March 26, 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 the Appellate Court,
DiPentima, C. J., and Mullins and Foti, Js., which dismissed
the appeal, and the petitioner, on the granting of
certification, appealed to this court. Affirmed.
E. Mortimer, assigned counsel, for the appellant
Hanna, assistant state's attorney, with whom, on the
brief, were Gail P. Hardy, state's attorney, and Angela
Macchiarulo, senior assistant state's attorney, for the
Palmer, McDonald, Robinson, D'Auria and Kahn, Js.
certified appeal, we are asked to consider whether the state
violated the due process rights of the petitioner, Julian
Marquez, by not disclosing an alleged agreement between the
state and Edwin Soler, a testifying accomplice in the
petitioner's underlying criminal case, and by failing to
correct Soler's allegedly false testimony that no such
agreement existed. The state charged the petitioner and Soler
with felony murder and robbery related charges following the
murder of Miguel Delgado, Jr., during the course of a robbery
at Delgado's apartment. After Soler provided testimony
implicating the petitioner as the person who murdered
Delgado, and after the petitioner was convicted of felony
murder, the state declined to prosecute the felony murder
charge against Soler. Although the prosecutor denied during
the petitioner's criminal trial that the state had
entered into any formal arrangement with Soler in exchange
for his testimony, he acknowledged that he had presented to
Soler's attorney potential
‘‘hypothetical'' outcomes that could come
about if Soler were to testify truthfully against the
appeal to this court, the petitioner asks us to conclude,
contrary to the determination of the habeas court and the
Appellate Court; Marquez v. Commissioner of
Correction, 170 Conn.App. 231, 240, 154 A.3d 73 (2017);
that the state had an agreement with Soler that it had not
disclosed to the petitioner in violation of Brady v.
Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963); see also Giglio v. United States, 405 U.S.
150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v.
Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d
1217 (1959); and in contravention of the fourteenth amendment
to the federal constitution. U.S. Const., amend. XIV, §
1. The petitioner also asks us to conclude that the
nondisclosure of this agreement was ‘‘material,
'' warranting the relief he sought from the habeas
not consider whether the state had an undisclosed deal with
Soler because, even if we assume that such an agreement was
struck, we are nonetheless persuaded that there is no
reasonable likelihood that disclosure of the agreement would
have affected the judgment of the jury. Consequently, we
conclude that there was no due process violation because the
lack of any disclosure was immaterial under Brady v.
Maryland, supra, 373 U.S. 87, and, therefore, we affirm
the judgment of the Appellate Court on that alternative
petitioner's criminal trial, the state presented evidence
to establish the following facts, as recounted in our prior
review in the petitioner's direct appeal. See State
v. Marquez, 291 Conn. 122, 967 A.2d 56, cert.
denied, 558 U.S. 895, 130 S.Ct. 237, 175 L.Ed.2d 163
(2009). In 2003, two friends, Mark Clement and Christopher
Valle, were visiting Delgado, a mutual friend, at
Delgado's apartment in Hartford, where the robbery and
murder took place. Id., 126. Others joined them to
socialize at the apartment, as was the regular practice on
the weekends at this location. Id.
front door of the apartment opened to the living room, and
the apartment had a small game room and a kitchen connected
to the living room. Id., 126-27. On the evening of
the murder, the living room was illuminated only indirectly
by light emanating from the kitchen and the game room.
Id., 127. There was a couch on the back wall of the
living room that faced the front door. Id. The front
door opened into a lighted common hallway. Id., 126.
people visited the apartment intermittently throughout the
night, while Delgado, Clement and Valle primarily remained in
the game room playing games and drinking alcoholic beverages.
Id., 127. At around midnight, Valle was preparing to
leave the apartment when he exited the game room to say
goodbye to Del-gado, who was standing just inside the front
door attempting to get rid of two men who stood in the
hallway. Id. As Valle approached the front door, he
saw someone with a gun in the hallway and described him as a
Hispanic male in his early twenties, wearing braids and black
clothing. Id. The gunman then pointed a handgun
directly at Valle and entered the apartment, along with
another man. Id.
Delgado, Clement, and one other man present in the apartment
were ordered to sit down on the couch. Id. After the
men were gathered on the couch in the living room, the two
intruders were only a few feet away for a period of several
minutes. Id. Both Valle and Clement had multiple
opportunities to see the intruders' faces. Id.,
127-28. Valle saw the gunman's face in the brightly lit
hallway prior to his entrance into the apartment and, when
Valle was seated in the living room, saw the gunman's
face illuminated by light from the kitchen. Id.,
128. Clement first saw the gunman's face when the gunman
entered the apartment and briefly walked into the lighted
game room, and, again, when they were all in the living room
that was illuminated by the kitchen light. Id.
intruders ordered the men to surrender their valuables, which
they did. Id. The intruders were dissatisfied with
Delgado's offer of a small amount of marijuana, believing
Delgado had money and drugs elsewhere in the apartment.
Id. When the intruders sought access to the bedroom
of the apartment, which was attached to the kitchen, Delgado
suddenly rushed the gunman and grabbed him, causing a
struggle to ensue between Delgado and the gunman.
Id., 127-28. Three shots rang out, and Clement and
Valle fled to the game room as Delgado fell to the floor.
Id., 128. When it was apparent that the intruders
had fled, Valle emerged from the game room to discover
Delgado lying in a pool of blood and called the police.
Id. When the police arrived, both Valle and Clement
stated that they would be able to identify the gunman.
days later, while making his regular visit to his parole
officer, Valle observed the petitioner at the parole office,
and immediately recognized him as the gunman. Id.,
129. He reported this to office personnel, who conveyed the
information to the detective who was leading the
investigation into the incident. Id. On the basis of
this information, the detective presented Valle with a
photographic array consisting of eight photographs fitting
the description Valle provided, including one photograph of
the petitioner. Id. Valle immediately selected the
photograph of the petitioner. Id., 130.
days later, the detective contacted Clement and requested
that he view a photographic array that included one
photograph of the petitioner. Clement was immediately drawn
to one photograph but did not want to be too hasty in making
an identification. Id. Initially, he eliminated all
but two photographs as possibilities but kept returning to
one photograph, that of the petitioner, that had initially
attracted his attention. Id. Clement stated that his
identification was based primarily on his recognition of the
petitioner's eyes, which were the same eyes as the
gunman. Id., 130-31.
basis of Valle's and Clement's identifications, the
police obtained an arrest warrant for the petitioner, and
executed it several days later. Id., 131. The state
filed a five count information charging the petitioner with
one count of felony murder, three counts of robbery in the
first degree, and one count of attempt to commit robbery in
the first degree. Id.
following additional evidence presented at the
petitioner's criminal trial is relevant to this appeal.
As recounted previously, at trial, the state presented
testimony from two of the robbery victims, Valle and Clement,
who described the events of the night of the robbery and the
murder of Delgado. Both Valle and Clement identified the
petitioner as the person who entered with the gun.
light of these identifications, the petitioner was arrested.
He subsequently gave a statement to the police, blaming the
murder on Soler. Soler's photograph was placed in a
photographic array and shown to Valle, who identified Soler
as the person who had assisted the gunman during the course
of the robbery. Soler was arrested and charged with the same
offenses as the petitioner.
state called Soler to testify at the petitioner's
criminal trial. Soler's account of the incident in
question was largely similar to Valle's and Clement's
testimony describing the incident, and Soler testified that
the petitioner was the gunman. He also testified that during
a chance encounter at the prison medical unit, the petitioner
asked Soler to recant the statement he had already given to
the police about the incident. Soler also testified that the
petitioner questioned him about whether he would testify
against the petitioner at his trial.
direct examination, the prosecutor asked Soler if he had been
promised any benefits from the state in exchange for his
testimony, which Soler denied. When prodded on
cross-examination about his motivation for testifying, Soler
stated: ‘‘I'm testifying cuz it's the
right thing to do.'' Soler further stated that he was
not offered any particular deal by the state and that he did
not know whether he would receive any kind of consideration
as a result of testifying. Soler also testified that he would
not lie about the events of the night in question in order to
Soler's testimony, and outside the presence of Soler and
the jury, defense counsel requested that the court inquire of
the state, on the record, if there were any discussions
relayed to Soler about his cooperation being brought to his
sentencing court's attention. Specifically, defense
counsel questioned whether Soler was told that the felony
murder charge would be dropped if he were to testify in
accordance with the facts that existed.
response, the prosecutor explained that, because Soler
testified at trial, ‘‘some credit perhaps would
be due him. What the extent of that credit is, I don't
know. I know counsel has suggested that perhaps I would
reduce the charge. We've had discussions that maybe that
would happen. I can't say that it would. In my
discussions with [Soler], I've indicated to him that I
hadn't made any promises to him, so we have not come to a
disposition or an understanding as to what any testimony
would be. . . . [His testimony] potentially ultimately would
be presented to a sentencing judge . . . . I don't see
how that would not happen.''
court responded by stating that ‘‘some favorable
consideration is something that [the state] would certainly
consider at some point in time, but no promises have been
made.'' The prosecutor replied,
‘‘[r]ight.'' The prosecutor further
explained that ‘‘[the petitioner] was deciding to
elect trial, so essentially for [Soler], we sort of tabled
his case because he was available and willing to participate
in [the petitioner's] trial.'' When defense
counsel questioned whether Soler's testimony would mean
that ‘‘his charges could be lowered and he would
not face a mandatory minimum of twenty-five years, ''
the prosecutor responded by stating that,
‘‘I've not conveyed that to him . . . my
conversations with him were that there are no offers on the
table. . . . [H]ow this works out is still yet to be
defense attorney then stated: ‘‘We have discussed
the possibility of there being a benefit. We had at one
point, I believe, discussed the possibility of coming down to
twenty-five years if a variety of things fell into place. I
do not believe that I've ever indicated to my client that
I had received an offer because there has never been an offer
from the state in this case or an indication from the state
that they would be inclined to drop the charge . . .
court summarized: ‘‘[T]here's been no fixed
offer. And that's the way it should be characterized . .
. . It doesn't rise to the level of a promise. It's
not a promise.'' The prosecutor affirmed her
understanding that, if benefits had been offered in exchange
for testimony, the state would have been obligated to
disclose such information. The court, therefore, accepted the
prosecutor's representation that no agreement existed.
addition to the testimony of two of the robbery victims, the
state also presented a statement the petitioner had given to
the police after his arrest, in which he blamed the murder on
Soler. The statement was read into the record at trial. In
the statement, the petitioner admitted to the police that he
had gone to Delgado's apartment on the night of the
robbery with Soler, whom the petitioner referred to by his
nickname, ‘‘Monstruo.'' He claimed that
they briefly stopped in at the apartment, looking to obtain
marijuana, which they bought, and, just as they were about to
leave, Soler stopped him and was holding a gun. According to
the petitioner's statement, Soler proceeded to rob the
victims, at one point asking the petitioner to hold the gun
for him. The petitioner stated that, after he returned the
gun to Soler, Delgado approached and grabbed Soler, leading
to a struggle during which Delgado was shot. See footnote 4
of this opinion.
state also presented testimony at the petitioner's
criminal trial from an inmate, David Williams, who had been
incarcerated in the same facility as the petitioner and Soler
while they awaited trial. Williams had previously known both
Soler and the petitioner for about ten years. Williams
testified that, while they were incarcerated, the petitioner
asked Williams if he knew Soler. When Williams confirmed that
he knew Soler, the petitioner informed Williams that Soler
was his accomplice in the incident giving rise to the
petitioner's arrest and incarceration.
testified that the petitioner eventually told him that
‘‘he could help [Williams] with [his] case,
[Williams] could help [the petitioner] with his case . . .
.'' The help that the petitioner sought was for
Williams ‘‘to give [the petitioner's] lawyer
a statement . . . that [Soler] had told [Williams] he had
shot somebody . . . [a]nd that they had somebody else for the
further testified that the petitioner wrote what he wanted
Williams to say in the false confession in a letter. The
petitioner then instructed Williams to convey the details of
the letter to his attorney, who would then get in touch with
the petitioner's attorney or investigator. Williams
testified that the petitioner ‘‘said to memorize
it and rip it up when I finish memorizing, '' before
speaking to his attorney. Instead, Williams gave the letter
to his attorney and told him how he had received
testified that the petitioner was urging him to claim that
this was a conversation between Williams and Soler while they
were on the same cellblock, even though Williams and Soler
were actually on the cell-block together for only
‘‘a couple hours'' total, and did not
speak to each other in that time. Williams testified that the