Birch v. Commissioner of Correction

         Argued: October 11, 2018

         Appeal from the Superior Court, Judicial District of Tolland, Sferrazza, J.

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[Copyrighted Material Omitted]

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          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.

         [334 Conn. 39] 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 [334 Conn. 40] conducted, and, moreover,

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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]

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          [334 Conn. 41] The following facts and procedural history are set forth in the companion case of Henning v. Commissioner of Correction, 334 Conn. 1, 219 A.3d 334, 2019 WL 2494763 (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 [334 Conn. 42] 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. Some-time 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 [334 Conn. 43] 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., at 5-6, 219 A.3d 338.

          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,

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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 [334 Conn. 44] 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 [334 Conn. 45] 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

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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. at 1, 219 A.3d __, "[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., at 9, 219 A.3d 340.

         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 [334 Conn. 46] "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 ...