Argued
October 11, 2018
Procedural
History
Petition
for a writ of habeas corpus, brought to the Superior Court in
the judicial district of Tolland and tried to the court,
Sferrazza, J.; judgment denying the
petition, from which the petitioner, on the granting of
certification, appealed. Reversed; judgment
directed.
Andrew
P. O'Shea, for the appellant (petitioner).
Michael J. Proto, assistant state's attorney, with whom
were Jo Ann Sulik, supervisory assistant state's
attorney, and, on the brief, David S. Shepack, state's
attorney, for the appellee (respondent).
Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins,
Kahn and Ecker, Js.
OPINION
PALMER, J.
In the
early morning hours of December 2, 1985, sixty-five year old
Everett Carr was brutally murdered in his New Milford
residence. Subsequently, the petitioner, Ralph Birch, and a
second man, Shawn Henning, were arrested and charged with
Carr's murder, which the police theorized was committed
during the course of a burglary of Carr's home by the two
men. After a jury trial, the petitioner was convicted of
felony murder, and, following his appeal, this court upheld
the petitioner's conviction.[1] See State v. Birch,
219 Conn. 743, 751, 594 A.2d 972 (1991). Thereafter, the
petitioner filed two habeas petitions, the first of which was
denied by the habeas court, Zarella, J.
Birch v. Warden, Docket No. TSR-CV-92-1567-S, 1998
WL 376345, *11 (Conn. Super. June 25, 1998). The second
petition, which is the subject of this appeal, alleged, among
other things, that the state deprived the petitioner of a
fair trial in violation of Brady v. Maryland, 373
U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its
progeny, which require the state to correct any testimony
that it knows or should know is materially false or
misleading. More specifically, the petitioner claims that his
right to due process was violated because the assistant
state's attorney (prosecutor) failed to correct certain
testimony of the then director of the state police forensic
laboratory, Henry C. Lee, concerning a red substance on a
towel found in the victim's home that, according to Lee,
had tested positive for blood. In fact, no such test had been
conducted, and, moreover, a test of the substance that was
performed for purposes of the present case proved negative
for blood. The habeas court, Sferrazza, J.,
[2]
rejected all of the petitioner's claims, including his
claim with respect to Lee's testimony about the towel,
and this appeal followed.[3] Because we agree with the petitioner
that, contrary to the conclusion of the habeas court, he is
entitled to a new trial due to the state's failure to
alert the trial court and the petitioner that Lee's
testimony was incorrect, [4] we reverse the judgment of the habeas
court.[5]
The
following facts and procedural history are set forth in the
companion case of Henning v. Commissioner of
Correction, 334 Conn. 1, A.3d (2019). ‘‘On
November 29, 1985, the then [eighteen] year old petitioner,
together with his [seventeen] year old friend, [Henning], and
[Henning's] eighteen year old girlfriend, Tina Yablonski,
stole a 1973 brown Buick Regal from an automobile repair shop
in the town of Brookfield. Later that evening, the three
teenagers drove the vehicle to New Hampshire to visit [the
petitioner's] mother. While there, the vehicle's
muffler was damaged and subsequently removed, causing the
vehicle to make a loud noise when it was operated. When the
trio returned to Connecticut on December 1, 1985, they went
directly to the Danbury residence of Douglas Stanley, a local
drug dealer, where they freebased cocaine. In addition to
selling the teenagers drugs, Stanley also acted as a
‘fence'[6] for property they periodically stole from
local businesses and homes. After leaving the Stanley
residence, the petitioner and [Henning] dropped Yablonski off
at her parents' home in the town of New Milford, arriving
there at approximately 11:55 p.m.
‘‘At
that time, the victim was living at the home of his daughter,
Diana Columbo, in New Milford, approximately two miles from
the Yablonski residence. Sometime between 9 and 9:30 p.m. on
December 1, 1985, Columbo left the house to visit a friend.
When she returned home the next morning, reportedly between 4
and 4:30 a.m., she found the victim's lifeless body in a
narrow hallway adjacent to the kitchen, which led to the
victim's first floor bedroom. The victim, clad only in an
undershirt and underwear, was lying in a pool of blood. Blood
spatter and smears covered the walls around him, almost to
the ceiling. An autopsy later revealed that the victim had
sustained approximately twenty-seven stab wounds, a severed
jugular vein, and blunt force trauma to the head.
Investigators theorized that the victim had confronted his
assailants in the hallway and fought for his life. The
associate medical examiner could not determine the exact time
of death, only that the victim died within twenty-four hours
of his body being examined by the medical examiner and two
and one-half to three hours of his last meal.
‘‘The
assailants left two distinct sets of bloody footprints near
the victim's body and in other locations throughout the
house. Beneath the victim's body, the police found what
they believed to be a piece of the murder weapon-a small
metal collar that separates a knife blade from the handle.
The police also discovered blood on a dresser drawer in the
victim's bedroom. Inside the drawer were a pair of bloody
socks and a blood stained cigar box, indicating that the
assailants had rummaged through the house after the murder. A
videocassette recorder, jewelry, several rolls of quarters,
and some clothing were reported missing.'' (Footnote
in original.) Id., 5-6.
On the
night of the murder, three of the victim's neighbors
heard what they believed to be a vehicle with a defective
muffler in the vicinity of the victim's residence. One of
the neighbors, Gary Smith, heard it sometime between 10 p.m.
and midnight, although he thought it was
‘‘[p]robably closer to midnight.'' Smith,
who reported that the noise was unusual enough that he
stopped what he was doing to look out the window, observed
the vehicle just as it was passing his house and noticed that
its taillights ‘‘were fairly wide set''
and ‘‘round in appearance.'' Smith was
shown a photograph of the stolen Buick at the
petitioner's criminal trial and testified that he was
positive that its taillights were not the taillights he
observed on the night of the murder. Smith further testified
that he informed the police in the days following the murder
that he had seen the taillights of the vehicle but that the
officers never returned to show him a photograph of the
stolen Buick's taillights for comparison. Upon
cross-examination by the prosecutor, Smith acknowledged that
the vehicle he saw was ‘‘not the
noisiest'' he had ever heard and that it was
‘‘probably fair to say it was not terribly noisy
. . . .''
The
evidence also established that, sometime between 12:10 and
12:30 a.m., two other neighbors, Alice Kennel and Brian
Church, also heard a loud vehicle near the victim's
residence. Kennel heard the vehicle, which she described as
‘‘very noisy, '' stop at the lot beside
her house for approximately twenty minutes and then drive
away. Church similarly reported hearing the vehicle stop for
twenty to thirty minutes and then drive away. Neither Kennel
nor Church actually observed the vehicle or heard its doors
open or shut. Nor could either witness place the vehicle or
its occupants at the victim's residence.
Because
the police suspected that the victim had interrupted a
burglary, they began their investigation by identifying known
burglars in the area. One of the individuals they
interviewed, Peter Barrett, gave them the names of the
petitioner, Henning, Yablonski, and Stanley. On December 5,
1985, the petitioner went voluntarily to the police station
to be interviewed about the murder. By then, the petitioner
had heard about the murder from Stanley, among others, whom
the police had already interviewed. According to Yablonski,
who testified for the state at the petitioner's criminal
trial, she, the petitioner, and Henning discussed the murder
with several other people at Stanley's house on the
afternoon of December 2, 1985. Yablonski further testified
that, before speaking to the police, she, the petitioner, and
Henning agreed to ‘‘get [their] stories
straight'' to prevent the police from learning about
the stolen Buick and a number of recent burglaries that the
teens had committed in the area. In furtherance of that plan,
the three agreed to tell the police that they had hitchhiked
to and from New Hampshire on the evening of November 29,
1985, and that they had hitchhiked home from the city of
Danbury on the night of the murder, leaving there at
approximately 2 a.m. and arriving in New Milford several
hours later. In fact, however, they actually left Danbury at
around 11:20 p.m.[7]
When
the petitioner arrived at the police station on December 5,
1985, the officers did not question him about the
victim's murder but, instead, asked him if he knew
anything about a stolen Buick Regal. After initially denying
that he did, the petitioner confessed to having stolen the
Buick, explaining that he did so because he needed somewhere
to live. That afternoon, he and Henning took the officers to
a wooded area near a reservoir in New Milford where the
vehicle had been hidden. The petitioner and Henning also
confessed to having used the vehicle in the commission of
several burglaries, for which the two men were placed under
arrest.
As we
explained in Henning v. Commissioner of Correction,
supra, 334 Conn. 1, ‘‘[w]hen the police recovered
the Buick, it was evident that it had not been cleaned.
According to several police reports and photographic
exhibits, the vehicle was covered in dirt and filled with
sand, sneakers, toiletries, food, blankets, pillows, various
items of clothing, and what the police believed to be stolen
electronics. Despite a thorough examination of the vehicle
and the surrounding area, which involved draining two
reservoirs and the use of specially trained dogs, the police
found no evidence linking the petitioner or [Henning] to the
murder. A search of the victim's neighborhood, including
the surrounding roadways and fields adjacent to those
roadways, also produced no incriminating evidence.''
Id., 9.
On
December 9, 1985, Sergeant John Mucherino and Detective Scott
O'Mara, both of the Connecticut state police, interviewed
the petitioner at the Litchfield Correctional Center. During
that interview, the petitioner again denied any involvement
in the victim's murder. At the petitioner's criminal
trial, Mucherino testified that, when he showed the
petitioner a photograph of the victim's deceased body in
a pool of blood, the petitioner's ‘‘whole
body spasmed, and he literally almost fell out of [his]
chair.'' Afterward, according to both Mucherino and
O'Mara, the petitioner stared at the photograph for a
short time and then, pointing to an area not shown in the
photograph, but in the direction where the bathroom would
have been, said either, ‘‘is that the bathroom
there, '' or ‘‘[t]hat is the bathroom
there, ''[8]even though the location of the bathroom,
though correctly identified by the petitioner, was not
apparent from the photograph. According to Mucherino, when
the officers attempted to question the petitioner regarding
his apparent knowledge about the interior of the victim's
home, the petitioner threatened to punch Mucherino, and the
interview was terminated. Mucherino also testified that, at
the time of the interview, he considered the petitioner's
statement about the bathroom not only ‘‘highly
incriminating'' but
‘‘devastating'' evidence of the
petitioner's guilt.
Immediately
following the interview, O'Mara wrote, reviewed, and
signed a police report about the interview, relying in part
on contemporaneous notes that he had taken at the time.
Mucherino also reviewed and signed the report. The report
does not state that the petitioner said either,
‘‘is that the bathroom there'' or
‘‘[t]hat is the bathroom there, '' or
otherwise indicate any familiarity with the victim's
home. Nor does it state that the petitioner pointed at the
photograph in the direction of the bathroom. Instead, the
original report reflects that the petitioner asked
the officers if the victim was lying in a bathroom.
On
September 10, 1986, Detective Andrew Ocif, who by then had
replaced Mucherino as the Connecticut state police officer
assigned to the investigation, arrested the petitioner on an
unrelated larceny charge and transported him to state police
barracks for processing. While at the barracks, Ocif spoke
with Mucherino about his December 9, 1985 interview of the
petitioner. At the petitioner's criminal trial, Ocif
testified that, while speaking to Mucherino at the barracks,
Mucherino informed Ocif that, during that December 9, 1985
interview, the petitioner had pointed to the crime scene
photograph of the victim and said, ‘‘there was a
bathroom there.'' After advising Mucherino that
O'Mara's written report did not contain this
information, Ocif requested that Mucherino ask O'Mara to
file a new report that did include that statement by the
petitioner. According to O'Mara, Ocif
‘‘badgered [him] for a better part of a year to
get the [new] report in.'' On May 5, 1987, O'Mara
finally provided the requested addendum to the original
report.
In the
fall of 1987, the petitioner was incarcerated at the John R.
Manson Youth Institution (Manson Youth Institution) in the
town of Cheshire. There, while working in the laundry room,
he met an eighteen year old fellow inmate, Robert Perugini.
On December 7, 1987, Ocif visited Perugini and informed him
that he was investigating a murder that he knew the
petitioner had committed. Perugini, who was then serving a
seventeen year sentence for conspiracy to commit murder,
kidnapping in the first degree and robbery in the first
degree, agreed to provide incriminating information about the
petitioner, but only if ‘‘there was something in
it for [him] . . . .'' Thereafter, the state entered
into an agreement with Perugini pursuant to which it agreed
to notify the Board of Pardons about Perugini's
cooperation. Perugini then told Ocif that, in the summer of
1987, the petitioner had told him that he was worried that
his release from the Manson Youth Institution would get
‘‘held up because of a murder
investigation.'' According to Perugini, the
petitioner also told him that he and Henning had killed an
old man with a knife while robbing a house in New
Milford.[9]
While
incarcerated at the Manson Youth Institution, the petitioner
also befriended fellow inmate Todd Cocchia. After their
release from custody in 1988, the petitioner and Cocchia
lived together in Danbury for approximately two months before
moving together to Norfolk, Virginia. On June 22, 1988,
Cocchia was arrested and subsequently detained in a Norfolk
jail. On July 12, 1988, Ocif visited Cocchia in Virginia
where Cocchia was being held, and Cocchia agreed to provide
incriminating information about the petitioner. In exchange,
the state of Connecticut entered into an agreement with
Cocchia pursuant to which it agreed, first, not to seek any
prison time for Cocchia's probation violation and,
second, to notify the Office of the State's Attorney for
the judicial district of Danbury, where Cocchia had a pending
criminal matter, of his cooperation in the petitioner's
case. Additionally, because of his cooperation with
Connecticut authorities, prosecutors in Virginia agreed that
Cocchia would receive a sentence of time served on the
charges that were pending against him there.
In
1989, the petitioner was arrested for the victim's
murder, and a jury trial subsequently ensued. At that trial,
Cocchia testified that the petitioner had told him while they
were en route to Virginia that he needed to leave Connecticut
because he had killed a man during a burglary.[10] On
cross-examination, however, Cocchia acknowledged that, when
he was first interviewed by Ocif, Cocchia answered
incorrectly, or could not answer at all, as to whether the
petitioner had committed the murder alone or with an
accomplice, whether the crime occurred at night or in the
daytime, and as to the ...