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Birch v. State

Supreme Court of Connecticut

June 14, 2019

Ralph BIRCH
v.
STATE of Connecticut

         Argued October 12, 2018

         Superior Court in the judicial district of Litchfield, Sferrazza, J.

         Andrew P. O’Shea, West Hartford, for the appellant (petitioner).

         Jo Anne Sulik, supervisory assistant state’s attorney, with whom, on the brief, was David S. Shepack, state’s attorney, for the appellee (state).

          Robinson, C. J., and Palmer, McDonald, D’Auria, Mullins, Kahn and Ecker, Js.[**]

          OPINION

         PALMER, J.

         [334 Conn. 70] On December 2, 1985, sixty-five year old Everett Carr was found dead in his New Milford home, the victim of multiple stab wounds and blunt force trauma to the head. The petitioner, Ralph Birch, and Shawn Henning were arrested and charged in connection with Carr’s murder, and, following separate trials, both were convicted of felony murder. The petitioner received a sentence of fifty five years imprisonment, and, on appeal, this court upheld his conviction.[1] [334 Conn. 71] State v. Birch, 219 Conn. 743, 751, 594 A.2d 972 (1991). In 2015, the petitioner filed a petition for a new trial; see General Statutes § 52-270 (a); [2] on the basis of newly discovered DNA and other evidence.[3] Subsequently, the trial court, Pickard, J., granted the petitioner’s motion to transfer the case to the judicial district of Tolland, where it was consolidated with his previously filed petition for a writ of habeas corpus and the closely related new trial and habeas petitions of Henning. The habeas court, Sferrazza, J., rejected all of the claims advanced in the four petitions, and the petitioner and Henning filed separate appeals with the Appellate Court. We thereafter transferred the appeals to this court pursuant

Page 1045

to General Statutes § 51-199 (c) and Practice Book § 65-2.

          On appeal from the denial of his petition for a new trial, the petitioner claims that the habeas court incorrectly determined that the newly discovered DNA evidence does not warrant a new trial. The petitioner further claims that this court, in determining whether a new trial is likely to result in a different outcome, should consider the original trial evidence together with all exculpatory evidence, even evidence that would not [334 Conn. 72] otherwise support a petition for a new trial because it was discovered by the petitioner after the three year limitation period for filing such a petition had expired. See General Statutes § 52-582 (a) ("[n]o petition for a new trial in any civil or criminal proceeding shall be brought but within three years next after the rendition of the judgment or decree complained of, except that a petition for a new trial in a criminal proceeding based on DNA ... evidence or other newly discovered [forensic] evidence ... that was not discoverable or available at the time of the original trial or at the time of any previous petition under this section, may be brought at any time after the discovery or availability of such new evidence"). In support of this contention, the petitioner asserts that the three year limitation period of § 52-582 (a) does not apply to a case, like the present one, in which there is newly discovered DNA evidence because, according to the petitioner, that limitation period, having been deemed inapplicable to newly discovered DNA evidence, also is inapplicable to any other evidence that was unavailable at the time of trial.

          In a separate opinion issued today, we have concluded, contrary to the determination of the habeas court, that the petitioner is entitled to a writ of habeas corpus granting him a new trial because the state deprived him 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 by failing to correct certain incorrect trial testimony of the then director of the state police forensic laboratory, Henry C. Lee. See Birch v. Commissioner of Correction, 334 Conn. 37, 69, __ A.3d __, 2019 WL 2494788 (2019). Because our decision in that case awarding the petitioner a new trial renders moot the petitioner’s appeal from the denial of his petition for a new trial, we must dismiss the present appeal. See, e.g., State v. Boyle, 287 Conn. 478, 486-87, 949 A.2d 460 (2008) [334 Conn. 73] (appeal is moot, and therefore must be dismissed, when, because of intervening events during pendency of appeal, appellate court cannot afford appellant any practical relief).

          The appeal is dismissed.

          In this opinion the other ...


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