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*********************************************** 
MARK BOVA v. COMMISSIONER OF CORRECTION

(AC 43993)

Moll, Clark and Bear, Js.

Syllabus

The petitioner, who had previously been convicted of murder and conspiracy

to commit murder, filed an amended petition for habeas corpus, claiming, inter alia, that the state failed to disclose exculpatory evidence or

to correct certain false and misleading testimony, in violation of his due

process rights. At the petitioner’s criminal trial, D, a coconspirator,

testified as to how she and the petitioner were involved in the death of

the victim, and her testimony was corroborated by forensic evidence.

The habeas court rendered judgment dismissing in part and denying in

part the petitioner’s claims, from which the petitioner, on the granting

of certification, appealed to this court. Held that the petitioner could

not prevail on his claim that the habeas court erred in failing to find

the existence of a cooperation agreement or understanding between D

and the state with respect to D’s testimony: the petitioner’s reliance on

Gomez v. Commissioner of Correction (336 Conn. 168) was misplaced

because, even assuming the veracity of the petitioner’s allegations that

D was provided benefits in exchange for her cooperation, Gomez applies

only when a petitioner establishes the existence of an agreement

between the state and a witness and that the witness received some

benefit as a result of the agreement, and this court’s review of the record

confirmed the habeas court’s finding that the petitioner failed to prove

that the state had entered into an agreement or understanding with D;

moreover, with respect to the petitioner’s due process claim, the habeas

court’s finding that the petitioner had not proved that an agreement

or understanding existed between the state and D was supported by

substantial evidence.

Submitted on briefs January 26—officially released March 15, 2022

Procedural History

Amended petition for a writ of habeas corpus, brought

to the Superior Court in the judicial district of Tolland,

where the court, Newson, J., dismissed in part the petition; thereafter, the case was tried to the court, Seeley,

J.; judgment dismissing in part and denying in part the

petition, from which the petitioner, on the granting of

certification, appealed to this court. Affirmed.

J. Patten Brown III, assigned counsel, for the appellant

(petitioner).

Nancy L. Chupak, senior assistant state’s attorney,

with whom, on the brief, were Margaret E. Kelley, state’s

attorney, and Angela R. Macchiarulo and Michael Joseph

Proto, senior assistant state’s attorneys, for the appellee

(respondent).
Opinion

PER CURIAM. Following the granting by the habeas

court of his petition for certification to appeal, the petitioner, Mark Bova, appeals from the judgment of the

habeas court denying his third petition for a writ of

habeas corpus. On appeal, the petitioner claims that the

habeas court erred in failing to find the existence of a

cooperation agreement or understanding between Diana

Donofrio, a coconspirator, and the state with respect to

Donofrio’s testimony at the petitioner’s criminal trial.

We disagree with the petitioner’s claim of error and,

accordingly, affirm the judgment of the habeas court.

The following facts and procedural history are relevant

to our resolution of the petitioner’s appeal. After a jury

trial, the petitioner was found guilty of the murder of his

wife in violation of General Statutes § 53a-54a (a) and of

conspiracy to commit murder in violation of General

Statutes §§ 53a-48 (a) and 53a-54a (a). State v. Bova, 240

Conn. 210, 213, 690 A.2d 1370 (1997). At the petitioner’s

criminal trial, Donofrio testified as to how she and the

petitioner were involved in the death of the petitioner’s

wife. Id., 216–17.1 Donofrio’s testimony was corroborated

by forensic evidence presented at the trial. Id., 217–18.

The petitioner appealed from the judgment of the trial

court, which sentenced him to concurrent terms of sixty

years of incarceration on the murder conviction and

twenty years of incarceration on the conspiracy conviction. Id., 212–13. Our Supreme Court affirmed the judgment of the trial court. Id., 246.

On April 24, 2017, the petitioner filed his third petition

for a writ of habeas corpus.2 The petitioner subsequently

amended his petition on August 16, 2018, and September

13, 2018. In the operative petition, the petitioner asserted

claims of (1) judicial misconduct, (2) prosecutorial

impropriety, (3) insufficient probable cause, and (4) the

state’s failure to disclose exculpatory evidence or to correct false and misleading testimony with respect to an

informal agreement or understanding with Donofrio that,

in return for her testimony against the petitioner, the

state would provide her with various benefits, including

pretrial release on a $100,000 nonsurety bond, a reduction

in the severity of the charges against her, and no recommendation by the state concerning her sentence. On February 6, 2019, the habeas court dismissed the petitioner’s

claim of prosecutorial impropriety. On January 15, 2020,

after a trial, the habeas court dismissed the petitioner’s

claims of judicial misconduct and insufficient probable

cause. The habeas court also rendered judgment denying

the habeas petition because the petitioner had failed to

prove his claim that there was any agreement or understanding between the state and Donofrio for her testimony, and thus, the petitioner could not prove that the

state had not disclosed exculpatory evidence to him, or

failed to correct any false and misleading testimony by

Donofrio about any agreement or understanding with the
state with respect to her testimony.

On January 28, 2020, the petitioner filed a petition for

certification to appeal, which was granted by the habeas

court. On appeal, the petitioner claims that the court

erred in finding that no agreement or understanding

existed between Donofrio and the state concerning her

testimony.3 Specifically, the petitioner claims that his due

process rights were violated because Donofrio testified

falsely that she had not entered into an agreement with

the state, and the state failed to correct this false testimony. We disagree.

We begin by setting forth the applicable standard of

review. ‘‘The existence of an undisclosed plea agreement

is an issue of fact for the determination of the trial court.

. . . Furthermore, the burden is on the [petitioner] to

prove the existence of undisclosed exculpatory evidence.

. . . A finding of fact will not be disturbed unless it is

clearly erroneous in view of the evidence and pleadings

on the whole record . . . . [W]hen a question of fact is

essential to the outcome of a particular legal determination that implicates a defendant’s constitutional rights,

and the credibility of witnesses is not the primary issue,

our customary deference to the trial court’s factual findings is tempered by a scrupulous examination of the

record to ascertain that the trial court’s factual findings

are supported by substantial evidence.’’ (Citation omitted; internal quotation marks omitted.) Greene v. Commissioner of Correction, 330 Conn. 1, 29, 190 A.3d 851

(2018), cert. denied sub nom. Greene v. Semple, U.S.

, 139 S. Ct. 1219, 203 L. Ed. 2d 238 (2019).

In the present case, the petitioner relies on the decision

of our Supreme Court in Gomez v. Commissioner of

Correction, 336 Conn. 168, 243 A.3d 1163 (2020). This

reliance, however, is misplaced. In the consolidated criminal case in Gomez, the petitioner and his two codefendants were each charged, inter alia, with one count of

murder and one count of conspiracy to commit murder.

Id., 171. During their criminal trial, two other alleged

coconspirators testified against the petitioner and his

codefendants. Id., 171–72. In his habeas appeal, the petitioner in Gomez claimed that both of the alleged coconspirators ‘‘falsely testified at trial that (1) the state had

not promised them anything in return for their cooperation, and (2) they did not receive any benefit at their

respective bond hearings in exchange for cooperating.’’

Id., 176. Our Supreme Court resolved this claim in favor

of the petitioner after determining that ‘‘the prosecutor

. . . had promised both [of the alleged coconspirators]

that he would bring their cooperation to the attention of

the sentencing court,’’ and that they did, in fact, receive

benefits in exchange for their cooperation that were not

disclosed to the jury. Id.

In the present case, the petitioner argues that Gomez

applies because ‘‘Donofrio was given three benefits in

exchange for her cooperation: (1) she was released on
a nonsurety bond;4

(2) the state filed substitute charges

(which did not include a charge of perjury); and (3) the

state did not recommend a sentence.’’ (Footnote added.)

Even if we assume that these allegations are true, the

petitioner’s reliance on Gomez is still misplaced. Gomez

applies only when a petitioner establishes (1) the existence of an agreement between the state and a witness

and (2) that the witness did, in fact, receive some benefit

as a result of the agreement. See Gomez v. Commissioner of Correction, supra, 336 Conn. 176. Our review

of the record in the present case confirms the finding of

the habeas court that ‘‘the petitioner has failed to prove

that the [state] had entered into a[n] . . . agreement or

understanding, either formal or informal, with Donofrio.’’

5

With respect to the petitioner’s due process claim, we

conclude that the habeas court’s finding that the petitioner had not proved that an agreement or understanding

existed between the state and Donofrio is supported by

substantial evidence. Greene v. Commissioner of Correction, supra, 330 Conn. 29. Accordingly, we conclude that

the finding of the habeas court that no agreement or

understanding existed between the state and Donofrio

with respect to her testimony precludes the application

of the law set forth in Gomez to the petitioner’s claim.

The judgment is affirmed.

1 Specifically, our Supreme Court summarized Donofrio’s testimony as follows: ‘‘In May, 1993, the [petitioner] terminated his relationship with Donofrio

and moved in with another woman. Two months later, Donofrio contacted

the West Haven police to report that the [petitioner] had killed the victim.

Thereafter, Donofrio explained that she and the [petitioner] had discussed his

plans to murder the victim at least one week prior to the murder. Specifically,

the [petitioner] told Donofrio that he loved her and could not afford a divorce,

that he intended to kill the victim by strangulation, and that he would commit

the murder on a Tuesday because he did not work on Wednesday.

‘‘Donofrio testified that the [petitioner] telephoned her between 6 and 6:30

p.m. on Tuesday, January 28, 1992, to tell her that he was in the process of

killing the victim and that he needed her assistance. When Donofrio arrived

at the [petitioner’s] home a few minutes later, she found the [petitioner] and

the victim in the couple’s bedroom. The victim was lying on the bed, face

down and unconscious. The [petitioner], who was on top of the victim, was

strangling her with an extension cord. Because the victim continued to exhibit

a pulse, the [petitioner] began to strangle her manually, holding his thumbs

on the back of her head and his fingers at the front of her neck. Donofrio

then helped the [petitioner] move the victim from the bed onto the floor,

where they took turns smothering her with a pillow until she had no pulse.’’

State v. Bova, supra, 240 Conn. 216.

2 The petitioner’s prior petitions for a writ of habeas of corpus were unsuccessful. See Bova v. Commissioner of Correction, 162 Conn. App. 348, 131 A.3d

268, cert. denied, 320 Conn. 920, 132 A.3d 1094 (2016); Bova v. Commissioner

of Correction, 95 Conn. App. 129, 894 A.2d 1067, cert. denied, 278 Conn. 920,

901 A.2d 43 (2006).

3 The petitioner has not appealed from the judgment of the habeas court

dismissing in part and denying in part his claims of prosecutorial impropriety,

judicial misconduct, and insufficient probable cause.

4 During the habeas trial, the petitioner did not offer the transcript of Donofrio’s arraignment as an exhibit, and, therefore, there is no evidence to support

the petitioner’s argument that the prosecutor suggested that this ‘‘benefit’’

was provided to her.

5 The habeas court set forth the following facts in support of its finding that

no agreement or understanding existed between the state and Donofrio: ‘‘On

February 23, 1995, Donofrio pleaded guilty to conspiracy to commit murder

and making a false statement to the police before the same trial judge, Gormley,

J., who had presided over the petitioner’s [criminal] trial. Prior to the entry

of Donofrio’s guilty pleas, the prosecutor . . . indicated that she was filing
a substituted information as a result of a judicial pretrial that had occurred

subsequent to the jury’s verdict in the petitioner’s case. [The prosecutor] stated

that ‘prior to the time of this pretrial which occurred after the guilty verdict

was entered on [the petitioner], there had been no representation to defense

counsel or to the court as to what the state would do.’ Donofrio’s counsel

. . . confirmed that ‘there were never any agreements that were entered into

by us and the state regarding any disposition of the case.’ Judge Gormley also

stated that ‘there were no discussions with reference to a disposition of

[Donofrio’s] case prior to the verdict being entered in the case of [the petitioner].’ The court indicated disposition for Donofrio’s guilty pleas was a

maximum sentence of twelve years, execution suspended after the service of

six years, followed by probation, with Donofrio’s counsel having the opportunity to argue for a lesser sentence.

‘‘Donofrio was sentenced on April 6, 1995, to a total effective sentence of

ten years of incarceration, execution suspended after the service of four years,

followed by a period of probation of three years. During the sentencing hearing,

the trial court stated: ‘One further thing the court wants to say and to say

very clearly and categorically, and that is that there have been no deals at all

in this case. I read in the paper this morning that the Bova family still believes,

and will believe until their dying days, that there has been a deal. I can’t

change how they feel and they can feel there’s been a deal for as long as

they want. I can only tell them that there has been no deal, none that I’ve

participated in.’ ’’