Adams v. Comm'r of Corr.

• Citation: 71 A.3d 512,309 Conn. 359
• Decision Date: 23 July 2013
• Docket Number: No. 18810.,18810.
• Court: Connecticut Supreme Court
• Parties: Sean ADAMS v. COMMISSIONER OF CORRECTION.

309 Conn. 359

71 A.3d 512

Sean ADAMS

v.COMMISSIONER OF CORRECTION.

No. 18810.

Supreme Court of Connecticut.

Argued Nov. 2, 2012.

Decided July 23, 2013.

Robert J. Scheinblum, senior assistant state's attorney, with whom were Kevin T. Kane, chief state's attorney, and, on the brief, Michael Dearington, state's attorney, Linda N. Howe, former senior assistant state's attorney, and David Clifton, assistant state's attorney, for the appellant (respondent).

Damon A.R. Kirschbaum, for the appellee (petitioner).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH and HARPER, Js.^*

PALMER, J.

This petition for habeas corpus arises from the state's failure to correct the false and misleading testimony of one of its key witnesses in the trial of the petitioner, Sean Adams, who, following that trial, was convicted of murder and other offenses, and sentenced to 100 years in prison. The respondent, the commissioner of correction, appeals from the judgment of the Appellate Court, which reversed the judgment of the habeas court denying the petitioner's amended petition for a writ of habeas corpus. See Adams v. Commissioner of Correction, 128 Conn.App. 389, 399, 17 A.3d 479 (2011). We granted the respondent's petition for certification, limited to the following issue: “Did the Appellate Court properly conclude that the state deprived the petitioner of a fair trial by failing to disclose [a key witness'] plea agreement or to correct misleading testimony [by that witness]?” Adams v. Commissioner of Correction, 301 Conn. 930, 930–31, 23 A.3d 725 (2011). Because the respondent has conceded that the state was required but failed to correct false and misleading testimony, the only remaining question concerns materiality: Is there any reasonable likelihood that the testimony could have affected the judgment of the jury? We agree with the Appellate Court that the testimony was material and, consequently, that the petitioner is entitled to a new trial.

The following facts and procedural history are not in dispute. The petitioner, Darcus Henry, Johnny Johnson and Carlos Ashe, all identified as members of a street gang known as the Island Brothers, were arrested and charged in connection with a shooting that occurred on December 14, 1996, at approximately 2 a.m., in a courtyard at the Farnam Courts housing project in the city of New Haven. The three victims of the attack were Jason Smith, Andre Clark (Andre) and Marvin Ogman, all members of a rival street gang known as the Ghetto Boys. Each of the three victims was shot multiple times and suffered serious wounds, and Smith, who was Andre's cousin, died from those wounds. Andre and Ogman were the state's primary witnesses at the ensuing jury trial of the petitioner and his three codefendants, Henry, Johnson and Ashe. At the conclusionof that trial, the petitioner was found guilty of all charges, that is, murder, conspiracy to commit murder and two counts of assault in the first degree.¹

At trial, Andre testified falsely that he had not been promised any consideration on his then pending charges in two unrelated criminal cases in exchange for his testimony against the petitioner and the petitioner's codefendants.² Andre also testified that he faced a possible maximum sentence of thirty-eight years imprisonment for those pending charges, even though the judge who accepted his pleas, Fasano, J., had placed a four year limitation on Andre's sentence, with the possibility of a more lenient sentence, conditioned on Andre's cooperation with the state.³ Assistant State's Attorney James G. Clark (prosecutor),⁴ who tried the petitioner's case for the state, did not correct Andre's false testimony, apparently because he was unaware of Andre's plea agreement as Andre's cases were being handled by another prosecutor, namely, Assistant State's Attorney Roger Dobris. Following his conviction, the petitioner appealed to the Appellate Court, which affirmed the judgment of the trial court.⁵State v. Adams, 72 Conn.App. 734, 736, 806 A.2d 111, cert. denied, 262 Conn. 916, 811 A.2d 1292 (2002).

The petitioner subsequently filed this petition for a writ of habeas corpus, claiming, inter alia, that the state had deprived him of a fair trial by failing to correct Andre's false testimony.⁶ At the habeas trial, the prosecutortestified that he was aware that Andre had pending charges at the time of the petitioner's trial and that he also knew that Dobris was handling Andre's cases. The prosecutor and Dobris had agreed not to share any details with each other about Andre's pending cases and the petitioner's trial, effectively setting up a “firewall” between them.⁷ The evidencealso established that, on December 16, 1998, Andre entered Alford⁸ pleas in two separate cases on one count of carrying a pistol without a permit and two counts of possession of narcotics with intent to sell. Andre accepted the court's plea offer of a sentence of no more than four years imprisonment, with the right to argue for less, conditioned on his cooperation with the state.⁹ Although the court originally set sentencing for February 19, 1999, Andre was not sentenced until September 14, 2001, after he had testified in all three trials stemming from the December 14, 1996 shooting, including the petitioner's trial.¹⁰ At Andre's sentencing hearing, Dobris recommended that the court vacate Andre's pleas on two of the charges and impose an unconditional discharge on the third charge. In support of this request, Dobris observed that Andre “ha[d] testified [in] three trials that I know of in which he was a gunshot victim and also an eyewitness. He's being shown consideration for his truthful cooperation and testimony.... He's been enormously cooperative.” ¹¹ The court, Fasano, J., followed Dobris' recommendations, and Dobris dropped the two charges to which Andre had entered the subsequently vacated pleas.

The habeas court assumed without deciding that Andre's testimony at the petitioner's trial was false and misleading but concluded that, notwithstanding the state's failure to correct that testimony, the petitioner had not demonstrated materiality. The court reasoned that, even if the jury had been informed of any consideration that Andre may have expected to receive in exchange for his testimony, there was only a slight probability that such information would have affected the outcome of the petitioner's trial. The habeas court also observed that the court, Fasano, J., rather than the state, had offered to limit Andre's sentence to four years imprisonment in return for his trial testimony, thereby “further weakening [the] probability” of a different outcome and “further abating the petitioner's theory of the case.” ¹²

The petitioner appealed, on the granting of certification, to the Appellate Court, which reversed the judgment of the habeas court. Adams v. Commissioner of Correction, supra, 128 Conn.App. at 399, 17 A.3d 479. The Appellate Court observed the respondent's concession on appeal that the state improperly had failed to correct Andre's false testimony. Id., at 396, 17 A.3d 479. The court explained that, because Andre's false testimony related directly to his credibility on the issue of his motivation for cooperating with the state, there was a reasonable likelihood that the testimony could have affected the jury's judgment; id., at 399, 17 A.3d 479; thereby entitling the petitioner to a new trial. This certified appeal followed.

On appeal, the respondent concedes, as he did in the Appellate Court, that the state had a constitutional duty to correct Andre's false and misleading testimony with respect to the terms on which Andre's plea agreement were predicated.¹³ The respondent maintains, however, that, contrary to the conclusion of the Appellate Court, the state's failure to correct Andre's false testimony was not material because (1) the jury knew about Andre's pending charges and his interest in demonstrating to the state that, in light of his cooperation with the state, he was deserving of its assistance in obtaining a favorable disposition of those charges, (2) Andre had a strong incentive to testify truthfully, both as a victim of the shooting and as a witness to his cousin's murder, (3) Andre was cross-examined extensively and thoroughly impeached by defense counsel at the criminal trial of the petitioner and his codefendants, and (4) there was strong, independent evidence corroborating the petitioner's guilt, in particular, the testimony of Ogman and Charles Clark. The petitioner responds that, in light of the dearth of physical evidence tying him to the shooting, the fact that Ogman, one of the state's key witnesses, lacked credibility, and the effectiveness with which Andre thwarted every effort by defense counsel to suggest that he was motivated by the prospect of leniency rather than the desire for justice, the state's failure to correct Andre's false testimony was material. We agree with the petitioner.¹⁴

The rules governing our evaluation of a prosecutor's failure to correct false or misleading testimony are derived from those first set forth by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 86–87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and we begin our consideration of the respondent's claim with a brief review of those principles. In Brady, the court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process [when] the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the [prosecutor].” ¹⁵Id., at 87, 83 S.Ct. 1194; accord State v. Cohane, 193 Conn. 474, 495, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984). The United States Supreme Court also has recognized that “[t]he jury's estimate of the truthfulness and reliability of a ... witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest...