Argued
October 11, 2018
Appeal
from the Superior Court, Judicial District of Tolland,
Sferrazza, J.
Page 335
[Copyrighted Material Omitted]
Page 336
W.
James Cousins, with whom was Craig A. Raabe, 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. 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 Carrs
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 petitioners 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 states 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
Page 337
due process was violated by virtue of the states 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 victims 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 petitioners
claims, including his claim concerning Lees 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
states failure to alert the trial court and the petitioner
that Lees testimony was incorrect,[3] and, therefore, we
reverse the judgment of the habeas court.[4]
Page 338
[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 Birchs 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 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 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 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.
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
victims neighbors heard a loud vehicle being operated near
the victims 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
victims
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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 victims 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 Stanleys 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] mans 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 Stanleys 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 victims 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. ...