October 12, 2018
Court in the judicial district of Litchfield, Sferrazza, J.
P. OShea, West Hartford, for the appellant (petitioner).
Sulik, supervisory assistant states attorney, with whom, on
the brief, was David S. Shepack, states attorney, for the
Robinson, C. J., and Palmer, McDonald, DAuria, Mullins, Kahn
and Ecker, Js.[**]
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 Carrs 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. [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);  on the basis of newly discovered
DNA and other evidence. Subsequently, the trial court,
Pickard, J., granted the petitioners 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
to General Statutes § 51-199 (c) and Practice Book § 65-2.
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.
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 petitioners 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).
appeal is dismissed.
this opinion the other ...