PALMER, J.
This certified appeal by the respondent, the Commissioner of Correction, requires us to decide whether the Appellate Court correctly concluded, contrary to the determination of the habeas court, that the petitioner, Richard Lapointe, is entitled to a new trial on the charges underlying his 1992 conviction of capital felony and other offenses because prior habeas counsel (first habeas counsel) rendered ineffective assistance in failing to demonstrate that the state withheld certain exculpatory evidence prior to trial in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, the disclosure of which would have supported an alibi defense. We agree with the petitioner both that he was deprived of a fair trial because his rights under Brady were violated and that his first habeas counsel's representation was constitutionally deficient in that counsel failed to establish that violation. We therefore affirm the judgment of the Appellate Court.
The respondent's appeal arises out of events that have their origin in the early evening hours of Sunday, March 8, 1987, when the victim, eighty-eight year old Bernice Martin, was raped, bound and murdered in her Manchester apartment, which her killer thereafter set ablaze in an apparent effort to destroy all evidence of the crime. The case remained unsolved until early 1989, when police focused their suspicions on the petitioner, the then forty-two year old mentally impaired husband of the victim's granddaughter, Karen Martin (Martin), with whom the petitioner resided
On the basis of these statements, the police obtained a warrant for the petitioner's arrest, and he ultimately was charged with capital felony and arson murder, among other offenses. Following a jury trial, he was convicted as charged
The petitioner subsequently filed the habeas petition that is the subject of this appeal, alleging, inter alia, that the state's failure to disclose the Ludlow note deprived him of due process of law and that his first habeas counsel had rendered ineffective assistance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
At the proceeding following the Appellate Court's remand of the case to the habeas court, the sole issue with respect to the Ludlow note was whether it was material. In support of his claim that the note was material, the petitioner presented expert testimony concerning the length of time the fire burned in the victim's apartment. Based on the burn time estimates of the petitioner's two experts, which were consistent with the notation that had been made in the Ludlow note, the fire was set in a relatively narrow window of time. The petitioner also presented evidence establishing that, if the state had disclosed the Ludlow note as required, his trial counsel would have called Martin as a witness, and Martin would have testified that the petitioner was home with her during the time frame within which, according to the petitioner's burn time experts, the fire was set. The respondent also presented expert testimony concerning the likely burn time of the fire. Under the far longer burn time estimate proffered by the respondent's expert, the petitioner could not establish, even with Martin's testimony, that he was home during that entire period. At the conclusion of the trial, the third habeas court, Nazzaro, J., rejected the petitioner's claim that his first habeas counsel was ineffective for failing to pursue a Brady claim on the basis of the state's nondisclosure of the Ludlow note. In particular, the third habeas court found that the testimony of the respondent's
On appeal to the Appellate Court from the judgment of the third habeas court, the petitioner argued, inter alia, that, contrary to the finding of the third habeas court, he is entitled to a new criminal trial at which the jury would decide how much weight to assign to the testimony of the petitioner's experts. The Appellate Court agreed, concluding that the determination of which expert or experts were most persuasive was an issue to be decided by the jury at a new trial. See Lapointe v. Commissioner of Correction, 138 Conn.App. 454, 476-77 and n. 17, 53 A.3d 257 (2012). Accordingly, the Appellate Court reversed in part
We then granted the respondent's petition for certification to appeal, limited to the following issue: "Did the Appellate Court properly determine that the [petitioner's] first habeas counsel was ineffective for failing to pursue a claim that the state had suppressed evidence in violation of Brady v. Maryland, [supra, 373 U.S. 83, 83 S.Ct. 1194]?" Lapointe v. Commissioner of Correction, 307 Conn. 940, 941, 56 A.3d 948 (2012). We answer the certified question in the affirmative because the testimony of the petitioner's experts was more than sufficient to call into question the reliability of the petitioner's conviction. Indeed, even if that expert testimony only tended to support the petitioner's claim that he could not have murdered the victim, in view of the tenuous nature of the state's case against the petitioner—based as it was on his suspect admissions—the state's Brady violation would warrant a new trial because, as the United States Supreme Court has recognized, exculpatory evidence of even "minor importance" may well be "sufficient to create a reasonable doubt" when, as in the present case, "the [guilty] verdict is already of questionable validity . . . ." United States v. Agurs, 427 U.S. 97, 113, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Accordingly, we affirm the judgment of the Appellate Court reversing in part the judgment of the third habeas court and ordering a new trial.
Our resolution of the issue presented by this appeal requires an extended discussion of the long and vexing history of the petitioner's case.
At or about 5:45 p.m., the victim's daughter, Nathalie Howard, and her husband drove past the victim's apartment and saw the victim outside emptying her trash. At the time, the victim appeared fine, and the couple continued on their way. At approximately 7:55 p.m., Howard called the victim to check on her, as she did every evening, but the victim did not answer her telephone. Howard tried calling again at 8:05 p.m. When the victim still did not answer, Howard called her niece, Martin, to inquire whether Martin's father, who resided in New York, had come to visit the victim and had taken her out to dinner. When Martin told Howard that her father was not in town that day, Howard asked if the petitioner would walk over to the victim's apartment to make sure that nothing was wrong. Howard also requested that the petitioner call her as soon as he got to the victim's apartment to let Howard know that everything was alright.
According to Howard, the petitioner called her right back from the home of Jeannette King, the victim's neighbor. He told Howard that the doors to the victim's apartment were locked and that the victim must be sleeping because there were no lights on inside the apartment. Howard told the petitioner that the victim never went to bed at that hour and that she was heading right over to the victim's apartment. The petitioner also called Martin, who told him to go back to the victim's apartment immediately and to try to get inside because the victim might have fallen and injured herself. A few minutes later, the petitioner returned, out of breath, to King's apartment and told her that there was smoke coming from the victim's apartment. The petitioner dialed 911 from King's apartment at 8:27 p.m.
The first firefighter on the scene, Michael Tomkunas, who was off duty and arrived within moments of the 911 call, saw the petitioner standing in front of the building, motioning him in the direction of the victim's apartment. Tomkunas could see smoke coming from the apartment, and the front door was hot to the touch. Tomkunas immediately kicked in the front door and tried to enter the apartment, but the smoke and heat were too intense, and he was forced out. By then, other firefighters were arriving on the scene. One of them, Douglas Boland, ran to the back of the building and opened a set of sliding glass doors. The cross-ventilation dissipated enough of the smoke and heat to allow the firefighters to enter. When they did, they discovered the victim lying on the living room floor, six to eight
The associate medical examiner, Arkady Katsnelson, performed an autopsy on the victim and determined that her cause of death was a combination of asphyxia by strangulation and smoke inhalation. He concluded that the victim was not manually strangled but was asphyxiated by pressure to the right side of her neck from a blunt object. The victim also suffered a three inch stab wound to her abdomen, ten less severe stab wounds to her back, extensive hemorrhaging and contusions and lacerations to the vaginal area, as well as first and second degree burns to various parts of her body. Katsnelson opined that the contusions and lacerations to the vaginal area were caused by a blunt object rather than by sexual intercourse.
The police recovered several items of potential evidentiary value from the victim's apartment, including a pair of men's gloves containing strands of the victim's hair and a semen stain from the bedspread belonging to a person with type A blood who also was a secretor.
The police investigation into the victim's homicide remained open for more than two years. In March, 1989, the case was reassigned to Detective Paul Lombardo of the Manchester Police Department.
On July 4, 1989, Lombardo asked the petitioner to come to the police station for questioning. By that time, Lombardo had become convinced of the petitioner's guilt because of his blood type, his peculiar nature and mannerisms, and his repeated questions to the police about whether he was a suspect in the victim's murder. According to Joseph J. Brooks, Lombardo's commanding officer, the purpose of the interview was to elicit a confession from the petitioner. When the petitioner arrived at the police station, Lombardo informed
At the petitioner's criminal trial, the petitioner's counsel presented evidence to demonstrate that the petitioner was physically, mentally and emotionally incapable of committing, much less concealing, such a brutal and cold-blooded murder, as evidenced by the testimony of numerous psychologists and other witnesses who had known the petitioner at various stages in his life, including childhood friends, employers, fellow parishioners, and other members of the community. According to these witnesses, the petitioner's cognitive and motor skills are impaired, apparently the result of Dandy-Walker syndrome, and, as a consequence, he is slow-witted, easily confused, child-like and gullible—his mother-in-law described him as having the
Focusing principally on the petitioner's third incriminating statement, the state argued that the statement was freely given, and that it was powerful evidence of guilt because it contained information about the murder that only the killer would know. The state also argued that the petitioner was not nearly as compromised intellectually as defense witnesses had made him out to be because he had an intelligence quotient (IQ) of 92, which, the state asserted, was "nowhere close to being [even] slightly retarded." The state also emphasized that the petitioner's blood type and secretor status were consistent with the seminal stain on the victim's bedspread. Finally, the state referred to certain conduct by the petitioner in the days and weeks following the murder that, in the state's view, suggested that the petitioner was the murderer: on several occasions, the petitioner had asked the police whether he was a suspect in the crime; he had told a neighbor that the victim was sexually assaulted before that information was known publically; and, on the night of the murder, he had gone to King's front door to ask to use her telephone, even though the back door was closer to the victim's apartment.
On direct appeal to this court, the petitioner claimed, inter alia, that the trial court improperly had denied his motion to suppress the oral and written statements that he had given to the police on July 4 and 5, 1989,
On August 2, 2002, the petitioner filed a second habeas petition, alleging, inter alia, that his first habeas counsel rendered ineffective assistance by failing to pursue a claim that the state improperly had suppressed the Ludlow note. The following relevant facts relating to the Ludlow note are set forth in the decision of the Appellate Court in Lapointe v. Commissioner of Correction, supra, 138 Conn.App. 454, 53 A.3d 257. "At the time of the victim's homicide, Ludlow was . . . assigned as the evidence officer for the crime scene. He subsequently assumed the position of case officer, which meant that he was responsible for the entire criminal investigation. A few days after the homicide, Ludlow had conversations with two state fire marshals who were assisting with the investigation. Ludlow took notes and wrote `CSP,' which stood for Connecticut State Police, and `Steve Igoe' and `Joe Roy,' the names of the state fire marshals. Underneath those notations [in] the Ludlow note, the words `30-40 mins. Poss.' were written. The numbers `30' and `40' were underscored twice. Ludlow testified that the notation `[P]oss.' meant `possible' and that the times represented the minimum amount of time that the fire could have been burning before the first responding firefighters arrived at the victim's apartment. At the time of the second habeas trial, Ludlow stated that he could not remember who gave him the burn time information. He admitted, however, that he was not an expert on fires and that he would not have made that estimate on his own. He testified that he would have asked one of the experts for the burn time if he was trying to determine a window of time within which the fire could have been started. Ludlow also acknowledged that, at the time of the first habeas proceeding, he testified that he had obtained the information as to a possible burn time from either Igoe or Roy.
"The Ludlow note was first disclosed to [the petitioner's] counsel in 1999, after the petition for [a writ of] habeas corpus had been filed in the first habeas action. [The petitioner's trial counsel, Patrick]
"[The petitioner alleged in a second habeas proceeding that his first habeas counsel's] failure to pursue the claim that the state suppressed the Ludlow note was . . . ineffective assistance of counsel. . . . During the second habeas trial, [the petitioner's first habeas counsel] testified that he had not pursued that claim because he did not believe [that] the notation as to burn time in the Ludlow note [was] exculpatory. Culligan and Cosgrove, in their testimony before the second habeas court, opined that the Ludlow note was exculpatory and that the information could have been used by [them] at the criminal trial to buttress the petitioner's alibi defense. Culligan and Cosgrove further testified that if the Ludlow note had been disclosed to [them] prior to the [petitioner's criminal] trial, their strategy would have changed.
"[Martin] was not called as a witness in the petitioner's criminal trial. Culligan stated that Martin and the petitioner were divorced by that time and that the working relationship between her and the defense was no longer a good one. Although [Culligan] discovered prior to trial that [Detective] Morrissey had interviewed [Martin] on July 4, 1989, and that she had expressed her support for the petitioner at that time, and although [Culligan] knew that [Martin] had testified at the suppression hearing that the only time the petitioner was out of her sight on the night of the homicide was when she bathed their son between 6:15 [or 6:30] p.m. and 7 p.m., Culligan decided not to compel her testimony. He testified that he was concerned about her attitude toward the petitioner. Further, he was unaware of the existence of the Ludlow note and the importance of the start time of the fire to support the petitioner's alibi defense. Culligan testified that, if he had known that Igoe, the state's fire expert, gave a burn time of thirty to forty minutes, he would have called [Martin] as a witness because her testimony would have established that the petitioner was home when the fire was set. He also [testified] that [if] he . . . had . . . known of the information in the Ludlow note [he would have been prompted to hire an expert to testify about the fire's burn time for the purpose of demonstrating that the petitioner could not have started the fire because he was home when it was set]."
At the close of the petitioner's evidence at the second habeas trial, the respondent moved to dismiss the petition on the ground that the petitioner had failed to make out a prima facie case with respect to any of his claims. On August 2, 2007, the second habeas court granted the
The petitioner appealed from the judgment of the second habeas court to the Appellate Court, which reversed in part the second habeas court's judgment as it related to the Ludlow note and remanded the case for further proceedings. Lapointe v. Commissioner of Correction, supra, 113 Conn.App. at 404, 966 A.2d 780. In reversing that portion of the second habeas court's judgment pertaining to the Ludlow note, the Appellate Court observed that "the record reveals . . . that the victim was last seen outside of her apartment by Howard at about 5:45 p.m. The petitioner's former wife, [Martin], testified at a suppression hearing that she prepared dinner at the petitioner's home and that they ate dinner at about 5:15 p.m. or 5:30 p.m. Prior to sitting down for dinner, the petitioner. . . walked the family dog for approximately twenty minutes. Therefore, according to her testimony, the petitioner had returned from his walk before the time that the victim was last seen outside of her apartment. . . . Martin . . . further testified that [the petitioner] did not leave their house again until she received a telephone call from Howard, who requested that the petitioner walk over to the victim's house to check on [the victim]. According to Howard, this telephone call was placed a little after 8 p.m." Id., at 391, 966 A.2d 780. The Appellate Court further noted that, although the state had adduced testimony from Martin acknowledging that the petitioner was out of her sight from approximately 6:15 or 6:30 p.m. until 7 p.m., when she was upstairs bathing their son, Martin also testified that, "while she was upstairs, it was possible to hear someone downstairs"; id.; and, in addition, that, from 7 p.m. until the time the petitioner left to check on the victim, she and the petitioner were watching television with their son. See id., at 391-92, 966 A.2d 780.
Viewing this evidence in the light most favorable to the petitioner,
Primarily on the basis of the smoke and fire damage to the apartment, Kelder concluded that the fire burned for approximately forty-five minutes to one hour. Under this estimate, the fire was set no earlier than 7:30 p.m. Because Martin could account for the petitioner's whereabouts from at least 7 p.m. until he left his house to check on the victim, Kelder's testimony, together with Martin's testimony, established that the petitioner was not at the victim's home when she was sexually assaulted and killed.
DeHaan's testimony also supported the petitioner's alibi. In his view, in light of the smoke and heat conditions that Tomkunas had encountered when he arrived on the scene, the fire could have been set as late as 8 p.m. or 8:05 p.m. He further concluded, however, on the basis of the damage to the apartment and the dynamics of the fire, that it was set no earlier than 7:30 p.m. Like Kelder's testimate, DeHaan's burn time estimate was favorable to the petitioner because Martin could account for the petitioner's whereabouts from 7:30 p.m. until 8:05 p.m.
Corry thereafter testified that the fire could have been set anytime from 5:45 p.m., when the victim was last seen alive, until she failed to answer her telephone at around 8 p.m. Under this estimate of the fire's possible burn time, Martin did not provide the petitioner with a complete alibi because she could not positively account for the petitioner's whereabouts from 6:15 or 6:30 p.m. until 7 p.m.—when she was upstairs getting her son ready for bed—a time period within which, according to Corry, the fire could have been set.
On direct examination, Corry also was asked whether he had been present in the courtroom for DeHaan's testimony, two months earlier, and, if so, whether he agreed with DeHaan's conclusions regarding the fire. Corry responded that he had been present for DeHaan's testimony and that he disagreed with several of DeHaan's findings. In particular, Corry characterized DeHaan as having testified that the fire was a "high energy" fire. Corry then explained that, if the fire actually had been a high energy fire, there would have been more damage to the apartment. Specifically, Corry stated that a high energy fire "would have destroyed the wall behind [the couch], it would have destroyed the ceiling over it, and it would have probably brought this room to flash over." When asked what may have caused DeHaan to overestimate the fire's energy level, Corry opined that DeHaan likely did not consider the probability that there was some kind of object, possibly a blanket, on the couch, which is where the fire began,
Following the trial, the third habeas court issued a memorandum of decision in which it rejected the petitioner's claim that the petitioner's first habeas counsel provided ineffective assistance by failing to pursue, as a claim in the first habeas proceeding, the state's suppression of the Ludlow note. For purposes of its analysis, the third habeas court treated the Ludlow note as "potentially exculpatory" and assumed that the state had inadvertently failed to disclose the note.
With respect to the latter finding, the third habeas court stated: "The fact that Tomkunas was not burned contradicts any opinion that the temperature was 400 degrees. At 400 degrees, Corry cogently explained, one would expect Tomkunas to suffer injury to the back of his neck and his hands at a minimum. In addition, the photographs of the fire damage, or lack thereof, [to] materials in the apartment. . . do not support . . . DeHaan's testimony that temperatures reached 400 degrees." The third habeas court further noted that Corry had "also criticized the validity of . . . DeHaan's opinions regarding temperatures as not taking into account the material in the room [that] helped to slow the fire's burning, such as a blanket and poly foam cushions on the couch, [which was] thought to be one of three . . . points of origin [of the fire]." Finally, the third habeas court found that Corry also had convincingly refuted Kelder's testimony that (1) the fire was a high energy fire, and (2) the fire's peak temperature reached 1800 degrees at ceiling level.
In light of these findings, the third habeas court stated: "Considerable and extensive testimony by arson experts/investigators was presented by both the petitioner and the respondent in their efforts to determine the burn time." This "testimony amount[ed] to a contest among experts. . . . [Nevertheless] [t]he court, as the finder of fact in this proceeding, assigns far more credit or weight to the testimony of . . . Corry . . . than [that of]. . . Kelder or . . . DeHaan regarding estimation of the burn time." The third habeas court also observed that "[w]hat is clear from all the evidence in the record, the original trial testimony, crime scene photographs, reports, and the expert testimony presented to [the] court on the fire, is that the precise time the fire was set cannot be determined. At best, a range is established that includes that time period of [6:15 to 7 p.m.] . . . when . . . Martin cannot account for the petitioner's whereabouts, and [this] does not provide an alibi for him." With respect to this point, the court further explained that, because Martin was upstairs giving her son a bath from 6:15 to 7 p.m., she could not have known whether the petitioner was at home, downstairs, during that time frame, and, consequently, her testimony, standing alone, did not provide "the petitioner with anything that remotely amounts to an alibi" for that forty-five minute period.
The third habeas court concluded that, "[g]iven all of the foregoing, the court simply cannot conclude that the nondisclosure of the Ludlow note, assuming it is potentially exculpatory and was inadvertently not disclosed by the state, supported the petitioner's `alibi' defense. The inability to precisely determine the start time of the fire, coupled with . . . Martin's testimony that she [could not] account for the petitioner's whereabouts from [6:15 to 7] p.m., leads [the] court to conclude that the petitioner has failed to [satisfy] both the third prong of Brady
"Accordingly . . . the court concludes that the petitioner has failed to show that [his first habeas counsel] rendered ineffective assistance of counsel. . . . The court is unable to conclude that [first habeas counsel's] failure to have an arson/fire expert testify in the first habeas [proceeding] would have resulted in anything different [from the present] habeas [case]: a prototypical battle of the experts resulting in diverging opinions. . . . [T]he court finds more persuasive the testimony presented by the [respondent's expert, Corry], rather than either of the petitioner's two experts, [Kelder] and . . . DeHaan." (Footnote added.)
The petitioner appealed from the judgment of the third habeas court to the Appellate Court, claiming, inter alia, that the third habeas court incorrectly concluded that the petitioner's evidence regarding the fire's burn time was not material and, consequently, that the petitioner's first habeas counsel did not render ineffective assistance in failing to pursue the claim that the state's suppression of the Ludlow note deprived the petitioner of a fair trial. Lapointe v. Commissioner of Correction, supra, 138 Conn.App. at 468, 53 A.3d 257. The Appellate Court agreed with the petitioner. See id., at 476-80, 53 A.3d 257. After setting forth the legal principles and standard of review that govern claims under Strickland and Brady; id., at 474-76, 53 A.3d 257; see also footnotes 3 and 4 of this opinion; the Appellate Court stated in relevant part: "[T]he state's suppression of the Ludlow note, and [first habeas counsel's] failure to pursue that claim, warrants a new trial for the petitioner. [The court] reach[es] that conclusion for the following reasons. Culligan and Cosgrove testified that had the burn time information in the Ludlow note been disclosed prior to the petitioner's criminal trial, their trial strategy would have changed. They stated that they would have used the thirty to forty minute estimate to buttress the petitioner's alibi defense, particularly because
"For that reason, as both trial counsel testified, they would have called . . . Martin as a witness at the criminal trial. She consistently had maintained that the petitioner was in their home with her and their son the entire evening of the victim's homicide. During her testimony at the suppression hearing, [Martin] stated that the only time that the petitioner was not in her sight was between 6:15 p.m. and 7 p.m., when she was bathing their son. If the jury credited . . . Martin's testimony, it could have concluded that the petitioner was at home watching television with [Martin] and their son when the fire had been set.
"[In addition], if . . . Martin had testified and the jury believed her testimony, the jury could have concluded that the petitioner had, at most, a forty-five minute window of time within which to commit the crimes. This would mean that between 6:15 p.m. and 7 p.m., on the night of the homicide, the petitioner: (1) walked the distance between his home and the victim's apartment;
"[T]here is a reasonable probability that the result of [the petitioner's] criminal trial would have been different had the Ludlow note been disclosed to Culligan and Cosgrove prior to trial. Nondisclosure prior to trial of the portion of the Ludlow
We granted the respondent's petition for certification to appeal, limited to the issue of whether the Appellate Court properly reversed the judgment of the third habeas court and concluded that the petitioner is entitled to a new trial on the ground that first habeas counsel's representation of the petitioner during the first habeas trial was ineffective due to his failure to pursue a claim that the state had suppressed the Ludlow note. See Lapointe v. Commissioner of Correction, supra, 307 Conn. at 941, 56 A.3d 948. On appeal, the respondent asserts that the Appellate Court applied an incorrect standard of review in evaluating the petitioner's Brady claim, and, as a result, it improperly concluded that a new trial is required. In particular, the respondent contends that the Appellate Court improperly failed to afford due deference to the third habeas court's determination that the petitioner's expert burn time testimony would have had no effect on the outcome of his criminal trial, and that, if the Appellate Court had accorded such deference to that determination, it would have concluded, like the third habeas court, that first habeas counsel's failure to pursue a claim predicated on the state's suppression of the Ludlow note did not constitute ineffective assistance of counsel under Strickland. The petitioner, on the other hand, maintains that the Appellate Court correctly determined that the testimony of his burn time experts reasonably could have been credited by the original jury, and, if the jury did credit that testimony, it undoubtedly would have concluded that the petitioner could not possibly have committed the crimes with which he was charged. As a result, the petitioner contends that first habeas counsel's failure to raise a Brady claim predicated on the state's suppression of the Ludlow note rendered counsel's representation of the petitioner constitutionally deficient.
We agree with the petitioner that, notwithstanding the findings of the third habeas court, there is, at the very least, a reasonable likelihood that a jury, upon hearing the testimony of the petitioner's burn time experts and Martin in light of
"In Brady, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process [when] the evidence is material either [as] to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. . . . In Strickler v. Greene, 527 U.S. 263, [281-82] 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the United States Supreme Court identified the three essential components of a Brady claim, all of which must be established to warrant a new trial: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching;
Furthermore, with "respect to Brady's third prong, a showing of materiality does not require demonstration by a preponderance [of the evidence] that disclosure of the suppressed evidence would have resulted ultimately in the defendant's
Under Strickland, "[a] claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. . . . To satisfy the prejudice prong, [the petitioner] must demonstrate
In the present case, the petitioner's claim of a constitutional violation under Strickland and Brady implicates yet another constitutional protection, namely, the right to present a defense. "[T]he federal constitution require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense." (Internal quotation marks omitted.) State v. Santana, 313 Conn. 461, 470, 97 A.3d 963 (2014). This right affords a defendant the opportunity to present his or her version of the facts, along with that of the prosecution, "so that [the jury] may decide where the truth lies"; (internal quotation marks omitted) id.; and includes the right to present an alibi defense. E.g., State v. Bryant, 202 Conn. 676, 704, 523 A.2d 451 (1987). Finally, it bears emphasis that, if the petitioner had been able to raise an alibi defense at his criminal trial based on the testimony of DeHaan, Kelder and Martin, the state would have been required to disprove that defense beyond a reasonable doubt. See, e.g., State v. Milardo, 224 Conn. 397, 407, 618 A.2d 1347 (1993).
For purposes of the present habeas petition, the petitioner was required to establish, under Strickland, that first habeas counsel's failure to pursue the Brady claim concerning the state's suppression of the Ludlow note fell below the performance standard expected of competent habeas counsel and that the petitioner was prejudiced thereby. To make the necessary showing of prejudice, the burden was on the petitioner to demonstrate that the Ludlow note had been withheld by the state and was both exculpatory and material. In view of the fact that the third habeas court treated the note as exculpatory and assumed that it had been suppressed
As we previously noted, the third habeas court found that the testimony of both parties' burn time experts was thorough and extensive. Indeed, the third habeas court characterized that testimony as "a prototypical battle of . . . experts" who are highly qualified in their field. Nevertheless, the third habeas court concluded that the testimony of the petitioner's experts, when viewed in the light of Corry's testimony, was not sufficiently credible to give rise to a reasonable probability of a different result at the original trial, that is, it was not persuasive enough such that the jury reasonably might have credited it.
We therefore must decide whether the Appellate Court properly determined that the third habeas court was incorrect in concluding that the jury reasonably could not have credited the testimony of the petitioner's burn time experts. As a reviewing court, we ordinarily accord deference to credibility determinations that are "made on the basis of [the] firsthand observation of [a witness'] conduct, demeanor and attitude."
The Indiana Court of Appeals recently addressed this precise issue in a case that is factually and procedurally indistinguishable in any material respect from this one. In Bunch v. State, 964 N.E.2d 274 (Ind. App.), trans. denied, 971 N.E.2d 1215 (Ind. 2012), the defendant, Kristine Bunch, who had been convicted of murder in the arson-related death of her son, sought a new trial based on newly discovered evidence concerning the place of origin of the fire that she was found to have set. Id., at 279-80. As in the present case, one of the issues in Bunch was the materiality of expert testimony concerning the fire; see id., at 290; and the Court of Appeals was called on to review the trial court's finding that the testimony of Bunch's expert was not sufficiently worthy of credit to warrant a new trial. See id., at 283-85, 293. In reversing the judgment of the trial court on that issue; id., at 297, 304; the Court of Appeals reviewed that expert testimony without affording any deference to the trial court's finding that the testimony lacked persuasive force and, therefore, did not support Bunch's new trial claim. See id., at 292-93. Because we agree fully with the well reasoned analysis of the Court of Appeals, we repeat it in relevant part here: "In general, [w]hether a [witness'] testimony at a [postconviction] hearing is worthy of credit is a factual determination to be made by the trial judge who has the opportunity
"However . . . the [trial] court did not find [that the] testimony [of Bunch's fire expert] was not worthy of credit because it doubted her credibility or veracity based [on] a firsthand evaluation of her demeanor; the [trial] court found her testimony not worthy of credit because it was in conflict with trial evidence. . . . In other words, the [trial] court did not find [the expert] unworthy of credit on the basis of her demeanor; it found her expert opinion unworthy of credit on the basis of its foundation. Under these circumstances, we do not think it [is] necessary or appropriate to impute a personal credibility determination to which we must defer to the [trial] court. To do so would virtually eviscerate appellate review of [postconviction] denials because we would have to speculate in every instance that the [trial] court could have concluded [that] the witness was not credible based on his or her demeanor.
"Thus, although we would defer to the [trial] court's assessment of fact witnesses—for instance, a trial witness now recanting trial testimony or a new witness offering never-before-heard exculpatory testimony—we will not defer in this case to the [trial] court's assess ment of an expert's scientific evidence. We have the ability to assess [the expert's] testimony ourselves because her credentials and the basis for her opinion are part of the record. The [trial] court found [that the expert's] testimony was not reliable because she did not establish the scientific principles for her conclusion and because [her] conclusions contradicted [the] undisputed evidence and eyewitness testimony from the trial. In making such a determination, the [trial] court did not rely on her demeanor. . . but rather on the stated bases for her opinion and review of the trial record. We have the same information before us, and therefore are able to independently assess whether [the expert's] testimony is worthy of credit without invading the province of the [trial] court." (Citations omitted; emphasis altered; internal quotation marks omitted.) Id.; see also State v. Behn, 375 N.J.Super. 409, 431-33, 868 A.2d 329 (App.Div.), cert. denied, 183 N.J. 591, 874 A.2d 1108 (2005).
This case presents the same exceptional factual and procedural scenario
In light of this determination, we finally must decide whether the testimony of the
We first address the respondent's claim that the Appellate Court improperly rejected the third habeas court's conclusion that DeHaan's and Kelder's testimony is not sufficiently credible to give rise to a reasonable doubt about the petitioner's guilt. We disagree with the respondent's contention because the record belies the third habeas court's determination that, in all probability, the original jury would have reached the same result even if it had heard that testimony.
As we noted previously, the third habeas court, in concluding that Corry was so much more persuasive than DeHaan and Kelder that no jury reasonably could credit DeHaan's and Kelder's testimony, relied on three threshold or subordinate findings: (1) DeHaan and Kelder mischaracterized the fire's energy level; (2) DeHaan and Kelder overestimated the fire's "peak" temperature; and (3) DeHaan overestimated the temperature of the fire when Tomkunas entered the victim's apartment. With respect to the first two findings, the third habeas court stated: "In contrast to. . . DeHaan and Kelder, Corry opined credibly that `this was not a high energy fire.' He disputed DeHaan's and Kelder's estimate[s] of peak temperature. . . . Corry testified credibly that . . . DeHaan overstated the amount of heat generated by
A review of the record reveals that the third habeas court's critique of the testimony of DeHaan and Kelder is comprised of factually unfounded assertions. First, contrary to the court's finding, DeHaan and Kelder never testified that the fire was a high energy fire. To the contrary, DeHaan emphasized throughout his testimony that the limited damage to the apartment was evidence that the fire was not a high energy fire. He described it as a "very limited scale fire," no different from "an average fireplace fire."
With respect to the third habeas court's statement that Corry had convincingly "disputed DeHaan's and Kelder's estimate[s] of peak temperature," the petitioner correctly observes that, as between Corry and DeHaan, it was Corry who provided the higher estimate of the fire's peak temperature. On cross-examination, the petitioner's counsel asked Corry to comment on several photographs that were taken inside the victim's apartment after the fire, one of which depicts a stack of charred newspapers. Corry testified that all of the papers in the photograph reveal "evidence of edge burning" and "a heating to the . . . preignition point." When asked whether the temperature must have been 600 degrees for the papers to begin to char, as depicted in the photographs, Corry
Similarly unfounded is the third habeas court's assertion that, "[w]hen compared with Corry's reasonable and measured analysis, Kelder's estimate of temperature at 1800 degrees appears wildly exaggerated." On cross-examination, counsel for the respondent asked Kelder his opinion as to "the maximum heat . . . that was reached in the apartment. . . ." Kelder responded: "The maximum, I would say, would be . . . about 1800 degrees at ceiling level." (Emphasis added.) When asked what he had based this estimate on, Kelder responded, "scientific proof. . . . [A]ny of the . . . fire books that I've read and the schools that I [have] attended [say] it's 1800 to 2000 degrees at ceiling level [for] any fire. . . . That's the normal ceiling [temperature]." Kelder then explained that temperatures are always much hotter at ceiling level. Corry never disputed this testimony. To the contrary, although he was never questioned about ceiling level temperatures, Corry stated that they necessarily would have been "hotter because the temperature rises as you go up, for sure." He also stated that "heat stratifies. The highest temperatures are always found at the ceiling or close to the ceiling, and, as you go down, they get less, which is why little children are taught in schools to crawl in fires, because you're generally underneath a smoke layer, and there's more oxygen there and you can survive and actually escape a fire in many cases by crawling, [whereas] if you stood up, you might be killed or seriously burned." Finally, as we previously indicated, Corry testified that temperatures would have to have reached at least 600 degrees to bring the newspapers to their preignition point, as depicted in some of the crime scene photographs. In view of this testimony, there simply is no factual basis for the third habeas court's finding that Kelder's estimate of ceiling temperatures was "wildly exaggerated" and, therefore, that his burn time estimate was unreliable.
In light of the foregoing, it is readily apparent that the third habeas court's first two assertions—that Corry disputed DeHaan's and Kelder's testimony regarding peak temperature, and that, "[i]n contrast to . . . DeHaan and Kelder, Corry opined credibly that `this was not a high energy fire'"—are not supported by the record. In fact, we can discern no disagreement among the experts with respect to the fire's peak temperature or energy level. It is not surprising, therefore, that the respondent makes no attempt to defend the third habeas court's assertion that there was a material difference in the testimony of the parties' experts with respect to the energy level of the fire and its peak temperature.
The third reason why the third habeas court found Corry's burn time estimate to be more persuasive than DeHaan's estimate was DeHaan's purported testimony that the floor level temperature inside the victim's apartment was 400 degrees when
Later, during cross-examination, DeHaan clarified that his estimate of entry level temperatures referred to the temperature inside "the hot gas layer" of the fire. DeHaan explained that, in his experience, if the temperature had been much lower than 300 to 400 degrees, Tomkunas would not have been deterred from entering the victim's apartment, and, if the temperature had been much higher, there would have been more damage to the apartment. DeHaan also testified that studies have shown that the average person will not attempt to enter a room if the temperature is 250 degrees or higher, unless he has no option but to do so. Finally, DeHaan opined that, although an experienced firefighter might be willing to brave slightly higher temperatures, the fact that Tomkunas was hindered in his efforts to enter the victim's apartment suggests that the temperature in the hot gas layer of the fire was in the range of 300 to 400 degrees.
Notably, at the petitioner's criminal trial, Tomkunas testified that, when he first arrived on the scene, he tried to enter the victim's apartment on his own but was forced back by the substantial heat and "[h]eavy smoke condition." Specifically, Tomkunas stated that, after he kicked in the front door, there "was a lot of heat, so [he] dropped to [his] knees . . . to stay below [the] smoke and heat." Tomkunas testified that he crawled several feet into the room but immediately had to retreat because "[i]t was too hot and smoky." According to Tomkunas, after his initial, unsuccessful attempt to enter the apartment, he told the firefighters who arrived after him that they had to "vent" the building "to remove the heat and smoke and hot gases." One of those firefighters, Boland,
Although it is perfectly clear that both DeHaan and Kelder were aware that firefighters vented the victim's apartment prior to entry, and that Tomkunas had tried unsuccessfully to gain entry into the apartment by himself prior to the arrival of the other firefighters, Corry either was unaware of these facts or refused to accept them. Corry maintained, throughout his testimony, that there was only one entry into the apartment by firefighters, which was not preceded by a venting. On direct examination, Corry was asked on several occasions whether he agreed with DeHaan's estimate of entry level temperatures. The first time he was asked this question, he responded: "[T]he fact that, [on] the night of the fire, all . . . of the firefighters: [Tomkunas], William Boland. . . William Parker and Douglas Boland, who were [all] in [the apartment] at basically the same time from different angles—none of them described high temperature on entry. They described heavy smoke. None of them talked about temperature. And, more importantly, none of them [was] injured in any way. And they would have been if the temperature had been anywhere close [to] 400 degrees, as. . . DeHaan said. . . . They would have been burned." Counsel for the respondent then asked Corry whether he had "reach[ed] a conclusion regarding the temperatures that Tomkunas and the other firefighters encountered when they entered the apartment. . . ." Corry responded: "Safe to say, it was elevated 120, 130 [degrees], some thing like that." Thereafter, the following exchange between counsel for the respondent and Corry ensued:
"Q. Do you recall reading . . . DeHaan's report?
"A. Yes.
"Q. And you heard his testimony?
"Q. Do you recall what temperature he opined . . . Tomkunas encountered when he entered the apartment?
"A. 400 degrees.
"Q. Based on your research, is that possible?
"A. It is not possible.
"Q. Would an individual who was not wearing protective clothing and entered [an apartment] with temperatures of 400 degrees be injured?
"A. Yes. Couldn't help it.
"Q. And would they be able to tolerate remaining in that environment?
"A. No. Well . . . it all depends [on] how much they wanted to be burned, but they would be burned, and they'd be in substantial pain. And these were men who were, number one, on their hands and knees, which would expose the nape of their neck [and] the back of their ears, which are the most sensitive parts of our bodies, to temperature, and none of them described any burns or even mentioned heat in their original statements taken [on] the night of the fire."
Thus, it is evident that Corry attributed to DeHaan testimony that he never gave, namely, that the floor level temperature inside the victim's apartment when the firefighters entered was 400 degrees. It also is evi dent that the third habeas court accepted Corry's characterization of DeHaan's testimony without verifying whether DeHaan actually had opined in the manner attributed to him by Corry. In fact, DeHaan never was questioned about the temperature inside the apartment after it was vented and all of the firefighters were able to enter. Nor did he express an opinion with respect to the floor level temperature when Tomkunas first entered the apartment on his own and was turned back. DeHaan simply stated that the temperature inside the hot gas layer was likely in the range of 300 to 400 degrees when Tomkunas made his first attempt to enter, before the arrival of the other firefighters.
Moreover, it is difficult to fathom Corry's response when, on cross-examination, the petitioner's counsel pointed out to him that Tomkunas had testified at the petitioner's criminal trial that the heat and smoke prevented him from entering the apartment when, unaccompanied by other firefighters, he first attempted to do so: Corry's response was simply to refuse to accept Tomkunas' testimony. Specifically, when the petitioner's counsel asked Corry why Tomkunas' testimony that the smoke and heat forced him out of the building was inconsistent with DeHaan's testimony that the temperature was likely 300 to 400 degrees in the hot gas layer at that stage of the fire, Corry responded: "That's what [Tomkunas] said at the trial, not what he said in his initial statement." In support of this response, Corry explained that all of the firefighters gave statements to the police on the night of the fire, and, although those statements are contained in a police report that never was entered into evidence, Corry read them in preparing to testify. According to Corry, the report does not mention that any of the firefighters either were injured or forced out of the apartment by the heat. Corry stated that, as far as he was concerned, the police report was a more reliable gauge of the conditions that Tomkunas had encountered on the night in question, more so than "what [Tomkunas] said under oath in [a] capital [felony] trial," because, "in general, witnesses closer to the time of the incident will give a better recollection."
Without the benefit of the report to which Corry was referring, we can only surmise its contents. It is unlikely, however, that the investigating officer who prepared the report questioned Tomkunas and his fellow firefighters in minute detail about their entry into the apartment. But even if we assume that the officer had thought to ask the firefighters about entry level temperatures, no doubt none of them reported extremely high temperatures inside the apartment because, as both Tomkunas and Douglas Boland testified, they vented the apartment before entering together as a group to extinguish the fire and to search for the victim. The fact that Corry felt free to disregard Tomkunas' sworn testimony on this issue, on the basis of what he himself conceded was nothing more than "a report written by a police officer [on the night of the fire] as to what somebody told him"—or did not tell him, as the case may be—is perplexing, to say the least. In any event, insofar as the third habeas court's determination that a jury reasonably could not credit the expert
It bears noting that the third habeas court also found that DeHaan's and Kelder's burn time estimates were "totally contradicted by the historical and physical evi dence marshaled by Corry." Because the respondent elected not to place Corry's written report in evidence, the only basis for this finding was Corry's trial testimony.
Significantly, Corry's description of the fire and the variables that affected it was otherwise identical to DeHaan's and Kelder's analysis of the fire. Indeed, on cross-examination, Corry even conceded, consistent with DeHaan's testimony, that the temperature "might very well have been 400 degrees somewhere in that room" when Tomkunas entered the apartment. His point, he explained, was simply that it could not have been 400 degrees at floor level because none of the firefighters was burned when the firefighters entered and made their way into the interior of the apartment. Like DeHaan and Kelder, Corry testified that the fire burned out quickly due to the apartment's heavy insulation and lack of ventilation. Corry likened the apartment to a "thermos" and stated that the fire was "substantial" but burned only "for a brief period of time" due to "decreasing levels of oxygen. . . ." On the basis of the photographs, Corry also opined that there might have been a blanket or some other object on the couch that prevented the fire from exhausting its main fuel source, which, according to Corry, was the couch cushions, and that that the blanket or object prevented the fire from becoming much larger. Apart from expressing the view that the firefighters were not injured when they entered the apartment, however, Corry offered no scientific reason for his conclusion that the fire could have been set considerably earlier than DeHaan and Kelder hypothesized.
Above and beyond our determination that the third habeas court's stated reasons for discrediting the burn time estimates of DeHaan and Kelder are baseless, our examination of the entire record reveals no other apparent reason why a jury would be apt to discredit their testimony. As we have indicated, their credentials certainly provide no such reason. Furthermore, although there is nothing in the record that would lead to the conclusion that a jury necessarily would credit Corry's burn time estimate over those of DeHaan and Kelder, there are several reasons why a jury might well be inclined to discredit that estimate. First, as we previously discussed, Corry's opinion is based on a police report that purportedly contains certain statements that firefighters gave to the police on the night of the fire but that never was introduced into evidence. In particular, Corry based his conclusions on inferences drawn from what Tomkunas did not say in those statements and elected to ignore Tomkunas' sworn trial testimony that directly contradicted the strained inferences Corry gleaned from the report not in evidence. Second, although counsel for the respondent opted not to introduce Corry's written report into evidence, the petitioner's counsel read extensively from it during his cross-examination of Corry. At the time, the petitioner's counsel accused Corry of having altered his conclusions about the fire after listening to DeHaan's testimony in an effort to create an opportunity for the respondent's counsel to argue that the fire could have been started earlier than DeHaan had determined. Although Corry denied the accusation, insisting that his testimony was wholly consistent with the findings in his report, he admitted that, after listening to DeHaan's testimony, he felt the need to reexamine the available evidence for the purpose of discrediting DeHaan's findings. He also acknowledged that of the more than ninety-five criminal cases he had worked on, he never had
For example, on direct examination, Corry was asked a series of questions designed to elicit criticism of DeHaan's and Kelder's findings. With respect to Kelder, the questions focused on the information that he had relied on in formulating his burn time estimate, in particular, the fact that he had assumed, for purposes of his analysis, that the cushions on the victim's couch were made of latex foam. DeHaan had concluded that the cushions were made of polyurethane foam, a different material, and Corry had agreed with that conclusion at trial. In an effort to discredit Kelder's burn time estimate, counsel for the respondent asked Corry: "Would you be able to properly analyze this fire if you didn't know the difference between latex foam rubber and polyurethane foam?" Corry responded, "[n]o." The next day, however, on cross-examination, it was revealed that Corry also had assumed that the cushions were made of latex foam for purposes of his analysis. Following that revelation, Corry provided a very different answer to the question, posed by the petitioner's counsel, of whether one could properly analyze the fire if he did not know that the couch cushions were made of polyurethane foam:
"Q. But, in your report, you have that. . . the material was latex rubber. . . . Correct?
"A. Right.
"Q. Which is not what you're saying now?
"A. Well, there's a reason for that. This couch closely resembles couches that I've seen manufactured in the 1970s . . . that did contain foam rubber. That was the principal foam material up [until] the time that polyurethane began to replace foam rubber, but it's really a matter of six of one, half dozen of another, since both of them perform in a similar manner in fires. . . . [Foam] rubber and foam plastics have similar heat release rates, fire propagation rates, ignition temperatures, and so forth." These contradictory answers by Corry hardly instill confidence in his testimony.
Corry's testimony is replete with similar inconsistencies. Sometimes, he contradicted himself for no apparent reason, such as when he denied ever calling the fire a low energy fire. As we previously noted, at trial, the respondent's counsel focused on the fire's energy level and how it may have affected the fire's development, so much so that the third habeas court, in its memorandum of decision, included a finding that, "[i]n contrast to . . . DeHaan and Kelder, Corry opined credibly that `this was not a high energy fire.'" As we explained, however, this finding lacks support in the record because both DeHaan and Kelder opined that the fire was a low energy fire. Nevertheless, on direct examination, Corry repeatedly characterized the fire as a "low energy" fire, on one occasion describing it as "a very low energy fire" and asserting, at another point, that there was "abundant evidence that clearly shows. . . that this fire was low energy. . . ." (Emphasis added.)
On cross-examination, however, Corry denied ever characterizing the fire in terms of low energy. During one heated exchange with the petitioner's counsel, Corry was asked: "Now, as I understand
Needless to say, it is not the role of this court to make credibility determinations, and we therefore express no opinion as to whether Corry is a more persuasive or convincing witness than DeHaan or Kelder. Our sole purpose in drawing attention to the inconsistences in Corry's testimony is merely to underscore why, contrary to the conclusion of the third habeas court, the original jury might well have credited the burn time opinions of DeHaan and Kelder, and why it might well have rejected Corry's estimate. Of course, on retrial, it is possible that the jury will not find the testimony of DeHaan and Kelder persuasive; like all witnesses, they will be subject to impeachment, and, at that new trial, the state may be able to present an expert or experts who, in contrast to Corry, provide testimony explaining why the burn time opinions of the petitioner's experts lack persuasive force. Or the jury might conclude, like the third habeas court did, that it simply is not possible to determine the burn time of a fire, even within relatively broad parameters, with any degree of confidence or exactitude. But, for purposes of the present case, which involves the suppression of exculpatory evidence by the state, our task is not to determine whether the jury more likely than not would have credited their testimony, such that the petitioner would have prevailed at a new trial. Cf. Shabazz v. State, 259 Conn. 811, 827-28, 792 A.2d 797 (2002) (in resolving merits of petition for new trial based on newly discovered evidence, trial court must determine whether petitioner has established that new trial will produce different result). The question, rather, is whether the jury reasonably could have credited the testimony of the petitioner's witnesses. On the record before us, there simply is no legitimate basis for concluding that the jury reasonably could not have credited the testimony of DeHaan and Kelder, both of whom are well credentialed and highly experienced experts in their field, and whose testimony, when coupled with that of Martin's, supports the petitioner's contention that he could not possibly have sexually assaulted and killed the victim.
This observation, however, does not end our inquiry. We still must determine whether, if the original jury had considered the original trial evidence together with DeHaan's and Kelder's testimony that the fire was set no earlier than 7:30 p.m., as well as Martin's unwavering testimony that the petitioner was home with her and their son watching television at that time, there is a probability of a different result sufficient to undermine confidence in the jury's verdict. For the reasons set forth in part III C of this opinion, this standard has been met. Indeed, the state's less than compelling case against the petitioner was such that any new evidence tending to cast doubt on the petitioner's responsibility for the charged crimes could well have lead to an acquittal, and the petitioner's expert testimony concerning the burn time of the fire, coupled with Martin's testimony, certainly raises doubts about the reliability of the petitioner's conviction.
Before turning to a discussion of the original trial evidence, however, we first address the three contentions raised by
Justice Zarella contends that, in concluding that the third habeas court's materiality determination is not entitled to deference, we have "summon[ed] down [our] deus ex machina" and decided an issue that the parties never raised, thereby "silencing" the respondent, inflicting "acute" harm on the state and "undermin[ing] the fairness of our judicial process." Justice Zarella's rhetoric may make for entertaining reading, but the facts categorically refute his accusations.
Some brief background is necessary in order to fully understand why Justice Zarella's argument is both unfaithful to the record and baseless. It is undisputed that the Appellate Court accorded no deference to the third habeas court's findings with respect to the credibility of the parties' burn time experts. See Lapointe v. Commissioner of Correction, supra, 138 Conn. at 476-79, 53 A.3d 257. According to Justice Zarella, however, the Appellate Court did not evaluate the testimony of the petitioner's experts, as Brady requires, to ascertain the materiality of the Ludlow note in light of the record as a whole but, rather, concluded that neither the Appellate Court nor the third habeas court had any role whatsoever in assessing the expert testimony. In other words, as Justice Zarella indicates, the Appellate Court never undertook an analysis of the testimony and, instead, merely "hypothesiz[ed]" what a jury could find if it credited the testimony and, on the basis of that "speculation," concluded that "a new jury, and not the habeas court," should evaluate it. (Emphasis in original.) In Justice Zarella's view, because this approach obviously is improper, and because, according to Justice Zarella, the petitioner's only claim is that we should approve the Appellate Court's use of such a methodology, our analysis begins and ends there: the respondent prevails on appeal, the judgment of the Appellate Court is reversed, and the judgment of the third habeas court denying the habeas petition is reinstated. Proceeding any farther, Justice Zarella asserts, would take us beyond the scope of the claims raised in this appeal.
Justice Zarella's assertion to the contrary notwithstanding, there is absolutely no basis for presuming that the Appellate Court concluded that neither it nor
Moreover, a review of the Appellate Court's decision positively belies any such presumption. First, the Appellate Court discussed the facts of the case at length; Lapointe v. Commissioner of Correction, supra, 138 Conn.App. at 456-58, 462-63, 468-73, 53 A.3d 257; and summarized the parties' expert burn time testimony in the context of the relevant facts. Id., at 472-73, 53 A.3d 257. The Appellate Court also explained the decision and factual findings of the third habeas court; id., at 472-74, 53 A.3d 257; and observed that the third habeas court had found that the petitioner's experts provided thorough and extensive testimony concerning the fire's burn time. Id., at 473, 53 A.3d 257. The Appellate Court then properly set forth the standard of review and governing legal principles under Brady and Strickland; id., at 474-76, 53 A.3d 257; and, in so doing, quoted from this court's decision in State v. Ortiz, supra, 280 Conn. at 720, 911 A.2d 1055, in which we explained that, on appeal, the issue of materiality presents a mixed question of law and fact, with the trial court serving as the fact finder. Lapointe v. Commissioner of Correction, supra, 138 Conn.App. at 475, 53 A.3d 257. Ultimately, on the basis of the testimony of the parties' experts, the Appellate Court concluded that the petitioner is entitled to a new trial, and, as Justice Zarella acknowledges, it did so without affording any deference to the third habeas court's contrary findings. See id., at 476-79, 53 A.3d 257. Because, under our law—and so far as we know, the law of every other jurisdiction—the only alternative to deferential appellate review is de novo appellate review, it is apparent that the Appellate Court engaged in that latter form of review. As we have explained, that is the correct standard of review in the present case.
Finally, in defending his interpretation of the Appellate Court's decision, Justice Zarella asserts that there is no indication in that decision that the Appellate Court evaluated the petitioner's expert testimony to determine whether a jury reasonably could credit it. Justice Zarella argues, rather, that the Appellate Court simply concluded "that assessing the credibility of the expert witnesses was a task best left to a jury," without any assessment of their testimony either by the trial court or by the Appellate Court. In support of his assertion that the Appellate Court concluded that no judicial review of the parties' expert testimony was the proper approach,
More specifically, after stating that the testimony of the petitioner's two experts would have been critical to establishing an alibi, the Appellate Court "conclude[d] that there is a reasonable probability that the result of [the petitioner's] criminal trial would have been different had the Ludlow note been disclosed to [the petitioner's trial counsel] prior to [his criminal] trial. Nondisclosure prior to trial of the portion of the Ludlow note describing the possible burn time affected the overall fairness of the trial and was so unfair as to undermine our confidence in the jury's verdict. With the burn time estimate provided by one of the state's fire marshals, trial counsel testified that they would have retained the services of an arson expert and that . . . Martin would have testified as to the petitioner's whereabouts during the critical times of that evening. That evidence, if believed by the jury, could have resulted in the jury's finding that it was temporally impossible for the petitioner to have committed the crimes [of] which he was convicted. The Ludlow note was exculpatory and material in these circumstances. [First habeas counsel's] performance was deficient when he failed to pursue that issue at the first habeas proceeding, and the petitioner was prejudiced by his failure to do so. The petitioner has demonstrated that had there been effective representation by [first habeas counsel], there is a reasonable probability that the first habeas court would have found that the petitioner was entitled to [the] reversal of [his] conviction and a new trial." (Emphasis added; footnote omitted.) Id., at 478-80, 53 A.3d 257.
It is simply impossible to read this passage and conclude that the Appellate Court did not undertake a substantive and independent review of the petitioner's expert testimony. Only by evaluating the substance of the testimony and concluding that it was sufficiently credible could the Appellate Court have concluded, as it did, that the petitioner's inability to use it at trial adversely "affected the overall fairness of [the petitioner's criminal] trial and was so unfair as to undermine [the Appellate Court's] confidence in the jury's verdict." Id., at 478-79, 53 A.3d 257. In other words, unless the Appellate Court actually examined and assessed the evidence, there is no way that the Appellate Court could have determined that, if the expert testimony had been available to the petitioner at his criminal trial, there is a reasonable probability of a different verdict, as Brady requires.
Having asserted, wrongly, that the respondent lacked notice that we would decide whether the third habeas court's determination was subject to deferential or de novo review, Justice Zarella compounds his error by alleging that the respondent also could not have known that we might decide that issue against him and, if we did, that we then would proceed to the issue of whether the Appellate Court properly concluded that the third habeas court had resolved the issue incorrectly. This argument fails, of course, because it is based on a false premise. Because the respondent asked us to decide the proper standard of review, it hardly could be clearer that he was on notice that, if we disagreed with his contention that the Appellate Court improperly employed a de novo standard of review, we also would decide whether the Appellate Court, having applied that standard, reached the correct conclusion in reversing the judgment of the third habeas court. Otherwise, we would be unable to determine whether the judgment of the Appellate Court should be affirmed or reversed. See State v. Fausel, 295 Conn. 785, 793, 993 A.2d 455 (2010) ("in a certified appeal, the focus of [this court's] review is . . . [on] the actions of the Appellate Court" [internal quotation marks omitted]). We therefore reject Justice Zarella's manufactured allegation that we have "silenc[ed]" the respondent by "denying [him] notice and a chance to brief the issue. . . ."
Justice Zarella also challenges our determination that the Appellate Court properly exercised de novo review over the third habeas court's predictive judgment as to whether a jury reasonably could have credited the petitioner's experts. He contends that our conclusion is foreclosed by our case law, that we have improperly usurped the function of the third habeas court in reviewing its findings de novo because that court necessarily was in a better position to assess credibility than we are, and that employing that standard of review in the present case violates the state constitutional prohibition against fact-finding by an appellate tribunal. We disagree.
With respect to Justice Zarella's first claim, we have explained, in part II of this opinion, why, like the courts in Bunch v. State, supra, 964 N.E.2d at 292-93, and State v. Behn, supra, 375 N.J.Super. at 431-33, 868 A.2d 329, we are convinced that the Appellate Court properly exercised de novo review over the third habeas court's conclusion concerning the likelihood that a jury would credit the petitioner's experts, and we need not belabor our reasoning here. Suffice it to say that this case presents a highly unusual scenario: the third habeas court's probabilistic assessment
Justice Zarella accuses us of improperly usurping the fact-finding role of the third habeas court because, in his view, "[e]valuating the credibility of a witness' oral testimony is a complex process that always entails consideration of subjective factors like the attitude, candor and demeanor of the witness, and this assessment cannot be based solely on objective factors reflected in the printed record." (Emphasis in original.) We disagree that the assessment of testimony, in particular, the evaluation of expert testimony by the court, necessarily and invariably involves consideration of the subjective factors that Justice Zarella identifies. This is a case in point. As we have explained, there is nothing in the record to suggest that the decision of the third habeas court was predicated on the court's subjective view of the credibility of the parties' experts, and the court's explanation of its decision demonstrates convincingly that subjective considerations did not cause the court to credit the respondent's expert, Corry, over the petitioner's experts, DeHaan and Kelder. Rather, as the third habeas court expressly stated, it was persuaded by the soundness of Corry's scientific opinion and by Corry's critique of the testimony of DeHaan and Kelder. In view of the objective reasons that the third habeas court gave for its conclusion, and in the absence of any indication, expressed or otherwise, that the court relied on purely subjective factors in discrediting the petitioner's experts, we will not presume that it did so. This conclusion is reinforced by the fact that, at oral argument before this court, the respondent's appellate counsel acknowledged that the third habeas court had "to fully articulate its reasons for making a credibility determination" and, further, that "we have a habeas court here making a credibility determination and assigning very specific reasons for why [it] did that." (Emphasis added.)
With respect to Bunch v. State, supra, 964 N.E.2d 274, Justice Zarella makes three arguments in an attempt to discredit our reliance on the reasoning of that case. None of those arguments undermines the validity of that reasoning to even the slightest degree. First, he suggests that Bunch is distinguishable because it involves a petition for a new trial based on newly discovered evidence, whereas the present case involves a claim founded on Brady and Strickland. Justice Zarella further asserts that Indiana applies a different standard for determining the merits of new trial petitions than we do in this state. These are classic distinctions without any difference. The fact that the court in Bunch addressed a claim based on newly discovered evidence is wholly irrelevant because that claim requires exactly the same analysis as claims under Brady and Strickland, as they entail the same considerations.
Justice Zarella next argues that Bunch is inconsistent with this state's jurisprudence because our cases reveal that we have erected an absolute bar to de novo review of findings by a trial court, no matter what the circumstances. This is simply not true. When there is sound reason not to defer to the trial court—that is, when we are in as good a position as the trial court to decide the issue—we need not, and will not, do so.
Justice Zarella's third and final contention is that engaging in de novo review of the third habeas court's materiality determination runs afoul of the state constitutional ban on fact-finding by an appellate tribunal. See, e.g., Styles v. Tyler, 64 Conn. 432, 461, 30 A. 165 (1894). The respondent has not raised a constitutional objection to the Appellate Court's allegedly improper failure to defer to the findings of the third habeas court, and it therefore is not proper for Justice Zarella to do so. Because Justice Zarella addresses it, however, we also will do so. Review of the claim makes clear why the state did not raise it: it is devoid of merit.
In Styles, this court discussed the division of authority between trial courts and appellate courts as contemplated by the state constitution, and explained that "pure issues of fact" fall outside the authority of the latter. Id. In other words, appellate courts do not try cases or retry cases on appeal. As the court in Styles made clear, however, the fact-finding that is constitutionally prohibited does not include appellate review of facts found by the trial
In the present case, de novo appellate review of the third habeas court's materiality decision does not impermissibly intrude on that court's fact-finding function because it does not require appellate fact-finding at all. Our review of the testimony of the parties' experts does not require us to disturb the third habeas court's relative credibility judgment, that is, its determination that the respondent's expert was more credible than the petitioner's experts. Nor does it deprive the third habeas court of its responsibility to evaluate that expert testimony on the basis of its firsthand assessment of the parties' experts, because the court's ultimate conclusion with respect to the credibility or persuasiveness of the experts' opinions was not based on its superior position to evaluate them. This is so because the third habeas court made no factual findings that derived from its ability to assess the credibility of the experts in light of their conduct and demeanor on the witness stand. Indeed, the third habeas court's assessment did not require any findings at all with respect to disputed issues of historical fact. Rather, the third habeas court's probabilistic judgment was predicated on its belief, based solely on the foundational underpinnings of the various expert opinions, that the opinion of the respondent's expert was sounder, and therefore more deserving of credit, than those of the petitioner's experts. Because we are in as good a position as the third habeas court to evaluate the substance of those opinions, we are also as well positioned to decide whether a jury reasonably might credit them. For that reason, our de novo review of the third habeas court's predictive judgment does not usurp the role of that court in any way, and, consequently, there is no reason for us to defer to it. In such circumstances, the issue gives rise to a question of law, and there is no constitutional violation.
Although the foregoing discussion resolves Justice Zarella's constitutional claim, it bears noting that Justice Zarella has a very broad view of the scope of the constitutional ban on appellate fact-finding. This view, however, ignores the fact that our appellate authority extends to actions that implicate the fact-finding function to a far greater degree than the de novo review that we exercise in the present case. For example, under the second prong of the clearly erroneous standard, we may substitute our view for that of the fact finder when, although there is sufficient evidence in the record to support a particular finding, the reviewing court nevertheless "is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) State v. Maurice M., 303 Conn. 18, 27, 31 A.3d 1063 (2011); see also id., at 37, 44, 31 A.3d 1063 (reversing conviction of defendant, despite evidentiary support for jury's finding of guilt, because this court had definite and firm conviction that mistake had been made).
Another such example is State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), in which we concluded that defense counsel's failure to raise a constitutional challenge to the trial court's jury
Justice Zarella argues that, notwithstanding the myriad factual errors contained in the third habeas court's memorandum of decision, the record nevertheless supports the conclusion that no jury reasonably could credit the petitioner's experts. To this end, Justice Zarella makes three primary arguments in an effort to demonstrate why the testimony of the petitioner's experts "simply is not reliable. . . ."
First, Justice Zarella argues that, because Tomkunas crawled several feet into the victim's apartment when he first arrived, and remained inside for as long as fifteen to twenty seconds before being forced to retreat, the fact that Tomkunas was not burned "completely contradicts DeHaan's claim that the [victim's] apartment was close to 400 degrees when Tomkunas first kicked in the door." Justice Zarella's argument is predicated on the same fundamental misunderstanding of DeHaan's testimony that led the third habeas court so far astray, namely, that DeHaan testified that floor level temperatures were 400 degrees when Tomkunas entered the building. As we have explained, DeHaan never was asked about floor level temperatures. More importantly, he made it clear that, when he spoke of entry level temperatures in the 300 to 400 degree range, he was referring to temperatures in the hot gas layer of the fire, not floor level temperatures. See footnote 47 of this opinion and accompanying text. Indeed, DeHaan was of the view that not even the hot gas layer temperature reached higher than 450 degrees at the fire's peak, and that it radiated very little heat downward toward the floor because the victim's synthetic rug was not damaged in any way. See footnote 48 of this opinion. DeHaan explained that, "even under fairly low radiant heat intensities, synthetic fabrics like carpets tend to start to melt, and, when they do, they get kind of crispy to the touch," which did not happen to the victim's carpet.
Despite the clarity of DeHaan's testimony with respect to the meaning of "entry level temperatures," Justice Zarella insists that "DeHaan estimated that Tomkunas would have experienced temperatures near 400 degrees `to the bare skin,'" and, therefore, the third habeas court properly discredited his burn time estimate. Only by taking a handful of DeHaan's words out of context and ignoring the remainder of his testimony is it possible for Justice Zarella to attribute to DeHaan the view that floor level temperatures were 400 degrees when Tomkunas entered the building, or at any other time. The testimony that Justice Zarella relies on to support this argument is the last four words of DeHaan's response to the questions of whether, in the course of his investigation, he was able to determine entry level temperatures, and what bearing those temperatures had on his estimate of the fire's burn time. With respect to whether he was able to determine entry level temperatures, DeHaan responded: "Only very approximately, [on the basis of Tomkunas' testimony] that when he opened the door, there was smoke down very low, and he got on his hands and knees and he had no protective equipment on, and . . . when he tried to crawl in, it was unpleasantly hot to his skin . . . as well as smoky, and, at that point, he backed out knowing he couldn't go any further. . . . [S]hort exposure like that, that's probably going to be temperatures in the range of say [300] or 400 degrees.. . . [T]hat's enough to make most people not . . . go in any further [with] . . . bare skin." We do not understand DeHaan to be saying that Tomkunas' bare skin was exposed to 400 degree temperatures. To the extent that there may be ambiguity in this portion of DeHaan's testimony,
Accordingly, contrary to Justice Zarella's assertions, it is not in the least surprising that Tomkunas was not burned when he first crawled into the apartment, particularly in light of his testimony that he was on his hands and knees the entire time, intentionally staying below the hot gas layer. As Corry himself stated, temperatures are always much hotter the higher up you go in a room, which is why children are told to crawl on their hands and knees in a fire. In this way, Corry explained, they may avoid injury, even in situations where, if they were to stand up, they could be severely burned or killed.
Indeed, the entire issue of whether it was 400 degrees at floor level when Tomkunas entered the victim's apartment seems little more than a construct, inserted into the proceedings by Corry two months after DeHaan had testified. As we previously indicated, Corry stated that, after listening to DeHaan's testimony, he went back to the drawing board in an effort to refute it. What he came up with, it appears, was the notion that DeHaan had stated that it was 400 degrees at floor level when the firefighters entered the apartment, and that the temperature obviously could not have been that high because none of the firefighters was burned. Specifically, Corry stated that "DeHaan said [it was] 400 degrees. That's what we were investigating." Corry further stated that, "if it was 400 degrees at the floor, [the fire] would have burned [the firefighters], and it didn't." Notably, on cross-examination, Corry admitted that it could very well have been 400 degrees in the hot gas layer when Tomkunas entered the apartment. Corry explained that his only point was that it could not have been 400 degrees at floor level because none of the firefighters was burned. Indeed, it bears emphasis that Corry's acknowledgment that the temperature in the hot gas layer could have been 400 degrees when Tomkunas arrived fully supports DeHaan's estimate of the fire's burn time, which, as we previously discussed, was predicated on hot gas layer temperatures being in the range of 300 to 400 degrees.
In a similar vein, Justice Zarella asserts that DeHaan's burn time estimate is unworthy of credit because it is predicated on DeHaan's mistaken belief that the heat prevented Tomkunas from crossing the threshold of the victim's apartment when he first arrived. Specifically, Justice Zarella argues that DeHaan appears not to have been aware that Tomkunas was able to crawl several feet into the apartment before being forced out by the heat, which
We are also perplexed by Justice Zarella's insistence that, "[a]t no time during his [trial] testimony did [Tomkunas] say that he was prevented from even entering the apartment as a result of the heat." Justice Zarella contends that, after his initial entry, Tomkunas left the apartment only because "the heat and smoke conditions convinced him that rescue efforts would be `a lot easier' if the apartment was vented," not because it was too hot to remain inside. As with Justice Zarella's other factual arguments, this contention is contradicted by the record. When initially asked whether he was able to remain in the apartment after kicking in the front door, Tomkunas responded: "No, I was not. . . . It was too hot and smoky. I had to go . . . out." He also stated that the heat and the smoke, which he described as "very, very dangerous," "forced [him] to retreat. . . ." Tomkunas further stated that, before attempting a second entry, it was necessary to "smash a window . . . to remove the heat and smoke and hot gasses from the building." In arguing that the heat was not so great as to prevent Tomkunas from remaining in the building, Justice Zarella relies on a single statement by Tomkunas: "If I could get somebody to vent, it was a lot easier." The broader context of that statement, however, as reflected in the following colloquy between the state and Tomkunas, which Justice Zarella has omitted from his dissenting opinion, leaves no doubt that Tomkunas, upon his arrival at the scene, was forced from the apartment due to the high heat and dangerous smoke conditions inside the apartment:
"Q. Now, with respect to the volume of smoke, how would you characterize that when you first entered—what [was] the volume of smoke . . . in the apartment?
"A. If I could use a technical term, `well charged.'
"Q. And is that a term of significance as far as firefighting is concerned?
"A. Yes it is.
"Q. And how would you explain it to us?
"A. A building that's well charged with smoke is so full, there's no—there's actually little to no oxygen left in the building, and it's a very, very dangerous situation.
"Q. Dangerous to whom . . .?
"A. It would be dangerous to anybody in there and anybody who attempted to get in without proper precautions.
"Q. And you've indicated that the heat and the smoke forced you to retreat after some fifteen to twenty seconds. Is that correct?
"A. That's correct.
"A. It was just too hot and too smoky. If I could get somebody to vent, it was a lot easier."
Justice Zarella also argues that DeHaan's testimony "that entry level temperatures were too high for Tomkunas even to enter the apartment conflicts with DeHaan's own testimony about the fire's energy level" because "DeHaan testified that the fire would have produced a relatively small amount of heat and would have been approachable, even at its maximum intensity. DeHaan explained that the fire's intensity `would probably be about the same as an average fireplace fire. It would be pumping a lot of heat into this room, but not so much that you couldn't—you couldn't approach it, for instance, to try to extinguish it. . . .'" (Emphasis omitted.) For reasons that we previously discussed, we reject Justice Zarella's assertion that DeHaan testified that entry level temperatures prevented Tomkunas from entering the apartment at all when he first arrived. We also do not perceive any conflict between DeHaan's testimony regarding the fire's energy level and his estimate of entry level temperature. When DeHaan likened the fire's energy level to that of an average fireplace fire, it was solely in an attempt to explain why there was so little damage to the victim's apartment. DeHaan attributed the lack of damage in the apartment to the heat release rate of the fire, which he estimated never exceeded 250 to 350 kilowatts. DeHaan explained that a 350 kilowatt fire will produce temperatures in the range of 400 degrees. DeHaan further explained that, if there had been more ventilation inside the apartment, "a love seat like [the one in the victim's apartment] is capable of generating [a] maximum heat release rate . . . in the order of 2000 kilowatts. In other words, it would have been six times [as] big [of a] fire; the fire would have basically reached the ceiling, actually spread across the ceiling, and it might have actually brought this whole room to involvement." If this had occurred, DeHaan testified, it would not have been possible for a firefighter simply to walk up to the fire and extinguish it. In contrast, a firefighter easily could have approached the fire on the victim's couch, assuming, of course, that he or she was wearing appropriate attire, because the fire's heat release rate never exceeded 350 kilowatts, and the fire never spread beyond the couch to other materials in the room. Indeed, it was undisputed that, with proper clothing and breathing equipment, which Tomkunas did not have with him when he arrived, he would have had no difficulty approaching and extinguishing the fire upon his initial entry.
Having addressed Justice Zarella's claims, we now turn our attention to the second component of the test for materiality under Brady and Strickland, that is, consideration of the petitioner's expert testimony in light of the original trial evidence, for the purpose of determining whether our confidence in the verdict is undermined by that expert testimony.
It is beyond dispute that the state's case against the petitioner rested almost entirely on his incriminating statements, without which the state would have been unable to obtain a warrant based on probable cause, let alone a conviction of capital felony.
With respect to the petitioner's statements, the petitioner alleged in his first habeas petition that his confession was false, and, in furtherance of this claim, he maintained that he was unable to knowingly, intelligently and voluntarily participate in the police interrogation because of his mental impairment. The first habeas court dismissed this claim upon concluding, inter alia, that, because "[t]he petitioner's real argument . . . is that his statements were involuntary [and therefore inadmissible] under the federal constitution"; Lapointe v. Warden, Superior Court, judicial district of Hartford, Docket No. CV-97-0571161, 2000 WL 1409721 (September 6, 2000) (Freed, J.); the claim was barred by this court's determination, in connection with the petitioner's direct appeal from the judgment of conviction, that the trial court reasonably had concluded that the petitioner's admissions were voluntary. State v. Lapointe, supra, 237 Conn. at 703, 678 A.2d 942; see footnote 16 of this opinion. For purposes of evaluating the strength of the state's case against the petitioner, however, the issue is not the voluntariness of the petitioner's admissions—a threshold issue that concerns the admissibility of his statements—but, rather, whether a jury would find those statements trustworthy or reliable because they constitute a true and accurate reflection of the petitioner's involvement in the victim's murder.
Relatively little was known about false confessions at the time of the petitioner's criminal trial. See, e.g., State v. Perea, 322 P.3d 624, 641 (Utah 2013) (observing that, "[i]n the 1990s, little research had been conducted on the phenomenon of false confessions"). Significantly, since then, an abundance of social science research about the phenomenon has been conducted,
One cannot evaluate the strength of the state's evidence against the petitioner in the present case incognizant of the fact that our awareness of the phenomenon of false confessions has increased vastly in the nearly twenty-five years since the petitioner's conviction. One also cannot read the petitioner's statements to the police, particularly in light of the testimony of the officers who elicited them, and not be left with serious concerns about their reliability. First, as we previously indicated, the record reveals that the petitioner suffers from a mental impairment. Although the state argued at his criminal trial that he was not "retarded" in a technical sense, it did not dispute that Dandy-Walker syndrome, a congenital malformation of the skull, had left the petitioner with such serious cognitive deficits that many people who knew him simply assumed that he was
In an effort to demonstrate the severity of the petitioner's mental impairment, his trial counsel called numerous witnesses to testify at the petitioner's criminal trial and at a hearing on his motion to suppress. Without exception, they described the petitioner as a quirky, gullible and childlike man whose funny appearance and simplemindedness made him the constant butt of jokes.
According to Anne M. Phillips, a clinical psychologist in private practice, the petitioner presents "considerably younger than his chronological age" and has a "[f]ull [s]cale IQ [of] 92," which puts him in the "lower end of the average range of intelligence. . . ." Phillips concluded that neurological damage from Dandy-Walker syndrome, however, prevented the petitioner from fully accessing his intelligence. According to Phillips, the petitioner's "expressive vocabulary is . . . fairly weak, which may reflect an aphasic difficulty related to his historical neurological problems. His limited vocabulary may also contribute to the interpersonal impression of much lower overall intellectual ability which [he] creates. He is not good at expressing his thoughts or feelings and is apt to be awkward and rather childlike in his expression. [The petitioner] also appears limited in receptive language, partially due to acuity problems, and partially to comprehension limitations. As a result, he is inclined to sometimes respond arbitrarily to conversation or questions [that] he does not fully understand. [The petitioner also] tends to be quite concrete and inflexible in his reasoning, understanding situations in a narrow and set way, and having considerable difficulty adopting alternative interpretations of events, or even making sense of unfamiliar events." At trial, Phillips testified that "interpersonally, [the petitioner] comes across as a funny little guy, kind of odd, and, when he responds to questions in a very literal fashion—[such as] when you ask him who his mother is, [and] he says, `Mrs. Lapointe;' or when you ask him about his childhood, and he says, `I was a boy'—there is a sense of `H[uh]?'"
After the first statement was signed and notarized, Lombardo allowed the petitioner to go to the bathroom. At this point, Lombardo was aware that he did not have enough evidence to charge the petitioner with any crime. When the petitioner returned to the interrogation room, Lombardo told him that he needed to provide more details about the crime. According to Lombardo, the petitioner stated, "[s]he wouldn't cooperate with me so I killed her," but then immediately "denied that he had committed the crime and told [Lombardo] that the only reason . . . he had given [the earlier] statement was because he [thought Lombardo] wouldn't let him go to the bathroom unless he [did]. . . ." Lombardo then began to put more pressure on the petitioner. For example, he told the petitioner that a witness had seen him walking his dog near the victim's apartment one hour before the fire was reported
According to Morrissey, his job was "to get more information" from the petitioner about the murder. Toward that end, he began the interview by informing the petitioner that he had just come from speaking to Martin, that she had been informed of his role in the victim's death, and that Martin wanted him to cooperate with the police. The petitioner again denied any involvement in the murder, stating repeatedly that he must have "black[ed] out" because he simply had no memory of the crime. In an effort to "refresh his memory of what happened," Morrissey repeatedly led the petitioner through the entire "sequence of events," a process that, according to Morrissey, took several hours and considerable coaxing. When they were finished, Morrissey prepared a written statement for the petitioner to sign. In that statement, the third and final statement, the petitioner provided a more detailed account of his involvement in the murder: "[O]n Sunday March something I was at [the victim's] apartment with my son . . . and my wife [Martin]. We visited from about [2 until 4] p.m. and then walked home. After being home [a while] I left to walk the dog. I then walked back up to [the victim's] apartment and she invited me in. We each had a cup of coffee (I think [the victim] had tea) and I sat on the couch. I recall having my matches and my smoking pipe in my jacket pocket.
"After my coffee I went into the bathroom (which is located off the bedroom). When I came out [the victim] was in the bedroom combing her hair. She was wearing a pink house coat type of outer wear with no bra. (I could see her breasts when she bent over). I grabbed her with my hand around her waist area. When I did that she pushed me. I threw her on the bed and took off her underwear because I wanted to have intercourse with her. I got my penis inside her for a few strokes and then pulled out and masturbated. I did [ejaculate] on the bed spread when I was finished. I had already thrown her underwear on the right side of the bed. After the sex she said she was going to tell my wife. . . . I then went to the kitchen and got a steak knife with a hard plastic brown handle and stabbed [the victim] in the stomach while she was [lying] on the couch. The rest of the incident I do not recall although I admit to having strangled her." According to Morrissey, the petitioner indicated that he strangled the victim by placing both of his hands around her neck.
The petitioner signed his third statement at approximately 12:30 a.m. on July 5, 1989. At that time, Morrissey and Lombardo asked Brooks, their commanding officer, to speak to the petitioner because the petitioner continued "to vacillate, and they wanted to see whether . . . [Brooks] could get him to [stop] doing that." According to Brooks, the petitioner "would give a statement to [his officers], sign it, and then claim that he was only . . . giving back information that was given to him, only saying what he thought [the officers]
The respondent also relies on the testimony of Jean Strimike, the petitioner's former neighbor, who testified that, after the petitioner became president of their four member condominium association, he memorized all of the association's complex rules and bylaws, and was a stickler about enforcing the rules. Strimike stated that she and the petitioner got into a heated dispute over nonconforming flowers that she had planted in front of their building, and, after she refused to remove them, the petitioner stomped them into the ground. The most we can say about this evidence, which very much typifies the kind and quality of evidence that the state presented at the petitioner's criminal trial,
The petitioner was forty-two years old when he allegedly committed one of the most brutal crimes in our state's history—the rape, torture and murder of a defenseless eighty-eight year old woman, a person who, by all accounts, was like a grandmother to him. Although there is abundant evidence in the record concerning the petitioner's simplemindedness, his peculiarities and his very rigid way of thinking, one searches the record in vain for evidence that he ever was physically violent, that he suffered from a mood disorder, psychosis, drug addiction or anything else that could explain why, after visiting the victim every Sunday for years, he suddenly went back to her apartment on the Sunday in question and brutally murdered her, without his wife noticing either that he had left their house or any change in his demeanor or appearance upon his return. Furthermore, at the petitioner's criminal trial, the state was not required to commit to any particular time frame for the murder, arguing only that it occurred sometime between 5:45 p.m., when the victim was last seen alive by Howard, her daughter, and 8:05 p.m., when she failed to answer Howard's telephone calls. If, however, the original jury were to have heard and credited DeHaan's and Kelder's testimony that the fire was set between 7:30 and 8:05 p.m., and if that jury also were to have heard and credited Martin's testimony that the petitioner was at home with her watching television at that time, there is not just a reasonable probability of a different result, there is a near certainty of one. And, as we have explained, there simply is no reason why the jury reasonably could not have credited that testimony. The petitioner therefore has established, under Strickland, that his first habeas counsel's representation of him was constitutionally deficient due to counsel's failure to pursue a Brady claim founded on the state's suppression of the Ludlow note because that nondisclosure deprived the petitioner of evidence establishing a complete and potentially compelling alibi, thereby gravely undermining the reliability of the verdict against him. Because the record demonstrates convincingly that the petitioner is burdened by an unreliable conviction, he is entitled to a new criminal trial.
In this opinion ROGERS, C.J., and EVELEIGH and McDONALD, Js., concurred.
ROGERS, C.J., concurring.
I agree with and join in the conclusion reached by the majority that the judgment of the Appellate Court ordering that the petitioner, Richard Lapointe, receive a new criminal trial must be affirmed, because the petitioner proved that he was prejudiced by his first habeas counsel's deficient failure to pursue a Brady
Although I embrace, for the most part, the thorough and persuasive analysis employed by the majority to reach this conclusion, I write separately to disavow the majority's repeated reliance on law review and social science articles postdating the petitioner's criminal trial by many years as part of its assessment of the strength of the evidence supporting the petitioner's conviction and, by extension, the likelihood that the addition of the burn time evidence would have altered the outcome.
Because the majority opinion outlines the trial evidence and its weaknesses in detail, a brief summary here will suffice. The physical evidence against the petitioner was practically nonexistent, such that the case rested almost entirely upon his own incriminating statements. Those statements were characterized by vacillation and equivocation, were expressed in an odd, confirming fashion accompanied by repeated denials of recollection and, on multiple points, were inconsistent with the physical evidence. Significantly, the petitioner inaccurately described the victim's clothing, the num ber of stab wounds and the location in her apartment at which they were inflicted, and the method of her strangulation. It further was undisputed that the petitioner suffered from a congenital malformation of the skull that left him with cognitive, physical and sensory deficits. Numerous acquaintances and relatives testified as to his simplemindedness and gullibility. Several psychiatrists and psychologists examined the petitioner and also testified about his deficits, describing him similarly as did the acquaintances and agreeing that he was capable of confessing
Instead of relying solely on the foregoing weaknesses in the petitioner's 1992 criminal trial to conclude that confidence in the reliability of his conviction has been undermined, the majority supplements the trial record with secondary materials produced only recently, within the last five or six years. My objection to the use of these materials is twofold. First, as a temporal matter, they were not in existence at the time of the petitioner's criminal trial and, therefore, could not have been presented to, or considered by, the jury that convicted him. Accordingly, they should not be relied upon by this court to evaluate the likelihood of a different result had the Ludlow note been timely disclosed. Second, as a jurisprudential matter, the majority, in discussing the content of extra-record materials in relation to the specifics of this case, treads dangerously close to employing those materials to make findings on appeal in regard to the reliability of the petitioner's confession. This court repeatedly has drawn the distinction between the proper use of extra-record materials such as social science texts or journal articles as "legislative facts . . . which help determine the content of law and policy, and adjudicative facts . . . concerning the parties and events of a particular case. . . . Legislative facts may be judicially noticed [on appeal] without affording the parties an opportunity to be heard, but adjudicative facts, at least if central to the case, may not." (Citation omitted; internal quotation marks omitted.) State v. Edwards, 314 Conn. 465, 478-79, 102 A.3d 52 (2014); see also State v. Rizzo, 303 Conn. 71, 97-98 n. 16, 31 A.3d 1094 (2011); see also State v. Rizzo, supra, at 184 n. 81, 31 A.3d 1094.
I also want to emphasize certain points with respect to the majority's conclusion in part II B of its opinion that it need not defer to the habeas court's determination regarding the credibility of the petitioner's expert witnesses. Specifically, I would emphasize that this court is concluding that it need not defer to the habeas court's credibility determination only because: (1) the habeas court is not making an ultimate finding as to the credibility of the expert witnesses, but is determining only whether there is a reasonable probability that the jury could credit their testimony, pursuant to the materiality standard of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963);
Accordingly, I do not share Justice Zarella's fear, expressed in his dissenting opinion, that, as the result of the majority opinion, the habeas court will no longer have any important role to play when addressing Strickland and Brady claims. The habeas court still must be afforded an opportunity to assess credibility based on the personal demeanor of witnesses and this court will continue to defer to such assessments. The majority concludes only that, when a credibility assessment is not based on the witness' demeanor or on other factors that this court is not in a position to evaluate, but is based solely on the substance of the evidence, this court is not required to defer to the assessment. In addition, I believe that the rule that the majority adopts today should apply primarily to the testimony of expert witnesses, for whom demeanor generally is much less important than the witness' qualifications and the soundness of his opinion when a finder of fact is assessing his or her credibility, and should rarely if ever apply to factual testimony. See State Board of Physicians v. Bernstein, 167 Md.App. 714, 760, 894 A.2d 621 (2006) ("[d]emeanor most often is a factor in deciding the credibility of a fact witness who is testifying about a fact that may be true or false, not of an expert who is offering his opinion based on assumed facts");
In all other respects, I agree with the majority opinion and its ultimate holding that the judgment of the Appellate Court should be affirmed.
ZARELLA, J., with whom ESPINOSA, J., joins, dissenting.
Although I disagree with virtually all of the majority's analysis and conclusions, I write, in particular, to express my strong objection to the majority's creation and application of a new exception to our well established standard of review, an exception that allows this court to engage in a de novo review of live expert testimony presented in a habeas proceeding. This new standard is driven by the majority's disagreement with the habeas court's
The habeas court proceeding is more than just a conduit for logging the evidence, and that court's findings represent more than a suggestion. The habeas court is the sole trier of fact and assessor of credibility, with the exclusive power to determine the credibility of the testimony presented to it. See, e.g., Sanchez v. Commissioner of Correction, 314 Conn. 585, 604, 103 A.3d 954 (2014); Gaines v. Commissioner of Correction, 306 Conn. 664, 690, 51 A.3d 948 (2012). We consistently have deferred to its exclusive role in this regard, properly relegating our role to reviewing its fact and credibility findings only to determine whether they find support in the record. See, e.g., Sanchez v. Commissioner of Correction, supra, at 604, 103 A.3d 954.
This court's power to draw conclusions of fact and credibility is proscribed not only by practical considerations—unlike the trier, we do not receive evidence firsthand—but also by the limits of our constitutional function. For more than one century, this court has repeatedly recognized that it simply does not have the jurisdiction under our constitution to resolve disputed questions of fact or to assess the credibility of testimony, irrespective of the nature of the claim or the type of evidence presented to the trier of fact. Styles v. Tyler, 64 Conn. 432, 442, 30 A. 165 (1894). The bifurcation of the Superior Court from the appellate level courts leaves the Superior Court as the final arbiter of fact disputes and limits our role to resolving questions of law. Id., at 444-47, 30 A. 165. Consequently, we lack jurisdiction to resolve disputed questions of fact and credibility, regardless of how this court may attempt to cast the nature of its inquiry. Dexter Yarn Co. v. American Fabrics Co., 102 Conn. 529, 538, 129 A. 527 (1925). Adhering to this principle, this court has repeatedly rebuffed suggestions by litigants—and even some judges of this court—that we may substitute our judgment for that of the trier of fact when the trier of fact has made credibility findings after receiving and weighing the evidence. See, e.g., Skakel v. State, 295 Conn. 447, 487 n.25, 991 A.2d 414 (2010) ("[t]his court. . . squarely has rejected the proposition that a less deferential standard than abuse of discretion should apply to review of decisions pertaining to evidence [even when such decisions are] not predicated on an assessment of the witness' demeanor").
By allowing this court to substitute its own judgment for that of the habeas court on questions about witness credibility, the majority has exceeded our jurisdiction. Our law is clear that assessing new witness credibility in the Strickland
Compounding the impropriety of its analysis, the majority has adopted a standard allowing it to find facts even though neither party has asked this court to do so. Because the majority has adopted its new standard sua sponte, neither party had any notice or opportunity to brief the propriety of such a standard. Furthermore, neither party—most notably not even the petitioner—has claimed that the habeas court's credibility findings were incorrect, so neither party has briefed the merits of the credibility issues decided by the majority. Nevertheless, the majority has not asked the parties to provide any supplemental briefing, leaving the majority to engage in its new fact-finding role, which it has created sua sponte, without any meaningful notice to or guidance from the parties, in violation of the principles recently set forth in Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 128, 84 A.3d 840 (2014) (Blumberg).
Finally, although the majority arrogates to itself the responsibility to make its own findings of fact and determinations of credibility, it ultimately proves unequal to the task. Rather than expressing its own findings based on its review of the record, the majority launches a seemingly endless attack on the habeas court's findings—an unnecessary exercise in light of the majority's self-created fact-finding power. Furthermore, in carrying out its purportedly de novo analysis of the record, the majority utterly ignores testimony from the petitioner's own expert witnesses and other evidence that amply supports the habeas court's findings and casts serious doubt on the credibility of their testimony.
In short, although the majority goes out of its way to retry the case, I am constrained merely to review it. Deferring to the habeas court's fact-finding role, my own review of the record convinces me that its findings were not clearly erroneous. In light of its findings that the petitioner's new evidence did not reliably establish a burn time that supported the petitioner's alibi defense, I am persuaded that the petitioner has not met his burden under Strickland and Brady.
My analysis in this opinion will proceed in three parts: first, I address why the majority's new standard for reviewing the testimony of expert witnesses contravenes our law; second, I address why the majority's decision to decide issues that the parties have not raised or briefed violates the principles in Blumberg; and, third, I explain why the record supports the habeas court's findings, which leads to the conclusion that the petitioner has failed to meet his burden under Strickland and Brady.
The principal issue presented in this appeal concerns the petitioner's burden, under
The success of the petitioner's Strickland claim—which is based on his prior habeas counsel's failure to raise a Brady claim concerning the state's failure to disclose a certain note prepared by Detective Michael Ludlow of the Manchester Police Department (Ludlow note)—depends on the credit that may be afforded the testimony of the petitioner's expert witnesses. A finding that this expert testimony was credible was necessary if the petitioner was to have any hope of establishing that the state's failure to disclose the Ludlow note prejudiced him by preventing him from presenting a viable alibi defense at trial. To demonstrate that he would have been able to present such a defense, he relied on the testimony of two expert witnesses to establish the time period during which the fire that consumed the apartment of the victim, Bernice Martin, likely started, together with testimony of his former spouse, Karen Martin, to establish that he was at home during that same time period. To prove prejudice, the petitioner needed to show a reasonable probability that a jury would credit this expert testimony and that the new credible testimony, when weighed against the original trial evidence, gives rise to a reasonable probability of a different result. A credible alibi defense, when weighed against the trial evidence, certainly would support findings of prejudice under Strickland and materiality under Brady. If, however, a jury was not reasonably likely to credit the petitioner's new alibi evidence, the petitioner would have no valid evidence of the fire's start time, and his alibi claim would fail. Thus, without a credible alibi defense, the petitioner could not demonstrate that his prior habeas counsel's errors or the state's failure to disclose the Ludlow note caused him any harm.
The Appellate Court reversed the judgment of the habeas court and, in doing so, analyzed the petitioner's claim without acknowledging the habeas court's role in assessing credibility of new witness testimony in this context. See Lapointe v. Commissioner of Correction, supra, 138 Conn. App. at 476-77 n. 17. 53 A.3d 257. The Appellate Court instead concluded that such an assessment must be left to a new jury, not a court. Id. The Appellate Court explained as follows: "If the Ludlow note had been disclosed to trial counsel. . . it would have been the responsibility of the jury and not the court to weigh the credibility of the arson experts. Whether the burn time evidence, which was so critical in buttressing [the petitioner's] alibi defense, raised a reasonable doubt as to the petitioner's guilt would best be a determination left to the jury and not a habeas court." (Emphasis added.) Id. After so concluding, the Appellate Court analyzed the case by hypothesizing about what a jury "could" find "[i]f" it credited the new testimony. Id., at 476, 477, 53 A.3d 257. For example, the Appellate Court stated: "At the . . . habeas trial, the [petitioner's] two experts. . . testified that the fire could not have been set any earlier than 7:30 p.m. If that
The respondent appealed to this court upon our grant of certification; Lapointe v. Commissioner of Correction, 307 Conn. 940, 940-41, 56 A.3d 948 (2012). The respondent claims that the Appellate Court improperly disregarded the habeas court's role in assessing credibility and did not properly consider all of the evidence in the record in considering the ultimate questions of prejudice under Strickland and
The majority affirms the judgment of the Appellate Court but takes a much different approach than the Appellate Court did, an approach that neither party has requested and that the Appellate Court did not employ. Rather than analyzing the case by assuming that the jury would credit the evidence, as the Appellate Court did, the majority concludes that an appellate tribunal must make its own findings about the credit that may be given to the petitioner's new expert testimony, a standard of review that has no precedent in our law. Although the majority acknowledges the deference we owe to the fact-finding role of the habeas court, including in the Strickland/Brady context, it decides that no such deference is warranted in the present case because the "highly unusual" circumstances of this case require a "limited exception" to that rule. According to the majority, we defer to fact and credibility findings of the habeas court when those findings are "made on the basis of [the] firsthand observation of [a witness'] conduct, demeanor and attitude." (Internal quotation marks omitted.) Text accompanying footnote 40 of the majority opinion. The majority then explains, however, that, when a finding is not based on those factors, this court is as well suited as the habeas court to assess the testimony of the petitioner's experts and, therefore, may evaluate that testimony de novo, without any deference to the findings of the habeas court. The majority, of course, fails to cite any authority from this state for this proposition because none exists—this court has never performed such a review, and it has uniformly rejected the notion that it could do so. In resolving disputed issues of credibility by making its own findings on the basis of its own assessment of the testimony and evidence presented to the habeas court, the majority has not just reviewed, but has retried
Until today, our case law was clear that determining whether a jury is reasonably likely to credit new witness testimony in the Strickland/Brady context presents a question of fact for the habeas court, not a new jury, and most assuredly not for an appellate tribunal. Our review is limited to determining whether the habeas court's findings are reasonable in light of the record. This issue is not a question of law, and we do not substitute our judgment for that of the habeas court by reviewing the habeas court's credibility findings de novo.
At the outset, I note that I agree with the majority when it states, as it must, that the Strickland prejudice standard is identical to the Brady materiality standard, and that the respective roles of the habeas and reviewing courts are the same under both standards. See, e.g., State v. Dupigney, 295 Conn. 50, 60-63, 988 A.2d 851 (2010). I will therefore analyze the principles that apply to these claims together and, for simplicity, will refer to the standard as the "Strickland/Brady prejudice" standard.
The Strickland/Brady prejudice standard presents a mixed question of law and fact. To prove prejudice, a defendant must establish that, in the absence of the substandard performance of defense counsel or the state's suppression of exculpatory evidence, there is a "`reasonable probability'" that the result of the criminal trial would have been different. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); accord Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Resolving the ultimate question of prejudice requires a court to consider or weigh the new or different evidence—which was not presented at the original trial because of counsel's or the state's actions or omissions—against the original trial evidence to determine the likelihood of a different result. See, e.g., Adams v. Commissioner of Correction, 309 Conn. 359, 373, 71 A.3d 512 (2013). We exercise plenary review over the ultimate question of whether the defendant suffered prejudice, which requires an application of the legal standard to the facts. See, e.g., Bryant v. Commissioner of Correction, 290 Conn. 502, 510, 964 A.2d 1186, cert. denied sub nom. Murphy v. Bryant, 558 U.S. 938, 130 S.Ct. 259, 175 L.Ed.2d 242 (2009); State v. Ortiz, 280 Conn. 686, 720, 911 A.2d 1055 (2006).
Although the ultimate question of prejudice focuses on the impact that the new evidence might have on the original trial
Frequently in Strickland cases, though less often in Brady cases, the new evidence is testimony from a lay or expert witness who was not called at the original trial. When, as in the present case, the petitioner claims that his counsel or the state deprived him of the opportunity to present certain testimony, the petitioner has the burden of proving that the testimony is credible. Sanchez v. Commissioner of Correction, supra, 314 Conn. at 598-601, 604, 103 A.3d 954. If the testimony is not credible, then it cannot support a finding of prejudice under Strickland or Brady. See id., at 611-13, 103 A.3d 954.
This threshold issue of whether new testimony may be credited in this context—whether lay or expert testimony—presents a question of fact for the habeas court to resolve.
When assessing a habeas court's fact and credibility findings, including in the context of Strickland and Brady claims, our role as an appellate tribunal is limited. We do not undertake our own de novo review of the habeas court's findings; rather, we review them under our well established clear error standard. We have often explained: "The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous.. . . Thus, [t]his court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact's] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." (Internal quotation marks omitted.) Id., at 604, 103 A.3d 954; see also Adams v. Commissioner of Correction, supra, 309 Conn. at 368-69 n. 14, 71 A.3d 512 (noting, in context of Brady claim, our "well established standard of review" requiring this court to defer to habeas court's findings unless they are clearly erroneous). Furthermore, our cases also demonstrate that we defer to the habeas court's findings regardless of whether that court credits or rejects the
The majority, and the Chief Justice in her concurring opinion, both suggest that we may treat our review of this credibility assessment differently from a review of credibility findings made at a trial because, in this context, the habeas court is rendering a probabilistic judgment about how a jury might assess certain evidence. This is incorrect.
Although determining how a jury might assess testimony requires some measure of a predictive judgment, we recently—and unanimously—made clear that this assessment is no different from any other credibility assessment and is entitled to the same deference by a reviewing court. In a decision penned by the author of the majority in this case and released on December 2, 2014, we explained that determining whether it is reasonably probable that a jury would credit new witness testimony presents a question of fact for the habeas court that we review only for clear error. Sanchez v. Commissioner of Correction, supra, 314 Conn. at 611-12 and n. 16, 103 A.3d 954; see id., at 611, 103 A.3d 954 (upholding denial of habeas petition based on new witness testimony because "perhaps most important, the habeas court concluded that a jury was unlikely to have found [the new witness] credible, and we agree with the Appellate Court that the habeas court's finding in this regard [was] not clearly erroneous" [emphasis added]). Unlike the majority's decision in the present case, we did not, in Sanchez, draw our own conclusions about the credibility of the new witness testimony. See id., at 602 n. 12, 611-12 and n. 16, 103 A.3d 954. We made clear that the habeas court's role in determining whether a jury might credit new evidence is no different from a traditional credibility analysis and that we will defer to the habeas court's resolution of this issue. See id., at 604, 611-12 and n. 16, 103 A.3d 954; see also id., at 602 n. 12, 103 A.3d 954.
Assessing credibility requires the habeas court to approach its analysis neutrally, as a second jury would, without considering the new testimony in a manner favorable to either party, and it must consider all of the evidence presented. See id., at 611 n.16, 103 A.3d 954 ("we . . . presume, in the absence of any indication to the contrary, that the [habeas] court considered all of the evidence when assessing [the new witness'] credibility"). This includes the attitude, candor and demeanor of the witnesses.
Contrary to the majority's position, we do not alter our standard of review, even when the petitioner's claims are based on new expert testimony. See Anderson v. Commissioner of Correction, 313 Conn. 360, 375, 380-81, 98 A.3d 23 (2014), cert. denied sub nom. Anderson v. Semple, ___ U.S. ___, 135 S.Ct. 1453, ___ L.Ed.2d ___ (2015). In Anderson, this court deferred to the habeas court's credibility assessments of new expert testimony even though the habeas court did not expressly base its findings on the experts' demeanor. Id., at 371-72, 377-80 and nn. 7-8, 98 A.3d 23. In doing so, we disagreed with the conclusions of a dissenting Appellate Court judge who had reviewed de novo the credibility of the petitioner's new expert testimony. See id., at 373-74 n. 5, 98 A.3d 23. The petitioner in that case, Oscar Anderson, challenged his conviction of first degree sexual assault and risk of injury to a child. See id., at 362-63, 98 A.3d 23. Anderson claimed that his trial counsel rendered ineffective assistance by not presenting medical records and expert testimony to show that he suffered from one or more sexually transmitted diseases (STDs) during the time period that the assaults occurred, and expert testimony on the transmission rates of STDs. Id., at 362, 98 A.3d 23. Anderson argued that this testimony and evidence, coupled with the victim's lack of any STD during the relevant time period, would establish that he was prejudiced by his trial counsel's failure to present this evidence. See id., at 373, 98 A.3d 23. At the habeas hearing, Anderson presented the testimony of Timothy Grady, an expert witness. Id., at 366-69, 98 A.3d 23. Grady testified that Anderson's medical records showed that he was treated for STDs several times during the period when the assaults allegedly occurred and that, under the circumstances of the case, there was a 40 percent chance of Anderson transmitting an STD to the victim during each act of intercourse.
The respondent in Anderson also presented expert testimony on this subject. Id., at 369-70, 98 A.3d 23. The respondent called Stephen Scholand, a physician, who testified that other ailments that Anderson suffered from could be responsible for his STD related symptoms. Id., at 369, 98 A.3d 23. Scholand also testified that, even if Anderson had an STD, that there was only a 30 percent chance of transmitting it from adult to adult during each act of intercourse. Id.
The habeas court found that Anderson's expert testimony lacked a sufficient factual foundation to establish that he suffered from any STD during the relevant time period. See id., at 371-72, 98 A.3d 23. That court determined that, without any test results to support Anderson's claims of an STD when the assaults occurred, his expert evidence could not credibly prove that he suffered from an STD at that time. See id. The habeas court also concluded that, even if Anderson had demonstrated that he an STD during the relevant time period, there was only a 30 percent chance of transmission, implicitly rejecting the opinion of Anderson's expert that the rate would have been higher under the circumstances. See id., at 372, 98 A.3d 23. On the basis of these findings, the habeas court rejected Anderson's claims. See id., at 372-73, 98 A.3d 23.
On appeal, a divided Appellate Court affirmed. Anderson v. Commissioner of Correction, 128 Conn.App. 585, 598, 17 A.3d 1138 (2011). The Appellate Court majority, relying on the habeas court's findings, upheld that court's decision that Anderson's evidence fell short. See id., at 597-98 and n. 7, 17 A.3d 1138. Judge Borden, in dissent, thought, however, that Anderson had met his burden under Strickland. See id., at 598-99, 17 A.3d 1138 (Borden, J., dissenting). In analyzing the prejudice element, Judge Borden relied on Anderson's proffered expert testimony regarding his STD related symptoms and the transmission rate of STDs, which the habeas court had found to be not credible. See id., at 616-17, 17 A.3d 1138 (Borden, J., dissenting). Specifically, Judge Borden asserted that Anderson "was suffering from" STDs during the relevant time period. Id., at 610, 17 A.3d 1138 (Borden, J., dissenting). He also explained that "the jury would have had Grady's testimony, contrary to Scholand's, that there is a transmission rate of 40 to 50 percent for each sexual contact between an infected male and a woman, and an even higher rate for a female of the age of the victim," even though the habeas court did not credit this evidence but, rather, concluded that the evidence showed only a 30 percent chance of transmission. Id., at 616-17, 17 A.3d 1138 (Borden, J., dissenting). Rather than confining his analysis to the habeas court's findings, Judge Borden disregarded the habeas court's findings and relied on testimony that the habeas court had not credited.
In a certified appeal to this court, Anderson argued that the Appellate Court majority improperly had decided the case against him. See Anderson v. Commissioner of Correction, supra, 313 Conn. at 362, 98 A.3d 23. In his arguments, Anderson, consistent with Judge Borden's reasoning, repeatedly relied on the evidence that the habeas court had found to be not credible, namely, that he
In response, the respondent took issue with Anderson's and Judge Borden's reliance on testimony that the habeas court had not credited. The respondent argued that "[Judge Borden] improperly assumed that it is reasonably probable that the jury would have found Grady's testimony and interpretations of the medical records to be credible and reliable when the fact finder. . . did not." Id., Respondent's Brief p. 19. The respondent explained in his brief that "[a]n appellate court cannot retry the case or evaluate the credibility of the witnesses. . . . Rather, [it] must defer to the [trier of fact's] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . The habeas [court], as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." (Internal quotation marks omitted.) Id. The respondent argued that Judge Borden's dissent contravened this well established standard of review because Judge Borden "wholeheartedly credited, and essentially deferred to, the opinions and interpretations of [Anderson's] expert," which the habeas court did not credit. Id., pp. 19-20. The respondent further explained that "[a] reviewing court cannot simply choose to find credible particular evidence that the trier of fact itself did not credit and [that] is inconsistent with the trier's ultimate findings and conclusions." Id., p. 20. In support, the respondent noted that determining prejudice on the basis of new witness testimony is "not simply . . . an evaluation of the legal sufficiency of that evidence" but also requires an evaluation of "the overall credibility and persuasiveness of that evidence. . . ." Id. Consistent with our case law, the respondent went on to explain that this credibility assessment is for the habeas court to make, not a reviewing court: "[O]nly the habeas court heard and considered all of the evidence . . . . Unlike a reviewing court, the habeas court is able to view the evidence as it is presented, including the demeanor of the witnesses, and, thus, the habeas court is in a far better position to appreciate how a jury is likely to hear and process that evidence . . . ." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id. The respondent acknowledged that a petitioner's evidentiary burden is lower in this context than in an ordinary criminal trial, at which proof beyond a reasonable doubt is required, or in a civil trial, at which proof by a preponderance of the evidence is required. See id., pp. 20-21. Nevertheless, the respondent explained that "the fact that the degree of proof is different does not mean that the proper roles of the habeas court and appellate court vis-á-vis the credibility, weight and ultimate persuasiveness of the evidence differ" in this context because "[the] habeas court is still in [a] position superior to an appellate court to make such an evaluation. . . ." (Emphasis in original.) Id., p. 21. In conclusion, the respondent argued that "the habeas court, sitting in a position similar to that of the jury hearing the evidence, refused to accept, at face value, the opinion of [Anderson's] expert and his interpretation of the records. . . . [T]he habeas court was in a far better position than [Judge Borden] to view the demeanor of the experts and the confidence and certainty with which they rendered their opinions. Consequently, to the extent that [Judge Borden's] conclusions rely heavily—indeed, almost entirely—on [his] deference to Grady's testimony, [Judge Borden] fails to
This court affirmed the judgment of the Appellate Court. Anderson v. Commissioner of Correction, supra, 313 Conn. at 384, 98 A.3d 23. We did not adopt the approach that Judge Borden had taken and we disagreed with his conclusions. See id., at 378 n. 7, 380 n. 9, 98 A.3d 23. In our decision, we set forth the habeas court's findings; id., at 371-72, 98 A.3d 23; and cited our well established standard of review that "[t]he habeas [court], as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." (Internal quotation marks omitted.) Id., at 375, 98 A.3d 23. In our analysis, we upheld the habeas court's finding that Anderson's evidence failed to establish that he suffered from an STD during the time period that the assaults occurred. Id., at 377-78 and n. 7, 98 A.3d 23. We expressly disagreed with Judge Borden's conclusion to the contrary, and, in response to his arguments, we cited the habeas court's findings that contradicted his conclusion. Id., at 378 n. 7, 98 A.3d 23. Furthermore, we also decided that, "[e]ven if [it were] assume[d] that [Anderson] was suffering from nonspecific [STDs] during the relevant time frame . . . Scholand's testimony established that there was only a 30 percent chance that the victim would have acquired [an STD] from the alleged abuse." (Footnote omitted.) Id., at 378-79, 98 A.3d 23. In reaching this conclusion, we expressly deferred to the habeas court's findings in this regard, noting that the habeas court had the opportunity to view the testimony of the experts firsthand. Id., at 379 n. 8, 98 A.3d 23. Thus, contrary to the approach taken by Judge Borden, and consistent with the respondent's arguments, this court did not substitute its judgment for that of the habeas court regarding the credibility of Anderson's proffered expert testimony.
The majority's decision to adopt an exception to our well established standard of review, especially in light of Anderson and Sanchez, marks a significant departure from the approach that we have taken in reviewing Strickland and Brady claims and from our role as an appellate tribunal.
Even though the majority acknowledges the deference that we give to a habeas court's credibility assessments, stating that it "agree[s] fully" that "the general rule is one of deference, even in cases involving claims under Brady," the majority has decided not to follow this rule in the present case. The majority proclaims, without citing a single Connecticut case, that we can undertake a de novo review of the credibility of expert testimony "when the habeas court's assessment of the expert testimony has nothing to do with the personal credibility of the expert witness but instead is based entirely on the court's evaluation of the foundational soundness of the witness' professional opinion. . . ." This novel standard, which neither party has asked us to adopt and which even the majority concedes has no basis in our law, is wholly incompatible with our case law and our limited role as an appellate tribunal.
The majority contends that we may render our own credibility findings when the habeas court's findings were based on the "scientific underpinnings" of the expert's testimony and not the demeanor or "personal credibility" of the expert witness. Our case law does not draw such an unworkable distinction because it ignores the realities of judging credibility.
Judging credibility is a complex process that requires the trier to consider the testimony in light of all of the evidence presented in a case, including other testimony. It requires consideration of not only the witness' candor, demeanor and attitude, but also any factors that the trier deems relevant to its decision, which can include, but is certainly not limited to: the witness' ability to observe and comprehend information; the beliefs, prejudices, bias and assumptions that might impact the witness' perspectives; the witness' ability to accurately recall events; the plausibility of what the witness relays; the internal consistency of the witness' testimony and consistency with other testimony and evidence; and the witness' background, training, education and experience. See, e.g., State v. Reddick, 153 Conn.App. 69, 79 n.6, 100 A.3d 439, appeal dismissed, 314 Conn. 934, 102 A.3d 85 (2014), and cert. denied, 315 Conn. 904, 104 A.3d 757 (2014); State v. Guess, 44 Conn.App. 790, 805, 692 A.2d 849 (1997), aff'd, 244 Conn. 761, 715 A.2d 643 (1998); State v. Nieves, 36 Conn.App. 546, 549, 653 A.2d 197, cert. denied, 232 Conn. 916, 655 A.2d 260 (1995); State v. Jaynes, 35 Conn.App. 541, 553-54 n. 7, 645 A.2d 1060, cert. denied, 231 Conn. 928, 648 A.2d 880 (1994).
Judging credibility is no different with expert witnesses, and attempting to distinguish between decisions based on the "substance" of expert testimony and those
The scope of our review on appeal does not change according to our perception of the basis for the trier's credibility findings. Because the trier must consider all of the evidence before it when making its credibility
Our case law belies the majority's claim to the contrary. For example, in Sanchez, we upheld the denial of a habeas petition when the habeas court found that the new witness testimony was not likely to be credited by a jury. See Sanchez v. Commissioner of Correction, supra, 314 Conn. at 611-12. The habeas court, in making its credibility finding, explained only that the witness had a criminal record and "a motive to be deceptive. . . ." (Internal quotation marks omitted.) Id., at 601, 103 A.3d 954. Neither of these factors related to the witness' demeanor. The witness' criminal history was an objective factor that was reflected in the record. With respect to the witness' "motive to be deceptive"; (internal quotation marks omitted) id.; we explained that this stemmed from the fact that others had implicated the witness in the crime in question, giving the witness a reason to minimize his own involvement when testifying before the habeas court. See id., at 611-12, 103 A.3d 954. This, too, was reflected in the printed record. See id. The habeas court said nothing about the witness' demeanor, nor did it state that it relied on any other subjective factors in deciding not to credit the testimony. See id. Thus, we presumably were in just as good a position as the habeas court in that case to assess the witness' credibility. Nevertheless, unlike the majority's opinion in the present case, we deferred to the trial court's assessment, as our law requires, and noted that we presume that the court considered all of the evidence in making its finding, not just its enumerated reasons. Id., at 611 n. 16, 103 A.3d 954. We did not conduct a de novo review of the witness' credibility, and we did not suggest that our standard of review could change depending on the trial court's stated basis for a credibility finding.
Even in cases involving new expert testimony in the Strickland/Brady prejudice context, this court and the Appellate Court apply a deferential standard of review without pausing to consider whether the
Moreover, because we cannot review live testimony firsthand, as the trier can, we are unable to consider factors such as attitude, candor and demeanor. Kaplan v. Kaplan, supra, 186 Conn. at 391, 441 A.2d 629; see Sanchez v. Commissioner of Correction, supra, 314 Conn. at 611-12, 103 A.3d 954. Thus, when it comes to credibility issues, we are in a worse position than the habeas court, and, by making our own findings, we would be substituting our judgment for that of the habeas court, even though our judgment is based on only part of the evidence. The truth is, we can never be in the same position as the trier with respect to oral testimony and can never perform a truly de novo review on the basis of all of the evidence, as we require the trier to do.
The facts of this case also contradict the majority's attempted distinction. The majority claims that the habeas court's credibility assessments were based solely on the "soundness" of the experts' opinions and not on the demeanor or personal credibility of any witness. This simply is not true. Because we do not require our trial or habeas courts to articulate each and every factor considered and the basis for their credibility findings, we do not know the extent to which the habeas court in the present case considered demeanor in making its findings; the habeas court was silent on this. Because we must presume that the habeas court considered all of the
Assessing the credibility of the petitioner's expert witnesses also required the habeas court to consider the credibility of other witnesses who testified at the habeas hearing. The majority claims that the habeas court's assessment was "not dependent on any underlying factual findings requiring the . . . court's firsthand observation and determination of the credibility or reliability of other witnesses." Yet, the habeas court heard evidence that the conclusions of one of the petitioner's experts, John DeHaan, directly conflicted with the eyewitness observations of Stephen Igoe, another fire expert who, unlike the petitioner's experts, investigated the actual fire scene in person and within hours of the fire. The habeas court noted that, as part of Igoe's investigation, he conducted a test burn of the materials in the couch where the fire was supposedly ignited and principally burned.
Because the trier must consider all evidence when making credibility findings, it is not possible to separate those findings based on the soundness of an expert's opinion from those based on an assessment of the expert personally. The majority
Even if it were possible to distinguish between credibility findings based on an expert's demeanor and those based on the substance of the testimony, our law still forbids a de novo review of such credibility findings by this court. In support of its new standard, the majority proclaims that we "need not, and will not," defer to the trial court on any issue "when we are in as good a position as the trial court to decide the issue. . . ." Text accompanying footnote 63 of the majority opinion. But this court has never before embraced such a sweeping principle, and we certainly have not accepted it as a valid excuse to retry a case by making our own findings from the record. To the contrary, this court has repeatedly rejected this tired suggestion because it is inconsistent with the constitutional limits on our role as an appellate tribunal. See, e.g., Styles v. Tyler, supra, 64 Conn. at 442, 30 A. 165. For example, we have determined that we cannot make our own credibility assessments, even when the trial court's assessment was based on a video recording of a witness' statement that we could view in the same manner as the trial court. See Skakel v. State, supra, 295 Conn. at 470, 486-87 and n. 25, 991 A.2d 414. In Skakel, the author of the majority opinion in the present case, in dissent, posited that there was "no occasion for . . . deference" to the trial court's credibility determination when it was based on the viewing of a video recording and thus not otherwise based on subjective factors, including the witness' demeanor. Id., at 631, 991 A.2d 414 (Palmer, J., dissenting). The majority rejected this assertion, noting that "this court . . . squarely has rejected" the notion that we may apply a less deferential standard of review even to a credibility decision "that is not predicated on an assessment of the witness' demeanor." Id., at 487 n. 25, 991 A.2d 414.
We have also uniformly rejected this notion in other contexts. For instance, in State v. Lawrence, 282 Conn. 141, 156-57, 920 A.2d 236 (2007), we declined to undertake a de novo review of a trial court's credibility determination that was based on that court's review of a printed transcript, rather than an in-court assessment of the witness' testimony. Although the defendant in Lawrence claimed that deference to the trial court's findings was unwarranted "because the trial court did not have the opportunity to observe [the witness'] conduct, demeanor and attitude on the witness stand"; id., at 156, 920 A.2d 236; we declined to adopt this approach as it "misapprehends the fundamental distinction between the function of the fact finder, which is to make credibility determinations and to find facts, and the function of the appellate tribunal, which is to review, and not to retry, the proceedings of the trial court." (Internal quotation marks omitted.) Id. We explained that, "[i]n light of our limited function, it would be improper for this court to supplant its credibility determinations for those of the fact finder, regardless of whether the fact finder relied on the cold printed record to make those determinations." (Emphasis added.) Id., at 157, 920 A.2d 236. In Besade v. Interstate Security Services, 212 Conn. 441,
Even in the context of expert testimony, this court has consistently declined to adopt a less deferential standard of review when the trial court's findings were based solely on the substance of the expert testimony and documentary evidence, not on witness demeanor. See, e.g., Pandolphe's Auto Parts, Inc. v. Manchester, supra, 181 Conn. at 221-22, 435 A.2d 24 (noting that our review of fact and credibility findings is limited to clear error review, and, "[b]eyond that, we will not go"). And over one-half century ago, we explained in Morgan v. Hill, 139 Conn. 159, 90 A.2d 641 (1952), that "[t]he case [on appeal] presents another of countless instances [in which] an unsuccessful litigant, still unconvinced, renews in this court his previous, fruitless effort to discredit the evidence submitted by his opponent. Nothing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony. . . . It was the prerogative of the [trial] referee to accept the testimony of the plaintiff's experts rather than that offered by the defendant's." (Citations omitted; emphasis added.) Id., at 161, 90 A.2d 641.
We defer to the trial court's findings even when demeanor is not at issue because the reasons for our deference are not limited to practical considerations alone. Even though we often cite, as the reason for our deference, a trial court's unique ability to assess evidence firsthand and in the context in which it is presented, our scope of review is mandated by the constitutional limits on our appellate jurisdiction, which prohibit this court from resolving disputed questions of fact or determining the credit that may be given to a witness' testimony.
The founders of our state's judicial system divided the jurisdiction of our courts to ensure that no single court could act as the final arbiter for both issues of fact and issues of law, which they feared could destroy the rule of law: "[T]he administration of justice is not safe when the court of last resort for the settlement of the law, in the exercise of an absolute and final power, can render judgment on the facts and law so intermingled that its decision is not simply the declaration of the law but may become the arbitration of the case." Id., at 449, 30 A. 165. Vesting one court with jurisdiction to finally decide matters of fact and law will leave the results in our cases to the discretion of judges who can choose both the facts and the law that will govern a case, and "nothing but . . . human wisdom and firmness on the part of its judges can prevent a court exercising such . . . jurisdiction from eventually becoming one great arbitration that would [e]ngulf all the courts of law, and sovereign discretion [not the principles of law] would be the rule of decision." (Internal quotation marks omitted.) Id. Such an expansive "discretion of a judge is the law of tyrants; it is always unknown; it is different in different men; it is casual, and depends [on] constitution, temper and passion. In the best, it is [often times] caprice; and in the worst, it is every vice, folly, and passion to which human nature is liable!" (Internal quotation marks omitted.) State v. Danforth, 3 Conn. 112, 122 (1819). Thus, "confining the jurisdiction of [this] court. . . to the settlement of rules of law" alone was "[t]he most significant feature in the establishment of the court"; Styles v. Tyler, supra, 64 Conn. at 447, 30 A. 165; and reflected "a principle deemed vital to our judicial system." Id., at 448, 30 A. 165.
Mindful of these concerns, the drafters of the 1818 constitution adopted the existing divide between the jurisdiction of the Superior Court and the Supreme Court of Errors. See id., at 449-50, 30 A. 165; see also Conn. Const., art. V, § 1. In doing so, they "expressed the conviction of the people that a jurisdiction of mixed law and fact vested in any court of last resort, exercising a supreme and uncontrolled power, was inconsistent with a sound system of jurisprudence and was dangerous to the administration of justice. . . ." Styles v. Tyler, supra, 64 Conn. at 451, 30 A. 165. The Superior Court thus holds "supreme jurisdiction" to try cases and settle disputes of fact, whereas the Supreme Court of Errors, which subsequently became this court, holds "supreme and final jurisdiction" to settle issues of law. Id., at 450, 30 A. 165. This court thus "is not a supreme court for all purposes, but a supreme court
The constitutional limits on fact-finding and assessing credibility cannot be circumvented merely by rebranding the nature of our inquiry, as the majority attempts to do in the present case. "[S]ettling the credi[bility] of witnesses, weighing the evidence, ascertaining the truth from conflicting or incongruous evidential facts, is a function within the exclusive jurisdiction of the trial court under our system of law, and is not reviewable by [this court]. . . .
"Our jurisdiction cannot be enlarged, to permit the retrial of facts by us, by legislative enactment or rules of court . . . and obviously not by the consent or acquiescence of the parties. [When] an appeal involves a request for the correction of a finding . . . by a weighing of the evidence, it is patent that the real substance of such a proceeding is nothing but a retrial of pure questions of fact settled by the final judgment of the Superior Court. Its actual nature cannot be changed by calling it a correction of the finding." (Citations omitted; internal quotation marks omitted.) Id., at 537-38, 129 A. 527; see also Thresher v. Dyer, 69 Conn. 404, 410, 37 A. 979 (1897); Atwater v. Morning News Co., 67 Conn. 504, 525-27, 34 A. 865 (1896). "A [retrial on] the testimony . . . by whatever name it may be called, is a trial of the facts in that cause, whether its effect be limited to ordering a new trial, or extends to the rendition of a final judgment on the facts so adjudicated; and is inconsistent with the primary distinction drawn by the [c]onstitution, between the jurisdiction original and appellate of courts for the full trial and adjudication of causes, and the jurisdiction of a court of last resort for correcting errors in law which may have intervened in the course of a trial. . . . The Superior Court is the court of last resort for such purpose. . . . Such a principle embedded in the [c]onstitution . . . cannot be evaded through any plan for accomplishing by a mere form of words the very evils it was adopted to prevent." (Emphasis added.) Atwater v. Morning News Co., supra, at 526-27, 34 A. 865. Consequently, "there can . . . be no doubt but that the determination by this court, upon the evidence, of questions of pure fact, for the mere purpose of rendering its own judgment upon issues of fact, is inconsistent with [this court's] jurisdiction, and clearly obnoxious to that underlying principle which holds the security of the citizen and the certainty of the law as best served by confining the supreme and uncontrolled power vested in a court of last resort for the correction of errors to the determination of principles of law." Styles v. Tyler, supra, 64 Conn. at 456, 30 A. 165.
Contrary to the Chief Justice's assertions in her concurring opinion, our deference to the trier's role as the arbiter of credibility does not depend on whether the trier is making "ultimate" credibility findings, and we have never changed our standard of review on this basis. The Chief Justice suggests, and the majority agrees, that we need not defer to the trial court when it is not acting as the "ultimate" fact finder but is merely assessing the probability that a jury will credit testimony. This contrived distinction appears nowhere in our law, which presumably explains why neither the Chief Justice nor the majority has offered any citations to support it. Indeed, we rejected this attempted distinction in the Strickland/Brady context just months ago in Sanchez v. Commissioner of Correction, supra, 314 Conn. at 585, 103 A.3d 954 a unanimous decision in which every member of the panel in the present case joined. In Sanchez, we indicated that there was no difference between our treatment of an assessment of whether a jury would likely credit new witness testimony and our treatment of a traditional credibility finding. See id., at 602 n. 12, 611-12 and n. 16, 103 A.3d 954. In doing so, we expressly agreed with the Appellate Court majority's rejection of Judge Sheldon's suggestion in his dissenting opinion in the Appellate Court that we could review this assessment de novo.
Claims for prejudgment remedies also require a trial court to consider the probability that a party will succeed, which includes a predictive assessment of how a jury might gauge witness credibility. See, e.g., TES Franchising, LLC v. Feldman, 286 Conn. 132, 137-38, 143, 943 A.2d 406 (2008). A prejudgment remedy proceeding requires a trial court "`to determine probable success'" by the moving party; id., at 142, 943 A.2d 406; and is "not contemplated to be a full scale trial on the merits. . . ." Id., at 143, 943 A.2d 406. Even though the trial court's credibility assessments in these proceedings are merely probabilistic, we review them only for clear error. Id. ("judging the credibility of the witnesses is the function of the trier of fact and this court will not usurp that role" [internal quotation marks omitted]); see also Augeri v. C.F. Wooding Co., 173 Conn. 426, 428, 378 A.2d 538 (1977) (noting that we defer to trial court's credibility findings even though prejudgment remedy proceedings do not "ultimately" decide parties' claims).
Accordingly, the long-standing limits on our jurisdiction require that "[w]e must accept . . . the trial court's decision [on] the question of credibility. It is beyond our province to weigh evidence and decide questions of this character." Swist v.
The majority, attempting to justify its new standard, quotes at length from a case from another jurisdiction, but that case is entirely inapposite because we have already squarely rejected the principle underlying its holding. Given the overwhelming authority from this state expressly rejecting the principles underlying the majority's new standard, it is no surprise that the majority seeks support, not from a Connecticut case, but from a single case from an intermediate appellate court in Indiana, namely, Bunch v. State, 964 N.E.2d 274 (Ind.App.), trans. denied, 971 N.E.2d 1215 (Ind.2012). But whether appellate courts in Indiana can review the credibility of expert testimony de novo says nothing about whether a Connecticut appellate court can do so, especially in light of the restraints imposed by our state constitution. Also, contrary to the majority's assertion that the Indiana case is "factually and procedurally indistinguishable," the portion of the case that the majority cites at length does not even involve a Brady or Strickland claim but an Indiana state law claim for a new trial based on newly discovered evidence. Id., at 288-89, 293-97. The court in Bunch applied a de novo standard of review because it felt it was in as a good a position as the trial court to decide credibility on the basis of a review of transcripts of new witness testimony presented live to the trial court when the trial court's assessment was not based on witness demeanor.
The majority's creation of its new standard carries with it the danger of unwarranted expansion of appellate powers. In support of its new standard, the majority sweepingly proclaims that an appellate tribunal "need not, and will not," defer to a trial court on any issue whenever "we are in as good a position as [that] court to decide the issue. . . ." Text accompanying footnote 64 of the majority opinion. It does so without any citation or attempt to reconcile this statement with our prior decisions and constitutional principles, all of which expressly reject this assertion. See, e.g., Anderson v. Commissioner of Correction, supra, 313 Conn. at 375, 377-80 and nn. 7-8, 98 A.3d 23; Skakel v. State, supra, 295 Conn. at 487 n. 25, 991 A.2d 414; State v. Lawrence, supra, 282 Conn. at 156-57, 920 A.2d 236. Relying on this principle, the majority suggests that we can review credibility assessments de novo whenever this court deems itself as fit as the trial court to do so. Based on the majority's assertions that its new standard applies to the type of predictive fact-finding characteristically reserved for Brady claims, it applies at least to new witness testimony in the context of Strickland, Brady and newly discovered evidence claims, and perhaps also to prejudgment remedy proceedings. In light of the number of Strickland, Brady and newly discovered evidence claims based on new witness testimony, the majority's new standard would increase the burden on our appellate tribunals and litigants by requiring them to retry issues settled by the habeas court. Under the majority's new standard, appellate courts would have not only the ability, but also the duty to undertake a de novo review of witness credibility when the criteria for applying the majority's new standard are met. This new standard would require our appellate courts to make their own credibility findings whenever the habeas court does not base its decision on subjective factors, like candor or demeanor. It would also require litigants to retry these issues in our appellate courts by briefing factual disputes in addition to the legal issues. If the appellate tribunal can make its own credibility findings in this context, the habeas court's purpose in these cases will be relegated to little more than receiving and recording the evidence, and then issuing a recommended ruling for the appellate tribunal to mull over, accept or cast aside, as it sees fit.
Recognizing the dangers associated with the new standard it applies in this case, the majority immediately sets out to contain the damage done by trying to prevent its application in future cases. The majority acknowledges that we must defer to the trier's credibility assessments but nevertheless asserts that its holding is but a narrow exception to our ordinary standard of review. The majority acknowledges that its approach is unprecedented in our law but claims that this is because "we
The majority's decision to undertake a de novo review of witness credibility injects issues into the case that have not been raised or briefed by the litigants, which ordinarily requires us to allow the parties to submit supplemental briefing on before we go sifting through the record in order to make our own credibility findings. The majority, on its own initiative, has changed our law by adopting a de novo review of credibility findings and has proceeded to undertake that review even though neither party raised any arguments in this court or in the Appellate Court with respect to the habeas court's credibility findings, and neither party has asked us to change our standard of review to allow this court to conduct its own credibility assessments. As a result, neither party has weighed in on the propriety of the majority's new standard of review or the underlying fact and credibility disputes that the majority resolves.
The principal issue actually raised in the present case is one of law. It concerns the petitioner's burden to establish the credibility of new evidence in order to prove Strickland/Brady prejudice and the habeas court's role in determining whether the petitioner has met that burden. Although the habeas court did not credit the petitioner's expert testimony, the Appellate Court decided that credibility of the new witnesses should be left to a new jury, not to the habeas court, a conclusion that the respondent has challenged on appeal to this court. None of the parties discussed, either in their briefs or at oral argument, whether an appellate tribunal can make its own credibility assessments. The arguments in this court regarding the proper legal standard assumed the propriety of leaving credibility assessments entirely to a new jury, and focused on the extent of the habeas court's role in judging new witness credibility and the standard by which the habeas court should determine whether a new jury should hear the new testimony at a new trial.
In addition, despite the habeas court's decision not to credit the burn time evidence from the petitioner's experts, the petitioner did not raise any claim attacking those findings before the Appellate Court or before this court. The respondent noted the absence of any such claim in his brief to this court and at oral argument, and the petitioner did not object to these repeated assertions. Indeed, in his brief
Failure of a party to raise a claim on appeal results in abandonment. See, e.g., State v. Cyrus, 111 Conn.App. 482, 487, 959 A.2d 1054 (2008), aff'd, 297 Conn. 829, 1 A.3d 59 (2010). In the absence of any challenge to the habeas court's credibility findings, or any argument by the parties that we should make our own findings, the issues that the majority decides are not properly before this court. See, e.g., State v. Crumpton, 202 Conn. 224, 231-32, 520 A.2d 226 (1987).
To dampen the criticism that it receives from the dissenting justices for deciding unraised issues, the majority declares that the issues it decides were already decided by the Appellate Court and thus are not new to this appeal. To that end, the majority repeatedly asserts that the Appellate Court performed its own de novo assessment of the credibility of the petitioner's new expert testimony and that the Appellate Court rendered its own finding that there was a reasonable probability that a jury would credit it. The majority quotes at length from the Appellate Court's decision but missing from its quotation is any de novo assessment of the "soundness" of the expert testimony or credibility findings by the Appellate Court. The majority has not provided its readers the courtesy of a citation to what page or pages this review and these findings appear in the Connecticut Appellate Reports. The fact is, the Appellate Court did not perform its own de novo credibility assessment, nor did it make its own findings.
Any question on this point is dispelled by a fair reading of the Appellate Court's decision. Absent from the Appellate Court's decision is any mention that it is undertaking a de novo review of the credibility of expert testimony. Nor does the Appellate Court give any justification for such a review. Given that such a review by an appellate tribunal in this state would be unprecedented, at least until today, it would be surprising for the Appellate Court to sail into uncharted waters without at least warning its readers that it is doing so. Also missing from the Appellate Court's decision are any findings resulting from its purported de novo credibility review. Instead, the Appellate Court repeatedly conditioned its prejudice
In light of these statements by the Appellate Court, I simply do not agree with the majority's conclusion that the Appellate Court performed its own credibility assessment. By leaving the credibility question to a jury, the Appellate Court freed any court considering the petitioner's Strickland/Brady claim of any need to inquire into the credibility of the expert testimony or the need to make any findings of its own. Deciding that a jury and not a habeas court should assess credibility in this context is markedly different from deciding that an appellate tribunal may do so. Both the habeas court and a jury properly may serve as the trier of fact and arbiter of credibility, whereas an appellate tribunal, except for the majority in the present case, may not. Consequently, the considerations that are needed to resolve these two issues are wholly distinct. I thus disagree that the Appellate Court would undertake such an unprecedented review without even stating that it was doing so or attempting to justify such an analysis.
Because neither party has claimed, either in this court or the Appellate Court, that an appellate tribunal can properly make its own credibility assessments, or that the Appellate Court in this case did so, we have no briefing from the parties concerning whether such an analysis by an appellate tribunal is proper. The lack of a de novo review by the Appellate Court, and any suggestion by the parties that such a review is proper, is fatal to the majority's claim that the parties raised and briefed arguments about the propriety and the merits of such a review by an appellate tribunal. Neither party has briefed the issue of whether an appellate tribunal may properly render its own credibility findings in this context. The lack of any argument on this issue stands in stark contrast to the briefing in Anderson, in which the respondent expressly argued that an appellate tribunal could not render its own credibility findings, a position that we ultimately followed in that case. Instead, the respondent argues in this case precisely what I have explained in this opinion, namely, that the Appellate Court improperly disregarded the habeas court's role, left the credibility assessment to a jury, and then reached its materiality determination by
Moreover, because neither party made any claim of error regarding the merits of the credibility questions put into issue by the majority, neither party has provided briefing on that topic. The only discussion of the credibility of the experts comes from a single, half page footnote in the respondent's brief. Most tellingly, that footnote was appended to a sentence in the text that explained that the petitioner had not raised any claim of error concerning the habeas court's credibility findings at any point during the appeal. Furthermore, in that footnote, the respondent explained that the record did not permit a finding of clear error; he mentioned nothing about what an appellate tribunal could find if it performed a de novo review. It would be naive to think that, if the respondent truly had notice that this court would conduct its own de novo review of the credibility of new witness testimony, the respondent would have dedicated only a single footnote to this fact intensive inquiry, especially considering that such an analysis by this court is unprecedented in our law and requires consideration of numerous days of testimony and exhibits from the petitioner's habeas hearing and the criminal trial. The respondent's decision to relegate any discussion of expert witness credibility to a footnote and to couch it in terms of a clear error analysis is proof of only one thing: the parties did not raise this issue and were not on notice that this court might perform its own credibility assessment. Even the petitioner recognized that the respondent was arguing not that the Appellate Court performed a de novo review, but that the Appellate Court acted improperly by deciding that the credibility assessment was a "jury issue" and not an issue for the habeas court. The majority's uninvited change to our law has therefore left us with a task that we have never before undertaken and without any guidance from the parties as to how we should resolve their dispute.
Before we alter our well established and heretofore unquestioned standards of review and take the unprecedented step of rendering our own credibility findings, we must at least provide the parties with an opportunity to submit supplemental briefs on these issues. In Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. 123, 84 A.3d 840 we determined that we may, sua sponte, consider issues not preserved or raised by the parties, subject to certain restrictions. See id., at 128, 161-64, 84 A.3d 840. We explained that a reviewing court may, but is not required to, review "issues involving plain error or constitutional error sua sponte, as long as the court provides an opportunity for the parties to be heard by way of supplemental briefing and the other threshold conditions for review are satisfied." Id., at 161-62, 84 A.3d 840. "Of course, as we have explained in connection with a reviewing court's consideration of a claim raised for the first time on appeal, if a party objecting
Reaching this issue on our own and without any input from the parties harms the parties and undermines the fairness of our judicial process. Due process compels us to give the parties notice and an opportunity to be heard. The record in this case is voluminous. It consists of more than eighty volumes of transcripts with thousands of pages of testimony from a probable cause hearing, suppression hearing, three habeas hearings, and a lengthy criminal trial. There are hundreds of exhibits from these proceedings. The significance of certain evidence may not be obvious to us from our own, unguided review of such a voluminous record. The parties have greater knowledge of the evidence in the record and how it got there. They also have a more complete perspective of the context in which evidence was presented and its import. Facts viewed in isolation are not as powerful as facts woven into a coherent and compelling argument. That is the purpose of briefing. By denying the parties notice and a chance to brief the issue that the court decides, we may be silencing valid arguments not obvious from our own review. Even if that briefing does not change the majority's conclusions, the losing party deserves the solace of knowing that it has been fairly heard.
The harm to the respondent that results from a denial of notice and the right to be heard is not just theoretical—it is demonstrated in the majority opinion. In several places in its opinion, the majority correctly observes that the respondent was silent about the credibility of the petitioner's experts, noting, for example, that "the respondent makes no attempt to defend the . . . habeas court's assertion that there was a material difference" in the substance of the burn time experts' testimony. But this silence is significant only to demonstrate that the respondent was not afforded the notice that he needed to address this unraised issue. Does one seriously doubt that, if the respondent had been afforded notice that the habeas court's findings were under attack, he might have addressed these claims before this court rather than remaining silent on these points? The respondent briefed his case on the understanding that the petitioner had not challenged the habeas court's findings in the Appellate Court or in this court, and specifically explained in his brief that the petitioner had not raised such a claim. The majority is thus deciding an issue that was not raised and is holding the respondent's silence on that issue against him.
For these reasons, the majority should either decide only the issues raised by the parties or seek additional briefing in light of its decision to address unraised issues.
Even if I assume, for the sake of argument, that we can review the habeas court's findings de novo, I still am not persuaded that the petitioner is entitled to a new criminal trial. The majority finds the petitioner's new expert testimony to be credible after a purportedly de novo review of the record. But it spends much of its analysis on a lengthy diatribe against the habeas court's findings—an unnecessary endeavor in light of the majority's assertion that no deference to those findings is warranted. Indeed, rather than looking for evidence to prove credibility, the majority seems to presume that the new testimony is credible and searches for reasons to discredit it. The majority begins by simply attacking the habeas court's findings. Then, after determining that the habeas court's "stated reasons for discrediting the burn time estimates of [the petitioner's experts] are baseless," the majority determines whether there is some "other apparent reason why a jury would be apt to discredit their testimony." The majority finds no such reason but does so after briefly considering only the experts' qualifications and the fact that the respondent has not challenged their credibility. This is insufficient to establish credibility. First, determining that the habeas court's reasons underlying its credibility determinations were incorrect does not necessarily establish that the testimony of the new experts is credible. Second, an expert's qualifications to render an opinion, while necessary to secure admission of expert testimony, do not automatically prove that there is a reasonable probability that it will be credited; that determination requires a review of all of the evidence and testimony presented at the habeas trial, which the majority does not perform. Third, as I mentioned previously, the respondent's silence on this issue is hardly a basis for making a credibility finding, given that this issue was not raised. The respondent could not seriously be expected to know that this court would raise this issue sua sponte after relying on an inapposite case from another jurisdiction. Furthermore, by looking to the respondent for criticisms of the petitioner's experts, and finding the new testimony credible in their absence, the majority improperly shifts the burden of proof to the respondent.
Even if I assume that the petitioner had challenged the habeas court's credibility
Without a valid and reliable factual and scientific foundation, the petitioner's expert testimony would not even be admissible, let alone credible. See, e.g., State v. Porter, 241 Conn. 57, 74, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998); State v. John, 210 Conn. 652, 677, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989). To be admissible, an expert's opinion must have a basis in facts that are supported by the evidence; the factual basis for an expert's opinion may not be based on speculation. See Viera v. Cohen, 283 Conn. 412, 449, 927 A.2d 843 (2007). "In order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion. . . . [When] the factual basis of an expert opinion is challenged . . . the question before the court is whether the uncertainties in the essential facts on which the opinion is predicated are such as to make an opinion based on them without substantial value." (Citations omitted; internal quotation marks omitted.) State v. John, supra, at 677, 557 A.2d 93. Thus, without an adequate basis in fact, an expert's opinion cannot be admitted into evidence, let alone credited.
Turning first to the testimony of DeHaan, I note that the record demonstrates that his estimate was unreliable because the principal factual underpinnings that DeHaan relied on in support of his burn time estimate are contradicted by eyewitness testimony, as well as his own testimony, and thus are not supported by the evidence. DeHaan estimated that the fire burned for at least twenty-five minutes but no more than sixty minutes. DeHaan based his estimate on two key factual assertions. First, DeHaan assumed that the fire on the couch "burned very readily," quickly consuming the available oxygen in the apartment, and then was reduced to a smolder. Second, DeHaan estimated that temperatures inside the apartment were about 400 degrees
First, DeHaan's belief that the fire on the couch "burned very readily" is contrary to the observations of a fire investigator who actually witnessed the speed at which the couch burned. Igoe, the state fire marshal who originally investigated the fire, testified at the criminal trial and again before the habeas court. Igoe arrived at the scene within a few hours of the fire and remained on the scene for about five hours to conduct his investigation. During his investigation, Igoe examined the couch where the fire originated and the inside of the victim's apartment to assess the damage and the fire's burn pattern. He also conducted a test burn of the couch to determine how it burned by burning the actual material from the couch in an oxygen rich environment. Igoe testified at the habeas hearing that, even with plenty of oxygen, the couch material "burned very, very slowly and it emitted heavy black smoke." (Emphasis added.) In his report issued shortly after the fire, Igoe explained: "Examination of the living room couch leads this investigator to conclude that the burning to the couch was the slow smoldering type burning and not the rapid burning which occurs with some materials." (Emphasis added.)
In reaching his own conclusions, however, DeHaan simply rejected these eyewitness observations about the speed at which the couch burned, even though DeHaan had neither examined the couch materials nor witnessed the speed at which they burn. The petitioner, in his posttrial brief, acknowledged this rejection, explaining that "DeHaan disagreed with Igoe substantively on the fire's characteristics, most particularly that it was a slow burning fire." DeHaan believed, from looking at photographs of the couch, that it was made of a material that burned rapidly and that it would not have been treated with
Second, the factual basis for DeHaan's estimate of the temperature in the apartment when Tomkunas first arrived is contradicted by Tomkunas' testimony from the criminal trial. DeHaan based his estimate of the entry level temperature on his understanding that Tomkunas could not enter the apartment even though he suspected someone was inside. Tomkunas' inability to enter the apartment suggested to DeHaan that temperatures were between 300 and 400 degrees when Tomkunas first arrived, with the temperatures most likely closer to 400 degrees. This led DeHaan to conclude that the fire could not have been started more than one hour before Tomkunas tried to enter, or else the high temperatures would have dissipated and Tomkunas would not have been deterred from entering the victim's apartment.
The majority relies heavily on DeHaan's understanding that Tomkunas could not enter the apartment because of the heat to call into question the habeas court's reliance on the testimony of the respondent's expert, Robert Corry. According to the majority, DeHaan testified "that the temperature inside the hot gas layer was likely between 300 and 400 degrees when Tomkunas entered the apartment. DeHaan explained that this estimate was based, in part, on Tomkunas' testimony at the petitioner's criminal trial that, when he arrived at the victim's apartment, the outside of the front door was hot to the touch, and the temperatures and . . . hot gases he encountered at near floor level were untenable, and he couldn't go in, even though he suspected there was a victim inside.'" (Emphasis in original.) DeHaan also testified that, if the temperature had been lower than 400 degrees, "Tomkunas would not have necessarily been dissuaded from entering." DeHaan's burn time conclusion, therefore, was based on his understanding that Tomkunas could not enter the apartment at all because of the high temperatures and that Tomkunas entered the apartment only after the firefighters vented it, allowing the heat to escape. The habeas court discredited DeHaan's estimate of entry level temperatures based on Corry's testimony that Tomkunas entered the victim's apartment before it was vented and was not burned, indicating that temperatures could not be as high as DeHaan had suggested. Contrary to DeHaan's understanding that Tomkunas "couldn't go in[to]" the apartment because of the heat until after it was vented, Tomkunas testified that he was able to enter the apartment when he first arrived and before it was vented. Tomkunas, a volunteer firefighter, was driving in his personal vehicle less than one mile from the victim's apartment when he received a dispatch reporting the fire. Tomkunas, who was on a date at the time, did not have any protective gear or breathing apparatus with him. Nevertheless, he drove directly to the victim's apartment and arrived there about one minute after the dispatch. The petitioner directed Tomkunas to the apartment, and he went straight to the front door and kicked it in. Tomkunas was met
In addition, Tomkunas' ability to remain in the apartment for fifteen to twenty seconds before it was vented and without suffering any burns completely contradicts DeHaan's claim that the apartment was close to 400 degrees when Tomkunas first kicked in the door. Corry testified that, according to data from the National Fire Protection Association, a person with uncovered skin will sustain first or second degree burns when exposed to 212 degree temperatures for fifteen seconds; burns will occur in even less time at higher temperatures. Although DeHaan estimated that Tomkunas would have experienced temperatures near 400 degrees "to the bare skin," Tomkunas did not sustain any burns or injuries from the heat or smoke on either of the two occasions that he entered the apartment.
Tomkunas's testimony directly contradicts DeHaan's and the majority's understanding that the 400 degree heat prevented Tomkunas from even entering the apartment. The habeas court discredited DeHaan's testimony in part because it credited Corry's testimony that entry level temperatures could not have been close to 400 degrees as DeHaan estimated because Tomkunas was able to enter the apartment without suffering any burns. The majority concludes, however, that this finding "lacks support in the record." According to the majority, the approximately 400 degree temperatures prevented Tomkunas
I also note that Corry's opinion received additional support from Corry's own interviews of Tomkunas. As part of his investigation of the fire, Corry personally interviewed Tomkunas twice about his actions on the night of the fire and the heat conditions that Tomkunas encountered. Corry testified during the habeas hearing that, "when [he] asked [Tomkunas] to compare [the heat he experienced upon entering] to something that he was familiar with, he said at most it was similar to entering a sauna, which would be about 150 degrees to 190 [degrees]." DeHaan, on the other hand, did not speak to Tomkunas or even attempt to contact him; he instead claims to have relied on Tomkunas' trial testimony, which, as I explained previously, is inconsistent with DeHaan's understanding of the conditions that Tomkunas experienced.
DeHaan's assumptions in support of his estimates of entry level temperatures are thus completely refuted by Tomkunas' testimony. We do not know what impact, if any, Tomkunas' ability to enter the apartment had on DeHaan's conclusions because DeHaan's stated understanding of Tomkunas' actions simply does not line up with Tomkunas' testimony. When, as in the present case, an expert's opinion lacks a valid basis in fact, it is nothing more than speculation and may not be admitted into evidence, and, as a result, cannot be credited. See, e.g., State v. John, supra, 210 Conn. at 677, 557 A.2d 93.
In addition, DeHaan's belief that entry level temperatures were too high for Tomkunas even to enter the apartment conflicts with DeHaan's own testimony about the fire's energy level. DeHaan testified that the fire would have produced a relatively small amount of heat and would have been approachable, even at its maximum intensity. DeHaan explained that the fire's intensity "would probably be about the same as an average fireplace fire. It would be pumping a lot of heat into this room, but not so much that you couldn't—you couldn't approach it, for instance, to try to extinguish it, and if you were there at the time . . . it reached its maximum.. . ."
DeHaan's unsupported and conflicting testimony fully supports the habeas court's conclusion that DeHaan's burn time estimate was too speculative to be reliable, rendering it inadmissible.
Turning next to the testimony of the petitioner's other burn time expert, Gerard Kelder, Jr., I am persuaded that the record supports a finding that his estimate was also unreliable. The petitioner did not provide any evidence to show that Kelder used scientifically valid methods to investigate the fire, rendering his testimony not credible and inadmissible.
Kelder testified that he developed his burn time estimate principally by reviewing the fire damage depicted in photographs and a video recording. During the habeas hearing, the respondent's attorney asked Kelder what scientific method he followed to investigate the fire. Kelder initially testified that he relied on his personal experience and that his procedures tracked those described in chapter four of the National Fire Protection Association's Publication 921, a widely used fire investigation guide.
Kelder did not explain whether the method he contrived from his own personal experience was a scientifically valid and reliable method for determining a fire's burn time. Kelder acknowledged that his "estimate of the ignition time of the fire was based largely on the amount of damage that [he had] observed," but there was no other testimony to establish that a review of fire damage through photographs
The respondent attacked Kelder's testimony before the habeas court on this very basis. In his posttrial brief, the respondent argued that Kelder "could identify no scientific principle that would support his assertion that he [could] determine the duration of the fire simply by viewing photographs of the damage that it caused. Indeed, when Kelder's testimony is considered in its entirety, it becomes clear that it was nothing more than pseudo-scientific babbling. His conclusion, therefore, should not be credited. . . ." Not surprisingly, the petitioner, in his posttrial brief, cited to Kelder's testimony only once.
A court must preclude an expert's opinion when there is no evidence in the record to support the validity of the expert's methods other than the expert's own "ipse dixit" that those methods are valid and reliable; a witness' personal experience is not enough. Klein v. Norwalk Hospital, supra, 299 Conn. at 263, 9 A.3d 364; see also id., at 262-63, 9 A.3d 364 ("[T]he defendant made no showing that [the expert witness'] methodology had been subjected to peer review, nor was [the witness] able to identify a likely rate of error for his chosen methodology. [Although] neither of these determinations is a talismanic requirement for satisfaction of the Porter requirements, their absence is . . . determinative of the inadequacy of the defendant's proof of the methodology's reliability. . . . Without these or any other meaningful indicia of reliability, [the witness'] conclusion was without basis in an assuredly reliable methodology; without any stated support for its reliability other than his own personal expertise, it was nothing more than his ipse dixit." [Citation omitted; emphasis added.]).
The habeas court in the present case was fully justified in concluding that Kelder's opinion would be excluded from a criminal trial altogether. See id., at 263, 9 A.3d 364 ("[n]othing . . . requires a . . . court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert" [internal quotation marks omitted]). The petitioner's failure to present facts to establish the validity and reliability of Kelder's method would render his testimony not credible and inadmissible.
Other than the inherent unreliability of their estimates, Kelder and DeHaan disagreed with each other about key data points relevant to a determination of the fire's burn time, including the maximum temperature in the apartment, the temperature inside the apartment when Tomkunas first arrived, and the materials in the couch where the fire principally burned.
At the habeas hearing, Kelder testified that the maximum temperature in the apartment as a result of the fire would have been between 1800 to 2000 degrees at ceiling level. When asked how he reached this estimate, Kelder replied, "[i]t's scientific proof." DeHaan testified, however, that the temperature in the apartment could not possibly have exceeded 400 to 450 degrees. According to DeHaan, there were a number of objects throughout the
Kelder and DeHaan also disagreed about the temperature of the apartment when Tomkunas first kicked in the front door. Each of the petitioner's experts agreed that this was an important factor in determining the fire's burn time. As I discussed previously, DeHaan estimated that the entry level temperature was about 400 degrees. Kelder, on the other hand, initially testified that "there was not a lot of heat in that room at the time [the firefighters] entered" because, if there had been, there would have been a "flashover. . . of fire from the new oxygen coming into the room" when the firefighters first opened the door.
Furthermore, the petitioner's experts disagreed over whether the couch cushions were made of rubber foam or polyurethane foam, which burn at different rates, a difference that could have affected the fire's burn time. DeHaan testified that he was sure that the couch cushions were made with rapidly burning polyurethane foam, which led him to reject Igoe's eyewitness observations that the fire burned slowly. According to DeHaan, if the couch cushions were made of slower burning rubber foam, the remnants of the cushions would have appeared much differently than that depicted in the photographs, and rubber was not widely used as cushion material when the victim's couch was likely constructed.
The petitioner's experts also admitted that their late arrival to the case, as well as their resulting inability to study the actual fire scene in person, could affect the validity of their conclusions. Neither Kelder nor DeHaan investigated the actual fire scene at the time of the fire. They were hired more than one decade after the fire to formulate burn time estimates based only on a review of photographs, a video recording and the testimony of certain witnesses. But the photographs and video recording were taken after emergency personnel had disturbed the original fire scene. For example, photographs of the couch where the primary fire burned show the couch outside of the victim's apartment on the lawn, even though all experts agree that the couch was in the living room at the time of the fire. Emergency personnel moved the couch outside before the first fire investigators arrived on the scene and before any photographs of the scene were taken. Moreover, neither Kelder nor DeHaan interviewed any of the witnesses to the fire, and neither of them personally examined or analyzed any of the materials involved in the fire.
Kelder acknowledged that important information about the conditions contributing to the fire's duration was unavailable to him because he joined the case long after the fire occurred. Kelder explained that he developed his burn time estimate by looking at photographs, a video recording and a diagram of the scene, and by reviewing certain testimony. He did not do anything further to gather additional information to help his investigation—for example, by interviewing witnesses—and explained that he was not asked to do this. Nevertheless, he agreed that it would have been a good investigative practice to do so, if he had been able to investigate the actual fire scene in "1987 versus 2000. . . ." He also acknowledged that his inability to review, firsthand, the actual fire scene and materials involved in the fire prevented him from using standard fire investigation methods. When asked whether he knew the ignition temperatures of the materials involved in the fire, Kelder conceded that he "would have to test the materials" but that he "didn't have that availability" and therefore could not conduct his own tests. And when Kelder was asked whether it would be important for his investigation to determine exactly what type of material was involved in the fire, he answered: "Yes, if I had the availability of being at the scene, I think I would have sent it to the lab and determine what components were in it." Kelder also explained: "I could not make that determination. I wasn't at the scene." Finally, Kelder also acknowledged that it would have been "a good investigative practice to try to determine what the temperatures were when the firefighters entered the apartment" but that he could not do so because he "wasn't at the fire scene."
In addition, DeHaan acknowledged the limited data available to him could impact his conclusions. When DeHaan was asked at the habeas hearing whether there was "anything [he] could have learned by examining any items that were retained from the fire," he explained: "If the [couch] had
The petitioner had the burden of proving the elements necessary to prevail on his Brady claim, which required him to demonstrate prejudice by providing reliable burn time evidence in support of his alibi defense. The unfounded, speculative and contradictory nature of the testimony of the petitioner's burn time experts leads me to conclude that the petitioner's evidence is not reliable. Consequently, there is no reasonable probability that it would have been credited.
Apart from the faulty testimony of the petitioner's own experts, the habeas court also heard testimony from three other fire experts. Their testimony reinforced what the petitioner's experts acknowledged: that investigators lacked the data needed to make a reliable burn time estimate, including proper measures of temperature in the apartment during the fire, ventilation conditions, and the materials in the couch where the fire primarily burned.
As I noted previously, the habeas court heard testimony from Igoe, who investigated the actual fire scene firsthand. On the basis of his analysis of the fire scene and his observations of the couch and its burn rate, he concluded that the primary fire started on the couch and burned "very, very slowly. . . ." Igoe testified that, given the slow burn rate, the time the fire took to spread after ignition could have varied depending on ventilation and insulation conditions in the apartment. He explained, however, that he had difficulty assessing actual conditions at the time of the fire because the scene had been disturbed by emergency personnel. Igoe noted that the "[c]onditions of the [apartment] were horrible" and that the apartment was "a mess" after the fire. On the basis of his firsthand observations, Igoe determined that the slow burning fire could have burned for several minutes to several hours, depending on the exact conditions and materials in the objects that burned. Igoe testified that the only information he would feel comfortable using to determine the fire's duration would be eyewitness testimony about the fire's start time, which did not help narrow the window of time within which the fire could have started.
The habeas court also heard from Joseph Roy, another fire investigator from the state fire marshal's office, who assisted Igoe in his investigation at the scene.
The respondent's expert, Corry, also testified that the burn time could not be reliably determined. Corry agreed with Igoe that the fire could have burned for several minutes to several hours, depending on the exact conditions at the time of the fire, which are not known to any of the investigators. Corry reached his conclusions on the basis of his own observations about the insulation conditions of the actual apartment. Of the three hired experts, Corry is the only one who visited the actual fire scene. He noted that the victim's apartment had remained vacant since the incident and still smelled strongly of smoke. He observed the insulation properties of the apartment and interviewed a maintenance employee at the apartment complex who had worked there since before the fire. The maintenance employee explained that the original door had been cleaned and left in place but that the windows had been replaced after the fire with the same type that had previously been installed. From his observations, he concluded that the apartment was well insulated. He also noted that photographs of the scene show limited smoke damage on the outside of the apartment, which led him to conclude that the apartment was not well ventilated at the time of the fire.
Corry concluded that the fire's burn time could not be determined to a reasonable degree of probability. Corry believed that the couch burned slowly after ignition. According to Corry, burn patterns indicated that objects on the couch, along with a lack of ventilation, inhibited the spread of the fire. Like the other experts, Corry opined that the fire eventually consumed available oxygen and reduced to a smolder. Given the lack of knowledge of the type of materials involved in the fire and the exact ventilation conditions at the time of the fire, Corry concluded that "[i]t's very difficult to say [with any] degree of certainty" how long the fire lasted. Corry opined that the fire could have smoldered for some time, even with a relatively small amount of ventilation bringing in fresh oxygen to sustain the fire.
This is not a case in which a fact finder, presented with equally compelling but divergent expert testimony, simply chose to credit one expert over others. The petitioner's unreliable burn time evidence and the testimony from other experts convinces me that there is not a reasonable probability that a jury would credit the testimony. How the majority can conclude that the habeas court's findings are "baseless" in light of this evidence is beyond me.
Without any credible burn time evidence to weigh against the original trial evidence, the petitioner cannot establish prejudice under Strickland and Brady. On the record, I disagree that we can conclude, as a matter of law on appeal, that the petitioner has met his burden.
For the foregoing reasons, I cannot join in the majority's decision to uphold the Appellate Court's decision to order a new trial for the petitioner. I therefore would reverse the Appellate Court's judgment and remand the case with direction to affirm the habeas court's judgment denying the habeas petition.
Accordingly, I respectfully dissent.
ESPINOSA, J., dissenting.
I join Justice Zarella's thorough and well reasoned dissent, which explains why the applicable standard of review and governing principles of law require this court to reverse the judgment of the Appellate Court, which improperly concluded that the petitioner, Richard Lapointe, is entitled to a new trial. There is no need for me to duplicate his compelling analysis. I write separately to emphasize what I view to be the central and troubling flaw in the majority opinion—it constitutes unfettered judicial activism and reflects a complete misunderstanding of the proper role that this court should play within the rule of law. With no reservations whatsoever, the majority usurps the fact-finding role of the trial court in defiance of the constitutional limits on this court's jurisdiction, ignores this court's own recently established guidelines that were intended to mitigate the damage to our system of justice and the prejudice to the parties when this court raises claims sua sponte on appeal, and blatantly serves as an advocate for the petitioner, Richard Lapointe. In other words, in a gross parody of judicial economy, the majority functions as fact finder, counsel and reviewing court. And the majority accomplishes all of this apparently with good intent and in the name of justice.
John Rawls explained the relationship between the rule of law, justice and the legal system: "[T]he conception of formal
Justice is not achieved by suspending the rules in order to benefit a single individual through a judicial decision. Justice is not served when a reviewing court expands its role to include fact-finding, a role properly and constitutionally reserved to the trial court. And justice is most certainly not attained by doffing one's judicial robe and donning an advocate's suit. That, however, is precisely what the majority has accomplished through today's decision. By resolving the appeal on a basis not argued by either of the parties—indeed, on an issue that, as Justice Zarella points out, was expressly abandoned by the petitioner—without allowing them the opportunity to brief the issue, the court flouts the principle that legal rules should be applied in a regular manner. By refusing to defer to the habeas court's predicate credibility findings and its ultimate factual finding that the burn time of the fire could not be determined, the majority acts without jurisdiction and in defiance of this court's constitutional role within the judicial system. By advocating on behalf of the petitioner, the majority appears to abandon any pretense of impartiality. The rule of law has been damaged by today's decision, which casts a cloud over the court, and it is reasonable to wonder if that cloud portends an approaching storm.
Unfortunately, there is nothing in the majority's departure from the rule of law that is even remotely innocuous. As Justice Zarella's dissenting opinion demonstrates in detail, the majority resolves this appeal on a basis not argued by the petitioner, either at the Appellate Court or this court, without allowing the parties the opportunity to brief the issue. The majority itself summarizes the claim raised by the petitioner to the Appellate Court, namely, that "the state's failure to disclose the Ludlow note
As Justice Zarella points out in his dissent, neither of the parties has raised the issue on which the majority resolves this appeal. Certainly, the respondent, the Commissioner of Correction, does not ask this court to reconsider a well established standard of review that in this instance favors the state. Justice Zarella aptly contrasts the respondent's brief in the present case with the brief of the respondent in Anderson v. Commissioner of Correction, 313 Conn. 360, 375, 98 A.3d 23 (2014), cert. denied sub nom. Anderson v. Semple, ___ U.S. ___, 135 S.Ct. 1453, ___ L.Ed.2d ____ (2015), in which the state was on notice that this court would be reviewing the question of whether an appellate tribunal properly may revisit the factual findings of the habeas court, because in that case a dissenting judge at the Appellate Court had done precisely that. Accordingly, in the respondent's certified appeal to this court in Anderson, Justice Zarella notes that the respondent fully briefed the issue of the appropriate standard of review. Justice Zarella's implied question to the majority, therefore, is crucial—if the respondent is on notice, as the majority purports, that this court will reconsider the appropriate standard of review, why did the respondent fail to brief the issue?
As to the petitioner, not only has he failed to challenge the factual findings of the habeas court, he has expressly abandoned any claim that those findings constituted clear error by stating that he agrees with the habeas court's ultimate factual findings that "the experts could not determine the exact amount of time the fire burned" and that "the fire's burn time could not be precisely determined." Additionally, the petitioner has not argued that this court should adopt a de novo standard of review of a habeas court's factual findings and, indeed, the petitioner could not prevail in such an argument. As Justice Zarella explains cogently and thoroughly in his dissenting opinion, it is beyond this court's jurisdiction to review factual findings de novo, and it is beyond this court's power to allow to itself what our constitution forbids.
Given the petitioner's acquiescence to the factual findings of the habeas court, one would expect the majority to take those findings as the starting point for its consideration of whether the court properly concluded that the Ludlow note was not material. The habeas court's factual findings, however, are problematic for the majority, because those findings do not favor the petitioner. The habeas court stated that "as the finder of fact" it assigned "far more credit" to the respondent's expert, Robert Corry, than it did to the petitioner's experts, Gerard Kelder, Jr., and John DeHaan. Predicated on that subordinate factual finding, the court ultimately found that "the precise time the fire was set cannot be determined." (Emphasis added.) The court grounded its legal conclusion that the Ludlow note was not material on its ultimate factual finding that the evidence did not establish that the burn time could be determined with sufficient precision to support the petitioner's proposed alibi defense. Finally, as to the petitioner's proposed alibi defense, the court also found that the petitioner's only alibi witness, his former wife, Karen Martin, without whose testimony the Ludlow
One might well ask why these findings are problematic for the majority. The answer is quite simple—the majority apparently takes as its starting point the conclusion that the petitioner is innocent.
The findings of the habeas court are irreconcilable with the majority's apparent conviction that the petitioner is innocent, and, if left standing, those findings would compel the conclusion that the habeas court properly concluded that the Ludlow note was not material. There are occasions when the factual findings of the trial court are determinative—this is one of those occasions. Because the majority is unwilling to acknowledge this limitation on its power, the majority's task is clear—somehow, some way, those findings must fall.
The factual findings of the habeas court create both procedural and substantive hurdles for the majority. First, as a procedural matter, because the parties have not been notified that the appeal will be resolved on a claim raised sua sponte by this court—resolving the appeal by revisiting the factual findings pursuant to a radical new standard of review—the parties must be allowed to submit supplemental briefs. See Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 161-62, 84 A.3d 840 (2014) (Blumberg). Second, as a substantive matter, and as Justice Zarella explains, because this court lacks jurisdiction to render judgment on the facts of a case, as a matter of law, the majority cannot
Because the majority cannot claim that the habeas court made no factual findings, it is forced to acknowledge that the court did indeed make credibility "findings." Not to worry—confident that it is up to the task, the majority dusts off its hands and sets to the messy work of dismantling the habeas court's credibility findings, which it recasts as findings of persuasiveness, rather than credibility. The majority appears to believe that by substituting the word "persuasive" for "credible" it has cleverly recast the habeas court's credibility findings as somehow not really credibility findings. The majority also suggests that determinations of expert witness credibility in particular are not actually credibility findings, because when a trial court evaluates the credibility of an expert, it is "assess[ing]" the foundation on which the opinion is based, not making a finding as to the "personal credibility" of the witness. But see Anderson v. Commissioner of Correction, supra, 313 Conn. at 375, 98 A.3d 23 (in appeal arising from denial of petition alleging ineffective assistance of trial counsel in violation of Strickland v. Washington, supra, 466 U.S. at 686, 104 S.Ct. 2052 habeas court's factual findings as to expert witness' credibility "will not be disturbed unless they are clearly erroneous" [internal quotation marks omitted]).
The majority's attempt to selectively categorize credibility findings as to expert witnesses as somehow distinct from all other credibility findings is simply not reconcilable with the way that a fact finder evaluates the testimony of witnesses, as it supposes that such a finding may be neatly dissected, somehow separating a fact finder's observations of the demeanor of a witness from its evaluation of the substance of the witness' testimony. The majority's standard is inconsistent with the fact that trial courts routinely instruct juries that they are to consider the credibility of expert witnesses in the same manner that they consider the credibility of any other witness. See State v. Borrelli, 227 Conn. 153, 174, 629 A.2d 1105 (1993); Connecticut Criminal Jury Instructions (4th Ed.) instruction 2.5-1, available at http:// www.jud.ct.gov/JI/criminal/part2/2.5-1.htm (last visited March 27, 2015).
It is for the fact finder to consider that testimony, using its "`best judgment,'" and to determine whether to give any weight to the testimony, and, if so, how much weight to give to it. State v. Borrelli, supra, 227 Conn. at 174, 629 A.2d 1105. A fact finder cannot determine credibility without considering demeanor, and, in the case of juries, they are specifically instructed to consider a witness' demeanor during testimony, regardless of whether that witness is an expert or lay witness. See Connecticut Criminal Jury Instructions (4th Ed.) instruction 2.4-2, available at http://www.jud.ct.gov/JI/criminal/part2/ 2.4-2.htm (last visited March 27, 2015). The majority's rule, which requires the habeas judge to say the magic word "demeanor," in order for this court to apply the standard of review we have applied without exception to a fact finder's credibility findings, is not only inconsistent with the way that our courts have understood the evaluation of the credibility of witnesses, and irreconcilable with the fact finder's discretion to disregard entirely the testimony of any witness, including an expert
In an attempt to blunt the argument of the dissenting justices in this appeal that the parties had no notice that the majority would abandon our established standard of review for credibility findings, the majority turns to the analysis of the Appellate Court, which it claims applied de novo review to the habeas court's credibility findings. There is no support whatsoever for the majority's Court decision, which merely concluded that "if" a jury on retrial were to credit both the testimony of the petitioner's burn experts and the testimony of Martin, then, the jury could have found "that it was temporally impossible for the petitioner to have committed the crimes for which he was convicted." Lapointe v. Commissioner of Correction, 138 Conn.App. 454, 479, 53 A.3d 257 (2012). The holding of the Appellate Court, therefore, is framed in the form of a hypothetical.
The cornerstone of the majority's strategy, on both the procedural and substantive fronts, is its casual announcement that the applicable standard of review of credibility findings—but only as to expert credibility findings, and only in the Brady and Strickland contexts, and only when the habeas court omits to state expressly that it considered the demeanor of the witness—is de novo. As support for this jaw-dropping statement, which is directly contradicted by more than one century of binding precedent of this court, the majority cites to an intermediate appellate court in Indiana, which the majority apparently discovered after scouring every jurisdiction in the country for a decision that would provide support for its astonishing new rule. In connection with a claim based on newly discovered evidence, not Brady material, the Indiana Appellate Court stated in 2012 that it would not defer to a trial court's findings regarding the credibility of experts because that type of credibility determination is not based on a "firsthand evaluation of [the witness'] demeanor" but
Perhaps most astonishing of all is the majority's failure to mention even once in its 123 page decision a recent Connecticut decision, which, like Bunch, discussed the appropriate level of deference afforded by this court to the credibility determinations of the trial court in considering a claim predicated on newly discovered evidence. See Skakel v. State, 295 Conn. 447, 991 A.2d 414 (2010). Not surprisingly, the majority in Skakel flatly rejected as "unprecedented" and contrary to our law; id., at 487 n. 25, 991 A.2d 414; the suggestion of the dissenting justice that this court should not defer to the trial court's credibility findings with respect to the videotaped testimony of a witness, where the trial court had expressly stated that because the witness had not testified at the hearing on the petition for a new trial, that court was "unable to evaluate his `demeanor and manner. . . .'" (Emphasis omitted.) Id., at 630, 991 A.2d 414 (Palmer, J., dissenting). The majority's dismissal of the dissenting justice's novel theory was not even remotely ambiguous—this court characterized that notion as one that this court "squarely has rejected . . . ." Id., at 487 n. 25, 991 A.2d 414. Yet, today's majority not only fails to distinguish this court's decision in Skakel— it does not even deign that decision worthy of mention, and instead relies on Indiana case law.
Nor does the majority explain how its reclassification of expert credibility findings made within the Brady and Strickland contexts somehow overcomes the jurisdictional bar established by our constitution, or why, for that matter, a different standard of review of credibility findings should apply in Brady and Strickland cases. Instead, the majority acts as though it just discovered an already existing rule dictating the standard of review, a rule that magically allows the majority to find facts without admitting that it is doing so. And the best part is that because this is not, according to the majority, a new standard of review, there is no need to allow the parties to brief the issue of whether the court should adopt a new standard.
With a single decision by an intermediate appellate tribunal in a different state,
The answer to the majority's insupportable claim is simple and irrefutable. Our decisions and our state constitution, which clearly prohibit precisely what the majority does today—engaging in de novo review of the habeas court's expert credibility findings—are binding authority. When a decision from another jurisdiction, which constitutes persuasive authority only, is contradicted by our binding precedent, our decisions control. Instead of applying that principle of black letter law, the majority looks to Indiana for permission, finds facts and simply insists that it is not doing so. It applies an astonishing new standard of review and pretends that the rule is well established. The majority raises a new claim sua sponte and expresses surprise when the dissenting justices cry foul.
Under these circumstances, it is unconscionable to fail to order supplemental briefing. The majority clumsily attempts to conceal the fact that it is adopting a radical new standard of review that is beyond the power and contrary to the very essence of this court, in order to justify revisiting the habeas court's factual findings in the absence of a claim of clear error, without allowing the respondent the opportunity to brief the issue. All the while, the majority acts as though there is nothing extraordinary in applying de novo review of factual findings. This sleight of hand is reminiscent of the Wizard of Oz exhorting Dorothy to "[p]ay no attention to that man behind the curtain!" At that point in the movie, no child was fooled, and the majority should not even try to convince itself that the reader will be fooled by its shell game.
The chilling aspect of the majority's brazen maneuver, however, is that we should have seen this coming. This court has been on a discernible path toward precisely this type of abuse of judicial power, and it began down that course by lightly tossing aside the rule of law in a case in which no necessity compelled such extreme action. Until recently, this court considered it to be a "bedrock principle of our adversarial system that courts decide only those claims that the parties have raised." State v. Lenarz, 301 Conn. 417, 532, 22 A.3d 536 (2011) (Palmer, J., dissenting). Ironically, when Lenarz was decided, Justice Palmer took the majority to task for "[ignoring] this principle in resolving the present case on the basis of a claim that the defendant never has raised and that the state never has had a chance to address." Id.
Enter Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. 123, 84 A.3d 840. In a stunning and unnecessary departure from this basic principle of appellate procedure, this court announced in Blumberg that pursuant to our supervisory power, we, and the Appellate Court, may set aside that "bedrock principle" and sua sponte resolve an appeal on an issue not raised by the parties. Id., at 155, 84 A.3d 840. Perhaps in recognition of the fact that we were blurring the line between judging and advocacy, we limited our power by claiming that we would exercise it only upon the satisfaction of three conditions.
Despite this court's suggestion in Blumberg that it was simply making explicit what was already implicit in our decisions, reaction to the decision has ranged from surprised yet polite wariness to open dismay. See, e.g., C. Tait & E. Prescott, Connecticut Appellate Practice and Procedure (4th Ed.2014) § 8-2:5, pp. 453-55 (describing Blumberg as "stunning" decision that "greatly expanded the right of the appellate courts to reach out and decide an issue that was neither preserved by the parties, nor raised on appeal," and expressing view that reviewing courts should exercise new authority under Blumberg "if at all, on exceedingly rare occasions," warning that "[o]nly time will tell as to whether Blumberg is the first step down an unwarranted path of issue spotting by appellate courts"); D. Klau, "Two Points Make a Line (And Suggest a Troubling Trend)," Appealingly Brief!, July 1, 2014, available at http://appealinglybrief.com/2014/07/01/two-points-make-a-line-and-suggest-a-troubling-trend (last visited March 30, 2015) (Blumberg and other decisions in which this court has exercised its supervisory authority suggest that this court "has abandoned longstanding norms that have governed the operation of our adversarial system of justice—norms like, `[i]t is a bedrock principle of our adversarial system that courts decide only those claims that the parties have raised'—in favor of a philosopher-king model of appellate judging"); C. Ray & M. Weiner, "Mueller v. Tepler, 312 Conn. 631 [95 A.3d 1011] (2014): The Appellate Court Gets `Blumberged,'" Connecticut Lawyer, Vol. 25, No. 3 (October 2014), p. 31 (observing that "as the Blumberg vessel drifts into the murky waters of sua sponte identification and review of legal issues, the more tethered to the strictures set forth in Blumberg that the [c]ourt remains, the more comfortable we, as appellate practitioners, will feel").
Until today's decision, this court has waded only tentatively into the Blumberg waters. Since that decision was released last year, this court has invoked Blumberg three times, and has generally adhered to
Voltaire is credited with stating that with great power comes great responsibility. As the highest court in the state, it is undeniable that we have great power. Blumberg is rooted in our supervisory authority, which we historically have characterized as a power that should be used sparingly. See, e.g., State v. Medrano, 308 Conn. 604, 648, 65 A.3d 503 (2013) (Norcott, J., concurring) ("[o]ur supervisory powers are invoked only in the rare circumstance where . . . traditional protections are inadequate to ensure the fair and just administration of the courts" [internal quotation marks omitted]). The reason for our restraint is obvious. On the one hand, our supervisory powers serve an essential purpose, reflecting our recognition that, although the rule of law ensures justice within the legal system, there are some instances when justice is more properly aligned with principles of equity. In those rare instances, the uniformity of legal rules must yield to equity, thereby achieving justice.
On the other hand, our extraordinary authority to act outside the limits of the rule of law is unquestionably a "great power," one that carries with it both great risk and attendant responsibility. Our supervisory authority allows us to reach down and announce a rule or result from on high. As the highest court in the state, once we have invoked that authority, our use of it is virtually unreviewable—with few exceptions, we are answerable only to ourselves. Accordingly, because of the lack of outside checks on that power, we have a duty to resort to that authority only when we must—disciplining ourselves to rely on it rarely. Otherwise, we risk injecting arbitrariness and capriciousness into the rule of law.
Blumberg runs afoul of these basic principles, and, in the present case, the majority takes another step down the dangerous path we have set for ourselves. The court in Blumberg exercised our extraordinary supervisory power arrogantly, without an awareness of its accompanying responsibility. The practical effect is obvious. By literally drawing a road map of all of the instances in which we now have given ourselves license to skirt around bedrock principles of appellate law, Blumberg encourages abuse of our supervisory authority. Today's majority has accepted that invitation with abandon.
On one level, it is not surprising that Blumberg has led us to the abuse of power in the present case, where the majority has raised a new claim and then simply denied that it has done so. The habeas court's findings, if given the proper deference, would not support the result that the
On another level, however, today's decision could never have been foreseen, even by Blumberg's most vocal critics. In Blumberg, this court revealed that it will dare to exercise its supervisory authority too broadly, too readily and too often. In today's decision, the majority reveals that not even a jurisdictional bar in the state constitution will stand between it and what it views as a just result. No one could have imagined that within one year, Blumberg would seem to be a relatively modest abuse of power.
The majority's unwillingness to abide even by the modest constraints on its power set forth in Blumberg appears to stem from a lack of impartiality, evident from the language of the opinion itself. From the outset, it is clear that the lens through which the majority focuses on the facts of the case is obscured by its apparent bias in favor of the petitioner. I will not undertake a detailed critique of the majority's discussion of the merits of the petitioner's appeal. As I have stated, Justice Zarella already has accomplished that task admirably in his dissenting opinion. I emphasize only some aspects of the majority's discussion in order to highlight the fact that the majority's determination to ignore the rule of law today is driven by the result that it sought from the beginning, handing a get out of jail free card to a man who the majority apparently has become convinced is innocent, despite the fact that the majority was not present at the original trial or at any of the habeas trials. I am mindful of the principle that in dissecting the majority opinion to demonstrate its bias, I am limited, as are we all, by the fact that one can never "[look] into another's mind" to know that person's intent. See Connecticut Criminal Jury Instructions (4th Ed.) instruction 2.3-2, available at http://www.jud.ct.gov/JI/criminal/part2/ 2.3-2.htm (last visited March 30, 2015). Absent a statement setting forth a person's intent, we always must rely on inference to discern it. I therefore look to what was said, and to what was not said, as evidence of the majority's bias.
I begin with a few examples of the slanted language employed in the majority opinion. Despite never having met the petitioner, the majority states that "he seemed physically, mentally and temperamentally incapable of the brutal crime." The majority attempts to justify its disregard for the rule of law by referring to
Apparently, deeming the term "confession" to be too negative, the majority characterizes the petitioner's three confessions admitting that he raped and killed the victim and then set fire to her home, as "suspect admissions," in which he "purported" to take responsibility for the crime. If all of this does not clarify for whom the majority speaks, one need only review part I of the majority opinion, the facts section, which includes as a statement of fact the argument of the petitioner's trial counsel that his confessions "were the product of a highly manipulative interrogation of an extremely vulnerable and impaired man, who had spent his entire life accommodating and agreeing with others in an effort to gain favor and to avoid conflict." These confessions are the very same ones that this court upheld on appeal. State v. Lapointe, 237 Conn. 694, 730-35, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S.Ct. 484, 136 L.Ed.2d 378 (1996).
In a striking display of its utter loss of perspective regarding the role of this court and the functioning of our system of justice, the majority makes several statements that suggest it is willing to step beyond even the role of advocate, and take a thirteenth, oversized seat in the jury box. For example, in regard to the petitioner's confessions, the majority states: "Indeed, no fair-minded person who is familiar with the evidence in the present case can read the petitioner's statements and feel confident that they represent a true and accurate account of the victim's murder by the person responsible for her death." I can think of a group of people who, after months of listening to evidence, did have such familiarity and did have such confidence: The jury of the petitioner's peers. The majority repeatedly ignores the fact that the petitioner had the opportunity to present whatever evidence he chose in support of his defense, to a jury that he agreed would be fair and impartial. In front of that jury, the petitioner had the opportunity to confront the witnesses against him, and to argue his theory of the case through counsel. That jury, unlike the majority, heard all of the evidence and convicted the petitioner.
In another illustration of the same problem, the majority first briefly catalogues some of the evidence relied on by the state at the petitioner's trial, including: upon supposedly discovering that the victim's apartment was on fire, the petitioner took a longer route than necessary to use the neighbor's telephone; when he used the neighbor's telephone, he called his wife and the victim's daughter instead of the police; he claimed that the door to the victim's apartment had been locked, but it was not; he repeatedly asked the police over the years whether he was a suspect in the case; and, he gave conflicting accounts about how often he had left his home and how often he had seen the victim on the day of the murder. Astonishingly, the majority then states: "Suffice it to say that we do not believe that a jury would necessarily find any of this conduct particularly
The majority's brief catalogue of the state's evidence further serves as an illustration of the primary method by which the majority tries to dilute the strength of the state's case against the petitioner in the original trial in order to bolster the materiality of the Ludlow note. Rather than consider all of that evidence together, the majority addresses it piecemeal, as demonstrated by the majority's suggestion that the conduct listed in its brief catalogue should be evaluated without reference to the fact that the petitioner confessed to the crime. The majority uses this device repeatedly in its evaluation to exaggerate the weaknesses and minimize the strengths of the state's case.
In addition to considering the state's evidence in a piecemeal fashion, the majority unabashedly considers information that was not presented at the original trial or to the habeas court on the petitioner's second habeas petition, such as the opinion of Richard Leo, a professor who testified regarding false confessions in support of the petitioner's unsuccessful actual innocence claim in his first habeas trial. Leo's opinion has no bearing on the materiality of the Ludlow note. The majority claims that it is aware that its "focus, of course, is the import of the burn time evidence relative to the strength of the [state's] case," but, nevertheless, "recite[s]" Leo's statements to underscore its finding that the confessions were unreliable. See footnote 86 of the majority opinion. Related to the majority's improper reliance on Leo's opinion is its perplexing discussion of the research it has reviewed regarding the problem of false confessions, research that was never presented or considered in connection with the second habeas petition.
The majority also relies on certain testimony that the petitioner unsuccessfully had offered in support of his ineffective assistance of counsel claim in his first habeas petition, specifically, the testimony of a Manchester resident that saw someone running from the area of the crime scene at approximately 8 p.m. on the night of the murder. That testimony has no bearing whatsoever on the strength of the state's case, notwithstanding the majority's sly remark that it will not comment on the admissibility of this testimony at a new trial. The first habeas court made a factual finding that the petitioner had failed to establish a link between the unidentified runner and the crime. Presumably, that finding will stand absent a successful claim of clear error. See State v. Arroyo, 284 Conn. 597, 609-10, 935 A.2d 975 (2007) (explaining that proffered evidence of third-party culpability is inadmissible if that "[e]vidence . . . would raise only a bare suspicion that a third party, rather
The majority's reliance, in its assessment of the strength of the state's case, on information that was never introduced into evidence at trial is even more astonishing when considered in conjunction with the majority's selective failure, in that same assessment, to give weight to evidence that was actually presented by the state at trial. Most notably, the primary basis on which the majority concludes that the state's case against the petitioner was "tenuous," is its finding that the petitioner's confessions were false. In making its case, the majority relies heavily on the fact that the petitioner, who has an IQ of 92, suffers from Dandy-Walker syndrome. The petitioner's trial counsel, however, presented ample evidence of his mental disability at trial in an attempt to call into question the voluntariness and reliability of his confessions, including the testimony of a clinical psychologist and a psychiatrist who both testified, over the course of five days during the trial, regarding the petitioner's mental disability. The jury also had the opportunity to consider this evidence in the context of its observations of the petitioner's testimony over the course of three days, and his demeanor during the two months of trial. The jury considered that evidence and concluded nonetheless that the confessions were both voluntary and reliable.
The majority also contends that the testimony offered by the state at trial detailing the petitioner's police interview and resulting confessions "provides significant insight into . . . the petitioner's state of mind during questioning." I agree that the testimony provides insight into the petitioner's state of mind. I observe that the jury obviously drew different inferences than those drawn by the majority, which, once again, reveals its apparent bias through its slanted account of the evidence. Specifically, although the majority acknowledges that the petitioner himself explained to Detective Paul Lombardo of the Manchester Police Department the reasons for his reluctance to provide the details of his crime, the majority substitutes its own theories as to why the petitioner vacillated. The petitioner was very clear about the basis for his resistance to providing details—he did not want people to view him as a "sex fiend" and was concerned that Martin would leave him once she found out what he had done to her grandmother, the victim, Bernice Martin. The logic of the petitioner's thinking is fairly compelling—brutally raping and murdering the eighty-eight year old grandmother of your then wife, then setting a fire to destroy the evidence, is horrific. It is one thing to confess to doing it; it is quite another to state out loud the details of what you did, knowing that whatever you say will become public knowledge.
The petitioner's thinking reveals a level of sophistication that is inconsistent with the majority's portrayal of him as "slow-witted, easily confused, child-like and gullible . . . ." As the habeas court observed following its review of the trial transcripts, a reasonable interpretation of the petitioner's confessions is "that the petitioner intentionally gave the police a mixture of both truthful and misleading information. The petitioner's behavior may be nothing more than manipulation and duplicity." That court further observed that its "thorough review of the transcripts of the petitioner's testimony, both during the trial and the extensive motion to suppress hearing, reflect an individual who answered questions quite well but nevertheless was often evasive, selective in his recall and bordering on so incredible as to be not believable . . . ."
Consistent with the petitioner's statements that he was withholding information because he was concerned with the consequences, he provided his most detailed confession only after he had been assured that Martin had been informed that he had committed the crime, and that she still supported him and would stand by him. In a masterful display of advocacy, however, the majority decides not to accept the petitioner's own explanation as to why he was withholding details and vacillating during the interview. Instead, the majority supplies its own explanation for the petitioner's evasiveness, postulating that his resistance supports the conclusion that the confessions were false.
It is also significant that the majority dismisses out of hand a powerful piece of corroborative evidence relied on by the state at the petitioner's original trial. The majority summarizes that evidence very briefly, acknowledging that the state relied on the fact that, "before any information regarding a possible sexual assault became known to the police or the public, the [petitioner] stated in a conversation with. . . a friend of the Lapointe family . . . that `it was a shame they killed an old lady, but they didn't have to rape her, too.'" State v. Lapointe, supra, 237 Conn. at 699, 678 A.2d 942. The majority then opines that the petitioner's testimony at trial offered a perfectly good explanation as to how he came by that information—the petitioner stated that he had overheard this information at the hospital. As elsewhere, the information omitted by the majority reveals its true agenda. This court summarized the relevant facts: "When asked in a June, 1989 interview by [Lombardo] how [the petitioner] had learned that the victim had been sexually assaulted, the [petitioner] responded that he had been informed by a doctor at the hospital on the night of the murder that the victim had been strangled, stabbed and sexually assaulted. The medical personnel who had attended to the victim unanimously testified, however, that they did not check the victim for sexual assault trauma when she was at the hospital that night and, further, that it would have been highly unusual for them to have done so under the circumstances. Other family members who had been present at the hospital corroborated the testimony of the medical personnel who said that there had been no mention of sexual assault at the hospital." Id., at 699-700, 678 A.2d 942. The majority ignores the weight of the testimony regarding what was revealed at the hospital, and instead highlights the testimony of a single witness that supports its conclusion. This is advocacy, not adjudication.
Perhaps the most deceptive aspect of the majority opinion is its failure to give any weight to the fact that the petitioner did present expert testimony at the original trial regarding the burn time of the fire. The majority strategically mischaracterizes that testimony in considering the petitioner's Brady material in the context of the evidence presented at the original trial. Specifically, at trial, the petitioner
As part of its effort to downplay the significance of Marvin's trial testimony, the majority flatly misrepresents it, suggesting that the petitioner did not call him in order to question him regarding his investigation of the fire, and implying that he was questioned regarding the fire's burn time only during redirect examination. He was questioned extensively regarding his investigation of the fire during direct examination by defense counsel, and he testified specifically regarding his conclusions, based on the evidence that he had observed, regarding the burn time of the fire.
Marvin testified regarding his investigation of the fire, the likely temperatures inside the apartment during the fire, the rate at which the fire burned, and his conclusions about the fire's burn time. Significantly, during direct examination by the petitioner's trial counsel, Marvin testified that he estimated that the fire had burned for approximately fifteen to twenty minutes before it reached its "highest heat buildup" at approximately 8:10 p.m. That time frame corresponds, in all material respects, to the time frame mentioned in the Ludlow note and the estimates given by the petitioner's new burn time experts. During cross-examination, Marvin admitted that his estimate was rough and that the state fire marshal who investigated the fire, Stephen Igoe, was of the opinion that a burn time could not be determined. Although the majority relies on Marvin's characterization of his estimate as a rough one in its attempt to discount his testimony, his admission during cross-examination that the number of variables involved in determining the burn time of a fire makes any estimate a rough one is consistent with the habeas court's factual finding that a burn time could not be estimated with precision—of course, the majority cannot mention this fact, since it is assiduously pretending that the habeas court did not make that factual finding. Marvin's conclusion that it was not possible to offer more than a very rough estimate was shared by the other two fire investigators, Igoe and Joseph Roy, who, he testified, also did not draw conclusions as to any particular temperature range. Marvin explained on redirect examination that the reason that his estimate was very rough was because certain testing that could have been performed at the scene—computer modeling and computer testing, which would have permitted the investigators to determine the exact temperatures of the fire—had not been performed.
The majority also conveniently ignores the fact that Marvin provided a very specific basis for his estimation of the burn time, stating that he observed that there
On redirect examination, the petitioner's trial counsel asked questions to expand on Marvin's qualifications as a fire investigator, asked a number of questions about the scientific basis for his estimates, and also asked about the fire's burn rate and, again, about his burn time estimate. Accordingly, the principal aspects of the fire discussed during Marvin's testimony at the criminal trial (peak temperatures, significance of the smoke damage, materials in the couch, speed at which the fire burned on the couch, and duration of the fire) were essentially the same facts disputed among the new burn time experts almost two decades later at the habeas hearing. The best that can be said, therefore, about the petitioner's Brady claim, is that he contends that had the Ludlow note been disclosed to him, he would have presented different, and in his view, better expert witnesses to testify as to the burn time of the fire, in effect getting a second bite at the expert apple. Presumably, in weighing the effect of the Brady material, the majority should have considered that an expert already testified to exactly what the petitioner now claims he would have an expert testify. The majority's treatment of the petitioner's expert testimony, however, suggests that this argument would be entirely new, provides yet another demonstration of the majority's assumption of the role of advocate on behalf of the petitioner.
Ultimately, the most important question that the majority must answer is this: Why is the Ludlow note sufficient to undermine its confidence in the jury's verdict? No one contends that the note has any independent significance. Indeed, no one actually knows what the note means. And the testimony of the petitioner's experts regarding the burn time of the fire, standing on its own, is irrelevant to the case. It is important to recall that the only reason that the Ludlow note and the testimony of the petitioner's experts are relevant at all is because they lead to the potential alibi testimony of Martin. An assessment of her credibility is crucial to the materiality of the petitioner's Brady claim, which is the only issue in this case. The significance and persuasive force of the petitioner's burn time estimates rise and fall on the strength of Martin as a witness. Unfortunately for the petitioner, the habeas court found Martin to be a terrible witness.
Although the majority claims that the resulting alibi defense that the petitioner would be able to assert at a new trial, predicated on the testimony of the new burn time experts and Martin, would constitute "a complete and potentially compelling alibi," that claim is not supported by the habeas court's credibility findings as to Martin. Martin testified before the habeas court in this matter, so the habeas judge had the opportunity to evaluate her credibility and the substance of her testimony. The court expressly found that Martin's testimony did not provide the petitioner with "anything that remotely amounts to an alibi." During the habeas hearing, Martin repeatedly testified that she does not remember details from the day of the murder, she appeared easily confused during the questioning, and she contradicted some of her earlier testimony from the suppression hearing.
At one point during the hearing, Martin indicated that the petitioner may have, in fact, been out of the house walking the dog
The habeas court found Martin's testimony to be "harmful to any alibi defense premised on [her testimony]. . . . [Martin] testified that she did not know whether [the petitioner] had been in the house (on the night of the murder) while she was upstairs, if the petitioner had been outside she would not have known, and that she had no way of knowing if he had left the house. It is difficult, if not impossible, to conclude that [Martin's] presence on another floor, while giving her son a bath, not seeing or hearing the petitioner downstairs. . . provides the petitioner with anything that remotely amounts to an alibi."
The habeas court's finding regarding Martin's lack of credibility as a witness is devastating to the majority's conclusion that the petitioner has satisfied his burden to prove the materiality of the Ludlow note. It is astonishing that the majority has expended so much time and effort in 123 pages arguing that the petitioner should be able to present the "new" burn time evidence, and has crafted a brand new rule for reviewing determinations of expert credibility, specifically so that the petitioner can present Martin's "compelling" alibi testimony. At the end of the majority's yellow brick road is Martin—who is not, by the way, an expert witness, so the majority's new rule does not apply—and who has been found by the habeas court, as a matter of fact, to lack credibility. Always prepared, however, the majority simply employs its favorite strategy for dealing with problematic findings—it simply pretends that the habeas court did not find that Martin lacked credibility. The majority's failure to address, even once in its lengthy discussion of materiality, the habeas court's crucial finding that Martin lacked credibility, provides further evidence for my conclusion that the majority began not with the applicable legal principles, but with its apparent conviction that the petitioner is innocent.
The majority's transparent advocacy merely illustrates the greater danger presented by today's decision. The majority acts without jurisdiction, flouts precedent of this court from the prior two centuries, sandbags the respondent, alternately ignores inconvenient findings by the habeas court (i.e., the habeas court's finding that the burn time could not be determined with precision, and its finding that Martin was not credible) and fails to accord deference to the remainder of those findings (i.e., the habeas court's expert credibility findings), and brazenly insists that it is acting within the rule of law. And today's decision does not stand in isolation, but is part of an emerging and disturbing pattern in this court's jurisprudence, beginning with Blumberg Associates Worldwide,
Today's decision could be viewed as illustrating precisely the type of "subtle [distortion] of prejudice and bias" of which Rawls warned, thus giving rise to a risk of the appearance of impropriety. J. Rawls, supra, § 38, p. at 235. Prejudice and bias can discriminate against groups not only by departing from the impartial rules to apply a more negative rule to a certain group, but also by a departure from those rules, as in the present case, to apply a more favorable rule to a single individual. While bestowing a benefit that is not required by and contrary to the rules on an individual may appear to be benign, the flaw in that overly simplistic view is demonstrated by comparing the case of the fortunate individual to others who did not benefit from the special treatment.
In the present case, in an extreme departure from the impartial administration of public rules, the majority does not defer to the credibility findings of the habeas court. The majority bobs and weaves its way around the applicable standard of review, obfuscating its distortion of the law in a manner that somewhat conceals the drastic nature of its departure from those rules. Ironically, the Chief Justice, by succinctly stating the new standard in her concurring opinion—namely, that we properly may revisit the findings of the habeas court because: (1) its credibility findings are not "ultimate" factual findings, but rather assessments of whether there is a reasonable probability that a jury could credit the testimony of the witnesses; and (2) because the habeas court did not expressly state that it relied on the demeanor of the witnesses, allowing this court to infer that it relied only on the substance of their testimony—highlights what the majority opinion obscures. Not only is this standard of review new, it is an outlandish distortion of basic principles of appellate procedure and is pretextual in nature. The Chief Justice cites to no authority in support of the rule, for the simple reason that none exists. This is a made up rule that benefits one person—Richard Lapointe.
Although the majority and concurring opinions contort both logic and the law in order to justify their departure from hitherto unquestioned rules of appellate procedure, this court, in a decision affirming the judgment of the Appellate Court, very recently rejected an invitation from a different petitioner to do precisely what it does today. See Sanchez v. Commissioner of Correction, 314 Conn. 585, 602 n. 12, 611 and n. 16, 103 A.3d 954 (2014). As Justice Zarella emphasizes in his dissent, this court in Sanchez properly adhered to the established rule that whether there is a reasonable probability that a new jury would credit new witness testimony presents a question of fact for the habeas court that we review only for clear error. In adhering to this principle, we specifically considered and properly rejected, in a unanimous decision, the reasoning of the dissenting judge at the Appellate Court; id., at 602 n. 12, 103 A.3d 954; who had drawn a distinction between a traditional credibility determination, as made by a jury, and the credibility determination made by a habeas court, which he characterized as merely "assessments of the likelihood" that the jury would credit the witnesses. Sanchez v. Commissioner of Correction, 138 Conn.App. 594, 605 n. 2, 53 A.3d 1031 (2012) (Sheldon, J., dissenting).
Our proper refusal to depart from the impartial and regular administration of the applicable legal principles as to Jorge Sanchez, the petitioner in Sanchez, stands in sharp contrast to the special rule that the
I do not offer my observations of the majority opinion, or of our prior precedent, lightly. I do so because I owe a duty to this court and to the rule of law. I believe that Blumberg was an ill-conceived exercise of our supervisory authority, and the abuse of power accomplished by the majority's decision today makes Blumberg appear tame by comparison. These decisions jeopardize the faith of the bar and the public in this court as an institution that serves the law, rather than rules over it. This court has been following an alarming path. We have done damage to the rule of law, which we have a duty to protect. At this point, we have a choice: Shall we crown ourselves as philosopher-kings or resume our proper role as servants of the law? One can only ask where the path will lead to next.
We note, in addition, that the Appellate Court also agreed with the petitioner that the second habeas court improperly concluded, albeit without explanation, that the petitioner had not made a prima facie showing that first habeas counsel's representation of the petitioner was constitutionally deficient on the basis of his failure to allege ineffective assistance of the petitioner's trial counsel as a result of their failure to utilize certain evidence to prove the unreliability of the petitioner's confessions. See id., at 402, 966 A.2d 780. In particular, the petitioner had maintained in his second habeas petition that first habeas counsel's representation of the petitioner was ineffective in that he failed to allege that, in closing argument, trial counsel improperly failed (1) to argue that the petitioner's statement describing the clothes that the victim was wearing at the time of the attack did not match the crime scene evidence, (2) to argue that a pubic hair recovered from the victim's sweater, which presumably was left by the actual killer, could not be linked to the petitioner, (3) to argue that a pair of men's gloves recovered from the crime scene, which had no connection to the petitioner or the victim, was likely left by the actual killer, (4) to emphasize that the petitioner's statement that he manually strangled the victim was inconsistent with the actual method of strangulation, namely, asphyxiation by pressure to the right side of the victim's neck with a blunt object, and (5) to emphasize that the petitioner's statement that he had stabbed the victim on the couch did not correlate to the physical evidence indicating that the victim had been stabbed on the bed. Id., at 399-401, 966 A.2d 780. The Appellate Court concluded, contrary to the determination of the second habeas court, that these claims, taken together, were sufficient to establish a prima facie case of ineffective assistance of trial counsel, and, therefore, the court remanded the case to the habeas court for further proceedings on that claim, as well. See id., at 402, 404, 966 A.2d 780.
With respect to the issue of whether the state improperly had failed to disclose the Ludlow note, the third habeas court observed that there was "no indication or evidence that the . . . note was wilfully suppressed" by the state. The third habeas court did not decide whether the note nevertheless had been suppressed inadvertently by the state; instead, for purposes of its analysis, the third habeas court assumed, without deciding, that the state unwittingly had failed to disclose it to the petitioner prior to his criminal trial. The respondent has not raised either ground in its appeal from the Appellate Court's judgment.
In addition, the respondent claimed in the Appellate Court that the state had not suppressed the Ludlow note. Id., at 472 n. 16, 53 A.3d 257. With respect to this issue, the Appellate Court acknowledged that the third habeas court had assumed without deciding that the note was inadvertently suppressed by the state; id., at 472, 53 A.3d 257; and then stated: "On appeal, the respondent argues that the Ludlow note was not suppressed because it was preliminary and speculative, and the petitioner's trial counsel knew of its essential facts. The [third] habeas court did not address those claims. In its memorandum of decision, the [third habeas] court stated: `There is no indication or evidence that the Ludlow note was [wilfully] suppressed, so this court will assume, without deciding, solely for purposes of addressing the petitioner's claim, that the Ludlow note was inadvertently suppressed.'. . . Without any further analysis by the [third habeas] court, the record is inadequate. . . to address this argument of the respondent." Id., at 472 n. 16, 53 A.3d 257. Because, however, the respondent had prevailed in the third habeas court, he had no reason to seek a determination with respect to his claim that the Ludlow note had not been suppressed. Consequently, the record was inadequate for review of the issue through no fault of the respondent, and the Appellate Court therefore should have remanded the case to the habeas court for a resolution of the issue. On appeal to this court, however, the respondent has not challenged the decision of the Appellate Court with respect to this issue, and, therefore, the respondent has waived any such claim. We do note, however, that, even if the respondent had preserved the issue, and sought a remand to resolve it, there is a substantial likelihood that he would not prevail, albeit for an entirely different reason than that given by the Appellate Court. Specifically, if, contrary to the assumption of the third habeas court, the Ludlow note had not been suppressed by the state, the petitioner likely would be able to establish in his habeas proceeding, first, that first habeas counsel should have recognized the exculpatory nature of the note and, second, that his failure to pursue a claim predicated on the note constituted ineffective assistance of counsel, thereby entitling the petitioner to a new trial, which the Appellate Court ordered in any event.
Finally, the respondent raised no claim in the Appellate Court with respect to issue of whether the Ludlow note was exculpatory. Consequently, the respondent has abandoned any such claim.
We also reject the respondent's third claim, which is predicated on the assertion that the Appellate Court, in determining that the petitioner's expert testimony satisfied the Brady materiality test, "improperly based [its decision on] that which it independently deemed to be conceivable, not [on] that which was reasonably probable in light of the [third] habeas court's finding regarding credibility and the entirety of the evidence of record." In support of this argument, the respondent relies on the statement of the Appellate Court that the testimony of the petitioner's experts, "if believed by the jury, could have resulted in the jury's finding that it was temporally impossible for the petitioner to have committed the crimes [of] which he was convicted." Lapointe v. Commissioner of Correction, supra, 138 Conn.App. at 479, 53 A.3d 257. According to the respondent, this language indicates "that the Appellate Court only paid lip service to Brady's `reasonable probability' standard, while, in actuality . . . it reached its own materiality determination speculating on the basis of what `could have' happened `if' certain evidence had been believed." We do not agree that the Appellate Court resorted to speculation and conjecture in deciding the issue of materiality. The Appellate Court expressly stated that a Brady violation may be established only "by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. . . . [E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Citation omitted; emphasis added; internal quotation marks omitted.) Lapointe v. Commissioner of Correction, supra, 138 Conn.App. at 476, 53 A.3d 257. We have no doubt that the Appellate Court, having recited the correct standard for materiality—one that requires a reasonable likelihood that the result of the original trial would have been different—also applied that standard. Indeed, we cannot conceive how the Appellate Court possibly could have concluded, as it did, that the unavailability of the expert burn time testimony "affected the overall fairness of the trial and was so unfair as to undermine [its] confidence in the jury's verdict"; id., at 478-79, 53 A.3d 257; if it had determined only that that testimony provided a remote or speculative possibility of a different result. As the respondent himself acknowledges, "[i]t is well established that [m]ere conjecture and speculation are not enough to support a showing of prejudice" in this context. (Internal quotation marks omitted.) Sinchak v. Commissioner of Correction, 126 Conn.App. 670, 678, 14 A.3d 348, cert. denied, 301 Conn. 901, 17 A.3d 1045 (2011). Therefore, we review the Appellate Court's use of the term "if" as properly reflecting its engagement in a probabilistic assessment of the effect of the Brady material on the jury's assessment of the evidence. Accordingly, there is no merit to the respondent's contention that the Appellate Court relied on an improper test to determine materiality.
"Q. Now, in your testimony, you indicated that you estimated that the temperature in the apartment when . . . Tomkunas entered was 300 degrees?
"A. No, I think I said 400 degrees.
"Q. Did you say 400 degrees?
"A. I believe I did, yes. I talked about a lot of temperatures. . . .
"Q. Well . . . what exactly do you mean by that?
"A. I'm talking about the hot gas layer temperature, because it wouldn't have been much hotter than that and still left so much. . . relatively undamaged in the structure. If it had been much over 400 degrees . . . then there would have been more thermal damage to materials in the structure, in the smoke layer. If [it had] been much lower than that, then . . . Tomkunas would not have necessarily been dissuaded from entering."
Moreover, Igoe's testimony about the couch foam did not support Corry's analysis over DeHaan's or Kelder's because, as we previously have explained, all three experts were in complete agreement about the dynamics of the fire and burn properties of the materials comprising the couch. Specifically, they all agreed that the materials, including the foam inside the couch cushions, were highly flammable and could support a powerful (high energy) fire if there had been more oxygen in the victim's apartment. They also agreed that the fire, which was set on the back of the couch, not the couch cushions, burned out before it could involve the couch cushions. Photographs of the crime scene reveal that the couch cushions were relatively intact in comparison to the back of the couch, which was completely destroyed, and Corry himself believed that something must have been lying across the couch to prevent the fire from spreading to the cushions. Consequently, Igoe's testimony at the third habeas trial could have had no bearing on the third habeas court's evaluation of the parties' expert testimony.
Justice Espinosa reaches a different conclusion, which, of course, is her right. Rather than support her opinion with legal analysis and authority, however, she chooses, for reasons we cannot fathom, to dress her argument in language so derisive that it is unbefitting an opinion of this state's highest court. Perhaps worse, her interest lies only in launching groundless ad hominem attacks and in claiming to be able to divine the (allegedly improper) personal motivations of the majority. We will not respond in kind to Justice Espinosa's offensive accusations; we are content, instead, to rely on the merits of our analysis of the issues presented by this appeal. Unfortunately, in taking a different path, Justice Espinosa dishonors this court.
In addition, John Coleman, a forensic scientist employed by Life Codes Corporation, also examined the semen stain from the victim's bedspread. Testifying on behalf of the state, he explained that heat will degrade the DNA in semen such that, "at 100 degrees, [it] would certainly affect the DNA molecule."
As we previously indicated, the parties' fire experts testified at the third habeas trial that temperatures inside the victim's apartment likely reached 400 to 600 degrees during the fire.
According to Robert Russo, a priest at Saint Bridget Church in Manchester, it was "readily apparent" to anyone who knew the petitioner that his "mental capacity was not up to par." Russo stated that, although people teased the petitioner quite a bit about it, he "took [it] in a very [kind] way. He would laugh about it [and] joke about it. . . . [People] obviously knew he was slow, and they would try to engage him in conversation that was far above his mental abilities. And [the petitioner] would always try to respond. But, of course, he couldn't do it. And so they would laugh at that, make jokes about it."
Michael Andreo, the owner of a supermarket at which the petitioner worked for several years, testified that the petitioner was "[m]entally. . . incapable" of running a cash register or even stocking shelves. "He tried to stock shelves," but he would "get mixed up" and put things in the wrong place.
Elizabeth Martin, the petitioner's mother-in-law, testified that both the petitioner and his wife had the mentality of "eight year old[s]. . . ." When asked how they were able to function at home if this were the case, Elizabeth Martin responded: "Well, I hate to hurt [the petitioner's] feelings, but not great. . . . [The petitioner's wife] couldn't really do housework [because of her physical disability]. So, it was . . . left to [the petitioner]. And most things . . . my husband [had] to [do for them]. A lot of the things [in the house]. . . were broken. . . . [The petitioner] was awkward. He wasn't well coordinated."
Furthermore, notwithstanding the third habeas court's ruling, we have little doubt that the petitioner's counsel will make effective use of the recording at a new trial, if the state elects to retry the petitioner, both to impeach Morrissey's credibility and to bolster the petitioner's claim that the burn time estimates provided by DeHaan and Kelder prove that it was temporally impossible for the petitioner to have committed the crimes of which he was convicted because the testimony of De-Haan, Kelder and Martin provides him with a complete and compelling alibi.
Leo further noted that all three of the petitioner's statements "contained factual errors that shouldn't be there if it's a confession of a truthful person. . . . [The petitioner] says that he strangled her manually, but, apparently, she was not strangled manually. He [says] that he physically raped her, but . . . there was no penile rape. These are errors. He says he tied her up with rope initially, but she was not tied up with rope. These are the kinds of errors that guilty people don't make. . . . Conversely, when one looks at false confession cases, these are exactly the kind of errors that innocent false confessors make because they demonstrate a lack of actual knowledge. They communicate ignorance. In the typical false confession case, [in which] something like this occurs, the false confessor is guessing. They're trying to infer what occurred, they're trying to feed back the information that they have ascertained, or they're just making it up, and they get it wrong." In this regard, we deem it noteworthy that, when Lombardo was asked how the petitioner responded when Lombardo confronted him with the fact that a witness purportedly had seen him walking his dog near the victim's apartment at 7 p.m., Lombardo stated that the petitioner had simply "agreed" that the information that the witness provided was accurate, even though, as we explained in footnotes 84 and 91 of this opinion, no such witness existed.
Of course, Leo did not testify at the petitioner's criminal trial. Thus, we do not rely on his habeas testimony in evaluating the strength of the state's case at the petitioner's criminal trial. We recite that testimony, rather, only to underscore our conclusion, which is predicated on the nature of the petitioner's admissions and the circumstances under which they were obtained, that his admissions are unreliable, a claim that the petitioner's trial counsel raised at his criminal trial.
Contrary to the respondent's contention, we believe that a jury readily could conclude that it had never had occurred to Martin, until the state presented the idea to her at the suppression hearing, that the petitioner had slipped out of the house and, while Martin was upstairs getting their son ready for bed, walked to the victim's apartment, sexually assaulted and murdered her, and set her apartment on fire, and then returned home before Martin came downstairs, looking and acting no differently than when she had seen him thirty to forty-five minutes earlier.
We note, in addition, that, in his first habeas petition; see footnote 17 of this opinion; the petitioner alleged ineffective assistance of trial counsel on the basis of their failure to utilize available evidence to raise a third-party culpability defense. In support of this claim, the petitioner presented the testimony of Paulette DeRocco, a Manchester resident, who stated that, on March 9, 1987, the day after the murder, she contacted the police to inform them that, at approximately 8 p.m. the night before, she and her two teenaged children were driving past the victim's apartment complex on their way home when they saw a man running from the complex "like he was being chased by a pack of dogs." DeRocco had to slam on her brakes to avoid hitting him. According to DeRocco, the man was wearing "dark . . . maintenance worker's type clothes" and appeared "disheveled with [his] shirttail partially out." DeRocco told the police that she and her children watched the man running down the street until he disappeared behind a building. DeRocco contacted the police as soon as she heard about the victim's murder because she thought that there might be a connection between the crime and the man she had seen fleeing the immediate vicinity of the crime scene. According to DeRocco, when she and her children arrived home on the night of the victim's murder, "the sirens were going off" in town, and she remembered thinking that it was strange that they would go off right after she had observed someone so suspicious. The description that DeRocco gave of the man she saw running from the victim's apartment complex bore no resemblance to the petitioner. DeRocco testified that the police took her statement and asked her to review photographs of possible suspects, but she was unable to identify anyone. The first habeas court rejected the petitioner's claim concerning his trial counsel's failure to raise a third-party culpability defense on the ground that DeRocco's testimony was insufficient to link the unidentified person to the victim's murder. See Lapointe v. Warden, supra, Superior Court, Docket No. CV-97-0571161. The petitioner did not challenge this determination or any of the first habeas court's other determinations concerning the claims alleged in the first habeas petition on appeal. We express no view with respect to the admissibility of this third-party culpability evidence at a new trial.
The respondent's reliance on such purported facts does not end with King's testimony. For example, the respondent contends that "the jury had evidence, in the form of the results of psychological testing, that the petitioner may have been a person who: was overly sensitive to criticism; reacted to even minor problems with anger and hostility; tended to externalize blame; bore grudges and worked to get even with those he perceived to have wronged him; and exhibited sexual deviation." In support of this contention, the respondent cites the testimony of Anne M. Phillips, one of the psychologists who examined the petitioner following his arrest. See footnote 80 of this opinion. A review of Phillips' testimony, however, reveals that it provides no support for the respondent's assertions. According to Phillips, the test results at issue were the petitioner's raw scores on the Minnesota Multiphasic Personality Inventory (MMPI) test, an examination consisting of 567 true or false questions that she administered to the petitioner following his arrest. Phillips explained that the computer program that scores the test is designed to flag any potential areas of concern, regardless of whether they are applicable to the test taker, and that it is the clinician who ultimately determines their applicability. Phillips explained that the test does not take into account the individual circumstances of the test taker, which bear heavily on how the test results are interpreted by the test administrator. For example, Phillips explained that a patient may score high on the depression scale, but, if the clinician knows that the test taker's mother recently died, the score is interpreted in light of the test taker's grief related to that loss. With respect to the petitioner, Phillips explained that it would be highly unusual for a person, incarcerated for a crime that he says he did not commit and facing a possible death sentence, not to score high on the anger or paranoia scales. As for sexual deviancy, Phillips further explained that there is only one question on the MMPI test that relates to sexuality, and the answer is recorded under a category labeled "Sexual Concern and Deviation." The question is: "I wish I [was] not bothered by thoughts of sex." Because the petitioner answered "true" to this question, sexual concern or deviation was flagged as a potential area of concern. Phillips stated that, on the basis her follow-up discussions with the petitioner, she ruled out any problems relating to sexual deviancy. Indeed, according to Phillips, the Megargee typology section of the MMPI test, "a system developed for classifying incarcerated inmates according to their degree of psychological disturbance, their adjustment to incarceration, their propensity for impulsive and dangerous behavior, and the most appropriate form of incarceration and treatment," classified the petitioner "as . . . Type I. . . . which is . . . considered to be the most stable and most benign of the ten Megargee profiles." Phillips explained that "it's a profile that is an essentially normal one. . . . [I]ndividuals matching [this] . . . profile tend . . . not to be convicted [of] crimes of an impulsively hedonistic nature, and their problems do not appear to stem from difficulties in interpersonal adjustment or from psychopathology. Offenders matching this type tend to have a more `benign' record than other convicted felons. . . . There appears to be no pressing need for psychological treatment and restrictive administrative management. . . . Research supports the view that Type I inmates tend to adjust well to prison and present few disciplinary problems." According to Phillips, prison officials rely on a prisoner's Megargee typology in determining his or her status as an inmate.
"Depending on the specific conditions in the apartment, the oxygen supply, etc., the couch could have burned slowly and/or smoldered between several minutes or several hours, according to Igoe."
First, the majority's position is ironic given that neither party has asked us to modify the scope of our review; put another way, the majority is improperly addressing an unraised issue. See part II of this opinion. Because the parties did not have notice that this court would change its standard of review, it is of no surprise that the respondent has not raised any objection to such a change.
Second, given that the majority has decided to reconsider and change our standard of review, I fail to understand why I am forbidden from looking at our own case law and constitution to address that very issue. In doing so, I am not raising a new issue. Rather, I am merely looking to our own authority, not cited by the parties, that bears on the issue already under consideration by the majority. Although we generally are limited to addressing only the issues raised by the parties, we have never suggested that we are limited to considering only the legal authorities cited by them. Indeed, in considering the scope of our review, the majority itself relies on authorities from other jurisdictions that neither party has cited. It thus appears to me that the majority has mistakenly confused what I am doing with a situation in which a party raises an entirely new claim for relief under our state constitution, something I have not done.
The first example, the clear error test, is a test of legal sufficiency. It is essentially a reasonableness test under which we review the record to make sure that the trier's findings are reasonably supported by the record. See, e.g., TES Franchising, LLC v. Feldman, supra, 286 Conn. at 138, 943 A.2d 406; Ventres v. Goodspeed Airport, LLC, supra, 275 Conn. at 125, 881. A.2d 937. Contrary to the majority's claims, the clear error test does not allow us to substitute our judgment for the trier; nor may we replace the trier's findings with our own. See Kaplan v. Kaplan, supra, 186 Conn. at 391, 441 A.2d 629 (appellate tribunal may not reject finding "merely because the reviewing judges personally disagree with the conclusion or would have found differently had they been sitting as the [fact finder]"); Pandolphe's Auto Parts, Inc. v. Manchester, supra, 181 Conn. at 222, 435 A.2d 24 ("[w]e do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached").
The majority's reference to the preservation test set forth in State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), is equally misguided. Whether a claim has been preserved is a legal question, not a factual one. E.g., State v. Davis, 311 Conn. 468, 477, 88 A.3d 445 (2014). The waiver doctrine that we applied in Kitchens is used to determine whether a party has sufficiently preserved a claim for appellate review. It involves the application of a legal presumption to a given set of facts. Although the application of this doctrine requires us to review the transcripts and pleadings in the record, it does not authorize us to resolve any disputed questions of fact, nor is the appellate tribunal called on to evaluate credibility. Recounting the procedural facts revealed by the record, and determining the legal consequences of those facts, is not fact-finding. See, e.g., Dockter v. Slowik, 91 Conn.App. 448, 459 and n. 7, 881 A.2d 479 (procedural facts from court file are subject to judicial notice), cert. denied, 276 Conn. 919, 888 A.2d 87 (2005); Grant v. Commissioner of Correction, 87 Conn.App. 814, 817, 867 A.2d 145 ("It is well known that appellate courts do not make findings of fact. . . . Appellate courts, however, review the whole record and do not overlook material contained in the trial court's file. . . . We may take judicial notice of the contents of the court's file." [Internal quotation marks omitted.]), cert. denied, 274 Conn. 918, 879 A.2d 895 (2005); see also State v. Ledbetter, 275 Conn. 534, 568, 881 A.2d 290 (2005) (taking judicial notice is not fact-finding), cert. denied, 547 U.S. 1082, 126 S.Ct. 1798, 164 L.Ed.2d 537 (2006). Consequently, unless the record indisputably reveals the conditions necessary to establish waiver, we cannot resolve the ambiguity, and we do not apply the presumption. See State v. Davis, supra, at 479-83, 88 A.3d 445 (declining to apply Kitchens waiver doctrine when record did not clearly establish that counsel was afforded notice of court's intended jury instructions).
My own review demonstrates that, in the Strickland/Brady prejudice context, other jurisdictions apply a deferential standard of review, just as we do, even with respect to new expert testimony. For example, in Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523 (2009), the Pennsylvania Supreme Court expressly concluded that the question of new witness credibility in the Strickland/Brady prejudice context presented an issue of fact for the trial court. See id., at 357, 966 A.2d 523 ("[i]ndeed, one of the primary reasons [postconviction] hearings are held in the first place is so that credibility determinations can be made; otherwise, issues of material fact could be decided on pleadings and affidavits alone"). That court further explained that assessing credibility in this context is "not necessarily the same thing as assessing credibility at a trial . . . but must be made with an eye to the governing standard of a `reasonable probability' that the outcome of the trial could have been different." Id., at 359, 966 A.2d 523. Consequently, "the question is whether the nature and quality of the evidence is such that there is a reasonable probability that the jury would have credited it. . . ." Id., at 361, 966 A.2d 523. Pennsylvania applies the same deference to claims based on new expert testimony. See, e.g., Commonwealth v. Basemore, 560 Pa. 258, 295-96, 744 A.2d 717 (2000) (remanding Strickland case to postconviction court for findings as to credibility of new expert opinions). Cases from other jurisdictions are in accord. See, e.g., Taylor v. State, 62 So.3d 1101, 1115 (Fla.2011) (noting, with respect to Brady claim involving new expert testimony "the postconviction court explicitly determined to be unreliable," that "[the reviewing] court will defer to the factual findings of the postconviction court on this issue as [it] does not substitute its judgment for that of the postconviction court on questions of the credibility of witnesses and the appropriate weight to be given to the evidence"); Green v. State, 975 So.2d 1090, 1107 (Fla.2008) (deferring to trial court's finding with respect to Strickland claim that defendant's new expert testimony was not credible and denying claim on that basis); Sochor v. State, 883 So.2d 766, 781 (Fla.2004) (deferring, in context of Strickland claim, to postconviction court's decision to credit state's expert and not defendant's new expert); Porter v. State, 788 So.2d 917, 923 (Fla.) (postconviction court has duty to assess credibility of new expert witness testimony, and appellate court will defer to this finding), cert. denied, 534 U.S. 1004, 122 S.Ct. 484, 151 L.Ed.2d 397 (2001); People v. Thomas, 364 Ill.App.3d 91, 103, 300 Ill.Dec. 953, 845 N.E.2d 842 (2006) (deferring to finding in context of Brady claim that defendant's new witness testimony was not credible), appeal denied, 224 Ill.2d 590, 312 Ill.Dec. 660, 871 N.E.2d 60 (2007); Howell v. State,___ So.3d ___, Mississippi Supreme Court, Docket No. 2013-CA-01027-SCT, 2014 WL 5035951 (Miss. October 9, 2014) (same); Ferguson v. State, 325 S.W.3d 400, 413 (Mo.App. 2010) ("[w]e must deny [the petitioner's] second Brady claim for a similar reason as we denied his first Brady claim, namely that the motion court made . . . detailed findings that the [new witness testimony] in question was not credible and thus was not a basis for a meritorious Brady claim"); State v. Mau, Wisconsin Court of Appeals, Docket No. 99-0406-CR, 2000 WL 276871 (Wis.App. March 15, 2000) (deferring to trial court's decision, in context of Strickland claim, to credit state's expert and not defendant's expert); see also United States v. Gary, 341 F.3d 829, 833-34 (8th Cir.2003) (deferring to District Court's finding in context of Brady claim that new witness testimony was not credible and therefore not material), cert. denied, 540 U.S. 1139, 124 S.Ct. 1128, 157 L.Ed.2d 949 (2004).
"Q. Could you determine what the level of the heat [from the fire] was?
"A. Yes. Based on the established relationship between the height of the flames and the—even against the wall and the size of the fire, I estimated that the fire never got much more than—well, it was in the order of 250 to 350 kilowatts at its maximum.
"Q. Meaning what?
* * *
"A. It would probably be about the same as an average fireplace fire. It would be pumping a lot of heat into this room, but not so much that you couldn't—you couldn't approach it, for instance, to try to extinguish it, and if you were there at the time—
"Q. At the time it was set?
"A. No. At the time it was—it reached its maximum. . . ."
"Q. What methodology did you follow in conducting this investigation?
"A. The methodology that I followed was that of my experiences for over 3000 fires, determining cause and origin for a number of years, and also my familiarity with some fire textbooks that I have in my library, and, also, I am familiar with [Publication] 921 to a lesser degree. I'm not certified, but [chapter] 4 [of Publication 921] would indicate the same thing in [chapter] 4 as I would have used in that fire.
"Q. What is [Publication] 921?
"A. [Publication] 921 . . . is sort of like a bible for fire investigators through the National [Fire Protection] Association. . . ." (Emphasis added.)
"Q. Did you follow the basic methodology set forth in chapter 4 in conducting this investigation?
"A. No, I did not.
"Q. Why not?
"A. Because I based my investigation—this is a guideline that you're showing me. I base my information on more factual information, such as the photographs, the reports, the [video recording], etc. All of those things gave me a source of avenue to follow to complete my investigation based on those facts."
I also observe that the Appellate Court concluded that the habeas court properly rejected the petitioner's claim of actual innocence, and that the question of whether the petitioner proved his actual innocence claim is not before us in this certified appeal. Lapointe v. Commissioner of Correction, 138 Conn.App. 454, 456, 53 A.3d 257 (2012).
