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*********************************************** 
JAMIE R. GOMEZ v. COMMISSIONER OF

CORRECTION

(AC 39328)

Lavine, Kahn and Bishop, Js.*

Syllabus

The petitioner, who had been convicted of the crimes of murder, felony

murder, and conspiracy to commit murder, sought a writ of habeas

corpus, claiming, inter alia, that his due process rights were violated

by the state’s suppression of material exculpatory evidence in violation

of Brady v. Maryland (373 U.S. 83). Specifically, he claimed that the

state failed to disclose certain consideration that allegedly had been

offered in exchange for the testimony of two witnesses, V and S, both

of whom had been charged with various crimes in connection with

the underlying murder. The petitioner claimed that express agreements

existed between the state and V and S to bring their cooperation to the

attention of the sentencing court, and that the state had failed to disclose

such agreements. The habeas court rendered judgment denying the

habeas petition, from which the petitioner, on the granting of certification, appealed to this court. Held:

1. The habeas court properly concluded that the state had not committed

a Brady violation with respect to the agreements that existed between

the state and V and S; that court’s finding that agreements existed

between the state and V and S, and that the agreements were limited

to bringing their cooperation to the attention of the judicial authority

posttrial was not clearly erroneous and was supported by the record,

and because the evidence also supported the habeas court’s finding that

the state had disclosed the agreements, no Brady violation occurred.

2. The petitioner could not prevail on his claim that the state improperly

failed to disclose impeachment evidence relating to how it had assisted

in reducing bonds for V and S, which was based on his claim that

transcripts of bond hearings involving V and S revealed the consideration

offered to them with respect to a reduction of their bonds; the habeas

court properly concluded that the petitioner failed to prove a Brady

violation with respect to evidence of an informal understanding between

the state and V and S, as the petitioner had equal access to the transcripts

of the bond hearings and did not present any evidence at the habeas

trial indicating an inability to obtain them.

3. The petitioner could not prevail on his claim that the state violated his

rights to due process and a fair trial when, during his criminal trial, it

knowingly presented, and failed to correct, the false testimony of V and

S that they had not received any consideration from the state in exchange

for their testimony, even though the state had promised to bring their

cooperation to the attention of the sentencing court and had provided

assistance in lowering their bonds; where, as here, the habeas court

reasonably concluded that the state’s express agreements to bring the

cooperation of V and S to the attention of the judicial authority posttrial

had been disclosed, the statements made during the bond modification

hearings, which formed the substantive basis of the petitioner’s claims

with respect to undisclosed evidence of an informal understanding, took

place in open court, and the petitioner had equal access to the transcripts

for those proceedings, the petitioner failed to prove the existence of an

undisclosed agreement or understanding, and, therefore, the state was

not required to correct the allegedly false testimony of V and S.

4. The habeas court properly concluded that the petitioner was not denied

the effective assistance of counsel as a result of the alleged failure of

his trial counsel to adequately cross-examine V and S regarding their

alleged agreements or understandings with the state; even if trial counsel

was deficient in failing to specifically impeach V and S with certain

transcripts, the petitioner failed to prove that he was prejudiced thereby,

as the jury knew of the substantive terms of the witnesses’ agreements

with the state, could have reasonably inferred a connection between

their cooperation and their reduced bonds, and was fully informed that

the witnesses might have potential biases against the petitioner, and,
therefore, there was not a reasonable probability that the outcome of

the petitioner’s criminal trial would have been different had trial counsel

impeached the witnesses with the various transcripts.

Argued September 11—officially released December 12, 2017

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district of

Tolland, and tried to the court, Oliver, J.; judgment

denying the petition, from which the petitioner, on the

granting of certification, appealed to this court.

Affirmed.

Andrew P. O’Shea, assigned counsel, for the appellant (petitioner).

Stephen Carney, senior assistant state’s attorney,

with whom, on the brief, were Michael L. Regan, state’s

attorney, and Theresa Anne Ferryman, senior assistant

state’s attorney, for the appellee (respondent).
Opinion

LAVINE, J. The petitioner, Jamie Gomez, appeals

from the judgment of the habeas court denying his

second petition for a writ of habeas corpus. Following

that denial, the court granted his petition for certification to appeal. On appeal, the petitioner claims that the

habeas court erred when it concluded that (1) his state

and federal constitutional due process rights were not

violated by the state’s suppression of material exculpatory evidence concerning agreements or understandings that it allegedly had with two of its witnesses, (2)

the state did not violate his state and federal constitutional rights to due process by knowingly presenting,

and failing to correct, the false testimony from those

witnesses, and (3) he was not denied his state and

federal constitutional rights to the effective assistance

of counsel when his trial counsel failed to properly

cross-examine those witnesses regarding their alleged

agreements or understandings with the state. Because

we conclude that the petitioner failed to prove that the

agreements or understandings were not disclosed, we

are unpersuaded by the petitioner’s first and second

claims. We are also unpersuaded by the petitioner’s

third claim because, even if it is assumed that his trial

counsel provided constitutionally deficient representation, the petitioner failed to prove that he was prejudiced. Accordingly, we affirm the judgment of the

habeas court.1

The following facts and procedural history are relevant. In connection with the murder of Darrell Wattley,

the state charged the petitioner and his codefendants,

Anthony Booth and Daniel Brown, each with one count

of murder in violation of General Statutes § 53a-54a, one

count of felony murder in violation of General Statutes

§ 53a-54c, and one count of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and

53a-54a.2 The factual backdrop underlying the charges

is set forth in our Supreme Court’s decision and need

not be repeated in full for this appeal. See State v. Booth,

250 Conn. 611, 614–17, 737 A.2d 404 (1999) (consolidated trial with three codefendants and Supreme Court

consolidated appeals), cert. denied sub nom. Brown v.

Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed.

2d 471 (2000).

The following facts from that decision, however, provide context for the petitioner’s second habeas petition.

On July 4, 1995, James ‘‘Tiny’’ Smith and Wattley fought

one another at a party. Id., 614. During the fight, Wattley

sliced Smith’s throat with a box cutter, wounding him.

Id. On July 13, 1995, when Smith, Brown, and the petitioner were at Booth’s apartment in New London,

‘‘Booth told them that he had asked Angeline Valentin,

who lived in the same building, to call Wattley over to

the building so that Wattley and Smith could fight.’’ Id.
‘‘When Valentin called to say that Wattley was on his

way, the four men left the building and went outside.

[The petitioner] and Brown went to the north side of

the building while Smith and Booth went to the south

side and hid behind a bush. While they were waiting,

Booth was talking on a cellular telephone to either

Brown or [the petitioner]. After approximately fifteen

minutes, a car arrived and Wattley got out. Wattley

walked toward the north end of the building, where

Brown and [the petitioner] were waiting. Smith and

Booth then entered the building on the south side and

began to ascend the stairs. When Smith and Booth

reached the third floor, where Valentin’s apartment was

located, they heard gunshots below. Smith and Booth

then ran to exit the building. As they descended the

stairs, they saw Wattley lying face down in the second

floor hallway with blood everywhere. Booth then

stabbed Wattley a couple of times before Smith and

Booth fled the building.’’ Id., 614–15. Shortly after the

incident, the petitioner drove his codefendants and

Smith across town, where they all agreed to come up

with alibis. Id., 615.

Following a consolidated jury trial, the petitioner and

his codefendants were found guilty of murder and conspiracy to commit murder. Id., 613. During the consolidated trial, John F. Cocheo, now deceased, represented

the petitioner, Jeremiah Donovan represented Brown,

and Bruce Sturman represented Booth. On January 7,

1997, the court, Parker, J., sentenced the petitioner to

a term of imprisonment of fifty years on the murder

conviction and a concurrent sentence of fifteen years

on the conspiracy to commit murder conviction, for

a total effective sentence of fifty years to serve. Our

Supreme Court affirmed the petitioner’s conviction. See

id., 617, 663.

On September 18, 2000, the petitioner filed his first

self-represented petition for a writ of habeas corpus

(first petition). In a two count revised petition, he

alleged ineffective assistance of counsel against Cocheo

and actual innocence. The habeas court denied his first

petition, and this court affirmed the denial. See Gomez

v. Commissioner of Correction, 80 Conn. App. 906, 836

A.2d 1279 (2003), cert. denied, 267 Conn. 917, 841 A.2d

219 (2004).

On May 16, 2013, the petitioner filed a second selfrepresented petition for a writ of habeas corpus. In his

amended petition (present petition), he first alleged that

the state violated his right to due process by failing to

disclose material exculpatory evidence. Specifically, he

alleged that the state told Smith and Valentin that, in

exchange for their testimony, it would assist in (1)

reducing their bonds and (2) disposing of their charges

in a manner favorable to them, and that it failed to

disclose this information.3 He also alleged that the state

violated his right to due process when the prosecutor
failed to correct the false testimony of Smith and Valentin, who both testified at the consolidated trial that the

state had not offered them ‘‘consideration’’ in exchange

for their testimony. Additionally, he alleged that

Cocheo’s failure to adequately impeach Valentin and

Smith deprived him of his right to the effective assistance of trial counsel.4 The respondent, the Commissioner of Correction, filed his return on January 12,

2016, denying the material allegations of the present

petition.5

On May 23, 2016, the habeas court denied the present

petition in a written decision. It made several relevant

findings of fact, including: ‘‘(a) The petitioner has failed

to demonstrate that underlying trial counsel (Cocheo)

was unaware of the existence of an agreement between

Smith and Valentin and the prosecuting authority to

bring their cooperation to the attention of the judicial

authority posttrial. The evidence demonstrated that at

least one other defense attorney in the consolidated

trial was made aware of the agreement; (b) The petitioner has failed to demonstrate that the underlying

trial testimony of Smith and Valentin was ‘false’ as suggested by the petitioner, as opposed to, for example,

their uncertainty as to the likely posttrial sentencing

scenario. The nature and circumstances of Smith and

Valentin’s ‘agreements’ were thoroughly explored and

dissected on both direct and cross-examination. There

is no reasonable probability that the jury was misled

in this regard; (c) Nothing about the nature of the

agreements or their disclosure was violative of Brady6

or Giglio [v. United States, 405 U.S. 150, 92 S. Ct. 763,

31 L. Ed. 2d 104 (1972)]7

; and (d) The petitioner has

failed to demonstrate, as was the case in the first habeas

trial, that Attorney Cocheo was deficient in any regard,

including cross-examining Smith and Valentin.’’ (Footnotes added.)

The petitioner filed a motion for articulation, which

the habeas court denied on September 23, 2016. He did

not seek review of that denial. See Practice Book §§ 66-

5 and 66-7. This appeal followed. Additional facts will

be set forth as necessary.

‘‘In evaluating the merits of the underlying claims on

which the petitioner relies in the present appeal, we

observe that [when] the legal conclusions of the court

are challenged, [the reviewing court] must determine

whether they are legally and logically correct . . . and

whether they find support in the facts that appear in

the record. . . . To the extent that factual findings are

challenged, this court cannot disturb the underlying

facts found by the habeas court unless they are clearly

erroneous. . . . [A] finding of fact is clearly erroneous

when there is no evidence in the record to support it

. . . or when although there is evidence to support it,

the reviewing court on the entire evidence is left with

the definite and firm conviction that a mistake has been
committed.’’ (Internal quotation marks omitted.) Diaz

v. Commissioner of Correction, 174 Conn. App. 776,

785–86, 166 A.3d 815, cert. denied, 327 Conn. 957,

A.3d (2017). Because the issues presented in this

appeal involve mixed questions of law and fact, our

review is plenary. See, e.g., George M. v. Commissioner

of Correction, 290 Conn. 653, 659, 966 A.2d 179 (2009).

I

We begin with the petitioner’s claim that the state

failed to disclose the ‘‘consideration’’ that it had allegedly offered Valentin and Smith in exchange for their

testimony. We understand his claim to be supported by

two separate arguments. First, he appears to argue that

express agreements existed between the state and the

witnesses to bring their cooperation to the attention of

the sentencing court, and that the state failed to disclose

them.8 Second, he appears to argue that the state failed

to disclose impeachment evidence relating to how the

state assisted in reducing the witnesses’ bonds. The

respondent argues that the record demonstrates that

the state had disclosed the existence and terms of any

agreement between the state and the witnesses. Additionally, the respondent argues that any statements

made during the bond hearings for Valentin and Smith,

which form the basis of the petitioner’s claim, ‘‘were

public proceedings, open to anyone with interest, and

transcripts were presumably available upon request.’’

We agree with the respondent.

The following additional facts and procedural history

are relevant. On September 13, 1995, Valentin testified

during a probable cause hearing for Booth that implicated Booth in Wattley’s murder. During Valentin’s

bond hearing on October 5, 1995, Bernard Steadman,

her attorney, represented: ‘‘I have discussed this matter

with the state and they would—my understanding is

that there would be no objection to her moving out of

state, should she be released on a bond, and provided

that she maintain contact with—to or with their office

either through me or directly.’’ Steadman asked the

court to consider releasing Valentin on a promise to

appear and allowing her to travel to New Jersey given

her cooperation with the state and because Wattley’s

murder appeared to be gang related. Paul E. Murray,

the supervisory assistant state’s attorney (prosecutor),9

informed the court: ‘‘I did indicate to [Steadman], Your

Honor, that I would bring to the court’s attention [Valentin’s] cooperation, and I think I’ve done that.’’ The prosecutor also informed the court that he had spoken with

Valentin’s mother about Valentin going to New Jersey

and that ‘‘both [Valentin] and her mother have agreed

. . . to keep the state apprised as to her location and

how she can be reached . . . .’’ In the event that she

did not keep the state apprised of her location, the

prosecutor stated that ‘‘[the state] will find her and she

will have forfeited whatever benefits she has gained
from her cooperation to this point.’’ He also stated: ‘‘I’m

not sure whether a promise to appear is the appropriate

thing, but I think certainly a substantial reduction in

her bond is appropriate.’’ Thereafter, the prosecutor

stated that he would not object to a written promise

to appear and informed the court: ‘‘I think if I were in

your position, I would not be averse to a written promise

to appear. I’m trying to be careful as to—as to the

record I’m making.’’

After considering, inter alia, the ‘‘cooperative aspects

of this matter,’’ the court, Purtill, J., reduced Valentin’s

bond from $100,000 to a written promise to appear and

permitted her to reside in New Jersey. Immediately

following that decision, the following colloquy took

place in open court:

‘‘[The Prosecutor]: . . . For the record, I would indicate I do not disagree at all with the court’s decision.

I was trying to be careful with the record because of

obvious cross-examination effect. In consideration, I

want the record to be clear that the only representations made to [Valentin] were that any cooperation

would be brought to the attention of the sentencing

court. There was no quid pro quo for a specific bond

recommendation.

‘‘[Steadman]: That is true, Your Honor.’’ (Emphasis

added.)

On March 14, 1996, during a consolidated probable

cause hearing for Brown and the petitioner, Smith provided testimony that implicated Brown and the petitioner in Wattley’s murder. The petitioner and Cocheo

attended this hearing, and so did Donovan, Brown’s

lawyer. At the beginning of Smith’s testimony, the following examination took place in open court:

‘‘[The Prosecutor]: And you are in fact charged with

murder, felony murder, and conspiracy to commit murder with respect to the case that we are going to talk

about, is that right?

‘‘[Smith]: Yes.

‘‘[The Prosecutor]: And is it fair to say that other

than bringing your cooperation to the attention of the

sentencing court, you haven’t been promised anything

in return for your testimony?

‘‘[Smith]: No.

‘‘[The Prosecutor]: You say ‘no.’ That is the truth,

isn’t it?

‘‘[Smith]: That’s the truth.’’ (Emphasis added.)

On May 3, 1996, approximately two months after

Smith testified at the consolidated probable cause hearing, the court, Parker, J., addressed Smith’s motion for

modification of his bond. The state did not object to

the motion. Counsel for Smith represented that the reasons for requesting a bond modification were that
Smith’s life had been threatened and he had cooperated

with the state. Thereafter, the court reduced Smith’s

bond from $500,000 to $100,000 and permitted him to

travel throughout the continental United States.

On May 10, 1996, the court, Purtill, J., amended the

terms of Smith’s bond, making it a $100,000 nonsurety

bond with a nominal real estate bond. During this hearing, the prosecutor stated that the state had been in

contact with a parole officer in Alabama, who agreed

to arrange weekly reporting with Smith if he were

allowed to reside there. The court asked that the state

‘‘reduce that condition to writing and give a copy to

. . . Smith.’’ Smith was then permitted to be released

on bond.

At his habeas trial on the present petition, the petitioner called Donovan, trial defense counsel for Brown,

and Sturman, trial defense counsel for Booth, to testify.

Many of the questions that the petitioner asked on direct

examination related to whether Donovan or Sturman

had seen the bond hearing transcripts for Valentin and

Smith, and whether they would have impeached Valentin and Smith with the information contained in those

transcripts. Specifically, the petitioner asked Donovan

and Sturman whether they would have impeached

Valentin and Smith regarding the state’s promise to

bring their cooperation to the attention of the sentencing judge and whether they would have impeached

those witnesses with the ‘‘connection’’ between their

cooperation and their reduced bonds. Donovan and

Sturman both testified that they would have used the

testimony from those transcripts to impeach Valentin

and Smith. And neither Donovan nor Sturman recalled

seeing the bond modification hearing transcripts prior

to testifying at the habeas trial on the present petition.

Donovan also testified that, on four or five occasions,

‘‘[the prosecutor] told me . . . that the only promise

that had been [made] to [Valentin and Smith] is [that]

their cooperation would be brought to the attention of

the judge.’’ On the basis of his extensive experience

dealing with the New London County Office of the

State’s Attorney, he also testified that the general procedure was not to offer specific ‘‘deals.’’

Contrary to Donovan’s testimony, Sturman testified

that, although he knew that Valentin had been released

on a reduced bond, he was never informed that the

state had offered any promises to either Valentin or

Smith in exchange for their cooperation. He echoed

Donovan’s testimony, however, that the standard procedure in New London ‘‘was that no specific deals were

made between a cooperating witness and the prosecution.’’

The respondent did not call any witnesses or present

any evidence beyond cross-examination of Donovan

and Sturman. During his argument to the habeas court,
the petitioner focused on the contents of the bond hearing transcripts in support of his Brady claim, noting

that Donovan and Sturman ‘‘had never seen these proceedings. They didn’t know this information [contained

in the witnesses’ bond hearing transcripts].’’

‘‘The defendant has a right to the disclosure of exculpatory evidence under the due process clauses of both

the United States constitution and the Connecticut constitution. . . . In order to prove a Brady violation, the

defendant must show: (1) that the prosecution suppressed evidence after a request by the defense; (2)

that the evidence was favorable to the defense; and (3)

that the evidence was material. . . . Any . . . understanding or agreement between any state’s witness and

the state police or the state’s attorney clearly falls within

the ambit of Brady principles. . . .

‘‘The question of whether there existed an agreement

between [a witness] and the state is a question of fact.’’

(Citations omitted; internal quotation marks omitted.)

Elsey v. Commissioner of Correction, 126 Conn. App.

144, 152–53, 10 A.3d 578, cert. denied, 300 Conn. 922,

14 A.3d 1007 (2011). ‘‘Furthermore, the burden is on

the defendant to prove the existence of undisclosed

exculpatory evidence.’’ State v. Floyd, 253 Conn. 700,

737, 756 A.2d 799 (2000).

As previously noted, the petitioner essentially makes

two separate arguments in support of his Brady claim.

First, he contends that express agreements existed

between the state and Valentin and Smith to bring their

cooperation to the attention of the sentencing court,

and that the state failed to disclose them. Second, the

petitioner argues that the state failed to disclose

impeachment evidence relating to how the state

assisted in reducing the bonds for Valentin and Smith.

We reject each argument and address them in turn.

A

The petitioner first argues that express agreements

existed between the state and the witnesses to bring

their cooperation to the attention of the sentencing

court, and that the state failed to disclose them. We

agree that the state had express agreements with Valentin and Smith to bring their cooperation to the attention

of the sentencing court, but disagree that the state failed

to disclose them.

The habeas court found: ‘‘The petitioner has failed

to demonstrate that underlying trial counsel (Cocheo)

was unaware of the existence of an agreement between

Smith and Valentin and the prosecuting authority to

bring their cooperation to the attention of the judicial

authority posttrial. The evidence demonstrated that at

least one other defense attorney in the consolidated

trial was made aware of the agreement.’’ This finding

is relevant in two material respects. First, it indicates

that the habeas court found that agreements did, in
fact, exist, and that they were limited to ‘‘bring[ing]

[Valentin’s and Smith’s] cooperation to the attention

of the judicial authority posttrial.’’ Second, the court’s

finding indicates that another defense attorney was

aware of these agreements that the state had with Valentin and Smith and that the petitioner failed to prove

that Cocheo was unware of such agreements.

On the basis of our review of the record, we conclude

that the habeas court’s finding that agreements existed

between the state and the cooperating witnesses, and

that the agreements were limited to bringing their cooperation to the attention of the judicial authority posttrial, was not clearly erroneous. The prosecutor’s

statements during Valentin’s bond hearing on October

5, 1995, indicate that an agreement existed with Valentin. The prosecutor’s direct examination of Smith during

the petitioner’s consolidated probable cause hearing

on March 14, 1996, which Cocheo and the petitioner

attended, also indicates that the state had an agreement

with Smith. During Valentin’s bond hearing, Valentin’s

attorney confirmed that the agreement with Valentin

was limited to bringing her cooperation to the attention

of the sentencing authority and that it did not include

a quid pro quo for a specific bond recommendation.

Additionally, Donovan testified that the prosecutor

informed him on multiple occasions that agreements

existed, but that the only promise was to bring the

cooperation of Valentin and Smith to the attention of

the court. Because this evidence supports the habeas

court’s finding that the state had limited agreements

to bring the cooperation of Valentin and Smith to the

attention of the court posttrial, we conclude that the

habeas court’s finding was not clearly erroneous.10

The habeas court’s finding also reflects that the state

disclosed the agreements. During the habeas trial, Donovan admitted to knowing about the agreements

between the state and the witnesses. Cocheo and the

petitioner attended the petitioner’s consolidated probable cause hearing when the prosecutor asked Smith, in

open court, whether the state had promised him anything other than bringing his cooperation to the attention of the sentencing court. This evidence supports

the habeas court’s finding that the state disclosed the

agreements.

‘‘Evidence known to the defendant or his counsel, or

that is disclosed, even if during trial, is not considered

suppressed as that term is used in Brady.’’ (Internal

quotation marks omitted.) Hines v. Commissioner of

Correction, 164 Conn. App. 712, 726, 138 A.3d 430

(2016). Because the habeas court found that the

agreements had been disclosed, it properly concluded

that the state had not committed a Brady violation with

respect to the express agreements that existed.

B
The petitioner next argues that the state failed to

disclose impeachment evidence relating to how it

assisted in reducing the bonds for Valentin and Smith.

We disagree.

The petitioner appears to argue that the state offered

to assist in reducing the bonds for Valentin and Smith

in exchange for their testimony based on the following:

(1) they were required to stay in contact with the state

while out on bond; (2) the court considered their cooperation in reducing their bonds; and (3) the state did

not object to their motions to modify their respective

bonds. ‘‘Our Supreme Court has acknowledged that

even when certain undisclosed evidence did not support

a finding of an implied agreement between the state and

a witness, such evidence may nonetheless constitute

impeachment evidence under Brady if it reasonably

could be construed to suggest an ‘informal understanding’ between the state and a witness.’’ Elsey v. Commissioner of Correction, supra, 126 Conn. App. 155; see

also State v. Floyd, supra, 253 Conn. 740–46 (addressing

circumstances where state failed to disclose that it had

not opposed witness’ request to reduce bond to promise

to appear).

The petitioner’s argument that the state failed to disclose impeachment evidence stems from statements

made during the witnesses’ respective bond hearings.

He argues that the transcripts of these proceedings

reveal the ‘‘consideration’’ offered to Valentin and Smith

with respect to a reduction of their bonds. It is significant that the only evidence offered by the petitioner

of an informal understanding between the state and

Valentin and Smith regarding a reduction of their bonds

were these transcripts. ‘‘Brady is designed to assure

that the defendant is not denied access to exculpatory

evidence known or available to the state but unknown

or unavailable to him.’’ (Emphasis added.) State v.

Skakel, 276 Conn. 633, 702, 888 A.2d 985, cert. denied,

549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006).

Under the circumstances of the present case, the

habeas court properly concluded that the petitioner

failed to prove a Brady violation with respect to evidence of an informal understanding between the state

and Valentin and Smith.11 The petitioner had equal

access to the transcripts of the bond modification proceedings and did not present any evidence at the habeas

trial indicating an inability to obtain them. See, e.g.,

State v. Simms, 201 Conn. 395, 404–408, 518 A.2d 35

(1986) (rejecting defendant’s argument that state failed

to disclose evidence of witness’ mental health records

because relevant information was matter of public

record); State v. Crump, 43 Conn. App. 252, 263, 683

A.2d 402 (defendant failed to prove Brady violation

because, inter alia, he ‘‘failed to demonstrate that . . .

he did not know of [a victim’s] testimony or have the

opportunity to purchase the transcripts [from his cocon-
spirator’s] probable cause hearing and trial’’), cert.

denied, 239 Conn. 941, 684 A.2d 712 (1996). Accordingly,

the petitioner failed to prove that the state committed a

Brady violation with respect to impeachment evidence

relating to a reduction of the bonds for Valentin and

Smith.

II

We next address the petitioner’s claim that his rights

to due process and a fair trial were violated when the

state knowingly presented the false testimony of Valentin and Smith during his consolidated criminal trial.

Specifically, he argues that both witnesses falsely testified that they had not received any consideration from

the state in exchange for their testimony and that the

state failed to correct their false testimony. He argues

that the state, in fact, promised to bring their cooperation to the attention of the sentencing court and provided assistance in lowering their bonds.12 The

respondent argues, inter alia, that the petitioner’s claim

fails because the testimony in question did not involve

an undisclosed agreement or understanding. We agree

with the respondent.

The following additional facts and procedural history

are relevant. Smith and Valentin both testified on behalf

of the state during the petitioner’s consolidated trial.

At trial, Valentin implicated the petitioner and his codefendants in Wattley’s murder, but denied receiving any

consideration from the state in exchange for her testimony.13 Smith similarly implicated the petitioner and

his codefendants, but denied receiving consideration

from the state in exchange for his testimony.14 At oral

argument before this court, the respondent agreed that

the testimony of these witnesses was ‘‘significant’’ and

‘‘extremely important’’ to convicting the petitioner and

his codefendants.

‘‘Regardless of the lack of intent to lie on the part of

the witness, Giglio and Napue [v. Illinois, 360 U.S. 264,

79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959)] require that the

prosecutor apprise the court when he knows that his

witness is giving testimony that is substantially misleading. . . .

‘‘The prerequisite of any claim under the Brady,

Napue and Giglio line of cases is the existence of an

undisclosed agreement or understanding between the

cooperating witness and the state. . . . Normally, this

is a fact based claim to be determined by the trial court,

subject only to review for clear error.’’ (Citations omitted; emphasis added; internal quotation marks omitted.)

State v. Ouellette, 295 Conn. 173, 186–87, 989 A.2d 1048

(2010); see also State v. Jordan, 314 Conn. 354, 369–71,

102 A.3d 1 (2014) (setting forth governing standards for

proving that state failed to correct false or misleading

testimony); Adams v. Commissioner of Correction, 309

Conn. 359, 369–73, 71 A.3d 512 (2013) (same). ‘‘[T]he
burden is on the defendant to prove the existence of

undisclosed exculpatory evidence.’’ State v. Floyd,

supra, 253 Conn. 737.

We conclude that the petitioner’s Napue/Giglio claim

is controlled by our recent decision in Hines v. Commissioner of Correction, supra, 164 Conn. App. 712.

There, this court held that, where a case does not

involve an undisclosed agreement or understanding, the

state is not required to correct a witness’ allegedly false

testimony. Id., 728.15 As previously noted, the habeas

court reasonably concluded that the state’s express

agreements to bring the cooperation of Valentin and

Smith to the attention of the judicial authority posttrial

had been disclosed. Additionally, the statements made

during the bond modification hearings, which form the

substantive basis of the petitioner’s Brady, Napue, and

Giglio claims with respect to undisclosed evidence of

an informal understanding, took place in open court.

The petitioner had equal access to the transcripts for

those proceedings. See, e.g., General Statutes § 51-61

(c) (court reporter ‘‘shall, when requested, furnish . . .

to any other person, within a reasonable time, a transcript of the proceedings’’ [emphasis added]); State v.

Ross, 208 Conn. 156, 160, 543 A.2d 284 (1988) (noting

1988 amendment to § 51-61 permitting ‘‘any other person’’ to obtain transcript of proceedings). Under these

circumstances, the habeas court properly concluded

that the state did not violate Napue/Giglio, because the

petitioner failed to prove the existence of an undisclosed agreement or understanding.16

III

The petitioner’s final claim is that he was deprived

of his right to the effective assistance of trial counsel

when Cocheo failed to adequately cross-examine Valentin and Smith. Specifically, he argues that, if Cocheo

knew and had access to evidence that Valentin and

Smith received consideration from the state, objective

standards of reasonable performance required that he

impeach the witnesses with that evidence. He argues

that there is a reasonable probability that the outcome

of the trial would have been different if Cocheo had

used this evidence. We disagree.

The following additional facts and procedural history

are relevant. During his direct examination of Valentin,

the prosecutor questioned her about her pending charge

of accessory to assault in the first degree in connection

with Wattley’s murder. He specifically asked her

whether she had testified at a ‘‘preliminary hearing’’

and whether, subsequent to testifying, her bond was

reduced to a promise to appear. She agreed that her

bond was reduced after she testified at that hearing.

She further testified that she hoped that her testimony

against the petitioner and his codefendants would help

her case. Additionally, Donovan, Sturman, and Cocheo

each cross-examined her about the circumstances sur-
rounding her bond reduction.17

In response to the prosecutor’s questions, Smith

admitted that he faced criminal charges in connection

with Wattley’s murder, namely, murder, conspiracy to

commit murder, and felony murder. He testified that

he hoped that he would not go to jail and that his

testimony would show ‘‘that [he] had nothing to do with

this.’’ Smith further agreed with the prosecutor that his

bond was reduced after testifying at the consolidated

probable cause hearing for Brown and the petitioner,

that he returned to Alabama, and that the state paid

for his flight, hotel, and food while he was in Connecticut for the petitioner’s trial. As with Valentin, Donovan

and Sturman cross-examined Smith about his bond

reduction.18 Part of their cross-examination focused on

the potential connection between his cooperation and

a reduction in his bond.19 Other portions of their crossexamination sought to expose their defense theory that

Smith fabricated his testimony because he murdered

Wattley.20

Donovan, Sturman, and Cocheo also commented on

the circumstances surrounding the bond reductions for

Valentin and Smith during final arguments to the jury,

suggesting there was a connection between their bond

reductions and testimony. They argued that the jury

should consider this connection in assessing the witnesses’ credibility. The court also instructed the jury

to pay careful attention to ‘‘accomplice testimony’’ and

that such testimony ‘‘may be colored’’ by a witness’

hope for some favorable treatment.21

‘‘To succeed on a claim of ineffective assistance of

counsel, a petitioner must satisfy the two-pronged test

articulated in Strickland v. Washington, [466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. Strickland

requires that a petitioner satisfy both a ‘performance

prong’ and a ‘prejudice prong.’ To satisfy the performance prong, a [petitioner] must show that counsel’s

conduct fell below an objective standard of reasonableness for competent attorneys [as measured by prevailing professional norms]. . . . To satisfy the prejudice

prong, a [petitioner] must show a reasonable probability

that the outcome of the proceeding would have been

different but for counsel’s errors. . . . The claim will

succeed only if both [Strickland] prongs are satisfied.

. . . It is well settled that [a] reviewing court can find

against a petitioner on either ground, whichever is easier.’’ (Citations omitted; emphasis in original; internal

quotation marks omitted.) Arroyo v. Commissioner of

Correction, 172 Conn. App. 442, 458, 160 A.3d 425, cert.

denied, 326 Conn. 921, 169 A.3d 235 (2017). In these

circumstances, ‘‘[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.’’

(Internal quotation marks omitted.) Hinton v. Alabama,

U.S. , 134 S. Ct. 1081, 1089, 188 L. Ed. 2d 1 (2014).

Even if we were to assume, which we do not, that
Cocheo’s failure to specifically impeach Valentin and

Smith with the transcripts from the probable cause

hearings and their respective bond hearings constituted

deficient performance, we conclude that the petitioner

failed to prove prejudice.

The agreements that Valentin and Smith had with the

state did not require that the state advance a specific

recommendation in exchange for their testimony;

rather, the substance of the agreements was that both

Valentin and Smith hoped that their cooperative testimony might favorably be taken into account by the

sentencing court. During the consolidated trial, Valentin

and Smith both testified, in substance, that they hoped

that their cooperative testimony would be taken into

account with regard to their pending charges. Valentin

and Smith also agreed with the prosecutor that their

bonds were reduced following their testimony at the

probable cause hearings for Booth, Brown, and the

petitioner. And Cocheo and codefense counsel thoroughly explored the circumstances surrounding the

bond reductions for both witnesses. Questioning Valentin and Smith about the contents of the transcripts,

therefore, would have provided the jury with little additional information.

The court also informed the jurors that those witnesses who admitted to participating in the criminal

conduct charged by the state may be looking for favorable treatment and ‘‘may have such an interest in the

outcome of this case that his or her testimony may be

colored by that fact.’’ This instruction reminded the

jurors of Valentin’s and Smith’s potential biases, and

jurors are presumed to follow the court’s instructions.

See, e.g., State v. Fernandez, 169 Conn. App. 855, 870,

875, 153 A.3d 53 (2016).

Our conclusion is further buttressed by the closing

remarks of Cocheo and Sturman. Cocheo argued:

‘‘[Valentin] said, I had no idea at all I was going to be

released. I had no idea, hadn’t thought about it, hadn’t

talked about it at all. I ask you, is that credible? Is that

credible? All she says is that she hopes her testimony

will help her case. We know it helped so far; she’s not

in jail anymore.’’ Sturman argued during his closing,

‘‘don’t you think that [Smith’s] testimony is flavored by

his expectation of what’s going to happen if he continues to play ball?’’ Such closing remarks urged the jury

to discredit Valentin’s and Smith’s testimony based on

their reduced bonds and their cooperation with the

state.

We are not persuaded that there is a reasonable probability that, had Cocheo impeached Valentin or Smith

with either the probable cause hearing transcripts or

their respective bond hearing transcripts, the outcome

of the petitioner’s trial would have been different. The

jury knew of the substantive terms of the witnesses’

agreements with the state, could have reasonably
inferred a connection between their cooperation and

their reduced bonds, and was fully informed that the

witnesses might have potential biases against the petitioner. Under the circumstances of the present case,

we are confident that the outcome of the petitioner’s

trial would not have been different if Cocheo specifically impeached Valentin and Smith with the relevant

transcripts. The habeas court, therefore, properly concluded that the petitioner was not denied the effective

assistance of counsel at his criminal trial.

The judgment is affirmed.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 Although the petitioner claims that his rights under article first, §§ 8 and

9, of the constitution of Connecticut were violated, he has failed to provide

an independent analysis under our state constitution. Accordingly, we deem

his state constitutional claims abandoned. See, e.g., State v. Bennett, 324

Conn. 744, 748 n.1, 155 A.3d 188 (2017).

2 After the close of evidence, the state filed substitute informations against

the petitioner and Booth, which removed their felony murder charges and

charged each of them with one count of murder and one count of conspiracy

to commit murder.

3 The state charged Smith with murder, felony murder, and conspiracy to

commit murder, and also charged Valentin with accessory to assault in the

first degree in violation of General Statutes §§ 53a-8 and 53a-59.

On March 16, 2000, Smith pleaded guilty to manslaughter in the second

degree in violation of General Statutes § 53a-56 (a) (1) and was sentenced

to one year and three months incarceration. On January 13, 1997, Valentin

pleaded guilty to accessory to assault in the third degree in violation of

General Statutes §§ 53a-8 and 53a-61 (a) (1) and received a suspended sentence of one year.

4

In his present petition, the petitioner also raised claims of judicial bias

and ineffective assistance of counsel of his first habeas counsel. He withdrew

his judicial bias claim prior to trial and does not press his ineffective assistance of habeas counsel claim in this appeal.

5 The respondent did not plead procedural default or successive petition

with regard to any of the petitioner’s claims. See Practice Book §§ 23-29

and 23-30 (b); see also Zollo v. Commissioner of Correction, 133 Conn.

App. 266, 277–80, 35 A.3d 337 (discussing and applying successive petition

doctrine), cert. granted, 304 Conn. 910, 39 A.3d 1120 (2012) (appeal dismissed

May 1, 2013); Milner v. Commissioner of Correction, 63 Conn. App. 726,

731–34, 779 A.2d 156 (2001) (discussing procedural default). We, therefore,

decide this appeal on the merits of the petitioner’s claims. See, e.g., Quint

v. Commissioner of Correction, 99 Conn. App. 395, 403, 913 A.2d 1120 (2007)

(petitioner’s claim ‘‘should be heard on its merits’’ when respondent fails

to raise procedural default).

6 See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

7 See also Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d

1217 (1959).

8 The petitioner alleged in his present petition that the prosecuting authority offered to assist Valentin and Smith in ‘‘disposing of their charges in a

manner more favorable to them,’’ but failed to disclose such offers. In

support of this allegation, he only argues that an agreement existed to bring

the witnesses’ cooperation to the attention of the sentencing court. He made

this same, limited argument to the habeas court. He fails to direct our

attention to specific points in the record that otherwise support his claim.

We follow the petitioner’s lead and limit our analysis to his argument that

the state had express agreements with Valentin and Smith to bring their

cooperation to the attention of the sentencing court, but failed to disclose

them. See, e.g., Bharrat v. Commissioner of Correction, 167 Conn. App.

158, 181–82, 143 A.3d 1106 (declining to review argument on appeal that

was never raised in habeas court), cert. denied, 323 Conn. 924, 149 A.3d

982 (2016); see also Solek v. Commissioner of Correction, 107 Conn. App.

473, 480, 946 A.2d 239 (‘‘[i]t is not the responsibility of the trial judge . . .

to search a record, often, in a habeas case, involving hundreds of pages of
transcript, in order to find some basis for relief for a petitioner’’), cert.

denied, 289 Conn. 902, 957 A.2d 873 (2008).

After reviewing the record, however, we note that it does contain statements during Smith’s plea hearing, held on March 16, 2000, after our Supreme

Court affirmed the petitioner’s conviction, from which it can be inferred

that the state had an agreement or understanding with Smith. The following

colloquy took place between the prosecutor, Paul E. Murray, defense counsel

for Smith, Anthony Basilica, and the court in connection with the prosecutor

providing the factual basis for Smith pleading guilty to manslaughter in the

second degree:

‘‘[The Prosecutor]: We recognize and have recognized from the beginning

the value of [Smith’s] cooperation. It has been the state’s position that with

respect to . . . Booth, there was sufficient evidence and all probability to

convict . . . Booth of murder and conspiracy to commit murder without

the assistance of [Smith] because . . . Booth had been injudicious in his

comments and had made statements in the presence of police officers,

among other things, that clearly showed his involvement. With respect,

however, to . . . Gomez and . . . Brown, the state would have had a difficult, if not impossible, case without the assistance of [Smith]. It was in fact

[Smith’s] cooperation that led to their arrest. He testified at their probable

cause hearing, and he testified extensively at the trial. . . .

‘‘Early in the proceedings, after the trial of . . . Booth, Brown, and

Gomez, as long ago as when Judge Purtill was . . . still the presiding

judge in this judicial district on the criminal side, we had had discussions

about the disposition in this case, and the state has always offered a plea

to a manslaughter charge. And the state has always offered to agree to a

recommendation of the state of a ten year sentence to be served with [Smith]

reserving the right to argue for less. Again, as long ago as when Judge

Purtill was presiding and Judge Purtill had heard the testimony of [Smith]

at the probable cause hearing, Judge Purtill had indicated his inclination

to impose a substantially lesser sentence than the ten years that the state

was recommending. We have been aware of that from the beginning. And

I know that this court has indicated a sentence of, I believe, [fifteen]

months. . . .

‘‘So, that is the basis on which this plea is entered, and factual basis on

which the charges are brought.

‘‘The Court: Thank you. Attorney Basilica, is that what had been discussed

with . . . Smith?

‘‘[Basilica]: Yes, Your Honor.’’ (Emphasis added.)

The prosecutor’s statements during the March 16, 2000 proceeding suggest

that an agreement or understanding existed, at some point in time, between

the state and Smith regarding a favorable disposition to his pending criminal

charges. It is unclear on this record, however, as to precisely when that

agreement or understanding might have existed. The petitioner did not call

the prosecutor or Smith to testify during his habeas trial and, therefore, we

are left to speculate as to when such an agreement or understanding might

have existed.

9 Murray represented the state at the petitioner’s consolidated criminal

trial. He also represented the state in connection with the criminal proceedings against Valentin and Smith.

10 The habeas court concluded that no agreements existed between Valentin and Smith, on the one hand, and the state, on the other, insofar as there

was no specific agreement as to what sentence the state would recommend.

On the basis of our review of the record, that conclusion is amply supported

by the record. But that conclusion is incorrect, however, insofar as it ignores

the fact that the state had agreed to bring the cooperation of Valentin and

Smith to the attention of the sentencing court.

11 We note that the habeas court did not explicitly find that the state

disclosed or otherwise did not suppress the impeachment evidence relating

to how the state allegedly assisted Valentin and Smith in reducing their

bonds. The habeas court’s memorandum of decision simply concludes that

‘‘[n]othing about the nature of the agreements or their disclosure was violative of Brady or Giglio.’’ On the basis of the evidence before it, including

the transcripts from the respective bond hearings for both witnesses, it is

implicit in the habeas court’s conclusion that the petitioner failed to prove

that the state did not disclose or otherwise suppressed this impeachment

evidence. See, e.g., Charlotte Hungerford Hospital v. Creed, 144 Conn. App.

100, 116, 72 A.3d 1175 (2013) (appellate courts read ambiguous memorandum

of decision to support, rather than undermine decision).

12 As in his Brady claim, the petitioner makes the general assertion that
the witnesses received consideration from the state with respect to their

eventual sentences. As previously noted in footnote 8 of this opinion, we

understand the petitioner’s argument to be limited to the state’s promise to

bring Valentin’s and Smith’s cooperation to the attention of the sentencing court.

13 During direct examination, the prosecutor questioned Valentin about

her pending criminal charges. The following portion of that examination

is relevant:

‘‘[The Prosecutor]: Do you have any idea what’s going to happen to your

case in the end?

‘‘[Valentin]: No, I don’t.

‘‘[The Prosecutor]: Has anybody promised you anything?

‘‘[Valentin]: No.

***

‘‘[The Prosecutor]: Do you hope that by being here and testifying it will

help your case?

‘‘[Valentin]: Yes, I hope so.

‘‘[The Prosecutor]: But you don’t know for sure what’s going to happen?

‘‘[Valentin]: No.’’ (Emphasis added.)

Valentin subsequently confirmed that the state had not promised her

anything during cross-examination and redirect examination.

14 The prosecutor similarly asked Smith about his pending criminal charges

in connection with Wattley’s murder. The following exchange took place

during direct examination:

‘‘[The Prosecutor]: Do you have any idea what’s going to happen in the

criminal charges against you?

‘‘[Smith]: No, I don’t.

‘‘[The Prosecutor]: Did anybody promise you anything?

’’[Smith]: No.

’’[The Prosecutor]: Do you have some hopes as to what might happen to

them, at least in part as a result of your testimony?

‘‘[Smith]: Yes.

‘‘[The Prosecutor]: What do you hope?

‘‘[Smith]: That they find out the truth, and that I had nothing to do with

this.’’ (Emphasis added.)

Smith subsequently confirmed that the state had not promised him anything in return for his statements to police or testimony at trial, and that

there was no connection between his reduced bond and cooperating with

the state.

15 In his brief to this court, the petitioner argued that Hines should be

overruled and requested en banc consideration of his appeal. On July 26,

2017, this court denied the petitioner’s motion for en banc consideration.

16 Although we conclude that the present case is controlled by Hines’

rationale that the state is not required to correct a witness’ allegedly false

testimony when the case does not involve an undisclosed agreement or

understanding, we recognize that there is language in State v. Jordan, 135

Conn. App. 635, 42 A.3d 457 (2012), rev’d in part on other grounds, 314

Conn. 354, 102 A.3d 1 (2014), suggesting that a prosecutor is obligated to

correct the record under similar circumstances. In Jordan, this court held

that, although the state had informed the court and defense counsel of

agreements to bring two witnesses’ cooperation to the court’s attention, the

prosecutor still had a duty to correct the witnesses’ subsequent misleading

testimony when both witnesses denied the existence of any agreements

with the state. Id., 666. On appeal to our Supreme Court, the state raised

the alternative ground for affirmance in that this court improperly concluded

that the prosecutor had violated the standards set forth by Napue. State v.

Jordan, supra, 314 Conn. 366 n.6. Notably, our Supreme Court stated: ‘‘We

agree with the Appellate Court that the alleged improprieties were harmless

and thus need not reach the alternative grounds for affirmance. Nevertheless,

nothing in this opinion should be construed to suggest that we concur in the

Appellate Court’s determination that improprieties occurred.’’ (Emphasis

added.) Id., 369 n.7.

Nonetheless, this court and our Supreme Court have stated that a prerequisite to a claim under Brady, Napue, and Giglio is the existence of an

undisclosed agreement or understanding between the cooperating witness

and the state. State v. Ouellette, supra, 295 Conn. 186–87; Hines v. Commissioner of Correction, supra, 164 Conn. App. 728. Because of that precedent,

we affirm the habeas court’s decision that the state did not commit a Napue/

Giglio violation.

17 For example, the following examination took place during Donovan’s
cross-examination of Valentin:

‘‘[Donovan]: After you testified against . . . Booth, you were released

from jail, weren’t you?

‘‘[Valentin]: Yes, I was.

‘‘[Donovan]: Do you think there might be, there just might be, some

connection between you testifying against . . . Booth and your not being

in jail anymore?

‘‘[Valentin]: No.

‘‘[Donovan]: You don’t see any connection at all?

‘‘[Valentin]: (Witness nods in the negative.)’’

18 Cocheo did not cross-examine Smith about his bond reduction.

19 For example, the following exchange took place during Donovan’s crossexamination of Smith:

‘‘[Donovan]: . . . As you sit here today, you recognize that there’s some

connection between your being a free man today and your testifying against

these defendants?

‘‘[Smith]: Rephrase that again.

‘‘[Donovan]: Do you think that there may be a connection between your

being a free man today—

‘‘[Smith]: I’m not totally free.

‘‘[Donovan]: When you leave this courtroom, you’ll leave without shackles

on, right?

‘‘[Smith]: Yeah.

***

‘‘[Donovan]: But the point is, that there is a connection between your

being able to enjoy all those things and the fact that you’re sitting up on

the stand trying to put the blame on these men, isn’t there?

‘‘[Smith]: I’m just telling the truth.

***

‘‘[Donovan]: It just happens that you came in and testified in a probable

cause hearing, and then miraculously after that you were no longer in jail?

‘‘[Smith]: I was bonded out.’’

20 As noted by our Supreme Court, Wattley had sliced Smith’s throat with a

box cutter, ‘‘wounding him superficially,’’ roughly one week before Wattley’s

murder. See State v. Booth, supra, 250 Conn. 614. The defense theory for

Booth and Brown was that Smith had the motive to kill Wattley and did so

in retaliation for Wattley’s previous attack.

21 The court instructed the jury in relevant part: ‘‘Now, in this case, we

have what we call ‘accomplice testimony.’ Certain of the witnesses, by their

own testimony, participated in one way or another in the criminal conduct

charged by the state in this case. In weighing the testimony of [an] accomplice

who is a self-confessed criminal, you must consider that fact. . . .

‘‘Also, in weighing the testimony of [an] accomplice who has not yet been

sentenced or whose case has not yet been disposed of, you should keep in

mind that he or she may, in his or her own mind, be looking for or hoping

for some favorable treatment in the sentence or disposition of his or her

case, and that therefore, he or she may have such an interest in the outcome

of this case that his or her testimony may be colored by that fact. . . .

‘‘Therefore, the jury must look with particular care at the testimony of

accomplices and scrutinize it very carefully before you accept it.’’