEORGE M. GOULD v. COMMISSIONER
OF CORRECTION
(AC 35093)
DiPentima, C. J., and Alvord and Foti, Js.
Argued May 19—officially released September 15, 2015
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
Damon A. R. Kirschbaum, with whom, on the brief,
was Vishal K. Garg, for the appellant (petitioner).
Melissa Patterson, assistant state’s attorney, with
whom, on the brief, were Michael Dearington, state’s
attorney, John Waddock, supervisory assistant state’s
attorney, Angela R. Macchiarulo, senior assistant
state’s attorney, and Marcia Pillsbury, assistant state’s
attorney, for the appellee (respondent).
Opinion
FOTI, J. The petitioner, George M. Gould, appeals
from the judgment of the habeas court denying his
second amended petition for a writ of habeas corpus,
following remand from our Supreme Court. See Gould
v. Commissioner of Correction, 301 Conn. 544, 571, 22
A.3d 1196 (2011). The petitioner’s habeas claims focus
on the allegedly perjured testimony of a witness at his
criminal trial. On appeal, the petitioner claims that the
habeas court’s factual findings are clearly erroneous.
We affirm the judgment of the habeas court.
This matter has a lengthy and complex procedural
history. Following a jury trial, the petitioner and his
now deceased codefendant, Ronald Taylor, were found
guilty of felony murder, robbery in the first degree,
criminal attempt to commit robbery in the first degree,
and conspiracy to commit robbery in the first degree.
See State v. Gould, 241 Conn. 1, 3, 695 A.2d 1022 (1997).
On direct appeal, our Supreme Court concluded that the
jury reasonably could have found the following facts:
‘‘On July 4, 1993, at approximately 5:35 a.m., [the
petitioner and Taylor] entered La Casa Green, a retail
store, on Grand Avenue in New Haven. The owner,
Eugenio Vega, had opened the store shortly after 5 a.m.
and was the only person in the store. [The petitioner
and Taylor] tied up Vega’s hands with electrical cord,
placed him in the store’s cooler, and fatally shot him
in the head. [The petitioner and Taylor] took money
and jewelry from Vega’s safe and searched through
Vega’s wallet.
‘‘The state’s principal witness was Doreen Stiles.1 She
testified that after she observed [the petitioner] enter
the store, she hid in the alleyway next to the store.
From her hiding place, Stiles heard the voices of three
people arguing in the store, including Vega, who was
screaming. She distinctly heard Vega and [the petitioner
and Taylor] arguing about money and opening the safe.
After a couple of minutes, Stiles heard a single gunshot.
She then observed both [the petitioner and Taylor] leave
the store.’’ Id., 5.
The jury found the petitioner and Taylor guilty. The
trial court, Fracasse, J., rendered judgment in accor-
dance with the jury’s verdict and sentenced each of the
men to a total effective term of eighty years incarcera-
tion. Id., 4. The petitioner appealed his conviction
directly to our Supreme Court, which affirmed the peti-
tioner’s conviction. Id., 24.
Thereafter, in October, 2003, the petitioner filed a
petition for a writ of habeas corpus. In his petition, he
alleged that he had received ineffective assistance from
his trial counsel, and that he was actually innocent. The
petitioner predicated his claim of actual innocence on
Stiles’ recantation of her trial testimony to Gerry O’Don-
At the first habeas trial in August, 2009, the petitioner
called Stiles to testify on his behalf. As recounted by
the second habeas court, Stiles specifically indicated
that she had fabricated the entirety of her criminal trial
testimony, and that she had provided her statement to
police after being detained during a prostitution sweep.
Stiles, a heroin addict, began to suffer withdrawal symp-
toms during the several hours of questioning. She testi-
fied that detectives refused to release her until she told
them what they wanted to hear, and that they informed
her that they would drive her to buy heroin if she con-
firmed that she was at the scene when the homicide
occurred. She further testified she was never at La Casa
Green at the time of the homicide, and had identified
the petitioner and Taylor from a photographic array
based on implicit body language given by the detectives.
See Gould v. Commissioner of Correction, supra, 301
Conn. 554.
Stiles acknowledged that she had never told anyone
that she had lied about events during the criminal trial
until she was approached by O’Donnell some time after
the petitioner’s conviction. O’Donnell initially inter-
viewed Stiles while she was convalescing in a nursing
home, at which time she reiterated the version of events
she testified to at the criminal trial. O’Donnell, however,
later obtained a written and signed statement from
Stiles in which she recanted her trial testimony.
On the basis of Stiles’ testimony at the first habeas
trial, the habeas court, Fuger, J., concluded that her
recantation rendered the entirety of the petitioner’s con-
viction improper. See Gould v. Commissioner of Cor-
rection, Superior Court, judicial district of Tolland,
Docket No. CV05-4000409 (March 17, 2010). Judge
Fuger noted that the case ‘‘rises and falls on the testi-
mony of [Doreen] Stiles.’’ (Internal quotation marks
omitted.) Gould v. Commissioner of Correction, supra,
301 Conn. 551. He concluded that ‘‘[w]hat is not proven
is that it was [the petitioner] who committed this crime.
There was no fingerprint evidence, there was no murder
weapon recovered, there were no fruits of the crime
recovered and there was no DNA evidence at the crime
scene that in any way linked the [petitioner] to this
crime. . . . [Stiles’] statement [was] the keystone of
the evidence upon which these convictions rest.’’ (Inter-
nal quotation marks omitted.) Id., 556. As Stiles was
the only witness to observe the petitioner enter the
store, the first habeas court found that her testimony
was the only real evidence of the petitioner’s guilt. See
id., 549. Judge Fuger concluded that the petitioner was
entitled to relief on the basis of actual innocence, and
as a consequence he granted the petition for a writ of
habeas corpus. The respondent, the Commissioner of
Correction, appealed from that judgment to our
Supreme Court.
In Gould v. Commissioner of Correction, supra, 301
Conn. 566–71, our Supreme Court held that the habeas
court had failed to apply the appropriate test for actual
innocence, and remanded the case for a new habeas
trial. The court stated that the petitioner, after being
convicted, was no longer protected by the presumption
of innocence. Id., 567. Under the test for actual inno-
cence articulated in Miller v. Commissioner of Correc-
tion, 242 Conn. 745, 700 A.2d 1108 (1997), the petitioner
was required to adduce evidence that demonstrated he
was not guilty. Gould v. Commissioner of Correction,
supra, 566–67. The court noted that although Stiles’
perjury entirely undermined the state’s case, it did not
satisfy the petitioner’s burden to prove his innocence.
Id. The court also noted that the petitioner had not
claimed on appeal that the use of perjured testimony
was an independent due process violation, and afforded
him the opportunity to amend his habeas petition to
advance that claim on remand. Id., 569–71.
In his second amended petition filed on November
10, 2011, the petitioner alleged that he was actually
innocent and that the use of perjured testimony by the
state constituted a violation of his due process rights
to a fair trial.2 Following a second habeas trial, the
second habeas court, Sferrazza, J., found that the peti-
tioner had not proven that he was actually innocent. It
further found that Stiles did not commit perjury at the
criminal trial, and as a consequence, the petitioner was
not deprived of a fair trial. Judge Sferrazza based that
conclusion in part on Stiles’ subsequent disavowal of
her recantation before the start of the second habeas
trial.
Judge Sferrazza found that on July 6, 2011, Stiles told
Tony Reyes, a detective sergeant with the New Haven
Police Department, that her criminal trial testimony
was accurate. Stiles claimed that O’Donnell elicited her
recantation through a combination of threats of prose-
cution and gifts, as well as an implied promise that
she would receive a portion of any monetary damages
awarded to the petitioner for his wrongful incarcera-
tion. When O’Donnell stopped contacting Stiles after
she testified at the first habeas trial, she decided to
inform Reyes that her recantation was false. Stiles sub-
sequently repeatedly switched between the two stories
to various individuals, asserting that one or the other
was true.
At the second habeas trial, the habeas court examined
the recording of Stiles’ original criminal trial testimony.
When called to testify at the second habeas trial, Stiles
exercised her fifth amendment privilege against self-
incrimination and refused to testify. O’Donnell initially
testified on behalf of the petitioner at the second habeas
trial, but when recalled to provide further testimony
regarding Stiles, he also invoked his privilege against
self-incrimination. The habeas court also heard live tes-
timony from Mary Boyd and Pamela Youmans, both
of whom Stiles testified to seeing at La Casa Green.
Although Boyd testified that she did not see Stiles at
La Casa Green, Youmans testified to observing her
before the shooting.3
The habeas court concluded that the petitioner failed
to demonstrate that Stiles had lied during the criminal
trial. The court considered the recording of her criminal
trial testimony and noted that her demeanor was calm
and assured, and that she did not appear evasive or
hesitant. Judge Sferrazza also credited Stiles’ criminal
trial testimony about the location and actions of both
Youmans and Boyd about the time of the homicide as
indicia that she was present at La Casa Green. The
court noted that the only other means by which Stiles
could have known of those witnesses was to have been
deliberately fed information by the investigating detec-
tives. The court concluded that the petitioner failed to
adduce evidence that the detectives did so.
The court further weighed O’Donnell’s gifts and
promises of monetary compensation to Stiles and found
that they undermined the validity of the recantation he
had extracted, and by extension, the truthfulness of
Stiles’ testimony at the first habeas trial. The court
specifically noted that it believed that a tape recording
provided by O’Donnell during the first habeas trial,
which he claimed contained Youmans’ recantation,
likely was fake, noting that the discrepancies in You-
mans’ manner and dialect of speech and the person on
the recording gave credibility to her claim that she was
not speaking on the tape. The court further drew an
adverse inference against O’Donnell’s credibility due to
his assertion of his fifth amendment right not to testify
in accordance with Rhode v. Milla, 287 Conn. 731, 949
A.2d 1227 (2008).4
On the bases of these factual findings, the habeas
court concluded that the petitioner had failed to demon-
strate that Stiles had perjured herself during the crimi-
nal trial, and that as a consequence his due process
claim failed.5 The second habeas court denied the peti-
tioner’s second amended petition but granted his peti-
tion for certification to appeal the court’s judgment. On
appeal, he claims that the habeas court’s finding that
Stiles did not commit perjury at the criminal trial was
clearly erroneous.6
Pursuant to General Statutes § 53a-156, a person com-
mits perjury when ‘‘in any official proceeding, such
person intentionally, under oath . . . makes a false
statement, swears, affirms or testifies falsely, to a mate-
rial statement which such person does not believe to
be true.’’ ‘‘The question of whether a witness perjured
[herself] is a factual finding, which we review under
the clearly erroneous standard. . . . When the factual
basis of the court’s decision is attacked, [w]e are called
upon to determine whether the facts set out in the
memorandum of decision are supported by the evidence
or whether, in light of the evidence and the pleadings
in the whole record, those facts are clearly erroneous.
. . . Our function is not to examine the record to see
if the trier of fact could have reached a contrary conclu-
sion. . . . The United States Court of Appeals for the
Second Circuit has made clear that in order to deter-
mine whether perjury occurred, the court must weigh
all the evidence of perjury before it, including but not
limited to the recantation . . . . Thus, the court must
go beyond the recantation to review other independent
evidence bearing on whether there was perjury at trial.’’
(Citations omitted; internal quotation marks omitted.)
Walker v. Commissioner of Correction, 103 Conn. App.
485, 498–99, 930 A.2d 65, cert. denied, 284 Conn. 940,
937 A.2d 698 (2007); see also Ortega v. Duncan, 333
F.3d 102, 107–108 (2d Cir. 2003).
‘‘The habeas court is afforded broad discretion in
making its factual findings, and those findings will not
be disturbed unless they are clearly erroneous. . . .
Historical facts constitute a recital of external events
and the credibility of their narrators. . . . Accordingly,
[t]he habeas judge, as the trier of facts, is the sole arbiter
of the credibility of witnesses and the weight given to
their testimony.’’ (Citations omitted; internal quotation
marks omitted.) Gaines v. Commissioner of Correc-
tion, 306 Conn. 664, 677, 51 A.3d 948 (2012). ‘‘[A] finding
of fact is clearly erroneous when there is no evidence
in the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Internal quo-
tation marks omitted.) Grant v. Commissioner of
Correction, 121 Conn. App. 295, 298–99, 995 A.2d 641,
cert. denied, 297 Conn. 920, 996 A.2d 1192 (2010).
The second habeas court noted in its memorandum of
decision that, given Stiles’ various stories, determining
whether she perjured herself during the criminal trial
‘‘poses a true dichotomy.’’ Stiles testified in the criminal
trial as to what she had observed at La Casa Green,
and testified at the habeas trial that she was never
there. Any resolution by the habeas court of this factual
tension results in the conclusion that Stiles presented
perjured testimony; either Stiles lied at the criminal
trial and told the truth at the habeas trial, or she told
the truth at the criminal trial and lied at the habeas
trial. The question before the habeas court was not
whether Stiles lied, but when.
The petitioner initially argues that certain alleged
discrepancies between Stiles’ various testimonies were
not addressed by the second habeas court, which dem-
onstrates that the court did not undertake a sufficiently
probing review of the evidence. The petitioner notes
that our Supreme Court has required us to ‘‘undertake
a more probing factual review when a constitutional
question hangs in the balance.’’ State v. Clark, 297 Conn.
1, 7, 997 A.2d 461 (2010). The petitioner argues that
because the habeas court did not sufficiently analyze
the evidence, we should not provide our customary
deference to the fact finder and instead essentially
review the facts of this case de novo. We decline to
adopt the petitioner’s view.
The petitioner has not convinced us to break with
our customary deference to the finder of fact. Although
our Supreme Court has applied a stricter standard of
review to factual findings when a constitutional issue
turns upon those findings, the court has merely required
that we conduct ‘‘a scrupulous examination of the
record to ascertain whether such a finding is supported
by substantial evidence.’’ (Internal quotation marks
omitted.) State v. Damon, 214 Conn. 146, 154, 570 A.2d
700, cert. denied, 498 U.S. 819, 111 S. Ct. 65, 112 L. Ed.
2d 40 (1990). Our Supreme Court has further qualified
the examination required by noting that ‘‘[n]otwith-
standing our responsibility to examine the record scru-
pulously, it is well established that we may not
substitute our judgment for that of the [fact finder]
when it comes to evaluating the credibility of a witness.
. . . It is the exclusive province of the trier of fact to
weigh conflicting testimony and make determinations
of credibility, crediting some, all or none of any given
witness’ testimony. . . . Questions of whether to
believe or disbelieve a competent witness are beyond
our review.’’ (Internal quotation marks omitted.) State
v. DeMarco, 311 Conn. 510, 519–20, 88 A.3d 491 (2014).
Our Supreme Court has never instructed this court to
discard its traditional deference to the habeas court’s
credibility determinations as part of scrupulous review.
In this case, where Stiles’ credibility is the central fac-
tual question, we review the habeas court’s factual find-
ings to determine whether they are clearly erroneous
and find support within the record.
Our scrupulous review of the record leads us to con-
clude that the habeas court’s finding that Stiles did not
perjure herself at the time of the criminal trial was not
clearly erroneous. The habeas court acted well within
its discretion to analyze and credit Stiles’ criminal trial
testimony. The court engaged in a thorough analysis of
Stiles’ demeanor and candor, and provided a detailed
rationale for concluding that her criminal trial testi-
mony was credible. That rationale not only included
Stiles’ demeanor during her testimony, but also the sub-
stance of her testimony, which corroborated details
provided by Boyd and Youmans.
Furthermore, we agree with the habeas court’s con-
clusion that Stiles’ recantation, and by extension, testi-
mony at the first habeas trial, lacked credibility,
particularly due to the tainted source from which it
emerged—O’Donnell. The habeas court’s conclusions
about O’Donnell’s actions—namely, that he provided
gifts and promises of monetary compensation to Stiles
and that he made a bogus tape recording of Youmans—
resulted in the appropriate use of an adverse inference
against him. As the individual solely responsible for
Stiles’ recantation, his suspect credibility undermined
whatever value the recantation had in the context of
her ever changing recitation of events.
The petitioner argues that Stiles’ recantation of her
criminal trial testimony during the first habeas trial
clearly indicates that her criminal trial testimony lacks
credibility. He further argues that Judge Fuger was able
to hear Stiles’ recantation testimony live and in-person,
whereas Judge Sferrazza was only able to observe the
video recording of the criminal trial and the transcripts
of the first habeas trial. As a consequence, the petitioner
argues, we should defer to Judge Fuger’s factual find-
ings in the present case and conclude that the second
habeas court’s findings were clearly erroneous. The
petitioner has presented no authority to support his
argument.
As our Supreme Court noted upon its review of the
first habeas trial, ‘‘[a]ppellate courts never act as finders
of fact. . . . When a witness presents conflicting testi-
mony, a question of credibility arises that must be
assessed by the trier of fact.’’ (Citations omitted.) Gould
v. Commissioner of Correction, supra, 301 Conn. 566.
Judge Sferrazza did not base his factual findings purely
on the testimony of Stiles. The second habeas court was
in the position to evaluate all of the evidence provided in
the present case, some of which was not before the
first habeas court, specifically, the testimony regarding
O’Donnell’s alleged inducement of Stiles’ recantation
and her subsequent disavowal of that recantation. We
will not second-guess the fact finder merely because
another fact finder, with different evidence related to
the same events, came to a different conclusion. Such
an act is beyond our purview.
The habeas court characterized Stiles’ memory of
events as ‘‘mercurial and even mercenary.’’ It is clear
from the record that Stiles has repeatedly changed her
story depending upon who was listening and what was
at stake for her. The habeas court is best placed to
weigh Stiles’ contradictory stories and consider the
credibility of her recantations in the context of the three
trials, especially in light of O’Donnell’s interference.
The court concluded that Stiles’ testimony subsequent
to the criminal trial carried little persuasive weight, and
concluded that certain aspects of Stiles’ criminal trial
testimony were indicative of truthfulness, particularly
that which was consistent with the testimony of Boyd
and Youmans. Merely recanting earlier testimony does
not automatically make such testimony false. The peti-
tioner has not adduced any evidence, beyond that of a
suspect initial recantation that has in turn been disa-
vowed, which would demonstrate that Stiles knowingly
lied during the criminal trial.
In this case, where Stiles changed her story fre-
quently, it is for the trier of fact to determine which
story is credible and the effect to be given the testimony.
Talton v. Warden, 33 Conn. App. 171, 179, 634 A.2d 912
(1993), aff’d, 231 Conn. 274, 648 A.2d 876 (1994). The
habeas court articulated numerous valid reasons to con-
sider Stiles’ criminal trial testimony credible and her
testimony at the first habeas trial false. The petitioner
has failed to show how those reasons are unsupported
by the evidence. We therefore conclude that the peti-
tioner has failed to demonstrate that the habeas court’s
finding that Stiles did not perjure herself at the criminal
trial was clearly erroneous, and as a consequence his
claim fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
At the time of the petitioner’s criminal trial, Stiles was hospitalized. As
a consequence, her testimony was recorded at the hospital, with the judge,
counsel for the parties, a court monitor, the petitioner, and Taylor present.
The hospital testimony included a full cross-examination, and was edited
so that when played for the jury it included no testimony that had been
excluded by way of objection.
2
The petitioner also alleged a claim of ineffective assistance of counsel,
which is not before this court on appeal.
3
This testimony was substantially the same as their testimony at both
the first habeas trial and the criminal trial.
4
‘‘[I]t is settled law in other jurisdictions that a nonparty’s invocation of the
fifth amendment privilege against self-incrimination [in a civil proceeding] is
admissible evidence so long as it does not unduly prejudice a party to the
case. . . . In making this determination, factors that courts should consider
include: (1) the [n]ature of the [r]elevant [r]elationships . . . [as] invariably
. . . the most significant circumstance, examined . . . from the perspec-
tive of a non-party witness’ loyalty to the [petitioner] or [respondent] as the
case may be; (2) the [d]egree of [c]ontrol of the [p]arty [o]ver the [n]on-
[p]arty [w]itness, such as whether the assertion of the privilege may be
viewed as a vicarious admission; (3) the [c]ompatibility of the [i]nterests
of the [p]arty and [n]on-[p]arty [w]itness in the [o]utcome of the [l]itigation
. . . and (4) the [r]ole of the [n]on-[p]arty [w]itness in the [l]itigation, such
as [w]hether the non-party witness was a key figure in the litigation and
played a controlling role in respect to any of its underlying aspects . . . .’’
(Citations omitted; internal quotation marks omitted.) Rhode v. Milla, supra,
287 Conn. 737–39.
5
The habeas court also concluded that the petitioner had not proven his
actual innocence. The petitioner has not raised a claim challenging that
conclusion on appeal.
6
The petitioner also claims that the habeas court applied the wrong legal
test when determining whether the use of perjured testimony constituted
a due process violation. As we conclude that the habeas court’s finding that
Stiles did not commit perjury at the criminal trial was not clearly erroneous,
we need not address this claim.