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.
W.
James Cousins, with whom was Craig A. Raabe, 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.
The
petitioner, Shawn Henning, and Ralph Birch were convicted of
felony murder in connection with the vicious 1985 slaying of
sixty-five year old Everett Carr in Carr's New Milford
residence during what the police believed at the time to be a
burglary gone wrong.[1] After this court upheld his conviction;
see State v. Henning, 220 Conn. 417, 431, 599 A.2d
1065 (1991); the petitioner filed two habeas petitions, the
first of which was dismissed with prejudice by the habeas
court, White, J., on the basis of the
petitioner's purported refusal to appear at his habeas
trial. The second habeas petition, which is the subject of
this appeal, alleges, among other things, that the state
deprived the petitioner of his due process right to 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 by
a state's witness when the state knew or should have
known that that testimony was materially false or misleading.
More specifically, the petitioner claims that his right to
due process was violated by virtue of the state's failure
to correct the trial testimony of the then director of the
state police forensic laboratory, Henry C. Lee, that a red
substance on a towel found in the victim's home had
tested positive for blood when, in fact, no such test had
been conducted, and, further, a test of the substance
conducted in connection with the present case proved negative
for blood. The habeas court, Sferrazza, J.,
[2]
rejected all of the petitioner's claims, including his
claim concerning Lee's testimony about the towel, and
this certified appeal followed. We agree with the petitioner
that, contrary to the determination 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, [3] and, therefore, we reverse the judgment
of the habeas court.[4]
The
record reveals the following relevant facts and procedural
history. On November 29, 1985, the then seventeen year old
petitioner, together with his eighteen year old friend,
Birch, and 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
Birch'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''[5] for property they periodically
stole from local businesses and homes. After leaving the
Stanley residence, the petitioner and Birch 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.
The
evidence established that, sometime between 12:10 and 12:30
a.m. on the night of the murder, two of the victim's
neighbors heard a loud vehicle being operated near the
victim's residence. One of the neighbors, Alice Kennel,
heard the vehicle stop at the lot beside her house for
approximately twenty minutes and then drive away. The other
neighbor, Brian Church, reported hearing a vehicle with
‘‘a very loud muffler sound'' at around
the same time. According to Church, the vehicle stopped for
about thirty minutes and then drove away. Neither Kennel nor
Church saw the vehicle or heard its doors open or shut. Nor
could either witness place the vehicle or its occupants at
the victim's house.[6]
Because
the police suspected that the victim had interrupted a
burglary, they began their investigation by compiling a list
of known burglars in the area. Almost immediately, they
became aware of the names of the petitioner, Birch, and
Yablonski, as well as Stanley, whom they were told purchased
stolen goods from the teenagers. The police interviewed the
petitioner on December 4, 1985. By then, he, Birch, and
Yablonski had heard about the victim's murder from
Stanley, whom the police had already interviewed.
According
to Yablonski, who testified for the state, she, the
petitioner, and Birch discussed the murder with a group of
people at Stanley's residence on December 2, 1985. From
this discussion, they learned that a man had been killed
after surprising a burglar and that the man's dog also
had been killed.[7] Yablonski testified that, prior to
speaking to the police, she, the petitioner, and Birch
decided they should ‘‘get [their] stories
straight'' to prevent the police from finding out
about the stolen Buick and the burglaries that the teens had
committed close in time to the murder. To that end, the trio
agreed to tell the police that they had hitchhiked to and
from New Hampshire, and then hitchhiked home from
Stanley's residence on the night of the murder, leaving
the city of Danbury at approximately 12:30 or 1 a.m. and
arriving in New Milford several hours later. According to
Yablonski, however, they did not leave Danbury at 12:30 a.m.
but, rather, at around 11:20 p.m. Yablonski further testified
that, while discussing the victim's murder, the
petitioner had said to her and Birch, ‘‘[w]hat if
we get caught? What if they suspect us?'' At the
time, Yablonski had assumed that the petitioner was referring
to the burglaries and the stolen Buick.
When
interviewed by the police on December 4, 1985, the petitioner
informed the officers that he was aware that a man had been
stabbed during a burglary. According to the testimony of one
of the officers, when the petitioner was shown a photograph
of the victim, he indicated that he previously may have seen
the man around town and asked whether he was the man with all
the tattoos, even though no tattoos were visible in the
photograph.[8] The following day, Birch confessed to the
theft of the Buick, and the petitioner took the police to
where he had hidden it in a wooded area near a reservoir in
New Milford. The petitioner and Birch also confessed to using
the car in connection with the commission of several
burglaries, for which they were placed under arrest.
When
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 Birch 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.
On
December 6, 1985, the police conducted a second interview of
the petitioner. During this interview, which was recorded,
the officers falsely claimed that Birch had implicated the
petitioner in the murder. Specifically, they told the
petitioner that Birch had placed the entire blame for the
murder on him and that Birch would ‘‘walk out of
this thing'' a free man while the petitioner would be
‘‘left . . . holding the bag.'' They
advised the petitioner that, if he would just
‘‘tell . . . the truth about what happened, the
whole truth, like . . . Birch did, then it's gonna weigh
heavily in [his] favor.'' The officers also informed
the petitioner that the police had recovered a wealth of
forensic evidence from the crime scene, that that evidence
was being tested, and that it was just a matter of time
before it would confirm his presence in the victim's
home. Finally, the officers informed the petitioner that, on
the night of the murder, the victim's neighbors had heard
a loud vehicle that sounded just like the vehicle the
petitioner and Birch were driving that evening. The
petitioner vehemently denied any involvement in the crime and
implored the officers to test the crime scene evidence, his
clothing, and everything else that they had seized from him
because he was certain it would prove his innocence. When the
petitioner was told that the tests would take two weeks, the
petitioner expressed impatience that he would have to wait so
long to clear his name.
According
to the transcript of the December 6, 1985 interview, the
officers asked the petitioner what he knew about the murder.
The petitioner responded that he knew only what people had
told him and what everyone else knew. Specifically, the
petitioner stated that, when he first heard about the murder,
he was told ‘‘that some old man from New Milford
had gotten knocked out in the middle of a burglary; then I
heard from someone else right after that . . . [that the
victim] came in, saw who it was, and that was the reason for
the, the knife or whatever they used on him. . . . [P]eople
[told] me he got internal wounds in the gut, and then the
story switched around and someone said he got his jugular
vein ripped out of his neck or something . . . .''
When asked who he had gotten this information from, the
petitioner responded, ‘‘that's what the
Danbury police told [Stanley] when they brought him down for
questioning.'' When the petitioner finished speaking,
the officers tried unsuccessfully to elicit a confession from
him by informing him that he had revealed details about the
murder that only the killer would know. Specifically, one of
the officers stated, ‘‘you got this information
about the old guy being knocked out that ties into some
evidence that we've got, that's never been in the
paper. . . . [O]nly people who [know] something about [the
murder would] say something like that.'' The
petitioner was later asked, ‘‘how [do] you know
all these things that we don't know? . . . You do too;
you know more about that crime scene than [we]
know.'' The petitioner explained,
‘‘[t]hat's just what . . . I heard, man,
there was fucking six other people there when . . . [Stanley]
told me that. Every other [person] . . . heard the same . . .
thing. If it wasn't for this stupid fucking piece of junk
[car] that we . . . [stole] to get a ride home that night,
none of this shit would [be] happening.''
On
December 9, 1985, the police conducted a third interview of
the petitioner at the Litchfield Correctional Center.
According to the testimony of one of the officers who was
present there, when the petitioner was told that the police
knew from the victim's neighbors where the petitioner and
Birch had parked on the night of the murder, and where they
had turned their car around, the petitioner's
‘‘right leg began to shake violently, ''
and he stated that, although he, Birch, and Yablonski may
have turned around in the victim's driveway, he was never
in the victim's house and did not kill the victim.
During
the course of the investigation, the police discovered that
the petitioner had called his grandmother, Mildred Henning
(Mildred) and his close childhood friend, Timothy Saathoff,
from jail shortly after his arrest in 1985. In 1987 or 1988,
Andrew Ocif, a detective with the Connecticut state police,
interviewed Mildred and Saathoff about their recollection of
those telephone calls. After speaking with Ocif, both Mildred
and Saathoff agreed to provide statements indicating that the
petitioner had told them that he was involved in various
burglaries, that there was a burglary during which a man was
killed, and that he did not kill him. Despite Mildred's
and Saathoff's statements, the petitioner and Birch were
not charged with the victim's murder until November,
1988. At the petitioner's criminal trial, Mildred
testified that the petitioner had told her shortly after his
arrest, during an emotional telephone call from jail, that he
had been involved in a burglary during which a man and a dog
were killed but that he was not the killer. Saathoff also
testified that the petitioner had told him that he and
another individual were involved in a burglary and that a man
had been killed but that he did not commit the
murder.[9]
Because
there was no forensic evidence connecting the petitioner to
the crime, the state's case against him relied primarily
on the testimony of Mildred and Saathoff, the testimony of
the victim's neighbors, who had heard a loud vehicle on
the night of the murder, the fact that the petitioner was
driving such a vehicle that evening, and the testimony of
Yablonski, whom the state relied on to establish
consciousness of guilt predicated on the theory that the
petitioner had lied to the police about the time of his
return to New Milford to conceal his involvement in the
murder. The state also called Lee, the criminalist and
forensic scientist, to explain how it was possible for the
petitioner and Birch to have stabbed the victim so many times
without getting any blood on their clothing and without
transferring any blood to the Buick. Lee testified that,
although there clearly had been a violent struggle between
the victim and his assailants, all of the blood spatter in
the hallway was ‘‘uninterrupted, ''
meaning that no individual or object was between the victim
and the walls or floor to interrupt the blood spatter.
According to Lee, this would explain why the assailants might
not have been covered in the victim's ...