Birch v. Warden, TTDCV01817907S

• Decision Date: 21 June 2016
• Docket Number: TTDCV01817907S,TTDCV156009781S,TTDCV124004924S,TTDCV156009683S
• Court: Connecticut Superior Court
• Parties: Ralph Birch v. Warden, State Prison; Shawn Henning v. Warden, State Prison

Ralph Birch v. Warden, State Prison;

Shawn Henning v. Warden, State Prison

Nos. TTDCV01817907S, TTDCV124004924S, TTDCV156009781S, TTDCV156009683S

Superior Court of Connecticut, Judicial District of Tolland, Somers, Geographic Area 19

June 21, 2016

UNPUBLISHED OPINION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), andState 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 17Gat 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 17Gat 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...