Opinion
No. HHD CV 09-4044038-S
September 25, 2009
MEMORANDUM OF DECISION
I INTRODUCTION
Brandon M. Hancox (the petitioner) filed this Petition for a New Trial, pursuant to General Statutes § 52-270 and Practice Book § 42-55, in connection with his conviction on charges of Sexual Assault in the Third Degree in violation of General Statutes § 53a-72a(a)(1)(A) and Unlawful Restraint in the Second Degree in violation of General Statutes § 53a-96. The petitioner was found guilty of such charges by a jury in Manchester on October 31, 2008 in the case of State v. Hancox, Docket No. H12M-CR07-0210325-S. On February 25, 2009 the court sentenced the petitioner to a total effective sentence of five years to serve, suspended after eighteen months, with 10 years of probation. Due to his conviction for Sexual Assault in the Third Degree, the petitioner will also have to register as a sex offender for the rest of his life.
The petitioner was tried with a co-defendant, Jovon Phillips. The jury found Phillips guilty of Sexual Assault in the Third Degree and not guilty of Unlawful Restraint in the Second Degree. The jury also found both the petitioner and Phillips not guilty of Conspiracy to Commit Sexual Assault in the Third Degree. In addition, at the end of the State's case, the court granted the petitioner's and Phillips' motions for judgment of acquittal as to the charges of Kidnapping in the First Degree and Conspiracy to Commit Kidnapping in the First Degree. In light of that ruling, the State requested that the court charge the jury on either Unlawful Restraint in the First Degree or Unlawful Restraint in the Second Degree. Given the evidence adduced at trial and an evaluation of whether such charges could be considered lesser included offenses of the kidnapping charge under the circumstances of this case, the court denied the request to charge the jury on Unlawful Restraint in the First Degree and granted the request to charge the jury on Unlawful Restraint in the Second Degree.
The petitioner alleges that he is entitled to a new trial because after he was convicted and sentenced by the court, he learned that one of the State's witnesses against him, Jelani Jones, a sentenced prisoner on an unrelated matter at the time of the petitioner's trial, was promised that the State would support his request for a sentence modification if he testified against the petitioner. The petitioner claims that this fact constitutes new evidence that entitles him to a new trial. Further, in his petition he claims that Jones perjured himself when he testified that he had been promised nothing for his testimony and that the State knew that such testimony was perjury and did nothing to prevent or correct Jones' misleading testimony. Finally, the petitioner claims that the State withheld exculpatory information, namely information relating to the deal that it had allegedly struck with Jones for his testimony, in violation of the rule established in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its progeny.
The petitioner also filed a motion for a new trial in his criminal case pursuant to Practice Book § 42-53 based on the alleged Brady violation. At the beginning of the hearing on the petition, the court believed and stated to the parties its understanding that the hearing was going forward both on the petition and motion for new trial. However, both the State and the petitioner agreed that the hearing should only go forward on the petition. The State took the position, relying on Demers v. State, 209 Conn. 143, 547 A.2d 28 (1988), that any claim based on newly discovered evidence, even one based on an alleged Brady violation, must be brought in a petition pursuant to Practice Book § 42-55. The State acknowledged that the legal standard the court must apply to the claim varies depending on the nature of the claim. The petitioner agreed. Thus, the hearing went forward just on the petition. While the court accepted the parties' stipulation to litigate all of the petitioner's claims through the petition, it does not agree that a § 42-53 motion cannot be used to litigate a Brady claim. Demers upheld such a claim brought in a § 42-55 petition, but does not state that a petition is the only way such a claim may be raised. In fact, a Brady claim fits squarely within the express language of Practice Book §§ 42-53(1) and (2). Nevertheless, given that our Supreme Court has approved the use of a petition for litigating all of the issues raised by the petitioner, and given that the parties are in agreement that the standard to be applied by the court to the claims depends on the nature and substance of the claim and not the procedural vehicle employed, the court concludes that it is sufficient to address the petition only and not the motion for new trial.
The State denies that there was any deal with Jones, and therefore claims there was nothing to disclose. Further, the State argues that even if there was any information that should have been disclosed to the petitioner regarding the State's interactions with Jones, the State's failure to do so was not material and the results of the trial would not have been different had such disclosures been made.
The parties have filed briefs on the issues presented by this petition and the court conducted an evidentiary hearing and heard extensive oral arguments from counsel on July 28-30, 2009.
II THE CRIMINAL CASE AGAINST THE PETITIONER AND HIS TRIAL
The charges for which the petitioner and Phillips were convicted arose out of an incident that took place on the evening of December 21, 2006. On the night in question, the complaining witness, an eighteen-year-old female, went from her home in East Hartford to Hartford to visit her cousin. Following that visit the complaining witness intended to take a public bus back to East Hartford. She missed the bus she intended to take and was waiting with her cousin for another bus when Phillips pulled up in his car. Jones was in the front passenger seat in the car and the petitioner was in the back seat of the car. The complaining witness was offered a ride home and got into the back seat of the car with her cousin. The complaining witness knew none of the men in the car.
Her cousin at least recognized Jones. The complaining witness was seated in the middle of the back seat with her cousin to her left and the petitioner to her right.
During the ride to East Hartford, touching of a sexual nature took place between the petitioner and the complaining witness. In addition, when the car reached the complaining witness' residence in East Hartford, more touching of a sexual nature occurred between the petitioner and the complaining witness. Ultimately, the petitioner ejaculated and the complaining witness left the car and went into her residence.
Upon entering her residence, the complaining witness called her mother and then the police and reported that she had been sexually assaulted by the petitioner. She stated that none of the touching had been consensual and that the petitioner had forced her to touch his penis and had pulled her back into the car when she first tried to exit it upon arriving at her residence in East Hartford.
The complaining witness also claimed that Phillips, while parked in front of her residence in East Hartford, forced the complaining witness to touch his penis with her feet and touched her breasts against her will.
Although the petitioner did not testify at trial, the defense set forth by his counsel was that there was sexual touching between the Petitioner and the complaining witness, but it was all consensual.
Phillips also did not testify.
The State presented four witnesses at trial. The first was Officer Christina Shaw of the East Hartford police department. Shaw was the principal investigating officer, the first officer who spoke to the complaining witness and the officer who took statements from the complaining witness, Phillips and Jones about what happened on the night in question. She testified not only about the steps she took in investigating the incident, but also about the contents of the witness statements, in particular the complaining witness' and Phillips' statements. She also testified to the complaining witness' demeanor when she was first interviewed following the incident. She described the complaining witness as "visibly distraught" during her one-hour interview. As to Phillips, Shaw testified that he first denied being in Hartford at all on the evening in question, but later admitted to being there with the petitioner and Jones and to giving the complaining witness and her cousin a ride to East Hartford. According to Shaw, Phillips admitted touching the complaining witness on the neck, but said it was not sexual. He also told Shaw that the complaining witness tried to touch his penis, but he pushed her away. Phillips later signed a written statement. State's Exhibit 3. That statement contained no reference to any touching between Phillips and the complaining witness.
Neither the petitioner nor the complaining witness' cousin gave a statement to the police regarding the incident.
While the defendants initially objected to Shaw testifying as to what the complaining witness told her, petitioner's counsel asked a number of questions on cross examination soliciting such testimony from Shaw. In fact, the defendants ultimately stipulated that the complaining witness' written statement could be admitted as a full exhibit. The stipulation was made following a recess allowed by the court so that counsel for both defendants could discuss among themselves and with their clients how they wanted to handle the complaining witness' statements to the police. Thus, it was clear that the defendants made a tactical decision that it was in their best interest to have the full contents of the complaining witness' out of court statements to the police presented to the jury.
Because Shaw was questioned extensively on cross-examination and re-direct about the contents of the complaining witness' statement to the police, the jury heard and saw much of the complaining witness' reported version of the incident before the complaining witness ever took the stand. In fact, Shaw's testimony consumed the entire first day of trial. By contrast, the State's other three witnesses and the Defendants' only witness together consumed less than a day's worth of testimony. And three of those witnesses, the complaining witness, Jones and the complaining witness' cousin, were actual eyewitnesses to the incident.
After Shaw, the State called the complaining witness. She testified that she was present in court reluctantly and only because she had been served with a subpoena. She further testified that she had been threatened with arrest four or five times if she did not show up for trial. Much of her direct testimony consisted of the State's Attorney leading her, without objection, through her written statement to the police. During her testimony she maintained that what she told the police was accurate and that she had been forced to engage in the sexual contact by both the petitioner and Phillips.
On cross-examination, the petitioner and Phillips tried to show that the complaining witness was not forced to do anything by having her acknowledge that she was asked to do some things, said no and those things never happened. She also acknowledged that she was never hit or threatened with physical harm. The complaining witness also testified that after the petitioner ejaculated she left the car, but upon realizing that she did not have her cell phone returned to the car to search for it. She testified that Phillips helped her search for the phone. She further testified that she never got her phone back and was mad about that. Nevertheless, throughout her entire testimony, the complaining witness maintained that the version of the events she reported to the police was true and that she was forced to engage in the sexual contact by both the petitioner and Phillips.
The State's third witness was Karen Lamy from the Forensic Science Laboratory. Lamy testified that tests she performed on the t-shirt worn by the complaining witness on the night of the incident confirmed that there was semen on her shirt. This testimony was consistent with both the complaining witness' testimony and Phillips' statement to the police that he saw "cum" on the complaining witness' hands after she exited the back seat where she was with the petitioner. While the petitioner never provided a DNA sample for a comparison to the semen found on the complaining witness' shirt, he in no way contested during the trial that the semen was his. In fact, neither the petitioner nor Phillips cross-examined Lamy.
The State's final witness was Jones. After confirming with Jones that he was a sentenced prisoner, the first question the State asked Jones was: "And did we promise you anything to testify here today?" To which Jones responded: "No." Jones was then asked how he knew the petitioner and Phillips. He testified: "My buddies." Jones then went on to describe the ride from Hartford to East Hartford, including what he saw occurring between the complaining witness and the petitioner. According to Jones, the complaining witness asked several times to be driven to East Hartford. He also testified that the petitioner was touching the complaining witness on her stomach, chest area and legs. When asked: "All over?" he testified: "Yeah, basically." He said that while this was happening, the complaining witness was "persistent" in asking to return to East Hartford and looked "uncomfortable."
The State then asked Jones a series of questions about what happened once the car arrived at the complaining witness' residence in East Hartford. Jones testified that he immediately got out of the car "cause I didn't like the vibe." He also testified that it seemed "like things were getting out of hand" between the petitioner and the complaining witness. He went on to testify that after leaving the car he saw the complaining witness looking at him out the back window and she "seemed to look a bit nervous." Jones testified that after seeing this look "I got a little farther away from the car `cause I didn't want to be implicated in anything that was going on `cause things like this seems to be' . . . `cause I didn't want what's going on today to happen.' So I moved away from the car to stop me from being involved." He concluded his direct testimony by saying "what happened back there shouldn't have happened, I guess."
Jones acknowledged on both direct and cross-examination that his testimony on direct was inconsistent with the statement he gave to the police. He admitted that in his statement to the police he said that he had not seen much in the car and that he did not believe that the petitioner and Phillips sexually assaulted the complaining witness. When asked by the State why he told the police that, Jones testified: "They're my buddies. I don't want to see them go down for like sexual assault or anything."
On cross-examination the petitioner never probed further regarding any promises made to Jones by the State in exchange for his testimony. Not only had Jones denied that he was promised anything, the petitioner had asked the State prior to trial to disclose "the time, date, place and substance of any discussion between any person who may be called as a witness for the State . . . and any law enforcement agent or any persons acting on behest of a law enforcement agent concerning . . . any threats or promises or suggestions that any favorable or unfavorable action might be taken concerning the affairs of such witness with any public or private agency, organization, or person." Motion for Production of Exculpatory Information and Materials dated February 13, 2008. The State disclosed no such information regarding Jones.
Phillips' entire cross-examination of Jones was limited to inquiring whether the State had in any way threatened Jones with adverse consequences if he did not testify, which Jones denied. Phillips never asked Jones if he was promised anything, presumably because he had already denied on direct that any such promise had been made. Ultimately, Jones said he talked to the State because "they subpoenaed me here."
The State rested after calling Jones. The petitioner called one witness, the complaining witness' cousin. She was seated in the back seat of the car next to the complaining witness from the time they entered the car until they reached East Hartford. She testified that she was shoulder to shoulder with her cousin in the back seat of the car. She further testified that on the drive to East Hartford she did not recall hearing any protests from anyone and she witnessed nothing that she would consider to be "some sort of forced sex." She testified that once the car arrived in East Hartford she got out. On cross-examination she maintained that nothing happened in the car. She also testified that she spoke by phone to the complaining witness later that evening, and that the only thing she remembers the complaining witness telling her "is that somebody stole her phone. That's it." The cousin acknowledged that she and the complaining witness no longer have a good relationship and have not talked in a while, but she claimed the incident at issue had nothing to do with their relationship.
After the complaining witness' cousin finished testifying both the petitioner and Phillips rested. The State presented no rebuttal evidence and the trial proceeded to closing arguments. With respect to the petitioner, the focus of both his attorney's closing argument and the State's closing argument was whether the sexual contact between the petitioner and the complaining witness was consensual. In arguing to the jury that they should find that there was no consent, the State noted, referring to the complaining witness, that "it's all whether you believe this girl or not." Shortly thereafter, it reinforced this point, noting: "The issue is, do you believe this girl. And is it consistent with the testimony from all the other witnesses?" The State asked the jury to consider the complaining witness' demeanor on the stand, her reaction to the defendants and her motivation for testifying against them. In doing so, the State noted that the complaining witness was there reluctantly, wanted to be done with this and was not there to try to get back at the defendants for stealing her phone, as the defense had suggested. The State also asked the jury to consider whether the complaining witness would consent to sexual contact with two men she had just met.
The State also made a number of references to Jones' testimony as buttressing that of the complaining witness and undermining that of her cousin. First, in referring to the evidence on which the State was relying, the State pointed to the complaining witness' testimony and written statement to the police. It then stated, "that's the evidence we're using along with the testimony from Jelani Jones and the police officer." Next, in calling into question the cousin's testimony that she did not notice anything happening in the back seat, the State noted "well, I guess she was deaf that night and blind, too, because everybody, including Jelani Jones [who] was in the driver's seat and said I peered back and saw Brandon Hancox going up the girl's shirt. He saw it and he's in the front row." Later, again comparing the cousin's testimony to Jones' the State said "she's a useless witness. Okay. But Jelani Jones, who has no acts [sic] to grind, said I heard the complainant say, chill, chill when Brandon was trying to do certain things to her."
Following the closing arguments and instructions from the court, the jury returned the verdicts described above. Approximately four months later, after receiving pre-sentence investigation reports for the petitioner and Phillips the court imposed sentence as to each.
III FACTUAL FINDINGS AS TO THE PETITIONER'S CLAIM
The petitioner first learned of possible consideration given by the State to Jones for his testimony when his counsel, Attorney Donald Freeman, received a letter from Assistant State's Attorney Anthony Spinella on or about April 17, 2009. In his letter to Attorney Freeman, Attorney Spinella, who had represented the State at the petitioner's trial, informed Attorney Freeman that he had spoken to the Supervisory Assistant State's Attorney for Part A in Hartford, Herbert Carlson, on April 13, 2009. Attorney Spinella reported the following:
Attorney Carlson told me that during a discussion on April 7th with Judge Gold concerning Mr. Weingast's motion to modify on behalf of Jelani Jones that Mr. Weingast stated that Mr. Carlson had agreed to a modification hearing before Mr. Jones testified and further that without that agreement Mr. Weingast would not have allowed Jones to testify. This is Mr. Carlson's recollection of what Mr. Weingast said.
Judge Gold asked Mr. Carlson to be sure that the attorney(s) for the Defendant(s) in whose case Mr. Jones testified are so informed of Mr. Weingast's claim and that is what I am doing at Mr. Carlson's request.
Petitioner's Exhibit 3.
The evidence presented at the hearing on the petition revealed the following facts regarding the State's dealings with Jones. In June 2008, with the underlying criminal trial against the Petitioner and Phillips then scheduled for July, Attorney Freeman visited the incarcerated Jones for the purpose of interviewing him. Following that interview, Jones thought that he might be "an asset" to the State in the upcoming trial and that if he testified as a witness for the State, the State might agree to a reduction in the sentence he was currently serving. Consequently, on July 11, 2008 Jones sent a letter to Attorney Jeremy Weingast regarding that subject. Petitioner's Exhibit 2. Jones wrote that the purpose of his letter was "to get a clear understanding of the status of my efforts to be granted a sentence modification with the information I have attached, on a crime that I was a witness to." He noted that the trial was to begin on July 22, 2008 and "was wondering if I could still be an asset to the prosecution in the states [sic] favor, with the hope of getting a year or 2 knocked off of my 3 yr sentence to jail and 5 yrs of probation."
Attached to Jones' letter to Attorney Weingast was a second document entitled "Attn: Prosecutor" and "Crime: Sexual assault." Respondent's Exhibit A. It was also dated July 11, 2008. In the first page of the three-page document, Jones wrote of his willingness "to fulfill his moral obligation as a citizen of East Hartford CT, and of the U.S.A." by testifying about "a crime that was committed by Brandon Hancox, on a December evening in the year of 2006." He described himself as "the only credible witness . . . of the accuseds [sic] horrific actions that took place on that date, as well as others." The last two pages of the document described Jones' version of the events on the night in question. The version he set forth implicated the petitioner and was largely consistent with the complaining witness' statement to the police and ultimate testimony at trial.
Although neither document written by Jones was ever delivered or disclosed to the State prior to the petitioner's trial, together they clearly show Jones' state of mind as of July 2008. He was willing to testify for the State and against the petitioner, and hoped that by doing so he would get a reduction in the sentence he was serving.
The petitioner's trial did not go forward in July, but was rescheduled until the end of October. As the October trial date approached, Jones, this time through Attorney Weingast, again reached out to the State. According to Attorney Carlson, in late September/early October he had a discussion with Attorney Weingast regarding Jones. Attorney Weingast asked Attorney Carlson either if the State would agree to a sentence modification hearing or would consider agreeing to such a hearing if Jones agreed to testify for the State at the petitioner's upcoming trial. Attorney Carlson responded by saying that he would consider a request for sentence modification, but only after Jones testified and only after the case against the Petitioner and Phillips was over.
Attorney Carlson could not remember if Attorney Weingast's precise request was for agreement on a sentence modification request or just for the State's consideration of such a request. Whatever the question was, Attorney Carlson was certain as to his response.
At around this same time, on October 2, 2008, Attorney Weingast tried to engage Attorney Spinella and the Supervising Assistant State's Attorney for G.A. 12, Adam Scott, in a similar discussion. Jones had been brought to G.A. 12 pursuant to a habeas on October 1, 2008 to be interviewed by the State in connection with the petitioner's upcoming trial. Jones refused to talk to the State until he consulted with Attorney Weingast. Thus, Jones was brought back to G.A. 12 on October 2, 2008 when Attorney Weingast was also present. Before Jones spoke to anyone from the State's Attorney's office, Attorney Weingast met with Attorneys Spinella and Scott. According to Attorney Spinella, Attorney Weingast asked if Jones would receive any consideration for his testimony. Attorney Spinella stated that he did not want to be a part of any such discussion and told Attorney Weingast to discuss it with Attorney Scott. Thereafter, Attorney Spinella had no further conversation with Attorney Weingast regarding Jones' testimony. Attorney Scott did discuss the matter further with Attorney Weingast. Attorney Scott made it clear to Attorney Weingast that Jones would be promised nothing for his testimony. Attorney Weingast asked Attorney Scott if Attorney Scott would tell Attorney Carlson about Jones' cooperation.
It is unclear from the testimony of the witnesses whether Attorney Weingast's conversation with Attorney Carlson was before or after his conversations with Attorneys Spinella and Scott.
While both attorneys agree that such a request was made, their recollections of Attorney Scott's response differ. Attorney Weingast testified that Attorney Scott agreed to call Attorney Carlson regarding Jones' cooperation after he testified. Attorney Scott testified that he told Attorney Weingast that he would not call Attorney Carlson because Jones' matter was being handled by Attorney Carlson, and he would not interfere with Attorney Carlson's case. Attorney Scott did testify though that he told Attorney Weingast that if Attorney Carlson called him, Attorney Scott would tell him about Jones' cooperation. In his notes for October 2, 2008, Attorney Weingast wrote "Agreement w/ Adam Scott and Anthony Spinella is that they will make Herb Carlson aware of Jelani's cooperation." Petitioner's Exhibit 1. The notes do not indicate that Scott or Spinella would call or reach out to Carlson. Based on the witnesses' recollections and Attorney Weingast's notes, the court credits and accepts Attorney Scott's testimony that he agreed to tell Attorney Carlson of Jones' cooperation only if Attorney Carlson called or reached out to him.
After speaking to Attorneys Spinella and Scott, Attorney Weingast met with Jones and informed him that any cooperation he gave the State in connection with the Petitioner's trial would be made known to Attorney Carlson. After learning of this, Jones agreed to meet with Attorneys Spinella and Scott and their investigator Dennis Murphy. Prior to being interviewed by the State, Jones was told a number of times by Attorneys Weingast, Spinella, Scott and Murphy that the State was making him no promises for his testimony. And, there were no direct communications between the State and Jones regarding any communications to Attorney Carlson regarding his cooperation. Nevertheless, it is clear that when he was interviewed by the State and then when he testified, Jones understood from talking to Attorney Weingast that his cooperation with the State in connection with the petitioner's trial could help him in his dealings with Attorney Carlson, in particular his request for a sentence modification.
Jones also testified at the hearing. The court did not find him to be a credible witness. Jones at first claimed that he did not send a letter to Attorney Weingast regarding his sentence modification application until after he testified at the petitioner's trial. Even when confronted with his July 11, 2008 letter Jones would not acknowledge that he had inquired about getting some benefit in exchange for testifying for the State. Jones claimed that his only concern in testifying was to avoid being charged as an accessory to the crimes committed by the petitioner. He claimed that Attorney Weingast told him there was such a risk. There was nothing in the testimony of either Attorney Weingast or Attorneys Scott and Spinella to corroborate this testimony or to suggest that the State ever considered charging or threatened to charge Jones as an accessory. Further, Jones at first testified that he never got the impression that testifying might benefit him in his own case. He later acknowledged that Attorney Weingast told him that something good could happen, but there were no promises. Finally, on questioning from the court he did admit that Attorney Weingast told him that the state's attorney's office in Manchester would let Attorney Carlson know of his cooperation. Interestingly, for supposedly not expecting any benefit from testifying, Jones was also keenly aware that nobody from Manchester ever talked to Attorney Carlson after he testified. Further, Jones appeared evasive as he testified. His demeanor was in stark contrast to how he appeared at the petitioner's trial. At the trial, Jones came across as a credible and sincere witness, particularly in the appearance that he was begrudgingly testifying against "his buddies." The court was left with a much different impression of Jones as a witness after he was confronted with the claimed Brady material at the hearing.
As noted above, Jones testified as the State's final witness on October 29, 2008. The jury returned its verdict on October 31, 2008. Five days later, on November 5, 2008, Attorney Weingast prepared and sent to Attorney Carlson, a sentence modification application he prepared on behalf of Jones. Respondent's Exhibit B. Attorney Weingast testified that the primary motivation for filing the application was Jones' testimony at the petitioner's trial. The timing of the application confirms that it was Jones' cooperation with the State that led to the application.
Consistent with what he had told Attorney Weingast in their initial conversation, Attorney Carlson did not immediately act on the application Attorney Weingast had sent him. While Jones had testified, Attorney Carlson had told Attorney Weingast that he would not consider Jones' request until the petitioner's case was completely over. To Attorney Carlson, this meant that he would not consider the application until after the court had sentenced the petitioner and Phillips. This happened on February 25, 2009. Approximately one week after the petitioner was sentenced, Attorney Carlson signed the application concurring with Jones' request to seek review of his sentence. The concurrence was filed with the court on March 10, 2009. Respondent's Exhibit C.
A hearing on the application was held before the Honorable David P. Gold on April 27, 2009. During that hearing Attorney Weingast informed the court that Jones had testified at the petitioner's trial. With respect to that testimony, Attorney Weingast stated: "I spoke with the prosecutor in that case, Anthony Spinella, who indicated that my client's testimony was very helpful in that case." Respondent's Exhibit D, p. 2. When Judge Gold asked Attorney Weingast if Attorney Spinella had provided any other details regarding Jones' participation in the petitioner's trial, Attorney Weingast stated: "He indicated to me, Your Honor, that he was the credible witness that testified in that proceeding . . . And according to Mr. Spinella that was of assistance in obtaining conviction." Id., p. 3.
In response, Attorney Carlson did not disagree with Attorney Weingast's representations. In fact, Attorney Carlson told Judge Gold: "I really don't know anything about the case over there, I don't even know what kind of a case it was, actually. I don't know the quality or lack of quality of Mr. Jones's testimony. I never asked Mr. Spinella about that because I was leaving it to Mr. Weingast to attempt to persuade Your Honor . . . And as it relates to whatever Your Honor chooses to do or not to do in this particular case, that's entirely up to Your Honor, I don't have an opinion one way or the other." Id., pp. 3-5. Attorney Carlson did acknowledge to Judge Gold that he had agreed that after the petitioner and Phillips were sentenced "to allow a modification attempt by Mr. Jones so that it could be brought to the Court's attention what, if anything, he did and the Court could make a decision based upon that." Id., p. 3.
Judge Gold, based on Attorney Weingast's account of Jones' cooperation granted the application and reduced the incarceration portion of his sentence.
IV LEGAL ANALYSIS
The burden a petitioner faces when bringing a petition for a new trial under Practice Book § 42-55 depends on the grounds raised in the petition. Where the petition is based solely upon newly discovered evidence, "[t]he petitioner must demonstrate, by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial." Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987). Where the petition is based upon a failure to disclose exculpatory material in violation of Brady v. Maryland, supra, 373 U.S. 83, "the defendant bears the burden of demonstrating: `(1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material.'" Demers v. State, 209 Conn. 143, 150, 547 A.2d 28 (1988), quoting State v Milner, 206 Conn. 512, 539-40, 539 A.2d 80 (1988).
Further, what the petitioner has to prove as to "materiality" varies depending on the nature of his claim. Where the petitioner is claiming nothing more than the discovery of new evidence, the petitioner must prove that admission of the new evidence "would probably change the outcome of the criminal case." Asherman v. State, supra, 202 Conn. 437 (emphasis added). Where the petitioner is claiming a Brady violation, "evidence 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." Demers v. State, supra, 206 Conn. 161, quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). In order to meet the "reasonably probable" standard "a defendant need not show that [failure to disclose] more likely than not altered the outcome of the case." Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (emphasis added); Mock v. Commissioner of Corrections, 115 Conn.App. 99, 105, 971 A.2d 802 (2009). Thus, the burden on the petitioner is somewhat less where the claim is based on a Brady violation as opposed to a claim of merely newly discovered evidence. Finally, where the basis for the petition is that the State obtained the conviction through perjury, the conviction must be set aside "whenever there is ` any reasonable likelihood that the false testimony could have affected the judgment of the jury.'" Jackson v. Brown, 513 F.3d 1057, 1076 (9th Cir. 2008) (Emphasis in original), quoting Hayes v. Brown, 399 F.3d 972, 985 (9th Cir. 2005) (en banc).
During closing arguments at the hearing on the petition, both the petitioner and the State agreed that the proper test to be applied is that applied to claimed Brady violations. The court agrees for the following reasons. First, the evidence does not support a claim that the State obtained the petitioner's conviction through the use of perjured testimony. Jones was asked if he was promised anything and he answered no. The evidence proved that this was a truthful answer. Jones had been specifically and repeatedly told prior to trial that the State was promising him nothing for his testimony. In fact, Attorney Weingast was in the courtroom when Jones so testified. Attorney Weingast testified at the hearing that he thought his client's trial testimony was honest because the State had not promised him any specific result in exchange for his testimony. Certainly, Jones, having been told that he was getting no promises, was reasonable in believing that he was testifying truthfully when answering no to whether he had been promised anything. In fact, after hearing all of the testimony at the hearing, petitioner's counsel conceded that he could not establish that the State had obtained the petitioner's conviction by using perjured testimony.
The fact that there was no evidence of a firm promise to Jones for his testimony does not end the court's inquiry. While failure to disclose to a defendant a firm promise of leniency to a witness is a clear Brady violation, failure to disclose even an informal understanding that a witness will benefit from his testimony can constitute a Brady violation. State v. Floyd, 253 Conn. 700, 740, 756 A.2d 799 (2000); Tassin v. Cain, 517 F.3d 770, 776-79 (5th Cir. 2008).
Here, that is exactly the claim the petitioner is making. Thus, the alleged newly discovered evidence is that the State had given Jones some undisclosed consideration for his testimony. The petitioner claims that the evidence is newly discovered because the State failed to disclose it to him. If there was nothing for the State to disclose, then there is no new evidence. Therefore, the petitioner's claim that there is newly discovered evidence is inseparable from his claim that the State failed to disclose that evidence. For this reason, the court will examine the Petitioner's claim under the test set forth in Brady and its progeny.
The Petitioner claims that had he known about the discussions between Attorney Weingast and Attorneys Carlson and Scott, he could have used that information to impeach Jones' credibility by showing he had an incentive to implicate the petitioner and assist the State. "It is well established that [i]mpeachment evidence as well as exculpatory evidence falls within Brady's definition of evidence favorable to an accused ". . . State v. McPhail, 213 Conn. 161, 167, 567 A.2d 812 (1989); see also State v. White, 229 Conn. 125, 135, 640 A.2d 572 (1994)." State v. Floyd, supra, 253 Conn. 737 (internal quotation marks omitted).
The State claims that there was nothing for it to disclose. As noted above, there was no evidence of any specific promise to Jones. In fact, the evidence was to the contrary. As to Attorney Carlson's discussion with Attorney Weingast, the State argues that Attorney Carlson promised to do no more than he is required by law to do — consider a defendant's application for a sentence modification. Attorney Carlson testified that he considered every such application he ever received and promised to do no more for Jones. As to Attorney Weingast's discussion with Attorney Scott, the State argues that Attorney Scott did no more than promise to answer any questions asked of him by Attorney Carlson, something he would do in any event. Consequently, neither Attorney Carlson nor Attorney Scott promised anything that they would not otherwise do.
The State's argument takes too narrow a view of the evidence and ignores the principles that underlie Brady and the cases that have followed. First, as noted above, a firm promise is not necessary to trigger the State's disclosure requirements. Any suggested benefit to the witness must be disclosed. In Tassin v. Cain, supra, 517 F.3d 770, the petitioner brought a habeas petition claiming that his conviction was unconstitutional because the State failed to disclose material impeachment evidence regarding a key witness in violation of Brady and its progeny. The witness, the defendant's wife who was also facing criminal charges arising out of the same incident for which her husband had been tried and convicted, testified at his trial for the State. In doing so, she testified that she had been promised nothing for her testimony. After the defendant's trial, the defendant learned that his wife believed, based upon conversations her attorney had with the judge handling her case, that she would receive a favorable sentence if she testified against her husband. The evidence showed that the judge had told the witness's attorney that he would consider a sentence as low as ten years if she testified against her husband. Tassin v. Cain, supra, 773. All parties in that case agreed that the judge's comments did not constitute a promise that he would impose such a sentence. The district court sustained the habeas petition "because the suppressed bargain need not have been a firm `promise' in order to mislead the jury with respect to [the witness'] credibility, and because the State failed to disclose the bargain." Id., 776. The Fifth Circuit affirmed, holding that the district court "correctly found that the state had erroneously concluded that there was no duty of disclosure absent a firm promise of leniency from the judge or the prosecutor." Id., 777.
Our Supreme Court has similarly found that no formal agreement is needed to trigger Brady when there is a tacit understanding. In State v. Floyd, supra, 253 Conn. 737, there was no formal plea agreement between the State and one of its witnesses. There was, however, evidence that the State either did or was considering doing things favorable to the witness in the absence of any formal agreement. For example, prior to the trial at which the witness testified, the State did not oppose the witness's bond reduction motion in his pending case. The State never disclosed its lack of opposition to Floyd or his counsel. Our Supreme Court held that even though there was no formal agreement between the State and the witness, the State should have disclosed the fact that it did not oppose the witness' bail reduction motion. State v. Floyd, supra, 253 Conn. 741-43. Although the Court ultimately denied the defendant's claim because it found the State's failure to disclose not material, it left no doubt as to its views as to the State's failure to disclose. It stated:
This does not mean, however, that we condone the failure of the office of the states' attorney to disclose its lack of opposition to the reduction of Youngers bond to a promise to appear, its decision not to pursue the violation of probation against Younger and the letter from Teitell. The failure to disclose that information is inexcusable and, were it not for the fact that the evidence was not material under Brady, the judgment would have been reversed.
Id., 748.
In fact, the United States Supreme Court has noted that a tacit, uncertain understanding may be more probative of a witness' credibility than is a firm promise or agreement. As the Court stated in United States v. Bagley, supra, 473 U.S. 683, "[t]he fact that the stake was not guaranteed through a promise or binding contract, but was expressly contingent on the Government's satisfaction with the end result, served only to strengthen any incentive to testify falsely in order to secure a conviction."
Based on the above, the State can take no refuge in the fact that it had made no firm promises to Jones. If it otherwise suggested to Jones that it might take action on his behalf if he testified favorably, the State was required to disclose that information.
Based upon the evidence submitted at the hearing, the court finds that the State did in fact make such a suggestion to Jones. In particular, the State was required to disclose Attorney Carlson's conversation with Attorney Weingast. While attorney Carlson may have had a duty to consider any sentence modification request, the linkage of that consideration with Jones' potential testimony held out the prospect of something more than the simple exercise of the prosecutor's duty. Attorney Weingast approached Attorney Carlson specifically looking for some benefit for Jones in exchange for his testimony. In response, Attorney Carlson explicitly told Attorney Weingast that he would consider Jones' sentence modification request, but not until after Jones testified and until after the petitioner's case was completely over. Thus, Attorney Carlson's comments, given the circumstances in which they were made, reasonably implied to Attorney Weingast, and hence Jones, that Attorney Carlson would consider a sentence modification request, and that his consideration of Jones' application would be impacted by how Jones testified and the ultimate outcome of the petitioner's trial. As the Court noted in Bagley, such a contingent arrangement only served to strengthen Jones' incentive to testify falsely to secure a conviction. The petitioner was entitled to know this information so that he could challenge Jones' credibility.
Whether the State was required to disclose Attorney Weingast's conversation with Attorney Scott is a much close to call. Attorney Scott offered to do no more than honestly answer questions that might be asked of him by Attorney Carlson. Presumably, he would have done so whether or not Attorney Weingast had asked him. Standing alone, it does not seem very significant. However, given the conversation with Attorney Carlson, it takes on greater importance. It provides additional information regarding how Attorney Carlson might get information he would use to consider Jones' sentence modification application. It also provides the rest of the basis for Attorney Weingast's statement to Jones that the state's attorney's office in Manchester would make Attorney Carlson aware of Jones' cooperation. Given Attorney Carlson's conversation with Attorney Weingast, the conversation with Attorney Scott should also have been disclosed.
In finding that the State was required to disclose these two conversations with Attorney Weingast, the court is not saying that the State intended to mislead the jury or deceive the petitioner. In fact, there was no evidence that Attorney Scott knew of Attorney Weingast's conversation with Attorney Carlson or that Attorney Carlson knew of Attorney Weingast's conversation with Attorney Scott. Further, the evidence from Attorney Spinella, the person representing the State at trial, was that he was not aware of either conversation. Thus, when Attorney Spinella said in closing that Jones had no axe to grind, the court believes that Attorney Spinella believed that to be true.
The law though does not require that the State act in bad faith for there to be a Brady violation. Brady v. Maryland, supra, 373 U.S. 87. Further, the fact that Attorney Spinella was unaware of the substance of any discussions is immaterial. "The prosecutor's office is an entity and as such it is the spokesman for the [State]. A promise made by one attorney must be attributed, for these purposes, to the [State]." Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763 (1972). Thus, the issue is whether the state's attorney's office as a unit suggested a benefit to Jones that should have been disclosed. As noted above, the court finds that it did.
The impact of the State's failure to disclose is made worse by the fact that the petitioner had specifically requested that the State disclose such evidence to him. As noted above, the petitioner filed a motion requesting "the time, date, place and substance of any discussion between any person who may be called as a witness for the State . . . and any law enforcement agent or any persons acting on behest of a law enforcement agent concerning . . . any threats or promises or suggestions that any favorable or unfavorable action might be taken concerning the affairs of such witness with any public or private agency, organization, or person." Motion for Production of Exculpatory Information and Materials dated February 13, 2008. Despite the fact that the State's discussions with Attorney Weingast were clearly responsive to this request, the State provided no information to the petitioner. The United States Supreme Court has noted that such conduct can prejudice a defendant. As the Court noted in Bagley, "[w]e agree that the prosecutor's failure to respond fully to a Brady request may impair the adversary process in this manner. And the more specifically the defense requests certain evidence, thus putting the prosecutor on notice of its value, the more reasonable it is for the defense to assume from the nondisclosure that the evidence does not exist, and to make pretrial and trial decisions on the basis of this assumption." United States v. Bagley, supra, 473 U.S. 682-83; see also, State v. Floyd, supra, 253 Conn. 743. Having received no response to his Motion for Production, the petitioner had no reason to challenge on crossexamination whether the State had suggested any possible benefit to Jones if he testified. Had the State disclosed the conversations between Attorney Weingast and Attorneys Carlson and Scott, it is likely that petitioner would have taken a much different approach to his examination of Jones.
For the reasons set forth above, the court finds that the petitioner has satisfied the first two Brady prongs. The information regarding the State's conversations with Jones' attorney was both favorable to the petitioner and suppressed.
The final question is whether the information was material. In Floyd, our Supreme Court set forth the factors to consider in a case like this one.
The purpose of requiring the state to disclose impeachment evidence to a criminal defendant is "to ensure that the jury knows the facts that might motivate a witness in giving testimony . . ." (Internal quotation marks omitted.) State v. Paradise, 213 Conn. 388, 400, 567 A.2d 1221 (1990). In determining whether impeachment evidence is material, "the question is not whether the verdict might have been different without any of [the witness] testimony, but whether the verdict might have been different if [the witness] testimony [was] further impeached by disclosure of the [alleged] deal." (Internal quotation marks omitted.) Id., 401. The fact that the witness testimony is corroborated by additional evidence supporting a guilty verdict also may be considered in determining whether the suppressed impeachment evidence was material. See Quintana v. Commissioner of Correction, 55 Conn.App. 426, 439, 739 A.2d 701, cert. denied, 252 Conn. 904, 743 A.2d 614 (1999) ([c]ourts have found that improperly withheld impeachment evidence is not material where the testimony of the witness who might have been impeached is strongly corroborated by additional evidence supporting a guilty verdict).
State v. Floyd, supra, 253 Conn. 744.
In this case, the court finds the withheld impeachment material to be of particular importance. Jones identified the petitioner and Phillips as "his buddies." The jury was therefore likely to ascribe particular significance to his testimony implicating one or both of them. This is particularly true, given that as far as the jury knew, Jones had no motivation to lie. The possible consideration he might get could also have been used by the petitioner to explain why Jones was implicating the petitioner after earlier telling the police that he did not think anything had happened. When confronted with his earlier inconsistent statement Jones was able to explain it away as his attempt shortly after the incident to help "his buddies." Had the jury known that there was another reason for Jones to change his testimony at trial they could have had a much different view of his two statements.
In addition, the court finds that Jones' testimony was an important part of the State's case. Three eyewitnesses to the events testified — the complaining witness, her cousin and Jones. The complaining witness' cousin did not support the complaining witness' version of the events. In fact, she testified that she witnessed nothing that she would call "forced sex." By contrast, Jones, the petitioner's friend, supposedly with nothing to gain, corroborated the complaining witness' testimony and contradicted her cousin. In closing arguments, the State pointed to this contrast at least twice, telling the jury that they should believe Jones because he "has no acts [sic] to grind." This was not completely true. Jones in fact had an axe to grind in the form of his soon to be filed sentence modification application.
In addition, Attorney Spinella informed Attorney Weingast, in connection with Jones' sentence modification application that Jones was "very helpful" in the State's case against the petitioner and "was of assistance in obtaining conviction."
While it is true that Attorney Weingast was not under oath when he made these statements to Judge Gold, he did so as an officer of the court. Further, Attorney Carlson had an opportunity himself to ask Attorney Spinella about the value of Jones' cooperation. Instead, he chose to "leav[e] it to Attorney Weingast to attempt to persuade" Judge Gold. Having chosen to accept Attorney Weingast's representations regarding what Attorney Spinella said, the State has little ground to dispute them now. Finally, the State offered into evidence the transcript of the hearing before Judge Gold, and it was admitted as a full exhibit in this matter. When Attorney Spinella testified in this matter he could have taken issue with Attorney Weingast's representations to Judge Gold. He did not.
Finally, there was not an abundance of other corroborating evidence that supported the jury's verdict. There was no physical evidence of force — no injuries, no blood, no torn clothing. The court is in no way suggesting that such evidence is required in a sexual assault case. It is merely pointing out what the State acknowledged in its closing argument. This case came down to whether or not the jury believed the complaining witness. And where the testimony of the complaining witness is brought into question by one eyewitness, but supported by another, the credibility of the corroborating witness takes on particular significance in the absence of other evidence.
Given all of the above, the court finds that there is a reasonable probability that had the State disclosed its discussions with Jones' attorney, the result of the trial would have been different. Given the significance of Jones' testimony in corroborating the complaining witness' testimony and contradicting that of her cousin, the State's failure to disclose the impeachment material undermines confidence in the outcome of the trial. The petitioner has met the third Brady prong. The information withheld was material.
V CONCLUSION
For the reasons set forth above, the Petition for New Trial is GRANTED.