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Henning v. Commissioner of Correction

Supreme Court of Connecticut

June 14, 2019

SHAWN HENNING
v.
COMMISSIONEROF CORRECTION

          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 ...


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