February 1, 2018
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
Jennifer L. Bourn, assistant public defender, with whom, on
the brief, was Denis J. O'Malley, certified legal intern,
for the appellant (petitioner).
J. Scheinblum, senior assistant state's attorney, 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).
Sheldon, Bright and Flynn, Js.
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' testimony. 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
antithetical to due process under the fourteenth amendment to
the United States constitution.
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 claimwas 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 petitioner's claims as they pertain to his
underlying convictions 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 petition 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 §
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.
trial, only two witnesses implicated the petitioner in
Williams-Bey's murder: Benjamin Ellis and Evelyn
Douglas. Ellis, a cooperating witness, testified
that he drove the petitioner and another man, later
identified as Trevor Bennett,  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 identification and
testing expert, testified that the bullet that killed
Williams-Bey was fired from a revolver.
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 established that.
times prior to Ellis' trial testimony, the
petitioner'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 petitioner's
trial counsel wanted to know if the state had promised
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
‘‘The Court: . . . Now, was anything offered to
‘‘[The Prosecutor]: No, Your Honor. It's
standard routine, 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 cooperation 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 . . . .''
the trial, the prosecutor asked Ellis whether he was made any
promises in exchange for his testimony, 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,
‘‘Q. Okay. And was it your understanding as a
result of the meeting that the state wanted you to testify
‘‘Q. Okay. And was it your understanding that if
you testified truthfully, the state would take that into
consideration 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
understanding that if you testified truthfully, the state
would take that into consideration in deciding the outcome of
‘‘A. I'm not sure.
‘‘Q. You're not sure?
‘‘Q. Was it discussed?
the petitioner's trial counsel questioned Ellis as
‘‘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
‘‘A. I was never told that.
‘‘Q. And you don't have that expectation?
‘‘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
‘‘A. No. I understand.
‘‘Q. You are aware of that?
‘‘A. I wasn't sure of that, but now I
closing argument, after Ellis had given testimony inculpating
the petitioner in the killing, 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.'' 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
record reveals that the prosecutor never corrected 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 cooperation and truthfulness to the
attention of the sentencing court.
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
Anders 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 petitioner then represented himself
pro se until withdrawing his direct appeal seven years later
on April 10, 2013.
testifying at the petitioner's and Bennett's criminal
trials, Ellis, on November 4, 2004, pleaded guilty to
violating General Statutes § 53a-59 (a) (3), accessory
to assault in the first degree. 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 sentencing 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 sentence, which he was serving at
the time of the petitioner'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), which requires the assent of
the prosecuting authority prior to its reduction.
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 Correction, 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
petitioner 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
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 subsequent 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 testified that the prosecutor made no
specific promises, other than to convey Ellis'
cooperation to his sentencing judge.
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.
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 testimony in closing arguments.
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
petitioner first claims that the habeas court abused its
discretion in denying his petition for certification 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 ...