Opinion
TTDCV01817907S TTDCV124004924STTDCV156009781S TTDCV156009683S
06-21-2016
Ralph Birch v. Warden, State Prison; Shawn Henning v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
Over several days in November and December 2015, the court heard evidence in four, companionized cases involving two inmates, Ralph Birch and Shawn Henning. Each petitioner filed a petition for habeas corpus relief and a petition for a new trial under GS § 52-270. All petitions arise from their convictions, after separate jury trials in 1989, for felony murder pertaining to the death of Everett Carr on December 2, 1985. Birch serves a sentence of fifty-five years imprisonment, and Henning serves fifty years. Both petitioners were sentenced on July 21, 1989, and these convictions were affirmed on direct appeal, State v. Birch, 219 Conn. 743, 594 A.2d 972 (1991), and State v. Henning, 220 Conn. 417, 599 A.2d 1065 (1991).
I
The court first address the habeas corpus petition of Mr. Birch. He previously filed a habeas corpus action in 1992, denominated Birch v. Warden, Superior Court, Tolland J.D., d.n. CV92-1567, (June 25, 1998), Zarella J.; affirmed, per curiam, Birch v. Commissioner, 57 Conn.App. 383, 749 A.2d 648 (2000), cert. denied, 253 Conn. 920, 755 A.2d 213 (2000). Then Judge, now Justice, Zarella denied habeas corpus relief.
The fifth, amended petition in the present case sets forth claims of actual innocence; due process violations under Brady v. Maryland; a due process violation for the unknowing use of false testimony; prosecutorial misconduct; and ineffective assistance rendered by trial counsel and previous habeas counsel. At trial, the petitioner withdrew the count of prosecutorial misconduct during closing argument, and the court dismissed the counts alleging unknowing use of false testimony and ineffective assistance of trial counsel.
A.
The court now deals with the second and third counts which assert claims under or derived from Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, the petitioner alleges in the second count that the prosecution withheld information that Dr. Lee, director of the forensic science laboratory for Connecticut, who testified that he tested a red stain on a towel found in an upstairs bathroom of the Carr residence, the stain tested positive for blood, and Dr. Lee recorded this result in his report when, in actuality, he never tested that particular stain; that Todd Cocchia, a prosecution witness who described Birch's admissions to having participated in the burglary of the victim's home which resulted in the victim's death, had been shown police incident reports before giving any statement to the police; that Tina Yablonski, another prosecution witness, stated during a polygraph session that she, Birch, and, Henning left the apartment in Danbury at 1:00 a.m. on the night of the murder, which time was inconsistent with her trial testimony; that $1,000 in cash was found at the victim's residence, which discovery was noted by state trooper Joseph Quatero; that the victim's daughter, Diana Columbo, stated to police that she saw no signs of a struggle; and that the victim harbored animosity toward Richard Burkhart, a potential suspect. The third count is based on the prosecutor's failure to correct Dr. Lee's erroneous testimony.
A review of the transcripts and evidence pertaining to Mr. Birch show that Judge Zarella appropriately summarized the salient facts that the jury could reasonably have deduced in reaching its verdict:
" On Thanksgiving Day 1985, the petitioner, Tina Yablonski and Shawn Henning visited Douglas Stanley at his apartment in Danbury, Connecticut. After leaving the Stanley residence the petitioner, Yablonski and Henning stole a brown Buick and spent the night sleeping in the car. Late afternoon on the next day the petitioner, Yablonski and Henning decided to drive to New Hampshire to visit the petitioner's mother. While driving in New Hampshire the stolen car became stuck in snow and had to be towed out. During the course of this incident the muffler on the car was damaged. The petitioner removed the muffler and disposed of it in the woods and as a result the car was loud when operated. On Sunday, December 1, 1985, the three individuals visited with the petitioner's mother who gave the petitioner a pair of boots as his feet were wet from the snow. That afternoon the three drove back to Stanley's apartment where they " freebased" cocaine. The petitioner, Yablonski and Henning left at approximately 11:25 p.m. They arrived at Yablonski's house at about midnight. From there the petitioner and Henning went to the New Milford residence of Edward Carr who lived approximately two miles from Yablonski's home. At approximately 12:20 a.m. two of Carr's neighbors heard a car drive past the Carr residence, stop and park. They heard the vehicle as it was very noisy. Approximately twenty to thirty minutes later they heard the car drive away. The car sounded as though it did not have exhaust system. The victim's daughter came home at 4 a.m. to find her father lying in the foyer between the kitchen and the living room in a pool of blood. A video cassette recorder, some change and men's jewelry had been stolen. As a result of the investigation it was determined that two individuals were involved in the crime. Henning and the petitioner arrived at Henning's house in the early morning of December 2, 1985 sometime after 2 a.m. and before 4:20 a.m.
On December 9, 1985, the petitioner was interviewed by the police. During this interview, the police showed the petitioner a photograph of the victim at the scene. The petitioner " stared at the photograph, his whole body spasmed, and he literally almost fell out of the chair." Petitioner's Exhibit 17G at 9. He then stated that he did not kill anybody and after about twenty or thirty seconds passed stated " that is the bathroom there." Petitioner's Exhibit 17G at 9. In making this statement he pointed to an area not shown on the photograph, but in the correct direction of the bathroom. It was not possible from looking at the photograph to know where the bathroom was. When questioned as to how he knew where the bathroom was located, the petitioner grew hostile and the interview was terminated.
In 1987, the petitioner met Todd Cocchia while working at a machine shop in Cheshire correctional center. During 1988, they lived together for approximately two months before they decided to leave Connecticut to go to Virginia. They traveled to Norfolk, Virginia from Danbury, Connecticut on a bus. During the trip the petitioner told Cocchia that " he had killed somebody in a burglary and that he was leaving Connecticut because he was worried about that." The petitioner stayed in Virginia with Cocchia for approximately six weeks and mentioned the murder several times. The petitioner told Cocchia that a knife was involved in the murder.
While incarcerated at Cheshire during the summer of 1987, the petitioner also told Robert Perugini that he was concerned that his release from prison may be held up due to a pending investigation. The petitioner told Perugini that " they were robbing a house and while they were robbing a house an old man surprised them and they killed him." He further told Perugini that the house was in New Milford, that a knife was used in the murder and that the other individual involved was Henning." Birch v. Warden, supra .
There are three components needed to establish a valid Brady violation, LaPointe v. Commissioner, 316 Conn. 225, 225-62, 112 A.3d 1 (2015). The undisclosed evidence must be favorable to the accused it must have been suppressed by the prosecution, wilfully or inadvertently; and " prejudice must have ensued, " Id. " Prejudice" means that the favorable information withheld " could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict, " Id., at 262-63.
1.
The petitioner argues that the presence of $1,000 in cash left at the crime scene undermines the state's theory of the case that the victim's death resulted from the interruption of a burglary in progress and, instead, supports a defense theory that the crime scene was staged to resemble a burglary to conceal the true circumstances and/or motive of the killer. Valuable jewelry and a VCR were missing from the victim's home. Contrary to the petitioner's argument, it strikes the court that a burglar, who is suddenly confronted by a homeowner, who the burglar then kills in a desperate fight, probably ceases the search for valuables in a methodical way. It is unsurprising that certain areas and items may be overlooked through panic and the need to flee quickly.
2.
Also, the jury had before it extensive investigation results and photographic evidence of the crime scene. A review of that evidence discloses that the jury could easily attribute to the victim's daughter an inaccuracy of opinion flowing from intense grief and distraction rather than any intent to mislead.
3.
Regarding the existence of statements by the victim voicing deep dislike of Richard Buckhart, such evidence is not exculpatory, State v. Duntz, 223 Conn. 207, 233, 613 A.2d 224 (1992). Statements of a victim, evincing a particular state of mind about another, fail to constitute relevant evidence of a motive for the alleged perpetrator to kill the victim, Id. Animosity alone is insufficient to make such evidence admissible, Id. That type of evidence of a victim's state of mind can be relevant and admissible where, for example, a defendant injects issues of self-defense or extreme emotional disturbance in the case to show who was the aggressor in a situation where combatants' identities are undisputed, State v. Blades, 225 Conn. 609, 632-35, 626 A.2d 273 (1993). Those issues were absent in the present case.
4.
As to Dr. Lee's testimony, he erroneously testified that he tested a reddish substance on a towel seized from an upstairs bathroom, which test indicated a positive result for blood. That stain was never tested by Dr. Lee or anyone at the crime laboratory before the petitioner's criminal trial. In conjunction with the present habeas action, the towel was tested, and the reddish smear proved negative for blood. The petitioner submits that the prosecution intentionally or negligently failed to rectify this false evidence because state actors knew or ought to have known of its falsity.
Although the principles pertaining to the transgression of failure to correct mistaken testimony are derived from Brady v. Maryland, supra, where a prosecutor knows or ought to know of the error, a habeas petitioner bears a more lenient burden of demonstrating materiality than that which would apply in an inadvertent suppression situation, Adams v. Commissioner, 309 Conn. 359, 371-73, 71 A.3d 512 (2013). But that burden is lightened only as to " false and misleading" evidence and does not arise in every instance of inaccurate testimony. " Where the prosecutor employs perjured testimony (the first paradigm) the conviction must be set aside if there is any reasonable likelihood that false testimony could have affected the judgment of the jury, " Adams v. Commissioner, 128 Conn.App. 389, 397, 17 A.3d 479 (2011) (emphases added); affirmed Adams v. Commissioner, 309 Conn. 359, 71 A.3d 512 (2013). The " first paradigm" refers to the scenario set forth in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), which decision applies to " those cases in which the undisclosed evidence demonstrates that the prosecutor's case includes perjured testimony and that the prosecutor knew, or should have known, of the perjury, " Adams v. Commissioner, 128 Conn.App. 389, 397, 17 A.3d 479, (emphases added).
In the Adams case, the state conceded that its witness had knowingly lied about the absence of a plea agreement which capped the length of his possible sentence. That witness had previously pleaded guilty in his own matter with just such a recommendation and had his sentencing postponed for the purpose of displaying his cooperation at the habeas petitioner's criminal trial. No such evidence exists in the present care that indicates that Dr. Lee committed perjury, that is, that he knowingly gave wrong testimony as to a material fact.
The court's review of the transcripts and evidence in the criminal trials of both Birch and Henning and Birch's previous habeas trial merely demonstrated that Dr. Lee incorrectly stated that he tested the reddish stain on a towel depicted in a photograph. It appears to the court much more likely that Dr. Lee mistakenly, but honestly, believed he tested that item of evidence rather than contrived a false story about having done so. No one testified that the test results were consistent with anyone involved in the case or that it was even human blood, an alternative Dr. Lee explicitly acknowledged. The court concludes Dr. Lee was wrong but not lying under oath.
Therefore, the classic test for materiality to establish a Brady violation appertains, namely " evidence will be deemed material only if there would be a reasonable probability of a different result if the [correct] evidence had been disclosed, " Adams v. Commissioner, 309 Conn. 359, 370, 71 A.3d 512. A reasonable probability need not reach the level of more likely than not, but " is one which undermines confidence in the outcome of the trial, " Id., 370-71.
The petitioner argues that Dr. Lee's miscue allowed the prosecutor to argue, and the jury to infer, that the perpetrators may have attempted to clean themselves before departing the scene. It should be recalled that no forensic evidence was recovered which connected either Birch or Henning, their clothing or possessions, or the stolen Buick to the victim's murder. The prosecutor could have legitimately argued that the petitioners may have concealed the efforts to rid themselves of such evidence elsewhere whether the reddish smear was tested or not.
Because no forensic nexus was produced, the state's case against Birch hinged on the credibility of jailhouse informants, Tina Yablonski, Effie Coates, and other lay witness rather than on Dr. Lee's misstatement. The impact of the victim's neighbors' testimony about being disturbed by a very loud vehicle and the false time line fabricated by Birch and Henning was far more incriminating and in no way diminished by Dr. Lee's error as to whether a reddish smear on a towel in a photograph was or was not tested for blood.
5.
With respect to Todd Cocchia, he testified at the present habeas trial that he fabricated hearing Birch utter incriminating statements. He recollected that he was able to recite factually correct information about the homicide, that was not widely known, as coming from Birch because the police had supplied such information to him by allowing him to review police reports before Cocchia made his first statement containing such damning disclosures by Birch. On this point, the court finds Cocchia's habeas testimony unworthy of belief. Cocchia is a self-acknowledged perjurer, whose own mother testified that he should not be believed. His testimony was sketchy about what transpired so long ago. Neither the petitioner nor the respondent called upon the police officers, who interviewed Cocchia, to testify on this issue.
However, Cocchia's original interview with law enforcement officers was tape recorded. Apparently, that tape recording went missing for a time until Judge Zarella ordered a diligent search for it during Birch's first habeas proceeding. The recording was found and submitted into evidence before Judge Zarella. That eminent jurist had occasion to make following finding. On the specific issue of whether Birch's criminal defense counsel, Attorney Alfred Mencuccini, " failed to demonstrate that Cocchia's statement was a product of leading questions by the police interrogators, " Birch v. Warden, supra . " The key elements contained in the statement were each volunteered by Cocchia without any prompting by the police, " Id. " After a full review of the statement, the court finds that [Attorney Mencuccini] had little or no opportunity to attack this statement at trial on the basis that Cocchia had been asked leading questions aimed at prompting specific replies, " Id. " The cross examination of Cocchia was thorough and competent, " Id.
This court concurs in that assessment and finds that the petitioner has failed to prove, by a preponderance of the evidence, that the police interviewers who originally spoke with Cocchia coached and planted in his knowledge facts concerning the circumstances of the victim's murder that Cocchia related to them and at the petitioner's criminal. Consequently, there was no exculpatory evidence suppressed by the government regarding Cocchia's testimony.
6.
In conclusion, as to counts two and three of the amended petition, the court finds that none of the specifications identified by the petitioner as forming violations of his due process rights cast " the whole case in such a different light as to undermine confidence in the verdict, " LaPointe v. Commissioner, supra .
B.
The seventh count of the amended petition alleges that previous habeas counsel, Attorney Avery Chapman, provided ineffective assistance for failing to raise the additional claims that the petitioner now raises in this second habeas action. Specifically, the petitioner asserts that Attorney Chapman acted deficiently by failing to raise the Brady claims and false evidence claims discussed regarding the second and third counts and for failing to pursue ineffective assistance allegations against Attorney Mencuccini. Those specification of ineffectiveness, as set forth in the petitioner's posttrial briefs, are for the failure to consult with a footwear imprint expert, a pathologist, or criminologist; the failure to investigate third-party culpability evidence pointing to Diana Columbo or Richard Burkhart as the perpetrator; and the failure to investigate and impeach Cocchia, Perugini, Yablonski, and Coates adequately.
In Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), our Supreme Court recognized a purely statutory right to raise, in a second habeas action, a claim of ineffective assistance on the part of previous habeas counsel in presenting claims of ineffective assistance of trial counsel, Id., 835. However, the petitioner's burden becomes a two-tiered application of the Strickland standard by which allegations of ineffective assistance claims are gauged, Id., 842. " To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective, " Id., (emphasis added). Also, the petitioner must prove that, but for the derelictions of habeas counsel, he was prejudiced in the sense that the outcome of the first habeas case was suspect, and that burden demands proof of the existence of a reasonable likelihood that the outcome of the original, criminal trial would have been different, Id., 842-43. The Supreme Court described this double-layered obligation as " a herculean task, " Id., 843.
Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761, 603 A.2d 768 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra . This standard of reasonableness is measured by ordinarily competent practices. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation. Id.
If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel's competence. Pelletier v. Warden, 32 Conn.App. 38, 46, 627 A.2d 1363 (1993). In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove, by a preponderance of the evidence, that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985). Reasonable probability means a probability sufficient to undermine confidence in the verdict. DaEira v. Commissioner, 107 Conn.App. 539, 542-43, 946 A.2d 249 (2008), cert. denied, 289 Conn. 911, 957 A.2d 877 (2008); that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt. Id. Thus, the failure of the petitioner to establish, by a preponderance of the evidence, either the allegations against trial counsel or habeas or the requisite prejudice as to both the first habeas case and the criminal trial will defeat a claim for habeas corpus relief in the present action.
No party called Attorney Chapman as a witness at the second habeas trial. Also, the petitioner never presented the testimony of a criminal defense or habeas litigation expert regarding whether Attorney Chapman's habeas representation in 1997 or 1998 fell below prevailing professional standards for that time period.
Because the court has already determined that the due process violation claims in the second and third counts are unproven, the petitioner cannot prevail on his assertions that Attorney Chapman ought to have pressed such claims. As a result, the petitioner must prove, by a preponderance of the evidence that Attorney Chapman's representation obligated him to investigate and present the putative ineffective assistance allegation on the part of Attorney Mencuccini, trial counsel in the petitioner's criminal case.
Third-Party Culpability
1.
As outlined above in section I.A.3 of this memorandum, evidence of animosity by the victim toward Burkhart would be inadmissible as irrelevant to prove that Burkhart played a role in the victim's death. Also, evidence that Burkhart offered to assist the victim's daughter in cleaning her home after the incident, that he had a short temper, and that he took great umbrage at police efforts to interview him are equally irrelevant toward that end. The admissibility of third-party culpability is governed by relevancy considerations, State v. Wright, 149 Conn.App. 758, 768, 89 A.3d 458 (2014).
" It is well established that a defendant has a right to introduce evidence that another person committed the offense with which the defendant charged, " State v. Francis, 267 Conn. 162, 173, 836 A.2d 1191 (2003). However, such " evidence is admissible if it directly connects a third party to the crime, " Id., 174, (emphasis in original); citing State v. Echols, 203 Conn. 385, 392, 524 A.2d 1143 (1987). Neither mere motive to commit a crime nor " bare suspicion" is sufficient to admit this kind of evidence, Id. Tenuous proof of third-party guilt in an attempt to divert blame from accused is inadmissable, State v. Cerreta, 260 Conn. 251, 262, 796 A.2d 1176 (2002).
The court finds that the flimsy evidence proffered to connect Burkhart to the crime amounts to no more than innuendo and bare suspicion. No evidence " directly" links him to the stabbing and slashing of the victim. Therefore, Attorney Menuccini was well within the bounds of good advocacy in not pursuing the introduction of such ephemeral and inadmissible evidence. This, in turn, means that Attorney Chapman provided appropriate habeas representation in not pursuing that allegation of unprofessional conduct.
2.
The petitioner also contends that Attorney Chapman was derelict in failing to allege and prove that Attorney Menuccini should have presented evidence regarding a third-party guilt theory with respect to the victim's daughter, Diana Columbo. Of course pointing an accusatory finger at a family member of the victim exposes a defendant to the risk of antagonizing jurors who might, quite naturally, experience some sympathy for a grief stricken daughter who discovered her father's lifeless and bloody corpse.
The jury was enlightened regarding Columbo's lies about when she arrived home and, her speculation that he may have hemorrhaged rather than died by foul means. The jurors also learned that Columbo denied exclaiming to the dispatcher, " Oh, my God, he has a knife!" They acquired this information because Attorney Menuccini called the dispatcher, Donna Dacey, as a defense witness. Dacey described the caller as hysterical and nonsensical.
During the trial, it was also brought out that no neighbors heard the family's dogs barking during the struggle in which the victim was brutally murdered; that the murder weapon was likely a knife from a set of knives belonging to the Carr household; and that no forensic evidence connected Birch and Henning to the victim or the residence. Thus, the jury had before it all the evidence that would have thrown suspicion on Columbo, if the jurors were inclined to that view, without the need for Attorney Mencuccini to be the one casting that stone. This allowed the jurors to mull over reasonable doubt raised by Columbo's actions without incurring their ire if they concluded otherwise about her involvement.
After considering all the evidence, including that available to Attorney Menuccini, and derivatively, Attorney Chapman, by reviewing Henning's trial evidence, which trial preceded the trial of Birch, this court finds that appearing neutral as to whether Columbo slit her father's throat, enhanced rather than diminished Birch's chances for an acquittal. Therefore, the petitioner has failed to meet his burden of proving, by a preponderance of the evidence, either prong of the Strickland standard in impugning the performance of either Attorney Chapman or Attorney Mencuccini with respect to this specification of ineffective assistance by habeas counsel.
Failure to Impeach Witnesses
The petitioner also submits that Attorney Menuccini improperly investigated and impeached certain prosecution witness inadequately. As related above, Perugini and Cocchia testified at his criminal trial they were jailhouse acquaintances of the petitioner to whom he confided that he had participated in a burglary in which an old man was stabbed to death. That trial evidence also disclosed that Tina Yablonski was Mr. Henning's girlfriend and the third member of the group that rode around in a stolen Buick, spent some of the Thanksgiving weekend in New Hampshire, and ingested cocaine at the Stanley apartment in Danbury earlier in the evening of the homicide. Effie Coates was Stanley's spouse, and her return around 10:30 p.m. on December 1, 1985, precipitated the trio's departure from her residence between 10:30 and 11:30 p.m. that evening.
The court has carefully reviewed the transcripts of the criminal trials of both Birch and Henning, because all this information was available to Attorney Mencuccini, and Birch's previous habeas trial presented by Attorney Chapman. Attorney Mencuccini's cross examination of all of the above-referenced witnesses appears to this court to have been well-prepared, thorough, and masterfully executed.
As mentioned earlier, for whatever reasons, neither the petitioner nor the respondent chose to call Attorney Chapman as a witness. Attorney Swaine, a criminal defense litigation expert witness, confined his criticisms to the performance of other counsel and not as to Attorney Mencuccini's handling of the issues surrounding the testimony of these four witnesses. When evaluating the deficient performance prong of the Strickland standard, " a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, " Smith v. Commissioner, 148 Conn.App. 517, 524-25, 85 A.3d 1199 (2014), (emphasis added).
" The petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy, " Id. This strong presumption is rebuttable, but it is the habeas petitioner's burden to proffer " adequate proof of sufficient facts indicating a less than competent performance by counsel, " Id.
The rigorous presumption that Attorney Chapman's selection of habeas issues was a product of tactical consideration is bolstered by the court's scrutiny of the amended petition filed in the previous habeas action as well as comments by the first habeas judge. Judge Zarella remarked:
" The amended petition, which was filed by previous habeas counsel, contained forty-three claims of alleged instances of ineffective assistance of counsel. Amended Petition, January 31, 1997. Present habeas counsel, in a more reasoned approach, focused both his court presentation and his memorandum of law on seven specific areas and at the conclusion of the hearing asked that the court consider those claims as well as the claims raised in the petitioner's pro se pretrial brief filed on December 4, 1997." Birch v. Warden, supra, (emphases added).
Clearly, Attorney Chapman consciously sifted through the spate of potential claims of ineffective assistance and put forward those which he believed most worthy. This court takes judicial notice of the pleadings in that previous habeas file, Birch v. Warden, d.n. CV92-0001567, . An amended petition, dated January 31, 1997, alleged that " Attorney Menuccini did not adequately cross examine state's witnesses, " paragraphs 12 and 21. The seven grounds for habeas corpus relief that Attorney Chapman did pursue, " in a more reasoned approach, " prompted the earlier habeas court to conclude " trial counsel did properly investigate and understand the significance of what was uncovered" with respect to the expected testimony of Yablonski and Cocchia, Id. Judge Zarella reviewed the recording of Cocchia's encounter with police interrogators and determined that there was " no evidence that the police planted the answers to their questions in the mind of Cocchia, " Id. " The court finds that trial counsel had little or no opportunity to attack [Cocchia's] statement at trial . . ." Id. " In fact, [Attonery Mencuccini] did bring to the jury's attention many inconsistencies between what the petitioner allegedly told Cocchia and the actual evidence of the crime, " Id. " [Attorney Mencuccini] focused his attention during his cross examination on the 'deal' that was struck in return for Cocchia's testimony, " Id. " The cross examination of Cocchia was thorough and competent, " Id.
Also, Judge Zarella noted that Yablonski admitted during her cross examination by Attorney Mencuccini that she engaged in " about four days worth of lies." The habeas court found " it is likely that the jury would not have placed much value on the impeachment of Yablonski in light of the explanation that she had already given on direct examination, " Id.
Judge Zarella also concluded that " Coates had no apparent reason to lie and her explanation to the jury as to why she had such a clear recollection of the time frames involved was credible, " Id.
This court's own scrutiny of the criminal trial and earlier habeas proceedings fully concurs with Judge Zarella's comments. In the absence of sufficient evidence to the contrary, the court must recognize the strong presumption that Attorney Chapman provided competent habeas representation when choosing which grounds to pursue and how to present them properly. The court determines that the petitioner has failed to meet his burden of proving, by a preponderance of the evidence, that Attorney Chapman's representation was substandard with respect to investigation and impeachment of the state's witnesses.
Failure to Consult Experts
The court next addresses the petitioner's allegation that Attorney Menuccini was professionally obligated to consult with a pathologist, criminologist, and/or footwear imprint expert in order to defend the petitioner properly. As to this issue, it must be reiterated that no forensic evidence implicated Birch or Henning in the burglary or killing of the victim.
The gravamen of the petitioner's complaint on this specification of ineffective assistance with respect to the failure to retain a pathologist or criminologist for the defense is that such expertise may have been useful to refute the prosecutor's evidence and arguments as to why inculpatory, forensic evidence was absent . The apparel, footwear, the petitioner's residences, crime scene, and the stolen Buick were extensively searched and analyzed by law enforcement personnel and the state laboratory. No fingerprints, blood specimens, hair specimens, or possessions attributable to either Birch or Henning were discovered at the Carr home. No bodily fluids or hair or possessions of the victim were discovered among or on the possessions or persons of Birch or Henning.
The state's case against the petitioner rested on the racket generated by the muffler-less Buick which Birch and/or Henning admittedly occupied around the time of the murder; the false time line constructed and recounted by the petitioner, Henning, and Yablonski, by mutual agreement, concerning departure from Danbury to New Milford; the degree of effort expended to prevent discovery of the Buick; and the incriminating statements that the petitioner uttered to prison confidants. Expert opinion evidence from Dr. Lee and others to explain away the dearth of forensic evidence pointing toward the petitioner's guilt appears to have been " window dressing" at best.
Little beneficial effect for the petitioner would likely have emanated from a defense pathologist or criminologist whose opinions recreated a homicide in which no forensic evidence implicated either Birch and Henning. The jury's guilty verdict surely resulted from the persuasive force of the nonforensic evidence listed above rather than having hinged on the state's explanation for the absence of such forensic evidence despite the repeated stabbing of the victim during a violent struggle between him and his assailant. Neither the recovery of the stolen Buick nor the seizure of the petitioner and his possessions came so close in time to the murder so as to eliminate from a reasonable juror's minds the feasibility that such trace evidence was cleansed away or discarded. The damning circumstances came from the raucous Buick, the fabricated chronology, and the petitioner's own words.
2.
Although, no footwear connected to Birch or Henning matched the bloody imprints found at the Carr residence, a different analysis pertains to Attorney Menuccini's failure to retain an expert in this field of forensic inquiry. That is because Attorney Chapman did, indeed, assert such a deficiency against Attorney Menuccini in the previous habeas case.
As mentioned above, Mr. Henning's criminal trial in 1989 preceded Mr. Birch's trial. In Henning's criminal case, the state presented the testimony of Kenneth Zercie, a lead criminologist for the state laboratory, whose areas of expertise include footwear imprints and impressions. He related that none of the footwear seized from Birch or Henning created the patterns left as bloody imprints at the victim's residence. Those imprints were made by two, distinct types of soles. One pattern was wavy and zigzag, and the other had a star and lug design.
Zercie further opined that it is " extremely difficult to determine exact shoe size from bloody imprints." Only a range of possible sizes is discernible with reasonable confidence. The state declined to call Zercie as a witness at the petitioner's criminal trial which followed some months later.
Obviously, expert footwear analysts were available at the time of the petitioner's trial in 1989. From 1973 to 1997, William Bodziak was a special agent for the FBI who specialized, among other areas, in footwear imprint analysis. He testified at the present habeas trial, and he is a well-trained, extensively experienced, and highly qualified expert in this field of criminology. He has testified in nearly every state and federal trial court in the United States, including at the trials of O.J. Simpson and the Oklahoma City bomber.
Agent Bodziak recollected that, in the 1980s, there were no compendia of footwear imprint samples to which forensic researcher could refer in order to identify brand or size of footwear. He also related, however, that the methodology employed today to identify the source of footwear imprints is the same as that used at the time when the petitioner's criminal case was pending. He also stated that, in his experience, state forensic laboratories in the 1980s seldom attempted footwear imprint comparisons and, instead, referred such examinations to other laboratories such as the one operated by the FBI.
Bodziak compared the bloody footwear imprints found at the Carr house with the footwear taken from the petitioner and Henning and with samples procured from the dominant manufacturer of rubber soles and heels utilized by virtually all boot companies in the United States for many years. He was unable to determine the maker or size of the zigzag imprints. He did opine that the boot that left the lug and star imprints at the crime scene most likely was left by footwear of men's size nine or smaller.
Bodziak also measured the shoe size of Birch and Henning. The petitioner's shoe size is ten and one-half to eleven, and Henning's size eleven and one-half. The footwear taken from them by the police matched these dimensions.
In the previous habeas case, Attorny Chapman alleged that Attorney Menuccini failed to retain the services of a footwear expert " to examine the size of the footprints to determine whether the size matched the petitioner's or [Henning's] foot size, " Birch v. Warden, supra . Judge Zarella rejected this claim because " the petitioner did not present any evidence at the habeas hearing as to what conclusions an expert would draw if one had been retained by [Attorney Menuccini]." Id.
The petitioner now argues that had Attorney Chapman produced an expert witness, such as Agent Bodziak, there exists a reasonable likelihood that the petitioner would have prevailed on this specification of ineffective assistance. The court concludes otherwise.
Attorney Mencuccini testified at the previous habeas trial. He explained that he purposely chose not to seek the opinion of a footwear imprint specialist because the state called no expert to connect the petitioner to the imprints or as to brand or shoe size. All the imprints produced in evidence at the petitioner's criminal trial excluded every item of footwear seized from Birch and Henning. Thus, Attorney Menuccini could argue that the lack of such evidence by the state linking the petitioner to scene of the killing ought to engender reasonable doubt about the petitioner's presence without the need to supply that evidence as part of the defense case.
Attorney Menuccini recollected that he feared that, if he hired such experts, he had little to gain and everything to lose if that independent examination revealed that the bloody imprints came from a boot which fell within the size range that encompassed the petitioner's size. In 1989, Practice Book § 769(2) allowed the prosecutor to require a criminal defendant to disclose the existence of and permit inspection of any document within the control of the defense " which is a report or statement as to a physical . . . or scientific test or experiment made in connection with the particular case prepared by, and relating to the anticipated testimony of a person whom the defendant intends to call as a witness."
The petitioner was impoverished, and Attorney Mencuccini as appointed counsel, would have to have solicited approval from the public defender's office for such an expenditure. The state's expert, Zercie, had already opined at Henning's trial that deducing shoe size from the bloody imprint was a very difficult and inexact process that was unlikely to produce usable results. " Counsel need not track down each and every lead or personally investigate every evidentiary possibility, " Crawford v. Commissioner, 285 Conn. 585, 599, 940 A.2d 789 (2008). " One cannot successfully attack, with the advantage of hindsight, a trial counsel's trial choices and strategies that otherwise constitutionally comport with the standard of competence, " Id.
Had the defense intended to present evidence comparable to that supplied by Agent Bodziak, the prosecution would have been entitled to discovery by virtue of Practice Book § 769(2). This would have created the occasion for the state to call its own expert, such as Zercie, to refute the capacity to estimate shoe size. Also, as a practical matter, Agent Bodziak agreed with Zercie's opinion that the bloody imprints with the zigzag design were useless to gauge shoe size. That is, the footwear imprint testimony would not have eliminated the petitioner as the source of those imprints.
As recounted above, defense counsel is strongly presumed to have made all significant decisions in the exercise of reasonable, professional judgment, Smith v. Commissioner, supra, 524. The mere existence of favorable expert testimony, twenty-seven years after a trial, fails to denigrate Attorney Menuccini's considered choice to rely on the total absence of physical evidence linking his client to the crime scene and crime. As Judge Zarella found, " at the criminal trial, counsel adequately brought out on cross examination that none of the footprints were tied to the petitioner, " Birch v. Warden, supra .
A tactical decision to refrain from presenting a potential witness which falls within acceptable, professional norms is not ineffective assistance, Stephen S. v. Commissioner, 134 Conn.App. 801, 820-21, 40 A.3d 796 (2012). The court rules that the petitioner has failed to meet his burden of proving, by a preponderance of the evidence, that Attorney Chapman assisted him ineffectively at his previous habeas trial because he has failed to prove the deficient performance component of the Strickland test with respect to Attorney Menuccini's decision to proceed without consulting a footwear imprint specialist.
Consequently, the petitioner has failed to satisfy the Strickland-Lozada standard as to any of the allegations of the seventh count of the amended petition claiming ineffective assistance on the part of Attorney Chapman.
C.
The court will elucidate its decision with respect to Mr. Birch's actual innocence claim, as set forth in the first count of the amended petition for habeas corpus relief, following its joint discussion of the issues pertaining to the petitions for a new trial filed by both Birch and Henning.
II
Mr. Henning has also petitioned for habeas corpus relief, and that amended petition similarly asserts claims of actual innocence; prosecutorial misconduct under Brady v. Maryland, supra; the failure to correct erroneous evidence; the unknowing use of false evidence, improper argument; ineffective assistance of criminal defense counsel; and ineffective assistance of habeas counsel. The court has earlier dismissed the unknowing use of false evidence claim and the ineffective assistance claim directed at defense counsel. The petitioner withdrew his claim of prosecutorial misconduct based on improper argument.
A.
The court first addresses the Brady violation allegations and failure to correct claim set forth in the second and third counts of the operative amended petition. Although several instances of suppressed, exculpatory evidence are specified in these counts, the petitioner's posttrial brief only discussed " two pieces of exculpatory evidence, " namely, the $1,000 in cash untaken by the putative burglars and information written in a notebook by Detective Joseph Quatero referencing the $1,000, the comment by Diana Columbo regarding the lack of signs of struggle, and the utterances by the victim expressing dislike for Burkhart. The court will do likewise. Also, the failure to correct includes the same contention raised by Birch regarding Dr. Lee's testimony about testing the reddish smear on a towel.
With respect to these allegations, the court incorporates by reference its findings and rulings as propounded in sections II.A.1.; II.A.2.; II.A.3; and II.A.4 of this memorandum. Therefore, the court again determines that none of the purportedly suppressed and uncorrected evidence identified by Henning puts his " whole [criminal] case in such a different light as to undermine confidence in the verdict, " LaPointe v. Commissioner, supra .
B.
In the seventh count of his amended petition, the petitioner contends that his previous habeas counsel, Attorney Michael Merati, now deceased, rendered ineffective assistance by allowing that habeas case, which attacked the performance of the petitioner's criminal defense counsel, Attorney Carl Eisenman, to be dismissed with prejudice. The previous habeas action was denominated Henning v. Warden, d.n. CV05-400820. After reviewing the evidence, this court makes the following findings of fact and rulings of law.
The trial of Mr. Henning's previous habeas case was scheduled to begin on January 5, 2004, and Judge Gary White was the habeas judge. At that time, Henning was serving his Connecticut sentence, for the felony murder of Everett Carr, in a prison in Virginia.
Counsel for the respondent warden, Assistant State's Attorney Angela Macchiarulo, reported to Judge White that Mr. Henning refused to be transported to Connecticut for his habeas case. The following discussion occurred:
Judge White: " Counsel, is it true that your client refused to come here?
Attorney Merati: " Yes."
Judge White: " He didn't want to pursue the matter?"
Attorney Merati: " Well, he has informed me that he does not intend to come to testify or participate in the action."
In response to the respondent's oral motion to dismiss, the habeas court ruled:
" All right. Grant the motion to dismiss. It appears from representations made by counsel for both the respondent and the petitioner that the petitioner is not interested in pursuing the matter. He had an opportunity to be transported here to Connecticut to follow through on the petition, refused to be brought here, and, apparently, has no interest in pursuing that. The petition's dismissed."
Judge White confirmed that the dismissal was with prejudice.
In the present habeas action, Mr. Henning testified that the late Attorney Merati led him to believe that he could refile his claims of ineffective assistance pertaining to Attorney Eisenman at a later time. In short, the court finds the petitioner's testimony on this point lacks credence. The petitioner never appealed the dismissal with prejudice. The court discerns no possible motivation for Attorney Merati to mischaracterize the petitioner's position about refusing to appear and participate in his own case with respect to allegation of ineffective assistance by Attorney Eisenman. On the other hand, the petitioner knew that his habeas attorney was attempting to secure DNA testing for purposes of an actual innocence claim in the future, the viability of which would be unaffected by the dismissal of ineffective assistance claim. The petitioner neither appealed the dismissal nor asserted any misrepresentation or misunderstanding as to the dismissal with prejudice for the eight years between the dismissal and the filing of the present habeas action.
Therefore, the court denies the claims of ineffective assistance pertaining to Attorney Merati in the seventh count for failing to prevent the dismissal with prejudice of the earlier habeas case in which the petitioner refused to cooperate and pursue the case when it was reached for trial. Attorney Swaine testified at the present habeas trial that Attorney Merati's concession that the petitioner's ineffective assistance claims were " weak" comprised ineffective assistance by Attorney Merati. However, Attorney Merati's characterization of that claim was an irrelevant aside to the fact that the petitioner refused to pursue the habeas case. Judge White's dismissal with prejudice was based on the petitioner's lack of interest on the date trial was to commence rather than the strength or weakness of the petitioner's case had he chosen to pursue it.
C.
As with Mr. Birch's actual innocence count, the court will rule on that claim following its discussion and rulings on the petitions for new trials.
III
Because the allegations and the evidence adduced at the joint trial of the petitions for new trials filed by Mr. Birch and Mr. Henning are the same, the court adjudicates those petitions in this single section. The petitions are designated Birch v. State, d.n. CV15-6009781, and Henning v. State, d.n. CV15-600-9683.
General Statutes § 52-270 authorizes the granting of a new trial for any action based on " the discovery of new evidence, " among other grounds. A three-year limitation period to initiate such a petition is contained in GS § 52-582, " except that a petition based on DNA . . . evidence that was not discoverable or available at the time of the original trial may be brought at any time after the discovery or availability of such new evidence." The petitioners began their petitions twenty-six years after the original, criminal trials based on DNA evidence that was indisputably unobtainable in 1989 and earlier.
In order to prevail in a petition for a new trial the criteria that a petitioner must satisfy, by a preponderance of the evidence, are collectively referred to as the Asherman standard, having been delineated in the case of Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987).
Under the Asherman standard, a court is justified in granting a petition for a new trial when the petitioner demonstrates that the evidence offered in support thereof: (1) is newly discovered such that it could not have been discovered previously despite the exercise of due diligence; (2) would be material to the issues on a new trial; (3) is not cumulative; and (4) is likely to produce a different result in the event of a new trial, Skakel v. State, 295 Conn.447, 466-67, 991 A.2d 414 (2010).
This strict standard is meant to effectuate the underlying equitable principle that once a judgment is rendered it is to be considered final and should not be disturbed by posttrial motions except for a compelling reason. Id.
The Asherman standard was further explicated in Shabazz v. State, 259 Conn. 811, 792 A.2d 797 (2002). In that decision, our Supreme Court held that the trial court, tasked with considering a petition for a new trial, must engage " in a credibility assessment of the newly discovered evidence offered." Id., 812-13. This credibility analysis is necessary to determine whether the new evidence " offered in support of a petition is likely to produce a different result on retrial." Id., 822. Such a determination resides in the sound discretion of the trial court. Id., 822-23.
In this case the petitioners have introduced DNA results with profiles attributable to the victim and an unknown female. The DNA was obtained from a cigar box, located in an upstairs bedroom of the Carr residence, upon which a smear of blood was visible; the waistband of the victim's underwear; and a piece of floorboard stained with blood. The waistband was examined on the theory the killer may have attempted to drag the victim by pulling on that garment. The DNA results disclosed no profile matches for Diana Columbo nor for the petitioners. Apparently, no comparison of the DNA profile for the victim's wife or the cleaning lady who regularly worked at the home was performed, if possible.
The court determines that the first three Asherman criteria have been established by the petitioners. The DNA retrieval and testing techniques produced the outcomes that the petitioners contend entitle them to new trial, and those methods were insufficiently developed and unavailable during the period from 1985 to 1989. The precision with which DNA profile comparisons can identify persons who may have handled or been in close proximity to items pertinent to a criminal investigation is far superior to that produced by more primitive forensic techniques of identification. For that reason, such DNA evidence cannot be regarded as merely cumulative of information garnered using the older technology. The DNA results in the present case potentially related to material fact, namely who may have been present at the crime scene at the pertinent time.
The next question for the court to decide is whether the fourth criterion of the Asherman standard has been fulfilled by the petitioners. Again, that component involves assessing the likelihood of a different outcome in light of the newly obtained DNA results. That assessment is accomplished by combining the evidence admitted at the criminal trial of each petitioner, individually, with the DNA testing evidence to see if that combination would likely produce an acquittal at a new trial, Skakel v. State, supra, 467-68. " 'By a different result' we mean that the new evidence would be likely to result in acquittal of the petitioner, not merely that it might cause one or more jurors to have a reasonable doubt about the petitioner's guilty, " Id., (emphases added). The trial judge must be persuaded, by a preponderance of the evidence, " that a jury would find him not guilty, " Id.
The appellate level cases prescribe a combination of the newly discovered or available DNA evidence with that presented originally in order to evaluate the probability of a different outcome, see Adams v. State, 259 Conn. 831, 838, 792 A.2d 809 (2002); Shabazz v. State, supra, 822-23, Asherman v. State, supra, 434; Jones v. State, 165 Conn.App. 576, 140 A.3d 238 (2016). " We are not persuaded that the newly discovered DNA evidence excluding the petitioner as the source of the hairs found in the victim's vehicle . . . considered in the context of all the evidence presented at the [criminal] trial . . . would be likely to result in acquittal, " Id.
The peculiar circumstances of the present case pose a question that, to the court's knowledge, has never been distinctly answered by our appellate courts. What newly discovered evidence does the trial court combine with the original trial evidence when some of the new material is barred by the three-year constraint of 52-582 while the new DNA evidence is exempt from the bar? Does the trial court confine its consideration to the additive effect of the DNA evidence alone and ignore other newly discovered, non-DNA evidence or does the non-DNA, newly discovered material ride the coattails of the DNA evidence despite the three-year limit?
Another way of framing the issue is whether the perspective of the trial court in determining whether a different outcome would ensue is purely retrospective or prospective. If the endeavor is retrospective then only the new DNA evidence can be combined with the original evidence to evaluate outcome. However, if the court's mission is to predict what probably would be introduced into evidence if a new trial were to occur, then any evidence admissible at that new trial ought to be considered despite the circumstance that the new, non-DNA could not act as the ground for granting the petition because of the three-year limitation of § 52-582.
This quandary is strikingly framed by the circumstances arising in the present case. For example, in addition to the DNA results, the petitioners also presented new evidence from a footwear imprint specialist. As recounted earlier, that specialist, William Bodziak, opined that one set of bloody imprints was left by footwear of shoe size nine or less while Birch and Henning possess shoe sizes of ten and one-half to eleven and eleven and one-half, respectively. Also, as noted above, Todd Cocchia recanted his testimony at Birch's criminal trial that Birch told him of his involvement in Carr's death, and other witnesses testified that in years following Birch's trial, Robert Perugini lamented lying about similar statements by Birch. Henning's childhood friend, Timothy Saadloff testified through video recording that he believed he was acting to his friend's benefit by falsely testifying at Henning's criminal trial that Henning admitted being at the Carr residence at the time of the burglary/homicide.
Most significantly, perhaps, was the new deposition testimony of John Andrews, Diana Columbo's former boyfriend. He avowed that he began a romance with Columbo in 1988 and lived with her in Connecticut during the petitioner's criminal trials in 1989. He attended those trials on occasion. A few months later, in 1990, his relationship with Columbo weakened and eventually collapsed with an altercation in which Columbo brandished a knife and threatened to kill Andrews as she had her father. Andrews decided to sever his ties to Columbo and move back to Florida. As he gathered his belongings stored in the basement of the Columbo residence, he espied a knife blade partially hidden behind a finished wall of that basement. The blade had no handle. Andrew left Connecticut without informing anyone of Columbo's threat or his discovery of a knife blade. He first discussed these topics with investigators from the Connecticut Innocence Project in 2008.
Both interpretations of the consequences of the three-year time limit exception for new DNA evidence with respect to use of newly discovered non-DNA have meritorious features. As recited above, finality is a very important principle without which a criminal justice system becomes an ineffectual quagmire and mockery of justice. Also, a court cannot override a constitutionally enacted statute of limitation without violating the separation of powers which lies at the core of our state and federal constitutions. Additionally, inmates have other avenues of legal recourse, such as claim of actual innocence through habeas corpus jurisdiction. The petitioners have also utilized that route in the first count of their habeas corpus petitions which the court will address later on in this memorandum.
There are also practical difficulties attendant to allowing new non-DNA evidence to piggy back DNA evidence in avoidance of the three-year barrier set forth in § 52-582. How strong are the coattails? If the new DNA evidence, standing alone, would be insufficient to satisfy the fourth requirement of the Asherman standard can the new, non-DNA evidence carry the load? If so, that would seem to displace consideration of the third criterion of Asherman, viz, materiality, from the new DNA evidence to the new non-DNA. That is, the weak DNA evidence becomes a pretext to sidestep the time strictures of § 52-582.
On the other side of the scales, if the new, non-DNA evidence would appear before the factfinder at a new trial, why would the court that is trying to assess probability of success ignore such evidence? Also, the new, non-DNA evidence may assist the trial court by placing the DNA evidence in clear context. Allowing the consideration of all such evidence might avoid piecemeal, posttrial litigation where multiple new trial actions are filed before and after the three-year time period, possibly resulting in multiple, new criminal trials.
Given the lengthy passage of time since the original convictions in 1989 and the fact that all claims of newly discovered exculpatory evidence were extensively litigated in this case, the court will analyze the different-outcome component of the Asherman criteria under both paradigms.
DNA Evidence
The court finds the newly acquired DNA evidence rather uninformative as to the identity of the victim's killer. The DNA profiling specialists that testified all agreed that the absence of a DNA profile match in this case may have simply resulted from decomposition during the time between deposit and testing, if DNA was transferred to the items tested to begin with; or that no DNA was transferred to the object despite being handled by someone; or that the specimens tested failed to capture DNA even though such trace evidence was deposited somewhere else on the objects from which the specimens were obtained. This was not a case where the absence of a DNA profile derived from the item tested compels inference of innocence, such as would be the situation where semen was recovered from a rape victim who had only had intercourse with the rapist.
The fact that an unknown female's DNA was on the cigar box, the victim's underwear, and a piece of floor board fails to exonerate the petitioners. As mentioned earlier, no DNA samples from the victim's wife or the cleaning woman who regularly worked at and sometimes stayed at the residence were tested. Neither woman was at the home in the days close to the night of the murder.
Also, expert testimony disclosed that there is no way to distinguish whether the female DNA discerned by profile testing came from blood, other bodily fluids, or was from the detritus shed by our bodies continuously. " Touch DNA, " i.e. DNA deposited simply from any direct or indirect contact with an object or through transfer from another object could generate a DNA profile even though that contact or transfer occurred well before the crime.
The court finds that the new DNA, when combined with the original evidence from Birch's criminal trial or when combined with the original evidence from Henning's criminal trial amounts to little more than an investigatory dead-end. Utilizing this evaluative approach, Mr. Birch had failed to sustain his burden of proof, by a preponderance of the evidence, that a jury would have acquitted him. Analysis by the same standard to Mr. Henning's case, individually produces the same failure of proof. Therefore, the petitions for a new trial would be denied in both cases.
Considerations Including New Non-DNA Evidence
The court now, alternatively, examines whether the new, non-DNA evidence in combination with the DNA evidence and the original trial evidence satisfies the fourth criterion of the Asherman standard for either petitioner. This, of course, requires the court to make the credibility findings as instructed in Shabazz v. State, supra .
A.
First, the court weighs the new evidence pertaining to Mr. Birch's petition. Todd Cocchia's recantation and explanation for his knowledge of specific features of the crime lack credence. Cocchia is a convicted felon who acknowledged that his memory of the events which transpired decades ago was weak. His former probation officer characterized him as a " pathological liar." His own mother impugned his believability. His retraction came only after he was beyond the reach of prosecution for perjury with respect to his original trial testimony in which he avowed that Birch made incriminating statements.
Cocchia now swears that his initial statement to the police investigators included specific details, which were consistent with the actual murder, only because those investigators fed him information and allowed him to read reports that described the particulars of the crime. However, that initial interview was tape recorded. As Judge Zarella noted after fully reviewing that recording, " the first substantive statements made by Cocchia . . . were unprompted" by leading questions, nor " planted" in the mind of Cocchia by the police. " The key elements contained in the statement were each volunteered by Cocchia without any prompting by the police, " Birch v. Warden, supra .
That " key" information was that Birch told Cocchia that, using a knife, he killed an old man during a burglary. That Cocchia has a penchant for prevarication is proven, however, his recitation of these details precisely described the crime, and he did not learn them from the police. The court finds that his recantation is a false one.
Perugini, the other jailhouse informant who testified at Birch's original trial as to Birch's incriminating remarks while they were incarcerated together, refused to testify at the habeas hearing. Instead of a retraction of Perugini's earlier testimony, Birch produced third-party witnesses to Perugini's posttrial statement's inconsistent with his courtroom revelations. Two former prison mates and Perugini's former girlfriend, all convicted felons, stated that Perugini either acknowledged or suggested that he lied about Birch making incriminating remarks to curry favor with the state. Again, the court finds the testimony of these three impeachment witnesses of small benefit to Birch. Perugini's posttrial comments were not a complete repudiation of his former testimony but expressions of remorse for having contributed to Birch's conviction.
The testimony of John Andrews, Columbo's former boyfriend, is a conundrum. Andrews acknowledged that he attended the trial of Birch and Mr. Henning in 1989. He knew the fate that had befallen them. Yet, when, a matter of months later in 1990, he has a bitter and violent falling out with Columbo in which she purportedly threatened to kill him with a knife, as he has killed her father, he tells no one and allows the petitioners to languish in prison for a murder that he believes Columbo committed. When he finds the knife blade in a wall of the basement of the residence in which the murder occurred, he informs no one of this crucial piece of evidence that could corroborate the threat against him uttered by his then nemesis. He first reveals those occurrences eighteen years later when queried by the Connecticut Innocence Project, at a time when Columbo was no longer alive to respond to his accusations.
On the other hand, Andrews has no obvious reason to fabricate those recollections. No apparent financial gain looms in the background, and he is not incarcerated or facing criminal charges. He has been convicted of multiple felonies and has served time in prison in the past. Also, he noted that both he and Columbo were using recreational drugs regularly. In fact, he described their relationship as consisting of sex, drugs, and squabbling. Perhaps, Andrews now empathizes with the plight of the petitioners and derives some satisfaction at creating turmoil for the criminal justice system that imprisoned him in the past.
Andrews' testimony is significant because some of Diana Columbos' action on the night of her father's death appear suspicious. She lied about the time she returned home and delayed calling the police after she discovered the tragedy had occurred. She exclaimed to the dispatcher that someone had a knife in his hand and referred to " they" when speaking of her father's putative assailants.
The expert witness testimony concerning the maximum shoe size of one of the two sets of bloody imprints cannot be fairly characterized as newly discovered. Therefore, the court cannot consider that circumstance when adjudicating the petitions for a new trial.
As addressed in section I.A.3 and I.B. of this memorandum newly acquired information concerning the possibility that Ricard Burkhart killed the victim is inadmissible, much less persuasive evidence, to establish that conjecture.
B.
Turning to the new evidence regarding Mr. Henning's case as discussed earlier, Timothy Saadloff, Henning's best friend in his youth, retreated from his criminal trial testimony in which he related that Henning confided to him that he, with another person were burglarizing the Carr residence when the victim surprised them, and Henning's cohort killed the victim. Henning denied participating in the actual homicide himself. Saadloff now swears that he just made up that portion of his former testimony in an ill-advised effort to help his friend by showing that Henning always denied actually committing the murder himself and was merely a bystander. The court finds that Saadloff's retraction rings hollow and false.
" Recantation as grounds for a new trial has always been viewed with skepticism, " Johnson v. State, 36 Conn.App. 59, 69, 647 A.2d 373 (1994). " How easy by artful or even honest suggestion to awaken a sympathy [in a] witness against the accused, and who naturally feels responsible for the conviction, " Shields v. State, 45 Conn. 266, 270 (1877).
The Court's comments concerning the shoe size evidence, the third-party culpability evidence regarding Burkhart, and the testimony of John Andrews apply to Henning's case as well.
C.
Having weighed the credibility issues pertaining to the newly discovered, non-DNA evidence, the court now decides whether the combination of the original evidence with the credible new evidence demonstrates, by a preponderance of the evidence, that a likelihood exists that a jury would acquit the petitioners after retrial. The court determine that both petitioners have failed to satisfy the fourth element of the Asherman standard.
To reiterate, the question is whether a jury would acquit at a retrial rather than whether the new evidence could likely raise a reasonable doubt in the minds of some jurors. A corollary to this principle is that it is insufficient for a petitioner to prove that a deadlocked jury would ensue. The burden upon the petitioners is to prove a reasonable likelihood of acquittal.
As to Mr. Henning, his grandmother and best friend testified credibly that he admitted he was involved in a burglary that turned tragic, although he was not the killer. As to Mr. Birch, Cocchia's knowledge of the details of the burglary/murder did not come from the police, and it is likely jurors would infer that Cocchia told the truth when he identified Birch as the source, despite Cocchia's lack of credibility generally.
Multiple, neutral witnesses heard a car emitting very loud exhaust noises close to the victim's house around the time of his death. The vehicle stopped and remained in the vicinity for about twenty to thirty minutes. Then, the loud car roared off. The petitioners at first lied about possessing just such a raucous stolen Buick and traveling around in it in New Milford on the evening in question.
Birch and Henning conspired with Yablonski in order to conceal the stolen car and, in particular, to fabricate a story, contrived by the petitioners, that falsified the times the trio left the Stanley apartment in Danbury and dropped Yablonski off at her home which was a couple of miles from crime scene. However, statements by Yablonski and Effie Coates established a departure from Coates' apartment hours earlier than that concocted by the petitioners and committed to memory by them. Coates had no reason to lie about when the group left her home. Their time of departure was etched in her memory because of the great distress at finding them using cocaine in her home when she returned to her residence with her children after viewing a children's movie at a theater. Yablonski corroborated Coates' recollection in this regard.
If the sole purpose of the fictional account contrived by the petitioners were to conceal a car theft, it would have been entirely unnecessary to falsify the departure time from Danbury. The truth about the particular time was a neutral circumstance, and it is certainly less difficult to keep fewer falsehoods straight when making up a story. In other words, the time the group left Danbury was irrelevant as to whether they had driven a stolen car or not. The more likely purpose for that contrivance was to create a fictitious alibi concerning the petitioners' whereabouts at the time of the burglary in New Milford rather than to embellish a cover story about driving a stolen car.
Also, if the petitioners were focused on avoiding charges related to stealing the Buick, they could simply have abandoned the car anywhere, including in plain view. Instead, they expended considerable effort to drive the Buick to an isolated area of woodland and camouflage it with brush.
When confronted with the circumstance that he correctly located the bathroom at the victim's home after viewing a photograph of the crime scene which did not depict the bathroom, Mr. Birch lost emotional physical control.
During his interview with the police, Mr. Henning claimed to have no knowledge of the victim whatsoever. However, he later correctly noted that the victim had tattoos even though no crime scene photographs displayed the victim's tattoos visible.
Diana Columbo's inexplicable exclamations and strange behavior and John Andrews's testimony about her inculpatory threat and his purported discovery of handleless knife blade fail to counterbalance the uncontroverted evidence of the blaring noise from a car which stopped by the victim's house around the time of the incident, the petitioner's connection to just such a vehicle, the petitioner's inculpatory statements to others including the police, and the false chronology concerning their trip from Danbury to New Milford.
Nor does the new evidence enhance, in any decisive way, the original forensic evidence that failed to connect the petitioners to the victim or the crime scene at their criminal trials. Again, the length of time between the crime and seizure of the petitioners' belongings allowed for destruction or decontamination of such trace evidence, and the absence of such evidence previously failed to create reasonable doubt for any of the twenty-four jurors in the two criminal trials in 1989.
Based on the failure of either petitioner to meet the requirements of the fourth component of the Asherman standard, both petitions for a new trial are denied.
IV
The final claim which the court must adjudicate are the claims of actual innocence set forth in the first counts of both petitioners' habeas corpus actions. Once again, because the allegations and evidence for both petitioners predominantly overlap, the court discussed these claims concurrently.
The standard for evaluating actual innocence claims was elucidated by our Supreme Court in the case of Miller v. Commissioner, 242 Conn. 745, 700 A.2d 1108 (1997). The Miller criteria comprises a two-part test which requires a habeas petitioner asserting an actual innocence claim to prove, by clear and convincing evidence, that:
1. The petitioner is actually innocent of the crime for which he or she stands convicted; and
2. No reasonable fact-finder would convict the petitioner of that crime after consideration of a combination of the evidence adduced at both the criminal trial and the habeas proceeding, Miller v. Commissioner, supra, 747 (1997).
The first component of the Miller criteria requires the petitioners to produce affirmative proof that they did not purposefully participate in the murder of the victim. " Affirmative proof of actual innocence is that which might tend to establish that the petitioner could not have committed the crime even though it is unknown who committed the crime, that a third party committed the crime or that no crime actually occurred, " Gould v. Commissioner, 301 Conn. 544, 563, 22 A.3d 1196 (2011) (emphases in original). The petitioners concede that the homicide occurred. Therefore, the court need only determine whether the petitioners have proven, by clear and convincing evidence, that they could not have had a part in killing the victim or that a third party perpetrated the crime. " Clear and convincing proof of actual innocence does not, however, require a petitioner to establish his guilt is a factual impossibility, " Id.
Before embarking on this analysis, the court must confront a preliminary question. Our Supreme Court recognized, in a footnote, in Gould, that that Court has never decided whether the affirmative evidence of innocence must be newly discovered, Id., 551, fn 8. The Supreme Court acknowledged, however, that the Appellate Court has imposed such a requirement, Id.
Indeed, the Appellate Court has consistently and repeatedly demanded that affirmative proof of actual innocence be newly discovered, Peeler v. Commissioner, 161 Conn.App. 434, 464, 127 A.3d 1096 (2015); Corbett v. Commissioner, 133 Conn.App. 310, 315, 34 A.3d 1046 (2012); Vazquez v. Commissioner, 128 Conn.App. 425, 444, 17 A.3d 1089 (2011); Gaston v. Commissioner, 125 Conn.App. 553, 558-59, 9 A.3d 397 (2010); Weinberg v. Commissioner, 112 Conn.App. 100, 119, 962 A.2d 155 (2009); Grant v. Commissioner, 103 Conn.App. 366, 369, 928 A.2d 1245 (2007); Johnson v. Commissioner, 101 Conn.App. 465, 469-70, 922 A.2d 221 (2007); Batts v. Commissioner, 85 Conn.App. 723, 726-27, 858 A.2d 856 (2004); Clarke v. Commissioner, 43 Conn.App. 374, 379, 682 A.2d 618 (1996), appeal dismissed, 249 Conn. 350, 732 A.2d 754 (1999); Williams v. Commissioner, 41 Conn.App. 515, 530, 677 A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997). This court is, of course, bound by these holdings of the Appellate Court.
" Newly discovered evidence" is " such that it could not have been discovered previously despite the exercise of due diligence, " Skakel v. State, 295 Conn. 447, 466-67, 991 A.2d 414 (2010). Due diligence is reasonable diligence, Id., 506-07. " Due diligence does not require omniscience, " Id., 507. It means " doing everything reasonable, not everything possible, " Id. The query to be answered is " what evidence would have been discovered by a reasonable [criminal defendant] by persevering application and untiring efforts in good earnest, " Id.
Claims of actual innocence raised within habeas corpus jurisprudence differ from petitions for a new trial in certain respects. Unlike the three-year statute of limitations contained in § 52-582 applicable to petitions for a new trial, habeas corpus has no such constraint. Actual innocence claims demand affirmative proof of actual innocence, as explained in Gould v. Commissioner, supra whereas petitions for a new trial can be granted based on newly discovered evidence that merely undermines the prosecution case. Also, the level of proof necessary to succeed in an actual innocence claim must be clear and convincing.
The requisite analysis for actual innocence claims excludes from the court's consideration some evidence proffered by the petitioners at their joint, habeas trial. The shoe size differential evidence concerning the zigzag pattern is not newly discovered because it was available for use in the 1980s, as recollected by Agent Bodziak. Similarly, evidence that one of the neighbors who was startled by the very loud vehicle noise described seeing a taillight on the vehicle that differed from the ones on the stolen Buick cannot be regarded as newly discovered. Nor does the petitioners' crime reconstruction experts testimony fall within the class of newly discovered evidence.
The newly obtained DNA results also fail to sway the court for the reasons previously discussed in section III. The presence of the victim's DNA on the items tested is unremarkable. The detection of the DNA from an unknown female is not affirmative evidence which excludes the petitioners as perpetrator or points to a third party as the real culprint. The moment or moments of transfer of the female DNA to these objects is unknown. The victim's wife and other female visitors were never excluded as the source. Touch DNA, in this case, could have been deposited at any time in the past without any relationship to the activities that resulted in the victim's death. The absence of evidence of guilt, under the circumstances of this case, is not affirmative evidence of innocence.
As discussed earlier, the so-called, newly discovered evidence with respect to Richard Burkhart has dubious probative value and amounts to no more than rumor and innuendo.
The court has discussed the testimony of John Andrews in section III of this memorandum and incorporates those comments by reference. The court feels that Andrews' testimony must be viewed with a high degree of skepticism. Although the petitioners need not prove that their guilt " is a factual impossibility, " they still need to satisfy the Miller test by clear and convincing evidence, Gould v. Commissioner, supra, 563.
Clear and convincing evidence is a more exacting standard of proof than a preponderance of the evidence. Clear and convincing evidence is substantial and unequivocal evidence that establishes a very high probability that the facts to be proven are true, State v. Thompson, 305 Conn. 412, 425, 45 A.3d 605 (2012); Gould v. Commissioner, supra, 560.
The court determines that the petitioners have each failed to prove actual innocence by clear and convincing evidence. Consequently the first counts of their habeas corpus petitions cannot succeed.
In summary, the court denies both petitions for a new trial and both habeas corpus petitions.