Henning 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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          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.

         [334 Conn. 3] 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

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due process was violated by virtue of the state’s failure to correct the trial testimony of the then director [334 Conn. 4] 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]

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          [334 Conn. 5] 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’ [334 Conn. 6] 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 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 [334 Conn. 7] 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

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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 [334 Conn. 8] 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.

         [334 Conn. 9] When the police recovered the Buick, it was evident that it had not been cleaned. ...