Argued:
October 11, 2018
Appeal
from the Superior Court, Judicial District of Tolland,
Sferrazza, J.
Page 354
[Copyrighted Material Omitted]
Page 355
Andrew
P. OShea, for the appellant (petitioner).
Michael
J. Proto, assistant states attorney, with whom were Jo Ann
Sulik, supervisory assistant states attorney, and, on the
brief, David S. Shepack, states attorney, for the appellee
(respondent).
Robinson,
C.J., and Palmer, McDonald, DAuria, 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 Carrs murder, which the police theorized was
committed during the course of a burglary of Carrs home by
the two men. After a jury trial, the petitioner was convicted
of felony murder, and, following his appeal, this court
upheld the petitioners 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 states 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 victims home that,
according to Lee, had tested positive for blood. In fact, no
such test had been [334 Conn. 40] conducted, and, moreover,
Page 356
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
petitioners claims, including his claim with respect to
Lees 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 states failure to alert
the trial court and the petitioner that Lees testimony was
incorrect,[4] we reverse the judgment of the habeas
court.[5]
Page 357
[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 [Hennings] 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 petitioners] mother. While
there, the vehicles 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 victims lifeless body in a
narrow hallway adjacent to the kitchen, which led to the
victims 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 victims body and in other locations throughout the
house. Beneath the victims 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 victims 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 victims neighbors heard
what they believed to be a vehicle with a defective muffler
in the vicinity of the victims residence. One of the
neighbors, Gary Smith,
Page 358
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 petitioners 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 Buicks 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 victims
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 victims 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 petitioners criminal
trial, she, the petitioner, and Henning discussed the murder
with several other people at Stanleys 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 victims 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
Page 359
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
victims 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
OMara, 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
victims murder. At the petitioners criminal trial,
Mucherino testified that, when he showed the petitioner a
photograph of the victims deceased body in a pool of blood,
the petitioners [334 Conn. 46] "whole body spasmed, and
he literally almost fell out of [his] chair." Afterward,
according to both Mucherino and OMara, 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
victims home, the petitioner threatened to punch ...